Remand Denied Upon Plaintiff’s Failure to Properly Disclaim Federal Officer Removal United States District Court, S.D. Illinois. June 19, 2018

ILLINOIS – The plaintiff Janice Reinbold filed suit against several defendants alleging her decedent, Gerald Reinbold, developed lung cancer from occupational exposure to asbestos while working as a shipfitter at the Puget Sound Naval Shipyard, amongst other sources. Defendant Crane Company (Crane) removed the case to federal court asserting Federal Officer Removal. The plaintiff moved to remand.

The court reminded the parties of the standard for Federal Officer Removal, and stated that the statute allows removal when “action is brought against the United States or an agency thereof of any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under the color of office.” First, the court analyzed the plaintiff’s disclaimer. Here, the plaintiff added to her complaint that every claim arising under the constitution, treaties, or laws of the United States was expressly disclaimed (including any claim arising from an act or omission on a federal enclave, or any federal office of the U.S. or agency or person acting under him occurring under color of such office).  No claim of admiralty or maritime law was raised.

The court noted certain disclaimers were valid disclaimers of Federal Officer Removal. Relying on the Doughtery decision, disclaimers that disclaimed “claims of a specific nature” were valid where their purpose was not to evade federal jurisdiction. For the instant disclaimer, the court found it to be “circular” and without completeness as to all exposure alleged on Navy jobsites. Further, it did not waive claims for exposure that may have taken place on federal premises. Therefore, the disclaimer was not sufficient.

Th plaintiff then argued that Crane failed to establish the elements required for Federal Officer Removal. Specifically, the plaintiff claimed that Crane’s affidavits and exhibits did not establish its government contractor defense. However, the court quickly brushed this aside as the standard only required Crane to present a “colorable” defense rather than a necessarily prevailing one.  The next element, whether Crane fit the statutory definition of a person, was not challenged by the plaintiff. The court also found that Crane acted under the instructions of the U.S. Navy. The causal connection requirement was also satisfied as the plaintiff claimed her husband was exposed to Crane products whereas Crane claimed the U.S. Navy required it to use those products. Lastly, the court honed in again on the issue as to the “colorable” claim. It did not need to determine whether Crane would prevail but rather whether it had jurisdiction under a colorable defense. Here, the court found the elements were satisfactorily established by Crane to assert the Federal Officer Removal statute. Remand was therefore denied.

Read the full case decision here.

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