Durham v. Lockheed Martin Corp. , 445 F.3d 1247 ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD DURHAM, 
Plaintiff-Appellee,
v.
LOCKHEED MARTIN CORPORATION,
Defendant-Appellant,
No. 04-15243
and
10,000 HOLDINGS, INC.; 4520  D.C. No.
CV-03-04326-TEH
Corp., Inc.; et al.,
OPINION
Defendants,
v.
KEARFOTT GUIDANCE AND
NAVIGATION CORPORATION,
Third-party-Defendant.

Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted
October 20, 2005—San Francisco, California
Filed April 26, 2006
Before: Alex Kozinski and Ferdinand F. Fernandez,
Circuit Judges, and Terry J. Hatter, Jr.,* District Judge.
Opinion by Judge Kozinski
*The Honorable Terry J. Hatter, Jr., Senior United States District Judge
for the Central District of California, sitting by designation.
4779
4782 DURHAM v. LOCKHEED MARTIN CORP.
COUNSEL
Robert W. Loewen, Sarah M. Schlosser, Andrea M. Neuman,
Gibson, Dunn & Crutcher, Irvine, California; Charles H.
Hakke, Gibson, Dunn & Crutcher, Washington, D.C.; Steven
E. Knott, Guy P. Glazier, Knott & Glazier LLP, Los Angeles,
California, for the defendant-appellant.
Gilbert L. Purcell, Alan R. Brayton, Lloyd F. Leroy, David L.
Fiol, Brayton Purcell, Novato, California, for the plaintiff-
appellee.
DURHAM v. LOCKHEED MARTIN CORP. 4783
OPINION
KOZINSKI, Circuit Judge:
A defendant has thirty days to remove a case on diversity
or federal question grounds. We consider whether the thirty-
day clock is reset if the defendant later discovers the case is
also removable on federal officer grounds.
Facts
Plaintiff Gerald Durham suffers from lung cancer, which he
alleges was caused by exposure to asbestos during his thirty-
year service as an electronics technician for the United States
Air Force and Air Force Reserves. Durham filed his com-
plaint against Lockheed Martin and sixty other defendants on
August 7, 2003, in California Superior Court. In his com-
plaint, Durham listed the Air Force facilities where he
worked, but didn’t allege which Lockheed products exposed
him to asbestos. Durham’s complaint incorporated by refer-
ence a Master Complaint filed by his law firm against 8,500
John Doe defendants, which was equally short on detail.
Plaintiff served Lockheed Martin on August 15, 2003.
Lockheed didn’t attempt to remove the case to federal court
on federal enclave grounds because, based on past experience,
it believed some of its co-defendants would be unwilling to
consent to removal. Ten days later, Lockheed received plain-
tiff’s answers to interrogatories. These interrogatories for the
first time disclosed the specifics of Durham’s claim—that he
was exposed to asbestos while working on the SR-71 Black-
bird and the C-141 Starlifter aircraft on military bases where
Lockheed was a contractor.
Durham’s responses disclosed to Lockheed a new basis for
removing the case: Lockheed assembled the aircraft while act-
ing as an agent of a federal officer, and was therefore immune
to suit as a federal contractor. See 28 U.S.C. § 1442(a)(1).
4784 DURHAM v. LOCKHEED MARTIN CORP.
According to Lockheed, the military dictated the precise spec-
ifications of the aircraft Durham worked on, right down to
directing Lockheed to install specific navigational compo-
nents manufactured by other contractors. Lockheed also
claims that the government directed it to use asbestos in the
assembly of these aircraft because it was the only material
capable of ensuring the aircraft performed to the military’s
exacting specifications—for example, that the Blackbird be
able to fly at Mach 3, and thus withstand temperatures in
excess of 550 degrees.
While Lockheed was evaluating Durham’s responses to its
interrogatories, the removal clock was ticking. When Lock-
heed received the responses, ten days had already passed
since it had been served with the complaint. Lockheed didn’t
file a notice of removal until September 24—more than thirty
days after it had been served with the complaint, but less than
thirty days after it had received Durham’s interrogatory
responses.
