Nicholas Defiore v. Soc LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS DEFIORE; KEITH No. 21-15261

QUICK; NEIL ROBINSON;

CHRISTOPHER WILLIAMS; D.C. No. 2:20-

SHAWN WHITEHEAD; PAUL cv-01981-APG

MILLS, Jr.; RENE PEREZ; ROBERT

HERRING; HOUSTON WILLAMS;

ALLEN CAIN; RICHARD OPINION

LANDRY; WARREN WOODS;

ARNOLD ALEXANDER; DANIEL

MERCANTON; DAVID

WOLDERZAK; JAQUELYN

JOUBERT-YOUNG;

ABDELRAHIM KHAMIS; CURTIS

WATSON; JOSEPH SCOTT;

BABATUNDA DOUGLAS;

DUSTIN BOYLE; ALFREDO LUIS

CRUZ; GEORGE MUNN; TODD

DUPONT; JEROME MUNDY;

BENTON WILLIAMS, Jr.;

EDUARDO ZUNIGA;

CHRISTOPHER WARREN;

CHRISTOPHER FIELDS,

Plaintiffs-Appellees,

v.

2 DEFIORE V. SOC LLC

SOC LLC, DBA SOC Nevada LLC;

SOC-SMG, INC.; DAY &

ZIMMERMANN, INC.,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Nevada

Andrew Gordon, District Judge, Presiding

Argued and Submitted November 8, 2021

San Francisco, California

Filed October 25, 2023

Before: Daniel P. Collins and Kenneth K. Lee, Circuit

Judges, and M. Miller Baker, * International Trade Judge.

Opinion by Judge Baker;

Dissent by Judge Collins

*

The Honorable M. Miller Baker, Judge for the United States Court of

International Trade, sitting by designation.

DEFIORE V. SOC LLC 3

SUMMARY **

Federal Officer Removal Statute

The panel reversed the district court’s order remanding

to state court an action against private contractors providing

war-zone security services to the Department of Defense,

brought by a group of their employees who guarded bases,

equipment, and personnel in Iraq.

The guards alleged that their working conditions violated

the contractors’ recruiting representations, their employment

contracts, and the Theater Wide Internal Security Services II

(TWISS II) contract between the contractors and the

Department of Defense.

The panel held that the contractors met the limited

burden imposed by the federal officer removal statute, 28

U.S.C. § 1442(a)(1), which permits removal of a civil action

against “any officer (or any person acting under that officer)

of the United States or of any agency thereof . . . for or

relating to any act under color of such office.” To satisfy

this requirement, a removing private entity must show 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 the plaintiff’s claims; and (c)

it can assert a colorable federal defense.

There was no dispute that the contractors, as

corporations, were “persons” for purposes of § 1442(a)(1).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 DEFIORE V. SOC LLC

The panel held that the contractors sufficiently pleaded

that there was a causal nexus between their actions and the

guards’ claims. First, the contractors “acted under” a federal

officer because, under common-law agency principles, they

were independent contractors serving as the government’s

agents, rather than acting as non-agent service

providers. The panel concluded that the TWISS II contract’s

subordination of the contractors to U.S. military command

in the performance of their duties in Iraq sufficed to render

them Department of Defense agents. Second, there was a

causal connection between the actions of the contractors as

agents of the government and the guards’ claims because the

actions the contractors took which gave rise to the guards’

claims resulted from their work for the Department of

Defense.

The panel further held that the contractors sufficiently

alleged a colorable federal defense of compliance with the

federal regulations incorporated into the TWISS II

contract. Agreeing with the Fifth Circuit, the panel held that

the question was not whether the contractors’ asserted

federal defense was meritorious, but whether that defense

was immaterial and made solely for the purpose of obtaining

jurisdiction or was wholly insubstantial and frivolous. The

panel remanded the case to the district court for further

proceedings.

Dissenting, Judge Collins wrote that the contractors’

removal notice failed to adequately plead a colorable federal

defense because the removal notice did not allege sufficient

facts to support the defense of compliance with the TWISS

II contract’s incorporation of federal regulations, and this

defense applied only to a subset of the guards’

claims. Further, the contractors did not satisfy the causal

nexus requirements because it is not sufficient only to show

DEFIORE V. SOC LLC 5

that a defendant contractor is an “agent” of the Government

and that, absent that contractual relationship, the plaintiff’s

claim would never have arisen.

COUNSEL

Scott E. Lerner (argued) and Tara M. Lee, White & Case

LLP, Washington, D.C.; E. Leif Reid, Lewis Roca

Rothgerber Christie LLP, Reno, Nevada; for Defendants-

Appellants.

Scott E. Gizer (argued), Early Sullivan Wright Gizer &

McRae LLP, Los Angeles, California, for Plaintiffs-

Appellees.

OPINION

BAKER, International Trade Judge:

Three private contractors providing war-zone security

services to the Department of Defense (DOD) appeal a

district court order remanding to Nevada state court this suit

brought by a group of their employees who guarded DOD

bases, equipment, and personnel in Iraq. Because the

contractors met the limited burden imposed by the federal

officer removal statute, we hold that the remand was

erroneous. We therefore reverse.

I

The guards’ complaint alleges that the contractors

recruited them “under false promises with respect to the

6 DEFIORE V. SOC LLC

schedule [they] would work” in Iraq. The complaint also

alleges that the contractors required that the guards “work in

ultra-hazardous conditions in excess of 12 hours per day

without meals or rest periods, seven days per week.”

According to the complaint, these working conditions

violated “not only the [contractors’ recruiting]

representations” and employment contracts, but also the

relevant agreement between DOD and the contractors, the

Theater Wide Internal Security Services II (TWISS II)

contract. The complaint asserts eight state-law claims for

relief, including a claim for breach of the TWISS II contract,

which the guards allege “was expressly for their benefit.”

Invoking the federal officer removal statute, 28 U.S.C.

§ 1442(a)(1), the contractors timely removed this suit to the

district court. Their notice of removal alleges (1) that they

are “persons” for purposes of the statute; (2) that the guards’

claims “are connected or associated with” the contractors’

“official authority” because the contractors were “acting

under federal authority by performing security services

according to United States military directives” and because

the TWISS II contract required the guards to follow “orders

. . . issued by the ‘Combatant Commander, including those

relating to force protection, security, health, [or] safety’ ”;

and (3) that the contractors “expect to [assert] colorable

federal defenses, . . . including their compliance with federal

regulations” incorporated into the TWISS II contract.

Attached to the notice of removal was the guards’ complaint.

The guards then moved to remand this action to state

court. Ruling from the bench, the district court granted the

motion for two separate and independent reasons.

First, the district court reasoned that there was no causal

nexus between the guards’ “claims and the defendants’

DEFIORE V. SOC LLC 7

actions that were at the direction of the government” because

the TWISS II contract “delegated to the defendants”

“specific command and control supervision” of the guards,

even though the contract also provided for “some general

oversight by the government.”

Second, the district court reasoned that even if the

contractors could establish such a nexus, “they cannot assert

a colorable federal defense.” As relevant here, the district

court reasoned that although the contractors “claim they

have to comply with federal regulations and that gives them

a federal defense, . . . the regs that are being cited by the

defendants do not provide a defense to the plaintiffs’ claims

here of fraud or of breach of contract between those two

parties, the plaintiffs and the defendants.” 1

The contractors timely appealed.

II

Insofar as such orders are reviewable, see 28 U.S.C.

§ 1447(d), we review de novo a district court’s decision to

remand a case. See Lively v. Wild Oats Mkts., Inc., 456 F.3d

933, 938 (9th Cir. 2006); see also United States v. Garrett,

253 F.3d 443, 446 (9th Cir. 2001) (“Jurisdiction is a question

of law subject to de novo review.”). A remand motion

challenging removal jurisdiction is evaluated the same as a

Federal Rule of Civil Procedure 12(b)(1) motion to dismiss

for lack of subject-matter jurisdiction. See Leite v. Crane

Co., 749 F.3d 1117, 1121–22 (9th Cir. 2014). Under that

framework, where the moving party does not contest the

1

Although the contractors’ notice of removal did not expressly invoke

either the political question or derivative sovereign immunity doctrines

as federal defenses, their response to the remand motion did so. The

district court also rejected those defenses.

8 DEFIORE V. SOC LLC

removal notice’s factual allegations but instead asserts that

those allegations are facially insufficient to invoke federal

jurisdiction, we accept the notice’s factual allegations as true

and draw all reasonable inferences in favor of the remover.

