Remand Denied Under Federal Officer Jurisdiction Analysis for Plaintiff Alleging Asbestos Exposure in U.S. Navy U.S. District Court for the Middle District of Florida, Tampa Division, December 27, 2016

Plaintiff Marc Killiam served in the U.S. Navy from 1973 to 1977 aboard the USS McCandless while at sea and in the Philadelphia Navy Yard. He alleges that as a boiler tender he removed and replaced various asbestos containing products and that exposure to asbestos from those products caused his asbestosis. He filed suit in Hillsborough County, Florida on September 26, 2016 against various defendants, including Crane Co. Crane removed the case to the U.S. District Court on October 13, 2016 pursuant to 28 U.S.C. Secs. 1442(a)(1) and 1446. The plaintiff moved to remand.

The court denied the plaintiff’s motion. The court began with the standard for federal officer jurisdiction, explaining that A federal court has jurisdiction under 28 U.S.C. § 1442(a)(1) to hear an action against any person acting under the direction of the United States or its agencies, so long as all statutory requirements are satisfied and that removal under 28 U.S.C. § 1442(a)(1) is an exception to the well-pleaded complaint rule, and a case can be properly removed even where the federal question does not appear on the face of a plaintiff’s complaint. To demonstrate the appropriateness of removal under the statute, the removing defendant must show: “(1) the defendant is a person acting under the statute; (2) the defendant was acting under the direction of a federal officer when it engaged in the allegedly tortious conduct; (3) there is a causal nexus between the plaintiff’s claims and the defendant’s actions under federal direction; and (4) the defendant has raised a colorable defense based on federal law.”

The plaintiff did not dispute that Crane was a “person,” satisfying the first prong. The court found that Crane met the second element that it was acting under the direction of a federal officer when it engaged in the allegedly tortious conduct. Specifically, Crane’s products were designed and manufactured pursuant to precise terms and specifications approved by the Navy. Third, as to the causal nexus element, the court found that Crane persuasively submits that its supply of asbestos-containing products to the Navy that did not feature a warning was an act performed as part of its official duty to the Navy. The court reached this finding by looking to decisions in similar circumstances from other courts which have held “that the provision of asbestos-containing products at the direction of the Navy supplies a causal connection between a plaintiff’s injury and the defendant’s actions, particularly with respect to a failure to warn.”

Finally, the court found that Crane satisfied the final element by asserting a colorable federal defense: the government contractor defense. In failure to warn cases, the elements of the defense as applicable to Crane were “(1) the Navy exercised its discretion and approved certain warnings for Crane’s products, (2) Crane provided the warnings required by the Navy, and (3) Crane warned the Navy about any asbestos hazards that were known to Crane but not to the Navy.” The court explained that Crane met its burden by showing that the Navy provided Crane Co. with precise specifications regarding its products, which required the use of asbestos and that Crane delivered the products that conformed to the Navy’s specifications and the court accepted Crane’s assertion that the Navy did not allow contractors, such as Crane Co., to independently formulate labels or warnings for products used on warships.” Because Crane has a colorable federal defense to Killam’s asbestos-related claims, the court found that Crane satisfied all requirements for federal officer removal and denied the plaintiff’s motion to remand.

Read the full decision here.


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