One way to remove a case to federal court that we haven’t discussed much is where the defendant is either a “federal officer” (not terribly relevant to our line of work), or else is a “person acting under that officer . . . for or relating to any act under color of such office.”  28 U.S.C. §1442(a)(1).  We haven’t paid it much heed since the disastrous Watson v. Philip Morris Cos., 551 U.S. 142 (2007), decision seemingly closed the door on cases involving regulatory compliance.  Our post on Watson is here.

A recent decision by the en banc Fifth Circuit suggests that our side should take another look at federal officer removal in certain FDA regulatory compliance situations.  See Latiolais v. Huntington Ingalls, Inc., ___ F.3d ___, 2020 WL 878930 (5th Cir. Feb. 24, 2020) (en banc).  In a rarity for en banc decisions, Latiolais was unanimous, save only a couple of concurrences in the result with no opinion.

The chief reason federal officer removal warrants reconsideration is that – since the 2007 Watson decision – in 2011 Congress amended §1442(a)(1) specifically to “broaden” defendants’ ability to remove on this basis.  Latiolais, 2020 WL 878930, at *3.  Here’s the meat of the decision:

The amending legislation . . . states, “Section 1442(a) of title 28, United States Code, is amended . . . by striking “capacity for” and inserting “capacity, for or relating to.”  Following this amendment, section 1442(a) makes removable to federal court “[a] civil action . . . that is against or directed to . . . any person acting under [a federal] officer … for or relating to any act under color of such office.”

This change plainly expresses that a civil action relating to an act under color of federal office may be removed (if the other statutory requirements are met). . . . [T]he ordinary meaning of the words “relating to” is a broad one. . . .  Congress added this “broad” term to “for”. . . .  By the Removal Clarification Act, Congress broadened federal officer removal to actions, not just causally connected, but alternatively connected or associated, with acts under color of federal office.

Id. at *3 (citations and quotation marks omitted) (emphasis added).  Since Congress changed the statute to broaden removal, the restrictive, pre-amendment reading in Watson isn’t the last word anymore.

So, what “other statutory requirements” are there?  Chiefly these:

[W]e overrule [prior precedent] to the extent that those cases erroneously relied on a “causal nexus” test after Congress amended section 1442(a) to add “relating to.”  Henceforth, to remove under section 1442(a), a defendant must show (1) it has asserted a colorable federal defense, (2) it is a “person” within the meaning of the statute, (3) that has acted pursuant to a federal officer’s directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer’s directions.

Latiolais, 2020 WL 878930, at *7 (footnote omitted).

Well, in cases where a medical device manufacturer is acting pursuant to specific FDA requirements imposed on its product, or a prescription drug manufacturer is complying with an FDA directive to use X rather than Y warning due to the FDA’s assessment of current science, preemption would seem to be a “colorable federal defense.”  As Latiolais also held:

To be “colorable,” the asserted federal defense need not be clearly sustainable, as section 1442 does not require a federal official or person acting under him to win his case before he can have it removed.  Instead, an asserted federal defense is colorable unless it is immaterial and made solely for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous.

Id. (citations and quotation marks omitted).

That’s a far cry – and much more friendly to removal − from the general federal question jurisdiction test under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), and its progeny, where no federal officer is involved.  As we’ve discussed, a federal defense like preemption is not usually enough to support federal question jurisdiction under 28 U.S.C. §1331.

Further, the same facts that support preemption in these situations also support arguments that a prescription medical product manufacturer defendant “acted under” the FDA’s direction as required by the more relaxed, post-2011 test for federal officer jurisdiction.  As Latiolais held, any “action” “not just causally connected, but alternatively connected or associated, with” obeying the dictates of a federal officer such as the FDA is sufficient to support federal jurisdiction under §1442(a)(1).  Thus, “any civil action that is connected or associated with an act under color of federal office may be removed.”  2020 WL 878930, at *7.  Another advantage of federal officer removal is that it doesn’t require the consent of anyone else.

In light of Latiolais, we recommend that defense counsel in prescription medical product liability litigation – when they have a preemption argument that is at least “colorable” − take another look at federal officer jurisdiction under §1442(a)(1) as a possible basis for removal to federal court.