PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 15-2851

_____________

STEVEN PAPP, individually and as Executor and Executor 

as Prosequendum of the Estate of MARY SUE PAPP

v.

FORE-KAST SALES CO., INC.; 

HONEYWELL INTERNATIONAL, INC., 

f/k/a Allied Signal, Inc., as successor-in-interest

to the Bendix Corporation; 

NEW BRUNSWICK PLATING CO., f/k/a 

New Brunswick Nickel and Chrome Plating; 

UNION CARBIDE CORPORATION; JOHN DOE 

CORPORATIONS 1-50;

JOHN DOE CORPORATIONS 51-100; GOODRICH 

CORP., f/k/a

B.F. Goodrich Co.; THE GOODYEAR TIRE & RUBBER 

CO.; 

THE BOEING COMPANY, individually and as successor by 

merger to the McDonnell Douglas Corporation

 The Boeing Company,

 Appellant 

_______________
2

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 3-13-cv-5940)

District Judge: Honorable Peter G. Sheridan

_______________

Argued

September 9, 2016

Before: JORDAN, VANASKIE, and KRAUSE, Circuit 

Judges.

(Filed: November 22, 2016)

_______________

Amaryah K. Bocchino

Jason A. Cincilla

Bryan P. Smith

Manion Gaynor & Manning

1007 N. Orange Street 

Tenth Floor

Wilmington, DE 19801

Martin F. Gaynor, III [ARGUED]

Nicholas D. Stellakis

Manion Gaynor & Manning

125 High Street

Boston, MA 02110
3

Brian D. Gross

Manion Gaynor & Manning

One Citizens Plaza

Suite 620

Providence, RI 02903

Marc S. Gaffrey

Hoagland Longo Moran Dunst & Doukas

40 Paterson Street

P.O. Box 480, Room 301

New Brunswick, NJ 08903

 Counsel for Appellant, Boeing Co.

Jeffrey P. Blumstein [ARGUED]

Robert E. Lytle

Robert G. Stevens, Jr.

Szaferman Lakind Blumstein & Blader

101 Grovers Mill Road, Suite 200

Lawrenceville, NJ 08649 

Joseph J. Mandia

Levy Konigsberg

800 Third Avenue

13th Floor

New York, NY 10022

 Counsel for Appellee

_______________

OPINION OF THE COURT 

_______________
4

JORDAN, Circuit Judge.

Steven Papp filed this failure-to-warn product liability 

suit against The Boeing Company in the Superior Court of 

New Jersey, alleging that his late wife, Mary,1 was made ill 

by exposure to asbestos from a Boeing aircraft. Boeing

removed Papp’s failure-to-warn suit to the United States 

District Court for the District of New Jersey on the basis of 

the federal officer removal statute, 28 U.S.C. § 1442(a)(1). 

According to Boeing, it was acting as a government 

contractor when it engaged in the allegedly tortious conduct. 

After removal, Papp filed a motion to remand the case to state 

court, which the District Court granted. The District Court 

ruled that Boeing had failed to meet a “special burden” of 

establishing that a federal officer or agency affirmatively 

prohibited Boeing from warning third parties of the dangers 

of asbestos found in planes manufactured in the midtwentieth century. Because we conclude that the federal 

officer removal statute extends to contractors who possess a 

colorable federal defense, and that Boeing made a sufficient 

showing of such a defense at the time of removal, we will 

reverse. 

I. BACKGROUND

Papp, individually and on behalf of Mary’s estate, 

alleges that Mary suffered secondary “take home” asbestos 

exposure while washing the work clothes of her first husband, 

Robert Keck. Keck had several jobs that exposed him to 

 

1 For clarity, and intending no disrespect by undue 

familiarity of address, throughout this opinion we refer to 

Mary Papp as “Mary” and to Steven Papp as “Papp.” 
5

asbestos, including one for the New Brunswick Plating Co. 

(“New Brunswick”) in the late 1970s. While working for

New Brunswick, Keck sandblasted the landing gear of World 

War II military cargo planes to prepare the gear for repairs. 

Papp contends that that process resulted in Keck having 

airborne asbestos fibers adhere to his clothing so that Mary, 

who handled the clothes, inhaled the asbestos. 

