The plaintiffs filed this action against multiple defendants including Foster Wheeler for Mr. Hukkanen’s alleged development of mesothelioma after serving as a machinist onboard the USS Somers and USS Walke from 1960 through 1968.
Foster Wheeler removed the case, arguing that it was acting under an officer or agency of the United States. Foster Wheeler quickly moved for remand claiming that the court lacked subject matter jurisdiction because the plaintiffs specifically waived claims sounded in military contractors immunity defense. Foster Wheeler took the position that removal was proper because the removal statute provides that “the 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, sued in an official or individual capacity for any act under color of such office” may remove to federal court. Removal is proper if the moving party can “1) demonstrate that it acted under the direction of a federal officer 2) raise a colorable defense to the plaintiff’s claims 3) demonstrate a causal nexus between the plaintiff’s claims and acts it performed under color of federal office. Here, Foster Wheeler argued that it was protected by the military contractors immunity under the Boyle standard because 1) the United States approved reasonably precise specifications 2) the equipment conformed to those specifications 3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but no the United States.” The court found that the plaintiffs had waived any claim for military contractors immunity. Foster Wheeler contended that its boilers had to be built according to government specifications. However, the court found that those specifications did not include the requirement to use packing, gaskets and insulation materials. Accordingly, remand was warranted.
As for the plaintiffs’ motion for sanctions, the court denied stating that the removal was not made in bad faith on the part of Foster Wheeler as the standard limits sanctions for cases removed recklessly or in bad faith.