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Morgan v. Huntington Ingalls, Inc.

United States Court of Appeals, Fifth Circuit

January 11, 2018

CURTIS D. MORGAN, Plaintiff-Appellee,

         Appeals from the United States District Court for the Middle District of Louisiana

          Before SMITH, PRADO, and HIGGINSON, Circuit Judges.

          JERRY E. SMITH, Circuit Judge:

         Defendants 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. § 1446(b)(3).

         Defendants 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.


         Morgan, a "sheet metal tacker" for Avondale Shipyards[1] 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, [2] and Murphy Oil in state court under theories of negligence and strict liability. His pleading did not identify any vessels on which he worked.

         Morgan 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, [3] but

          Morgan 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 HUNTSVILLE[.]"

         On 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 the revenue.

§ 1442(a)(1).

         Morgan 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."

         Avondale 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.


         It 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.[4]

         But, "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."[5] A defendant must meet both constitutional and prudential standing requirements.[6]

         "[T]he 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. 2017).

         Murphy 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.[7]

         Further, 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.[8] 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.



         A 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 appellate jurisdiction.[9]

         We 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."[10]

         Section 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.


         Though 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 ...

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