By Adam M. Dinnell and Matthew Hilley

When a business is served with a state court action, the first reaction is often to consider whether the action can be removed to federal court based on diversity. But for businesses doing work for the federal government (e.g. government contractors), there may be an additional route to federal court even in the absence of diversity: federal officer removal. The federal officer removal statute, 28 U.S.C. § 1442(a)(1), allows a defendant to remove a state action to federal court where the claims relate to actions taken under the direction of federal officers.

The federal officer removal statute has been successfully used in everything from actions sounding in tort to breach of contract disputes to wide-ranging environmental litigation. This often-overlooked tool opens a path for businesses to secure a federal forum when defending against disputes arising from work that was intertwined with a federal relationship, particularly where viable federal defenses may exist that preempt state law claims or establish immunity from liability for actions taken in compliance with government specifications.

This article covers what businesses should know about this potential alternative route to a federal forum, including the appropriate legal test (particularly in the United States Court of Appeals for the Fifth Circuit) and key considerations set forth in the relevant case law.

The Federal Officer Removal Statute

The federal officer removal statute, codified at 28 U.S.C. § 1442(a)(1), allows “any officer (or any person acting under the officer) of the United States or any agency thereof” to remove a civil or criminal action from state to federal court when the action is “for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1).

When the modern federal officer removal statute was enacted, the statute’s purpose was made clear: to give effect to the legislative principle that those acting at the federal government’s direction should be able to defend themselves in federal—not state—court, lest states be able to stymy the federal government’s operations. See Willingham v. Morgan, 395 U.S. 402, 405–06 (1969) (recounting the statute’s history); Watson v. Philip Morris Cos., 551 U.S. 142, 147–48 (2007) (same, and explaining how that purpose extends to protecting private parties who assist the federal government).

“[F]ederal officer removal under 28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or limited.” St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. & Indem. Co., 990 F.3d 447, 450 (5th Cir. 2021) (quoting Texas v. Kleinert, 855 f.3d 305, 311 (5th Cir. 2017)). But determining whether a business can remove a case to federal court under this statute still raises a number of critical questions.

(1) Who qualifies as a person acting under a federal officer?
(2) What actions qualify as “for or relating to any act under such color of office?”
(3) What evidence is needed to show that a business was acting under a federal officer?
(4) What activities qualify as being “under color of such office?”

Each question is addressed below as a component of the “federal officer removal test.”

The Federal Officer Removal Test

To remove a case to federal court under the federal officer removal statute, the defendant must show that it is a “person” within the meaning of the statute, it has acted under a federal officer’s or agency’s direction, the charged conduct is connected or associated with an act pursuant to the federal officer’s direction, and the defendant has asserted a colorable federal defense. See Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 291 (5th Cir. 2020).

(1) A “person” within the meaning of the statute. Because the statute does not define “person,” the definition found in 1 S.C. § 1 controls. This section defines “person” to “include corporations, companies, associations, firms, partnerships, societies, and joint stock companies as well as individuals.” Thus, “person” is rarely a disqualifying factor. Businesses as well as individuals may remove their cases to federal court under the federal officer removal statute.

(2) Acting under a federal officer or agency. The “acting under” inquiry examines the relationship between the removing party and the relevant federal officer. It requires that the court determine whether the federal officer or agency exerted a sufficient level of “subjection, guidance, or control” over the private actor. Watson, 551 U.S. at 151.

The Supreme Court has held that removal jurisdiction under § 1442(a)(1) is available “‘only’ if the private parties were ‘authorized to act with or for [federal officers or agents] in affirmatively executing duties under… federal law.’” Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 143 (quoting City of Greenwood, Miss. V. Peacock, 384 U.S. 808, 824 (1966)). Said differently, “the private person’s ‘acting under’ must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.” Id. at 153 (citing Davis v. South Carolina, 107 U.S. 597, 600 (1883)).

This kind of relationship between a private party and the government is usually created via contract, but evidence of “any payment, any employer/employee relationship, or any principal/agent arrangement” can evince “delegation of legal authority” to act “on the Government[‘s] behalf.” Id. at 156.

Absent “evidence of any contract, any payment, any employer/employee relationship, or any principal/ agent arrangement” indicating that a private actor was under a federal officer’s or agency’s directions, federal officer jurisdiction cannot exist. Plaquemines Par. v. Chevron USA, Inc., No. 22-30055, 2022 WL 9914869, at *2 (5th Cir. Oct. 17, 2022).

(3) Conduct connected with an act under a federal officer’s direction. Historically, the relationship between the defendant’s conduct and actions taken under federal authority required a “causal nexus”: a requirement the Fifth Circuit had defined narrowly. See Latioalis, 951 F.3d at 291-92 (describing the “causal nexus” test). However, in 2011 Congress amended the federal officer removal statute to broaden its reach by adding the words “or relating to” after “for” in 1442(a). 125 Stat. 545. In the wake of this amendment, the Fifth Circuit widened the scope of this prong by replacing the “causal nexus” requirement with the broader “connection” requirement instead.¹ Latioalis, 951 F.3d at 295-96.

