In this case, the plaintiff claimed that he was exposed to asbestos and contracted mesothelioma from products allegedly manufactured, supplied, installed, and/or distributed by numerous defendants. The plaintiff asserted in the complaint that he served in the U.S. Navy from 1962–66 but provided the disclaimer that the “[p]laintiff was not exposed to asbestos and is not bringing any claim for exposure to asbestos-containing products during Plaintiff’s service in the Navy.”
One of the defendants, General Electric Company (GE), removed the case to the U.S. District Court for the Southern District of West Virginia pursuant to 28 U.S.C. § 1442(a)(1) on the basis that it had government contractor immunity for liability for injuries that may have resulted from the plaintiff’s asbestos exposure from turbines, generators and other equipment on U.S. Navy vessels — to the extent that GE constructed or repaired them. The plaintiff subsequently filed a motion to remand, arguing that GE asserted a “non-existent claim” given the plaintiff’s disclaimer related to his service in the Navy.
The court determined that a remand was appropriate because “federal officer removal must be predicated on the allegation of a colorable federal defense.” Although certain federal courts have found that disclaimers did not defeat removal where the disclaimers generally purported to waive federal claims, “federal courts have consistently granted motions to remand where the plaintiff expressly disclaimed the claims upon which federal officer removal was based.” The court explained that, in this case, the plaintiff disclaimed all of his claims arising out of his potential exposure while in the Navy, and GE did not assert that the plaintiff was exposed to any products GE provided to the Navy outside of the time period covered by the disclaimer. Accordingly, GE failed to satisfy the requirements for federal officer removal under 28 U.S.C. § 1442(a)(1).