On August 12, 2013, Papp sued a host of companies in 

New Jersey, alleging injuries to Mary from exposure to 

asbestos. He filed his First Amended Complaint (the 

“Complaint”) on August 16, 2013, adding Boeing as a 

defendant, both individually and as successor-by-merger to 

the McDonnell Douglas Corporation. The Complaint did not 

indicate which Boeing or Douglas aircraft was claimed to 

have been the source of Mary’s asbestos exposure. At her

deposition taken on September 5, 2013, however, Mary 

specified that the landing gear Keck sandblasted was for a

military cargo plane called the C-47. The C-47 was built by 

the Douglas Aircraft Company, a predecessor company to 

Boeing,

2

for the United States Navy and Air Force during 

World War II. Once Boeing learned the identity of the 

aircraft, it promptly removed the case to federal court 

pursuant to the federal officer removal statute, 28 U.S.C. 

§ 1442(a)(1). That statute permits a defendant to remove a 

case to federal court from the state court where suit was 

originally filed, provided the allegedly culpable behavior took 

 

2 For ease of reference, and as the District Court did, 

we refer to the Douglas Aircraft Company, McDonnell 

Douglas Corporation, and The Boeing Company collectively 

as “Boeing,” unless otherwise specified. 
6

place while the defendant was acting under the direction of a 

federal officer or agency. 28 U.S.C. § 1442(a)(1).

The federal officer removal statute requires that the 

defendant possess a colorable federal defense. In re 

Commonwealth’s Motion to Appoint Counsel Against or 

Directed to Def. Ass’n of Phila., 790 F.3d 457, 466 (3d Cir. 

2015) (“Defender Ass’n”), cert. denied 136 S. Ct. 980 & 994 

(2016). Boeing asserted that it was entitled to the federal 

defense of government contractor immunity because the C-47 

was produced for, and under the specific supervision of, the 

United States military. More specifically, Boeing argued that

the government’s oversight extended to labels and warnings 

for all parts of the aircraft, including those parts laden with 

the asbestos to which Keck, and in turn Mary, would later be 

exposed. Boeing also states that, to the extent that the 

dangers of asbestos were known at the time, the government’s 

knowledge of those dangers was superior to that of Boeing. 

As part of its notice of removal, Boeing included the

declaration of Larry Fogg (the “Fogg Declaration”). Fogg 

was a longtime employee of Douglas, who attested, based on 

his experience and review of the company’s contracts and 

records, to the factual underpinnings of Boeing’s legal 

position. 

Papp moved to remand the case back to state court,

and, of course, Boeing opposed remand. The District Court

granted the motion. It held that, because Boeing was a 

contractor and not a federal officer, it had a “special burden” 

to demonstrate that it was acting under the control of the 

federal government. (App. at 6.) The Court said that, to 

prove removal jurisdiction, Boeing was required to show that 

it performed “the complained-of activity at the direction of 
7

official federal authority.” (App. at 8 (quotation marks and 

citation omitted)). Because the allegedly wrongful behavior

was the failure to warn third parties of asbestos, the Court

concluded that Boeing must show “that a federal officer or 

agency directly prohibited Boeing from issuing, or otherwise 

providing, warnings as to the risks associated with exposure 

to asbestos contained in products on which third-parties ...

worked or otherwise provided services.” (App. at 11.) Using 

that standard, the Court decided that Boeing did not meet its 

special burden and that remand to state court was proper. 

Boeing timely appealed. 

II. DISCUSSION3

A. THE FEDERAL OFFICER REMOVAL STATUTE

“We review de novo whether the District Court had 

subject matter jurisdiction[,]” including a court’s decision to 

remand for a lack of jurisdiction. Defender Ass’n, 790 F.3d at

465. At the heart of the present jurisdictional dispute is the 

federal officer removal statute, 28 U.S.C. § 1442(a)(1). As 

with any removal from state court, removal under 

§ 1442(a)(1) begins with the filing of a notice “containing a 

short and plain statement of the grounds for removal.” 28 

U.S.C. § 1446(a). Because a motion to remand shares an 

essentially identical procedural posture with a challenge to

subject matter jurisdiction under Federal Rule of Civil 

 

3 The District Court’s jurisdiction is squarely at issue 

in this case, as discussed below. We have jurisdiction to 

review the District Court’s order to remand pursuant to 28 

U.S.C. §§ 1291 and 1447(d).
8

Procedure 12(b)(1), it is properly evaluated using the same 

analytical approach. Leite v. Crane Co., 749 F.3d 1117, 1121 

(9th Cir.), cert. denied, 135 S. Ct. 361 (2014); see also

Defender Ass’n, 790 F.3d at 466 (applying same 12(b)(1) 

framework to challenge of jurisdiction after removal). 

