Akin v. Big Three Industries, Inc., 1:93-CV 0382.

• Decision Date: 21 March 1994
• Docket Number: No. 1:93-CV 0382.,1:93-CV 0382.
• Parties: James E. AKIN, et al., Plaintiffs, v. BIG THREE INDUSTRIES, INC., et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

851 F. Supp. 819

James E. AKIN, et al., Plaintiffs, v. BIG THREE INDUSTRIES, INC., et al., Defendants.

No. 1:93-CV 0382.

United States District Court, E.D. Texas, Beaumont Division.

March 21, 1994.

Mitchell Toups, Beaumont, TX, for plaintiffs.

Kent Adams, Arthur Almquest, Beaumont, TX, Samuel E. Stubbs, Richard Josephson, Martin L. Mayo, Houston, TX, Gerald R. Flatton, M.C. Carrington, Beaumont, TX, for defendants.

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS' MOTION TO REMAND AND GRANTING DEFENDANTS' MOTION TO TRANSFER VENUE

COBB, District Judge.

Pending before the court are the following motions: (1) Plaintiffs' Motion to Remand and (2) Defendants' Motion to Transfer Venue. The court, having considered the briefs and arguments of counsel, is of the opinion that the Plaintiffs' Motion to Remand should be DENIED and the Defendants' Motion to Transfer Venue should be GRANTED.

I. BACKGROUND

This toxic tort case arises out of alleged chemical exposure at Tinker Air Force Base in Oklahoma City, Oklahoma. Approximately two hundred Tinker employees brought negligence and strict products liability claims against various corporate manufacturers. Plaintiffs allege multiple adverse health affects resulting from work performed on jet engines manufactured for the United States Air Force.

On November 13, 1992, plaintiffs filed a state court suit in Beaumont, Texas. The pleadings alleged "plaintiffs would show that all Plaintiffs were exposed to hazardous chemicals, including, but not limited to cobalt, chromium, cadmium, acetylene, ethanol and heptane while working for the United States Air Force at Tinker Air Force Base in Oklahoma City, Oklahoma." The plaintiffs further alleged "each plaintiff ... was exposed to the dust and fumes of the jet engine and jet engine parts" and that "plaintiffs were also exposed to numerous other hazardous chemicals while working at the air force base." Plaintiffs' first, second, and third amended petitions made similar allegations.

During discovery, defendants sent interrogatories to plaintiffs. This discovery sought evidence regarding the precise location of each exposure and the extent to which the plaintiffs performed their duties "on base." The interrogatories also sought information regarding the types of chemicals to which plaintiffs were exposed. In addition, the defendants requested information about any adverse health effects which were caused by materials worked with at Tinker.

On July 16, 1993, the plaintiffs served responses to the interrogatories. With respect to questions inquiring where the various plaintiffs performed their duties, each response stated "all duties were performed on base." (See, e.g., Plaintiff James E. Akin's Answers to Interrogatories, Interrogatory No. 32). Additionally, the responses identified various chemicals to which each plaintiff was exposed. (See id., Interrogatory No. 5). Finally, the plaintiffs identified the health problems, if any, caused by substances worked with at Tinker. (See id., Interrogatory No. 12).

On August 13, 1993, Defendant General Electric Company (GE), joined by all other defendants, removed the case to this court. The notice of removal asserted two bases for federal question jurisdiction: (1) the alleged exposures occurred on a federal enclave, and (2) GE was a person acting under a federal officer. Simultaneously, defendants moved to transfer venue to the Western District of Oklahoma on the grounds that it is a more convenient forum in which to litigate. In opposition, plaintiffs moved to remand, asserting (1) federal question jurisdiction does not exist and (2) the removal was untimely.

II. PLAINTIFFS' MOTION TO REMAND

The Court first considers plaintiffs' motion to remand. Resolution of the motion requires the court to delve into issues of federal enclave jurisdiction, federal officer removal, and timeliness of removal. Addressing the issues in that order, the Court will first determine whether federal enclave jurisdiction is present.

A. Federal Enclave Jurisdiction

The Fifth Circuit described the nature of federal enclave jurisdiction in Mater v. Holley, 200 F.2d 123 (5th Cir.1952). Mater involved a personal injury sustained at Fort McPherson, Georgia. The plaintiff originally brought a negligence claim in federal district court, but her suit was dismissed by that court for lack of subject matter jurisdiction.

