185 F. Supp. 3d 1358
S.D. Fla.2016Background
- In Jan 2016 Richard and Regina Batchelor sued multiple defendants in Florida state court alleging asbestos exposure causing Richard’s terminal mesothelioma, principally from work at three Florida Power & Light plants and from automotive work.
- Batchelor’s state-court exposure sheets and complaint did not allege asbestos exposure during his U.S. Navy service; he later testified he served 1970–1974 aboard the nuclear submarine U.S.S. Gato.
- Westinghouse (CBS) removed the case to federal court under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), asserting a colorable government-contractor defense tied to Batchelor’s submarine service.
- Batchelor filed an emergency motion to remand, expressly disclaiming any claim based on asbestos exposure while in the Navy or aboard the U.S.S. Gato.
- The central legal question was whether Westinghouse’s asserted colorable federal defense (government-contractor immunity) supported removal when the plaintiff expressly disavowed Navy-related exposure claims.
- The Court concluded Batchelor’s specific disclaimer removed the sole factual predicate for Westinghouse’s § 1442(a)(1) defense and remanded the case; it declined to award fees because removal was not objectively unreasonable.
Issues
| Issue | Batchelor (Plaintiff) Argument | Westinghouse (Defendant) Argument | Held |
|---|---|---|---|
| Removability under § 1442(a)(1) based on government-contractor defense | Removal improper because plaintiff disavowed any claim arising from Navy service or exposure aboard the U.S.S. Gato | Removal proper because plaintiff’s submarine service testimony permits a colorable federal defense; plaintiff cannot avoid removal by disclaimer | Remand: plaintiff’s explicit, specific disclaimer as to Navy exposure eliminates the factual basis for the § 1442 defense, so federal jurisdiction lacking |
| Effect of disclaimer language | The disclaimer specifically renounces claims tied to Navy/vessel exposure and thus defeats removal premised on that exposure | A disclaimer cannot nullify defendant’s plausible federal defense where exposure may have occurred; general disclaimers are inadequate | The court adopts the distinction in prior decisions: specific renunciations of the claims forming the basis for removal defeat § 1442 removal; Batchelor’s disclaimer falls in that category |
| Causal connection requirement for § 1442(a)(1) | No claims remain tied to acts under color of federal office (Navy/vessel) | The testimony about Navy service supplies a potential causal link for a government-contractor defense | Because no state-law claim seeks recovery for Navy/vessel exposure, no causal connection exists between the alleged official act and the claims actually pleaded |
| Attorney’s fees under 28 U.S.C. § 1447(c) | Requests fees and costs for improper removal | Removal was objectively reasonable given the submarine testimony and precedent | Denied: removal was not objectively unreasonable, so fees are not awarded |
Key Cases Cited
- Mesa v. California, 489 U.S. 121 (defendant may remove by asserting a colorable federal defense under federal-officer statute)
- Willingham v. Morgan, 395 U.S. 402 (broad construction of federal-officer removal to allow defenses arising from federal duties)
- Magnin v. Teledyne Continental Motors, 91 F.3d 1424 (colorable defense requires causal connection to official conduct)
- Jamison v. Wiley, 14 F.3d 222 (raising a colorable federal defense can transform a state-law action into federal jurisdiction)
- Martin v. Franklin Capital Corp., 546 U.S. 132 (attorney’s fees under § 1447(c) require objectively unreasonable removal)
- Marley v. Elliott Turbomachinery Co., 545 F. Supp. 2d 1266 (distinguishes general disclaimers from specific renunciations in federal-officer removal analysis)