“A challenge to subject matter jurisdiction under Rule 

12(b)(1) may be either a facial or a factual attack.” Davis v. 

Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial 

attack “challenges subject matter jurisdiction without 

disputing the facts alleged in the [notice of removal], and it 

requires the court to consider the allegations ... as true.” Id.

(internal quotation marks and citation omitted). A factual 

attack, in contrast, disputes “the factual allegations underlying 

the [] assertion of jurisdiction,” and involves the presentation 

of competing facts. 4 Id. Because Papp challenges 

jurisdiction facially, “we construe the facts in the removal 

 

4 While a factual attack on jurisdiction after removal is 

permissible, such a challenge should only be considered to 

the extent that the facts presented, if persuasive, would 

directly undermine one of the four elements of Section 1442 

that must be present to confer jurisdiction. See infra at n.5 

and related text. To the extent that such a challenge bleeds 

into the merits of the case, the District Court ought not 

address it in terms of jurisdiction. See Davis, 824 F.3d at 

348; see also Cuomo v. Crane Co., 771 F.3d 113, 116 (2d Cir. 

2014) (“To the extent that [a plaintiff’s] competing testimony 

challenges the accuracy or reliability of [a defendant’s] 

evidence, it does not undercut [the defendant’s] right to 

removal, but rather raises the very type of factual dispute 

about the validity of the defense that should be submitted to 

the judgment of a federal court.”).
9

notice in the light most favorable to [Boeing].” Defender 

Ass’n, 790 F.3d at 466.

The federal officer removal statute has existed in 

varying forms for some two-hundred years. Its central aim is

protecting officers of the federal government from 

interference by litigation in state court while those officers are 

trying to carry out their duties. Willingham v. Morgan, 395 

U.S. 402, 405-06 (1969). The statute has been amended over 

the years to permit removal in a broader set of circumstances. 

As currently framed and codified at 28 U.S.C. § 1442(a)(1), it 

provides, in relevant part: 

A civil action ... commenced in a State court 

and that is against ... any of the following may 

be removed by them to the district court of the 

United States for the district and division 

embracing the place wherein it is pending: (1) 

The United States or any agency thereof or any 

officer (or any person acting under that officer) 

of the United States or of any agency thereof, in 

an official or individual capacity, for or relating 

to any act under color of such office ...

The “or any person acting under that officer” language 

effects an expansion of coverage that is relevant here. But the 

statute itself constitutes a break with tradition. “Section 

1442(a) is an exception to the well-pleaded complaint rule, 

under which (absent diversity) a defendant may not remove a 

case to federal court unless the plaintiff's complaint 

establishes that the case arises under federal law.” Kircher v. 

Putnam Funds Trust, 547 U.S. 633, 644 n.12 (2006) (internal 

quotation marks and citation omitted). “Unlike the general 
10

removal statute, the federal officer removal statute is to be 

‘broadly construed’ in favor of a federal forum.” Defender 

Ass’n, 790 F.3d at 466-67 (quoting Sun Buick, Inc. v. Saab 

Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994)); see also

Willingham, 395 U.S. at 406 (noting that the scope of the 

federal officer removal statute “is not narrow or limited”). 

We have held that, in order to properly remove a case

under § 1442(a)(1), a defendant must meet four requirements: 

(1) [the defendant] is a “person” within the 

meaning of the statute; (2) the [plaintiff’s]

claims are based upon the [defendant’s] conduct 

“acting under” the United States, its agencies, 

or its officers; (3) the [plaintiff’s] claims against 

[the defendant] are “for, or relating to” an act 

under color of federal office; and (4) [the 

defendant] raises a colorable federal defense to 

the [plaintiff’s] claims.

