On January 29, 2014, in Bell v. Thornburg, the US Court of Appeals for the Fifth Circuit held that removal under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), of a lawsuit against a Chapter 13 bankruptcy trustee was proper because the trustee is a person acting under an officer of the United States (No. 13-30155, (5th Cir. Jan. 29, 2014)).

Tammy Belmon Bell, an African-American woman, was employed in the office of the Chapter 13 standing trustee for the Western District of Louisiana for fourteen years. In 2008, Jon C. Thornburg began serving as the standing trustee for Chapter 13 bankruptcies in that district. Bell claims that she and Thornburg disagreed frequently and the quality of her work life deteriorated after his arrival. In 2010, Bell was required to submit to a peer review. The peer review panel suggested to Thornburg that Bell be fired but Thornburg disagreed and moved her to a different position. Problems between Bell and Thornburg persisted. On April 4, 2011, Thornburg terminated Bell's employment. Thornburg replaced Bell with a white woman who Bell contended was less qualified.

Bell sued Thornburg in state court under Louisiana state law, alleging that she was terminated because of her race. Thornburg removed the case to the Western District of Louisiana under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), on the theory that as a standing trustee he is a person acting under an officer of the United States. Bell moved to remand. Although the magistrate judge determined that Thornburg could not invoke 28 U.S.C. § 1442(a)(1) to remove the case, the district court disagreed. The district court clarified that, even if § 1442(a)(1) did not cover Thornburg, he could remove under § 1442(a)(3), which provides the same removal privileges to officers of the courts of the United States.

The Fifth Circuit affirmed, but reached its conclusion in a different way. Under the Bankruptcy Reform Act of 1978, the authority to perform many administrative duties was removed from the courts and concentrated under the U.S. Trustee, a position in the U.S. Department of Justice. Chapter 13 standing trustees like Thornburg are appointed under federal law by the U.S. Trustee for the purpose of assisting the U.S. Trustee with especially heavy Chapter 13 bankruptcy caseloads (28 U.S.C. § 586(b)). Since the U.S. Trustee is an officer of the Department of Justice, Thornburg could invoke § 1442(a)(1) for removal because he is acting under an officer of the United States. Contrary to the district court's determination, Thornburg could not invoke § 1442(a)(3) because the U.S. Trustee is an officer of the Department of Justice, not of the court.

Practitioners should be aware that 28 U.S.C. § 1442(a)(1) extends to trustees and other persons appointed by the U.S. Trustee to help the U.S. Trustee carry out her duties.