Moore v. Electric Boat Corporation ( 2022 )

United States Court of Appeals
For the First Circuit
No. 21-1566
MICHAEL J. MOORE; ROSE MOORE,
Plaintiffs, Appellees,
v.
ELECTRIC BOAT CORPORATION, d/b/a General Dynamics Electric Boat,
Defendant, Appellant,
CRANE CO.; ECKEL INDUSTRIES, INC.; FOSTER WHEELER ENERGY CORP.;
MELRATH GASKET, INC.; NIANTIC SEAL, INC.; P.I.C. CONTRACTORS,
INC.; TACO, INC.; VIMASCO CORPORATION; PACKING & INSULATION
CORPORATION,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary S. McElroy, U.S. District Judge]
Before
Lynch, Kayatta, and Gelpí,
Circuit Judges.
Matthew S. Hellman, with whom Nancy Kelly, Sarah J. Clark,
Gordon Rees Scully Mansukhani LLP, and Jenner & Block LLP were on
brief, for appellant.
Michael L. Gorwitz, with whom S. Ann Saucer, John E. Deaton,
The Deaton Law Firm, LLC, and Fears Nachawati, PLLC were on brief,
for appellees.
January 31, 2022
LYNCH, Circuit Judge. Electric Boat Corporation is a
federal contractor which has built submarines for the United States
Navy for more than 100 years, including the submarine involved in
this case: the USS Francis Scott Key. Michael Moore, who was
enlisted in the Navy, was assigned to work as an electronics
technician aboard the USS Francis Scott Key from 1965 to 1969.
Decades after he was exposed to asbestos during construction of
the submarine, Michael Moore and his wife Rose (collectively,
"Moore") filed suit against Electric Boat and other defendants
alleging the various state claims described further below.
In October 2020, Electric Boat removed the case to
federal court under 28 U.S.C. § 1442, the federal officer removal
statute. In response, Moore filed a motion before the district
court to remand to state court. After full briefing, in July 2021,
the district court granted Moore's remand motion, finding that
Electric Boat had failed to satisfy the § 1442(a)(1) requirements
for federal officer removal. See Moore v. Crane Co., No. 20-cv-
00466-LDA, 2021 WL 2719258, at *5 (D.R.I. July 1, 2021).
The district court interpreted the statute in a manner
inconsistent with the 2011 congressional amendment to
§ 1442(a)(1). Removal Clarification Act of 2011, Pub. L. No. 112-
51, 125 Stat. 545. We reverse and hold that Electric Boat has
established the statutory requirements for removal.
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I.
A. Factual Background
During the mid-1960s, Electric Boat built the USS
Francis Scott Key for the Navy at its shipyard in Groton,
Connecticut. 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, had 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.
Michael Moore, who was serving in the Navy at the time,
worked as an electronics technician aboard the USS Francis Scott
Key from 1965 to 1969. He alleges that he was exposed to asbestos
and asbestos-containing products while at the "premises owned
and/or controlled" by Electric Boat. In September 2018, he was
diagnosed with lung cancer caused by exposure to asbestos.
B. Procedural History
In Rhode Island state court, Moore brought several
claims against all defendants, including failure to warn,
negligence, strict product liability, breach of warranty, and
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conspiracy. As to Electric Boat specifically, Moore also alleged
that Electric Boat "fail[ed] to provide safe equipment," "fail[ed]
to provide adequate safety measures and protection," "fail[ed] to
adequately warn . . . of the inherent dangers of asbestos,"
"fail[ed] to maintain . . . proper and safe condition[s]" on the
premises, and "fail[ed] to follow and adhere" to state and federal
laws and regulations.
After Electric Boat removed the case to federal court
under § 1442(a)(1), Moore moved to remand to state court. Electric
Boat opposed and submitted several exhibits in support of removal,
including affidavits from Bradford Heil, a retired Electric Boat
employee, and Admiral John B. Padgett, III, a retired Rear Admiral
in the Navy. Padgett's affidavit stated that the Navy "directed,
controlled and approved any warnings relating to health or safety
to its servicepersons such as Mr. Moore." Moore did not submit
any affidavits in response.
In July 2021, the district court granted the motion to
remand. The district court first held that, to satisfy the
requirements for removal under § 1442(a)(1), Electric Boat must
demonstrate that "it was acting 'under color' of a federal official
or agency" and that there was "a causal link between the 'acting
under' restrictions and the cause of plaintiff's injury." Moore,
2021 WL 2719258, at *2. Applying this standard to the facts of
the case, the court held that Electric Boat failed to satisfy the
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§ 1442(a)(1) requirements because Electric Boat's proffered
evidence "fail[ed] to address the premises theory of liability."
