U.S. District Court for the Western District of Washington, July 22, 2021

Plaintiff George Kraemer alleges that he was exposed to asbestos and asbestos-containing products manufactured and sold by defendant Lone Star Industries (Lone Star) that were used at locations where his father worked as an insulator between 1942 and 1945. He also alleges that he was exposed to asbestos through his own workplace. On October 1, 2020, the plaintiff and his wife initiated this action in King County Superior Court against Lone Star and other defendants. The plaintiffs were granted an accelerated trial date of September 27, 2021, based on the plaintiff’s terminal illness.

On May 21, 2021, Lone Star removed this matter to the federal district court pursuant to the federal officer removal statute, 28 U.S.C. §§ 1442(a)(1) and 1446, which authorizes the removal of a civil action brought against any person “acting under” an officer of the United States “for or relating to any act under color of such office.” The plaintiffs now seek to remand this case, arguing that Lone Star has failed to meet its burden of establishing that it is entitled to removal under this statute.

To invoke the federal officer removal statute, a defendant must show that (1) it is a “person” within the meaning of the statute, (2) a causal nexus exists between the plaintiff’s claims and the actions the defendant took pursuant to a federal officer’s direction, and (3) it has a “colorable” federal defense to the plaintiff’s claim. Leite v. Crane Co., 749 F.3d 1117, 1120 (9th Cir. 2014). A defendant seeking to remove an action under this statute may not offer mere legal conclusions but must allege the underlying facts supporting each of the requirements for removal jurisdiction.

A plaintiff may challenge the defendant’s invocation of this statute through a “facial” attack or a “factual” attack. Id. at 1121. A facial attack accepts the truth of the defendant’s allegations but asserts that they “are insufficient on their face to invoke federal jurisdiction.” Id. Meanwhile, a factual attack challenges the truth of the defendant’s factual allegations, usually by introducing evidence outside the pleadings. Id. A court resolves a facial attack as it would a motion to dismiss—accepting the defendant’s allegations as true and drawing all reasonable inferences in the defendant’s favor. Id. A court resolves a factual attack “under the same evidentiary standard that governs in the summary judgment context,” and the opposing party must present competent evidence as it would on summary judgment. Id.

Lone Star alleges that the federal officer removal statute applies because Lone Star (1) is a “person” within the meaning of the statute, (2) all asbestos-containing products it supplied to the plaintiff’s father’s worksites during the relevant timeframe were used almost exclusively on U.S. Navy ships and supplied pursuant to U.S. Navy contracts and specifications under the control and supervision of officers of the U.S. Navy, and (3) any recovery by the plaintiffs is barred by the judicially-recognized military contractor defense.

The plaintiffs raise both facial and factual challenges to the removal of this matter, arguing that Lone Star’s removal petition fails to sufficiently allege facts that, if taken as true, establish that it has a colorable federal defense to the plaintiff’s claims. Specifically, Lone Star does not allege that the asbestos-containing insulation it sold to the worksites was “military equipment,” a requirement under the military contractor defense. Further, the plaintiffs allege that Lone Star has failed to prove by a preponderance of the evidence that each of the requirements for federal officer removal jurisdiction have been met.

In examining the plaintiffs’ facial attack on Lone Star’s jurisdictional allegations, the court reviewed the U.S. Supreme Court’s outline of the military contractor defense in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510, 101 L. Ed. 2d 442 (1988). Pursuant to that decision, “[l]iability for design defects in military equipment cannot be imposed [on military contractors], 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.” Boyle, 487 U.S. at 512. The Boyle court justified the imposition of the military contractor defense as a barrier to traditional state tort actions on the grounds that “the selections of the appropriate design for military equipment to be used by our Armed Forces is a discretional function for which the United States cannot be sued directly under the Federal Tort Claims Act.” Id. at 511. The Boyle court therefore concluded that liability for design defects in military equipment cannot be imposed pursuant to state law when the elements of the military contractor defense have been established. Id. at 512.

The Ninth Circuit has held that the military contractor defense is limited to the actual military equipment that a contractor produced for the United States, and that if the military orders goods from a contractor that are readily available to commercial users, the military contractor defense does not apply. In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 811 (9th Cir. 1992). Applying this rationale, the Ninth Circuit has affirmed the rejection of the military contractor defense to asbestos manufacturers who sold insulation to the military that was also commercially marketed. Id. at 812.

The plaintiffs argue that Lone Star has not established that its product constituted “military equipment” and therefore cannot invoke the government contractor defense. Lone Star failed to address this argument and did not sufficiently establish that its insulation was manufactured with the special needs of the military in mind. Therefore, Lone Star’s insulation does not constitute “military equipment” for the purposes of the military contractor defense, and Lone Star has failed to rebuff the plaintiffs’ facial attack to its jurisdictional allegations.

The plaintiffs also raise a factual challenge to Lone Star’s jurisdictional allegations, introducing evidence that Lone Star marketed and sold the very same insulation used on the Navy ships to non-military commercial entities. Lone Star failed to counter with its own competent evidence to establish by a preponderance of the evidence that federal jurisdiction exists. Therefore, Lone Star also failed to rebuff the plaintiffs’ factual attack to its jurisdictional allegations, and the court granted the plaintiffs’ motion to remand this matter to the Superior Court.

The plaintiffs further argue that Lone Star removed this matter without a sound evidentiary basis and that the plaintiffs are therefore entitled to attorney’s fees and costs. Lone Star did not oppose this request, and the court agreed that the plaintiffs are entitled to attorney’s fees and costs in the amount of $1,000.

Read the full decision here.