Id.

When the plaintiffs’ motion to remand raises a factual

challenge by “contest[ing] the truth of the [remover’s]

factual allegations, usually by introducing evidence outside

the pleadings,” however, the remover “must support her

jurisdictional allegations with ‘competent proof’ . . . under

the same evidentiary standard that governs in the summary

judgment context.” Id. at 1121 (quoting Hertz Corp. v.

Friend, 559 U.S. 77, 96–97 (2010)). The remover “bears the

burden of proving by a preponderance of the evidence that

each of the requirements for subject-matter jurisdiction has

been met.” Id. Except when the factual dispute material to

subject-matter jurisdiction is intertwined with an element of

the plaintiff’s claim, the district court may resolve the factual

dispute itself. Id. at 1121–22 & n.3.

The guards’ motion to remand contests the facial

sufficiency of the contractors’ notice of removal. 2 We

2

Although the guards requested that the district court take judicial notice

of a separate complaint, arbitration award, an arbitration brief, and an

email produced in discovery during that arbitration, the guards did not

cite or invoke these materials to challenge the notice’s jurisdictional

allegations. In any event, materials of which a district court may take

judicial notice are not considered extrinsic evidence for purposes of

Rules 12(b)(1) and 12(b)(6) and, by extension, a motion to remand. Cf.

United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“A court may

. . . consider certain materials—documents attached to the complaint,

documents incorporated by reference in the complaint, or matters of

judicial notice—without converting the motion to dismiss into a motion

for summary judgment.”).

DEFIORE V. SOC LLC 9

therefore accept the notice’s jurisdictional allegations as true

and draw all reasonable inferences in favor of the

contractors. Leite, 749 F.3d at 1121–22.

III

As relevant here, § 1442(a)(1) permits removal of a civil

action against “any officer (or any person acting under that

officer) of the United States or of any agency thereof . . . for

or relating to any act under color of such office.” 28 U.S.C.

§ 1442(a)(1) (emphasis added). To satisfy this requirement,

a removing private entity must show 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.’ ” Goncalves ex rel. Goncalves v.

Rady Childs. Hosp. San Diego, 865 F.3d 1237, 1244 (9th

Cir. 2017) (quoting Durham v. Lockheed Martin Corp., 445

F.3d 1247, 1251 (9th Cir. 2006)).

There is no dispute here that the contractors, as

corporations, are “person[s]” for purposes of § 1442(a)(1).

See Guards’ Br. at 10 (acknowledging that the status of the

contractors as persons “is not at issue on appeal”); see also

Goncalves, 865 F.3d at 1244 (holding that corporations are

“person[s]” for purposes of §1442(a)(1)). This case therefore

comes down to the remaining elements: Is there a causal

nexus between the contractors’ relevant actions under a

federal officer and the guards’ claims, and do the contractors

assert a colorable federal defense?

Before considering these two questions, we note that

courts afford § 1442 a “generous” and “liberal” construction,

interpreting the statute “broadly in favor of removal.”

Durham, 445 F.3d at 1252–53. They do so because the

statute “vindicates . . . the interests of government itself” in

10 DEFIORE V. SOC LLC

“ ‘preserving its own existence.’ ” Id. at 1252 (quoting

Bradford v. Harding, 284 F.2d 307, 310 (2d Cir. 1960)

(Friendly, J.) (itself quoting Tennessee v. Davis, 100 U.S.

257, 262 (1879))).

The Supreme Court has accordingly rejected the notion

that removal through § 1442 is “narrow” or “limited.”

Willingham v. Morgan, 395 U.S. 402, 406 (1969). While the

broad language of § 1442 “is not limitless,” the statute still

“must be ‘liberally construed.’” Watson v. Philip Morris

Cos., 551 U.S. 142, 147 (2007) (quoting Colorado v. Symes,

286 U.S. 510, 517 (1932)). Removal rights under § 1442 thus

“are much broader than those under section 1441.” Durham,

445 F.3d at 1253. For example, “suits against federal officers

may be removed despite the nonfederal cast of the

complaint; the federal-question element is met if the defense

depends on federal law.” Jefferson County v. Acker, 527 U.S.

423, 431 (1999). And unlike garden-variety remand orders

for lack of subject-matter jurisdiction or defects in removal

procedure, which are not appealable, see Kircher v. Putnam

Funds Tr., 547 U.S. 633, 640–41 (2006) (discussing 28

U.S.C. § 1447(d)’s general preclusion of appellate review of

remand orders), when (as here) removal relies on § 1442, a

remand order for lack of subject-matter jurisdiction is

appealable. See 28 U.S.C. § 1447(d).

A

With these considerations in mind, we turn to whether

there is a causal nexus between the contractors’ actions and

the guards’ claims. To establish such a nexus, the contractors

“must show: (1) that [they were] ‘acting under’ a federal

officer in performing some ‘act under color of federal

office,’ and (2) that such action is causally connected with

the [guards’] claims against [them].” County of San Mateo

DEFIORE V. SOC LLC 11

v. Chevron Corp., 32 F.4th 733, 755 (9th Cir. 2022) (citing

Goncalves, 865 F.3d at 1244–50), cert. denied, 143 S. Ct.

1797 (2023).

1

As to the first prong, “[f]or a private entity to be ‘acting

under’ a federal officer, the private entity must be involved

in ‘an effort to assist, or to help carry out, the duties or tasks

of the federal superior.’ ” Goncalves, 865 F.3d at 1245

(emphasis in original) (quoting Watson, 551 U.S. at 152).

The “relationship typically involves ‘subjection, guidance,

or control,’ ” in which the private entity helps federal

officers “fulfill . . . basic governmental tasks.” Id. (quoting

Watson, 551 U.S. at 151–53).

As Watson implies, the relevant statutory language—

“acting under”—is redolent of common-law agency. See

Chevron, 32 F.4th at 756 (“[T]he Court considers whether

the person is acting on behalf of the officer in a manner akin

to an agency relationship.”) (citing Watson, 551 U.S. at 151);

cf. 1 Restatement (Third) of Agency § 1.01 (2006)

(“Restatement (Third)”) (“Agency is the fiduciary

relationship that arises when one person (a ‘principal’)

manifests assent to another person (an ‘agent’) that the agent

shall act on the principal’s behalf and subject to the

principal’s control, and the agent manifests assent or

otherwise consents so to act.”).

Watson’s antecedents similarly reiterated that the federal

officer removal statute protects federal officers and their

agents. See, e.g., Davis, 100 U.S. at 263 (the federal

government “can act only through its officers and agents,

and they must act within the States”) (emphasis added);

Cunningham v. Neagle, 135 U.S. 1, 62 (1890) (same);

Willingham, 395 U.S. at 406 (same); Arizona v. Manypenny,

12 DEFIORE V. SOC LLC

451 U.S. 232, 241 n.16 (1981) (same); Mesa v. California,

489 U.S. 121, 126 (1989) (same). Watson itself also

observed that the Court’s cases teach that

the removal statute’s “basic” purpose is to

protect the Federal Government from the

interference with its “operations” that would

ensue were a State able, for example, to

“arres[t]” and bring “to trial in a State cour[t]

for an alleged offense against the law of the

State,” “officers and agents” of the Federal

Government “acting . . . within the scope of

their authority.”

Watson, 551 U.S. at 150 (emphasis added and alterations in

original) (quoting Willingham, 395 U.S. at 406).

We, in turn, have acknowledged that the statute protects

the government’s agents. See, e.g., City & County of

Honolulu v. Sunoco LP, 39 F.4th 1101, 1108 (9th Cir. 2022)

(holding that removing defendants did not act “under” a

federal officer because they “did not serve as government

agents and were not subject to close direction or

supervision”) (emphasis added), cert. denied, 143 S. Ct.

1795 (2023); Durham, 445 F.3d at 1253 (“If the federal

government can’t guarantee its agents access to a federal

forum if they are sued or prosecuted, it may have difficulty

finding anyone willing to act on its behalf.”) (emphasis

added). And in Goncalves, we held that third-party

administrators of a federal employee health plan “acted

under” a federal officer when they pursued a subrogation

claim in state court. 865 F.3d at 1247. In so doing, we relied

on “the interconnectedness” between the government and

the administrators in operating and administering the plan,

DEFIORE V. SOC LLC 13

id., as an agency was “responsible for the overall

administration of the program while sharing the day-to-day

operating responsibility with . . . the insurance carriers.” Id.

at 1246 (cleaned up and quoting Houston Cmty. Hosp. v.

Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265, 271

(5th Cir. 2007)). In this scheme, the administrators “serv[ed]

as the government’s agent” in processing claims. Id.

(emphasis added).

In the district court’s view, this case was more like

Cabalce v. Thomas E. Blanchard & Associates, 797 F.3d

720 (9th Cir. 2015), where we held that an independent

contractor hired by the government to store and dispose of

seized fireworks did not act under a federal officer because

of “the lack of any evidence of the requisite federal control

or supervision over the handling of the seized fireworks.” Id.

at 728. According to the district court, even though the

TWISS II contract provides for “some general oversight by

the government,” it “delegated to the defendants” “specific

command and control supervision” of the guards.

As we read the cases, the key difference between

Goncalves and Cabalce is a crucial distinction between

independent contractors that are agents and independent

contractors that are instead non-agent service providers.

“[T]he common term ‘independent contractor’ is equivocal

in meaning and confusing in usage because some termed

independent contractors are agents while others are

nonagent service providers.” Restatement (Third) § 1.01

cmt. c (emphasis added); see also United States v. Bonds,

608 F.3d 495, 505 (9th Cir. 2010) (characterizing circuit

precedent as “recognizing that ‘an independent contractor . .

. may be an agent’ in limited circumstances in which he acts

‘subject to the principal’s overall control and direction’ ”)

(quoting Dearborn v. Mar Ship Ops., Inc., 113 F.3d 995, 998

14 DEFIORE V. SOC LLC

n.3 (9th Cir. 1997)); Restatement (Second) of Agency § 14N

(1958) (“One who contracts to act on behalf of another and

subject to the other’s control except with respect to his

physical conduct is an agent and also an independent

contractor.”) (emphasis added).

In Goncalves, we held that because of the government’s

overall control of the program, the administrators were the

government’s agents; in Cabalce, because of the

government’s lack of such control, the contractor was a

“nonagent service provider.” Restatement (Third) § 1.01

cmt. c (emphasis added). We therefore only need to ask: Are

the contractors here the government’s common-law agents,

as in Goncalves? If so, that distinguishes this case from

Cabalce.

The contractors’ notice of removal alleges that they were

“acting under federal authority by performing security

services according to United States military directives.” The

notice also alleges that the “TWISS II contract required all

Contractor personnel . . . to follow orders issued by the

‘Combatant Commander, including those related to force

protection, security, health, [or] safety.’ ” (Alteration in

original.) 3 At argument, the parties agreed that under this and

3

The TWISS II contract, because it is repeatedly referred to in the notice

of removal and attached complaint, is treated as incorporated into the

notice, just as it would be treated as incorporated into a complaint for

Rule 12(b)(1) and 12(b)(6) purposes if the guards’ motion to remand

were a motion to dismiss. Cf. Ritchie, 342 F.3d at 908 (“Even if a

document is not attached to a complaint, it may be incorporated by

reference into a complaint if the plaintiff refers extensively to the

document or the document forms the basis of the plaintiff’s claim.”).

DEFIORE V. SOC LLC 15

other provisions 4 in the TWISS II contract, a U.S. military

base commander in Iraq had the authority to order the

contractors’ off-duty guards into combat to repel an enemy

attack.

Under common-law agency principles, the TWISS II

contract’s subordination of the contractors to U.S. military

command in the performance of their duties in Iraq sufficed

to render them DOD agents. See Restatement (Third) § 1.01

(explaining that an agent acts “on the principal’s behalf and

subject to the principal’s control”); see also Hollingsworth

v. Perry, 570 U.S. 693, 713 (2013) (“An essential element of

agency is the principal’s right to control the agent’s

actions.”) (quoting Restatement (Third) § 1.01, Comment f).

The Combatant Commander controlled the contractors’

actions, as the government’s agents, for fighting the Iraq

War.

We hold that where the government’s independent

contractor is also an agent under common-law agency

principles as reflected in the Restatement (Third) of Agency,

the contractor “act[s] under” a federal officer for purposes of

§ 1442(a)(1). In so holding, we do not decide whether

“acting under” a federal officer is a status necessarily limited

4

For example, Paragraph 3.2 of the TWISS II contract provided that

“[t]he contractor shall maintain command and control of their guard

workforce under the general direction of the cognizant [Area Defense

Operations Center]/[Base Defense Operations Center]. The contractor

shift supervisor shall have the means to stay in continual contact with

[Base Defense Operations Center] personnel. The contractor shall

establish command and control procedures to disseminate direction from

the cognizant [Base Defense Operations Center], through the Shift

Supervisor, to the Guard Team Leaders and Guards.” (Emphasis added.)

Under these provisions, on-scene military commanders controlled the

contractors’ security operations in Iraq.

16 DEFIORE V. SOC LLC

to the government’s common-law agents. Cf. Watson, 551

U.S. at 153–54 (observing that courts have looked to various

considerations to determine whether a private person “act[s]

under” a federal officer for purposes of § 1442(a)(1)). 5

Instead, we merely hold that serving as the government’s

common-law agent satisfies the statute’s “acting under”

requirement.

2

Next, we must determine whether there is a causal

connection between the actions of the contractors as agents

of the government and the guards’ claims. To satisfy the

causal connection requirement, the contractors “need show

only that the challenged acts ‘occurred because of what they

were asked to do by the Government.’ ” Goncalves, 865 F.3d

at 1245 (emphasis in original) (quoting Isaacson v. Dow

Chem. Co., 517 F.3d 129, 137 (2d Cir. 2008)). “In assessing

whether a causal nexus exists, we credit the defendant’s

theory of the case.” Leite, 749 F.3d at 1124 (citing Jefferson

County, 527 U.S. at 432; Isaacson, 517 F.3d at 137).

The “hurdle erected by [the causal-connection]

requirement is quite low.” Goncalves, 865 F.3d at 1244

(alteration in original) (quoting Isaacson, 517 F.3d at 137).

“It is enough that [the defendant’s] acts or his presence at the

place in performance of his official duty constitute the basis,

though mistaken or false,” of a plaintiff’s claims. Maryland

5

The dissent charges that our decision today “contravenes” Watson,

Dissent at 41, but we previously characterized that decision as

“descriptive . . . [of] what the lower courts were doing” rather than

establishing a “certain test” for “acting under” a federal officer.

Goncalves, 865 F.3d at 1245.

DEFIORE V. SOC LLC 17

v. Soper, 270 U.S. 9, 33 (1926), quoted in Goncalves, 865

F.3d at 1244.

The contractors therefore only need to show that the

actions they took which gave rise to the guards’ claims

resulted from their work for DOD. See Jefferson County, 527

U.S. at 433 (stating that “[t]he circumstances that gave rise

to the” claim against the federal officer, “not just” the

specific challenged acts of that federal officer, are enough to

establish the “essential nexus” between the activity under

“color of office” and a claim against the officer);

Willingham, 395 U.S. at 409 (“[I]t [is] sufficient for

[removing defendants] to have shown that their relationship

to [the plaintiff] derived solely from their official duties.”);

Isaacson, 517 F.3d at 137–38 (“To show causation,

Defendants must only establish that the act that is the subject

of Plaintiffs’ attack (here, the production of the byproduct

dioxin) occurred while Defendants were performing their

official duties.”) (emphasis in original). 6

6

We note that in 2011 Congress amended § 1442(a)(1) to allow removal

by federal officers (and persons acting under them) of suits “for or

relating to any act under color of such office . . . .” 28 U.S.C.

§ 1442(a)(1); see Removal Clarification Act of 2011, Pub. L. No. 112–

51, § 2(b)(1)(A), 125 Stat. 545. Previously, the statute allowed for

removal of suits “for any act under color of such office.” By so amending

the statute, “Congress broadened federal officer removal to actions, not

just causally connected, but alternatively connected or associated, with

acts under color of federal office.” Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286, 292 (5th Cir. 2020) (en banc) (emphasis in original); cf.

