The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
ORDER DENYING MOTIONS TO REMAND
On April 25, 2012, Plaintiffs filed motions to remand in this Court,
both under this case number, 12-cv-744-BTM-DHB, and under
12-cv-819-IEG-DHB (ECF Nos. 78 & 82 in 12-cv-744 and ECF Nos. 10 & 14
in 12-cv-819). The cases have since been consolidated.*fn1
See ECF No. 97.*fn2 Since the two motions to remand are
virtually identical, the Court addresses both motions together.
Oppositions to the motions were filed by defendants Crane Co. (ECF No.
95), VIAD Corp. (ECF No. 103), Foster Wheeler Energy Corp. (ECF No.
106), CBS Corporation (ECF No. 107), Carrier Corp. (ECF No. 108), and
Buffalo Pumps, Inc. (ECF No. 109) (collectively, "Defendants"). VIAD
Corp. and Carrier Corp. has since been dismissed from the action. See
ECF Nos. 177 & 201. For the reasons below, the Court DENIES
Plaintiffs' motions to remand.
Plaintiffs allege that Plaintiff Donald Willis suffers from malignant mesothelioma as a result of his exposure to asbestos while working for the U.S. Navy. Plaintiffs further allege that Defendants manufactured and/or supplied products containing asbestos on the Navy ships on which Mr. Willis worked.
Plaintiffs brought the two actions in state court, but both were timely removed by Defendants pursuant to 28 U.S.C. § 1442(a)(1). Under that provision, an action may be removed to federal court if brought against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) ... for or relating to any act under color of such office..."
In general, a defendant can only remove a case to federal court if the plaintiff could have brought the action there originally. However, federal officer removal is an exception, whereby "suits against federal officers may be removed despite the nonfederal cast of the complaint" as long as the defense relies on federal law. Jefferson County, Ala. v. Acker, 527 U.S. 423, 431 (1999). Because federal officer removal looks to the defense and not to the complaint, the fact that Plaintiffs have disclaimed "any recovery for injuries caused by the directions or instructions of any federal officer," Mots. to Remand (ECF No. 78-2 at 3 & ECF No. 82-2 at 3), is irrelevant to whether Defendants have validly removed the action. See Jefferson County, 527 U.S. at 431 ("[T]he federal-question element is met if the defense depends on federal law."). Other courts in this district have reached the same conclusion. See, e.g., Jenkins v. Allied Packing & Supply, Inc., et al., No. 09-cv-101-DMS-AJB (S.D.Cal. March 25, 2009).
Moreover, "the Supreme Court has mandated a generous interpretation of
the federal officer removal statute," Durham v. Lockheed Martin Corp.,
445 F.3d 1247, 1252 (9th Cir. 2006), cautioning the lower courts to
avoid a "narrow, grudging interpretation" of the statute where the
underlying policy is to ensure that federal officers have ready access
to "the protection of a federal forum." Willingham v. Morgan, 395 U.S. 402,
407 (1969). As the Ninth Circuit concluded in Durham, "when federal
officers and their agents are seeking a federal forum, we are to
interpret section 1442 broadly in favor of removal." 445 F.3d at 1252.
Such agents include government contractors. See Boyle v. United
Technologies Corp., 487 U.S. 500, 505-07 (1988).
To establish subject matter jurisdiction under § 1442(a)(1), a defendant must show: (a) that it is a "person" within the meaning of the statute; (b) that it was "acting under" the direction of a federal officer with regard to the conduct in question; (c) that there is a causal nexus between plaintiff's claims and defendant's conduct "under color of such office"; and (d) that the defendant can assert a colorable federal defense. See Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006). Plaintiffs do not contest that the Defendants are persons within the meaning of the statute.
As to the other three elements, it seems clear, both in terms of jurisprudence and analysis, that the most important element is whether Defendants can assert a colorable federal defense. In Mesa v. California, 489 U.S. 121, 129 (1989), the Supreme Court reaffirmed that "federal officer removal must be predicated on the allegation of a colorable federal defense." And in Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa. 2010), one of the MDL cases concerning asbestos product liability, the court concluded that a defendant who satisfies the colorable defense requirement will by extension have met the "acting under" and causal nexus prongs as well. See id. at 784-85.
To assert a colorable federal defense as a government contractor in the context of failure to warn claims,*fn3 the defendant must show: "(1) the United States exercised its discretion and approved the warnings, if any; (2) the contractor provided warnings that conformed to the approved warnings; and (3) the contractor warned the United States of the dangers in the equipment's use about which the contractor knew, but the United States did not." Getz v. Boeing Co., 654 F.3d 852, 866 (9th Cir. 2011) (citing Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir. 1996)) (alteration omitted). As the Ninth Circuit summed it up, "the contractor must demonstrate that the government approved reasonably precise specifications thereby limiting the contractor's ability to comply with its duty to warn.'" Getz, 654 F.3d at 866-67 (internal quotations and alternations omitted).
Thus, a defendant who alleges a colorable defense under this standard has also met the "acting under" prong because it must show that the United States actually exercised its discretion with regard to the warnings. The defendant must also meet the casual nexus prong because it must show that the warnings the plaintiff alleges to be deficient conformed to what the United States approved. The third element of the government contractor test further ensures that a contractor may not evade liability by simply keeping the United States in the dark about any dangers of which it was unaware.
Plaintiffs argue that government contractors asserting federal officer jurisdiction as grounds for removal bear a "special burden" as private actors. See Williams v. Gen. Elec. Co., 418 F. Supp. 2d 610, 614 (M.D. Pa. 2005) (citing Freiberg v. Swinerton & Walberg Property Svcs., Inc., 245 F.Supp.2d 1144, 1150 (D.Col.2002)). However, this argument does not accord with the case law in this circuit. For instance, in Durham, supra, the removing defendant was a government contractor. In articulating the standard for federal officer removal, the Ninth Circuit did not differentiate between federal agents and private parties acting at the direction of a federal agent. See Durham, 445 F.3d at 1252-53. Thus, the Court finds that Defendants, as government contractors, need not meet any additional burden under that defense.
But the government contractor defense is an affirmative one, so Defendants bear the burden of proof. Leite v. Crane Co., 868 F. Supp. 2d 1023, 1030 (D. Haw. 2012) (citing Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744, 746 (9th Cir. 1997)). Nonetheless, at this stage in the proceedings, the defense need only be "colorable." Id. (citing Mesa v. California, 489 U.S. 121(1989)). Therefore, ...