Moore v. Elec. Boat Corp.

• Decision Date: 31 January 2022
• Docket Number: No. 21-1566,21-1566
• 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.
• Court: U.S. Court of Appeals — First Circuit

25 F.4th 30

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

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.

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, ––– A.3d ––––, ––––, 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.

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 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, ––– A.3d at ––––, 2021 WL 2719258, at *2. Applying this standard to the facts of the case, the court held that Electric Boat failed to satisfy the § 1442(a)(1) requirements because Electric Boat's proffered evidence "fail[ed] to address the premises theory of liability." Id. at ––––, 2021 WL 2719258, *4.

The court also held that, to defend removal, Electric Boat would need to "demonstrate that the Navy controlled the warnings at the shipyard itself, to such an extent as to preclude Electric Boat from fulfilling its duty to warn." Id. (emphasis in original). The court then found that "there is no support here for the proposition that the Navy prohibited workplace warnings." Id. at ––––, 2021 WL 2719258, *5.¹

Electric Boat timely appealed.

II.

We review de novo the district court's jurisdictional determination on removal. See Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 73 (1st Cir. 2014). Where the district court resolves disputed issues of fact, we review those factual findings for clear error. See id.; Amoche v. Guar. Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009). To the extent the district court found that the Navy did not control any and all warnings concerning the health and safety of servicepersons working on the USS Francis Scott Key and at the Electric Boat shipyard, that finding was clear error.

A. Federal Officer Removal Under § 1442(a)(1)

The federal officer removal statute provides that a civil action commenced in state court may be removed if it is against or directed to:

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 or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1) (emphases added).

The district court erred by applying the "causal link" standard to federal officer removal, which is far narrower than the proper standard under § 1442(a)(1), as amended in 2011 when Congress changed the provision to reach removal based on a suit "for or relating to any act under color of [federal] office." See Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545 (emphasis added); see Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 292-96 (5th Cir. 2020) (en banc) (rejecting the "causal connection" requirement and instead applying the "relating to" standard); Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017) (same).

Electric Boat bears the burden under § 1442(a)(1), see Bor-Son Bldg. Corp. v. Heller, 572 F.2d 174, 181 n.13 (8th Cir. 1978), to establish: (1) that it was "acting under a federal officer's authority," Rhode Island v. Shell Oil Prods. Co., L.L.C., 979 F.3d 50, 59 (1st Cir. 2020), summarily vacated on other grounds, ––– U.S. ––––, 141 S. Ct. 2666, 210 L.Ed.2d 830 (2021) (Mem.); (2) that the charged conduct was carried out "for or relating to" the asserted official authority, 28 U.S.C. § 1442(a)(1) ;² and (3) that it "will assert a colorable federal defense to the suit," Shell Oil Prods., 979 F.3d at 59.

B. Electric Boat Satisfies the Standard for Federal Officer Removal Under § 1442(a)(1)

Moore does not dispute that Electric Boat has shown that it was "acting under a federal officer's authority."³ We focus on the second two requirements for removal.

1. "For or relating to"

In 2011, Congress amended § 1442(a)(1) to reach removal based on a suit "for or relating to any act under color of [federal] office." See Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545 (adding "or relating to" language to the provision).⁴ Circuits have consistently given this requirement a broad reading and held that no causal link is required. See Latiolais, 951 F.3d at 292-96 ("[W]e overrule Bartel [ v. Alcoa Steamship Co., 805 F.3d 169 (5th Cir. 2015) ] and its progeny to the extent that those cases erroneously relied on a ‘causal nexus’ test after Congress amended section 1442(a) to add ‘relating to.’ " (footnote omitted)); Sawyer, 860 F.3d at 258 ("The district court imposed a stricter standard of causation than that recognized by the statute ... which is only that the charged conduct relate to an act under color of federal office." (emphasis in original)). The First Circuit nexus standard is not a causal requirement and is not to be understood as anything more than a "related to" nexus. See Shell Oil Prods., 979 F.3d at 59.

Any single claim is independently sufficient to satisfy the "for or relating to" requirement under § 1442(a)(1). See Baker v. Atl. Richfield Co., 962 F.3d 937, 945 (7th Cir. 2020) ; C.A. Wright & A.R. Miller, Federal Practice and Procedure § 3726 (4th ed., Apr. 2021 update) ("Because Section 1442(a)(l) authorizes removal of the entire action even if only one of the controversies it raises involves a federal officer or agency, the section creates a species of statutorily-mandated supplemental subject-matter jurisdiction."). Here, all of Moore's claims against Electric Boat are "for or relating to" Electric Boat's actions taken...