Papp v. Fore-Kast Sales Co. — civil — reversal — Jordan
The Third Circuit today reversed a district court decision that remanded a removed case to state court. The court held that the federal-officer removal statute extends to contractors who possess a colorable defense and that the contractor met that standard here. In practice, that means that the court extended the government-contractor defense to failure-to-warn cases. The court rejected the district court’s view that, to invoke the removal statute in a failure-to-warn suit, the defendant-contractor had to show that a federal officer directly prohibited the contractor from warning third parties. The opinion relied heavily on the court’s 2015 ruling in Defender Ass’n of Phila.
Today’s opinion contains an important appellate-practice holding. The court ruled that the appellee had forfeited an alternative basis for affirmance that it raised only in a two-sentence footnote describing the issue as fully briefed below. Allowing parties to preserve arguments through incorporation by reference would nullify the word limits, the court said, and “[t]hat cannot be permitted.” I’m no fan of incorporation by reference, but offhand I would have thought appellees could get away with it due to the rule that the court could affirm on any ground supported by the record.