Id. at *4.
The court also held that, to defend removal, Electric
Boat would need to "demonstrate that the Navy controlled the
warnings at the shipyard itself, to such an extent as to preclude
Electric Boat from fulfilling its duty to warn." Id. (emphasis in
original). The court then found that "there is no support here
for the proposition that the Navy prohibited workplace warnings."
Id. at *5.1
Electric Boat timely appealed.
II.
We review de novo the district court's jurisdictional
determination on removal. See Romulus v. CVS Pharmacy, Inc., 770
F.3d 67, 73 (1st Cir. 2014). Where the district court resolves
disputed issues of fact, we review those factual findings for clear
error. See id.; Amoche v. Guar. Tr. Life Ins. Co., 556 F.3d 41,
48 (1st Cir. 2009). To the extent the district court found that
the Navy did not control any and all warnings concerning the health
1 Electric Boat vigorously disputes this finding. The
record supports Electric Boat's contention that the Navy did, in
fact, control any and all warnings that concerned the health and
safety of servicepersons working on the USS Francis Scott Key and
at the shipyard. Moore did not offer any evidence to the contrary.
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and safety of servicepersons working on the USS Francis Scott Key
and at the Electric Boat shipyard, that finding was clear error.
A. Federal Officer Removal Under § 1442(a)(1)
The federal officer removal statute provides that a
civil action commenced in state court may be removed if it is
against or directed to:
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, 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) (emphases added).
The district court erred by applying the "causal link"
standard to federal officer removal, which is far narrower than
the proper standard under § 1442(a)(1), as amended in 2011 when
Congress changed the provision to reach removal based on a suit
"for or relating to any act under color of [federal] office." See
Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat.
545 (emphasis added); see Latiolais v. Huntington Ingalls, Inc.,
951 F.3d 286, 292-96 (5th Cir. 2020) (en banc) (rejecting the
"causal connection" requirement and instead applying the "relating
to" standard); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258
(4th Cir. 2017) (same).
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Electric Boat bears the burden under § 1442(a)(1), see
Bor-Son Bldg. Corp. v. Heller, 572 F.2d 174, 181 n.13 (8th Cir.
1978), to establish: (1) that it was "acting under a federal
officer's authority," Rhode Island v. Shell Oil Prods. Co., L.L.C.,
979 F.3d 50, 59 (1st Cir. 2020), summarily vacated on other
grounds, 141 S. Ct. 2666 (2021) (Mem.); (2) that the charged
conduct was carried out "for or relating to" the asserted official
authority, 28 U.S.C. § 1442(a)(1);2 and (3) that it "will assert a
colorable federal defense to the suit," Shell Oil Prods., 979 F.3d
at 59.
B. Electric Boat Satisfies the Standard for Federal Officer
Removal Under § 1442(a)(1)
Moore does not dispute that Electric Boat has shown that
it was "acting under a federal officer's authority."3 We focus on
the second two requirements for removal.
2 We have also described the "relating to" requirement as
a "nexus" between "the allegations in the complaint and conduct
undertaken at the behest of a federal officer." Shell Oil Prods.,
979 F.3d at 59. This nexus requirement is not a causation
requirement, as the district court erroneously held. Moore, 2021
WL 2719258, at *4.
3 In the context of § 1442(a)(1), the Supreme Court has
interpreted "acting under" a federal officer to contemplate a
relationship where the private party engages in an effort "to
assist, or to help carry out, the duties or tasks of the federal
superior." Watson v. Philip Morris Co., 551 U.S. 142, 151-52
(2007) (emphasis in original). The relationship typically
involves "subjection, guidance, or control." Id. at 151 (quoting
Webster's New International Dictionary 2765 (2d ed. 1953)). And
the words "acting under" are "broad" and "liberally construed."
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1. "For or relating to"
In 2011, Congress amended § 1442(a)(1) to reach removal
based on a suit "for or relating to any act under color of [federal]
office." See Removal Clarification Act of 2011, Pub. L. No. 112-
51, 125 Stat. 545 (adding "or relating to" language to the
provision).4 Circuits have consistently given this requirement a
broad reading and held that no causal link is required. See
Latiolais, 951 F.3d at 292-96 ("[W]e overrule Bartel[ v. Alcoa
Steamship Co., 805 F.3d 169 (5th Cir. 2015)] and its progeny to
Id. at 147 (third quoting Colorado v. Symes, 286 U.S. 510, 517
(1932)).
