In Stephenson v. Nassif et al., Case 1:15-cv-1409, 2015 WL 945614 (EDVa Dec. 21, 2015), Judge T.S. Ellis ruled in favor of the Defendant (a government contractor) on whether the contractor properly removed state law claims to federal court based on the Federal Officer jurisdiction in 28 USC § 1442(a)(1). The challenge for the EDVa Court was to keep this case in the federal court while not opening the door to the more common effort to remove contractor/subcontractor disputes under government contracts based on the argument that that compliance with FAR provisions and flow-down clauses meets the removal test. As explained below, the EDVa Court navigated this challenge by extracting and applying the “the principles of Watson.” Issue Focuses on NISPOM Mandatory Reporting Regulations Plaintiff, a former employee of Contractor, filed in the Alexandria Circuit Court defamation and other state law tort claims against the Contractor. The Contractor removed the case to federal court asserting federal jurisdiction under 28 USC § 1442(a)(1). Plaintiff then moved for remand back to the state court. The Contractor contended that in making a required report to the Defense Security Service (“DSS”), it was “acting under” a federal officer when it complied with the NISPOM regulations (the federal regulations regarding security clearances). The argument continued that the remaining state court claims were covered by the ancillary jurisdiction provision of this jurisdiction statute. The EDVa Court, citing Mesa v. California, 489 U.S. 232 (1987) recognized first that § 1442(a)(1) creates an exception to the “well-pleaded complaint” rule. Under this rule, federal defenses to state law claims typically do not create a federal question for purposes of federal court jurisdiction. The EDVa Court then turned to the specifics of 1442(a)(1) and the facts of the case. 28 USC § 1442(a)(1)’s Broad “Acting Under” Language 28 USC § 1442(a)(1) provides that “[a] civil action . . . that is commenced in a state court” may be removed to federal court if the action is against “any officer (or any person acting under that officer) of the United States . . . for or relating to any act under color of such office.” Mesa establishes a 4-part test for removal under § 1442(a)(1):
- that the defendant is a “person” as used in the statute,
- that the defendant acted pursuant to a federal officer’s directions,
- a causal nexus between the defendant’s actions under color of a federal office and the plaintiff’s claims, and
- the existence of a colorable federal defense.
Disclosure: Redmon, Peyton & Braswell, LLP, served as counsel of record for the Defendant in this case.