U.S. Court of Appeals for the First Circuit, January 31, 2022

In this matter, plaintiff Michael Moore served in the Navy working as an electronics technician aboard the USS Francis Scott Key from 1965 to 1969. He alleged that he was exposed to asbestos during the construction of the submarine, and sued Electric Boat Corporation, the federal contractor that built the submarine, among other defendants.

The Electric Boat shipyard operated “in accordance with government contracts, in conformance with military specifications, and under Navy oversight.” The Navy supervised Electric Boat’s operations, designated officials present at the Electric Boat shipyard to oversee Electric Boat’s employees, and maintained a substantial presence at the shipyard, including offices, sleeping quarters, training centers, and other facilities. The Navy oversaw every aspect of the design, construction, maintenance, and modernization of its submarines like the USS Francis Scott Key.

Based on this, Electric Boat removed the case to federal court under 28 U.S.C. § 1442, the federal officer removal statute. In response, the plaintiffs filed a motion to remand to state court. The district court granted the plaintiff’s remand motion, finding that Electric Boat had failed to satisfy the § 1442(a)(1) requirements for federal officer removal.

The federal officer removal statute provides that a civil action commenced in state court may be removed if it is against or directed to: “[t]he 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, in an official or individual capacity, for or relating to 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).

Electric Boat bore the burden under § 1442(a)(1) to establish: (1) that it was “acting under a federal officer’s authority,” (2) that the charged conduct was carried out “for or relating to” the asserted official authority, and (3) that it “will assert a colorable federal defense to the suit.” Rhode Island v. Shell Oil Prods. Co., L.L.C., 979 F.3d 50, 59 (1st Cir. 2020).

Here, the plaintiffs did not dispute that Electric Boat satisfied prong one of § 1442(a)(1), that it was “acting under a federal officer’s authority.”

As such, the court evaluated Electric Boat’s argument that the work done was “for or relating to” Electric Boat’s actions taken under color of federal office. The Navy assigned the plaintiff, an enlisted Navy serviceman, to the Electric Boat shipyard where Electric Boat built the USS Francis Scott Key while “acting under” the authority of naval officers and in relation to that authority. The Navy oversaw every aspect of the design, construction, maintenance, and modernization of the submarine, including the use of asbestos in the construction of the submarine.

The court therefore found that the undisputed record demonstrated that the plaintiffs’ claims clearly “relate to” Electric Boat’s contracted work while “acting under” the Navy.

Finally, the court found Electric Boat asserted several colorable defenses to the claims against it, satisfying the third prong of § 1442(a)(1). A federal defense is colorable unless it is “immaterial and made solely for the purpose of obtaining jurisdiction” or “wholly insubstantial and frivolous.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 292-96 (5th Cir. 2020).

Electric Boat successfully asserted the government contractor immunity defense outlined in Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988). The defense is applicable in cases where: “(1) the government exercised its discretion and approved certain warnings; (2) the contractor provided the warnings required by the government; [and] (3) the contractor warned the government about dangers in the equipment’s use that were known to the contractor but not to the government.” Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017).

Electric Boat also successfully argued that it was entitled to derivative sovereign immunity under Yearsley v. W.A. Ross Construction Co., 309 U.S. 18 (1940). Under Yearsley, “a government contractor is not subject to suit if (1) the government authorized the contractor’s actions and (2) the government ‘validly conferred’ that authorization, meaning it acted within its constitutional power.” Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 643 (4th Cir. 2018) (quoting In re KBR, Inc., Burn Pit Litig., 744 F.3d 326, 342 (4th Cir. 2014)).

Accordingly, the court reversed the decision of the district court and remanded the case to federal court.

Read the full decision here.