     Case: 14-30182    Document: 00512708380   Page: 1   Date Filed: 07/23/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                No. 14-30182                            FILED
                                                                    July 23, 2014
                                                                   Lyle W. Cayce
JOHN CALVIN HUMPHRIES                                                   Clerk

                                          Plaintiff - Appellee
v.

ELLIOTT COMPANY, a Delaware Corporation, formerly known as Elliott
Company, I, formerly known as Elliott Turbomachinery Company,
Incorporated, formerly known as Elliott Holdings, Incorporated, formerly
known as Elliott Company,

                                          Defendant - Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before JOLLY, SOUTHWICK, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
      Elliott Co. (“Elliott”) appeals the district court’s order remanding this
action to Louisiana state court, and its order denying Elliott’s motion for
reconsideration. For the following reasons, we VACATE the district court’s
remand order and REMAND this case to the district court for proceedings
consistent herewith.
      Briefly stated, this case involves a lawsuit by Humphries against various
defendants arising out of Humphries’s alleged work-related exposure to
asbestos and subsequent illness. Relevant here, one of the original defendants
Humphries sued was E. I. du Pont de Nemours and Company (“DuPont”),
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                                       No. 14-30182
which allegedly constructed and operated the federal facility at which
Humphries was exposed to asbestos. On August 12, 2013, Humphries filed an
amended petition, in which he added for the first time claims against Elliott,
which contracted with DuPont to design and manufacture turbines for use at
the federal facility in question. The next day, before Elliott was served, DuPont
removed the case to federal court under 28 U.S.C. § 1442(a)(1), asserting what
is known as a “government contractor defense.” 1 After the case was removed,
Elliott was served, and shortly thereafter, it filed an answer in federal court in
which it also asserted a “government contractor defense.” It did not file a
separate notice of removal in the already-removed case, nor did it file a
“joinder” in DuPont’s (already completed) notice of removal.
       After Humphries settled with DuPont and others, the district court sua
sponte remanded the case to state court after first concluding that no federal
questions remained and then engaging in an analysis of whether it should
maintain supplemental jurisdiction over the remaining state law claims under
28 U.S.C. § 1367 (the “Remand Order”). 2 Elliott moved for reconsideration,
arguing that “federal questions remain to be resolved in this matter, so [the


       1  The “government contractor defense” provides that contractors who supply military
equipment to the federal government are immunized from liability under state tort law,
providing they can meet the test outlined in Boyle v. United Technologies Corporation, 487
U.S. 500, 512 (1988). Specifically, Boyle provides that, where a case concerns a “uniquely
federal interest,” and where a “significant conflict” exists between “an identifiable federal
policy or interest and the [operation] of state law,” then “[l]iability for design defects in
military equipment cannot be imposed, pursuant to state law, [if] (1) the United States
approved reasonably precise specifications; (2) the equipment conformed to those
specifications; and (3) the supplier warned the United States about the dangers in the use of
the equipment that were known to the supplier but not to the United States.” 487 U.S. at
507, 512 (quotation marks omitted).

       2The parties do not dispute the propriety of the remand if, in fact, no federal questions
remain. The parties also do not dispute the well-worn proposition that a federal court cannot
decline to exercise jurisdiction over federal questions properly before it. Guzzino v.
Felterman, 191 F.3d 588 (5th Cir. 1999).

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                                        No. 14-30182
district court] should retain jurisdiction.” Specifically, Elliott asserted that,
“[b]ecause it was a federal contractor, Elliott could have removed the case
under the Federal Officer Removal Statute, would have done so had DuPont
not acted first, and preserved the issue in its Answer.” The district court issued
an order (the “Reconsideration Order”) denying the motion for reconsideration,
in which it concluded that Elliott waived its right to pursue its government
contractor defense in a federal forum because it failed to join in DuPont’s notice
of removal or file its own.           Elliott appealed the Remand Order and the
Reconsideration Order. Our court granted Elliott’s motion to stay remand
pending appeal and ordered the appeal expedited.
       We have jurisdiction to review Elliott’s appeal of the Remand Order and
the Reconsideration Order pursuant to 28 U.S.C. §§ 1291 & 1447(d). 3 We first
consider the question of whether Elliott was required to file a notice of removal
or a “joinder” in DuPont’s notice of removal in these circumstances, where it
was not served until after the case was already removed to federal court. 4 We
conclude that nothing in the language of the statute or the pertinent case law
requires such a meaningless act, and, therefore, the district court erred in
concluding that Elliott’s “government contractor defense” was irrelevant to its
analysis of whether to remand to state court.
       Section 1442(a) provides that:
              A civil action or criminal prosecution that is
              commenced in a State court and that is against or
              directed to any of the following may be removed by
              them to the district court of the United States for the


       3  “An order remanding a case to the State court . . . is not reviewable . . . except that
an order remanding a case to the State court . . . removed pursuant to section 1442 . . . shall
be reviewable by appeal . . . .” 28 U.S.C. § 1447(d).

