Moore v. Elec. Boat Corp.

• Decision Date: 31 January 2022
• Docket Number: 21-1566
• Court: U.S. Court of Appeals — First Circuit
• Parties: MICHAEL J. MOORE; ROSE MOORE, Plaintiffs, Appellees, v. ELECTRIC BOAT CORPORATION, d/b/a General Dynamics Electric Boat, Defendant, Appellant, CRANE CO.; ECKEL INDUSTRIES, INC.; FOSTER WHEELER ENERGY CORP.; MELRATH GASKET, INC.; NIANTIC SEAL, INC.; P.I.C. CONTRACTORS, INC.; TACO, INC.; VIMASCO CORPORATION; PACKING & INSULATION CORPORATION, Defendants.

MICHAEL J. MOORE; ROSE MOORE, Plaintiffs, Appellees,
v.
ELECTRIC BOAT CORPORATION, d/b/a General Dynamics Electric Boat, Defendant, Appellant,

CRANE CO.; ECKEL INDUSTRIES, INC.; FOSTER WHEELER ENERGY CORP.; MELRATH GASKET, INC.; NIANTIC SEAL, INC.; P.I.C. CONTRACTORS, INC.; TACO, INC.; VIMASCO CORPORATION; PACKING & INSULATION CORPORATION, Defendants.

No. 21-1566

United States Court of Appeals, First Circuit

January 31, 2022

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary S. McElroy, U.S. District Judge]

Matthew S. Hellman, with whom Nancy Kelly, Sarah J. Clark, Gordon Rees Scully Mansukhani LLP, and Jenner & Block LLP were on brief, for appellant.

Michael L. Gorwitz, with whom S. Ann Saucer, John E. Deaton, The Deaton Law Firm, LLC, and Fears Nachawati, PLLC were on brief, for appellees.

Before Lynch, Kayatta, and Gelpí, Circuit Judges.

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LYNCH, CIRCUIT JUDGE.

Electric Boat Corporation is a federal contractor which has built submarines for the United States Navy for more than 100 years, including the submarine involved in this case: the USS Francis Scott Key. Michael Moore, who was enlisted in the Navy, was assigned to work as an electronics technician aboard the USS Francis Scott Key from 1965 to 1969. Decades after he was exposed to asbestos during construction of the submarine, Michael Moore and his wife Rose (collectively, "Moore") filed suit against Electric Boat and other defendants alleging the various state claims described further below.

In October 2020, Electric Boat removed the case to federal court under 28 U.S.C. § 1442, the federal officer removal statute. In response, Moore filed a motion before the district court to remand to state court. After full briefing, in July 2021, the district court granted Moore's remand motion, finding that Electric Boat had failed to satisfy the § 1442(a)(1) requirements for federal officer removal. See Moore v. Crane Co., No. 20-cv-00466-LDA, 2021 WL 2719258, at *5 (D.R.I. July 1, 2021).

The district court interpreted the statute in a manner inconsistent with the 2011 congressional amendment to § 1442(a)(1). Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545. We reverse and hold that Electric Boat has established the statutory requirements for removal.

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I.

A. Factual Background

During the mid-1960s, Electric Boat built the USS Francis Scott Key for the Navy at its shipyard in Groton, Connecticut. The Electric Boat shipyard operated "in accordance with government contracts, in conformance with military specifications, and under Navy oversight." The Navy supervised Electric Boat's operations, had designated officials present at the Electric Boat shipyard to oversee Electric Boat's employees, and maintained a substantial presence at the shipyard, including offices, sleeping quarters, training centers, and other facilities. The Navy oversaw every aspect of the design, construction, maintenance, and modernization of its submarines like the USS Francis Scott Key.

Michael Moore, who was serving in the Navy at the time, worked as an electronics technician aboard the USS Francis Scott Key from 1965 to 1969. He alleges that he was exposed to asbestos and asbestos-containing products while at the "premises owned and/or controlled" by Electric Boat. In September 2018, he was diagnosed with lung cancer caused by exposure to asbestos.

B. Procedural History

In Rhode Island state court, Moore brought several claims against all defendants, including failure to warn, negligence, strict product liability, breach of warranty, and

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conspiracy. As to Electric Boat specifically, Moore also alleged that Electric Boat "fail[ed] to provide safe equipment," "fail[ed] to provide adequate safety measures and protection," "fail[ed] to adequately warn . . . of the inherent dangers of asbestos," "fail[ed] to maintain . . . proper and safe condition[s]" on the premises, and "fail[ed] to follow and adhere" to state and federal laws and regulations.

After Electric Boat removed the case to federal court under § 1442(a)(1), Moore moved to remand to state court. Electric Boat opposed and submitted several exhibits in support of removal, including affidavits from Bradford Heil, a retired Electric Boat employee, and Admiral John B. Padgett, III, a retired Rear Admiral in the Navy. Padgett's affidavit stated that the Navy "directed, controlled and approved any warnings relating to health or safety to its servicepersons such as Mr. Moore." Moore did not submit any affidavits in response.

In July 2021, the district court granted the motion to remand. The district court first held that, to satisfy the requirements for removal under § 1442(a)(1), Electric Boat must demonstrate that "it was acting 'under color' of a federal official or agency" and that there was "a causal link between the 'acting under' restrictions and the cause of plaintiff's injury." Moore, 2021 WL 2719258, at *2. Applying this standard to the facts of the case, the court held that Electric Boat failed to satisfy the

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§ 1442(a)(1) requirements because Electric Boat's proffered evidence "fail[ed] to address the premises theory of liability." Id. at *4.

The court also held that, to defend removal, Electric Boat would need to "demonstrate that the Navy controlled the...