Opinion
No. 4:03-CV-004-A
February 12, 2003
MEMORANDUM OPINION and ORDER
Came on for consideration plaintiffs' emergency motion to remand. The court, having reviewed the motion, the expedited response of defendant Textron, Inc. ("Textron"), plaintiffs' reply, the record, and applicable authorities, concludes that the motion should be denied.
The "emergency" label on plaintiffs' motion influenced the court's decision to order defendants to file an expedited response. The court agrees with Textron that there appears to be no justification for the "emergency" label. See Resp. at 13-14.
One of the exhibits attached to Textron's response is the declaration of Gary D. Kelley ("Kelley"), which the court is not considering because it does not have an original signature.
I. Background
Plaintiffs instituted this suit in the District Court of Tarrant County, Texas, 67th Judicial District, on November 22, 2002, against Textron and related corporate entities, complaining that Robert William Henderson ("Henderson"), now deceased, was exposed to asbestos during his employment by Bell. Bell used asbestos in the process of manufacturing military helicopters. They allege that Henderson's exposure to asbestos caused his injuries that resulted in his death. Pet. ¶ 11. Textron removed the action to this court by notice of removal filed January 3, 2003, claiming federal officer removal jurisdiction under 28 U.S.C. § 1442 (a)(1). All other defendants consented to the removal. See Notice of Removal, Exs. B C.
For convenience, defendants are collectively referred to as "Bell."
II. Federal Officer Removal Jurisdiction
Section 1442(a)(1) allows removal from state court to federal court by the following parties:
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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.28 U.S.C. § 1442 (a)(1); Mesa v. California, 489 U.S. 121 (1989) To claim that removal was proper pursuant to section 1442(a)(1), Textron has the burden of showing that Bell: (1) is a "person" within the meaning of the statute; (2) "acted pursuant to a federal officer's directions and that a causal nexus exists between the defendant's actions under color of federal office and the plaintiff's claims"; and (3) asserts a "colorable federal defense." Winters, 149 F.3d at 398-401.
A. "Person" Under Section 1442(a)(1)
Because corporate entities qualify as persons under section 1442(a)(1), id. at 398, Textron meets the first prong.
B. Acted Pursuant to Federal Directions Causal Nexus
Textron provides ample support for its contention that, at times relevant to this action, Bell acted pursuant to the directions of the federal government in contracting to design and manufacture military helicopters. Attached to Textron's response is the declaration of William T. Wilson ("Wilson"), who worked for Bell in contract administration for thirty-two years, and served as director of helicopter contracts. Wilson Decl. ¶ 2. Wilson details the extensive interaction between the government and Bell in carrying out the contracts:
3. Since 1951, Bell has supplied thousands of helicopters to the U.S. government for military use, including the H-13, UH-1, and AH-1 series aircraft. Throughout this time, Bell has had to follow specific Government-approved procedures, regulations, laws, and standards for the design, materials, marking, production, and delivery of these helicopters.
. . . .
5. In 1955, the USAF awarded Bell a contract for the production of three prototype aircraft, designated XH-40 aircraft. In the contract, the USAF selected precise specifications Bell had proposed in response to government design criteria. The USAF established those specifications as contractual requirements which Bell had to adhere to in producing the prototypes. One of the specifications mandated by the USAF in the construction of the aircraft was the use of asbestos in certain seals and gaskets on the stainless steel enclosure the government mandated for the engine compartment. This performance requirement was imposed by the government to prevent the spread of fire from the engine compartment to the passenger compartment.
. . . .
10. The U.S. Government actively participated in the development of the UH-1 and AH-1 series helicopters. To facilitate the Government's review and approval of the design and production specifications and engineering drawings, the Government maintained a staff of military and civilian representatives at Bell's plant. From the 1960's to the present, the Government has maintained scores of personnel at Bell's plant to ensure the helicopters were built in accordance with the Detail Specifications. . . . They were charged with reviewing and approving engineering drawings, assuring adherence to military specifications and requirements, assisting Bell's employees in achieving full compliance with military contract requirements, approving manufacturing and assembly processes and products, and accepting helicopters and supplies on behalf of the Government after determining they met every contract requirement.
. . . .
12. Bell delivered any helicopter and part to the U.S. Army pursuant to a Government contract requiring Bell to adhere to detailed Government-approved design, production, marking, and shipping specifications. The contracts incorporate by reference the relevant specifications and mandate that all aircraft or parts be manufactured in accordance with the Detail Specifications and that Bell's quality assurance program conform to military specifications.
13. If Bell failed to manufacture military helicopters in strict compliance with Government specifications, Bell was subject to a variety of penalties under U.S. law, including civil and criminal sanctions. Bell was not permitted to change specifications in any way without the express authorization of the Government.
. . . .
15. Bell performed the helicopter contracts in accordance with the requirements of the Detail Specifications prepared at the direction of the Government, approved by the Government, and incorporated by reference in the contracts. The Government did not permit Bell to deviate from the Detail Specifications without a contract change authorized by the Government's Contracting Officer. . . . The Detail Specifications incorporated a multi-page list of military specifications, known as "mil-specs," which had to be followed. The mil-specs themselves were often lengthy and detailed documents. The mil-specs described the characteristics for helicopter parts containing asbestos as required by the Detail Specification. The seals and gaskets that a production employee at Bell might have come in contact with were such parts.
