LU JUNHONG, et al., Plaintiffs-Appellees, v. The BOEING COMPANY, Defendant-Appellant.
Nos. 14-1825 et al.
United States Court of Appeals, Seventh Circuit.
July 8, 2015.
Rehearing and Rehearing En Banc Denied Aug. 10, 2015.
792 F.3d 805
Before WOOD, Chief Judge, and CUDAHY and EASTERBROOK, Circuit Judges.
Wessel and Lay take refuge behind the Facility directive that they maintain permitted them to remove restraints only “[w]ithin a secure facility in order to utilize the restroom.” But there was conflicting testimony as to whether the corridor behind the courtroom was “secure.” Moreover, the same directive allowed Wessel and Lay to call their supervisor for permission to remove the restraints, and a reasonable jury could find that they chose not to do so for the purpose of humiliating Davis. It must be remembered that Davis would have had no means of escape from the windowless restroom other than by force through Wessel and Lay (while Davis still wore leg shackles), and Wessel and Lay were each considerably larger, younger, and healthier than Davis. And finally, even if the directive meant what Wessel and Lay contend, “[a] jail cannot shield a cruel and unusual punishment from legal challenge simply by imposing it on everyone equally. That would serve only to magnify the constitutional problem.” King v. McCarty, 781 F.3d 889, 898-99 (7th Cir.2015).
The district court properly denied Wessel and Lay‘s motion for judgment as a matter of law.
III. CONCLUSION
The judgment is VACATED and the case is REMANDED for further proceedings consistent with this opinion.
Argued June 26, 2014.
Colin H. Dunn, Attorney, Clifford Law Offices, P.C., Todd Smith, Attorney, Power, Rogers & Smith, Chicago, IL, Arthur R. Miller, Attorney, Harvard Law School, Cambridge, MA, for Plaintiffs-Appellees.
EASTERBROOK, Circuit Judge.
On July 6, 2013, a Boeing 777 hit the seawall that separates the ocean from the end of a runway at San Francisco International Airport. The plane‘s tail broke off, 49 persons sustained serious injuries, and three of the passengers died, though the other 255 passengers and crew aboard suffered only minor or no injuries. The flight, operated by Asiana Airlines, had crossed the Pacific Ocean from Seoul, Korea. The National Transportation Safety Board concluded that the principal cause of the accident was pilot error: the pilots approached too low and too slow, and by the time they attempted to add power and execute a missed approach, it was too late. Only three seconds remained until the impact, the plane was about 90 feet above the ground, and the “airplane did not have the performance capability to accomplish a go-around.” Aircraft Accident Report: Descent Below Visual Glidepath and Impact with Seawall, Asiana Airlines Flight 214 (NTSB June 24, 2014) at 126. The Board believed that the pilots would have had to act eight or nine seconds earlier (a total of 11 or 12 seconds before reaching the seawall) to avoid hitting it. Id. at 84-85.
