2014 WL 31419
E.D.N.Y.2014Background
- Decedent served in U.S. Navy (1955–1975) and alleged asbestos exposure aboard USS Cadmus and USS Detroit from turbines/steam generators manufactured by defendants; plaintiff sued in New York state court for negligence/strict liability/failure to warn.
- Defendants (CBS, Foster Wheeler, GE) removed to federal court under the federal-officer removal statute, 28 U.S.C. § 1442(a)(1), asserting they acted under Navy direction when building ship components.
- Defendants rely principally on the federal contractor defense (Boyle) and submitted expert affidavits (engineers, admirals, physicians) asserting the Navy imposed precise specifications, controlled warnings, and knew more about asbestos risks.
- Plaintiff moved to remand, arguing the affidavits are hearsay/speculative and that the Navy did not bar warnings; she submitted a contrary affidavit (Lowell).
- Court treated the affidavits as admissible for the remand-stage inquiry, followed precedent (notably Hagen), and applied Isaacson’s three-part test for private-party federal-officer removal: (1) person acting under an officer; (2) actions under color of office; (3) colorable federal defense.
- Court held defendants met the low threshold for removal: they acted under the Navy, their actions occurred while performing government duties, and they raised a colorable Boyle defense on all three prongs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal under 28 U.S.C. § 1442(a)(1) is proper | Affidavits are inadmissible/hearsay; cannot show a colorable federal defense | Affidavits show Navy control/specs, conformity, and government knowledge; Boyle defense is colorable | Removal proper; remand denied |
| Whether defendants acted “under” a federal officer | Navy did not dictate warnings/use; defendants not sufficiently supervised | Navy procurement and approval process demonstrates close government control | Defendants acted under the Navy (broad "acting under" standard) |
| Whether acts occurred under color of federal office (causation) | No specific contract terms forcing asbestos use; causal link not shown | Performance of government contracts to produce required equipment satisfies causation | Low Isaacson standard met; acts occurred while performing official duties |
| Whether federal contractor (Boyle) defense is colorable | Records do not conclusively show Navy prohibited warnings or set "reasonably precise" specs | Affidavits show precise specifications, conformity, and greater government knowledge of asbestos risks | Boyle defense is colorable on all three prongs; merits can be addressed later |
Key Cases Cited
- Boyle v. United Techs. Corp., 487 U.S. 500 (establishes federal contractor defense)
- Isaacson v. Dow Chem. Co., 517 F.3d 129 (sets three-part test for private-party federal-officer removal)
- Willingham v. Morgan, 395 U.S. 402 (federal-officer removal construed broadly; defendant need not win before removal)
- Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770 (E.D. Pa. 2010) (denying remand where similar affidavits sufficed; persuasive precedent)
- Ruppel v. CBS Corp., 701 F.3d 1176 (discusses who makes ultimate determination and removal policy)