On appeal, the Fifth Circuit reversed. That court noted that as a Constitutional matter, the Congress had exclusive legislative power over "all Places purchased by the consent of the legislature of the State in which the same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings." U.S. CONST. art. I, § 8, cl. 17. The Court reasoned that any law existing in territory over which the United States has exclusive sovereignty must derive its authority and force from the United States and is for that reason federal law. Mater, 200 F.2d at 124. The Court held that the district court had federal question jurisdiction over the case because it "would be incongruous to hold that although the United States has exclusive sovereignty in the area here involved, its courts are without power to adjudicate controversies arising there...." Id.

James Madison proposed the idea of granting Congress exclusive legislative powers over land purchased for the public benefit. See generally Capt. Richard T. Altieri, Federal Enclaves: The Impact of Exclusive Legislative Jurisdiction Upon Civil Litigation, 72 MIL.L.REV. 55, 59 (1976). The Constitutional clause prevents state legislative interference with public lands. Similarly, Mater's conclusion that there should be a federal forum in which to litigate controversies arising on such lands prevents state judicial interference with matters likely to involve substantial federal interests.

The present conflict presents a compelling argument for a holding that federal enclave jurisdiction exists over the tort claims. The United States Air Force is entrusted with this nation's defense. The Air Force entreated plaintiffs to perform important maintenance tasks on jet engines. All plaintiffs performed all duties on Tinker Air Force Base. And the plaintiffs now claim that these very duties — repairing jet engines — resulted in personal injuries. As a result, this court holds that in a toxic exposure case such as this, when the plaintiffs' claims arise out of exposure to chemicals on base in furtherance of their employment duties, enclave jurisdiction is properly invoked. The result of this holding is that the case presents a question arising under federal law, 28 U.S.C. § 1331, and is removable under 28 U.S.C. § 1441(a).¹

B. Federal Officer Removal Jurisdiction

GE also argues that, even if federal enclave jurisdiction is not present, it is entitled to remove under 28 U.S.C. § 1442(a)(1). That section allows federal officers or persons acting under them to remove a case provided certain requirements are met. First, since GE is not a federal officer, it must be a "person" within the meaning of 28 U.S.C. § 1442(a)(1). Second, GE must assert a colorable claim to a federal defense. Third, GE must show that it is being sued for acts taken "under color of" or at the direction of the federal officer.

1. Is GE a "person" as contemplated by 28 U.S.C. § 1442(a)(1)?

The first question is whether GE, as a corporation, is a "person" as that term is contemplated by 28 U.S.C. § 1442(a)(1). The Fifth Circuit spoke to this issue in Peterson v. Blue Cross/Blue Shield of Texas, 508 F.2d 55 (5th Cir.1975). Peterson involved a malicious prosecution case brought by a physician against corporate defendants for his alleged wrongful suspension under the Medicare program. Peterson, 508 F.2d at 57. The defendants removed the case under § 1442(a)(1) alleging federal officer removal jurisdiction. The court stated that "it is indisputable that each of the defendants was either an `officer of the United States or an agency thereof, or person acting under him.'" Id. (emphasis added). Peterson, therefore, suggests that the term "person" encompasses more than just natural persons.² Many district courts have also concluded that "person" as used in § 1442(a)(1) includes corporations. See Pack v. AC and S, Inc., 838 F.Supp. 1099, 1102 (D.Md.1993); Fung v. Abex Corp., 816 F.Supp. 569, 572 (N.D.Cal.1992); Ryan v. Dow Chemical Co., 781 F.Supp. 934, 946 (E.D.N.Y.1992).

Plaintiffs' reliance on International Primate Protection League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 111 S.Ct. 1700, 114 L.Ed.2d 134 (1991) is misplaced. International Primate simply holds that a federal agency is not entitled to remove under § 1442(a)(1). That case does not apply for two reasons: First, GE is not a federal agency. Second, GE asserts it acted under the Secretary of the Air Force and not under the direction of any federal agency. In accordance with the great weight of authority, the Court therefore holds that GE is a person within the meaning of 28 U.S.C. § 1442(a)(1).

2. Can GE assert a colorable claim to a federal defense?

To remove as a federal officer, GE must assert a colorable claim to a federal defense. Mesa v. California, 489 U.S. 121, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). The purpose for this requirement is to ensure that the federal district court is passing on a question of federal law. In other words, assertion of the federal defense provides federal question jurisdiction which makes the case suitably removable. Therefore, the defendant removing under the federal officer statute is not bound by the well-pleaded complaint rule which ordinarily governs whether the case presents a federal question. Mesa, 489 U.S. at 136-37, 109 S.Ct. at 968-69.

GE argues it has a colorable claim to the government contractor defense set forth in Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988). In Boyle, the Supreme Court held that liability...