Cabalce v. Blanchard, No. 13-15256 (9th Cir. 2015)
Annotate this CaseVSE agreed to store and destroy fireworks that had been seized by the federal government pursuant to a contract with the Department of the Treasury. On appeal, VSE challenges the district court’s order remanding to state court several actions that sought to impose liability on VSE for a deadly explosion involving the seized fireworks. The court concluded that the district court properly remanded plaintiffs’ actions to state court under 28 U.S.C. 1442(a)(1) because VSE did not demonstrate that the requisite causal nexus between plaintiffs’ claims and direction or control of the project by a federal agency or official; VSE presented no evidence reflecting that the destruction plan for the fireworks was devised under the direction, supervision, or control of a federal officer as required for federal officer removal; federal officer removal was not warranted because VSE failed to demonstrate that it had a colorable federal defense to plaintiffs’ claims; VSE, a non-military contractor, was not able to assert a plausible government contractor defense; VSE did not establish that the federal government reviewed in detail the destruction plan that had been independently devised by VSE and Donaldson; and VSE was unable to satisfy the requirements for derivative sovereign immunity. Accordingly, the court affirmed the judgment.
Court Description: Removal. The panel affirmed the district court’s order remanding to state court several actions that sought to impose liability on VSE Corporation for a deadly explosion involving fireworks that were seized by the federal government and which VSE agreed to store and destroy. The plaintiffs, who were the families or representatives of people killed by the explosion of fireworks, filed complaints in Hawaii state court. VSE removed the four state court actions to federal district court pursuant to 28 U.S.C. § 1442(a)(1). VSE maintained that removal was proper because it acted “under the color of the United States” pursuant to its contract with the federal government, and because it had colorable federal defenses premised on derivative sovereign immunity and the government contractor defense. The panel held that VSE did not demonstrate by a preponderance of the evidence the requisite casual nexus between the plaintiffs’ claim and direction or control of the project by a federal agency or official. The panel also held that federal officer removal was not warranted because VSE failed to demonstrate that it had a colorable federal defense to the plaintiffs’ claims. The panel held that VSE, as a non-military contractor, was not able to CABALCE V. VSE CORP. 7 assert a plausible government contractor defense. The panel further held that VSE did not establish that the federal government reviewed in detail the destruction plan that had been independently devised by VSE and others. Finally, the panel held that VSE was unable to satisfy the requirements for derivative sovereign immunity because VSE did not plausibly demonstrate that it completely lacked discretion in independently devising the destruction plan.
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