Preemption Issues & the Scope of § 1292(b)

In In re Lion Air Flight JT 610 Crash, the Seventh Circuit reviewed a preemption issue as part of a certified appeal that concerned the right to a jury trial. The district court had thought that only the jury-trial issue warranted an immediate appeal under 28 U.S.C. § 1292(b). But the Seventh Circuit concluded that the preemption decision was part of the same order and thus also within the scope of the certified appeal. After all, the right to a jury trial turned on the extent to which federal law preempted the plaintiffs’ state law claims.

The Order (or Orders?) in Lion Air

Lion Air involved survivors’ claims against Boeing stemming from a fatal plane crash. Boeing responded to the complaints with motions seeking two rulings. First, Boeing asked the district court to rule that the Death on the High Seas Act preempted other potential grounds for recovery. Second, Boeing asked the district court to rule that claims governed by the Act did not come with a right to a jury trial.

The district court agreed with Boeing on both points. The district court accordingly dismissed all of the plaintiffs’ claims that did not arise under the Act. And the district court granted Boeing’s request for a bench trial.

At the plaintiffs’ urging, the district court also certified its jury-trial decision for an immediate appeal under § 1292(b). The district court declined, however, to certify its preemption decision. The plaintiffs then appealed.

The Scope of the § 1292(b) Appeal

The Seventh Circuit determined that it had jurisdiction to review both the jury-trial and preemption issues. Section 1292(b) authorizes district courts to certify an order for immediate appeal if certain requirements are met. And in its certification, the district court must identify the issue (or issues) that warrant immediate review.

But under Yamaha Motor Corp., U.S.A. v. Calhoun, the scope of a § 1292(b) appeal is not necessarily limited to the identified question. Appellate jurisdiction instead extends to “any issue fairly included within the certified order.”

The Seventh Circuit thought that the preemption issue “was decided in the same order” as the certified jury-trial issue. The court of appeals could accordingly review both issues.

The court further explained that it “should resolve” the preemption issue “because resolution of that issue will influence significantly [its] decision on the jury trial question.” If the Death on the High Seas Act does not preempt other theories of relief, then the plaintiffs could pursue those other theories. And the plaintiffs would likely have a right to a jury trial on those other theories. So if the plaintiffs could pursue other theories, the jury-trial issue would necessarily be resolved in favor of the plaintiffs.

Orders, or Documents?

The Seventh Circuit’s decision here comes a little close to conflating appealable “orders” and appealable “documents.”

The preemption and jury-trial issues appear to have been addressed at the same time and in the same document. But that does not make them part of the same “order.” As the Ninth Circuit recently explained, “[a]n ‘order’ refers to a ‘written direction or command,’ not to the document in which that ‘direction or command’ is ‘delivered by a court or judge’ to the parties.” So a single document can contain multiple orders, “particularly when a party requests multiple forms of relief at the same time.” Resolution of each request is a separate order—that is, a separate written direction or command. Those orders do not become a single order due to their inclusion in a single document.

The preemption and jury-trial decisions here are related. But they still seem like different orders—addressing different issues and awarding different relief (dismissal of some claims with the preemption order, a bench trial with the jury-trial order). That being said, there is a good argument here for including the preemption issue in the scope of appeal.

In re Lion Air Flight JT 610 Crash, 2024 WL 3665332 (7th Cir. Aug. 6, 2024), available at the Seventh Circuit and Westlaw