HAYNES, Circuit Judge:
Elliott Co. ("Elliott") appeals the district court's order remanding this action to Louisiana state court, and its order denying Elliott's motion for reconsideration. For the following reasons, we VACATE the district court's remand order and REMAND this case to the district court for proceedings consistent herewith.
Briefly stated, this case involves a lawsuit by Humphries against various defendants arising out of Humphries's alleged work-related exposure to asbestos and subsequent illness. Relevant here, one of the original defendants Humphries sued was E.I. du Pont de Nemours and Company ("DuPont"), which allegedly constructed and operated the federal facility at which Humphries was exposed to asbestos. On August 12, 2013, Humphries filed an amended petition, in which he added for the first time claims against Elliott, which contracted with DuPont to design and manufacture turbines for use at the federal facility in question. The next day, before Elliott was served, DuPont removed the case to federal court under 28 U.S.C. § 1442(a)(1), asserting what is known as a "government contractor defense."
After Humphries settled with DuPont and others, the district court sua sponte remanded the case to state court after first concluding that no federal questions remained and then engaging in an analysis of whether it should maintain supplemental jurisdiction over the remaining state law claims under 28 U.S.C. § 1367 (the "Remand Order").
We have jurisdiction to review Elliott's appeal of the Remand Order and the Reconsideration Order pursuant to 28 U.S.C. §§ 1291 & 1447(d).
Section 1442(a) provides that:
The purpose of § 1442(a)(1) is to "ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties." Arizona v. Manypenny, 451 U.S. 232, 241, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981); see
Removal under § 1442(a), unlike removal under § 1441, does not require the consent of co-defendants. Compare 28 U.S.C. § 1442(a) with 28 U.S.C. § 1441; see also Doe v. Kerwood, 969 F.2d 165, 168 (5th Cir.1992) ("[T]he ability of federal officers to remove without the consent of co-defendants is based on the language of [§ 1442].... Because the Red Cross must rely on the general removal statute, 28 U.S.C. § 1441, we hold that the Red Cross must obtain the consent of co-defendants."). Notably, even when removal is effected pursuant to § 1441, only co-defendants who have been "properly joined and served" must join in or consent to the removal. 28 U.S.C. § 1446(b)(2)(A) (emphasis added). Because DuPont filed its notice of removal before Elliott had been served with notice of this action, Elliott asserts that requiring it to file an additional notice of removal or join in DuPont's notice of removal would be superfluous, futile, and a "narrow, grudging interpretation" of § 1442(a)(1). Willingham, 395 U.S. at 407, 89 S.Ct. 1813; see also United States v. Tirado-Tirado, 563 F.3d 117, 123 (5th Cir.2009) ("The law does not require the doing of a futile act.") (quotation marks omitted). We agree.
Humphries seizes on a sentence in the case of Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989) that "it is the raising of a federal question in the officer's removal petition that constitutes the federal law under which the action against the federal officer arises for Art. III purposes." Id. at 136, 109 S.Ct. 959 (emphasis added). In context, however, it is clear that Mesa does not announce a rule requiring defendants in cases already removed to federal court to file a meaningless "notice of removal" or unnecessary "joinder" in order to preserve their right to a federal forum. Indeed, Mesa involved two defendants in two different cases and had nothing to do with the question of what procedure governs a subsequently-served defendant that wishes to avail itself of a federal forum. We hold that where a party removes a case to federal court pursuant to § 1442, a later-served defendant preserves its right to a federal forum under § 1442 by asserting the grounds for same in its answer filed after removal. Here, Elliott asserted its government contractor defense in the very first pleading it filed, such that it preserved its claim to a federal forum, and the district court erred in holding to the contrary.
Having addressed that question, we now determine whether any other questions should be addressed by our court at this juncture. The parties debate whether Elliott's answer asserts a "colorable" government contractor defense supporting