On July 23, 2014, the US Court of Appeals for the Fifth Circuit, in Humphries v. Elliott Company, held that where a party removes a case to federal court under 28 U.S.C. § 1442, a later-served co-defendant preserves its right to a federal forum under § 1442 by asserting it in its answer. The court held that requiring the later-served party to file an additional notice of removal or joinder is redundant and unnecessary (No. 14-30182 (5th Cir. July 23, 2014)).

The plaintiff, John Humphries, alleged that he suffered work-related injuries after being exposed to asbestos at a federal facility that E. I. du Pont de Nemours and Company (DuPont) constructed and operated. Humphries brought suit against DuPont in Louisiana state court. On August 12, 2013, Humphries filed an amended petition, adding first-time claims against Elliott Co. (Elliott), who designed and manufactured turbines at the facility. Before Humphries served Elliott, DuPont removed the case to federal court under § 1442(a)(1). Humphries then served Elliott and Elliott filed its answer in federal court.

Humphries later settled with DuPont and the district court remanded the case to state court, concluding that no federal questions remained. Elliott moved for reconsideration, claiming that it:

The district court denied the motion for reconsideration and Elliott appealed.

The Fifth Circuit vacated the lower court's decision, finding that because DuPont had removed the case before Humphries had served Elliott with notice of the action, it would have been redundant to require Elliott to file additional notice of removal or joinder. The court held that Elliott preserved its right to a federal forum under § 1442 by asserting it in its answer and further explained that no rule exists that requires defendants in cases already removed to federal court to file meaningless notices of removal or unnecessary joinders to preserve their right to a federal forum.