Because of this potential manipulation in the atmosphere of state bias, Congress believed that federal officers needed the protection of a federal forum in which to raise their federal defenses. Id. at 86-87. Thus, Congress permitted removal because it was concerned with two factors: state interference with the implementation of federal policy AND state court manipulation of a federal defense. Where the first factor exists but the second factor does not, the Supreme Court has prohibited removal. For example, agencies have not been permitted to remove their cases under § 1442(a)(1) because the determination of an agency's immunity is "sufficiently straightforward that a state court, even if hostile to the federal interest, would be unlikely to disregard the law." Id. at 85.
The government contractor defense provides to a defendant who designs or manufactures products at the direction of the federal government an escape from liability for injuries caused by those products. To successfully invoke the defense, the supplier must show that the United States approved reasonably precise specifications; the equipment conformed to those specifications; and the supplier warned the United States about the dangers in the use of the equipment that were known to it but not to the United States. Boyle, 487 U.S. at 512.
The Supreme Court fashioned the government contract defense to displace state law because there exists a unique federal interest in civil liability arising out of the performance of federal procurement contracts. Boyle, 487 U.S. 500 at 506, 101 L. Ed. 2d 442, 108 S. Ct. 2510. I question whether that federal interest exists in this case. The impact of this personal injury action on the federal interest in protecting future defense procurement -- the fundamental point of the government contract defense -- is speculative. It is common knowledge that asbestos is no longer used in the design and manufacture of equipment, so that this lawsuit cannot interfere with a federal program involving products that contain asbestos. Therefore, the adjudication of this personal injury action in state court does not threaten the enforcement of a federal policy sufficient to warrant removal.
Even assuming that the federal interest underlying the government contractor defense is present, simply noting the presence of a federal interest does not provide a sufficient or necessary basis to allow removal. "It is the concern for state court bias against the federal government that is the ultimate justification for . . . removal." Ryan, 781 F. Supp. at 951. When enacting the federal officer removal statute, Congress sought to distinguish lawsuits on the basis of their susceptibility to state court manipulation. The government contractor defense is not subject to such manipulation. Unlike a federal officer's defense of immunity, the government contract defense by a corporation raises straightforward common law issues that state courts are as adept at handling as the federal judiciary. Ryan, 781 F. Supp. at 951.
In cases where removal is doubtful, the case should be remanded. Ryan, 781 F. Supp. at 939; Roche v. American Red Cross, 680 F. Supp. 449, 451 (D. Mass. 1988). Even assuming the timeliness of the notice of removal filed by Westinghouse, I hold that Westinghouse has not shown that it acted under an officer of the United States, thereby failing to satisfy the causal connection required by Mesa. Moreover, given the purpose of the federal officer removal statute and its intent to protect the enforcement of federal policy and preclude the manipulation of federal defenses, and having found that the existence of the first concern is speculative and that the second concern has been eliminated, removal is not appropriate in this case.
An appropriate order follows.
AND NOW, this 18th day of January, 1996, upon consideration of the motion of Charles Good and Carolyn Good to remand (Document No. 4), and the response of Westinghouse Electric Corporation ("Westinghouse") thereto, having found that Westinghouse did not meet its burden of showing that removal is clearly appropriate pursuant to 28 U.S.C. § 1442(a)(1) by failing to set forth sufficient facts to demonstrate that it acted under an officer of the United States, it is hereby ORDERED that motion of plaintiffs Charles Good and Carolyn Good is GRANTED.
IT IS FURTHER ORDERED that the within action is REMANDED to the Court of Common Pleas of Philadelphia County, Pennsylvania at May Term 1993 No. 1736.
The Clerk of Court shall forthwith return the record to the Prothonotary of the Court of Common Pleas of Philadelphia County.
LOWELL A. REED, JR., J.
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