Opinion
CIVIL ACTION NO. 04-430 SECTION "T"(1)
April 19, 2004
This cause came for hearing on March 31, 2004, upon the motion of plaintiff, Andrew S. Fink ("Fink"), to remand the case to state court pursuant to 28 U.S.C. § 1447 (c). Oral argument was not entertained by the Court; therefore, the matter was taken under submission on the briefs only. The Court, having studied the record, the legal memoranda submitted by the parties, as well as the applicable law and jurisprudence, is now fully advised in the premises and ready to rule.
ORDER AND REASONS
I. BACKGROUND
The plaintiff, Andrew S. Fink, filed an action in the Civil District Court for the Parish of New Orleans alleging damages from exposure to asbestos. In the Petition for Damages, plaintiff alleges that he was exposed to asbestos while serving as a maintenance mechanic in the U.S. Navy from 1942 to 1946, while employed at Todd Shipyards as a mechanic's helper in 1947, and while employed at Fulton Bag Co. and West Virginia Pulp Paper Co. from 1950 to 1985. Specifically, when serving in the U.S. Navy and while employed at Todd Shipyards, plaintiff claims he was exposed to "asbestos-containing components in boilers and turbines which were manufactured, distributed and/or sold by defendants, Foster Wheeler Corporation and General Electric Company."
After being served with the Petition for Damages, defendant General Electric Company (hereinafter "GE") timely removed this action to federal court under the provisions of the federal officer removal statute, 28 U.S.C. § 1442(a)(1). In response thereto, plaintiff filed a Motion to Remand, arguing therein that removal was improper because GE did not satisfy the requirements of the 28 U.S.C. § 1442(a)(1) as interpreted by federal case law.
II. DISCUSSION
Motions to remand to state court are governed by 28 U.S.C. § 1447(c), which provides in relevant part: "[i]f at any time before the final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." See Ford v. Elsbury, 32 F.3d 931, 935 (5th Cir. 1994). "[W]hen faced with a motion to remand, it is the defendant's burden to establish the existence of federal jurisdiction over the controversy." Winters v. Diamond Shamrock Chemical Co. 149 F.3d 387, 397 (5th Cir. 1998).
Plaintiffs premise the removal of his claim against defendant GE, on the federal officer removal statute. "The federal officer removal statute is a pure jurisdictional statute, seeking to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant." Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 968, 103 L.Ed.2d 99 (1989). The requirements of 28 U.S.C. § 1442(a)(1) provides, in pertinent part:
(a) A civil action or criminal prosecution commenced in a State court against any of the following persons may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) An officer of the United States or any agency thereof, or person acting under him, for any act under color of such office, (emphasis added).
In order to qualify as a federal officer, or "person" acting under him, the removing party must"(1) demonstrate that it acted under the direction of a federal officer, (2) raise a federal defense to the plaintiff's claims and (3) demonstrate a casual nexus between the plaintiff's claims and acts it performed under color of federal officer."Mesa, 489 U.S. at 131-32.
The preliminary issue to be resolved is whether GE qualifies as a "person" acting under a federal officer who is entitled to invoke the removal provisions of 28 U.S.C. § 1442(a)(1). The reasoning of the district court in Ryan v. Dow Chemical Co. 781 F. Supp. 934, 946 (E.D.N.Y. 1992)r persuades this Court that a purely legal "person", such as a corporation, "could be engaged in activities that amount to the implementation of a federal policy under the direction of a government officer", that § 1442(a)(1) was enacted to protect. Thus, GE qualifies as a "person", who may be entitled to remove as a federal officer if it meets the three requirements set forth in Mesa. 489 U.S. at 131-32.
To determine if GE qualifies as a federal officer, the first question to be addressed under Mesa is whether GE has demonstrated that it acted under the direction of a federal officer. Id. at 131-32. To satisfy the showing required in Mesa, GE submitted an affidavit of David Hobson, a 27-year employee of GE. In his affidavit, Mr. Hobson states that he is familiar with the operations of the marine turbine unit and the involvement of the U.S. Navy as far back as 1969.See generally. Exhibits B and C. According to Mr. Hobson, GE manufactured and supplied turbines for U.S. Navy ships under contracts between GE and the shipyards and/or the Navy Department. See Exhibit B, ¶ 6. The Navy Department administered the contracts through the Navy Sea Systems Command ("NAVSEA"). Id Mr. Hobson attested to the fact that "[a]ll aspects of the design, performance requirements and materials used for construction, including thermal insulation for Navy vessels, was specified by NAVSEA." Id. at ¶ 7. During all aspects of its turbine work related to U.S. Navy ships, GE performed its work under the immediate supervision of the Navy through NAVSEA officers. Id. at ¶ 8. Further, "[t]he turbines manufactured and supplied by GE for any U.S. Navy vessel had to meet detailed and precise U.S. Navy specifications." Id at ¶ 10. In the design phase of a turbine, as in all other phases, the U.S. Navy retained ultimate decision authority. Id. at ¶ 11. If an engineering disagreement arose between the Navy and the outside design consultants, the Navy controlled the design adopted. Id at ¶ 12.
