U.S. District Court for the Eastern District of Louisiana, May 20, 2020
This case was initially filed by the plaintiff in Louisiana state court. The plaintiff alleged that Louis Elie, Jr. (the decedent) contracted and died from lung cancer as a result of his exposure to asbestos, while working as a laborer for Sperry Rand Corp. at the Louisiana Army Ammunition Plant (LAAP) from 1967 to 1974. Defendant Unisys Corp. (successor in interest to Sperry Rand Corp.) removed this action to federal court. The plaintiff filed a motion to remand.
The court here found federal jurisdiction pursuant to federal enclave jurisdiction and federal officer jurisdiction. Under federal enclave jurisdiction federal courts have jurisdiction over tort claims arising on federal lands. Mater v. Holley, 200 F.2d 123, 124 (5th Cir. 1952). Under 40 U.S.C. § 3112, federal enclave jurisdiction is present where the head of the department or agency that acquires the land accepts jurisdiction on behalf of the federal government by filing a notice of acceptance of jurisdiction with the governor of the state, or in “another manner prescribed by the laws of the State where the land is situated.” Here, the court found that “Unisys provided documentation demonstrating that the federal government did accept jurisdiction. Unisys provides evidence from the Department of Agriculture that the federal government accepted jurisdiction over LAAP in 1942. It also provides a letter from the Secretary of War to the governor of Louisiana stating that the United States accepts ‘exclusive jurisdiction over all lands acquired by it for military purposes within the State of Louisiana, and over which exclusive jurisdiction has not heretofore been obtained.’”
Next, the court turned to the arguments made under the Federal Officer Removal Statute. Removal is proper by the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or any agency thereof, in an official or individual capacity, for or relating to any act under color of such office . . . . 28 U.S.C.§ 1442(a)(1). To remove an action 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.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. 2020).
To meet the requirements of the first prong, Unisys argued the federal contractor defense applies. Under that defense, federal contractors are not liable if: (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. Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Unisys argued that the government approved the specifications for the equipment since the government installed the equipment itself; that the government installed asbestos-containing equipment at LAAP before Sperry Rand took over the plant, so that the equipment necessarily conformed to the government’s specifications; and provided deposition testimony of Dr. Richard Lemen, a retired Assistant Surgeon General of the United States, who testified that the U.S. Public Health Service collected and reviewed scientific literature on the dangers of asbestos beginning in the 1930s. This evidence suggests that the United States knew at least as much as defendant about the hazards of asbestos at the time that the plaintiff alleges exposure to asbestos. The court agreed with Unisys and found the first prong of the removal statute was met.
The plaintiff did not dispute the second prong of the analysis, so the court moved to the third prong. In order to succeed on this prong, it must be shown that “a private contractor need only help the government produce an item that the government needs or perform a job that, ‘in the absence of a contract with a private firm, the Government itself would have had to perform.’” Watson v. Phillip Morris Cos., 551 U.S. 142, 147 (2007). In agreeing with Unisys that it met the third prong, the court cited the plaintiff’s complaint which acknowledged that LAAP was used to build, prepare, and transport TNT explosives. The court also acknowledged that Unisys filed exhibits demonstrating that LAAP was used to produce munitions for the United States Army in various wars.
Finally, with regard to prong four the court noted that in Latiolais, the Fifth Circuit held that the 2011 amendment of the Federal Officer Removal Statute broadened removal to “actions, not just causally connected but alternatively connected or associated, with acts under color of federal office.” Therefore, the court found the connection requirement met here, since the decedent was never warned of the dangers of asbestos, he was exposed to asbestos while working at LAAP and his work was performed pursuant to the direction of the U.S. Army.
Accordingly, the court found there is federal jurisdiction here and denied the plaintiff’s motion to remand.