Courts have consistently held that the "acting under"
requirement is easily satisfied where a federal contractor removes
a case involving injuries arising from a product manufactured for
the government. See Genereaux v. Am. Beryllia Corp., 577 F.3d
350, 357 n.9 (1st Cir. 2009) (recognizing federal officer removal
based on defendant's assertion that it was "acting under" a federal
officer because "the beryllium-containing products it supplied to
Raytheon were used in manufacturing 'military hardware'"); see
also Latiolais, 951 F.3d at 291 (holding that federal contractor
that repaired Naval vessels was "acting under" a federal officer's
authority); Sawyer, 860 F.3d at 255 (holding that federal
contractor that assembled boilers for Naval vessels was "acting
under" a federal officer's authority); Papp v. Fore-Kast Sales
Co., 842 F.3d 805, 813 (3d Cir. 2016) (holding that federal
contractor that constructed military aircrafts for the government
was "acting under" a federal officer's authority).
4 The amended language "broaden[ed] the universe of acts
that enable Federal officers to remove to Federal court." H.R.
Rep. No. 112-17, at 6 (2011). The Supreme Court has stated in
other contexts that the ordinary meaning of the phrase "relating
to" is "a broad one," holding that it normally means in
"association with or connection with." Morales v. Trans World
Airlines, Inc., 504 U.S. 374, 383-84 (1992) (third quoting Black's
Law Dictionary 1158 (5th ed. 1979)).
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the extent that those cases erroneously relied on a 'causal nexus'
test after Congress amended section 1442(a) to add 'relating to.'"
(footnote omitted)); Sawyer, 860 F.3d at 258 ("The district court
imposed a stricter standard of causation than that recognized by
the statute . . . which is only that the charged conduct relate to
an act under color of federal office." (emphasis in original)).
The First Circuit nexus standard is not a causal requirement and
is not to be understood as anything more than a "related to" nexus.
See Shell Oil Prods., 979 F.3d at 59.
Any single claim is independently sufficient to satisfy
the "for or relating to" requirement under § 1442(a)(1). See
Baker v. Atl. Richfield Co., 962 F.3d 937, 945 (7th Cir. 2020);
C.A. Wright & A.R. Miller, Federal Practice and Procedure § 3726
(4th ed., Apr. 2021 update) ("Because Section 1442(a)(l)
authorizes removal of the entire action even if only one of the
controversies it raises involves a federal officer or agency, the
section creates a species of statutorily-mandated supplemental
subject-matter jurisdiction."). Here, all of Moore's claims
against Electric Boat are "for or relating to" Electric Boat's
actions taken under color of federal office.
Moore brought claims against all defendants for failure
to warn, negligence, strict product liability, breach of warranty,
and conspiracy. The Navy assigned Moore, an enlisted Navy
serviceman, to the Electric Boat shipyard where Electric Boat built
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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 undisputed record
demonstrates that Moore's claims clearly "relate to" Electric
Boat's contracted work while "acting under" the Navy.
Moore tries to defend against removal with more specific
allegations that Electric Boat in particular failed to provide
safe equipment, provide adequate safety measures and protection,
maintain proper and safe conditions on the premises, and follow
state and federal laws and regulations. The Navy dictated the use
of asbestos, workplace safety measures, and the posting of warnings
both on the submarine and at the Electric Boat shipyard. Thus,
all of Moore's claims as to Electric Boat, too, clearly "relate
to" Electric Boat's actions taken while "acting under" color of
federal office. See Latiolais, 951 F.3d at 296 (holding that
claims for failure to warn about asbestos and failure to take
measures to prevent exposure were "connected with the installation
of asbestos during the refurbishment of the USS Tappahannock . . .
pursuant to directions of the U.S. Navy," and thus, the "civil
action relates to an act under color of federal office"); Sawyer,
860 F.3d at 258 (explaining that "Foster Wheeler's alleged failure
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to give warnings to Shipyard employees is therefore clearly related
to Foster Wheeler's performance of its contract with the Navy.").
As to the claim that Electric Boat failed to adequately
warn of the dangers of asbestos, the district court and Moore posit
a purported distinction between "premises liability" and liability
arising from harms caused from constructing the submarine itself.
We doubt that a premises liability claim is different from Moore's
other claims because the premises were under Navy control. At
oral argument, Moore's counsel conceded that there is no assertion
that Moore worked in an isolated part of the shipyard, outside
Navy control. Nor is there any assertion that Moore's injuries
did not stem from the various activities mandated by the Navy.
