To Remove or Not To Remove, That Is the Question

February 2002

In this article, Michael Orlando explores some of the intricacies of removing a maritime-oriented case from state court to federal court.

by Michael A. Orlando
Meyer Orlando, LLC

There are many instances when a suit that appears to be of the "wet" variety is filed in state court and a quick, initial decision should be made whether, as a defendant, you would prefer to defend it in federal court and thus whether you may properly use the general removal statute, 28 U.S.C. § 1441, to accomplish your strategy. This article will generally explore some of the intricacies of removing a maritime-oriented case from state court to federal court.

Federal Jurisdictional Statutes

There are three basic federal jurisdictional statutes in this arena:

• 28 U.S.C. § 1331—Federal question jurisdiction. The district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.
• 28 U.S.C. § 1332—Diversity jurisdiction. The district courts have original jurisdiction where the amount in controversy exceeds $75,000 and is between citizens of different states.
• 28 U.S.C. § 1333—Admiralty jurisdiction. The district courts have original jurisdiction over admiralty and maritime claims (with saving to suitors clause allowing plaintiffs with only general maritime claims to file suit in state court, thus giving state courts concurrent jurisdiction with federal courts over in personam maritime claims).

These three statutes play an integral role in whether a maritime-oriented case may be properly removed to federal court. The general removal statute, 28 U.S.C. § 1441, has three parts:

• 1441(a)—Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending …
• 1441(b)—Any civil action of which the district courts have original jurisdiction founded on a claim or right arising under the Constitution, treaties or law 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.
• 1441(c)—Whenever a separate and independent claim or cause of action within the jurisdiction conferred by § 1331 [federal question] of this title is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein or, in its discretion, may remand all matters in which State law predominates.

The Confusion

The single most difficult thing to comprehend in this area is that a general maritime law claim cannot be removed to federal court simply because it could have been filed there originally under 28 U.S.C. § 1333. A plain reading of 1441(a) would lead one to believe that the opposite must surely be true, but that is not the way the removal statute has been interpreted.

Sections (b) and (c) of 1441 have been interpreted to provide restrictions on a removal that is proper under (a); in other words, (a) must be met, then (b) or (c) may make the removal improper unless the restrictions are met. The reason maritime claims are not removable is the federal courts have held that maritime claims do not "arise under the Constitution, treaties, or laws of the United States" for purposes of original federal question jurisdiction under § 1331 and removal jurisdiction.¹

In short, a maritime claim does not present federal question jurisdiction. Instead, jurisdiction of maritime claims is founded on 28 U.S.C. § 1333. Thus, an admiralty action filed in state court under the savings to suitors clause is not removable solely because as an admiralty action, it could have initially been filed in federal court under 28 U.S.C. § 1333; but removal of such action is nevertheless possible if federal jurisdiction is based on something other than admiralty, such as diversity or a statutory provision.²

A few things have come to be clear in maritime practice relating to removal situations. A personal injury tort claim filed under the Jones Act, if filed in a state court (which it certainly may be under the savings to suitors clause), is not removable. This is so despite the fact that the case is based on a federal statute, the Jones Act, because the Jones Act incorporates the general provisions of FELA, 28 U.S.C. § 1445 (a), which bars removal. Regardless of whether the Jones Act claim is coupled with other claims that might on their face seem to be removable, the case is non-removable based on the statutory bar in § 1445(a).

Another thing that is clear is that matters involving cargo damage are removable even if no federal statute is pleaded in the complaint. Generally, such claims will either fall under the Harter Act if the transportation is between only U.S. ports, or under the Carriage of Goods by Sea Act if the transportation touches a foreign port. Those federal statutes, provide a basis for removal pursuant to 28 U.S.C. § 1441(b).