Defender Ass’n, 790 F.3d at 467 (citation omitted).

5 We 

address each requirement in turn. 

1. Boeing is a “person” within the meaning 

of the statute 

Boeing’s status as a “person” within the meaning of 

the statute is undisputed. Because §1442(a)(1) does not itself 

define the term “person,” we look to § 1 of Title I of the 

 

5 Although the District Court’s opinion seemed to elide 

the distinction between the “acting under” and “for or relating 

to” requirements, we address them separately, in keeping with 

the test we announced in Defender Ass’n., 790 F.3d at 467. 
11

United States Code, which defines “person” to “include 

corporations, companies, associations, firms, partnerships, 

societies, and joint stock companies, as well as individuals.” 

Under this definition, Boeing, a corporation, is in legal fact a 

person.

2. Boeing was “acting under” a federal 

officer or agency 

The District Court’s decision to remand this case was 

based on its conclusion that Boeing had failed to demonstrate 

that it was “acting under” a federal officer or agency when it 

did not warn of the dangers associated with asbestos. That

conclusion was predicated on two errors. First, the Court 

wrongly believed that, because Boeing was a federal 

contractor and not a federal officer, it faced a “special 

burden” to demonstrate that it was acting under the control of 

the federal government. (App. at 6.) Second, the Court 

mistakenly posited that the only way Boeing could show it 

acted under a federal officer was to show “that a federal 

officer or agency directly prohibited Boeing” from warning 

third-parties of asbestos risks. (App. at 11.)

The “acting under” requirement, like the federal 

removal statute overall, is to be “liberally construe[d]” to 

cover actions that involve “an effort to assist, or to help carry 

out, the federal supervisor’s duties or tasks.” Ruppel v. CBS 

Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) (quoting Watson

v. Philip Morris Cos., Inc., 551 U.S. 142, 152 (2007)); see 

also Defender Ass’n, 790 F.3d at 468 (construing “acting 

under” liberally). The classic case of such assistance as it 

relates to government contractors is when “the private 

contractor acted under a federal officer or agency because the 
12

contractors ‘help[ed] the Government to produce an item that 

it need[ed].’” Defender Ass’n, 790 F.3d at 468 (quoting 

Watson, 551 U.S. at 153). When, as occurred in this instance, 

“the federal government uses a private corporation to achieve 

an end it would have otherwise used its own agents to 

complete,” that contractor is “acting under” the authority of a 

federal officer. Ruppel, 701 F.3d at 1181; see also Defender 

Ass’n, 790 F.3d at 468-70 (discussing different ways in which 

an entity might “act under” a federal officer). Thus, the 

proposition that contractors bear some additional “special 

burden” is inconsistent with both precedent and the 

underlying objectives of the removal statute. 

Further, we have explicitly rejected the notion that a 

defendant could only be “acting under” a federal officer if the

complained-of conduct was done at the specific behest of the 

federal officer or agency. See Defender Ass’n, 790 F.3d at 

470 (“[W]e disagree that the [defendant] is required to allege 

that the complained-of conduct itself was at the behest of a 

federal agency.”). Instead, we have held that “[i]t is sufficient 

for the ‘acting under’ inquiry that the allegations are directed 

at the relationship between the [defendant] and the [federal 

officer or agency].” Id.

Considered under the proper standard, it is plain that

the allegations against Boeing all involve conduct that 

occurred when it was “acting under” the direction of a federal 

officer or agency. In fact, we are presented here with an

archetypal case. Papp’s allegations are directed at actions 

Boeing took while working under a federal contract to 

produce an item the government needed, to wit, a military

aircraft, and that the government otherwise would have been 

forced to produce on its own. That being so, Boeing easily 
13

satisfies the “acting under” requirement of the § 1442(a)(1)

inquiry. 

3. The Complaint rests on acts done “for or 

relating to” a federal officer or agency 

The next requirement, often referred to as the “nexus” 

or “causation” requirement, demands that the alleged conduct 

have been undertaken “for or relating to” a federal office. 