The district court applied the "causal link" standard
rather than the "related to" nexus standard to its analysis of the
premises liability claims. The record does not support the
district court's statement that the Navy did not preclude Electric
Boat from posting additional workplace warnings. Even assuming it
does, § 1442(a)(1) does not "demand[] a showing of a specific
government direction," which goes well beyond the "relating to"
requirement. Sawyer, 860 F.3d at 258. Moore's premises liability
claims are clearly "related to" Electric Boat's construction of
the USS Francis Scott Key which took place while "acting under"
the Navy because the Navy oversaw and directed the workplace safety
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measures and the posting of warnings at the Electric Boat shipyard
premises.
2. "Colorable federal defense"
The district court did not decide whether Electric Boat
has a "colorable defense" but did observe that the "burden is low,"
and the requirement "has generally not proven an obstacle in
similar litigation." Moore, 2021 WL 2719258, at *2 n.5. Moore
asks that if we find that Electric Boat has satisfied the "relating
to" requirement, this matter should be remanded to the district
court. Moore does not identify any unresolved findings of fact
that would be essential to resolving this question. Based on the
record, it is clear that there are multiple colorable defenses
available to Electric Boat. We may reach the issue as a matter of
discretion. See Singleton v. Wulff, 428 U.S. 106, 121 (1976).
Under § 1442(a)(1), a "colorable federal defense" need
not be "clearly sustainable." Willingham v. Morgan, 395 U.S. 402,
407 (1969). The Supreme Court has rejected a "narrow, grudging
interpretation" of the requirement. Id. Rather, a federal defense
is colorable unless it is "immaterial and made solely for the
purpose of obtaining jurisdiction" or "wholly insubstantial and
frivolous." Latiolais, 951 F.3d at 297 (quoting Zeringue v. Crane
Co., 846 F.3d 785, 790 (5th Cir. 2017)). Electric Boat asserts
several colorable defenses to the claims against it.
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Electric Boat first asserts the government contractor
immunity defense outlined in Boyle v. United Technologies Corp.,
487 U.S. 500, 512 (1988). Courts applying Boyle to failure-to-
warn cases have held that the immunity applies 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, 860 F.3d 249, 256 (quoting
Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir.
1996)) (alteration in original).
Electric Boat offered evidence colorably showing that
all three Boyle conditions have been met in this case. Electric
Boat submitted affidavits stating that the Navy controlled the use
and content of the warnings on the USS Francis Scott Key and at
the Electric Boat shipyard. Moore does not dispute these facts.
The affidavits support the argument that the Navy "exercised its
discretion and approved certain warnings" related to asbestos.
The affidavits also support, and Moore does not dispute, that
Electric Boat complied with the Navy's requirements and "provided
the warnings required by the government." And Electric Boat
presented the colorable argument that there were no dangers "that
were known to the contractor but not to the government" because
the government knew more than Electric Boat about asbestos-related
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hazards and safety measures. See Sawyer, 860 F.3d at 256 ("Foster
Wheeler credibly demonstrated . . . that the Navy's knowledge of
asbestos-related hazards exceeded Foster Wheeler's during the
relevant time period."); Latiolais, 951 F.3d at 298 ("Avondale's
evidence tends to support that the federal government knew more
than Avondale knew about asbestos-related hazards and related
safety measures.").
In light of the evidence submitted by Electric Boat, the
government contractor immunity defense is not "wholly
insubstantial and frivolous." Electric Boat has made at least a
colorable showing that the Navy exercised discretion in requiring
Electric Boat to provide certain warnings while fully aware of the
dangers of asbestos. Whether or not the government prohibited
Electric Boat from posting additional warnings speaks to the merits
of the defense but does not undermine the colorability of the
immunity defense.
Electric Boat also asserts that it is 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.
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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)).
Electric Boat likewise has made a colorable showing that
it satisfied the Yearsley requirements to assert the derivative
sovereign immunity defense. Electric Boat's proffered evidence
colorably shows that it acted at the direction of the Navy, which
"authorized [Electric Boat's] actions." And the Navy clearly
"acted within its constitutional power" to contract with Electric
Boat to build submarines.
Electric Boat lastly asserts that it is protected by the
Federal Tort Claims Act's combatant activities exception. See 28
U.S.C. § 2680(j) (barring suit for "[a]ny claim arising out of the
combatant activities of the military or naval forces, or the Coast
Guard, during time of war"); see also Saleh v. Titan Corp., 580
F.3d 1, 9 (D.C. Cir. 2009) ("During wartime, where a private
service contractor is integrated into combatant activities over
which the military retains command authority, a tort claim arising
out of the contractor's engagement in such activities shall be
preempted.").
Electric Boat built and maintained submarines, including
the USS Francis Scott Key, during the Vietnam War. Those
submarines were used by the Navy in its "combatant activities . . .
during time of war." Thus, Electric Boat has presented at least
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a colorable argument in support of the combatant activities
exception.
III.
Reversed and Remanded.
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