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (stating

that the “ordinary meaning” of “relating to” “is a broad one—‘to stand

in some relation; to have bearing or concern; to pertain; refer; to bring

into association with or connection with’ ”) (quoting Black’s Law

Dictionary 1158 (5th ed. 1979)). We read our “causal nexus” test as

18 DEFIORE V. SOC LLC

The notice of removal plainly establishes this: The

contractors’ challenged acts—including allegedly requiring

the guards to work hours beyond the limits set in the TWISS

II contract—occurred while the former discharged their

security duties for the Combatant Commander in the Iraq

War. We therefore hold that a causal nexus exists between

the contractors’ actions as agents of DOD and the guards’

claims. 7 The district court’s finding to the contrary was

consequently in error.

incorporating the “connected or associated with” standard reflected in

Congress’s 2011 amendment and the Supreme Court’s decisions. See

Goncalves, 865 F.3d at 1244–45.

7

The dissent contends that we have overlooked “the separate nexus

requirement that a defendant’s challenged actions must have been ‘under

color’ of a federal officer’s office.” Dissent at 42. But no decision of ours

or the Supreme Court—and the dissent cites none—treats the “under

color” requirement as distinct from either the “acting under” or “causal

connection” requirements.

The dissent further asserts that our analysis “leads to the astonishing

conclusion that a federal contractor’s actions in allegedly fraudulently

recruiting its employees are ‘under color’ of a federal officer’s office,

and that, in taking those fraudulent actions, the federal contractor is

‘acting under’ a federal officer.” Id. at 43. But to so accept the guards’

allegations as true “is to decide the merits of the case.” Jefferson County,

527 U.S. at 432. “Just as requiring a ‘clearly sustainable defense’ rather

than a colorable defense would defeat the purpose of the removal statute,

so would demanding an airtight case on the merits in order to show the

required causal connection.” Id. (citation omitted) (citing Willingham,

395 U.S. at 407). A court must therefore “credit the [removing

defendant’s] theory of the case for purposes” of making “an adequate

threshold showing that the suit is for an act under color of office.” Id.

(cleaned up and emphasis added). As explained below, the contractors’

theory of the case is that sometimes DOD required them to make the

guards work overtime. “[W]hether the challenged act was outside the

DEFIORE V. SOC LLC 19

B

Finally, we must determine whether the contractors

possess a colorable federal defense. See Goncalves, 865 F.3d

at 1244. The purpose of this requirement is to supply a

federal element under which the defense to the action arises.

Mesa, 489 U.S. at 136. Thus, “the federal-question element

is met if the defense depends on federal law.” Jefferson

County, 527 U.S. at 431. In determining removal jurisdiction

under § 1442(a)(1), the scope of the court’s inquiry is only

whether the defendant advanced a colorable federal defense,

“not whether [the] defense will be successful.” Magnin v.

Teledyne Cont’l Motors, 91 F.3d 1424, 1429 (11th Cir.

1996) (citing Mesa, 489 U.S. at 133). Defendants “need not

win [their] case” before removal. Willingham, 395 U.S. at

406–07. And a removing defendant need not have a

colorable federal defense for every claim; one colorable

federal defense against one asserted claim is enough. Mesa,

489 U.S. at 129.

The contractors assert three federal defenses:

compliance with federal rules and regulations, derivative

sovereign immunity, and the political question doctrine.

Contractors’ Opening Br. at 23. We need consider only

compliance, where the contractors argue the federal

regulations incorporated into the TWISS II contract provide

a colorable defense. Id. at 43–45. 8

scope of [the contractors’] official duties, or whether it was specifically

directed by the federal Government, is one for the federal—not state—

courts to answer.” Leite, 749 F.3d at 1124 (quoting Isaacson, 517 F.3d

at 138).

8

Thus, we express no view as to whether the contractors’ failure to assert

their derivative sovereign immunity and political question defenses in

the removal notice waived those defenses.

20 DEFIORE V. SOC LLC

When a plaintiff’s alleged injuries arise from conduct of

the defendant acting under federal law and the court is

charged with “the proper interpretation of . . . the statute” to

“determin[e] . . . the scope of [the defendant’s] duties,” then

a “colorable federal defense” exists. Mesa, 489 U.S. at 129–

30 (discussing Cleveland, C., C. & I. R. Co. v. McClung, 119

U.S. 454 (1886)).

In response to the complaint’s allegations that the

guards’ work hours in Iraq violated their employment

contracts and the TWISS II contract, the contractors’ notice

of removal alleges that Federal Acquisition Regulations

(FAR) incorporated into the latter contract required the

guards to “follow orders issued by the ‘Combatant

Commander, including those relating to force protection,

security, health, [or] safety.’ ” (Quoting 48 C.F.R.

§ 252.225-7040(d)(1)(iv).) The notice further alleges the

defense that “regardless of whether a [guard] is on shift or

not, or has already worked more than 72 hours in a given

week, he or she may have been required (pursuant to the

TWISS II contract and the FAR) to provide assistance for a

variety of reasons at the direction of the relevant military

commander.” 9

9

The dissent contends that the removal notice failed to identify “any

‘officer . . . of the United States or of any agency thereof’ under whom

Defendants acted.” Dissent at 43 n.6 (ellipsis in original) (quoting 28

U.S.C. § 1442(a)(1)). The notice, however, alleged that the contractors

acted under the direction of “the relevant military commander.” The

local military commander at any given base where the contractors’

employees were deployed is surely an “officer . . . of the United States”

for purposes of the statute. The notice’s more general identification of

DOD also suffices, as in Goncalves we characterized the Office of

Personal Management as “the relevant federal officer.” 865 F.3d at 1245;

DEFIORE V. SOC LLC 21

On appeal, the contractors supplemented the factual

allegations of their removal notice by pointing (Contractors’

Reply Br. at 8) to a declaration filed in related litigation in

which one of their on-site managers in Iraq stated that DOD

“always prioritized manning posts over all other

requirements, including providing guards with a day off

every week. As a result, guards [at one site] received days

off less frequently than employees at other bases staffed by”

the contractors. Risinger v. SOC LLC, No. 2:12-cv-00063

(D. Nev. Apr. 1, 2019), ECF No. 342-7 ¶ 12 (Declaration of

John Huppee). 10

The district court held that the contractors’ compliance

defense failed, reasoning that “the regs that are being cited

by the defendants do not provide a defense to the plaintiffs’

claims here of fraud or of breach of contract between those

two parties, the plaintiffs and the defendants.” In so holding,

the district court committed two errors.

see also Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 684 (9th

Cir. 2022) (characterizing the statute as allowing removal by any “person

or entity who acts under a federal officer or agency”) (emphasis added).

10

Although a removal notice “cannot be amended to add a separate basis

for removal jurisdiction after the thirty day period” of 28 U.S.C.

§ 1446(b), ARCO Env’t Remediation, L.L.C. v. Dep’t of Health & Env’t

Quality of Mont., 213 F.3d 1108, 1117 (9th Cir. 2000) (quoting

O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir. 1988)), “a

defendant may amend” such a notice “after the thirty day window has

closed to correct a ‘defective allegation of jurisdiction,’ ” id. (citing 28

U.S.C. § 1653). The Huppee declaration “clarif[ies] the factual

underpinnings of the previously asserted basis” for removal. Kinetic Sys.,

Inc. v. Fed. Fin. Bank, 895 F. Supp. 2d 983, 994 (N.D. Cal. 2012). We

can take judicial notice of that declaration as a court filing in related

litigation. See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741,

746 n.6 (9th Cir. 2006); see also Fed. R. Evid. 201(d).

22 DEFIORE V. SOC LLC

First, the district court applied the wrong standard—it

decided the merits of the contractors’ federal defense based

on federal regulations. But for jurisdictional purposes, the

contractors’ federal defense doesn’t have to prevail, it

merely needs to be colorable.

To determine whether a defense is colorable, we need not

reinvent the jurisprudential wheel. A long-standing body of

law governs whether a claim is colorable for securing federal

question jurisdiction. See Bell v. Hood, 327 U.S. 678, 682–

83 (1946) (holding that an asserted federal claim triggers

federal question jurisdiction unless the claim “clearly

appears to be immaterial and made solely for the purpose of

obtaining jurisdiction or where such a claim is wholly

insubstantial and frivolous”). We agree with the Fifth Circuit

and hold that the same standard governs whether a federal

defense alleged in a notice of removal is colorable for

§ 1442(a)(1) purposes. See Latiolais, 951 F.3d at 297.

Thus, the question the district court should have

addressed was not whether the contractors’ asserted federal

defense was meritorious, but whether that defense was

“immaterial and made solely for the purpose of obtaining

jurisdiction or . . . wholly insubstantial and frivolous.” Bell,

327 U.S. at 682–83. Any federal defense that clears the low

bar of Bell is colorable.