The Outer Continental Shelf Lands Act (OCSLA)

As clear as the above principles are, there are some that are at the opposite end of the spectrum. Cases involving the Outer Continental Shelf Lands Act, 43 U.S.C. §§ 1331, et seq., fall in this latter category based on the current status of the law. OCSLA grants federal courts jurisdiction over disputes occurring there. The jurisdictional grant, contained in 43 U.S.C. § 1349(b)(1), is very broad. With exceptions not pertinent to this discussion, the statute provides:

… the district courts of the United States shall have jurisdiction of cases and controversies arising out of, or in connection with (A) any operation conducted on the outer Continental Shelf which involves exploration, development, or production of the minerals, of the subsoil and seabed of the outer Continental Shelf, or which involves rights to such minerals, or (B) the cancellation, suspension, or termination of a lease or permit under this subchapter. Proceedings with respect to any such case or controversy may be instituted in the judicial district in which any defendant resides or may be found, or in the judicial district of the State nearest the place the cause of action arose.

OCSLA, accordingly, provides a basis for original jurisdiction in federal court. It is clear that Congress enacted OCSLA to provide a federal body of law to govern operations on the Outer Continental Shelf. OCSLA also makes federal law exclusive in its regulation of the Outer Continental Shelf. It provides:

The Constitution and laws and civil and political jurisdiction of the United States are hereby extended to the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, or developing, or producing resources therefrom, or any such installation or other device (other than a ship or vessel) for the purpose of transporting such resources, to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: … [43 U.S.C. § 1333(1).]

However, recognizing that the statutory federal law may in some areas be inadequate, OCSLA incorporates aspects of the laws of adjacent states, where those laws are not inconsistent with OCSLA. These incorporated state laws become surrogate federal law, and are considered exclusively federal law when applicable under OCSLA. Thus, where state law becomes surrogate federal law under OCSLA, there is federal question jurisdiction.

OCSLA provides that

To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent State, now in effect or hereafter adopted, amended, or repealed are hereby declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf, … All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States … [43 U.S.C. § 1333(2)(A).]

Quite interestingly, as regards operations in the Gulf of Mexico, the Fifth Circuit Court of Appeals has held that while OCSLA was intended to apply to the full range of disputes that might occur on the Outer Continental Shelf, it was not intended to displace general maritime law.³ The Fifth Circuit has noted that the foregoing is clear from both the statute itself and other Fifth Circuit holdings. Consequently, OCSLA does not transform maritime claims falling within its jurisdictional grant into claims arising under federal law.⁴

In analyzing § 1441(b), the Fifth Circuit has held that because OCSLA does not displace general maritime law, substantive maritime law continues to govern where both OCSLA and general maritime law could apply.⁵ Moreover, maritime cases do not "arise under" federal law for purposes of federal removal jurisdiction. Therefore, the Fifth Circuit has stated that where a claim within OCSLA's grant of original federal court jurisdiction is nevertheless governed by maritime law, it arguably does not provide removal jurisdiction (because there is not a federal question) unless no defendant is a citizen of the state in which suit was brought (satisfying the second sentence of § 1441(b)), notwithstanding that it would fall within the federal district court's original jurisdiction under OCSLA.⁶

The door has been left open on this discussion, though. The Fifth Circuit has noted that Congress's intent in OCSLA may have been to give the federal district courts jurisdiction over all OCSLA cases, either originally or on removal. However, it did not have to reach that decision in either of the above-cited cases.

The Conundrum

The Fifth Circuit has noted the "conundrum" in evaluating the propriety of removal in OCSLA cases governed by maritime law. For instance, in Tennessee Gas Pipeline, an OCSLA case in which substantive maritime law governed, the Fifth Circuit noted the dilemma caused by § 1441(b)'s restrictions on citizenship on the removal of claims, even though citizenship is arguably irrelevant to the district court's original jurisdiction under OCSLA.⁷ The Fifth Circuit in Tennessee Gas Pipeline struggled with the applicability of the first sentence of § 1441(b) because, although there was jurisdiction under the OCSLA, the foundational claim was the maritime law claim, which does not "arise under the constitution, treaties or laws of the United States."

