On Reversal, Aircraft Manufacturer Successfully Obtains Removal on Federal Officer Grounds United States Court of Appeals, Seventh Circuit, December 14, 2018

ILLINOIS – The plaintiffs Bruce and Barbara Betzner (plaintiffs) commenced a lawsuit in Illinois State Court (Madison County) against, among other defendants, Boeing Company (Boeing), alleging that, during the course of the plaintiff Bruce Betzner’s (Mr. Betzner) employment, he was exposed to asbestos-containing products, resulting in his mesothelioma diagnosis. With particular regard to Boeing, the plaintiffs allege that Mr. Betzner’s assembly of heavy bomber aircraft for the United State Air Force, which involved the installation of Boeing components, exposed him to asbestos.

Boeing filed a notice of removal to U.S. District Court on federal officer grounds, asserting that when it entered into contracts with the U.S. government for the design, manufacture, testing, and supply of military aircraft, the U.S. government controlled the design and development of the aircraft, requiring adherence to detailed specifications. The District Court remanded the case, sua sponte, indicating it did not have subject-matter jurisdiction since Boeing failed to submit substantive evidence supporting its government contractor defense. Boeing appealed to the Seventh Circuit.

The Seventh Circuit, noting that presumption against removal does not extend to the federal officer removal statute (Section1442(a)), concluded that, contrary to the District Court’s finding, Section 1442(a) does not require substantial evidence in support of removal, but, rather, merely a “short and plain statement,” per Section 1446(a) (which governs removal), showing that a colorable federal officer defense under Section 1442(a) is simply plausible. Thus, to show proper removal, Boeing needed only a short and plain statement showing that it (i) is a “person” within the statute’s meaning; (ii) was acting under the U.S. or its agencies or officers; (iii) was acting under federal authority; and (iv) has a colorable federal defense. Reviewing Boeing’s notice of removal under this more liberal standard, the Seventh Circuit found that Boeing had fulfilled all four requirements, thereby sufficiently stating a causal connection between the plaintiffs’ causation claims and Boeing’s actions controlled by and directed by the U.S. Air Force. Notably, the Seventh Circuit explained that Boeing’s notice of removal provided sufficient facts concerning the colorability of its federal defense, which applies when (i) the federal government approved reasonably precise specifications; (ii) the relevant equipment conformed to those specifications; and (iii) the contractor warned the federal government about the hazards unknown to the federal government.

On the basis that Boeing’s allegations supporting its Section 1442(a) notice of removal were “plausible on their face,” the Seventh Circuit reversed the district court, and held that the case belongs in federal court.

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