# Petition for Writ of Certiorari — Grumman Technical Services, Inc. v. Estate of Ishee

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1996
- **Citation:** 519 U.S. 864

## Text

Suprems Court, 0.8.
FILED

96 65 JUL t 1 199%

No, ———

Dec

In THE
Supreme Court of the United States

OCTOBER TERM, 1996

GRUMMAN TECHNICAL SERVICES, INC., et al.,
Petitioners,
Vv.

ESTATE OF LAMAR ISHEE, et al.,
Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS C, GERITY L. JOSEPH LOVELAND
COPELAND, CooK, TAYLOR JAMES D. MILLER *

& BusH, P.A. MATTHEW L. BENNETT
Suite 1700 Capital Towers KING & SPALDING
Jackson, MS 39225-2132 1730 Pennsylvania Ave., N.W.
(601) 354-0123 Washington, D.C. 20006
FRANK J. CHIARCHIARO (202) 787-0500
THOMAS R. PANTINO Attorneys for Petitioner
MENDES & Mount, LLP Grumman Technical Services,
750 Seventh Avenue Inc.
New York, NY 10019-6829
(212) 261-8750 * Counsel of Record

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WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTIONS PRESENTED

1. Whether an order remanding a case to State court
is reviewable by a federal court of appeals where that
order was based on discretionary grounds but also includes
an extraneous or ambiguous use of the “tag” of 28 U.S.C.
§ 1447(c).

2. Whether the government contractor defense should
be applied to a closely supervised provider of services to
the United States Navy, and whether a colorable claim of
such a defense is enough to provide jurisdiction in federal
court.

(i)

ii

PARTIES TO THE PROCEEDING

In addition to Petitioner Grumman Technical Services,
Inc. and Respondent Estate of Lamar Ishee, the follow-
ing were parties to the proceedings in the Fifth Circuit:

McDonnell Douglas Corporation

UNC Aviation Services, Inc.

Jerome A. Kuechmann

Thomas Harden

Edwin E. Gennette

Jerry Fox

Benny Revels

Mark Glasgow

David Callaghan

Grover Miley

Angela N. Ishee, individually and on behalf of Caitlin
S. Ishee, a minor child

RULE 29.6 LISTING

Petitioner Grumman Technical Serwices, Inc., is a sub-
sidiary of Grumman Aerospace Corporation, which is a
subsidiary of Grumman Corporation, which is a subsid-
iary of Northrop Grumman Corporation.

TABLE OF CONTENTS

Page
QUESTIONS PRESENTED .2000..0..02:.-.-..cccecccscscccescei cco. i
PARTIES TO THE PROCEEDING ...........................-...-. ii
BeAP Ess ee Aas ele te ii
eee A i ee iv
oe | Es PENS SRE rls oe Re Te 1
RES A ose ee Oe 1
STATUTORY PROVISIONS INVOLVED ................ 2
Dinan Oe Bee CAB os
I
ETE ERE
REASONS FOR GRANTING THE PETITION 6

I. THE FIFTH CIRCUIT IS IN CONFLICT
WITH THE FOURTH CIRCUIT ON THE RE-
VIEWABILITY OF REMAND ORDERS .......... 6

II. DENIAL OF GRUMMAN’S REMOVAL
UNDER 28 U.S.C. §1442(a) IMPROPERLY
LIMITED APPLICATION OF THE GOVERN-
MENT CONTRACTOR DEFENSE AND ER-
RONEOUSLY EXCLUDED A FEDERAL
CONTRACTOR FROM FEDERAL COURT... 11

PETRI ONIN assis cceceecs ; = an 17

(iii)

