Garner v. Phoenix Air Group, Inc.

Background

The survivors of three flight-crew members who died in a plane crash sued Phoenix Air Group, Inc. for negligence in Alameda Superior Court. The crash occurred during a training exercise off the California coast. At the time, Phoenix Air provided commercial airplanes to the Navy for weapons-testing exercises under a contract with the U.S. Department of the Interior. Phoenix Air outfitted the planes with special mission equipment, and the contract imposed technical, personnel, maintenance, and mechanical requirements.

Phoenix Air removed the case to federal court under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). The plaintiffs moved to remand, which means asking the federal court to send the case back to state court.

Court’s Analysis

The court held that Phoenix Air satisfied the requirements for removal under § 1442(a)(1). First, Phoenix Air was involved in assisting or carrying out the duties of a federal superior because it performed work for the Department of the Interior and the Navy. Second, the circumstances underlying the plaintiffs’ claims resulted from Phoenix Air’s federal work.

Third, Phoenix Air asserted a colorable federal defense. A colorable defense is one that is plausible enough to support removal, even if the defendant has not yet shown that it will ultimately succeed. Phoenix Air relied on the government-contractor defense, which can protect a government contractor from tort liability arising from compliance with federal contract specifications. The exact cause of the crash was unknown, and the National Transportation Safety Board had not finalized its incident report when the complaint was filed. But the court found it conceivable that Phoenix Air’s potential liability could arise from its compliance with the government contract’s specifications.

The court emphasized that Phoenix Air did not have to win on the government-contractor defense before removing the case. The defense only had to be more than immaterial, wholly insubstantial, or frivolous. The court concluded that it cleared that low threshold. Because it found removal valid under § 1442(a)(1), the court did not separately consider Phoenix Air’s alternative basis for removal—federal-enclave jurisdiction.

Ruling

Judge Alex G. Tse denied the plaintiffs’ motion to remand. The opinion decided only whether the case was properly removed to federal court; it did not decide whether Phoenix Air was negligent or whether the government-contractor defense would ultimately succeed.