The “connection” requirement necessitates that the defendant show “the charged conduct is connected or associated with an act pursuant to a federal officer’s directions.” Id. at 296. In Latioalis, the plaintiff sued a government contractor in state court alleging the contractor negligently failed to warn about the hazards of asbestos or provide adequate safety equipment during the renovation of a naval vessel. Id. at 289-90. The contractor removed the suit to federal court under § 1442(a)(1), arguing its government contract to build and refurbish naval vessels required it to use asbestos. Id. The district court remanded the case after finding the contractor could not satisfy the old “causal nexus” test because there was no evidence that a federal officer controlled the contractor’s safety practices. The Fifth Circuit en banc reversed, holding that under the newly adopted “connection” requirement, federal jurisdiction was proper because the plaintiff’s negligence claims were “connected with” the contractor’s “installation of asbestos pursuant to directions of the U.S. Navy.” Id. at 296.

Recent authority suggests the requirement may be cabined to “direct” connections between the complained of conduct and actions taken under federal authority. In Plaquemines Parish v. BP America Production Company, the Fifth Circuit rejected a group of oil producers’ attempt to remove under § 1442(a)(1) because their connection theory was too attenuated. 103 F.4th 324, 341-342 (5th Cir. 2024). In Plaquemines, the oil producers argued that their alleged negligence in extracting crude oil was connected to their increased need for crude oil. Id. at 341. That need was connected to their contractual obligation to furnish the government with aviation fuel which required the use of crude oil. Id. The court rejected the producers’ connection theory because the producers’ government contract lacked any provision pertaining to oil production or directing the producers to use oil only they produced, the producers lacked control over where the crude oil they ultimately used for the aviation fuel was refined, and the producers also used crude oil produced by others to help fulfill their contractual obligations. Id. These facts broke the causal chain between the producers oil production and the government’s aviation fuel mandate. Thus, unlike the “direct” connection in Latioalis,² the oil producers’ effort to satisfy the “connection” requirement “require[d] various intermediary (and ultimately severed) links to connect the federal directives and challenged conduct.” Id. at 341-342.

In sum, even though the Fifth Circuit has expanded the scope of the relationship necessary between the challenged conduct and a federal directive to remove under § 1442(a)(1), attenuated multi-step links are still not enough. Instead, businesses should be prepared to draw a direct connection between their challenged conduct and a federal directive in order to remove on the basis of federal officer jurisdiction.

(4) A colorable federal defense.³ Broadly, a colorable federal defense is defined as a defense based in federal law that arises out of the removing party’s acts under federal authority. See Mesa v. California, 89 U.S. 121 (1989).4 While not an exhaustive list, “[d]efenses such as sovereign immunity, official justification, and reliance on regulatory prohibitions have been deemed ‘colorable’ federal defenses.” CRGT, Inc. v. Northrop Grumman Sys. Corp., 1:12-CV-554, 2012 WL 3776369, at *2 (E.D. Va. Aug. 28, 2012) (citing Willingham v. Morgan, 395 U.S. 402, 409 (1969)).

A federal defense does not have to ultimately be successful for it to be “colorable” enough for purposes of removal under § 1442(a)(1)—it only has to be material and non-frivolous. See St. Charls Surgical Hosp., L.L.C. v. Louisiana Health Serv. & Indem. Co., 935 F.3d 352, 357 (5th Cir. 2019). The removing defendant need only supply a defense that can “serve as the federal question that endues the court with jurisdiction.” Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (quotation omitted).

Finally, at the time of removal, a colorable federal defense “does not need to be ‘clearly sustainable,’ as § 1442 does not require a . . . person acting under [a federal official] to ‘win his case before he can have it removed.’” Zeringue, 846 F.3d at 789–90 (quoting Jefferson Cnty., Ala. v. Acker, 527 U.S. 423, 431–32 (1999)). It follows that if a business has a plausible federal defense arising out of its actions taken pursuant to federal authority, it can likely satisfy this requirement to remove a case to federal court under § 1442(a)(1).

Conclusion

In actions where a business’s federal relationship is part of the factual narrative, businesses should consider the availability of federal officer removal and whether the statutory test can be met. While diversity is always seen as the likeliest route to a federal forum, federal officer removal remains a useful alternative under the right circumstances where there is no diversity.

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Endnotes

1 Other Circuits that still require a causal connection between action and act following the 2011 amendments do so, in part, because they interpret the “causal nexus” or “causal connection” requirement more expansively than the Fifth Circuit had historically. In those Circuits, the added “relating to” language in section 1442(a) did not change the outcomes of cases so there was no need to rearticulate the required relationship between the defendant’s conduct and acts under federal authority to give effect to the statute as See Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir. 2018); Ruppel v. CBS Corp., 701 F.3d 1176, 1179, 1181 (7th Cir. 2012); Jacks v. Meridian Res. Co., 701 F.3d 1224, 1230 & n. 3 (8th Cir. 2012); see also Bennett v. MIS Corp., 607 F.3d 1076, 1088 (6th Cir. 2010). Compare Cabalce v. Thomas E. Blanchard & Assocs., 797 F.3d 720, 727–30 (9th Cir. 2015), with Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237, 1244–45 (9th Cir. 2017).

2 The Court explicitly described the connection in Latioalis between the defendant’s lack of safety procedures for asbestos installation (the defendant’s relevant conduct) and the defendant’s installation of asbestos under the government contract requiring the use of asbestos (the acts under federal authority) as “direct[.]” Plaquimines Parish, 103 4th 324, 341 (5th Cir. 2024).

3 The colorable federal defense requirement does not come from the text of 1442. It is a product of Article III of the Constitution’s “arising under” jurisdiction. See Mesa v. California, 489 U.S. 121 (1989).