iv

TABLE OF AUTHORITIES

CASES Page
Amtreco, Inc. v. O.H. Materials, Inc., 802 F. Supp.
OGD: CHEE... Gh: BI etisalat ae 13, 14
Beaver Valley Power Co. v. National Eng’g and
Contracting Co., 883 F.2d 1210 (3d Cir. 1989) .... 14
Boyle v. United Technologies Corp., 487 U.S. 500
EI srcelactnnes teas conti a tactpachdinieialetaclnasddictcc-onsnuadasigouansaiinn 11, 14, 15
Briscoe v. Bell, 482 U.S. 404 (1977) ....................-..-. 7
Carley v. Wheeled Coach, 991 F.2d 1117 (3d Cir.),
cert. denied, 114 S. Ct. 191 (1998) —........-. 15
Crawford v. National Lead Co., 784 F. Supp. 439
3 EE _, Se Pree oe YL a Pa 14
Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723
(3077). Aner EN Win ee. 7
Guillory v. Ree’s Contract Serv., Inc., 872 F. Supp.
S64 (3D. Bee Red niet a 14
Harduvel v. General Dynamics Corp., 878 F.2d
1311 (11th Cir. 1989), cert. denied, 494 US.
i Bk; ena a ee 15
In re Hawaii Federal Asbestos Cases, 960 F.2d 806
(9th Cie; SIGE ce aa a ee 13
International Primate Protection League v. Ad-
ministrators of Tulane Educ. Fund, 500 U.S. 72
gt peat cAine na i aR a Ae a OE RRA EAD 12
Lamb v. Martin Marietta Energy Systems, Inc.,
835 F. Supp. 959 (W.D. Ky. 1998) ...........-....... 14
Mangold v. Analytic Servs., Inc., T7 F.3d 1442 (4th
Cle TORS i Bee ois eae 6, 7, 8, 9, 10
Mesa v. California, 489 U.S. 121 (1989) —-.............. 12, 16
Peterson v. Blue Cross/Blue Shield of Texas, 508
F.2d 55 (5th Cir.), cert. denied, 422 U.S. 1043
(ROG bik enue ee 13
Richland-Lexington Airport Dist. v. Atlas Proper-
ties, Inc., 854 F. Supp. 400 (D.S.C. 1994) -.......... 14
Ryan v. Dow Chem. Co., 781 F. Supp. 934 (E.D.
We Bes Ee Sichcdacitieninceiids eeebihes cea eanaiedabicidscic: 12, 13
Shaw v. Grumman Aerospace Corp., 778 F.2d 736
(11th Cir. 1985), cert. denied, 487 U.S. 1233
CIID isnccsictsccccicicisipbcntcath helt aacicniilasacclnaibscapantee aed tecanke 15

ee ee

Vv

TABLE OF AUTHORITIES—Continued

Page
Sykes v. Texas Air Corp., 884 F.2d 488 (5th Cir.
ig 2 ey TORR ET EOL ge SPT De OE IO eee 10
Thermtron Products, Inc. v. Hermansdorfer, 423
ne I ei as fees 6,7
Things Remembered, Inc. v. Petrarca, 116 S. Ct.
see cg EET ee NR Ete ee eR 10
United States v. Orleans, 425 U.S. 807 a: | an 15
Willingham v. Morgan, 395 U.S. 402 (1969) _..... 11, 12, 16
Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18
Si: I ERD Pane ne eS SpE R ND todos aoe 13
STATUTES
See ED nos Se 1
adc (8 1 SR err eer ee ae ae 3, 7,8
ech eee hg Re TREE OT Oe 2, 5,7
uae TN I Ss SS 2,4, 5, 7,11, 12
oc || CREE RAPES A oe tse ie er Pes 2, 5, 6,7
MN BE elite nhc eee 13
Judicial Improvements Act of 1988, Pub. L. No.
100-702, §1009(c), 1988 U.S.C.C.A.N. (102
eles “GOO, WOOO eat 6

In THE
Supreme Court of the United States
OCTOBER TERM, 1996

No.

GRUMMAN TECHNICAL SERVICES, INC., ef al.,

" Petitioners,

ESTATE OF LAMAR ISHEE, et al.,
Respondents.

Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Grumman Technical Services, Inc., petitions for a writ
of certiorari to review the judgment of the United States
Court of Appeals for the Fifth Circuit in this case.

OPINIONS BELOW

The per curiam opinions and orders of the United States
Court of Appeals for the Fifth Circuit, App. la-3a, 12a-
16a, are not officially reported. The opinions of the
United States District Court for the Southern District of
Mississippi, App. 4a-lla, 17a-53a, are not officially

reported.
JURISDICTION

The judgment of the United States Court of Appeals
for the Fifth Circuit was entered on April 12, 1996. App.
la. The jurisdiction of this Court is invoked under 28
U.S.C. § 1254(1).

2

STATUTORY PROVISIONS INVOLVED

The statutory provisions involved include 28 U.S.C.
§ 1367, 28 U.S.C. § 1442, and 28 U.S.C. § 1447. The
relevant portions of these statutes are set forth in the
Appendix. App. 54a-55a.

STATEMENT OF THE CASE
A. Factual Background

Respondents are the surviving wife, child and estate of
Captain Lamar Ishee (“the Ishees”). Their claim arises
out of Captain Ishee’s death during a military training
flight accident near the runway at Meridian, Mississippi
Naval Air Station (“NAS”). App. 19a. On August 26,
1992, while on active duty as a Marine Corps instructor
pilot, Captain Ishee was aboard a TA-4J Skyhawk military
jet aircraft being flown by Navy Lieutenant Vernon Hill.
Id. The two men encountered a thunderstorm upon their
return to the NAS, and after landing on the runway, the
plane began sliding out of control. Lieutenant Hill and
Captain Ishee ejected, but Captain Ishee’s parachute never
completely opened, and he fell to his death. /d.