Second, the district court misapprehended the nature of

the guards’ claims. The guards allege (among other things)

that their excessive work hours violated not only their

employment contracts, but also the TWISS II contract. As

the latter incorporated 48 C.F.R. § 252.225-7040, the

contractors have a colorable defense to the guards’ breach

claim for excessive work hours based on compliance with

this regulation. Cf. Magnin, 91 F.3d at 1428 (“At least part

DEFIORE V. SOC LLC 23

of Smith’s defense is that he acted within the scope of his

federal duties, that what he did was required of him by

federal law, and that he did all federal law required. That

defense raises a federal question, which justifies removal.”).

Thus, we conclude that the contractors’ removal notice, as

supplemented by the declaration of Mr. Huppee, alleged a

colorable federal defense to the guards’ breach of contract

claim based on excessive work hours—that DOD in some

circumstances required those excessive hours.

* * *

The allegations of the notice of removal, taken as true

and supplemented by record facts in related litigation of

which we take judicial notice, establish that the contractors

served as DOD’s agents in prosecuting the Iraq War, that the

guards’ claims arise out of the contractors’ performance of

those federal duties, and that the contractors have asserted a

colorable federal defense to at least one of the guards’

claims. Removal was therefore proper. By finding otherwise

and remanding to state court, the district court erred. We

reverse and remand for further proceedings.

REVERSED AND REMANDED.

24 DEFIORE V. SOC LLC

COLLINS, Circuit Judge, dissenting:

In reversing the district court’s order remanding this case

to state court, the majority seriously misconstrues the

requirements of the federal officer removal statute, 28

U.S.C. § 1442(a)(1), and it misapplies the standards for

pleading that statute’s jurisdictional requirements in a notice

of removal. I respectfully dissent.

I

Plaintiffs are 29 individuals who were employed as

armed guards at U.S. military bases in Iraq by Defendant

SOC, LLC (“SOC”), a private security company operating

under a contract with the U.S. Department of Defense

(“DoD”). SOC is a joint venture of Defendants SOC-SMG,

Inc. (“SMG”) and Day & Zimmerman, Inc. (“D&Z”). All of

the Plaintiffs’ service in Iraq occurred between July 2009

and December 2011, although each individual Plaintiff

worked only for different shorter time periods within that

overall timeframe.

On October 19, 2019, Plaintiffs filed this action in

Nevada state court, alleging that they had been recruited

“under false promises with respect to the schedule” they

would work. The gravamen of the complaint is that, in

pursuing its contract with DoD, SOC followed a strategy of

“bidding to the man,” meaning that the price of its bid was

based on the “exact number” of guards needed, “without any

allowance for rest days and/or sick or other types of leave.”

As a result, after SOC was awarded the contract, it was

“consistently short of the number of individuals required to

fully man the security checkpoints and posts,” which

required Plaintiffs “to work in excess of 6 days per week and

12 hours per day.” These time demands were allegedly

DEFIORE V. SOC LLC 25

contrary to the assurances made to Plaintiffs before and after

SOC recruited them. The complaint further alleges that

Plaintiffs were required to work in excess of 6 days per week

and 12 hours per day “without meal or rest periods, and

without any overtime compensation.”

Plaintiffs’ complaint asserts eight state law causes of

action: (1) promissory fraud based on alleged fraud in

inducing Plaintiffs to enter into contracts with SOC;

(2) negligent misrepresentation based on the same

allegations; (3) unjust enrichment based on the alleged

promissory fraud; (4) money had and received based on

SOC’s receipt of excess funds from DoD that should have

been paid to Plaintiffs; (5) breach of SOC’s contracts with

Plaintiffs, which contracts allegedly incorporated portions of

SOC’s contract with DoD; (6) breach of the implied

covenant of good faith and fair dealing in SOC’s contracts

with Plaintiffs; (7) quantum meruit based on the failure to

pay overtime compensation; and (8) unjust enrichment

based on breach of contract. Although the complaint was

brought against SOC, SMG, and D&Z (collectively,

“Defendants”), it contains no specific allegations concerning

SMG or D&Z. Instead, the complaint alleges that each

Defendant is derivatively liable for the acts of the others

under a variety of theories. The complaint seeks damages,

restitution, disgorgement, and punitive damages.

On October 26, 2020, Defendants removed the case to

federal court under the federal officer removal statute. See

28 U.S.C. § 1442(a)(1). Plaintiffs moved to remand the case,

and the district court granted that motion. Defendants timely

appealed.

26 DEFIORE V. SOC LLC

II

Before turning to whether the district court properly

remanded the case, it is helpful first to review the language

of the relevant removal statute and the caselaw construing it.

The relevant statute under which Defendants removed this

case to federal court provides as follows:

(a) A civil action or criminal prosecution that

is commenced in a State court and that is

against or directed to 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, in an

official or individual capacity, for or

relating to any act under color of such

office or on account of any right, title or

authority claimed under any Act of

Congress for the apprehension or

punishment of criminals or the collection

of the revenue.

28 U.S.C. § 1442(a)(1).

On its face, the statute permits removal only of matters

against four specified types of defendants, namely, (1) the

“United States”; (2) an “agency thereof”; (3) an “officer . . .

of the United States or of any agency thereof”; and (4) a

“person” acting under such an officer. Id. Because neither

DEFIORE V. SOC LLC 27

the United States, a federal agency, nor a federal officer has

been named as a defendant in this case, only the latter

category of defendants is at issue here. In the context of

removal by such persons, the statute has been construed as

imposing several requirements for removal, which I will

address in turn.

A

First, as the text of the statute confirms, the state court

suit must be “against or directed to” a “person acting under

that officer,” meaning an “officer . . . of the United States or

of any agency thereof.” 28 U.S.C. § 1442(a)(1) (emphasis

added). Accordingly, it is not sufficient for a private

“person” invoking this statute simply to assert that he or she

is acting, in some general sense, under the “United States”

or an “agency thereof.” Rather, the defendant must show

that it is acting under a specific officer of the United States

or of one of its agencies. Two crucial features of the text

confirm this point: (1) the phrase “any person acting under

that officer” makes specific reference only to an “officer”

(not the “United States” or an “agency”); and (2) that phrase

is located literally in the middle of the noun phrase “officer

. . . of the United States or of any agency thereof” and

therefore cannot be said to refer to the other two items in

§ 1442(a)(1)’s list (namely, the “United States” and “any

agency thereof”).

The statutory history of § 1442(a)(1)’s text further

confirms this conclusion. Between the enactment of title 28

of the United States Code in 1948 and the first subsequent

amendment of § 1442 in 1996, § 1442(a)(1) read as follows:

(a) A civil action or criminal prosecution

commenced in a State court against any of the

28 DEFIORE V. SOC LLC

following persons 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) Any officer of the United States or any

agency thereof, or person acting under

him, for any act under color of such office

or on account of any right, title or

authority claimed under any Act of

Congress for the apprehension or

punishment of criminals or the collection

of the revenue.

28 U.S.C. § 1442(a)(1) (1995). In International Primate

Protection League v. Administrators of Tulane Educational

Fund, 500 U.S. 72 (1991), the Supreme Court held that the

statute’s reference to “any agency thereof” was an

alternative object in the prepositional phrase “of the United

States or any agency thereof,” so that the statute granted

removal authority only to “[a]ny officer of [1] the United

States or [2] any agency thereof.” The Court expressly

rejected the alternative reading under which the phrase “any

agency thereof” would be construed as an alternative subject

of the entire sentence, so that the removal power would

extend separately to “[a]ny officer of the United States” and

to “any agency thereof.” Id. at 79. Accordingly, the Court

held that the then-current version of § 1442(a)(1) did not

“permit[] removal by federal agencies.” Id. at 76.

In response to International Primate Protection League,

Congress amended § 1442(a)(1) in 1996 to expressly permit

removal by federal agencies and not merely by federal

officers. See Watson v. Philip Morris Cos., 551 U.S. 142,

148–49 (2007). Using strike-through to show deletions and

DEFIORE V. SOC LLC 29

underlining to show additions, the amendments made by

Congress to § 1442(a)(1) in 1996 were as follows:

(a) A civil action or criminal prosecution

commenced in a State court against any of the

following persons 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 Any officer (or any person

acting under that officer) of the United

States or of any agency thereof, or person

acting under him, sued in an official or

individual capacity for any act under

color of such office or on account of any

right, title or authority claimed under any

Act of Congress for the apprehension or

punishment of criminals or the collection

of the revenue.