After the design phase, and during production of turbines for the U.S. Navy, the Inspector of Naval Machinery was on site to ensure compliance with all Navy specifications. Id. at ¶ 13. At this time, all drawings, approvals, and any reports of out-of-tolerance machining were submitted to and approved by the Inspector of Naval Machinery or by the mechanical engineers working under him who also were employed by the U.S. Navy. Id Thereafter, U.S. Navy personnel supervised the installation of the turbines by shipyard personnel. Id at ¶ 19. Finally, in addition to controlling the design and manufacture of the turbines for U.S. Naval vessels, the U.S. Navy also controlled the testing of the turbines at all stages, both before and after installation, to ensure compliance with naval specifications and requirements. Id at ¶ 14, 15, 20, 21.
This court finds that the testimony of Mr. Hobson demonstrates that GE qualifies as a federal officer during the time that he began his employment with the company in 1969. In addition, Mr. Hobson has shown that GE qualifies as a federal officer during the time Mr. Fink was exposed to asbestos, based on Mr. Hobson's personal knowledge of the historical practices of GE with regard to marine steam turbines that were purchased from GE by the Navy and commercial shipyards and/or ship owners for installation aboard ships. Id. at ¶ 5. Mr. Hobson also confirms this court's view that GE was a federal officer during the 1940s through his studies of "military and commercial specifications and other documents dating back to World War II concerning marine steam turbines and have conferred on numerous occasions with Naval officers and others involved in Naval and commercial shipbuilding." Id. at ¶ 4.
The second question to be addressed under Mesa, is whether GE raises a federal defense to the plaintiff's claims. Under Willingham v. Morgan. 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969), any party qualifying as a federal officer who can raise a colorable defense arising out of their duty to enforce federal law is entitled to remove. The party need not prove that it can sustain the defense, but only that it presents a colorable claim. 395 U.S. at 406, 89 S.Ct. at 1816. TheWillingham Court explained that "one of the most important reasons for removal is to have the validity of the defense of official immunity tried in federal court," but that the removing party need not prove his case prior to removal, nor should the policy of protecting federal officers be "frustrated by a narrow, grudging interpretation of § 1442(a)(1)." Id (emphasis added). It is under this context that this Honorable Court must consider the facts surrounding plaintiff's motion to remand.
Plaintiff contends that remand is appropriate because the affidavits submitted by GE are not prepared for the present case, being dated October 17, 2003. In addition, the plaintiff's claim that since GE was unable to offer proof that Mr. Hobson had personal knowledge of the actual ships that Mr. Fink worked on, the company is unable to meet their burden under the federal officer removal statute, (emphasis added). However, removal under 28 U.S.C. § 1442(a)(1) is broadly construed. See Willingham. 395 U.S. at 406, 89 S.Ct. at 1816. Such detail in the removal notice is not required under prevailing federal case law.
For purposes of 28 U.S.C. § 1442(a)(1), a defendant "need not prove the asserted defense, but need only articulate its `colorable' applicability to the plaintiff's claims." Winters, 149 F.3d at 400. A federal officer is not required to win his case before he can have it removed. See Willingham. 395 U.S. at 407, 89 S.Ct. 1813 (emphasis added). GE claims the military contractor defense espoused inBoyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 422 (1988). This defense "generally immunizes government contractors from civil liability arising out of the performance of federal procurement contracts." Bailey v. McDonnell Douglass Corp., 989 F.2d 794, 797 (5th Cir. 1993). The test for immunity under the government contractor defense is the following: "[liability] for design defects in military equipment cannot be imposed, 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." 487 U.S. at 512, 108 S.Ct. at 2518.
In Boyle, the Court explained that the government's immunity inured to the benefit of the contractor because it was derivative of the government's own immunity from suit "where the performance of a discretionary function is at issue." Winters, 149 F.3d at 400 (citing Boyle, 487 U.S. at 511, 108 S.Ct. 2510) (citation omitted). The Court noted that "the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function."See Id. at 400 (citing Boyle, 487 U.S. at 511. 108 So. Ct. 2518). The first and second prongs of Boyle assure that the this suit is within the area where the policy of the "discretionary function" would be frustrated — i.e., the defendant assures that the design feature in question was considered by a Government officer, and not merely by the contractor itself. Boyle, 487 U.S. at 511, 108 S.Ct. 2518. Since, we find that the decisions regarding the design and specifications of the turbines constituted a governmental exercise of a discretionary function, the third prong of Boyle need not be addressed. Thus, this Court finds that the GE has met the second Mesa requirement.
The third Mesa requirement is that GE must demonstrate a causal nexus between the claims against it and the acts it performed under color of federal office. See Crocker v. Borden, 852 F. Supp. 1322, 1326 (1994). We need not again delve into the specifics contained in the record, as we have done supra, to determine whether the defendants' proffer of the government contractor defense satisfies the third requirement for removal under § 1442. See Winters, 149 F.3d at 400. We simply note that the evidence we have earlier described amply supports the defendant's assertion that the claims against it arise out of the construction of marine turbines utilizing asbestos containing materials and these turbines were constructed pursuant to Naval specifications for the U.S. Navy. See Crocker. at 1326.
Accordingly,
GE has carried its burden of establishing that it acted under an officer of the United States; therefore, the court maintains jurisdiction over this matter. Removal is appropriate pursuant to § 1447(c). Thus, IT IS ORDERED that the plaintiff's Motion to Remand is hereby DENIED.