Petitioner Grumman Technical Services, Inc. (“Grum-
man”), a government contractor, provided organizational
level maintenance support for the Navy’s TA-4J military
aircraft at Meridian NAS. App. 19a-20a. In addition to
Grumman, the original defendants also included the man-
ufacturer of the TA-4J aircraft and the ejection seat,
McDonnell Douglas Corporation (“MDC”), another
maintenance contractor, UNC Aviation Services, Inc.
(“UNC”), and several individual employees of Grumman
and UNC. 7/d. All of the original corporate defendants
were foreign corporations, and all of the individual de-
fendants were Mississippi residents. 7d. at 21a.

Contracts between Grumman and the United States
prescribed the specific procedures the contractor was to
follow in the performance and administration of TA-4J

3

maintenance activities. (R. G17-176).1. Grumman was
required to perform maintenance support services in ac-
cordance with the specific provisions of its contract, mili-
tary specifications, aircraft and engine manuals, and nu-
merous types of government instructions and directives.
(R. M807-08). All of Grumman’s employees working on
the project rendered services in accordance with the direc-
tives and regulations of the commanding naval officer at
the Meridian NAS. (R. M808). The government exer-
cised control over each and every aspect of Grumman’s
performance of the government contracts. (R. M806-12).
Indeed, Grumman was performing work that had tradi-
tionally been performed by enlisted personnel and officers
of the United States Navy. The Navy replaced its own
maintenance program at Meridian with contractor person-
nel in 1987. The Grumman and UNC people thus were
simply “substitute sailors.” (Deposition of Howard H.
Pace at 80-81).

B. Proceedings Below

The Ishees filed their original Complaint in the Circuit
Court for the First Judicial District of Hinds County, Mis-
Sissippi, seeking compensatory and punitive damages under
the Mississippi wrongful death statute. The defendants
were Grumman, MDC, UNC, and several individuals.
(R. G186). MDC and Grumman timely filed separate
Notices of Removal on July 30, 1993 (they were later
consolidated). (R. M1, 202; G1). Grumman based its
removal on two jurisdictional grounds: (1) diversity of
citizenship (28 U.S.C. § 1332), claiming that the individ-

1The record on appeal to the Fifth Circuit consisted of two
district court files, one initiated by the filing of the MDC Notice
of Removal, the other initiated by the filing of the Grumman Notice
of Removal. Citations to the MDC file will appear as “R. M-,” and
citations to the Grumman file will appear as “R. G-.” The district
court record also contains the complete transcripts of all depositions
taken in this case. The depositions have not been assigned record
page numbers, so the citations to the depositions will refer to the
actual page numbers of the depositions.

4

ual managerial defendants had been fraudulently joined
and that the Ishee estate was properly resident in Alabama
(rather than Mississippi); and (2) federal officer removal
(28 U.S.C. § 1442(a)(1)), claiming a government con-
tractor defense. (R. G1-9). The Ishees moved to remand
the case to State court. (R. M110). Before the district
court ruled on the Ishees’ motion, the Ishees and MDC
served a joint motion seeking the dismissal (without prej-
udice) of MDC, as well as the withdrawal of MDC’s
Notice of Removal. (R. M549). Grumman opposed the
dismissal of MDC. App. 31a.

The district court entered its first Opinion and Order on
December 15, 1994. App. 17a. On the issue of diversity,
the district court did not determine the citizenship of the
Ishee Estate or whether the managerial defendants were
fraudulently joined. 7d. The district court did permit the
Ishees to file a Second Amended Complaint that added a
number of newly identified “Doe” defendants. Id. at 26a-
27a. The district court concluded that the post-removal
identification of the Does “related back” to the date of the
filing of the original removal petition and thereby pre-
cluded a fraudulent joinder removal. App. 26a-27a.

On the federal officer question, the district court found
that Grumman, UNC and Fox (an individual defendant)
were not entitled to remove under § 1442(a)(1), because
they did not have a colorable claim to a federal defense
and no causal nexus existed between the Ishees’ allegations
and the acts performed under federal authority. App. 40a-
S5la. MDC, by contrast, was assumed to have a valid
claim to § 1442(a)(1) jurisdiction as a “person” acting
under a federal officer, and the district court therefore
“assumed” that it had subject-matter jurisdiction. /d.
at 39a.

In addition to granting the plaintiffs leave to file their
Second Amended Complaint, the district court granted
the joint motion for voluntary dismissal of MDC. App.
39a. The court then found that it had dismissed all claims

5

over which it had original jurisdiction, and it declined to
exercise its supplemental jurisdiction over the remainder
of the case. Id. at 5la-53a; see 28 U.S.C. § 1367. The
court then announced: “Pursuant to 28 U.S.C. §1447(c),
the Court determines that this action has been ‘removed
improvidently and without jurisdiction’” and ordered the
case remanded to State court. Jd. at 52a-53a.

