NICHOLAS DEFIORE, ET AL V. SOC LLC, ET AL, No. 21-15261 (9th Cir. 2023)
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Three private contractors providing war-zone security services to the Department of Defense (DOD) appealed a district court order remanding to Nevada state court this suit brought by a group of their employees who guarded DOD bases, equipment, and personnel in Iraq. The guards alleged that their working conditions violated the contractors’ recruiting representations, their employment contracts, and the Theater Wide Internal Security Services II (TWISS II) contract between the contractors and the Department of Defense.
The Ninth Circuit reversed. The panel held that the contractors met the limited burden imposed by the federal officer removal statute, 28 U.S.C. Section 1442(a)(1), which permits removal of a civil action against “any officer (or any person acting under that officer) of the United States or of any agency thereof . . . for or relating to any act under color of such office.” To satisfy this requirement, a removing private entity must show that (a) it is a “person” within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer’s directions, and the plaintiff’s claims; and (c) it can assert a colorable federal defense. There was no dispute that the contractors, as corporations, were “persons” for purposes of Section 1442(a)(1). The panel held that the contractors sufficiently pleaded that there was a causal nexus between their actions and the guards’ claims.
Court Description: Federal Officer Removal Statute The panel reversed the district court’s order remanding to state court an action against private contractors providing war-zone security services to the Department of Defense, brought by a group of their employees who guarded bases, equipment, and personnel in Iraq.
The guards alleged that their working conditions violated the contractors’ recruiting representations, their employment contracts, and the Theater Wide Internal Security Services II (TWISS II) contract between the contractors and the Department of Defense.
The panel held that the contractors met the limited burden imposed by the federal officer removal statute, 28 U.S.C. § 1442(a)(1), which permits removal of a civil action against “any officer (or any person acting under that officer) of the United States or of any agency thereof . . . for or relating to any act under color of such office.” To satisfy this requirement, a removing private entity must show that (a) it is a “person” within the meaning of the statute; (b) there is a causal nexus between its actions, taken pursuant to a federal officer’s directions, and the plaintiff’s claims; and (c) it can assert a colorable federal defense.
There was no dispute that the contractors, as corporations, were “persons” for purposes of § 1442(a)(1). The panel held that the contractors sufficiently pleaded that there was a causal nexus between their actions and the guards’ claims. First, the contractors “acted under” a federal officer because, under common-law agency principles, they were independent contractors serving as the government’s agents, rather than acting as non-agent service providers. The panel concluded that the TWISS II contract’s subordination of the contractors to U.S. military command in the performance of their duties in Iraq sufficed to render them Department of Defense agents. Second, there was a causal connection between the actions of the contractors as agents of the government and the guards’ claims because the actions the contractors took which gave rise to the guards’ claims resulted from their work for the Department of Defense.
The panel further held that the contractors sufficiently alleged a colorable federal defense of compliance with the federal regulations incorporated into the TWISS II contract. Agreeing with the Fifth Circuit, the panel held that the question was not whether the contractors’ asserted federal defense was meritorious, but whether that defense was immaterial and made solely for the purpose of obtaining jurisdiction or was wholly insubstantial and frivolous. The panel remanded the case to the district court for further proceedings.
Dissenting, Judge Collins wrote that the contractors’ removal notice failed to adequately plead a colorable federal defense because the removal notice did not allege sufficient facts to support the defense of compliance with the TWISS II contract’s incorporation of federal regulations, and this defense applied only to a subset of the guards’ claims. Further, the contractors did not satisfy the causal nexus requirements because it is not sufficient only to show that a defendant contractor is an “agent” of the Government and that, absent that contractual relationship, the plaintiff’s claim would never have arisen.
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