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Date: 12-17-2018

Case Style:

Bruce Betazner and Barbara Betzner v. The Boeing Compnay

Case Number: 18-2582

Judge: St. Eve

Court: United States Court of Appeals for the Seventh Circuit on appeal from the South District of Illinois (St. Clair County)

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Defendant's Attorney:

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After Bruce and Barbara Betzner
named Boeing as a defendant in their state court personal injury
lawsuit, Boeing filed a notice of removal under the federal
officer removal statute, 28 U.S.C. § 1442(a), alleging a government
contractor defense. Three days later, the district
court, sua sponte, remanded the lawsuit to state court for lack
of subject-matter jurisdiction, and shortly thereafter, denied
Boeing’s motion for reconsideration. On appeal, Boeing
2 No. 18-2582
argues that the district court erred by requiring evidentiary
submissions to support its notice of removal.1 Boeing further
argues that it alleged sufficient facts to support federal officer
removal under § 1442(a). We agree and reverse.
I. Background
The Betzners filed suit in the Third Judicial Circuit, Madison
County, Illinois alleging that during the course of Bruce
Betzner’s employment, he was exposed to asbestos fibers emanating
from certain products, which caused his mesothelioma.
They further contended that defendants, including Boeing,
manufactured these products.
Boeing filed a notice of removal under the federal officer
removal statute alleging that Bruce’s deposition and affidavit
show the negligence claims arise from Bruce’s work at Ling
Temco Vought in Dallas, Texas from 1967 to 2015. Relevant to
Boeing, Bruce was involved in the assembly of Boeing B-1 and
B-1B Lancer heavy bomber aircraft manufactured for the
United States Air Force from March 1982 to January 1987. Boeing
asserts that when it entered into contracts with the United
States government to design, manufacture, test, and supply
B-1 and B-1B military aircraft, the government controlled the
design and development of the aircraft and required adherence
to its detailed specifications.
1 In most removed cases, 28 U.S.C. § 1447(d) prohibits review of a remand
order “on appeal or otherwise.” Section 1447(d) provides an exception
for “an order remanding a case to the State court from which it was
removed pursuant to section 1442", therefore, we may consider this appeal.
Hammer v. United States Dep't of Health & Human Servs., 905 F.3d 517,
525 (7th Cir. 2018).
No. 18-2582 3
The Betzners did not file a motion to remand or challenge
the factual allegations in the notice of removal. Instead, the
district court, sua sponte, remanded the case concluding that it
lacked subject-matter jurisdiction due to Boeing’s failure to
provide evidentiary support for its government contractor
defense. The district court specifically stated “Boeing’s 71-
page Notice of Removal is devoid of any facts, supporting affidavits,
or exhibits supporting its claimed government contractor
defense” and “Boeing’s bald assertions are insufficient
to meet the criteria for federal officer jurisdiction.” Without
the benefit of a response brief, the district court also denied
Boeing’s Federal Rule of Civil Procedure 59(e) motion explaining
it was “not required to take Boeing’s allegations at
face value” and that Boeing “simply did not provide sufficient
information” for the court to conclude removal was proper.
II. Discussion
We review subject-matter jurisdiction and the propriety of
the removal of a state-court action de novo. Crosby v. Cooper BLine,
Inc., 725 F.3d 795, 800 (7th Cir. 2013). The party seeking
removal bears the burden of establishing federal jurisdiction.
Tri-State Water Treatment, Inc. v. Bauer, 845 F.3d 350, 352 (7th
Cir. 2017); Ruppel v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir.
2012). The presumption against removal in ordinary diversity
jurisdiction cases does not extend to the federal officer removal
statute. Hammer v. United States Dep’t of Health & Human
Servs., 905 F.3d 517, 526–27 (7th Cir. 2018). Indeed, the
Supreme Court has made clear that courts must liberally construe
§ 1442(a). Watson v. Phillip Morris Cos., 551 U.S. 142, 147
(2007); Willingham v. Morgan, 395 U.S. 402, 407 (1969).
We begin by correcting the district court’s misimpression
that Boeing was initially required to submit evidence to
4 No. 18-2582
support its notice of removal. The general statute governing
the removal of civil actions requires a defendant to file a notice
of removal “containing a short and plain statement of the
grounds of removal.” Dart Cherokee Basin Operating Co. v. Owens,
135 S.Ct. 547, 553 (2014) (quoting 28 U.S.C. § 1446(a)). “By
design, § 1446(a) tracks the general pleading requirement
stated in Rule 8(a) of the Federal Rules of Civil Procedure.” Id.
When addressing good-faith amount-in-controversy allegations
in a Class Action Fairness Act suit, the Dart Cherokee
Court held a “statement ‘short and plain’ need not contain evidentiary
submissions.” Id. at 551; see also Spivey v. Vertrue,
Inc., 528 F.3d 982, 986 (7th Cir. 2008) (“Once the proponent of
federal jurisdiction has explained plausibly how the stakes exceed
$5 million, then the case belongs in federal court unless
it is legally impossible for the plaintiff to recover that much.”)
(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)).
Dart Cherokee’s holding is not limited to amount-in-controversy
allegations as the district court suggested. After Dart
Cherokee, for example, we applied its holding beyond amountin-
controversy allegations when discussing admiralty jurisdiction
as a basis of removal. Lu Junhong v. Boeing Co., 792 F.3d
805, 814–15 (7th Cir. 2015). In doing so, we rejected the notion