Grumman (and others) appealed, and the Fifth Circuit
found that the district court had “assumed that at the time
of removal it had jurisdiction to hear this case.” App.
14a. This presumption of jurisdiction, the Fifth Circuit
determined, created supplemental jurisdiction over the
nonfederal elements of the case, which the district court
declined, in its discretion, and ordered remand. Id. at
14a-15a. The Fifth Circuit noted, however, that the dis-

.trict court had stated at the end of its Opinion that it

was remanding the case pursuant to 28 U.S.C. § 1447(c),
leaving the circuit court unable to determine the basis of
the district court’s remand order. Id. at 15a-1l6a. Noting
that “resolution of this question of jurisdiction at the time
of removal is crucial to the determination whether we have
appellate jurisdiction to review the remand order,” the
Fifth Circuit remanded the case to the district court for
further proceedings on the “narrow question” of whether
MDC had properly removed the case. Id.

The district court then issued its second remand order,
this time focusing exclusively on the question of whether
MDC’s removal was proper. App. 4a. The court found
that MDC qualified as a “person” under 28 U.S.C. § 1442,
id. at Sa-6a, and that MDC had raised a colorable federal
defense to the plaintiffs’ claims. Jd. at 6a-7a. The district
court concluded, however, that MDC had failed to demon-
Strate that it had “acted under” an officer of the United
States. Id. at 7a-10a. Without discussing any other
grounds for removal, including fraudulent joinder and
Grumman’s federal officer defense, the district court then

6

determined that since no other party had properly removed
the case, the court had no jurisdiction, and remanded
pursuant to § 1447(c). 7d. at Ila.

The Fifth Circuit found that the district court’s
holding based on § 1447(c) divested the court of its
appellate jurisdiction, and the appeal was dismissed. App.
la-3a. The case has now been remanded to Mississippi
State court.

REASONS FOR GRANTING THE PETITION

I. THE FIFTH CIRCUIT IS IN CONFLICT WITH THE
FOURTH CIRCUIT ON THE REVIEWABILITY OF
REMAND ORDERS.

This case presents an important and unsettled question
concerning appellate review of remand orders under this
Court’s decision in Thermtron Products, Inc. v. Hermans-
dorfer, 423 U.S. 336 (1976) (finding that only remands
based on grounds specified in 28 U.S.C. § 1447(c)* are
immune from appellate review under § 1447(d)). The
result of the Fifth Circuit’s rulings in this case is that even
where 28 U.S.C. § 1447(c) did not provide the actual
basis for the district court’s remand order, an inadvertent
or extraneous reference to that statute is enough to bar
appellate review under 28 U.S.C. § 1447(d). This deci-
sion creates an untenable standard for appellate review of
remand orders and conflicts with a recent decision of the
Fourth Circuit, Mangold v. Analytic Services, Inc., 77
F.3d 1442 (4th Cir. 1996). In Mangold, the court looked
beyond the district court’s “inadverten[t]” reference to
§ 1447(c) and accepted appellate review when it was

2 The language of 1447(c) has changed since Thermtron. The
current section involves remands based on either a defect in removal
procedure or lack of subject-matter jurisdiction, while the prior
statute, amended in 1988, involved remand for cases removed “im-
providently and without jurisdiction.” See Judicial Improvements
Act of 1988, Pub. L. No. 100-702, § 1009(c), 1988 U.S.C.C.A.N.
(102 Stat.) 4642, 4670.

Pe ae

7

unclear whether the district court’s actual basis for re-
mand was lack of subject-matter jurisdiction. /d. at
1452-53.

The key issue in these cases is ambiguity, rather than
error. It is beyond dispute, as the Fourth Circuit correctly
noted, that where a district court unambiguously bases its
remand decision upon § 1447(c) an appellate court has
no jurisdiction to review the order, even if it is “mani-
festly, inarguably erroneous.” Mangold, 77 F.3d at 1450
(citing Gravitt v. Southwestern Bell Tel. Co., 430 U.S.
723 (1977) (per curiam) ); see also Briscoe v. Bell, 432
U.S. 404, 414 n.13 (1977). In both Mangold and the
present case, however, the district courts explicitly based
their decisions to remand on 28 U.S.C. § 1367(c), which,
under Thermtron, made them reviewable. Only after
emphasizing the discretionary nature of their orders did
the two district courts refer to § 1447(c). Those allusions
to § 1447(c) not only were clearly erroneous on the
merits (which was, by itself, unreviewable), they did not
constitute the actual basis of the district courts’ decisions.
The question of whether such ambiguity is reviewable is
posed by the conflict between Mangold and this case.