See Federal Courts Improvement Act of 1996, Pub. L. No.

104-317, § 206(a)(2), 110 Stat. 3847, 3850 (1996)

(alterations added). These changes confirm that, while

Congress expressly added “[t]he United States” or “any

agency thereof” as entities entitled to removal, the coverage

of private “persons” allowed to remove cases remained

limited to only those persons acting under an “officer”—and

not the “United States” or “any agency thereof.” The point

had been clear in the pre-1996 version of the statute: that

version stated expressly that the removal power extended

only to an “officer of the United States or any agency

thereof, or person acting under him” (i.e., the officer). See

30 DEFIORE V. SOC LLC

Int’l Primate Prot. League, 500 U.S. at 79 n.5 (quoting the

relevant portion of the then-applicable version of § 1442(a)).

Had Congress intended the phrase “acting under” to extend

to all three federal entities with removal authority (i.e., the

“United States”; “any agency thereof”; or “any officer”), it

could have left the phrase “person acting under him” where

it was and changed “under him” to “under any of them.”

Instead, it moved the phrase “person acting under” into the

very middle of the noun phrase “officer . . . of the United

States or of any agency thereof”; it added “of” before “any

agency thereof” in that noun phrase (thereby expressly

adopting International Primate Protection League’s

construction of that specific phrase); and it changed “him”

to “that officer.”

Accordingly, private “persons,” including corporations,

may remove a suit only if they show that they were “acting

under” an “officer . . . of the United States or of any agency

thereof.” 28 U.S.C. § 1442(a)(1) (emphasis added). In

Watson, the Court addressed the further question of what

must be shown to establish that a person was “acting under”

a federal officer. 1 There, the Court held that “acting under”

1

At the outset of its opinion, the Court in Watson noted that the text

confirms that the statute requires a showing that the person was “‘acting

under’ an ‘officer’ of the United States,” see Watson, 551 U.S. at 145

(emphasis in original), but it later more loosely stated that the statute

“permits removal” if the person “was ‘acting under’ any ‘agency’ or

‘officer’ of the United States,” id. at 147 (emphasis added). The looser

language is presumably due to the fact that no party had raised the

distinction, the Court did not discuss it, and it was of no consequence to

the outcome of the case. Watson therefore cannot be understood as

having spoken to this issue and as having reached an opposite

conclusion. See Cooper Indus., Inc. v. Avail Servs., Inc., 543 U.S. 157,

170 (2004) (“Questions which merely lurk in the record, neither brought

DEFIORE V. SOC LLC 31

a federal officer, for purposes of § 1442(a)(1), means (1) that

the defendant was operating under the “subjection, guidance,

or control” of a federal officer; and (2) that the defendant

was involved in “an effort to assist, or to help carry out, the

duties or tasks of the federal superior.” 551 U.S. at 151–52

(citation and emphasis omitted).

B

In addition to limiting the “persons” who may invoke its

removal authority, § 1442(a)(1) also limits the type of state

court “cases” that such persons may remove. Specifically,

the case must be “against or directed to” the person and must

be “[1] for or relating to any act under color of such office

or [2] on account of any right, title or authority claimed

under any Act of Congress for the apprehension or

punishment of criminals or the collection of the revenue.”

28 U.S.C. § 1442(a)(1). Only the first of these clauses is at

issue here. That clause, in turn, requires a court to consider

what conduct counts as “any act under color of such office”

and what suits count as ones “for or relating” to such acts.

to the attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.” (citation omitted)).

The same is true of the Ninth Circuit cases cited by the majority that in

some places have used similarly loose language without any awareness

of this specific issue of statutory construction. See Opin. at 20 n.9 (citing

Saldana v. Glenhaven Healthcare LLC, 27 F.4th 679, 684 (9th Cir. 2022)

(assuming, without discussion, that acting under a “federal officer or

agency” is sufficient), and Goncalves ex rel. Goncalves v. Rady

Children’s Hosp. San Diego, 865 F.3d 1237, 1245 (9th Cir. 2017)

(assuming, without discussion, that an agency can qualify as an

“officer”)). And as explained above, the statutory language, as a

grammatical matter, simply cannot bear the reading that a person “acting

under” an “agency,” but not under an “officer,” may remove a case under

§ 1442(a)(1).

32 DEFIORE V. SOC LLC

The requirement that the case involve, not just a “person

acting under” a federal officer, but also an “act under color

of such office,” confirms that the particular “acts” involved

in the suit must have a sufficient “causal connection” to the

“asserted official authority.” Jefferson Cnty. v. Acker, 527

U.S. 423, 431 (1999) (citations omitted); 2 see also Medical

Dev. Int’l v. California Dep’t of Corr. & Rehab., 585 F.3d

1211, 1216 (9th Cir. 2009) (“The requirement of ‘any act

under color of such office’ has been construed as requiring a

causal connection between the charged conduct and the

official authority.” (citation omitted)). Moreover, because

“such office” clearly refers back to the federal “officer”

under whom the defendant is “acting,” it follows that the

“act[s]” involved must be “under color” of that officer’s

office. In addition, the phrase “act under color of such

office” has long been construed as imposing a requirement

that the “removal must be predicated on the allegation of a

colorable federal defense” with respect to those acts. Mesa

v. California, 489 U.S. 121, 129 (1989) (emphasis added)

(adopting this construction in light of longstanding

precedent and in order to avoid the constitutional question

whether, in the absence of such a colorable defense, federal

question jurisdiction would exist under Article III).

2

Jefferson County reached this conclusion in the context of the separate

paragraph of § 1442 that allows removal of suits against “[a]ny officer

of the courts of the United States, for or relating to any act under color

of office or in the performance of his duties.” 28 U.S.C. § 1442(a)(3).

But Jefferson County made clear that this nearly identically worded

requirement was the same under the two paragraphs, because the Court

explicitly construed this requirement in § 1442(a)(3) by drawing upon

cases discussing the same requirement in § 1442(a)(1). See 527 U.S. at

431 (citing Willingham v. Morgan, 395 U.S. 402, 409 (1969)).

DEFIORE V. SOC LLC 33

The further requirement that the case be one “for or

relating to” acts under “color of office” means that the

defendant must also show an adequate “causal nexus

between [defendant’s] actions, taken pursuant to a federal

officer’s directions, and plaintiff’s claims.” Goncalves ex

rel. Goncalves v. Rady Children’s Hosp. San Diego, 865

F.3d 1237, 1244 (9th Cir. 2017) (emphasis added) (citation

omitted). In other words, it is not enough to identify acts by

the defendant that were taken “under color” of a federal

officer’s office if those acts bear no relation to the plaintiff’s

claims about wrongful conduct. As we have noted, the

burden to show a causal connection between the defendant’s

under-color-of-office acts and the plaintiffs’ claims is “quite

low,” id. (quoting Isaacson v. Dow Chem. Co., 517 F.3d 129,

137 (2d Cir. 2008)). That is unsurprising, because it is

almost tautological that a defendant’s wrongful acts will be

connected to the plaintiff’s claims. 3 In such situations, the

Supreme Court has described the applicable burden as

requiring a showing that the suit “has arisen out of the acts

done by [the defendant] under color of federal authority.”

Maryland v. Soper, 270 U.S. 9, 33 (1926) (emphasis added).

3

The issue is more difficult in cases, such as Goncalves, that involve

atypical procedural contexts in which a state proceeding is directed to

the removing entity even though that entity has not been named as a

defendant in the traditional sense. See Goncalves, 865 F.3d at 1250

(holding that an ancillary proceeding to expunge a removing party’s lien

was covered by § 1442(a)(1)). As Goncalves noted, Congress amended

§ 1442(a)(1) in 2011 by, inter alia, adding the phrase “or relating to” to

the relevant clause, so that removal is authorized if the state court suit is

one “for or relating to any act under color of such office.” See Removal

Clarification Act of 2011, Pub. L. No. 112-51, § 2(b)(2), 125 Stat. 545,

545 (2011) (emphasis added); see also Goncalves, 865 F.3d at 1250.

This amendment confirms that the removing party need not be a formal

defendant in order to establish the requisite connection.

34 DEFIORE V. SOC LLC

As the Court stated in Watson, the question in the context of

an ordinary lawsuit is whether the removing defendant, “in

carrying out the ‘act[s]’ that are the subject of the

[plaintiff’s] complaint[,] was ‘acting under’” a federal

officer. 551 U.S. at 147 (emphasis added).