Under the prior version of the statute, which required a 

showing that a defendant had been sued “for any act under 

color of [federal] office,” 28 U.S.C. § 1442(a)(1) (2011), a 

defendant had to “show a nexus, a causal connection between 

the charged conduct and asserted official authority.” 

Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999)

(quoting Willingham, 395 U.S. at 409 (internal quotation

marks omitted)). But given the addition of the words “or 

relating to” in the 2011 revision of the statute – a change that 

was intended to “broaden the universe of acts that enable 

Federal officers to remove [suits] to Federal court,” H.R. Rep. 

No. 112-17, pt. 1, at 6 (2011) – we have taken a more 

permissive view of this requirement. Specifically, we have 

held that, in order to meet the “for or relating to” requirement, 

“it is sufficient for there to be a connection or association 

between the act in question and the federal office.” Defender 

Ass’n, 790 F.3d at 471 (internal quotation marks omitted). 

Here, there is indeed a connection or association

between the acts complained of by Papp and the federal 

government. At the heart of Papp’s claim against Boeing is 

the failure to provide sufficient warning about the dangers of 

asbestos in the landing gear of the C-47 aircraft. In its notice 

of removal, Boeing asserts that the C-47 was manufactured 
14

“for the United States Armed Forces under the direct 

supervision, control, order, and directive of federal 

government officers acting under the color of federal office,” 

(App. at 39), and that that control extended to “the content of 

written materials and warnings associated with such aircraft,” 

(id. at 41). Those alleged facts alone satisfy the “for or 

relating to” requirement, as they demonstrate a direct 

connection or association between the federal government

and the failure to warn described by Papp. As a result,

Boeing has satisfied the third requirement of § 1442(a)(1). 

4. Boeing raises a colorable federal 

defense

The fourth and final requirement to demonstrate 

removal jurisdiction under § 1442(a)(1) is that the defendant 

raise a “colorable federal defense.” Defender Ass’n, 790 F.3d 

at 467. Boeing asserted in its notice of removal that it was 

entitled to the “military contractor defense” announced in 

Boyle v. United Techs. Corp., 487 U.S. 500 (1988). Under 

Boyle, a federal contractor cannot be held liable for a state 

tort if, in the context of the work at issue, “(1) the United 

States approved reasonably precise specifications; (2) the 

equipment conformed to those specifications; and (3) the 

supplier warned the United States about the dangers in the use 

of the equipment that were known to the supplier but not to 

the United States.” Id. at 512. Because Papp’s claim against 

Boeing is predicated on a failure-to-warn theory, the Boyle

test could be rephrased to cover Boeing’s actions as follows: 

(1) the government approved specifications for the C-47, 

including certain warnings for the plane; (2) Boeing provided 

the warnings required by the government; and (3) Boeing told

the government about any asbestos hazards that were then 
15

known to it but not to the government. See Leite, 749 F.3d at

1123 (noting that the government contractor defense is 

established by the defendant showing that “(1) the 

[government] exercised its discretion and approved certain 

warnings for [the defendant]’s products, (2) [the defendant] 

provided the warnings required by the [government], and (3) 

[the defendant] warned the [government] about any asbestos 

hazards that were known to [the defendant] but not to the 

[government]”).

6

 

Taking the undisputed facts from the notice of 

removal, including the Fogg Declaration, as true, Boeing has 

stated sufficient facts to make out a colorable defense. As to 

the first element of the Boyle test, Boeing asserted that the 

government exercised complete control over “any markings 

or labels on [Boeing] aircraft or aircraft components,” that in-

 

6 We are not alone in permitting defendants to raise the 

government contractor defense from Boyle in failure-to-warn 

cases; the Second, Fourth, Fifth, Sixth, Seventh, Ninth, and 

Eleventh Circuits have all allowed the defense in such cases. 

See In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 

626, 629-30 (2d Cir. 1990); Ripley v. Foster Wheeler LLC, __ 

F.3d __, No. 15-1918, 2016 WL 6441049, at *2 (4th Cir. 

Nov. 1, 2016); Perez v. Lockheed Corp. (In re Air Disaster at 

Ramstein Air Base, Germany, on 8/29/90), 81 F.3d 570, 576 

(5th Cir.), modified on other grounds, 88 F.3d 340 (5th Cir. 

