Cabalce v. VSE Corp.
922 F. Supp. 2d 1113
D. Haw.2013Background
- Consolidated order remands four Hawaii actions removed by VSE Corp. to the First Circuit of Hawaii; Cabalce, Kelii, Freeman/Sprankle, Irvine.
- Actions arise from the April 8, 2011 fire involving Donaldson Enterprises at a storage facility and fireworks destruction.
- VSE removed claiming diversity; later withdrew that basis and pressed federal officer removal defenses under §1442(a)(1).
- The prior November 29, 2012 order dismissed the United States from third-party complaints, shaping jurisdictional analysis focused on FTCA and contractor relationships.
- Court employs a framework for §1442(a)(1) removal (person, causal nexus, colorable federal defense) and analyzes two defenses (government contractor defense and derivative sovereign immunity) before remanding.
- Motions to Remand granted; actions remanded to Hawaii state court; no fee-shifting award to plaintiffs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1442(a)(1) removal applies to VSE as a “person” acting under a federal officer. | Cabalce argues VSE acted under government control; removal warranted. | VSE contends independent contractor status; no acting under control. | No colorable nexus; VSE not acting under government authority. |
| Whether a causal nexus existed between the government’s directions and the plaintiffs’ claims. | Plaintiffs contend government involvement in destruction plan links to claims. | Record shows contractor independence; government approvals were not day-to-day control. | No causal nexus between official authority and the acts underlying the state claims. |
| Whether the government contractor defense under Boyle applies to bar claims. | Plaintiffs challenge applicability of contractor defense to non-military context. | Defense applies where government approved precise specifications and contractor warned of dangers. | Not colorable here; no reasonably precise government specifications limited contractor discretion. |
| Whether derivative sovereign immunity under Yearsley applies to the contractors. | Plaintiffs argue immunity applies to government contractors for ultra-hazardous activity. | Yearsley extends immunity when following government directives; here contractor discretion defeats it. | Derivative sovereign immunity not available; contractor acted with independent discretion. |
| Whether plaintiffs are entitled to attorneys’ fees under §1447(c). | Remand should trigger fee award due to improper removal. | Removal had an objectively reasonable basis given liberal removal presumption. | No fee award; no unusual circumstances; basis for remand was reasonable. |
Key Cases Cited
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (government contractor defense; ممن)
- Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940) (derivative sovereign immunity for government contracts)
- Jefferson Cnty. v. Acker, 527 U.S. 423 (1999) (framework for §1442(a)(1) removal: acting under, causal nexus, colorable defense)
- Mesa v. California, 489 U.S. 121 (1989) (causal nexus and 1442(a)(1) considerations in removal)
- In re Hanford Nuclear Reservation Litig., 534 F.3d 986 (9th Cir. 2008) (limits on immunity for government contractors; discretionary vs. mandatory control)
- Ackerson v. Bean Dredging LLC, 589 F.3d 196 (5th Cir. 2009) (derivative sovereign immunity limitations; negligence defeats immunity)