The Fifth Circuit’s view of this corollary to the Therm-
tron rule can produce absurd results, as the present case
demonstrates. With the exception of one reference to
§ 1447(c) at the end of its 43-page opinion (App. 52a),
the district court’s initial remand order was based entirely
on the premise that removal of the case was proper and
that the court had jurisdiction (pursuant to MDC’s right
to remove under § 1442(a)). App. 39a. This was so
clear to the district court that it did not deem it necessary
to decide Grumman’s allegation of federal jurisdiction
based on diversity of citizenship. Indeed, the court itself
noted that the question before it was whether, pursuant
to 28 U.S.C. § 1367, it had discretion to remand the re-
mainder of the case if MDC was dismissed. /d. at 34a-
35a. In the final section of the Opinion, entitled “Discre-

tionary Jurisdiction,” the court stated that it would
“decline[] to exercise continued jurisdiction over the non-
federal elements of this case.” /d. at 52a (emphasis
added). It was in this “Discretionary Jurisdiction” sec-
tion where the district court also made its unaccountable
reference to § 1447(c). Id. at 51la-52a.

Despite the district court’s clear basis for its holding in
§ 1367, the Fifth Circuit remanded for clarification as to
the grounds for the district court’s order. App. 16a. Tak-
ing this hint from the Court of Appeals, the district court
then found that MDC had not filed a proper notice of re-
moval in the first instance. 7d. at 10a. Without providing

the parties an opportunity to brief the issues, the Fifth
Circuit affirmed. /d. at la-3a.

The facts of the district court’s initial remand order in
the present case are strikingly similar to those of the re-
mand in Mangold, but the conclusion drawn by the Fourth
Circuit was precisely the opposite of that reached by the
Fifth Circuit. Mangold involved an action filed in Vir-
ginia State court against a government contractor, Ana-
lytic Services, Inc. (““ANSER”), and an Air Force official
(“Rooney”), for emotional distress and reputational in-
jury that allegedly arose out of an investigation into
charges of misconduct by Colonel Mangold. Mangold,
77 F.3d at 1444. Defendant Rooney removed the case
to federal court, and the United States was substituted as
a defendant for him under the Federal Tort Claims Act.

At the outset of a hearing on defendants’ motions for
summary judgment, plaintiffs revealed that they had vol-
untarily dismissed the United States as a defendant. /d.
at 1451. Finding that there was no federal question
remaining, the judge inquired: “Then there is no longer
any basis for federal jurisdiction to this, is there?” /d.
Counsel for ANSER suggested that it was “appropriate”
for the court to “retain[] jurisdiction based upon the asser-
tion by the private defendants of a Federal-immunity de-
fense.” Id. The district court, noting that it was “purely

9

discretionary with the Court whether to hold on to the
case in the posture that it presently is in,” asked counsel
to proceed to the merits of the immunity claims. /d. (em-
phasis in original). The district court’s subsequent written
order denied defendants’ immunity claim and found that
“a determination of whether defendants have met [the
state law evidentiary privilege] standard is better left to a
Virginia tribunal.” Jd. at 1452. The district court then
incongruously—and extraneously—ordered remand “pur-
suant to 28 U.S.C. § 1447(c).” Id.

The Fourth Circuit took up the jurisdictional issue sua
sponte and found that, the district court’s invocation of
§ 1447(c) notwithstanding, the court of appeals had juris-
diction to consider the remand order. The court deter-
mined that there is an important distinction between cases
in which § 1447(c) is the actual ground invoked and
those in which the district court bases its remand on other
authority but nevertheless references § 1447(c):

[Powerful policy considerations and persuasive deci-
sional authority support our power—and responsibil-
ity—to look past contextually ambiguous allusions
and even specific citations to § 1447(c) to determine
by independent review of the record the actual
grounds or basis upon which the district court con-
sidered it was empowered to remand. First, it must
be the case, as some courts have had the occasion to
recognize, that neither the citation of § 1447(c) nor
the failure to cite it as presumed authority for a
remand is conclusive of the real question: whether
one of its two grounds is the actual basis being
invoked as authority for remand. If a review of the
record discloses to a reviewing court’s satisfaction
that, notwithstanding any indications to the contrary,
the actual basis upon which the court thought it
was empowered to remand was neither of these,
§ 1447(d) does not bar review.

Id. at 1450 (citations omitted) (emphasis added and in
original).

