Freiberg v. Swinerton & Walberg Property Services

• Decision Date: 04 November 2002
• Docket Number: No. CIV.A.02-K-1290.,No. CIV.A.02-K-1272.,No. CIV.A.02-K-1289.,CIV.A.02-K-1272.,CIV.A.02-K-1289.,CIV.A.02-K-1290.
• Citation: 245 F.Supp.2d 1144
• Parties: Kenneth FREIBERG and Mary Sue Freiberg, Plaintiffs, v. SWINERTON & WALBERG PROPERTY SERVICES, INC., et al., Defendants. Vincent Soderquist, Plaintiff, v. Swinerton & Walberg Property Services, Inc., et al., Defendants. Sandra Vanhooser, et al. Plaintiffs, v. Swinerton & Walberg Property Services, Inc., et al., Defendants. Rudolph Dionigi, et al., Plaintiffs, v. John Crane, et al., Defendants. Roger Stingley and Patricia Stingley, as husband and wife, Plaintiff, v. The Flintkote Corporation, et al.
• Court: U.S. District Court — District of Colorado

245 F.Supp.2d 1144

Kenneth FREIBERG and Mary Sue Freiberg, Plaintiffs, v. SWINERTON & WALBERG PROPERTY SERVICES, INC., et al., Defendants.

Vincent Soderquist, Plaintiff, v. Swinerton & Walberg Property Services, Inc., et al., Defendants.

Sandra Vanhooser, et al. Plaintiffs, v. Swinerton & Walberg Property Services, Inc., et al., Defendants.

Rudolph Dionigi, et al., Plaintiffs, v. John Crane, et al., Defendants.

Roger Stingley and Patricia Stingley, as husband and wife, Plaintiff, v. The Flintkote Corporation, et al.

No. CIV.A.02-K-1272.

No. CIV.A.02-K-1289.

No. CIV.A.02-K-1290.

United States District Court, D. Colorado.

November 4, 2002.

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John Conrad Metcalf, Deborah Taussing, Trine & Metcalf, PC, Boulder, CO, for Plaintiffs.

Daniel M. Fowler, Fowler, Schimberg & Flanagan, PC, Steven M. Kaufmann, Morrison & Foerster, Denver, CO, Shauna L. Hilgers, Shauna Hilgers Law Offices, Arvada, CO, Bradley Aaron Levin, Roberts, Levin & Patterson, P.C., James M. Miletich, McConnell, Siderius, Fleischner, Houghtaling & Denver, CO, Gary M. Clexton, Miller & Steiert, P.C., Littleton, CO, Mary Price Birk, Baker & Hostetler, Christopher K. Miller, Kennedy & Christopher, P.C., David M. Setter, Socha, Perczak & Anderson, PC, Denver, CO, for Defendants.

ORDER REMANDING CASES TO STATE COURT

KANE, District Judge.

Defendant contractors and former manufacturers and distributors of asbestoscontaining products invoke 28 U.S.C. § 1442(a)(1) to remove five state law personal injury/asbestosis actions from state to federal court. Defendants join in the Removal Notice of Co-Defendant Swinerton Walberg Property Services, Corp. ("Swinerton"), one of the contractors whose construction activities at the U.S. government's Rocky Flats nuclear weapons production facility form the basis of Plaintiffs' exposure claims. Swinerton asserts it was "acting under" a federal agency when it engaged in the acts giving rise to Plaintiffs' claims, such that it is entitled to removal as a "federal officer" under § 1442(a)(1). Plaintiffs move for remand, arguing the acts giving rise to their claims were construction activities wholly independent of Rocky Flats's federal purpose and not entitled to special federal officer protection. I grant the Motions for Remand.

I. INTRODUCTION.

These five state law asbestos exposure personal injury actions are before me on two Notices of Removal and resulting Motions for Remand. The first, filed by Defendant Camfil Farr in 02-1272, is premised on federal question jurisdiction under 28 U.S.C. § 1441, asserting the alleged injuries of Plaintiffs Kenneth and Mary Freiberg occurred on a federal enclave such that federal question jurisdiction exists irrespective of the lack of a federal claim. Notice of Removal, No. 02-K-1272 (filed 7/2/02).

Co-Defendant Swinerton followed the Camfil Farr's Notice with a Notice of its own, filed in 02-K-1272 as well as in three similar actions then-pending in state court in Boulder County, Colorado. See Notices of Removal, Nos. 02-K-1272, 02-K-1289, 02-K-1290, 02-K-1291 (all filed 7/5/02).¹ Swinerton's Notices asserted removal jurisdiction under 28 U.S.C. § 1442(a)(1), which provides a separate and independent basis for removal of state law actions by federal officers or their agents for acts taken "under color" of that office. Because federal officer removal under § 1442(a)(1) is an exception to the general rule requiring all defendants to join in a removal, Akin v. Ashland Chemical Co., 156 F.3d 1030, 1034 (10th Cir. 1998), consent, which quickly became an issue with respect to Camfil Farr's Notice, is not an issue with respect to the Swinerton Notices.

With the exception of 02-K-1767, which was filed in July 2002, the individual state court actions had been pending in state court for some time before they were removed. The Freibergs' action (02-1272), for example, had been pending since September 2001, nearly one year before Camfil and Swinerton filed their Removal Notices.

