United States District Court, E.D. Pennsylvania
ROBERT J. KRAUS and MARGARET M. KRAUS, h/w
ALCATEL-LUCENT, ALLEN-BRADLEY COMPANY, AMETEK, INC., BBC BROWN BOVERI, k/n/a ABB, Inc., BELDEN WIRE & CABLE COMPANY, LLC, CBS CORPORATION, formerly known as Westinghouse Electric Corporation, CLARK CONTROLLER CO., ESPEY MANUFACTURING & ELECTRONICS CORP., FORD MOTOR CO., GENERAL DYNAMICS, GENERAL ELECTRIC COMPANY, GOULD ELECTRONICS, INC., GTE PRODUCTS OF CONNECTICUT CORPORATION, HONEYWELL INTERNATIONAL, HONEYWELL, INC., IMO INDUSTRIES, INC., formerly known as DeLaval Steam Turbine Company, ITT INDUSTRIES, L-3 COMMUNICATIONS, LOCKHEED MARTIN CORPORATION SERVICE COMPANY, METROPOLITAN LIFE INSURANCE CO., MINNESOTA MINING AND MANUFACTURING, MOTOROLA SOLUTIONS, NAVCOM DEFENSE ELECTRONICS, NORTHROP GRUMMAN NORDEN SYSTEMS, NORTHROP GRUMMAN CORPORATION, PHILIPS NORTH AMERICA, LLC, RAYTHEON, ROCKBESTOS CO., ROCKWELL COLLINS, INC., ROGERS CORPORATION, SPACE SYSTEMS/ LORAL, SQUARE D COMPANY, UNISYS and UNITED TECHNOLOGIES
Robert and Margaret Kraus move to remand this asbestos case
to the Pennsylvania state court from which it was removed
pursuant to the federal officer removal statute, 28 U.S.C.
§ 1442(a)(1). They argue that because the defendants
fail to state a colorable federal defense, we lack subject
matter jurisdiction. The removing defendants insist that as
federal government contractors, they properly removed the
conclude that the removing defendants have satisfied the four
requirements of the federal officer removal statute. Thus, we
shall deny the motion to remand.
to his complaint, Robert Kraus (Kraus) was exposed to
asbestos during his service in the Navy aboard the U.S.S.
Cambria and later when working at General Electric. From
July 1964 through May 1967, Kraus was a seaman on the
Cambria as the electronics officer and subsequently
the communications officer working in close proximity to
asbestos-containing electronic equipment.
also contends that he suffered from asbestos exposure while
employed by General Electric after his Navy
service. While working for General Electric from
1969 to 1981, Kraus worked near asbestos-containing
electronic equipment, and he was exposed to asbestos in the
office building located at 32nd and Chestnut Streets in
removing defendant contractors manufactured and installed
equipment and materials on the Cambria that
contained asbestos, including ship service turbine
generators, turbines, radar equipment, and radio
equipment. The defendants manufactured and designed
equipment and materials for the Navy in conformity with the
Navy's strict and detailed guidelines, known as military
being diagnosed with mesothelioma in December 2017, Kraus
filed suit in the Court of Common Pleas of Philadelphia
County, asserting claims for design defect and failure to
warn. He alleges that the defendants negligently
processed, manufactured, packaged, distributed, delivered and
sold products containing asbestos without warnings. In
support of his design defect claim, Kraus contends that the
defendants were negligent in manufacturing, selling, or
supplying asbestos-containing products, which were defective
because they contained asbestos. He also contends that the
defendants' design of the products and failure to warn
him of the health hazards associated with asbestos exposure
were the actual and proximate causes of his mesothelioma.
defendants timely removed the case under 28 U.S.C. §
1442(a)(1). Kraus responded by moving for remand, arguing
that the defendants have not stated a colorable federal
defense to the failure-to-warn claim. Opposing remand, the
defendants contend they state a colorable federal defense,
supported by several affidavits. They rely on the government
contractor defense annunciated in Boyle v. United Techs.
Corp., 487 U.S. 500 (1988).
typical case, a federal defense does not give rise to federal
question jurisdiction. Jefferson Cty. v. Acker, 527
U.S. 423, 430 (1999) (citing Louisville & Nashville
R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)). The
federal officer removal statute, 28 U.S.C. § 1442(a)(1),
is an exception to the rule. It allows a defendant to remove
a nonfederal action where the defendant has a defense based
on federal law. Id. at 430-31.
defendant may remove under § 1442(a)(1) only where the
facts, viewed in the light most favorable to the defendant,
entitle the defendant to a complete defense. Papp v.
Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016)
(quoting In Re Commonwealth's Motion to Appoint
Counsel Against or Directed to Defender Ass'n of
Phila., 790 F.3d 457, 466 (3d Cir. 2015), cert.
denied, 136 S.Ct. 980 & 994 (2016)). A defendant
“need not win his case before he can have it
removed.” Id. at 815 (quoting Willingham
v. Morgan, 395 U.S. 402, 407 (1969)). At the removal
stage, the defendant need only show that the asserted
Boyle defense is “colorable, ” that it
is legitimate and can “reasonably be asserted, given
the facts presented and the current law.” Id.
(citation omitted). A court does not “determine
credibility, weigh the quantum of evidence or discredit the
source of the defense” at this stage. Id.
Instead, we only determine whether there are sufficient facts
alleged to raise a colorable defense.
the federal officer removal statute originally applied only
to federal officers, it was amended to expand its scope to
cover “any person acting under that officer.” 28
U.S.C. § 1442(a)(1). The statute now applies if the
defendant claims it was acting under the direction of a
federal officer or agency. Id.
A civil action . . . commenced in a State court and that is
against . . . any of the following may be removed by them to
the district court of the United States for the district and
division embracing the place wherein it is pending:
(1) 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. . . .
the general removal statute, which is construed against
removal, the federal officer removal statute is broadly
construed in favor of a federal forum. Papp, 842
F.3d at 811-12 (quoting Defender Ass'n, 790 F.3d
at 466-67 (internal citation and quotation marks omitted)).
action may be removed under the federal officer removal
statute where: (1) the defendant is a “person”
within the meaning of the statute; (2) the claims are based
upon the defendant's conduct while “acting
under” the federal government, its agencies, or its
officers; (3) the claims are “for, or relating
to” an act under color of federal office; and (4) the
defendant raises a colorable federal defense to the
plaintiff's claims. Id. at 812 (quoting
Defender Ass'n, 790 F.3d at 467). In this case,
the removing defendants have satisfied all four requirements.
defendants are persons within the meaning of §
1442(a)(1). For purposes of the statute, a person includes
corporations and companies. See id.
defendants were “acting under” a federal agency
pursuant to contracts with the Navy to provide equipment and
materials. They produced or supplied equipment or materials
to outfit the Cambria that the Navy itself would
have had to produce. See Id. (quoting Ruppel v.
CBS Corp., 7 ...