III

Having set forth the general standards governing

removal under § 1442(a)(1), I next consider whether

Defendants’ notice of removal sufficiently established that

those statutory requirements were met.

“To remove a case from a state court to a federal court, a

defendant must file in the federal forum a notice of removal

‘containing a short and plain statement of the grounds for

removal.’” Dart Cherokee Basin Operating Co. v. Owens,

574 U.S. 81, 83 (2014) (quoting 28 U.S.C. § 1446(a)).

Because that “short and plain statement” requirement of the

removal statute “tracks the general pleading requirement

stated in Rule 8(a) of the Federal Rules of Civil Procedure,”

the same pleading standards applicable to complaints under

Rule 8 also apply to the jurisdictional allegations in a notice

of removal. Id. at 87. Accordingly, the removal notice

“must allege facts, not mere legal conclusions, in compliance

with the pleading standards established in Bell Atlantic

Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.

Iqbal, 556 U.S. 662 (2009).” Leite v. Crane Co., 749 F.3d

1117, 1121 (9th Cir. 2014). Where, as here, the plaintiffs’

motion to remand facially challenges the removal notice’s

jurisdictional allegations and does not rely on an evidentiary

showing, the remand motion is resolved by assessing

whether the jurisdictional allegations in the removal notice

meet the pleading standards that would be applied in

DEFIORE V. SOC LLC 35

deciding a “motion to dismiss under Rule 12(b)(6).” 4 Id. In

my view, Defendants’ notice of removal was deficient for

the simple reason that it wholly fails to allege sufficient facts

to support a colorable federal defense.

In finding that all of the jurisdictional requirements of

§ 1442(a)(1) have been met, the majority relies on only one

asserted defense against one subset of Plaintiffs’ claims.

Specifically, the majority focuses on Plaintiffs’ fifth cause

of action, for breach of contract, which alleges that

Plaintiffs’ contracts with SOC incorporated the requirement,

in SOC’s underlying contract with DoD (the “TWISS II

contract”), that Plaintiffs not work more than 12 hours per

day or 72 hours per week. See Opin. at 19–20. As to

Plaintiffs’ claim that these time limits were violated, the

majority holds, Defendants have adequately shown that they

have a colorable defense based on the TWISS II contract’s

incorporation of the general requirement that SOC “shall

comply with, and shall ensure that its [relevant] personnel

. . . are familiar with, and comply with, all applicable . . .

[o]rders, directives, and instructions issued by the

Combatant Commander, including those relating to force

protection, security, health, safety, or relations and

interaction with local nationals.” 48 C.F.R. § 252.225-

7040(d)(1)(iv). According to the majority, this provision

gave combatant commanders authority, if warranted under

the circumstances, to direct that a specific person remain on

duty even though he or she had already completed 12 hours

4

By contrast, if a plaintiff’s remand motion presents a “factual”

challenge that relies upon an evidentiary showing, the district court, after

appropriate proceedings (which may include discovery), may itself

resolve any factual disputes concerning the jurisdictional questions,

except to the extent that those factual issues are intertwined with the

merits of the suit. Leite, 749 F.3d at 1121–22.

36 DEFIORE V. SOC LLC

that day or 72 hours for that week. See Opin. at 22–23. Such

an order, the majority posits, would override those time

limits and would provide a colorable defense to any

contractual claim by the affected employee.

The problem with the majority’s reliance on this very

narrow theory is that the removal notice wholly fails to

allege sufficient facts to support it. All that the notice says

on this point is that, “regardless of whether [an employee] is

on shift or not, or has already worked more than 72 hours in

a given week, he or she may have been required . . . to

provide assistance for a variety of reasons at the direction of

the relevant military commander” (emphasis added). The

notice thus never even contends that such an order was ever

actually given, nor does it plead any facts that would support

such a contention; the possibility is left as purely speculative

and theoretical. That plainly falls far short of what Iqbal

requires. See Iqbal, 556 U.S. at 678 (stating, in the context

of pleading a cause of action, “[w]here a complaint pleads

facts that are ‘merely consistent with’ a defendant’s liability,

it ‘stops short of the line between possibility and plausibility

of entitlement to relief’” (citation omitted)). Here,

Defendants’ removal notice not only failed to plead facts

more than “merely consistent with” their the-commander-

told-me-to defense, it pleaded no facts in support of that

defense at all.

The majority does not contest that the removal notice

was deficient on this score. Instead, the majority asserts that

certain additional factual contentions included in

Defendants’ reply brief should be construed as reflecting a

request to amend, under 28 U.S.C. § 1653, the removal

notice’s defective jurisdictional allegations. See Opin. at 21

n.10. But even assuming arguendo that such an amendment

under § 1653 would be appropriate in this context, the

DEFIORE V. SOC LLC 37

proffered additional factual allegations fall short. These

further allegations merely assert that, even though DoD “was

aware of the challenge surrounding recruiting and retaining

guards,” DoD “prioritized manning posts over all other

requirements.” Those meager facts do not plausibly

establish a colorable federal defense. Everyday difficulties

in supplying an adequate number of guards (due to the

systemic shortfalls caused by Defendants’ alleged “bidding

to the man” approach to the TWISS II contract) cannot

colorably be defended on the ground that the ordinary

staffing requirements amounted to an “order” that overrides

the applicable time limits. That much is clear from the

TWISS II contract’s express imposition of a general duty on

SOC to “manage [its] work force in a manner that does not

require any guard or guard team leader to work any longer

than one 12 hour shift per 24 hour period and not more than

72 hours per week.” That is, the systemic failure to have

sufficient personnel available to supply the necessary staff

without SOC requiring excess overtime is not a defense to

the breach-of-contract claim; it is itself a breach. As a result,

the defense posited in the removal notice could only

conceivably apply if a commander gave a direct order, on a

specific occasion, that a particular guard must stay on duty

past the applicable time limit. The notice and the additional

proffer are utterly bereft of any factual allegations that could

support such a conclusion. 5

5

Nor does the removal notice (or the proffer) plead any facts that could

colorably support any other defense to Plaintiffs’ contract-based claims.

Indeed, the notice does not even mention the other alternative defenses—

derivative sovereign immunity and the political question doctrine—that

Defendants have asserted in their opening brief on appeal. To the extent

that I can fathom how Defendants think that these doctrines could apply

38 DEFIORE V. SOC LLC

Beyond this very narrow (and wholly unsupported)

defense to the subset of Plaintiffs’ claims that are contract-

based, the majority does not contend that Defendants have

raised a colorable federal defense to any of Plaintiffs’ other

claims. And for good reason: any such contention would be

simply frivolous. Plaintiffs’ claims for promissory fraud,

negligent misrepresentation, and related ancillary relief rest

on the premise that Defendants engaged in a fraudulent

practice of (1) “bidding to the man” by presenting DoD with

an artificially low bid that Defendants knew would require

excess overtime; and (2) concealing this inevitability of

excess overtime from Plaintiffs in their recruiting pitches.

Quite obviously, no federal officer ordered the employers to

low-bid the Government; the bid was made to DoD, not the

other way around. Nor does the removal notice dare to make

the absurd suggestion that DoD authorized Defendants to

make fraudulent recruiting pitches to Plaintiffs. The only

remaining category of claims asserted in the complaint

involves allegations that Plaintiffs are owed certain monies

in connection with uncompensated overtime. Defendants, of

course, do not allege that any federal officer directed them

not to pay the guards the compensation due to them for

services rendered.

Accordingly, the removal notice wholly fails to allege a

colorable federal defense to Plaintiffs’ claims. As a result,

the requirements of § 1442(a)(1) were not met, and the

motion to remand was properly granted.

here, they rest on the same theory that a commander ordered them to

engage in the alleged wrongful conduct. Given the lack of any sufficient

factual allegations to support such a contention, those defenses likewise

necessarily fail.

DEFIORE V. SOC LLC 39

IV

Because I conclude that Defendants’ removal notice

failed to adequately plead a colorable federal defense, it is,

strictly speaking, unnecessary for me to address whether

Defendants’ notice sufficiently established the other

jurisdictional requirements of § 1442(a)(1). But what the

majority says on that score is so troublingly wrong that I

cannot overlook it. Effectively, the majority holds that any

federal contractor who qualifies as an “agent” of the

Government in some general sense may remove any case to

federal court in which that contractor has a colorable federal

defense. That is not the law.

