by Tod J. Everage

Recently the U.S. Fifth Circuit rendered an opinion in Barker v. Hercules Offshore, Inc., et al., 713 F.3d 208 (5th Cir. 2013), that touched on several areas of substantive and procedural aspects of marine litigation that all maritime lawyers should be aware of.  For example, the Court provided interesting commentary on the maritime nexus prong for cases involving injuries on MODUs and the availability of bystander claims under Maritime law.  However, this article focuses on the Fifth Circuit’s holding that “[m]aritime law, when it applies under OCSLA, displaces federal law only as to the substantive law of decision and has no effect on the removal of an OCSLA action,” and thus, OCSLA’s own federal question jurisdiction is sufficient to remove such cases without another independent basis for subject matter jurisdiction, regardless of the citizenship of the parties.  After twice declining to address this issue, leaving district courts to render conflicting decisions, see Hufnagel v. Omega Servs. Indus., Inc., 182 F.3d 340 (5th Cir. 1999); Tenn. Gas Pipeline v. Houston Cas. Ins. Co., 87 F.3d 150 (5th Cir. 1996), the Fifth Circuit finally decided to speak.

Traditionally, lawsuits filed in state court, to which maritime law provides the substantive rule of decision, were not removable due to the “saving-to-suitors” clause governing admiralty claims without another jurisdictional grant, such as diversity.  The issue on appeal was “whether maritime law, when it provides the substantive rule of decision under OCSLA, abrogates OCSLA’s grant of federal question jurisdiction and prohibits removal of an action filed in state court absent complete diversity.”  Barker, 713 F.3d at 219.  With an absence of guidance on the issue, district courts had “fallen on both sides of this issue.”  In reaching its conclusion, the Court chose to follow the line of cases that recognized that the determination of the substantive law of decision is a separate and distinct inquiry from subject matter jurisdiction and removal.  See, e.g., Broussard v. John E. Graham & Sons, 798 F.Supp. 370, 373 (M.D. La. 1992); Fallon v. Oxy USA, Inc., No. 2049, 2000 WL 1285397, at *3 (E.D. La. Sept. 12, 2000).

In Barker, the defendant had removed the case to the Southern District of Texas based solely on the jurisdictional grant contained in OCSLA.  Barker filed a motion to remand, which was denied, and the defendant later prevailed on a substantive motion for summary judgment.  Barker appealed, arguing that his suit was not removable because maritime law provided the rule of decision, and therefore his suit can only be removed if no defendant is a resident of the state where the suit is brought – the “home-state defendant” prohibition.

With respect to removal, the Court stated that the “saving-to-suitors” clause does not guarantee a non-federal forum, especially when there is an additional basis for original jurisdiction in federal court, such as diversity. Barker, 713 F.3d at 220 (citing Tenn. Gas, 87 F.3d at 153).  Also, it is accepted that federal courts retain their original federal question jurisdiction under OCSLA even when maritime law provides the substantive rule of decision.  Id. (citing Recar v. CNG Prod. Co., 853 F.2d 367, 369 (5th Cir. 1988)).  Therefore, the Court acknowledged that substantive maritime law and OCSLA’s grant of original federal question jurisdiction can exist side-by-side.  And, because OCSLA provides “a basis for federal jurisdiction other than admiralty,” the Court held that the application of maritime law does not displace OCSLA’s grant of federal question jurisdiction.  Id. (citing Morris v. T.E. Marine Corp., 344 F.3d 439, 444 (5th Cir. 2003).  Rather, even though maritime cases are exempted by statute from original question jurisdiction under §1441(a), see Romero v. Int’l Terminal Operating Co., 358 U.S. 354, 377-79 (1959), “OCSLA statutorily restores federal question jurisdiction over these claims even when they apply maritime law as the substantive law of decision.” 

Addressing the “home-state defendant” issue, the Court held that because federal question jurisdiction is present under OCSLA, and because the Court also held that maritime law does not supplant that grant of federal question jurisdiction, removal was proper “without regard to the citizenship or residence of the parties” under § 1441(b).  The Fifth Circuit acknowledged that the amended and “clarified” version of § 1441(b), applying the “home-state defendant” rule only to cases being removed on the basis of diversity jurisdiction, further supports its holding. 

Lastly, the Court noted that cases invoking admiralty jurisdiction under 28 U.S.C.  1333 may require complete diversity prior to removal; an issue the Court did not directly address.

In sum, maritime state law cases that fall under OCSLA can be removed by a defendant solely under OCSLA’s federal question jurisdiction, without regard to the citizenship of the parties.  This result, at least in the eyes of the Fifth Circuit, is consistent with Congress’ believed intent to vest the federal courts with the “power” and “broad jurisdiction” to hear any case involving the Outer Continental Shelf.   The Court went on to explain that, “OCSLA provides that defendants anywhere are entitled to a federal forum for their claims, not because of a risk that they might be “home-towned” but out of a concern for a uniform application of the law governing the OCS.”  Barker, 713 F.3d at 223.