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The Government Contractor Defense: Colorable Under the Federal Officer Removal Statute

Updated: Mar 17, 2023

If certain conditions are met, the Federal Officer Removal Statute confers subject matter jurisdiction on federal courts and allows a defendant to remove an action against it based on state law claims from state court to federal court. One of those conditions requires the defendant to have raised a colorable federal defense to the plaintiff’s claims.

In a line of asbestos cases where Navy members made personal injury claims against federal contractors, the Fifth Circuit and follow-on courts have held that the government contractor immunity defense is a colorable federal defense sufficient to satisfy the requirements of the removal statute, provided it is not asserted simply for jurisdictional purposes.

What is the Government Contractor Defense?

Government contractors can face lawsuits based in tort when the products they provide cause injury or death. In the classic example, a military plane crashes and results in the death of its operator. Then, the estate of the decedent sues the contractor that manufactured the plane. The plaintiff institutes legal proceedings against the commercial entity instead of the government to avoid an immunity defense and bar to recovery.

The Boyle Test and How it Applies to the Government Contractor Defense

The U.S. Supreme Court has extended this immunity to contractors by establishing the government contractor affirmative defense. In Boyle v. United Technologies Corp., 487 U.S. 500 (1988), the Court held that if a contractor can show 1) the government approved reasonably precise specifications, 2) the equipment conformed to those specifications, and 3) the supplier warned the United States about dangers in the use of the equipment known to the supplier but not to the United States, then it will be immune from liability.

This defense applies equally to defective design and failure to warn cases. Feldman v. Kohler Co., 918 S.W.2d 615, 625 (Tex. App.--El Paso 1996), writ denied (Aug. 1, 1996).

The Federal Officer Removal Statute

Removal is a procedural mechanism that allows a defendant to move a case from state court to federal court. Two bases exist for removal: diversity of citizenship, meaning the parties reside in different states, or the issue at hand is considered a matter of federal law.

The Requirements of the Federal Officer Removal Statute

The Federal Officer Removal Statute at 28 U.S.C. § 1442(a)(1) provides for an additional basis for removal if the defendant is the United States, an agency, or any officer of such acting under color of their office (or someone acting under that officer). Courts have held that a moving party satisfies this statute if it demonstrates that 1) it is a person within the meaning of the statute, 2) it acted under the direction of a federal officer, 3) the claim relates to the acts performed pursuant to the federal officer’s direction, and 4) it asserts a colorable federal defense.

More specifically, corporate entities are considered persons under the statute. Government contractors have been considered to be acting pursuant to a federal officer’s direction. A defendant no longer needs to show a direct, causal nexus between the claims and the acts; removal is appropriate if the case simply correlates to the acts undertaken by the defendant. And as outlined further below, the government contractor defense is a colorable federal defense, if properly made.

The Colorable Defense Requirement

A defense need not be winnable for it to be colorable. Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020). Instead, “an asserted federal defense is colorable unless it is immaterial and made solely for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous.” Id. at 297. For a contractor asserting government contractor immunity to demonstrate this defense is colorable, it must show evidence meeting the Boyle test.

Importantly, though, the government contractor defense does not necessarily apply only to claims labeled a design defect or failure to warn. Instead, whether this defense will apply to a particular claim depends only upon whether the three Boyle conditions are met “with respect to the particular product feature upon which the claim is based.” Id. Meaning, a defendant’s government contractor defense can be limited to the specific defective component upon which the claim is based. In only having to satisfy the Boyle test for the particular product feature, a contractor will more easily be able to demonstrate that its defense is substantial, not frivolous, and thus colorable.

The Take Away

Any contractor subject to suit in state court for acts undertaken during work on a federal government contract without a traditional basis for removal should explore the Federal Officer Removal Statute. If it satisfies the requirements therein, it gains access to a federal court even if the plaintiff fails to raise a federal question.

And, a single claim is independently sufficient to satisfy the “relating to” requirement under § 1442(a)(1). Meaning, if all of the claims against the contractor are based in state law and diversity removal is not an option, but it can show a colorable federal defense (i.e. contractor immunity) in addition to meeting the remaining elements of the statute, then it can remove to a federal court. This is a powerful tool for admittance to a more favorable forum.

Given many contractors sued in tort for performance of work for the government will raise the government contractor defense, it is important to bear in mind that they merely must show the defense as colorable, not sustainable, for removal purposes. And when proving the defense is colorable, contractors will want to remember that they need only demonstrate that the Boyle elements are met as to the particular product feature that forms the basis of the claim when making and defending a removal motion.

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