After Lockheed removed, Durham moved to remand to
state court, claiming that Lockheed’s removal was untimely.
See 28 U.S.C. §§ 1446(b), 1447(c). The remand motion pre-
sented two questions: First, when did Durham put Lockheed
on notice of the bases for removal? And, second, if Lockheed
discovered federal officer grounds after it discovered federal
enclave grounds, was it entitled to a new thirty-day period to
remove? The district court found that the complaint disclosed
a basis for federal enclave jurisdiction, and sided with Dur-
ham: “[T]here is no special extension of time to remove on
the basis of federal officer jurisdiction under § 1442 where, as
here, 30 days has passed from the time which another basis
for federal jurisdiction existed under § 1441.” The district
court thus remanded the case to state court and awarded Dur-
ham $9,113.99 in costs and attorney’s fees because Lock-
heed’s removal was untimely. See id. § 1447(c). Lockheed
appeals the award of costs and fees.
DURHAM v. LOCKHEED MARTIN CORP. 4785
Analysis
[1] 28 U.S.C. § 1447(d) generally bars review of a district
court order remanding a case to state court, and thus, what-
ever we decide here, we cannot recall the case to federal court.1
We consider only whether the district court properly awarded
costs and attorney’s fees to Durham. Notwithstanding section
1447(d), we have jurisdiction to review the award because the
district court’s grant of attorney’s fees and costs is a final
order subject to review under 28 U.S.C. § 1291. See Moore v.
Permanente Med. Group, Inc., 981 F.2d 443, 447 (9th Cir.
1992). The Supreme Court recently instructed that attorney’s
fees in removal cases are not to be awarded as a matter of
course: “[A]bsent unusual circumstances, attorney’s fees
should not be awarded when the removing party has an objec-
tively reasonable basis for removal.” Martin v. Franklin Capi-
tal Corp., 126 S. Ct. 704, 708 (2005). We review the award
of fees and costs for abuse of discretion, but will overturn it
if it is based on an erroneous determination of law. See
Moore, 981 F.2d at 447.
[2] 1. After a defendant learns that an action is removable,
he has thirty days to remove the case to federal court. See 28
U.S.C. § 1446(b). We held in Harris v. Bankers Life & Casu-
alty Co., 425 F.3d 689 (9th Cir. 2005), that “the ‘thirty day
time period [for removal] . . . starts to run from defendant’s
receipt of the initial pleading only when that pleading affirma-
tively reveals on its face’ the facts necessary for federal court
jurisdiction.” Id. at 690-91 (quoting Chapman v. Powermatic,
Inc., 969 F.2d 160, 163 (5th Cir. 1992)) (alterations in origi-
nal). Otherwise, the thirty-day clock doesn’t begin ticking
1
Because the district court’s reason for remanding the case—
untimeliness—comported with section 1447(c), the exception to section
1447(d) recognized in Thermtron Products, Inc. v. Hermansdorfer, 423
U.S. 336, 352 (1976), does not apply. See Executive Software N. Am., Inc.
v. U.S. Dist. Court for the Cent. Dist. of Cal., 24 F.3d 1545, 1549 (9th Cir.
1994).
4786 DURHAM v. LOCKHEED MARTIN CORP.
until a defendant receives “a copy of an amended pleading,
motion, order or other paper” from which it can determine
that the case is removable. 28 U.S.C. § 1446(b).
Lockheed does not contest the district court’s determination
that the complaint revealed one basis for federal jurisdiction.
Federal courts have federal question jurisdiction over tort
claims that arise on “federal enclaves.” See 28 U.S.C. § 1331;
Willis v. Craig, 555 F.2d 724, 726 n.4 (9th Cir. 1977) (per
curiam); Mater v. Holley, 200 F.2d 123, 125 (5th Cir. 1952).