Unfortunately, the Fifth Circuit did not need to resolve the dilemma in Tennessee Gas Pipeline because the only defendant in that case, though a citizen of the same state as the plaintiff, was not a citizen of the state in which the suit was brought, and, accordingly, removal was appropriate under the second sentence of § 1441(b) because the restriction on citizenship did not come into play.⁸

In Hufnagel, the Fifth Circuit again noted the dilemma but did not resolve it because in that case, the plaintiff's claims were non-maritime (the injury occurred on a fixed platform) and were governed by Louisiana law, which was made applicable federal law by OCSLA.⁹ The Fifth Circuit held in that case that such a claim was one "arising under" OCSLA within the meaning of 28 U.S.C. § 1441(b) and 28 U.S.C. § 1331 federal question, and thus was not subject to § 1441(b)'s restriction to cases in which no defendant is a citizen of the state of suit.

Accordingly, the Fifth Circuit has not yet clearly decided the removability of a case where the claims are all maritime and the defendant is a citizen of the state in which the action was filed. Presumably, based on the strong dicta in Hufnagel and Tennessee Gas Pipeline, removal would not be proper. And in fact, lower courts have so held. See e.g., Courts v Accu-Coat Services, Inc., 948 F Supp 592, 595 (WD La 1996). In Courts, the district court was squarely faced with removability of an OCSLA case where all the claims were maritime and removal could not be had under the second sentence of § 1441(b). The court noted the Fifth Circuit's statement that "given the broad grant of jurisdiction under the OCSLA, Congress may have intended to vest the federal courts with the power to hear any case involving the outer Continental Shelf regardless of the parties citizenship." [Id.] However, the court in Courts stated that there is "no concrete evidence that Congress intended to supercede the language of 28 U.S.C. § 1441(b) or have the federal courts ignore the parties' citizenship when it granted broad jurisdiction under OCSLA. It is for Congress to express such substantial intentions if they exist." [Id.] Consequently, the district court in that case held that the case was improperly removed.

Nevertheless, the Fifth Circuit has not squarely addressed such a case and, until it does, it has left the door open to test what the Fifth Circuit believes was Congress's intent in granting the federal courts broad jurisdiction over cases arising on the Outer Continental Shelf. As most cases involving OCSLA are "wet" in nature and touch on or affect maritime matters, it is the writer's belief that justice would be better served if the question is answered by allowing removal of OCSLA cases to federal court even if the entirety of the case is governed by maritime law and the restrictions as to citizenship in 1441(b) are not met, as that would serve the guiding principle of maritime law: uniformity. It makes little sense that a case involving mainly Louisiana state law is removable to federal court because it occurs on a fixed platform, but that same case, if it occurs on a jack-up drilling rig (which is a vessel under maritime law), might not be removable because maritime law is the governing law.

Conclusion

As is apparent, in the context of maritime cases, one can hardly ever simply read what might otherwise be a straightforward statute and have a feeling for its interpretation. Sometimes centuries of case law have evolved such that general principles of interpretation have no bearing in the maritime context. In the writer's view, that is exactly the case when one thinks of the notion that federal maritime law does not "arise under the Constitution, treaties, or laws of the United States."

The next article will finish the discussion of the general removal statute as regards overlapping claims under 28 U.S.C. § 1441(c).

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¹See Romero v International Terminal Operating Co., 358 U.S. 354 (1959); Hufnagel v Omega Service Indus., Inc., 182 F3d 340, 348 (5th Cir 1999); Tennessee Gas Pipeline v Houston Casualty Ins. Co., 87 F3d 150, 153 (5th Cir 1996).

²Hufnagel, 182 F3d at 348; Tennessee Gas Pipeline, 87 F3d at 153.

³Tennessee Gas Pipeline, 87 F3d at 154.

⁴Hufnagel, 182 F3d at 350.

⁵Hufnagel, 182 F3d at 350; Tennessee Gas Pipeline, 87 F3d at 154.

⁶Hufnagel, 182 F3d at 350.

⁷Tennessee Gas Pipeline, 87 F3d at 156.

⁸See Tennessee Gas Pipeline, 87 F3d at 156.

⁹43 U.S.C. § 1333(a)(2)(A). Hufnagel, 182 F3d at 351.

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