CURTIS D. MORGAN, Plaintiff-Appellee,
HUNTINGTON INGALLS, INCORPORATED, Formerly Known as Northrup Grumman Ship Systems, Incorporated; J. MELTON GARRETT; ALBERT BOSSIER; LAMORAK INSURANCE CO.; MURPHY OIL USA, INCORPORATED, Defendants-Appellants.
from the United States District Court for the Middle District
SMITH, PRADO, and HIGGINSON, Circuit Judges.
E. SMITH, Circuit Judge:
Huntington Ingalls, Incorporated ("Huntington
Ingalls"), J. Melton Garrett, Albert Bossier, Lamorak
Insurance Company, and Murphy Oil USA, Incorporated
("Murphy Oil"), appeal an order of remand in which
the district court found removal untimely under 28 U.S.C.
contend that removal was timely instituted within thirty days
of receipt of a deposition transcript indicating the case
might be removable under 28 U.S.C. § 1442(a)(1).
Plaintiff Curtis Morgan challenges Murphy Oil's standing
to appeal. Because the removal clock began on receipt of the
deposition transcript, we vacate the order and remand to the
district court for consideration of whether Huntington
Ingalls meets the substantive requirements for federal
officer jurisdiction. We dismiss Murphy Oil's appeal for
want of standing.
a "sheet metal tacker" for Avondale
Shipyards in 1966, alleges that his employment
exposed him to asbestos and resulted in his contracting
asbestos-related mesothelioma among other health problems. On
February 23, 2017, Morgan sued seventy-eight defendants,
including Huntington Ingalls, former alleged executive
officers and insurers of Avondale Shipyards,  and Murphy Oil in
state court under theories of negligence and strict
liability. His pleading did not identify any vessels on which
was deposed during eight days from March 9 to April 13, 2017.
Avondale specifically questioned him on two days (March 10
and 20). Morgan stated that he worked at Avondale's main
yard and on one vessel, a Lykes vessel. He did not remember
working on any other vessel. On March 20, Avon-dale's
lawyer questioned Morgan about working on the USS
Huntsville,  but
could not remember the ship. Avondale showed Morgan medical
records indicating he had allegedly worked and been injured
on the USS Huntsville during his employment. Morgan
reiterated that he could not remember the ship. "But if
the records indicate that [he] had those injuries aboard the
HUNTSVILLE, [he] would agree that [he] worked on the
March 28, 2017, Avondale received a link to the deposition
transcript. It removed the case on April 27, 2017, which was
30 days after receipt of the transcript but 38 days after the
relevant testimony. The basis for the removal was the federal
officer removal statute, 28 U.S.C. § 1442, which allows
removal of state cases commenced against
[t]he United States or any agency thereof or any officer . .
. of the United States or of any agency thereof, in an
official or individual capacity, for or relating to any act
under color of such office or on account of any right, title
or authority claimed under any Act of Congress for the
apprehension or punishment of criminals or the collection of
contested removal as untimely under § 1446(b)(3) and
claimed that the court "lack[ed] federal subject matter
jurisdiction under [the federal officer removal
statute]." The district court agreed removal was
untimely. It determined that section 1446's removal clock
began running on the date of the relevant oral testimony.
Because removal was untimely, the court remanded and did
"not decide whether the[ ] substantive requirements of
§ 1442 ha[d] been met."
and Murphy Oil appeal. Morgan moved to dismiss Murphy
Oil's appeal, contending that it lacks standing to
appeal. We expedited the appeal because of Morgan's ill
health, but he died September 14, 2017.
makes little practical difference whether Murphy Oil has
standing to appeal. Avondale's standing to appeal is not
questioned, so we will still reach the issue of whether the
deposition testimony or transcript starts the removal clock.
If the case is removable by Avondale, the entire case will be
deemed removable, such that Morgan's claims against all
other defendants, including Murphy Oil, will be heard in
federal court as well.
