Broad Interpretation of the Federal Officer Removal Statute Keeps Case Against Boeing in Federal Court U.S. Court of Appeals for the Third Circuit, November 22, 2016

The plaintiff filed a failure-to-warn product liability suit against, among others, The Boeing Company, after his wife Mary became ill from alleged secondary asbestos exposure. Boeing removed to federal court based upon the federal officer removal statute. The district court remanded, and the appellate court reversed.

The plaintiff alleged Mary suffered take home asbestos exposure through laundering the clothes of her first husband Robert Keck. While working for New Brunswick Plating Co. in the late 1970s, Keck sandblasted the landing gear of World War II planes. Mary testified these planes were C-47 planes, which were made by the Douglas Aircraft Company, a predecessor to Boeing.

Boeing argued that the C-47 was produced for, and under the supervision of, the U.S. military, thus entitling it to the federal defense of government contractor immunity. Boeing also argued this oversight extended to labels and warnings for all parts of the aircraft, and provided affidavits in support. In ruling on the plaintiff’s motion to remand, the district court held that Boeing had a special burden to demonstrate that it was acting under the control of the government, because it was a contractor and not a federal officer. As such Boeing must show that a federal officer directly prohibited Boeing from warning third parties of the risks associated with asbestos, which Boeing failed to do.

On appeal, the appellate court noted that the federal officer removal statute has existed for 200 years; further, the statute itself was a break with tradition because it allowed the defendants to remove to federal court based upon something other than diversity or federal question jurisdiction. Unlike the general removal statute, the federal officer removal statute was to be broadly construed. Four requirements must be met to properly remove a case based upon this statue: (1) the defendant is a “person” within the meaning of the statute; (2) the plaintiff’s claims are based upon the defendant’s conduct “acting under” the United States, its agencies, or its officers; (3) the plaintiff’s claims against defendant are “for, or relating to” an act under color of federal office; and (4) the defendant raises a colorable federal defense to the plaintiff’s claims. The court analyzed each requirement in turn to find that all four were satisfied.

Regarding the “acting under” requirement, this was to be liberally construed. “Thus, the proposition that contractors bear some additional ‘special burden’ is inconsistent with both precedent and the underlying objectives of the removal statute.” Further, the court has explicitly rejected the notion that defendants only act under a federal officer if the complained-of conduct was done at the specific request of the federal officer. Taking the undisputed facts from the notice of removal as true, Boeing stated sufficient facts to establish a colorable defense.

Read the full decision here.


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