10

This argument could be equally applied to the district
court’s initial remand order in this case. As the Fifth
Circuit concluded, “[a]lthough the body of the opinion
clearly indicates that the district court assumed that it
had jurisdiction over the case and that it remanded the
remaining state law claims pursuant to its discretionary
authority, the district court states at the end of its opinion
that it was remanding the case pursuant to 28 U.S.C.
§ 1447(c).” App. 15a. Unlike the Mangold court, how-
ever, the Fifth Circuit chose to handle this ambiguity (in
language) by giving the district court another opportunity
for error and almost openly suggesting to the district court
that it base its second decision on § 1447(c). TId. at
15a-16a (“If the district court determines that McDonnell
Douglas was unable to remove the case to federal court,
the district court does not have jurisdiction over the case
and the remand order is unreviewable by this court.”).

While this Court established in Gravitt that an appellate
court must tolerate even clearly erroneous decisions based
on § 1447(c), nothing in Gravitt or its progeny suggests
that the district court should be given a second oppor-
tunity for error when its first decision is (at best) ambigu-
ous. Indeed, the Gravitt rule is already stretched to its
logical limits. As Justice Ginsburg recently reiterated, it
“ ‘makes little sense’ to rest reviewability vel non on the
tag the trial court elects to place on its ruling.” Things
Remembered, Inc. v. Petrarca, 116 §. Ct. 494, 500
(1995) (Ginsburg, J., concurring) (quoting Sykes v.
Texas Air Corp., 834 F.2d 488, 492 (Sth Cir. 1987)).
Although it is true, as Judge Gee lamented, that review-
ability often turns on an “incantation” of § 1447(c) by
the district court, Sykes, 834 F.2d at 492, ignoring the
explicit and actual grounds of the remand order in the
face of an ambiguous “incantation” simply pushes the
Gravitt principle too far.

Important federal interests are at stake in this case, and
Grumman has attempted to exercise its right to have such

cm a ee

11

claims heard in federal court. Indeed, Grumman pre-
sented to the district court not only a “colorable” claim
to a federal defense (which is all that is required for
removal under 28 U.S.C. § 1442(a), Willingham v.
Morgan, 395 U.S. 402, 406-07 (1969)), but, as the
discussion in Section II infra demonstrates, Grumman pre-
sented a clearly meritorious claim that it is covered by
the government contractor defense. The district court
improperly abrogated that right, and the Fifth Circuit
declined to review that decision based on the slimmest
connection to the Thermtron rule: a single, ambiguous
invocation of § 1447(c). This case is an appropriate
vehicle for this Court to consider the proper application
of Thermtron and to resolve the conflict on this important
issue between the Fifth and Fourth Circuits.

II. DENIAL OF GRUMMAN’S REMOVAL UNDER 28
U.S.C. §1442(a) IMPROPERLY LIMITED APPLI-
CATION OF THE GOVERNMENT CONTRACTOR
DEFENSE AND ERRONEOUSLY EXCLUDED A
FEDERAL CONTRACTOR FROM FEDERAL
COURT.

Two important and recurring issues are raised by the
lower court’s remand order, both involving the scope and
application of the “government contractor defense,” as
delineated by this Court in Boyle v. United Technologies
Corp., 487 U.S. 500 (1988). The district court denied
Grumman, a military service contractor, the opportunity
to have its federal issues—those arising out of its contract
with the United States—adjudicated in federal court. This
erroneous decision (which was left unreviewed by the
Fifth Circuit) raises the underlying issues of whether, as
the district court suggests, the government contractor de-
fense is limited exclusively to procurement contracts and
whether “independent contractors” are barred from invok-
ing such a defense. Such a cramped reading of Boyle
cannot be justified by the language or the logic of this
Court’s decision. The present case provides this Court

12

with the opportunity to make clear that Boyle applies to
government service providers such as Grumman and that
such providers are entitled to federal jurisdiction under
28 U.S.C. § 1442(a).

As this Court has noted, “one of the most important
reasons for removal is to have the validity of the defense
of official immunity tried in a federal court.” Willingham
v. Morgan, 395 U.S. 402, 407 (1969). The Federal
Officer Removal Statute guarantees a federal forum both
to officers (or agencies) of the United States, and to per-
sons acting under such officers, for “any act under color
of such office.” 28 U.S.C. § 1442(a)(1). This Court has
stated that § 1442(a)(1) should not be given a “narrow,
grudging interpretation.” Willingham, 395 U.S. at 407.

It is well-established that a defendant may remove under
§ 1442(a)(1) upon establishing: (1) that it is a “per-
son”; (2) that it was acting under the direction of a
federal officer; (3) that it has raised a colorable claim
to a federal defense; and (4) that a causal nexus exists
between the plaintiff's allegations and the acts performed
under federal authority. Mesa v. California, 489 US.
121, 124-34 (1989). As a corporation that contracted to
provide services to the United States, Grumman meets
each of these tests.

