Recently, in Moore v. Elec. Boat Corp., No. 21-1566, 2022 WL 278535 (1st Cir. Jan. 31, 2022), a government contractor-defendant successfully appealed remand based on 28 U.S.C. § 1442, the so-called Federal Officer Removal Statute.
Moore serves as a reminder – especially to asbestos defendants – that contractors acting under the direction of a branch of the military (or any U.S. agency) should determine the extent of the government’s involvement. A fact-intensive inquiry, such evidence may be sufficient for removal under the Federal Officer Removal Statute and may allow the contractor-defendant to assert certain key federal defenses such as government-contractor immunity, sovereign immunity, and protection under the Federal Torts Claim Act.
During the mid-1960s, Electric Boat Co. (“Electric Boat”) built the USS Francis Scott Key (“Francis Scott”) for the U.S. Navy at Electric Boat’s shipyard in Connecticut. Moore, 2022 WL 278535 at *4. Plaintiff Michael Moore (“Moore”) served as an electronics technician aboard the Francis Scott from 1965 until 1969. Id.
In 2020, Moore filed an asbestos-related product liability action against Electric Boat in Rhode Island state court alleging exposure to asbestos during his time on the Francis Scott caused his lung cancer. Id. Electric Boat developed evidence that the Navy oversaw every aspect of the design, construction, maintenance, and modification of its submarines, and removed the case to federal court based on the Federal Officer Removal Statute. Id. at *5. The U.S. District Court for the District of Rhode Island granted Moore’s motion to remand, reasoning Electric Boat “failed to meet all the proper requirements of 28 U.S.C. § 1442.” Id. Electric Boat appealed.
First Circuit’s Decision
Pursuant to 28 U.S.C. § 1442(a)(1), removal is proper when a defendant demonstrates he:
(1) acted under a federal officer’s authority; and
(2) is charged with conduct carried out “for or relating to” the asserted official authority.
Although the statute only outlines two factors, case law supports consideration of a third factor – that federal officer removal must be predicated on the allegation of a colorable federal defense. See Mesa v. California, 489 U.S. 121, 129 (1989).
The first factor was not at issue. Moore did not dispute that Electric Boat acted under the Navy’s supervisory authority during the entire course of the vessel’s construction. Moore, 2022 WL 278535 at *6.
As for the second factor, Moore emphasized Electric Boat’s alleged tortious conduct – that it failed to provide proper equipment, did not take adequate safety measures, and disobeyed state and federal regulations. Id. at *7-8. Nevertheless, the Court found it sufficient that, based on the evidence, the Navy controlled and directed Electric Boat’s operational details. The Navy assigned Moore, an enlisted serviceman, to the Electric Boat shipyard while Navy personnel oversaw every aspect of construction, including the use of asbestos. Id. at *8. Thus, Electric Boat’s alleged tortious conduct was related to the Navy’s supervisory authority on the project, satisfying the second factor of the Federal Officer Removal Statute.
Turning to the third factor, Moore claimed that Electric Boat could not establish a federal defense. Id. at *10-11. The Court determined that “a colorable federal defense need not be “clearly sustainable . . . rather, a federal defense is colorable unless it is immaterial and made solely for the purpose of obtaining jurisdiction or wholly insubstantial and frivolous.” Id. at *11. Based on this test, the Court analyzed the three asserted defenses – government-contractor immunity, sovereign immunity, and protection under the Federal Torts Claim Act – to find that Electric Boat met its burden to show that each defense was “colorable” such that removal under the Federal Officer Removal Statute was proper.
For government contractor-defendants, this case is useful precedent to rely on when considering removal under the Federal Officer Removal Statute.