Suits brought in federal courts in California, and some other district courts, were consolidated by the Panel on Multidistrict Litigation in the Northern District of California under
I
First in line is the question whether Boeing was entitled to remove under
Boeing contends that it is “acting under” the Federal Aviation Administration because “the FAA has granted Boeing authority to use FAA-approved procedures to conduct analysis and testing required for the issuance of type, production, and airworthiness certifications for aircraft under Federal Aviation Regulations. In carrying out those functions, Boeing is subject to FAA control, and it acts as a representative of the FAA Administrator.” Instead of sending a cadre of inspectors to check whether every aircraft design meets every particular of every federal rule and policy, the FAA allows Boeing (and other firms) to do some of the checking itself. In particular, Boeing maintains, FAA Order 8100.9A authorizes and requires it to analyze the adequacy of its autopilot and autothrottle systems and certify that they meet the regulatory requirements of
It would be linguistically possible to call self-certification a form of “acting under” the FAA. Yet all businesses must ensure that they comply with statutes and regulations. Sometimes they use the information internally, to decide whether they must make changes. Sometimes they must certify compliance. For example, Boeing‘s brief on this appeal closes with three certifications: (1) that the brief was properly filed with the court and served on opposing counsel; (2) that the portions subject to a length limit contain 11,882 words and that it meets the typeface requirements of Fed. R.App. P. 32; and (3) that all of the materials required by Seventh Circuit Rule 30 have been included in the appendix. Would Boeing‘s lawyers say that these certifications make Boeing (or its law firm) persons “acting under” the judiciary? Yet certifications just demonstrate a person‘s awareness of the governing requirements and evince a belief in compliance. Judges often call lawyers “officers of the court,” but no one should think that this means that a lawyer can use
This analysis implies that the right question is whether being subject to governmental requirements is enough to make a person one “acting under” the author of those regulations, for the purpose of
Watson sued a cigarette manufacturer, contending that it had cleverly manipulated the testing of its products to show low levels of tar and nicotine. The manufacturer contended that, to the contrary, it had tested exactly as federal officials required and that any deviation from those protocols was forbidden. As an entity merely following orders, the manufacturer asserted, it should be treated the same as the agency that issued the orders. The Court observed that regulation is ubiquitous, and much regulation can be called complex; if following federal rules allowed litigation in federal court, then all food and drug suits, and many others too, would be removable. The Court thought that neither the language nor the history of
This is where Boeing sees its opening. It does not just follow regulations; it also certifies compliance with them and in the process reduces the size of the federal bureaucracy. An employee of the FAA who certified the airworthiness of Boeing‘s autopilot and autothrottle systems would be covered by
The problem with this argument is the one we stated at the outset. Every regulated firm must use its own staff to learn whether it has satisfied federal regulations. The staff of an electric utility running a coal-fired generation station must ensure that the equipment (much of it covered by detailed regulations) meets the EPA‘s specifications (and those of the host state) and is in working order. The staff also must monitor the stack gasses to ensure that the plant does not emit too much sulfur dioxide or particulate matter. It is a detail whether the firm sends the EPA a report (a “self-certification“) of compliance, or instead sends reports only when it finds non-compliance, or sends no reports at all and waits for inspectors to appear. Likewise with safety apparatus (and safety inspections) under the Occupational Safety and Health Act and hundreds of other federal statutes. We do not see any correlation between the required certifications and acting-under status. The Supreme Court in Watson gave, as one example of someone obviously not “acting under” a federal agency, a person filing a tax return. 551 U.S. at 152. Yet the taxpayer must interpret and apply a complex statute and voluminous regulations, and the end of every return is a certification that this has been done and all income (and deductions) reported honestly. That process of self-reporting enables the IRS to have a smaller workforce, just as Boeing‘s procedures cut the FAA‘s payroll, but if taxpayers (and lawyers who certify that their briefs comply with rules) are not covered by
The list of people who have to certify things is exceedingly long. For example, every employer with a federal contract must certify that it has paid workers the prevailing wage. See
Boeing replies that the relation between cigarette manufacturers and the Federal Trade Commission (the agency that regulated testing) was faux delegation, while its relation with the FAA is real delegation. Boeing points to
When discussing the possibility that delegation might create “acting under” status, the Court mentioned rule making rather than rule compliance as the key ingredient, 551 U.S. at 157, and the FAA‘s order does not allow Boeing to change substantive rules. That some of the FAA‘s own rules are general—for example,
If the FAA gave Boeing a power to issue a conclusive certification of compliance, even though not to establish substantive standards, the situation would come closer to what Watson suggested might suffice. As far as we can see, however, nothing that Boeing says is conclusive in the sense that a court must treat its self-certification as establishing that its flight-control systems do meet all federal rules. If the FAA itself were to reach that conclusion, a court could not gainsay the decision in a tort suit or under the Administrative Procedure Act (unless, perhaps, the FAA‘s decision were arbitrary and capricious). Boeing‘s self-certification does not have that effect, however; it does not prevent either a court or the FAA itself from taking a fresh look and reaching a contrary conclusion.
Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1428 (11th Cir.1996), supports Boeing‘s position. Boeing does not identify, however, any post-Watson decision reaching a similar conclusion, for the FAA or any other agency that has delegated, not the power to make rules, but the power to certify compliance with them. We think that Magnin is inconsistent with Watson and cannot be considered authoritative. So we agree with the district court that
II
Plaintiffs maintain that, once we reach this conclusion, the appeal is done. That‘s
Boeing offers a different take on the scope of federal jurisdiction. It observes that when a suit is “removed pursuant to section 1442” (as this was) the district court‘s “order” of remand is reviewable on appeal. To say that a district court‘s “order” is reviewable is to allow appellate review of the whole order, not just of particular issues or reasons. So Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205, 116 S.Ct. 619, 133 L.Ed.2d 578 (1996), holds with respect to
And so we have understood the relation between
Section 1447(d) itself authorizes review of the remand order, because the case was removed (in part) pursuant to
Once again another court of appeals has come to a contrary conclusion. Jacks v. Meridian Resource Co., 701 F.3d 1224, 1229 (8th Cir.2012), holds that, even when a statute authorizes review of a remand order, only the issue behind the exception to
Review should ... be extended to all possible grounds for removal underlying the order. Once an appeal is taken there is very little to be gained by limiting review; the only plausible concern is that an expanded scope of review will encourage defendants to rely on strained arguments under [§ 1442 or] § 1443 in an effort to support appeal on other grounds. Sufficient sanctions are available to deter frivolous removal arguments that this fear should be put aside against the sorry possibility that experience will give it color.
Edward H. Cooper, 15A Wright & Miller Federal Practice & Procedure § 3914.11 (2014 rev.) (citations omitted).
We recognize that Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 96 S.Ct. 584, 46 L.Ed.2d 542 (1976), and a few other decisions that went out of their way to find exceptions to
Our application of Yamaha Motor and Brill to the word “order” in
This is not a matter of pendent appellate jurisdiction here any more than in Yamaha Motor. There is only one order and only one appellant, while pendent appellate jurisdiction involves an extra order, an extra appellant, or both. See Swint v. Chambers County Commission, 514 U.S. 35, 115 S.Ct. 1203, 131 L.Ed.2d 60 (1995); Clinton v. Jones, 520 U.S. 681, 707 n. 41, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997); Allman v. Smith, No. 14-1792, 790 F.3d 762, 763-65, 2015 WL 3876258, at *1-2 (7th Cir. June 24, 2015). If one “order” is the thing appealed, as Yamaha Motor and Brill concluded, nothing is “pendent” when considering all of the issues that led to the order. This is the same as the proposition that an appeal from a district court‘s order denying a Rule 59 motion brings up the whole judgment, without the need for a
If we go beyond the text of
Some litigants may cite
III
The relation between aviation accidents and the admiralty jurisdiction has been fraught ever since Executive Jet Aviation, Inc. v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), modified the former situs requirement and asked, not where a wreck ended up (land or water), but whether the events leading to the accident have enough connection to maritime activity. A plane had taken off from an airport adjoining Lake Erie, collided with a flock of gulls that gathered at the garbage dump off the end of the runway, settled back to earth in the heap of garbage, and was carried by its inertia into the lake, where it sank. The Justices thought that this had nothing to do with maritime affairs, even though the gulls may have made their living eating fish (in addition to refuse), and held the admiralty jurisdiction unavailable.
