The key litigated issue on appeal in Barker v. Hercules Offshore, Inc. was whether the Outer Continental Shelf Lands Act ("OCSLA") provided removal jurisdiction over a case filed in state court even though maritime law could substantively apply to the case.

Francis Barker was a welder on the defendant's oil rig structure and brought claims for severe emotional distress after witnessing his friend's death off the structure. Barker filed suit in Texas state court. Hercules Offshore, Inc. then removed the action to the US District Court for the Southern District of Texas under OCSLA, which provides for exclusive federal question jurisdiction over the subsoil and seabed of the Outer Continental Shelf ("OCS"). The district court found that removal was proper because OCSLA provides federal subject matter jurisdiction over this action under 43 U.S.C. § 1349(b)(1).

Barker maintained on appeal that removal was improper because maritime law applied and federal courts do not have removal jurisdiction over maritime cases filed in state court. The plaintiff argued that the action can therefore only be removed under the removal statute if no defendant was a resident of the state where the suit was brought.

In its February 1, 2013 decision, the US Court of Appeals for the Fifth Circuit held that:

The Fifth Circuit affirmed the district court's ruling that the cause of action arose under OCSLA, which explicitly gives the court federal question jurisdiction over the action. The Fifth Circuit also stated that federal courts retain their jurisdiction over cases involving a federal question even when maritime law provides the substantive rule of the decision. As such, the substantive application of maritime law does not displace OCSLA's grant of federal question jurisdiction. Therefore, the case was properly removed to federal court.

The Fifth Circuit also held that a choice of law and the evaluation of subject matter jurisdiction under OCSLA are two independent inquiries. Therefore, removal of a maritime case is permissible as long as there is an independent basis for federal jurisdiction, such as federal question jurisdiction.

Additionally, because this case involved a federal question, the Fifth Circuit held that complete diversity was unnecessary for the proper removal of this case to federal court.

Attorneys should be reminded that a choice of law analysis is an inquiry separate from federal jurisdiction. Because OCSLA grants federal jurisdiction, the action is removable without regard to the substantive law applied to the case. Diversity of citizenship is also not required when the action already possesses federal question jurisdiction.