One way to remove a case to federal court that we haven't
discussed much is where the defendant is either a "federal
officer" (not terribly relevant to our line of work), or else
is a "person acting under that officer . . . for or relating
to any act under color of such office." 28 U.S.C.
§1442(a)(1). We haven't paid it much heed since the
disastrous Watson v. Philip Morris Cos., 551 U.S.
142 (2007), decision seemingly closed the door on cases involving
regulatory compliance. Our post on Watson is
here.
A recent decision by the en banc Fifth Circuit suggests that our
side should take another look at federal officer removal in certain
FDA regulatory compliance situations. See
Latiolais v. Huntington Ingalls, Inc., ___ F.3d
___, 2020 WL 878930 (5th Cir. Feb. 24, 2020) (en banc). In a rarity
for en banc decisions, Latiolais was unanimous,
save only a couple of concurrences in the result with no
opinion.