But the approach articulated in Executive Jet has caused problems. The price of throwing out one case that did not seem connected to maritime commerce was to unsettle the rules for many other cases with stronger connections. Sisson v. Ruby, 497 U.S. 358, 110 S.Ct. 2892, 111 L.Ed.2d 292 (1990), suggested that the Justices had begun to rue the Executive Jet decision, and though it was not overruled the Court did hold that damage caused by a fire in the washer/dryer of a yacht tied up at a dock was within the admiralty jurisdiction. A few years later,
The parties and the district court read the interaction of these decisions (and there are others that need not be mentioned) in three ways. Plaintiffs maintain that aviation accidents are outside the admiralty jurisdiction (unless perhaps a flying boat or float plane is involved); as fallbacks they contend that when the injury occurs on land there cannot be admiralty jurisdiction and that in any event a defendant cannot remove under the admiralty jurisdiction. Boeing contends that admiralty jurisdiction is available when an accident has a maritime cause, which Boeing understands to mean a cause that occurred while the plane was over navigable waters. The district court did not accept any of these approaches. Instead it held that admiralty jurisdiction is available only when an accident becomes inevitable while the plane is over water.
We start with the inevitability standard, which as far as we can tell lacks a provenance in the Supreme Court‘s decisions or in any appellate opinion. And it has the further problem of not supporting the judgment, because the choice between “cause” (Boeing‘s argument) and “inevitable cause” (the district court‘s holding) cannot affect the outcome.
As the district judge saw things, until the crash the pilots had only to rev the engines, pull up on the yoke, and execute a missed approach. Their failure to do this caused the accident, but hitting the seawall never became inevitable over water. When Boeing asked the district judge to reconsider, contending that the record did not support the judge‘s understanding of the facts, the judge replied that the record did not show beyond all doubt that the plane was doomed at any moment while it was over navigable water.
Both the district judge‘s opinion and his order denying reconsideration were issued before the NTSB released its report, which concluded that by 10 seconds before impact a collision was certain; a 777 aircraft lacks the ability to accelerate and climb fast enough, no matter what the pilots did in the final 10 seconds. This means that, while the plane was over San Francisco Bay (part of the Pacific Ocean), an accident became inevitable. And the plaintiffs’ own theory of liability pins a portion of the blame on Boeing because, about 4.5 nautical miles from the seawall, the autothrottle system disengaged—apparently without the pilots recognizing what had happened—and caused the plane to descend faster than the pilots appreciated. NTSB Report at 79-84.
The autothrottle system did exactly what it had been programmed to do. We have nothing to say about whether it should have been programmed differently, whether its design played a role in the accident, or whether Boeing should have done more to educate airlines (and their pilots) about how it would react when pilots issued the commands that Asiana‘s pilots did on the descent into San Francisco. But, if Boeing is liable at all, it must be because something about how this system was designed or explained created an unacceptable risk of an accident and the system‘s performance (including the interaction between pilots and the automation design) occurred before the plane hit the seawall.
The district judge may have thought that federal jurisdiction depends
Is that sufficient? Grubart says that admiralty jurisdiction is available when an “injury suffered on land was caused by a vessel on navigable water“, if the cause bears a “substantial relationship to traditional maritime activity.” 513 U.S. at 534 (internal quotation marks omitted). This plane crossed the Pacific Ocean, a traditional maritime activity, and the cause of the accident likely occurred over the water. But an airplane is not a “vessel” and it was “over” rather than “on” the water. Does that make a difference?
Not functionally. An airplane, just like an ocean-going vessel, moves passengers and freight from one continent to another. It crosses swaths of the high seas that are outside of any nation‘s territory, and parts of the seas adjacent to the United States but outside any state‘s territory. It is a traditional, and important, function of admiralty law to supply a forum and a set of rules for accidents in international commerce. And Executive Jet itself said as much, though with a hedge, in remarking that a trans-ocean flight “might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by waterborne vessels“. 409 U.S. at 271.
Before the Wright Brothers, admiralty jurisdiction necessarily was limited to vessels on navigable waters. Perhaps the invention of the submarine (under rather than on the water) was its first logical extension. When aircraft came along, courts had a lot of difficulty classifying them for many purposes. See Arthur R. Miller, 14AA Wright & Miller Federal Practice & Procedure § 3679 (2014 rev.). But just as judges have not doubted that Congress can establish an air force even though the Constitution mentions only an army and a navy, so judges have concluded that airplanes over navigable waters should be treated the same as vessels—when a connection to maritime activity exists, as it didn‘t in Executive Jet.