The complaint revealed that some of Durham’s claims arose
on federal enclaves, so under Harris, Lockheed had thirty
days from when it received the complaint to remove to federal
court. But to do so successfully, it had to convince all of its
co-defendants to go along—no small task where, as here,
there are sixty-one defendants. See United Computer Sys., Inc.
v. AT & T Corp., 298 F.3d 756, 762 (9th Cir. 2002). Lock-
heed believed there was no way to forge consensus among the
defendants—it had learned in prior asbestos litigation with
these defendants that some of them preferred a state forum,
and thus would not consent to removal. So Lockheed never
attempted to remove on federal enclave grounds.
[3] 2. It turns out that there was another basis for federal
jurisdiction in this case. Federal officers, and their agents,
may remove cases based on acts performed under color of
their federal office if they assert a colorable federal defense:
A civil action or criminal prosecution commenced in
a State court against any of the following may be
removed by them to the district court of the United
States for the district and division embracing the
place wherein it is pending:
(1) The United States or any agency
thereof or any officer (or any person acting
under that officer) of the United States or of
any agency thereof, sued in an official or
DURHAM v. LOCKHEED MARTIN CORP. 4787
individual capacity for any act under color
of such office . . . .
28 U.S.C. § 1442(a); Mesa v. California, 489 U.S. 121, 129
(1989). A party seeking removal under section 1442 must
demonstrate 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 plaintiff’s
claims, and (c) it can assert a “colorable federal defense.” Jef-
ferson County v. Acker, 527 U.S. 423, 431 (1999); Mesa, 489
U.S. at 124-25, 131-35.
[4] To start the thirty-day clock under Harris, Durham had
to provide Lockheed with facts to support each of the three
requirements. Until Durham revealed which aircraft he had
worked on during his Air Force career, Lockheed couldn’t
assert either that its actions were taken pursuant to a federal
officer’s directions, or that it had a colorable federal defense.
Lockheed, like other federal military contractors, performs
some activities on military bases that are protected by federal
contractor immunity, and others that are not. See Boyle v.
United Techs. Corp., 487 U.S. 500, 512 (1988). There wasn’t
enough information in Durham’s complaint for Lockheed to
discern whether its allegedly wrongful conduct was protected
by federal contractor immunity. Had it removed upon filing
of the complaint, it may well have subjected itself to fees and
costs, and potentially Rule 11 sanctions, for filing a baseless
notice of removal. After Harris, we no longer require defen-
dants to take this blind leap—we don’t charge defendants
with notice of removability until they’ve received a paper that
gives them enough information to remove.
3. If Durham’s responses to Lockheed’s interrogatories
didn’t reset the removal clock, Lockheed’s removal was
untimely. If the responses did, the district court erred in
remanding the case, and in awarding Durham costs and fees.
To answer the timeliness question, we begin with the text of
the removal statute:
4788 DURHAM v. LOCKHEED MARTIN CORP.
If the case stated by the initial pleading is not remov-
able, a notice of removal may be filed within thirty
days after receipt by the defendant, through service
or otherwise, of a copy of an amended pleading,
motion, order or other paper from which it may first
be ascertained that the case is one which is or has
become removable, except that a case may not be
removed on the basis of jurisdiction conferred by
section 1332 of this title more than 1 year after com-
mencement of the action.
