In an April 25, 2014 opinion, Leite v. Crane Company, the US Court of Appeals for the Ninth Circuit held that a defendant seeking to remove an action must allege the underlying facts supporting each requirement for removal jurisdiction. In seeking to remand, a plaintiff will be subject to the same standards applied to motions to dismiss for lack of subject-matter jurisdiction under Federal Rule of Civil Procedure (FRCP) 12(b)(1). (No. 12-16864, (9th Cir. Apr. 25, 2014).)

The plaintiffs were former machinists at the Pearl Harbor Naval Shipyard in Hawaii, where they were allegedly injured by exposure to asbestos. They sued the defendant, supplier Crane Company, in state court on the theory that Crane failed to warn them about the hazards posed by asbestos used in and around equipment sold to the US Navy. Crane removed the action to federal court under the federal officer removal statute, 28 U.S.C. § 1442.

Among other things, the federal officer removal statute authorizes removal of a civil action brought against any person "acting under" an officer of the United States "for or relating to any act under color of such office" (28 U.S.C. § 1442(a)(1)). In its removal notice, Crane alleged facts satisfying the requirements to invoke the statute, specifically that:

Crane substantiated these allegations by attaching extensive testimonial and documentary evidence, including affidavits from four individuals with relevant knowledge.

The plaintiffs moved to remand the action. They contested Crane's jurisdictional allegations and questioned the admissibility of parts of the affidavits on which Crane relied. The district court denied the motion to remand and certified the motion for an interlocutory appeal to the Ninth Circuit.

The Ninth Circuit upheld the district court's decision. The court noted that the case raised several novel procedural questions, including:

The court analogized to cases in which a plaintiff files suit in federal court and the defendant moves to dismiss for lack of subject-matter jurisdiction under FRCP 12(b)(1). The court ruled that, "challenges to the existence of removal jurisdiction should be resolved within this same framework, given the parallel nature of the inquiry." Applying the same standards, the court held that a defendant seeking to remove an action may not offer mere legal conclusions; it must allege the underlying facts supporting each of the requirements for removal jurisdiction. A plaintiff who contests the existence of removal jurisdiction may file a motion to remand, which is the functional equivalent of a defendant's motion to dismiss for lack of subject-matter jurisdiction under FRCP 12(b)(1). As in the FRCP 12(b)(1) context, a plaintiff's motion to remand may raise either a facial or factual attack to the defendant's jurisdictional allegations. The standard applied to test the allegations will differ depending on the nature of the attack.

In this case, plaintiffs did not raise a facial attack on the jurisdictional allegations, as the allegations were sufficient on their face to support removal jurisdiction under 28 U.S.C. § 1442(a)(1). However, plaintiffs raised a factual attack by contesting the truth of Crane's allegations regarding the existence of a colorable federal defense and the requisite causal nexus. As a result, Crane had to support its allegations with competent proof to demonstrate by a preponderance of the evidence that each of the requirements for removal were met. The court ruled that the affidavits supplied did satisfy this burden and affirmed the lower court's decision to deny the motion to remand.

The court did recognize that defendants enjoy broader removal rights under the federal officer removal statute than they do under the general removal statute, but noted that its ruling should not unduly burden the rights 28 U.S.C. § 1442 affords removing defendants.

Practitioners in the Ninth Circuit should note that a defendant seeking to remove must allege the underlying facts supporting each of the requirements for removal jurisdiction. In seeking to remand, a plaintiff will be subject to the same standard applied to motions to dismiss under FRCP 12(b)(1). Practitioners in other circuits should check local case law to see how such cases are treated.