By Tierra Jones on February 12, 2018

courtIn January 2018, a three-judge panel on the U.S. Court of Appeals for the Fifth Circuit vacated a district court’s remand of an asbestos case to state court for being untimely, based on a federal officer removal statute, 28 U.S.C § 1442 (“Statute”). Morgan v. Huntington Ingalls, Inc., No. 17-30523, 2018 WL 359275 (5th Cir. Jan. 11, 2018). The Court of Appeals found that the Statute allows for removal of a case within 30 days after the date a defendant received the transcript of an oral deposition providing a basis for removal, as opposed to the date on which the relevant deposition testimony was taken.


In February 2017, a former employee of Avondale Shipyards brought claims of negligence and strict liability in Louisiana state court against Huntington Ingalls, Inc. (Avondale) and several other defendants alleging, among other claims, that he contracted mesothelioma as a result of asbestos exposure during his work in 1966 as a “sheet metal tacker.”

In April 2017, 30 days after receiving the plaintiff’s deposition transcript which created a basis for removal under the Statute, several defendants removed the action to the U.S. District Court for the Middle District of Louisiana. The Statute allows for removal of state cases against certain federal officers 30 days after the defendant receives a copy of the initial pleading, or “[i]f the case stated by the initial pleading is not removable,” removal is proper “30 days after receipt . . . of a copy of an amended pleading, motion, order or other paper from which it may be first ascertained that the case is one which is or has become removable.” § 1442 (b)(3) (emphasis added).

The district court interpreted the relevant language of the statute as requiring removal within 30 days after the date of the oral deposition. The defendants did not remove the action until 38 days after the oral deposition. Consequently, the district court deemed removal untimely under the Statute and remanded the action back to state court.

The Court of Appeals’ Ruling

In January 2018, Huntington Ingalls, Inc., along with three other defendants appealed, challenging the district court’s interpretation of the timing requirement for removal under the Statute. The issue before the court was “whether oral deposition testimony can constitute other paper, and if so, whether the testimony or the transcript started the removal clock.”

The appellee argued that starting the clock at the time the transcript is received by the defendants, invites “manipulation” of the Statute. Since the Federal Rules of Civil Procedure do not set a deadline for obtaining a deposition transcript, the appellee maintained that the appellants’ interpretation of the statute would allow for them to “buy extra time” by delaying order of the transcript.

The appellants maintained that the deposition transcript constituted “other paper” within the meaning of the Statute. In support of this position, the appellants argued that starting the clock at the time the oral testimony is given could often result in defendants filing “protective removals” before the deposition is complete in order to preserve removal. This is especially true in asbestos cases where depositions often last months. The appellants further argued that starting the clock before a defendant receives the transcript is “counterintuitive,” in that it requires defendants to remove a case based on oral testimony of which it has no evidence.

The court began its analysis by noting that under the Statute, “a remand order is reviewed without a thumb on the remand scale.” As such, the Statute was not interpreted in favor of remand. The court then looked to the plain meaning and purpose of the Statute along with the policy considerations of each interpretation. To determine the plain meaning of “paper”, “copy” and “ascertain”, the court considered dictionary definitions. The Black’s Law Dictionary defines “paper” as “a written or printed document or instrument,” it defines “copy” as “the transcript or double of an original writing,” and it defines “ascertain” as “to make certain, exact, or precise’ or ‘to find out or learn with certainty.” According to the court, these definitions make clear that the Statute refers to information contained in a physical writing. The court continued by noting that “other papers” should be read similarly to the “amended pleading, motion, order,” language that it follows, which suggests that “other paper” refers to written documents.

As for the purpose of the Statute, the court explained that it purports to “reduce protective removals by defendants” and “discourage removals before their factual basis can be proven by a preponderance of the evidence through a simple and short statement.” The court then adopted the appellants’ position by emphasizing the importance of evidence, and noted, “To remove, a defendant needs more than his own averment in a removal petition that a favorable answer was provided during a deposition.” Finally, while it agreed with the appellee’s that allowing the defendant’s to “buy extra time” is a legitimate concern, the court did not afford much weight to this policy consideration.

At the conclusion of its opinion, the court adopted a bright line rule stating that under the Statute, the “removal clock begins ticking upon receipt of the deposition transcript.” The court vacated the district court’s remand and remanded the action back to the district court, finding that the appellants timely removed the action to federal court.