Submarine Manufacturer Successfully Dives Into Federal Waters With Effective Removal Of Asbestos Case In The First Circuit

• Published date: 31 March 2022
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Product Liability & Safety, Sovereign Immunity: Public Sector Government
• Law Firm: Husch Blackwell LLP
• Author: Lazaro Aguiar and Dominique Savinelli

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.

Background

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...