"Article III standing implicates the federal
judiciary's power to adjudicate disputes [so] it can be
neither waived nor assumed." Rohm & Hass Texas,
Inc. v. Ortiz Bros. Insulation, Inc., 32 F.3d 205, 207
(5th Cir. 1994) (footnote omitted). "Merely because a
party appears in the district court proceedings does not mean
that the party automatically has standing to appeal the
judgment rendered by that court." A defendant must
meet both constitutional and prudential standing
irreducible constitutional minimum of standing contains three
elements[:]" (1) "[T]he plaintiff must have
suffered an 'injury in fact'-an invasion of a legally
protected interest which is (a) concrete and particularized
and (b) 'actual or imminent, not "conjectural"
or "hypothetical"'"; (2) "there must
be a causal connection between the injury and the conduct
complained of"; and (3) "it must be 'likely,
' . . . that the injury will be 'redressed by a
favorable decision.'" Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560-61 (1992) (citations
omitted). Murphy Oil has the burden to establish standing.
In re Deepwater Horizon, 857 F.3d 246, 253 (5th Cir.
Oil points to no sufficient "injury in fact." The
primary injury it alleges is "a procedural right to
remove cases within thirty days of receipt of a deposition
transcript." Because it "has, in fact, litigated
[this] issue . . . in other personal injury litigation"
and "consistently faces situations where a case is
potentially removable upon close review of the deposition
transcript, " Murphy Oil believes that "[t]he
district court's ruling . . . impinges on Murphy's
procedural removal rights." That is a speculative
grievance well short of a concrete injury. See Defs. of
Wildlife, 504 U.S. at 560. The hypothetical potential to
confront this issue in future possible litigation with
different plaintiffs is too conjectural to constitute an
injury in fact.
Murphy Oil "cannot satisfy the demands of Article III by
alleging a bare procedural violation." Spokeo Inc.
v. Robins, 136 S.Ct. 1540, 1550 (2016). It must also
show "some concrete interest that is affected by the
deprivation." Summers v. Earth Island Inst.,
555 U.S. 488, 496 (2009); accord Spokeo, 136 S.Ct.
at 1549. Murphy Oil asserts that it "maintains an
interest in a federal forum for this and other, future
removable litigation, " such that "the District
Court's remand has now deprived Murphy of its preferred
forum." But, Murphy Oil itself has no right to be in
federal court in the first place. Only Avondale, its
co-defendant, can invoke the federal officer removal statute.
Had Avondale not chosen to remove, Murphy Oil could not have
asserted federal officer jurisdiction on Avondale's
behalf. Congress granted the right to remove under §
1442 to only certain classes of defendants, none of which
includes Murphy Oil. A generalized desire to litigate in
federal court, without holding a corresponding right to be in
federal court in the first place, is insufficient to satisfy
the injury-in-fact prong of Article III. Murphy Oil
experienced no concrete and particularized injury sufficient
to satisfy the injury-in-fact prong of Article III, so its
appeal is dismissed for lack of jurisdiction.
remand order "is not reviewable on appeal or otherwise,
except that an order remanding a case to the State court from
which it was removed pursuant to section 1442 or
1443 of this title shall be reviewable by appeal or
otherwise." 28 U.S.C. § 1447(d) (emphasis added).
Avondale removed under § 1442(a)(1), so we have
review a remand order de novo. Preston v. Tenet
Healthsystem Mem'l Med. Ctr., Inc., 485 F.3d 793,
796 (5th Cir. 2007). In cases involving § 1442, the
remand order is reviewed "without a thumb on the remand
side of the scale."
1446(b)(1) permits removal "30 days after the receipt by
the defendant, through service or otherwise, of a copy of the
initial pleading setting forth the claim for relief."
"[I]f the case stated by the initial pleading is not
removable, " a defendant can also remove "within 30
days after receipt . . . of a copy of an amended pleading,
motion, order or other paper from which it may first be
ascertained that the case is one which is or has become
removable." § 1446(b)(3). Avondale removed under
the latter provision, claiming that the transcript of
Morgan's deposition is "other paper" from which
it was able to ascertain that the case was removable under
the federal officer statute.
this court has not yet confronted the precise question
whether oral testimony at a deposition is "other
paper" within the meaning of § 1446(b)(3), we have
held that "a transcript of the deposition testimony is
'other paper.'" S.W.S. Erectors, Inc. v.
Infax, Inc., 72 F.3d 489, 494 (5th Cir. 1996). Thus, in
this case, we review only whether oral deposition testimony
can constitute other paper, and ...