Nicholas Defiore v. Soc LLC
85 F.4th 546
9th Cir.2023Background
- Plaintiffs: 29 former armed guards who worked for SOC (a joint venture of SOC‑SMG and Day & Zimmerman) on DOD TWISS II contracts in Iraq (service 2009–2011).
- Plaintiffs sued in Nevada state court alleging false recruiting promises and state-law claims including breach of employment contracts and a breach of the TWISS II contract (alleged to benefit guards), based on excessive hours (>12 hrs/day; >72 hrs/week), no rest/meals, and unpaid overtime.
- Defendants removed under 28 U.S.C. § 1442(a)(1) (federal‑officer removal), alleging they were "acting under" military commanders per the TWISS II contract and would assert federal defenses (chiefly compliance with FARs incorporated into TWISS II).
- District court remanded, finding no causal nexus to government direction and no colorable federal defense to plaintiffs’ fraud and contract claims.
- Ninth Circuit (majority) reversed: held contractors were DOD agents under common‑law agency, causal nexus satisfied, and the FAR‑compliance defense was colorable (removal proper). Judge Collins dissented, arguing the removal notice failed to plead factual support and that agency alone does not satisfy §1442.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether private contractors are "persons acting under" a federal officer for §1442 | Contractors were independent contractors, not federal agents; removal improper | TWISS II subordinated contractors to Combatant Commanders; common‑law agency satisfied "acting under" | Yes — when an independent contractor functions as a common‑law agent (acts on gov't behalf subject to control), it can be "acting under" a federal officer for §1442 |
| Causal nexus between govt direction and plaintiffs’ claims | Plaintiffs’ injuries arise from contractors’ independent operational choices (e.g., low bidding, staffing); not from orders | The challenged acts (excess hours, staffing decisions) occurred in performance of duties for DOD and sometimes at commanders’ direction | Yes — causal‑connection standard is low; alleged acts occurred because of duties performed under DOD direction, satisfying nexus |
| Whether defendants asserted a colorable federal defense (FAR compliance) | FARs cited do not plausibly defend fraud and many contract claims; removal notice lacks factual basis that commanders ordered overtime | FAR clause (incorporated in TWISS II) could require guards to remain on duty when ordered by commanders; this is a colorable federal defense to breach claims | Yes — FAR‑based compliance defense is colorable under Bell v. Hood standard for at least the breach‑of‑contract claim alleging excessive hours |
| Adequacy of removal notice / supplementation with extra‑record facts | Notice failed Rule 8/Iqbal plausibility; defendants cannot cure by post‑hoc proffers | Notice may be supplemented to correct defective jurisdictional allegations (28 U.S.C. §1653); related litigation declaration can be judicially noticed | Majority: supplementation and judicial notice permitted; evaluate colorability under low Bell standard. Dissent: notice was deficient and supplementation insufficient to plead specific commander orders |
Key Cases Cited
- Watson v. Philip Morris Co., 551 U.S. 142 (statutory phrase "acting under" construed; removal statute liberally interpreted and focuses on assistance to federal duties)
- Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237 (9th Cir. 2017) (private entities can be "acting under" federal officers where government exerts overall control; low causal‑nexus test)
- Jefferson County v. Acker, 527 U.S. 423 (removal proper when defense depends on federal law; credit defendant’s theory for threshold showing)
- Mesa v. California, 489 U.S. 121 (federal‑law defense must be colorable; colorable defense supplies federal element)
- Willingham v. Morgan, 395 U.S. 402 (removal via §1442 broad; protects federal operations from state interference)
- Bell v. Hood, 327 U.S. 678 (colorability standard: federal claim/defense not "wholly insubstantial or frivolous")
- Cabalce v. Thomas E. Blanchard & Assocs., 797 F.3d 720 (9th Cir. 2015) (distinguishing non‑agent service providers from contractors acting as government agents)
- Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) (pleading and factual standards for removal jurisdiction; facial vs. factual challenges)