. . . .
22. In short, in accordance with Government contract requirements, the Government was directly and intimately involved with development and controlled the design of every aspect of the helicopter, including without limitation the types of materials used in the helicopters and their component parts. Government representatives closely monitored Bell's work at every steps in the design process and Government evaluation and approval had to occur at every step. Bell had little or no leeway in determining the required design of the helicopters, including the required materials for the component parts and their painting and marking.
23. Bell had no actual knowledge of any danger in the use of asbestos in helicopter components that was not known to the US Government.
. . . .
25. In short, at every step in the development and production of UH-1 and AH-1 series helicopters, Bell had to follow Government-evaluated and -approved Detail Specifications concerning the design, materials, painting and markings for those helicopters and their component parts. Every helicopter or component part accepted by the Government from Bell was accepted only after the Government confirmed the aircraft or part conformed to the contract specifications. Bell possessed no knowledge of the dangers, if any, concerning the design, materials, painting, and markings for those helicopters and their component parts which Government was not already aware of.
27. [sic] In summary, the government mandated the use of asbestos by Bell in the manufacture of helicopters that were made by Bell during the period of time that the decedent Robert William Henderson was employed by Bell. Bell had no discretion in its use of asbestos in the helicopters. Had Bell refused to follow government mandated use of asbestos it would have ben [sic] subject to numerous civil and criminal penalties.Id. ¶ 3, 5, 10, 12-13, 15, 22-23, 25, 27. The court finds that the federal government exercised strict control over Bell's design and manufacture of the military helicopters, and that Bell acted pursuant to the direction of the federal government at the times relevant to this action.
Plaintiffs deny that a causal nexus exists between their claims and Bell's actions under color of federal office:
In this action, Defendants' conduct at issue is their safety and warning-related activities, and in particular their failure to warn of the hazards associated with asbestos use and exposure. Textron has not established, nor has it alleged, that its safety and warning-related activities were under the direction and control of a federal officer. Although Textron may in fact ultimately prove that it (or its predecessors) built helicopters at the direction of the United States, Plaintiffs are confident that Textron can offer no such proof regarding (non-existent) asbestos warnings.
Mot. at 4 (emphasis in the original); see also id. at 9 (stating, "Textron offers no evidence that the federal government addressed, in any way, Textron's ability to warn employees of the presence and dangers of asbestos").
While certain portions of plaintiffs' state-court petition allege failure-to-warn theories of liability, the petition also sets forth claims that complain of use of asbestos in the design and manufacturing processes:
14. . . . The Defendants were negligent in one, some and/or all of the following respects, among others, same being the proximate cause of Plaintiffs' decedent's illnesses, disabilities and/or death:
(e) in failing to develop and utilize a substitute material to eliminate asbestos fibers in the asbestos-containing products, and/or the machinery requiring or calling for the use of asbestos and/or asbestos-containing products;
(f) in failing to properly design and manufacture asbestos, asbestos-containing products, and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products for safe use under conditions of use that were reasonably anticipated;
. . . .
16. Plaintiffs' decedent was exposed to asbestos-containing products and/or machinery requiring or calling for the use of asbestos and/or asbestos-containing products that were manufactured and distributed by the Defendants and/or their predecessors-in-interest for use as construction materials and/or machinery in industrial operations. Plaintiffs would show that the defective condition of the products rendered such products unreasonably dangerous, and that the asbestos-containing products and/or machinery were in this defective condition at the time they left the hands of Defendants.
Pet. ¶ 14(e)-(f), 16; see also id. ¶ 11, 26. Thus, plaintiffs' characterization of this action as simply being about defendants' safety- and warning-related activities is not accurate.
With regard to defendants' design and manufacture of military helicopters, "the government mandated the use of asbestos by Bell during the period of time that the decedent Robert William Henderson was employed by Bell." Wilson Decl. ¶ 27. The court concludes that Textron satisfied its burden that a causal nexus exists between Bell's actions under color of federal office and some of plaintiffs' claims.See, e.g., Akin v. Big Three Indus., Inc., 851 F. Supp. 819, 823-24 (E.D. Tex. 1994) (stating, "[p]lainly, when a government contractor builds a product pursuant to Air Force specifications and is later sued because compliance with those specifications allegedly causes personal injuries, the nexus requirement is satisfied").
C. Colorable Federal Defense
Textron asserts as its "colorable federal defense" the government contractor defense, see Resp. at 5, the criteria of which are set out inBoyle v. United Technologies Corp.:
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. 500, 512 (1988); see also Winters, 149 F.3d at 400. As the Fifth Circuit noted, "defendants need not prove the asserted defense, but need only articulate its `colorable' applicability." Winters, 149 F.3d at 400; see also Jefferson County v. Acker, 527 U.S. 423, 431 (1999) (recognizing that "one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court," and not requiring "the officer virtually to win his case before he can have it removed") (internal quotations and citations omitted).
Textron has adduced sufficient evidence through Wilson's declaration — the particularly pertinent portions of which are recited in Section II.B. above — to support the colorable applicability of the federal contractor defense.
* * *
The court concludes that Textron has satisfied its burden under 28 U.S.C. § 1442 (a)(1), and that accordingly, plaintiffs' motion to remand should be denied.
III. ORDER
For the reasons discussed,
The court ORDERS that plaintiffs' motion to remand be, and is hereby, denied.