Defendants Prevail on Removal to Federal Court Based on Federal Officer Removal Statute

U.S. District Court for the Eastern District of Louisiana, March 31, 2021

In October 2019, plaintiff Stephen Legendre, filed a lawsuit alleging that he contracted mesothelioma in September 2019. He alleged that his mesothelioma was caused by take-home exposure to asbestos from his father who worked at Avondale from 1943 to 1945.

The defendants removed this matter pursuant to the Federal Officer Removal Statute, 28 U.S.C. § 1442. Thereafter, the plaintiff filed a motion to remand asserting federal jurisdiction is not warranted.

28 U.S.C. § 1442(a)(1) makes removable a civil action commenced in a state court against “[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office[.][T]he right of removal…is made absolute whenever a suit in a state court is for any act ‘under color’ of federal office, regardless of whether the suit could originally have been brought in a federal court.”

“[T]o remove under section 1442(a), a defendant must show (1) it has asserted a colorable federal defense, (2) it is a “person” within the meaning of the statute, (3) that has acted pursuant to a federal officer’s directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer’s directions.”

First, the plaintiff argued it cannot be shown that any exposure to asbestos was from government vessels. The plaintiff noted that there is no proof that the plaintiff’s father ever worked on a government vessel during his employment at Avondale between 1943 and 1945.

The defendants argued that the plaintiff himself alleged that his father was exposed to asbestos while working at Avondale from 1943 to 1945. The defendants also pointed to the testimony of Ms. Wilde, the plaintiff’s sister, in her own asbestos litigation in which she testified that her father had worked in the engine rooms of Navy ships being constructed at Avondale. The defendants asserted that if the plaintiff’s father worked in the engine rooms of vessels constructed at Avondale during the years 1943 to 1945, those vessels would have been built for the government pursuant to contracts with the United States Maritime Commission.

Second, the plaintiff argued that, even if exposure to asbestos was in connection with government contracts, the defendants could not show they complied with the government’s requirements or specifications with regard to the safe handling of asbestos.

The defendants produced evidence showing that Avondale was compelled to use asbestos to meet detailed government specifications and that the government exercised supervision over the shipyard’s work to ensure compliance. Accordingly, the plaintiff’s claims were sufficiently connected to the installation of asbestos during the construction of the government ships so as to confer jurisdiction under the federal officer removal statute.

Finally, the plaintiff argued the dfendants did not have a colorable federal defense. “Section 1442(a) permits an officer to remove a case even if no federal question is raised in the well-pleaded complaint, so long as the officer asserts a federal defense in the response.” Here, the court found the defendants asserted a colorable defense by satisfying the following test: (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.

The defendants submitted evidence showing that the vessels at issue were built under contracts executed between Avondale and the United States government and contained mandatory terms, conditions and specifications imposed upon Avondale by the government, including the requirement that Avondale use asbestos. The defendants demonstrated, through affidavits and deposition testimony, that they complied with reasonably precise specifications (requiring the use of asbestos) and that they complied with the government design specification to install asbestos regarding its shipbuilding operations. Third, the defendants submitted evidence showing that the federal government knew as much or more than the defendants did regarding asbestos-related hazards and safety measures.

Accordingly, the court found that the defendants established the conditions for federal officer removal under Section 1442(a). The plaintiff’s motion to remand was denied.

Read the full decision here.