       4 We need not and therefore do not address the question of whether such a notice or
joinder would be required if Elliott had already appeared before the state court at the time
of DuPont’s removal.
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            district and division embracing the place wherein it is
            pending:

            (1) The United States or any agency thereof or any
            officer (or any person acting under that officer) of the
            United States or of any agency thereof, in an official or
            individual capacity, for or relating to any act under
            color of such office or on account of any right, title or
            authority claimed under any Act of Congress for the
            apprehension or punishment of criminals or the
            collection of the revenue.
      The purpose of § 1442(a)(1) is to “ensure a federal forum in any case
where a federal official is entitled to raise a defense arising out of his official
duties.” Arizona v. Manypenny, 451 U.S. 232, 241 (1981); see also Willingham
v. Morgan, 395 U.S. 402, 406 (1969). The Supreme Court has stated that
§ 1442(a)(1) is to be construed broadly and “should not be frustrated by a
narrow, grudging interpretation.” Willingham, 395 U.S. at 407; see also State
of La. v. Sparks, 978 F.2d 226, 232 (5th Cir. 1992) (“[T]he Supreme Court has
for over two decades required a liberal interpretation of § 1442(a) in view of its
chief purpose—to prevent federal officers who simply comply with a federal
duty from being punished by a state court for doing so.”).
      Removal under § 1442(a), unlike removal under § 1441, does not require
the consent of co-defendants. Compare 28 U.S.C. § 1442(a) with 28 U.S.C.
§ 1441; see also Doe v. Kerwood, 969 F.2d 165, 168 (5th Cir. 1992) (“[T]he ability
of federal officers to remove without the consent of co-defendants is based on
the language of [§ 1442]. . . . Because the Red Cross must rely on the general
removal statute, 28 U.S.C. § 1441, we hold that the Red Cross must obtain the
consent of co-defendants.”). Notably, even when removal is effected pursuant
to § 1441, only co-defendants who have been “properly joined and served” must
join in or consent to the removal. 28 U.S.C. § 1446(b)(2)(A) (emphasis added).
Because DuPont filed its notice of removal before Elliott had been served with

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notice of this action, Elliott asserts that requiring it to file an additional notice
of removal or join in DuPont’s notice of removal would be superfluous, futile,
and a “narrow, grudging interpretation” of § 1442(a)(1). Willingham, 395 U.S.
at 407; see also United States v. Tirado-Tirado, 563 F.3d 117, 123 (5th Cir.
2009) (“The law does not require the doing of a futile act.”) (quotation marks
omitted). We agree.
       Humphries seizes on a sentence in the case of Mesa v. California, 489
U.S. 121 (1989) that “it is the raising of a federal question in the officer’s
removal petition that constitutes the federal law under which the action
against the federal officer arises for Art. III purposes.” Id. at 136 (emphasis
added). In context, however, it is clear that Mesa does not announce a rule
requiring defendants in cases already removed to federal court to file a
meaningless “notice of removal” or unnecessary “joinder” in order to preserve
their right to a federal forum. Indeed, Mesa involved two defendants in two
different cases and had nothing to do with the question of what procedure
governs a subsequently-served defendant that wishes to avail itself of a federal
forum. We hold that where a party removes a case to federal court pursuant
to § 1442, a later-served defendant preserves its right to a federal forum under
§ 1442 by asserting the grounds for same in its answer filed after removal.
Here, Elliott asserted its government contractor defense in the very first
pleading it filed, such that it preserved its claim to a federal forum, and the
district court erred in holding to the contrary. 5 We thus do not reach the
question of whether the district court’s sua sponte remand was an untimely
remand for “defects” in removal.




       5 To the extent it can be read to disagree with our limited holding here, we reject the
reasoning of Morgan v. Great S. Dredging Inc., Civ. A. No. 11-2461, 2013 WL 1881051 (E.D.
La. May 3, 2013). However, we note that Morgan did not involve a later-served defendant.
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      Having addressed that question, we now determine whether any other
questions should be addressed by our court at this juncture. The parties debate
whether Elliott’s answer asserts a “colorable” government contractor defense
supporting federal jurisdiction.     Whatever the merits of this debate, it is
undisputed that the district court never addressed the substance of Elliott’s
defense because of its (now set aside) conclusion that the defense had to be
raised in a notice of removal or “joinder.” “It is the general rule, of course, that
a federal appellate court does not consider an issue not passed upon below.”
Singleton v. Wulff, 428 U.S. 106, 120 (1976); see also Hormel v. Helvering, 312
U.S. 552, 556 (1941). We see no reason to alter the normal course. Accordingly,
we VACATE the federal district court’s order of remand to the state court and
REMAND to the federal district court for further proceedings consistent
herewith.




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