57 F.4th 432
5th Cir.2023Background
- The Port of Corpus Christi Authority (a Texas governmental navigation district) sued Kenneth Berry and his private company The Port of Corpus Christi, L.P. (the “Berry Parties”) in state court for trespass and encroachment on submerged state-owned land adjacent to Berry Island.
- Dredging and placement of dredged material on Berry Island were authorized by a U.S. Army Corps of Engineers permit issued to Moda/Enbridge; the permit required use of Berry Island as a Dredge Material Placement Area (DMPA) and referenced a land‑use agreement with the owner of the submerged land.
- The Port Authority alleged dredge spoil, rip‑rap, and a dredge pipe encroached on its submerged land, creating hazards and interfering with ship‑channel use; its petition pleaded only Texas common‑law trespass and expressly disclaimed permit‑compliance claims.
- The Berry Parties removed to federal court invoking (1) federal‑officer removal (28 U.S.C. §1442(a)), (2) federal‑question jurisdiction (28 U.S.C. §1331), and (3) admiralty/maritime jurisdiction (28 U.S.C. §1333(1)).
- The district court remanded, concluding that (a) the defendants were not “acting under” a federal officer merely by operating consistent with a Corps permit, (b) resolution of the trespass claim did not necessarily require adjudication of federal law, and (c) admiralty removal was inadequately briefed.
- The Fifth Circuit reviewed the remand de novo and AFFIRMED the remand order.
Issues
| Issue | Plaintiff's Argument (Port Authority) | Defendant's Argument (Berry Parties) | Held |
|---|---|---|---|
| Whether removal is proper under the federal‑officer statute (28 U.S.C. §1442(a)) | Berry Parties are not acting under federal officers; this is a state trespass. | Corps permit and DMPA obligations show defendants acted pursuant to federal direction and therefore qualify for §1442 removal. | No. Mere regulation/permit compliance (and not being the permittee or performing a federal task) does not satisfy “acting under” a federal officer; federal‑officer removal denied. |
| Whether a federal question exists (28 U.S.C. §1331) because Corps permits/Rivers & Harbors/Clean Water Act are implicated | The trespass claim is a state law action and disclaims federal claims; federal law is not essential to resolution. | Adjudication would necessarily question or require interpretation of Corps permits and federal statutes, creating a federal issue. | No. Resolving Texas trespass elements does not require deciding a substantial, disputed federal issue; federal statutes do not create the cause of action and removal on this basis fails. |
| Whether admiralty/maritime jurisdiction supports removal (28 U.S.C. §1333) | Case is a state property/trespass action, not a maritime claim invoking federal jurisdiction. | Berry Island lies in navigable water, so admiralty/maritime jurisdiction supports federal removal. | No. Defendants abandoned or inadequately briefed the argument; mere location in navigable water is insufficiently developed to support removal. |
Key Cases Cited
- Watson v. Philip Morris Cos., Inc., 551 U.S. 142 (2007) (private compliance with federal regulation does not alone satisfy “acting under” federal officer).
- Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020) (elements required for §1442 removal and standard of review).
- St. Charles Surgical Hosp., L.L.C. v. Louisiana Health Serv. & Indem. Co., 990 F.3d 447 (5th Cir. 2021) (examining degree of federal control/subjection for §1442).
- Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017) (private contractor supplying parts at Navy direction satisfied “acting under”).
- Board of Comm’rs v. Tennessee Gas Pipeline Co., 850 F.3d 714 (5th Cir. 2017) (four‑factor test for embedded federal‑issue jurisdiction).
- Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804 (1986) (mere presence of federal issue in state claim does not automatically confer federal jurisdiction).
- Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677 (2006) (federal law must create the cause of action or be necessary to the right to relief).
- International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (federal permits under the Clean Water Act do not necessarily preempt state common‑law claims).
- Barker v. Hercules Offshore, Inc., 713 F.3d 208 (5th Cir. 2013) (maritime cases filed in state court are not removable absent an independent federal basis).