Steven Papp v. Fore-Kast Sales Co Inc, 2016 U.S. App. LEXIS 20924

Background

Plaintiff Steven Papp sued Boeing in New Jersey state court alleging his wife Mary suffered secondary "take-home" asbestos exposure from Robert Keck’s sandblasting of the landing gear of a C-47 military transport built by Douglas (now part of Boeing).
Boeing removed under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), asserting it acted as a government contractor and raising the federal government-contractor defense (Boyle). Removal was premised on discovery at a deposition that the aircraft was a government C-47.
Boeing submitted a declaration from a longtime Douglas employee (Fogg) describing government supervision of specifications, manuals, labels/warnings, and Boeing’s compliance and lack of superior knowledge about asbestos risks.
The District Court granted remand, applying a heightened “special burden” and requiring Boeing to show an affirmative federal prohibition on warnings; it found Boeing had not met that standard.
The Third Circuit reviewed de novo, construing the removal notice facts in Boeing’s favor, rejected the special-burden/affirmative-prohibition standard, and held Boeing met the statutory elements for removal, including a colorable Boyle defense.
The court also rejected Papp’s timeliness objection as forfeited (presented only in a footnote) and found Boeing’s removal timely based on the deposition as the triggering “other paper.”

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a private contractor may remove under § 1442(a)(1) for acts while "acting under" federal officers	Papp: Boeing is merely a contractor and must meet a heightened "special burden" to show it acted under federal control	Boeing: Contractors who assist the federal government in producing items can act under federal officers; no special burden beyond statutory test	Court: Contractors can remove; "acting under" is liberally construed and Boeing satisfied it
Whether the alleged conduct was "for, or relating to" an act under color of federal office	Papp: Failure-to-warn claims are not sufficiently connected to federal oversight	Boeing: Manufacturing C-47 for the military under government specifications and review connects warnings to federal authority	Court: The facts show a sufficient connection/association; requirement met
Whether Boeing asserted a colorable federal (Boyle) defense	Papp: Boeing’s evidence (Fogg) is insufficient at removal stage; government did not necessarily control warnings	Boeing: Boyle applies: government approved specifications and warnings; Boeing conformed and lacked superior knowledge	Court: Boeing’s asserted Boyle defense is colorable on the pleaded facts and Fogg declaration; suffices for removal
Whether removal was timely under § 1446(b)	Papp: Boeing’s removal was untimely (outside 30 days) because Boeing could have discovered the aircraft earlier	Boeing: Deposition identifying the C-47 constituted the first ‘‘other paper’’ triggering the 30-day clock; removal was within 30 days	Court: Papp forfeited timeliness argument on appeal; and even on merits, deposition was the triggering paper, so removal was timely

Key Cases Cited

In re Commonwealth’s Motion to Appoint Counsel Against or Directed to Def. Ass’n of Phila., 790 F.3d 457 (3d Cir.) (framework for § 1442 elements and colorable defense requirement)
Willingham v. Morgan, 395 U.S. 402 (1969) (purpose of federal officer removal; defendant need not win merits to remove)
Boyle v. United Techs. Corp., 487 U.S. 500 (1988) (government-contractor defense elements)
Watson v. Philip Morris Cos., Inc., 551 U.S. 142 (2007) (liberal construction of "acting under" and contractor assistance rationale)
Kircher v. Putnam Funds Trust, 547 U.S. 633 (2006) (§ 1442 as exception to well-pleaded complaint rule; broad construction)
Jefferson Cty., Ala. v. Acker, 527 U.S. 423 (1999) (nexus requirement under prior statute formulation)
Leite v. Crane Co., 749 F.3d 1117 (9th Cir.) (application of Boyle in failure-to-warn contractor cases)