Enerpac Tool : Federal Officer Removal Statute Keeps Action In California District Court

In Kruse v Actuant Corp., George Kruse and his wife filed a personal injury action in Los Angeles state court, alleging that Mr. Kruse developed mesothelioma because he was exposed to asbestos containing avionics equipment while he served as an avionics electronics technician in the United States Navy and Air Force from 1955 to 1975. He was diagnosed with the disease in 2019; in their complaint, the Kruses made allegations of design defects and failure to warn, among other claims, against over two dozen military contractors and other entities, including Lockheed Martin, Boeing, General Dynamics, Rockwell Collins, AVCO Corporation, and Unisys Corporation (the "Defendants").

Lockheed Martin removed the case to federal court based on the Federal Officer Removal Statute, as set forth in 28 U.S.C. Section 1442(a)(1) (the "Statute"). Six other defendants joined Lockheed's removal, asserting the following as additional grounds for removal and subject matter jurisdiction in federal court: federal enclave doctrine; the government contractor defense; derivative sovereign immunity; and the combatant activities exception to the Federal Tort Claims Act. Consent of all of the Defendants to removal was not required under the Statute. Because the Court ruled that the action properly was removed under the Statute, it did not reach or rule on the merits of the additional asserted grounds for removal to federal court.

The Statute "authorizes 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." In order to remove an action under the Statute, "a defendant must establish: (1) that it is a person within a meaning of the statute; (2) that it can assert a colorable federal defense; and (3) that there is a causal nexus between its actions, taken pursuant to a federal officer's directions, and plaintiffs' claims." The first element was not in dispute in this case, requiring the Court only to address prongs (2) and (3) of this test. The Court began by observing that the Ninth Circuit has broadly construed the Statute in favor of removal.

To remain in federal court under prong (2), the Defendants only needed to demonstrate a colorable federal defense to any one (not all) of plaintiff's claims. Lockheed Martin and General Dynamics offered evidence, in the form of affidavits from retired personnel, of a colorable government contractor defense to plaintiff's claims. This defense would make the contractors immune from liability under the following circumstances that were addressed by the affidavits: "(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."

To remain in federal court under prong (3), the "causal nexus" test, defendants were required to show that "(1) Defendants' actions, taken pursuant to the Navy and Air Force's directions, are 'actions under' a federal officer and (2) those actions are causally connected to Plaintiffs' alleged injuries." The Court observed that the hurdle erected by the causal connection requirement is "quite low," and that a defendant "need only show that the challenged acts occurred because of what they were asked to do by the Government."

The Court concluded, based on the affidavits of the retired personnel and on the plaintiffs' own complaint allegations about their injuries being caused by defective design of military avionics equipment that "released respirable asbestos fibers," that the Defendants had met their burdens under prongs (2) and (3), and that the Court therefore had subject-matter jurisdiction over the matter. As a result, the Court denied plaintiffs' motion to remand the matter to state court.

Among other things, this case illustrates the importance of asserting all supportable grounds in removal petitions and of submitting well-developed affidavits to support the existence of a colorable federal defense.Kruse, et. al v Actuant Corp., et al., No, 19-cv-9540, 2020 U.S. Dist. LEXIS 107109 (C.D. Calif. June 18, 2020)

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