1. As the district court noted, there is a split of au-
thority regarding whether corporations may be considered
“persons” under § 1442(a). See App. 40a-4la (citing
cases). This Court held in /nternational Primate Protec-
tion League v. Administrators of Tulane Educational
Fund, 500 U.S. 72 (1991), that the word “persons” in
§ 1442(a) does not apply to federal agencies, but the
Court left open the question of whether the statute applies
to corporations. The district court, and the better rea-
soned opinions, have found that a corporation is a “per-
son” for purposes of the removal statute, because the logic
of International Primate does not apply to private corpora-
tions. See App. 42a; Ryan v. Dow Chem. Co., 781

13

F. Supp. 934, 946 (E.D.N.Y. 1992) (including corpora-
tions within the definition of “person” makes the most
sense “in light of the purpose of the section read as a
whole”); Peterson v. Blue Cross/Blue Shield of Texas,
508 F.2d 55, 57 (5th Cir.) (implicitly recognizing that
corporations are “persons” under the statute), cert. denied,
422 U.S. 1043 (1975). Moreover, 1 U.S.C. § 1 provides
that the word “person” includes corporations when used
in a federal statute, “unless the context indicates other-
wise.”

2. The district court also properly held (or at least
assumed), that Grumman acted “under the direction of
an officer of the United States,” and that, in “a general
sense, the defendants’ activities on the base were under
the direction of the federal government.” App. 42a.
There is little doubt that an entity whose work was con-
trolled by volumes of detailed, step-by-step specifications
and overseen by a Navy officer “acted under” a federal
Official. See Ryan, 781 F. Supp. at 947.

3. The district court erred, however, in concluding
that Grumman did not raise even a colorable claim to a
government contractor defense under Boyle. This error
presents this Court with an opportunity to clarify several
important points about the application of the government
contractor defense that have caused confusion in lower
courts.

First, the district court and others have mistakenly at-
tempted to distinguish the government contractor defense,
established in Boyle, from the government agency defense,
established in Yearsley v. W.A. Ross Construction Co.,
309 U.S. 18 (1940). The district court found that Boyle
could not “by implication be extended to providers of
services to the military,” because the government con-
tractor defense applies only to product manufacturers.
App. 46a; see also In re Hawaii Federal Asbestos Cases,
960 F.2d 806, 810-12 (9th Cir. 1992) (holding that
Boyle defense applies only to contractors supplying the
military with equipment); Amtreco, Inc. v. O.H. Mate-

14

rials, Inc., 802 F. Supp. 443, 445 (M.D. Ga. 1992)
(finding “no authority” to support the claim that the gov-
ernment contractor defense applies to service providers).

This is clearly wrong. Despite the district and Amtreco
courts’ professed inability to identify authority on this
point (App. 46a; 802 F. Supp. at 445), many courts have
found no distinction between the government contractor
defense and the government agency defense. See, e.g.,
Beaver Valley Power Co. v. National Eng’g and Contract-
ing Co., 883 F.2d 1210, 1215 n.4 (3d Cir. 1989) (find-
ing no doctrinal distinction between the “government
contractor defense” and the “government agency de-
fense”); Guillory v. Ree’s Contract Serv., Inc., 872
F. Supp. 344, 346 (S.D. Miss. 1994) (applying the Boyle
defense to performance contracts); Richland-Lexington
Airport Dist. v. Atlas Properties, Inc., 854 F. Supp. 400,
422-23 (D.S.C. 1994) (applying Boyle to service con-
tracts); Lamb v. Martin Marietta Energy Systems, Inc.,
835 F. Supp. 959, 966 n.7 (W.D. Ky. 1993) (finding no
reason to limit Boyle to procurement contracts since Boyle
itself was based on Yearsley, which concerned a contrac-
tor’s construction and other performance of work on dams
for the government); Crawford v. National Lead Co., 784
F. Supp. 439, 445 n.7 (S.D. Ohio 1989) (“Although the
Boyle court discussed the government contractor defense
within the context of a procurement contract, the defense
is viable with regard to performance contracts.”). These
courts have correctly reasoned that the dispositive issue
should be whether there was a “uniquely federal interest
in the subject matter of the contract,” not whether a
procurement or performance contract is involved. See
Richland-Lexington Airport, 854 F. Supp. at 422.

Moreover, this Court itself has found that the govern-
ment contractor defense is not limited to product manu-
facturers. As the Boyle majority noted, “the federal in-
terest justifying this holding surely exists as much in pro-
curement contracts as in performance contracts; we see
no basis for a distinction.” 487 U.S. at 506. This Court

15

should use this case to reiterate that there is no distinction
between the Boyle “government contractor” defense and
the Yearsley “government agency” defense.

