Vague and Conclusory Evidence in Support of Federal Officer Removal Rights Insufficient, Case Remanded to California State Court

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The plaintiff in this case, the decedent’s wife, alleged secondary exposure to her husband through asbestos brought home by the decedent’s father while working as an aircraft mechanic on the base of the Army National Guard. Defendant The Boeing Company removed on federal officer grounds, and the plaintiff filed a motion to remand when four defendants remained — Pep Boys, Continental Motors, Goodyear Tire & Rubber, and IMO Industries. Goodyear was the only defendant which opposed the motion to remand. The court granted the plaintiff’s motion and remanded the case back to state court.

While removal should be strictly construed in favor of remand, defendants asserting removal rights under the federal officer removal statute enjoy much broader removal rights. Liability for design defects in military equipment cannot be imposed on military contractors, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. Goodyear argued it had a colorable federal defense because it was a government contractor. As stated by the Ninth Circuit, the government contractor defense essentially claimed “The Government made me do it.” The evidence cited by Goodyear in support of this assertion consisted of one report of a former Navy commander and military historian; this was insufficient to show that the United States approved reasonably precise specifications, and the court provided a string of cases in support of this finding. First, Goodyear did not show that the cited specifications required the use of asbestos, and did not show that the Armed Forces considered the use of asbestos and chose to approve it.

Specifically, the court stated: “The McCaffery Report does state that ‘[a]ll materials used in the construction of aircraft and their components, if any, were furnished in accordance with U.S. Government specifications approved by the Armed Forces,’ and that ‘all materials used in military aircraft and their components were subject to a thorough review by the Armed Forces and specifically approved for use by the Armed Forces,’ … However, these statements are too vague and conclusory to amount to a showing of reasonably precise specifications. … The Court cannot conclude the phrase Mr. McCaffery uses — ‘thorough review’ — suffices as competent proof that ‘the government was involved in a decision to use asbestos or proof that the government and the contractor engaged in a ‘continuous back and forth’ review process regarding the defective feature.’… Similarly, the assertion that ‘[a]ll materials were either specified or approved by the U.S. Armed Forces,’… is similarly vague and conclusory and does not necessarily ‘indicate anything beyond rubber stamping.” Further, the voluminous specifications provided by Goodyear, without further explanation, was insufficient. “It is not the Court’s task to ‘scour the record’ in search of competent evidence.” Since Goodyear failed to meet the first element of the government contractor defense, the Court did not discuss the other elements.

Further, Goodyear’s broad assertions regarding its contractor defense did not specify whether it followed specifications regarding warnings. Since Goodyear did not address this second element of the defense — whether it provided warnings required by the Air Force — Goodyear failed to prove that this defense was available for removal jurisdiction. Since there was no colorable federal defense, there was also no causal nexus for the design defect claims.

Read the full decision here.