Executive Jet treated it as settled that airplanes are within the scope of the Death on the High Seas Act,
True, we have in this litigation an accident apparently caused by events over water, but producing injury on land, and there‘s no tort without injury. Yet neither
We are not saying that the Death on the High Seas Act applies to these cases. The plaintiffs do not rely on it. Section 30307(c) creates an exception to the Act for deaths that occur within 12 nautical miles of shore. Nor are we saying that a flight scheduled to take off and land within the United States drifts in and out of admiralty as it crosses lakes and rivers along the way. The Justices remarked in Executive Jet that for “flights within the continental United States, which are principally over land, the fact that an aircraft happens to fall in navigable waters, rather than on land, is wholly fortuitous.” 409 U.S. at 266. That opinion wrapped up this way: “we hold that, in the absence of legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights by land-based aircraft between points within the continental United States.” Id. at 274.
But Asiana 214 was a trans-ocean flight, a substitute for an ocean-going vessel—as flights from the contiguous United States to and from Alaska, Hawaii, and overseas territories also would be—and thus within the scope of Executive Jet‘s observation that this situation “might be thought to bear a significant relationship to traditional maritime activity“. Id. at 271. The Supreme Court‘s holding in Offshore Logistics that an accident caused by problems in airplanes above water should be treated, for the purpose of
Most appellate decisions on this subject since Executive Jet agree. See Miller v. United States, 725 F.2d 1311, 1315 (11th Cir.1984) (flight from Bahamas to Florida is within admiralty jurisdiction); Williams v. United States, 711 F.2d 893, 896 (9th Cir.1983) (flight from California to Hawaii is within admiralty jurisdiction); Roberts v. United States, 498 F.2d 520, 524 (9th Cir.1974) (flight from California to Vietnam is within admiralty jurisdiction). The one exception, United States Aviation Underwriters, Inc. v. Pilatus Business Aircraft, Ltd., 582 F.3d 1131 (10th Cir.2009) (flight between Japan and Russia), stressed that the flight was not commercial; maybe the Tenth Circuit would find admiralty jurisdiction for commercial aviation such as Asiana 214. It is enough for us to say that we accept the majority position.
Plaintiffs tell us that, even if the events come within
The appellate cases cited in this passage rely on Romero v. International Terminal Operating Co., 358 U.S. 354, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), which took the saving-to-suitors clause at the end of
Oddly, however, plaintiffs do not mention the saving-to-suitors clause and do not cite Romero or any similar decision by the Supreme Court. Perhaps they have left them out because they no longer provide assistance. When the Supreme Court decided Romero, and when the courts of appeals decided the four cases on which plaintiffs rely,
Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of the United States shall be removable without regard to the citizenship or residence of the parties. Any other such action shall be removable only if none of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
That‘s why it mattered in Romero whether a maritime case under
(b) REMOVAL BASED ON DIVERSITY OF CITIZENSHIP.—(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded. (2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.
Federal Courts Jurisdiction and Venue Clarification Act of 2011, § 103, Pub.L. No. 112-63, 125 Stat. 759. This amendment limits the ban on removal by a home-state defendant to suits under the diversity jurisdiction.
Perhaps it would be possible to argue that the saving-to-suitors clause itself forbids removal, without regard to any language in
IV
One observation in closing. Our conclusions about admiralty jurisdiction, and the appellate-jurisdiction ruling that allowed us to consider the admiralty question, are compatible with the Multiparty, Multiforum Trial Jurisdiction Act of 2002, codified in
The district court‘s decision is reversed, and the case is remanded with instructions to rescind the remand orders and transfer these cases to the Northern District of California for consolidated pretrial proceedings under