1996) (per curiam); Tate v. Boeing Helicopters (Tate II), 140 

F.3d 654, 656 (6th Cir. 1998); Oliver v. Oshkosh Truck Corp., 

96 F.3d 992, 1003-04 (7th Cir. 1996); Snell v. Bell Helicopter 

Textron, Inc., 107 F.3d 744, 749-50 (9th Cir. 1997); Dorse v. 

Eagle–Picher Indus., Inc., 898 F.2d 1487, 1489 (11th Cir. 

1990).
16

person meetings occurred between Boeing and government 

personnel where warnings were discussed, and that “[t]he 

contents, including any warnings, of any technical manuals... 

were directed, reviewed, and approved by” the government. 

(Opening Br. at 19-20.) 

As to the second element, Boeing’s notice of removal 

and the attached Fogg Declaration are explicit that Boeing 

followed every specification set forth by the government 

when building the C-47 aircraft. 

Finally, as to the third element, the Fogg Declaration

states that, at the time the C-47 aircraft was being built, 

Boeing was not aware of the health hazards of asbestos. 

Furthermore, some of the documents produced by Boeing 

suggest that the government had a superior understanding of 

the risks of asbestos.7 Because we are bound to accept 

Boeing’s assertion that the risks were not known to it, Boeing

did not have any superior knowledge that it withheld from the 

government. 

The District Court took issue with several points in the 

Fogg Declaration, in particular Fogg’s assertion that the 

government had oversight of the warnings related to the 

aircraft. The Court seemed especially troubled that Fogg did 

not provide thorough citations to the documents delivered 

with his declaration. Given the posture of the case though, 

that objection is misplaced. A defendant “need not win his 

case before he can have it removed.” Willingham, 395 U.S. at 

407. At the removal stage, Boeing needed only show that its 

 

7 Examples of that may be found in bulletins, 

pamphlets, and technical manuals provided in the record. 
17

asserted Boyle defense was “colorable,” which is to say that 

the defense was “legitimate and [could] reasonably be 

asserted, given the facts presented and the current law.” 

Colorable Claim, BLACK’S LAW DICTIONARY (10th ed. 

2014); see also Hagen v. Benjamin Foster Co., 739 F. Supp. 

2d 770, 782-83 (E.D. Pa. 2010) (“[A] defense is colorable for 

purposes of determining jurisdiction under Section 1442(a)(1) 

if the defendant asserting it identifies facts which, viewed in 

the light most favorable to the defendant, would establish a 

complete defense at trial.”). It has done so and, not 

insignificantly, the facts presented were not contested in the 

District Court. If Boeing is able to prove at trial by a 

preponderance of the evidence the facts alleged in its notice 

of removal, including the facts asserted in the Fogg 

Declaration, it will have established a prima facie defense 

under Boyle and may prevail on the merits. That is sufficient 

to constitute a “colorable” federal defense. Boeing’s notice 

of removal thus met the fourth and final requirement of 

§ 1442(a)(1).

Having satisfied all of § 1442(a)(1)’s requirements, 

Boeing established its entitlement to proceed in federal court, 

but Papp makes one further statement to forestall that result. 

B. TIMELINESS

In addition to challenging the merits of Boeing’s 

removal argument, Papp asserts, in the alternative, that 

Boeing did not timely seek removal. That assertion, made in 

a footnote, reads as follows: 

Because the Court below determined that 

remand was jurisdictionally required under the 
18

second grounds, it did not deem it necessary to 

address the timeliness issue. However, since 

the issue of jurisdiction[8]is de novo before this 

Court, should [the District Court’s] stated 

rationale for remand not be accepted, it is 

respectfully submitted that the issue of 

timeliness, which was fully briefed by both 

parties below, would be an appropriate subject 

for consideration.

(Ans. Br. at 5 n.4 (internal citations to the record omitted).) It 

is well established that “[f]ederal courts of appeals refuse to 

take cognizance of arguments that are made in passing 

without proper development.” Johnson v. Williams, __ U.S. 