28 U.S.C. § 1446(b) (emphasis added). In the language of the
statute, the question here is whether the case stated by Dur-
ham’s complaint was “removable.” Removable is not a
defined term in the statute, and there are two plausible ways
to construe it in the context of federal officer removals. First,
we could interpret “removable” as binary—either there’s
some basis for removal, or there’s not. Under this reading of
the statute, the case was “removable” when Lockheed
received the complaint because the defendants—had they
unanimously agreed to it—could have removed the case on
federal enclave grounds. The second way to interpret “remov-
able” is to look to each ground for removal separately. Under
this reading, a case does not become removable until the par-
ticular basis on which removal is sought becomes apparent
from the record. Seen in this light, the case wasn’t removable
until Lockheed learned that it could remove the case unilater-
ally based on federal officer jurisdiction.2
[5] The district court began its analysis of this question by
noting that “[r]emoval statutes are to be strictly construed, and
2
Durham urges us not to decide this question because all parties agree
Lockheed had twenty days to remove after it received Durham’s response
to its interrogatories. Durham argues that twenty days was sufficient time
for Lockheed to decide whether to remove. As a practical matter, maybe
so. But section 1446(b) provides that the defendant has thirty days once
the case becomes removable; either Lockheed had the thirty days section
1446(b) provides, or it didn’t.
DURHAM v. LOCKHEED MARTIN CORP. 4789
any doubts as to the right of removal must be resolved in
favor of remanding to state court.” As to section 1441 remov-
als, the district court is correct, see Gaus v. Miles, Inc., 980
F.2d 564, 566 (9th Cir. 1992) (per curiam), but we do not
interpret our jurisdiction under section 1442 so strictly. Con-
gress passed the federal officer removal statute to protect the
federal government from South Carolina’s attempt to nullify
federal tariff laws in the 1830s. See Gay v. Ruff, 292 U.S. 25,
32 (1934). And the Supreme Court has mandated a generous
interpretation of the federal officer removal statute ever since:
“It scarcely need be said that such measures are to be liberally
construed to give full effect to the purposes for which they
were enacted.” Colorado v. Symes, 286 U.S. 510, 517 (1932).
The Supreme Court “has held that the right of removal is
absolute for conduct performed under color of federal office,
and has insisted that the policy favoring removal ‘should not
be frustrated by a narrow, grudging interpretation of
§ 1442(a)(1).’ ” Arizona v. Manypenny, 451 U.S. 232, 242
(1981) (quoting Willingham v. Morgan, 395 U.S. 402, 407
(1969)). And the command to interpret section 1442 liberally
hasn’t come only from the Supreme Court. When the Court
held that federal agencies didn’t have any removal rights
under a prior version of section 1442, Congress amended the
statute to reverse the decision. See Int’l Primate Prot. League
v. Adm’rs of Tulane Educ. Fund, 500 U.S. 72, 76, 79 n.5
(1991); Federal Courts Improvement Act of 1996, Pub. L. No.
104-317, § 206, 110 Stat. 3847, 3850.
[6] We take from this history a clear command from both
Congress and the Supreme Court that when federal officers
and their agents are seeking a federal forum, we are to inter-
pret section 1442 broadly in favor of removal. And for good
reason. As Judge Friendly wrote, “[s]ection 1442, although
dealing with individuals, vindicates also the interests of gov-
ernment itself; upon the principle that it embodies ‘may
depend the possibility of the general government’s preserving
its own existence.’ ” Bradford v. Harding, 284 F.2d 307, 310
(2d Cir. 1960) (quoting Tennessee v. Davis, 100 U.S. 257,
4790 DURHAM v. LOCKHEED MARTIN CORP.
262 (1880)). Davis explains that the government “can act only
through its officers and agents, and they must act within the
States.” Davis, 100 U.S. at 263. Federal government officers
and their agents occasionally get into trouble when they act
within the States—whether they’re enforcing unpopular tariffs
in South Carolina in the 1830s, killing recalcitrant moonshin-
ers in self-defense in Tennessee in the 1880s, or exposing ser-
vicemen to asbestos to make military aircraft in the 1970s. If
the federal government can’t guarantee its agents access to a
federal forum if they are sued or prosecuted, it may have diffi-
culty finding anyone willing to act on its behalf.
[7] Because it’s so important to the federal government to
protect federal officers, removal rights under section 1442 are
much broader than those under section 1441. Federal officers
can remove both civil and criminal cases, while section 1441
provides only for civil removal. Unlike other defendants, a
federal officer can remove a case even if the plaintiff couldn’t
have filed the case in federal court in the first instance. And
removals under section 1441 are subject to the well-pleaded
complaint rule, while those under section 1442 are not. Com-
pare Louisville & Nashville R.R. Co. v. Mottley, 211 U.S.