Second, the district court’s holding that Grumman was
not entitled to a federal defense because it was acting as
an “independent contractor,” App. 49a-51a, was erroneous.
The district court relied on Shaw v. Grumman Aerospace
Corp., 778 F.2d 736, 740 (11th Cir. 1985), cert. denied,
487 U.S. 1233 (1988), in concluding that the Boyle/
Yearsley defense is inapplicable to independent contrac-
tors. Id. at 47a.. This Court has sharply criticized the
Eleventh Circuit’s formulation of the government contrac-
tor defense, Boyle, 487 U.S. at 513, and other courts have
found—contrary to Shaw—that Boyle eliminated the dis-
tinction between “agents of the United States” and “inde-
pendent contractors.” See, e.g., Carley v. Wheeled Coach,
991 F.2d 1117, 1120 (3d Cir.), cert. denied, 114 S. Ct.
191 (1993).° This Court should use this case to explain
that in examining the government contractor defense, the
Shaw independent contractor analysis is unnecessary and
unwarranted.

Third, even if the independent contractor analysis is
proper, a contractor as closely supervised by the military
as Grumman would clearly meet the criteria for agency.
As the district court itself correctly noted, this Court’s test
for whether an individual or entity is an “independent
contractor” is “‘whether its day-to-day operations are
supervised by the Federal Government.’” App. 49a
(quoting United States v. Orleans, 425 U.S. 807, 815
(1976)). The contracts between Grumman and the
United States imposed precise specifications directing
every facet of contractor conduct at Meridian NAS, from
the clothes Grumman employees would wear (R. G37),
to how often the waste baskets would be emptied (R.

*The Eleventh Circuit itself has recognized the abrogation of
Shaw. Harduvel v. General Dynamics Corp., 878 F.2d 1811, 1316
(11th Cir. 1989), cert. denied, 494 U.S. 1030 (1990).

16

G77). The contracts described execthy whet the conae-
tors were required to do, specified the record-keeping and
reporting required of them, and identified the Navy and
Department of Defense forms they were required to pre-
pare and submit. (R. G77-83). Every maintenance pro-
cedure—every turn of the wrench—was described in
voluminous maintenance documents provided to Grumman
by the Navy and incorporated into its contract. (R. G49
and R. G128-134). The district court does not explain
why a contractor subject to such comprehensive govern-
ment oversight does not meet the Orleans test.

The district court’s several errors on this point were
compounded by the misapplication of the low standard
required for removal under 28 U.S.C. § 1442(a)(1).
Under that statute, removal is not contingent upon estab-
lishing a federal defense on the merits. Rather, those seek-
ing to invoke § 1442(a)(1) removal must raise only a
“colorable” claim to a federal defense. Willingham, 395
U.S. at 406-07; see also Mesa, 489 U.S. at 132-33. There
is simply no doubt that Grumman established at least
a “colorable” claim to a government contractor defense.

4. The final prong of the Mesa test was satisfied in
this case because a causal nexus exists between the claims
asserted by the Ishees and the acts performed by Grumman
under color of federal office. Mesa, 489 U.S. at 131-32.
As this Court has instructed, a defendant’s mere presence
at the place of his federal employment is sufficient to
satisfy the causal nexus requirement when the claims as-
serted against the officer arise out of that employment.
See Willingham, 395 U.S. at 409 (finding the required
“causal connection” where petitioners had shown that their
only contact with respondent occurred while they were
performing their duties).

It is undisputed that the claims asserted against Grum-
man all relate to the contractual duties owed to the United
States government. The causal nexus prong of the Mesa

17

test fhus was satished, and the district court's conclusion
that no causal nexus existed, App. 5la, was clearly
erroneous.

The district court’s determination that providers of serv-
ices to the military such as Grumman are not covered by
the government contractor defense constitutes a serious
misinterpretation of this Court’s holdings in Boyle and
Yearsley. Furthermore, the district court’s decision barred
the door of federal court to a military contractor with
important federal rights at stake. This Court should re-
verse this erroneous decision and establish clearly that the
government contractor defense is to be applied, in federal
court, to military service contractors.

CONCLUSION
The petition for a writ of certiorari should be granted.

Respectfully submitted,
THOMAS C. GERITY L. JOSEPH LOVELAND
COPELAND, CooK, TAYLOR JAMES D. MILLER *
& BusH, P.A. MATTHEW L. BENNCTT

Suite 1700 Capital Towers KING & SPALDING
Jackson, MS 39225-2132 1730 Pennsylvania Ave., N.W.

(601) 354-0123 Washington, D.C. 20006

FRANK J. CHIARCHIARO. (202) 737-0500

THOMAS R. PANTINO Attorneys for Petitioner
MENDES & Mount, LLP Grumman Technical Services,
750 Seventh Avenue Ine.

New York, NY 10019-6829

* Counsel of Record
(212) 261-8750 ee ee

Dated: July 11, 1996

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_1134%3A1. Public record. Not legal advice.