Ninth Circuit Ninth Circuit Rules on Timeliness of Federal Officer Removal

Per Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. Apr 26, 2006):

[Plaintiff’s complaint revealed a basis for “federal enclave” removal jurisdiction. Defendant chose not to remove because of the difficultly in getting 61 co-defendants to consent to removal. Ten days after service of the complaint, plaintiff’s answers to defendant’s interrogatories revealed a basis for “federal officer” removal jurisdiction. Defendant filed notice of removal 39 days after service of complaint.]

If Durham's responses to Lockheed's interrogatories didn't reset the removal clock, Lockheed's removal was untimely. If the responses did, the district court erred in remanding the case, and in awarding Durham costs and fees. To answer the timeliness question, we begin with the text of the removal statute:

If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.28 U.S.C. § 1446(b) (emphasis added).

In the language of the statute, the question here is whether the case stated by Durham's complaint was “removable.” Removable is not a defined term in the statute, and there are two plausible ways to construe it in the context of federal officer removals. First, we could interpret “removable” as binary--either there's some basis for removal, or there's not. Under this reading of the statute, the case was “removable” when Lockheed received the complaint because the defendants--had they unanimously agreed to it--could have removed the case on federal enclave grounds. The second way to interpret “removable” is to look to each ground for removal separately. Under this reading, a case does not become removable until the particular basis on which removal is sought becomes apparent from the record. Seen in this light, the case wasn't removable until Lockheed learned that it could remove the case unilaterally based on federal officer jurisdiction.

…

Because it's so important to the federal government to protect federal officers, removal rights under section 1442 are much broader than those under section 1441. Federal officers can remove both civil and criminal cases, while section 1441 provides only for civil removal. Unlike other defendants, a federal officer can remove a case even if the plaintiff couldn't have filed the case in federal court in the first instance. And removals under section 1441 are subject to the well-pleaded complaint rule, while those under section 1442 are not. Whereas all defendants must consent to removal under section 1441, a federal officer or agency defendant can unilaterally remove a case under section 1442.

…[W]here the timeliness of a federal officer's removal is at issue, we extend section 1442's liberal interpretation to section 1446. As far as the federal officer is concerned, the case isn't “removable” until the federal officer ground for removal is disclosed--otherwise, a single holdout defendant or a wily plaintiff can defeat the federal government's interest in providing a federal forum for its agents. We therefore hold that a federal officer defendant's thirty days to remove commence when the plaintiff discloses sufficient facts for federal officer removal, even if the officer was previously aware of a different basis for removal.