As I explained earlier, § 1442(a)(1) imposes two distinct

nexus requirements, which we recently summarized as

follows: “To demonstrate a causal nexus, the private person

must show: (1) that the person [a] was ‘acting under’ a

federal officer [b] in performing some ‘act under color of

federal office,’ and (2) that such action is causally connected

with the plaintiff’s claims against it.” County of San Mateo

v. Chevron Corp., 32 F.4th 733, 755 (9th Cir. 2022) (citation

omitted). The majority says that these requirements are

satisfied merely by showing that the defendant contractor is

an “agent” of the Government and that, absent that

contractual relationship, the plaintiff’s claim would never

have arisen. See Opin. at 10–18. This represents a

substantial dilution of the burden required to justify removal

under § 1442(a)(1).

According to the majority, an “overall” “subordination”

of a contractor to federal authority makes that contractor the

Government’s “agent” in the performance of its duties under

the contract and suffices to show that the contractor is

“acting under” a federal “officer” for purposes of

40 DEFIORE V. SOC LLC

§ 1442(a)(1). See Opin. at 14–15. But this analysis

overlooks an important feature of agency law as well as the

further requirements of § 1442(a)(1).

The majority seems to think that overall supervision

renders the contractor the Government’s agent for all

purposes, but that is not how agency law works. “Aspects

of an overall relationship may constitute agency and entail

its legal consequences while other aspects do not.”

RESTATEMENT (THIRD) OF AGENCY § 1.01 cmt. b (AM. L.

INST. 2006). Principals may, for instance, convey authority

to agents to act for either general or particular purposes. See,

e.g., Schimmelpennich v. Bayard, 26 U.S. 264, 283 (1828)

(noting the familiar principle that an agent “ha[s] no general

authority to personate the [principal] in all respects

whatever; but was an agent appointed for particular

purposes, with limited powers, calculated to sub serve those

purposes”). The majority cites no authority that would

support its “overall control” test, under which Defendants’

subjection to overall “U.S. military command” apparently

suffices to render them agents of DoD for all purposes. See

Opin. at 13–16. The majority is therefore wrong in

suggesting that every action Defendants took in connection

with their contract automatically qualifies as “acting under”

a federal officer.

This same point is underscored by § 1442(a)(1)’s

additional requirement that the particular “act[s]” at issue

must have been performed “under color” of the federal

officer’s office. 28 U.S.C. § 1442(a)(1) (emphasis added).

As I noted earlier, we recently held in Chevron that the

causal nexus requirement imposes a burden to show “(1) that

the person [a] was ‘acting under’ a federal officer [b] in

performing some ‘act under color of federal office,’ and

(2) that such action is causally connected with the plaintiff’s

DEFIORE V. SOC LLC 41

claims against it.” Chevron, 32 F.4th at 755. In the

majority’s view, however, element (1)(b) in the above

quotation adds nothing and is simply duplicative of the

statute’s other requirements. See Opin. at 18 n.7. According

to the majority, merely being a Government agent, without

more, suffices to establish that all of the actions of that agent

are “under color” of the office of a federal officer. That

sweeping proposition is inconsistent with basic principles of

agency law and with common sense. As Chevron

recognizes, the plain text of § 1442(a)(1) imposes two

separate requirements on this score, and the majority has no

authority to simply airbrush one of them out of the statute.

Moreover, by wrongly eliminating this crucial element

of the required nexus between the acts and the federal

officer’s office, the majority also contravenes the Supreme

Court’s decision in Watson. Although the Court there

framed its discussion as whether, in taking the specific acts

at issue, the defendants were “acting under” a federal officer,

the various factors the Court identified in making that

determination necessarily apply to whether a defendant’s

relevant acts were “under color” of the federal officer’s

authority. 551 U.S. at 151–52. That is why neither Watson

nor Chevron stated that agency alone is sufficient to satisfy

§ 1442(a)(1). On the contrary, in determining whether a

sufficient nexus with a federal officer has been shown, we

said in Chevron that “[a]mong other things, [we] consider[]

whether the person is acting on behalf of the officer in a

manner akin to an agency relationship.” Chevron, 32 F.4th

at 756 (emphasis added). The additional factors to be

considered, beyond agency, include: (1) “whether the person

is subject to the officer’s close direction”; (2) “whether the

private person is assisting the federal officer in fulfilling

‘basic governmental tasks’ that ‘the Government itself

42 DEFIORE V. SOC LLC

would have had to perform’”; and (3) “whether the private

person’s activity is so closely related to the government’s

implementation of its federal duties that the private person

faces ‘a significant risk of state-court “prejudice.”’” Id. at

756–57 (quoting Watson, 551 U.S. at 153–54). The majority

acknowledges that this multi-factor analysis is required by

the Supreme Court’s opinion in Watson, but the majority

then effectively declines to follow it. See Opin. at 15–16 &

n.5. The majority attempts to reconcile its disregard of

Watson by suggesting that Watson’s additional factors only

apply if the defendant is not an agent of the Government.

See Opin. at 15–16. But that is not a fair reading of the

opinions in Watson or Chevron and, as I have explained, that

reading rests on flawed substantive premises concerning

agency law and the requirements of § 1442(a)(1).

Building on all of these errors, the majority then

announces that the only remaining nexus requirement is to

show that “the challenged acts occurred because of what

they were asked to do by the Government.” Opin. at 16

(quoting Goncalves, 865 F.3d at 1245 (further quotation

marks and citation omitted)). But this nexus requirement

pertains to the relationship between the removing party’s

challenged actions and the plaintiff’s claims. See Goncalves,

865 F.3d at 1245; see also Chevron, 32 F.4th at 755. That

does not suffice to establish the separate nexus requirement

that a defendant’s challenged actions must have been “under

color” of a federal officer’s office. Any suggestion that that

requirement is satisfied by a showing of mere but-for

causation—i.e., that the acts never would have occurred

absent the Government contract—is absurd. Under that

theory, a contractor who defrauds the Government itself

would be said to be acting “under color” of a federal officer’s

DEFIORE V. SOC LLC 43

office. 6 And in this case, the majority’s analysis leads to the

astonishing conclusion that a federal contractor’s actions in

allegedly fraudulently recruiting its employees are “under

color” of a federal officer’s office, and that, in taking those

fraudulent actions, the federal contractor is “acting under” a

federal officer. This is all quite wrong. 7

Finally, the implications of the majority’s errors are

significant. Under today’s opinion, it is difficult to see how

6

In addition, there is the further problem that, except for pointing to the

“Combatant Commander” in Defendants’ (inadequately pleaded)

contract-based defense, the removal notice never identifies any “officer

. . . of the United States or of any agency thereof” under whom

Defendants acted. 28 U.S.C. § 1442(a)(1). Instead, Defendants’

removal notice only more vaguely asserted that Defendants had been

“acting under federal authority by performing security services

according to United States military directives.” The majority says that

that is enough, see Opin. at 20 n.9, but that is wrong. See supra section

II(A).

7

The majority claims that the approach I have set forth improperly takes

the guards’ view of the merits of the case, in contravention of Jefferson

County’s statement that we must “credit” the removing party’s “theory

of the case” for purposes of the jurisdictional inquiry. See Opin. at 18

n.7 (quoting 527 U.S. at 432). But what we must credit under Jefferson

County (at least in a facial challenge) is the removal notice’s well-

pleaded allegations supporting the asserted “colorable federal defense”

and the claimed “‘causal connection’ between the charged conduct and

asserted official authority.” 527 U.S. at 431–32 (emphasis added)

(citation omitted). Nothing in Jefferson County requires us, in assessing

jurisdiction, to go further and to assume (as the majority apparently

would have it) that the “charged conduct” never even occurred. Here,

Defendants have not pleaded any facts sufficient to establish that their

alleged conduct of lying to prospective recruits was taken “under color”

of a federal officer’s office (nor have they pleaded any colorable federal

defense to that charged conduct). Yet, under the majority’s but-for-

causation test, such fraudulent recruitment counts as having been taken

“under color” of a federal officer’s office. That makes no sense.

44 DEFIORE V. SOC LLC

any significant federal contractor with a colorable federal

defense would not qualify for federal officer removal under

§ 1442. So long as a private federal contractor is subject to

“overall” federal supervision by an agency or an officer and

has a non-frivolous federal defense, it may leapfrog directly

into federal court when faced with, say, an ordinary state-

law employment dispute with its employees, a tort suit for

negligence, or a contract dispute with a subcontractor. That

is not the law.

I respectfully dissent.