149, 152 (1908), with Acker, 527 U.S. at 431. Whereas all
defendants must consent to removal under section 1441, see
United Computer Sys., 298 F.3d at 762, a federal officer or
agency defendant can unilaterally remove a case under section
1442, see Ely Valley Mines, Inc. v. Hartford Accident &
Indem. Co., 644 F.2d 1310, 1315 (9th Cir. 1981).
Mindful of these differences, and the justifications for
removal that they reflect, we return to the timeliness of Lock-
heed’s removal under section 1446. Where the timeliness of
removal under section 1441 is at issue, it makes sense to pre-
sume that removal statutes are to be strictly construed against
federal court jurisdiction. When the defendant receives
enough facts to remove on any basis under section 1441, the
case is removable, and section 1446’s thirty-day clock starts
ticking. If the defendant can’t convince his co-defendants to
DURHAM v. LOCKHEED MARTIN CORP. 4791
remove, he’s stuck in state court, and later disclosure that the
case is also removable on another ground under section 1441
doesn’t help bring him into federal court.
[8] But where the timeliness of a federal officer’s removal
is at issue, we extend section 1442’s liberal interpretation to
section 1446. As far as the federal officer is concerned, the
case isn’t “removable” until the federal officer ground for
removal is disclosed—otherwise, a single holdout defendant
or a wily plaintiff can defeat the federal government’s interest
in providing a federal forum for its agents. We therefore hold
that a federal officer defendant’s thirty days to remove com-
mence when the plaintiff discloses sufficient facts for federal
officer removal, even if the officer was previously aware of
a different basis for removal.
Our interpretation of section 1446(b) protects the govern-
ment’s right of removal and encourages plaintiffs to disclose
the facts underlying their claims early on. We note that an
opposite result would encourage gamesmanship and defeat
the policies underlying sections 1442 and 1446. Thirty days
for removal is a short period, but the contours of the plain-
tiff’s claims frequently don’t emerge until months or even
years after the filing of the original complaint. Federal Rule
of Civil Procedure 8(a) requires that the plaintiff include in
his complaint only “a short and plain statement of the claim
showing that the pleader is entitled to relief,” and many states,
following the federal model, allow similarly sketchy com-
plaints. Absent our holding, a skilled attorney could easily
craft a complaint disclosing a basis for removal under section
1441, add one defendant averse to removal, and mask the
basis for federal officer removal under section 1442. Indeed,
under Rule 8, the plaintiff wouldn’t even be doing anything
improper by acting that way. But as Judge Friendly wrote in
Bradford, “the policy of [section 1442] would be frustrated if
a plaintiff or a prosecutor, by joining non-federal defendants
with no desire to remove, could retain the suit in a tribunal
that might ‘administer not only the laws of the State, but
4792 DURHAM v. LOCKHEED MARTIN CORP.
equally Federal law, in such a manner as to paralyze the oper-
ations of the government.’ ” Bradford, 284 F.2d at 310 (quot-
ing Davis, 100 U.S. at 263).
* * *
[9] The district court held that Lockheed’s removal petition
was untimely, so it did not reach the question whether Lock-
heed’s federal contractor immunity defense met the substan-
tive requirements of section 1442. See Acker, 527 U.S. at 431;
Mesa, 489 U.S. at 124-25, 131-35 (1989); Boyle, 487 U.S. at
512. We likewise express no opinion on the merits of Lock-
heed’s removal. We hold only that Lockheed’s removal peti-
tion was timely and that Lockheed therefore had an
objectively reasonable basis for filing the removal petition.
Martin, 126 S. Ct. at 708. We therefore reverse the district
court’s award of fees and costs to Durham.
REVERSED.