The Plaintiffs in all five civil actions immediately moved to remand the cases to state court, arguing federal officer removal is inappropriate in this case because the nexus between Swinerton's government contractor status and the harm alleged is too remote to satisfy the jurisdictional prerequisites for removal under § 1442(a)(1). Given that these actions have since been conditionally transferred by the Judicial Panel on Multidistrict Litigation to the United States District Court for the Eastern District of Pennsylvania, Plaintiffs argued further that removal may also, as a practical matter, deprive them of any meaningful relief.² Mr. Freiberg's prognosis, like those of the other Plaintiffs, is poor.

The Motions for Remand in 02-1272, 02-1289, 02-1290, 02-1291, and 02-1767 are set for oral argument on November 14, 2002. I vacate the oral argument and grant the Motions for Remand on the briefs.

II. DISCUSSION.

Both Camfil Fair and Co-Defendant ABB Lummus Global Inc. ("Lummus") have joined in Swinerton's Notices of Removal such that federal officer jurisdiction forms the basis for removal in all five actions.³ Accordingly, my analysis of the validity of removal in these cases is limited to § 1442(a)(1).

A. 28 U.S.C. § 1442(a)(1)—Legal Standard and History.

In addition to providing for the removal of civil actions from state to federal court upon a showing of federal jurisdiction generally, Congress has also granted a right of removal to federal officers who face civil or criminal actions in state court for their official acts. 28 U.S.C. § 1442(a)(1),⁴ applied in City of Aurora v. Erwin, 706 F.2d 295, 296 (10th Cir.1983). See generally 14C Charles A. Wright, Arthur R. Miller, & Edward E. Cooper, Federal Practice and Procedure: Jurisdiction 3d § 3727 (3d ed.1998). The right of removal may extend to private individuals or entities "acting under" a federal officer, Ryan v. Dow Chemical Co., 781 F.Supp. 934 (E.D.N.Y.1992), as long as the private actor asserts a colorable federal defense to the state claims, id. at 939 (citing Mesa v. California, 489 U.S. 121, 129, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989)), and demonstrates a sufficient causal nexus between what it has done under asserted official authority and the acts giving rise to the state claims. Id. (citing Maryland v. Soper, 270 U.S. 9, 33, 46 S.Ct. 185, 70 L.Ed. 449 (1926)). See also Mesa at 131-32 (discussing § 1442(a)(1) causal connection requirement and test articulated by Chief Justice Taft in Soper No. 1).

In Mesa, the Supreme Court recapitulated the "`long history'" of § 1442(a) from its origin in the Act of February 4, 1814 as a congressional response to New England's opposition to the War of 1812, through its expansion in 1833 in response to efforts by southern states to nullify federal laws by state statute, and its further expansion in the Civil War era as the need to enforce unpopular revenue laws became acute. 489 U.S. at 125-26, 109 S.Ct. 959 (quoting Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969)). See generally, Wright & Miller, supra, at p. 134. Its purpose is to prevent state courts from interfering with the implementation of federal law, see id., and does so by allowing those whose federal activity may be inhibited by state court actions to remove to the presumably less biased forum of federal court. Ryan, 781 F.Supp. at 939. See Erwin, 706 F.2d at 296 ("`section 1442(a)(1) is intended to provide a forum free from local interests and prejudice in which the federal officer can assert immunity defenses based on official conduct' "Xquoting Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). The provision confers subject matter jurisdiction over properly removed actions. Ryan, at 939.

Because it is premised on the protection of federal activity and an anachronistic mistrust of state courts' ability to protect and enforce federal interests and immunities from suit, private actors seeking to benefit from its provisions bear a special burden of establishing the official nature of their activities. See Ryan, 781 F.Supp. at 950-51 (applying facts in Agent Orange personal injury action in light of purposes of § 1442 and holding federal officer removal inappropriate where application of federal defense, to extent applicable to private contractor in that case, not "fraught with difficulty or subject to considerable manipulation" and state court action had only speculative negative impact on federal interests).

B. Swinerton's Notice of Removal.

Under Mesa and Soper (No. 1), proper removal of an action under § 1442(a)(1) requires satisfaction of two elements: the raising of a colorable federal defense and the demonstration of a causal connection between what the defendant has done under federal authority and plaintiffs state court claims. In order to meet the causation element, a defendant must prove that the acts being sued upon were undertaken by a federal officer or person "`acting under'" him and that those acts were "`under color of the relevant federal office.'" Id. (citations omitted).

To invoke "federal officer" status for purposes of § 1442(a)(1) removal in this case, Swinerton must (1) show it was "acting under" the direction of a federal officer when performing its construction activities at Rocky Flats during the time periods relevant to plaintiffs' asbestos exposure claims; (2) raise a colorable federal defense to plaintiffs' claims; and (3) establish that there is a causal connection between the activities carried out under federal authority and the state court actions. Ryan, 781 F.Supp. at 939; accord Ruffin v. Armco Steel Corp., 959 F.Supp. 770, 775 (S.D.Tex.1997); Good v. Armstrong World Indus., 914 F.Supp. 1125, 1127 (E.D.Pa. 1996); Pack v. AC & S, Inc., 838 F.Supp. 1099, 1101 (D.Md.1993); Fung v. Abex Corp., 816 F.Supp. 569, 571-72 (N.D.Cal.1992)(asbestos exposure cases). As in any removal action in this circuit, ...