that “federal jurisdiction depends on a high degree of certainty
that jurisdictional facts exist.” Id. at 815. Instead, we
held “[j]urisdictional allegations control unless it is legally impossible
for them to be true.” Id. Even before Dart Cherokee,
we emphasized that a colorable federal defense under
§ 1442(a) need only be plausible. Ruppel, 701 F.3d at 1181–82;
Venezia v. Robinson, 16 F.3d 209, 212 (7th Cir. 1994). Based on
the plain language of § 1446(a), as well as Dart Cherokee and
our precedent, the standard in assessing removal allegations
No. 18-2582 5
under § 1442(a) starts with Rule 8(a)’s short and plain statement
requirement.
We thus review Boeing’s allegations in its § 1442(a) notice
of removal under the federal pleading standards. See Ashcroft
v. Iqbal, 556 U.S. 662, 677-78 (2009). 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. Panther Brands,
LLC v. Indy Racing League, LLC, 827 F.3d 586, 589–90 (7th Cir.
2016); Ruppel, 701 F.3d at 1180–81.
Corporations are persons under § 1442(a), and so, Boeing
has easily satisfied the “person” requirement within the
meaning of the federal officer removal statute. See Panther
Brands, 827 F.3d at 590; Ruppel, 701 F.3d at 1181.
Next, Boeing has sufficiently alleged it was “acting under”
the United States, its agencies, or its officers. “Acting under”
includes situations “where the federal government uses a private
corporation to achieve an end it would have otherwise
used its own agents to complete.” Ruppel, 701 F.3d at 1181. On
the other hand, “merely being subject to federal regulations
or performing some functions that the government agency
controls is not enough to transform a private entity into a federal
officer.” Panther Brands, 827 F.3d at 590. Here, Boeing
plausibly alleged that it acted under federal officers when it
contracted to manufacture heavy bomber aircraft for the
United States Air Force, and that it acted under the military’s
detailed and ongoing control. In doing so, Boeing’s allegations
adequately state that it was assisting or carrying out the
duties of the United States Air Force.
6 No. 18-2582
Boeing has also plausibly alleged the “acting under the
color of federal authority” requirement, which “is distinct
from the ‘acting under’ requirement in the same way a bona
fide federal officer could not remove a trespass suit that occurred
while he was taking out the garbage—there must be a
‘causal connection between the charged conduct and asserted
official authority.’” Ruppel, 701 F.3d at 1181 (quoting Jefferson
Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999)). Boeing has sufficiently
stated a causal connection between the Betzners’ negligence
claims and its official actions controlled by the military,
namely, that it was under the sole direction of the United
States Air Force when it manufactured the B-1 and B-1B
Lancer aircraft that allegedly caused Bruce’s asbestos-related
illnesses.
Further, Boeing’s notice of removal sets forth sufficient
factual details regarding its government contractor defense.2
The colorable federal defense requirement fulfills Article III
jurisdiction and reflects Congress’s intent to have federal defenses
litigated in federal court. Id. at 1182. “Requiring the defense
only be colorable, instead of ‘clearly sustainable,’ advances
this goal” and “at this point, we are concerned with
who makes the ultimate determination, not what that determination
will be.” Id. (internal citations omitted); see also
Willingham, 395 U.S. at 407 (A defendant invoking § 1442(a)
“need not win his case before he can have it removed.”); Venezia,
16 F.3d at 212 (“A federal defendant need not show that
2 On appeal, the Betzners do not address whether Boeing plausibly
alleged its government contractor defense under Rule 8(a), but rather they
argue that the record was devoid of a factual basis to determine any such
defense. They further assert “Boeing relied on its bare assertions without
sufficient evidence in its Notice of Removal.”
No. 18-2582 7
he is entitled to prevail in order to have access to the federal
forum.”) (emphasis in original).
The government contractor defense shields contractors
from tort liability if they manufacture products for the government
in accordance with precise government specifications.
Hercules, Inc. v. United States, 516 U.S. 417, 421–22 (1996);
Boyle v. United Techs. Corp., 487 U.S. 500, 512 (1988). The defense
applies where (1) the federal government approved reasonably
precise specifications, (2) the manufactured equipment
conformed to the government’s specifications, and (3)
the contractor warned the federal government about the
equipment’s dangers that were unknown to the government.
Boyle, 487 U.S. at 512.
Boeing’s plausible allegations include that when designing,
manufacturing, supplying, testing, and repairing the B-1
and B-1B aircraft it acted as a government contractor under
the detailed and ongoing direction and control of the United
States military. Boeing also claimed that the military had exclusive
control over the design and development of the aircraft
and required adherence to precise specifications. Additionally,
Boeing alleged the aircraft it manufactured conformed
to the military’s specifications and the federal government
was independently aware of the potential health hazards
related to asbestos exposure.
Because Boeing’s allegations supporting its § 1442(a) notice
of removal are plausible on their face, this case belongs in
federal court. Accordingly, the district court erred in concluding
that Boeing was required to submit evidence to support
its removal allegations.

Outcome: We REVERSE the judgment of the district court and
REMAND for further proceedings consistent with this opinion.

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Defendant's Experts:

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