__, 133 S. Ct. 1088, 1095 (2013); see also Reynolds v. 

Wagner, 128 F.3d 166, 178 (3d Cir. 1997) (“[A]n argument 

consisting of no more than a conclusory assertion ... will be 

deemed waived.”). The footnote, standing alone, does not 

sufficiently present Papp’s argument on the issue of 

timeliness. Indeed, it is not even phrased as an argument, but 

rather simply states that the issue would be “appropriate for 

consideration.” (Ans. Br. at 5 n.4.) The only sense in which 

Papp makes an argument at all is by reference to what he said 

somewhere else, trying to incorporate arguments he made 

before the District Court. To permit parties to present

arguments in that fashion would effectively nullify the page 

 

8 Though not necessary to the resolution of this issue, 

it bears mention that timeliness of removal under the federal 

officer removal statute is not, in fact, a jurisdictional issue. 

See Farina v. Nokia Inc., 625 F.3d 97, 114 (3d Cir. 2010) (“It 

is well settled that § 1446(b)’s thirty-day time limit for 

removal is a procedural provision, not a jurisdictional one.”).
19

or word limits imposed by the appellate and local rules. See

Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-

24 (10th Cir. 1998) (“Allowing litigants to adopt district court 

filings would provide an effective means of circumventing 

the page limitations on briefs set forth in the appellate rules 

....”). That cannot be permitted, and we join our fellow 

Circuits in declining to do so. See id. (collecting cases).

9

 

Papp has therefore forfeited any argument as to timeliness.10

 

9 As noted by the Tenth Circuit in Gaines-Tabb, the 

First, Fourth, Fifth, Seventh, and Eighth Circuits have already 

endorsed this rule. 160 F.3d at 623-24. Since the time that 

Gaines-Tabb was decided, the rule has also been adopted by 

the Second, Frank v. United States, 78 F.3d 815, 833 (2d Cir. 

1996), vacated on other grounds, 521 U.S. 1114 (1997); and 

Sixth Circuits, Northland Ins. Co. v. Stewart Title Guar. Co., 

327 F.3d 448, 453 (6th Cir. 2003). Cf. Sandgathe v. Maass, 

314 F.3d 371, 380 n.8 (9th Cir. 2002) (admonishing counsel 

for incorporating arguments by reference, but rejecting those 

arguments on the merits).

10 Even were that issue preserved, it would not change 

our conclusion on the matter. Papp’s principal argument 

relies on the notion that Boeing’s removal was untimely 

because it came 45 days after the filing of the Complaint, 

outside of the 30 day window provided by the statute. The 

statute also provides, however, that, “if the case stated by the 

initial pleading is not removable” the notice of removal may 

be filed within 30 days following receipt 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.” 28 U.S.C. § 1446(b)(3). Here, Boeing asserts 

that it was not aware that Papp was making a claim related to 
20

III. CONCLUSION

For the foregoing reasons, we will reverse. 

 

Boeing’s role as a federal contractor until the deposition of 

Mary Papp, during which Boeing learned for the first time 

that the allegations against it related to its production of the 

C-47 aircraft. 

Papp concedes that answers to deposition questions 

“can constitute ‘other paper’ for purposes of triggering the 

time for removal under 28 U.S.C. § 1446(b).” (App. at 120). 

He argues, however, that Boeing should have been able to 

ascertain from its own records what specific aircraft Keck 

was working on based on Keck’s place and timing of 

employment, and therefore determine whether there was a 

federal defense available. Setting aside the fact that nothing 

in the record supports the assertion that Boeing could have 

made such a deduction, Boeing simply was not required to do 

so. See In re Asbestos Prod. Liab. Litig. (No. VI), 770 F. 

Supp. 2d 736, 740 (E.D. Pa. 2011) (citing Foster v. Mutual 

Fire Marine & Inland Ins. Co., 986 F.2d 48, 53 (3d 

Cir.1993), rev’d on other grounds, Murphy Bros., Inc. v. 

Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) (noting 

that we look only to the “four corners of the pleading” to see 

if it “informs the reader, to a substantial degree of specificity, 

that all elements of federal jurisdiction are present,” and ask 

“not what the defendant knew, but what the relevant 

document said.”)). As a result, the relevant date for 

determining the timeliness of Boeing’s motion to remove was 

the September 5, 2013 deposition of Mary Papp, and 

Boeing’s October 4, 2013 filing was therefore timely.