In a recent decision, the Seventh Circuit Court of Appeals held that a defendant’s removal of an asbestos case was valid, even though it did not provide evidence supporting its federal contractor defense. No. 18-2582 (7th Cir., Dec. 14, 2018). In Betzner v. the A.O. Smith Corporation, the Betzners filed suit in Madison County, Illinois alleging that Bruce Betzner was exposed to asbestos fibers manufactured by Boeing during the course of his employment. Boeing filed a notice of removal under 28 U.S.C. § 1442(a), or the federal officer removal statute. The Southern District of Illinois, sua sponte, remanded the lawsuit to state court for lack of subject-matter jurisdiction, finding that Boeing failed to provide evidentiary support for its government contractor defense, despite Boeing’s lengthy notice of removal.
In reversing the District Court’s remand, the Seventh Circuit held that the standard in assessing removal allegations under Section 1442(a) only requires a plain and concise statement. Under this standard, Boeing must have only set forth plausible allegations in its notice of removal to keep the case in federal court. Under Section 1442(a), federal officer removal is proper when the defendant: (1) is a person within the meaning of the statute; (2) is acting under the United States, its agencies, or its officers; (3) is acting under color of federal authority; and (4) has a colorable federal defense. Boeing plausibly alleged that it was both “acting under the U.S.” and “acting under color of federal authority” by setting forth sufficient facts showing it was under the sole direction of the U.S. Air Force when it manufactured the aircrafts that allegedly caused Betzner’s asbestos-related illness. Boeing also plausibly alleged that it had a colorable federal defense—that it manufactured products for the government in accordance with precise government specifications.
Because Boeing provided plausible allegations supporting its notice of removal, the case was properly removed to federal court. For government contractor defendants, this decision clarifies the pathway for removal to federal court.
