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Maryland Federal District Court Finds Viable Federal Contractor Defense Under 28 U.S.C. § 1442(a)(1) in Asbestos Litigation

Tynan Smith, et al. v. Union Carbide Corp., et al.
United States District Court for the District of Maryland, Civil No. CCB-14-3742 (D. Md. July 2, 2015)

by Colleen K. O’Brien
Semmes, Bowen & Semmes (

Available at:

In Tynan Smith, et al. v. Union Carbide Corp., et al., Plaintiff, Tynan Smith, with his spouse, Mary Ellen Smith (together,"Smith"), brought an action against the Wayne Manufacturing Corporation ("Wayne"), the Lofton Corporation ("Lofton"), and several other defendants, alleging a host of state law theories that those businesses were responsible for exposing him to the asbestos that allegedly caused his head and neck cancer, asbestosis, and non¬malignant pleural changes. Wayne and Lofton removed the case from the Circuit Court of Baltimore City, asserting this court's federal officer jurisdiction under 28 U.S.C. § 1442(a)(1) on the basis of the federal contractor defense. Smith moved to remand, contesting the district court's jurisdiction. After reviewing the facts of the case, the district court denied Smith's motion.

In January 2014, Tynan Smith was diagnosed with head and neck cancer, along with fibrosis and pleural plaques. He filed a Complaint in the Circuit Court for Baltimore City. Specifically, Smith alleged theories of strict liability on the basis both of defective design and failure to warn, breach of warranty, negligence, fraud, conspiracy, market share liability, and, alongside his spouse, loss of consortium. The complaint named, among many other defendants, Wayne and Lofton as Wayne's successor in interest. Smith removed the case from the court's inactive docket and served Wayne and Lofton in October 2014. Wayne and Lofton filed their notice of removal in early December 2014.

Smith's complaint advanced only very general claims. It alleged that "Plaintiff was employed in the building and construction industry as a skilled building tradesman and was required to work with and around asbestos products which were manufactured and/or supplied by each of the Defendants." Nonetheless, the complaint failed to specify either the nature of his occupational responsibilities or the precise circumstances surrounding his exposure to asbestos. A doctor's report attached to the complaint provided the most specific such details. It stated that Smith had "worked at the Bethlehem Steel Sparrows Point Steel Mill in Baltimore, Maryland, from 1960 until 1963, as a pipefitter with asbestos exposure. He subsequently worked for the U.S. Coast Guard Shipyard from 1964 until 1974, as a pipefitter, again with asbestos exposure." Wayne and Lofton removed the case on the assumption that Smith's claims against them were premised, at least in part, on "the alleged assembling of asbestos containing Marinite-Micarta bulkhead panels allegedly used in the construction of vessels at the USCG Yard, while….Smith allegedly was employed as a pipefitter" there between 1964 and 1974. On the ground that they supplied those panels pursuant to government specifications, they asserted the federal contractor defense as a basis for federal jurisdiction. At the hearing on the defendants' motion, Smith conceded that Smith and Lofton correctly surmised the basis for his claims against them. Additionally, the court noted that Lofton incorporated in 1982 and, although Smith's complaint described Lofton as Wayne' s successor-in-interest, the basis for that assertion was unclear.

In its analysis, the district court first reviewed 28 U.S.C. § 1442(a)(1), which provides that a civil defendant may remove a case to federal court where the removing defendant: (1) is a federal officer or person who "acted under" the direction of a federal officer, (2) raises a colorable federal defense, and (3) demonstrates a causal nexus between the plaintiff's claims and the conduct performed under color of federal law. See, e.g., Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 776 (ED. Pa. 2010). Such a defendant may remove the case without the consent of its codefendants. See Citrano v. John Crane-Houdaille, Inc., 1 F. Supp. 3d 459, 465 (D. Md. 2014). The court observed that the statute is "broadly construed" to permit removal. Kolibash v. Comm. on Legal Ethics of the W. Va. Bar, 872 F.2d 571, 576 (4th Cir.1989). Further, a defendant seeking removal is held to no higher pleading standard "than the one imposed on a plaintiff in drafting an initial complaint,- Ellenburg v. Spartan Motors Chassis, Inc., 519 F.3d 192, 200 (4th Cir. 2008), which requires only allegations sufficient to "advance the plaintiffs claims 'across the line from conceivable to plausible," Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

According to the court, the defendants satisfied each of these requirements by invoking their federal contractor defense. The court stated that where a defendant removes a suit under § 1442(a)(1) on the basis of the federal contractor defense, satisfaction of that statute's "acting under" and causal nexus requirements is often redundant of its "colorable defense" requirement. See, e.g„ Hagen, 739 F. Supp. 2d at 785. Accordingly, the court assessed the colorability of the defendants' federal contractor defense before evaluating their satisfaction of the statute's remaining requirements.

With respect to the colorable federal defense, the district court noted that the defense was first recognized in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). In that case, the Supreme Court held that "pliability for design defects in military equipment cannot be imposed, pursuant to state law, when (I) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States." Id. at 512. Accordingly, the district court opined that Wayne and Lofton did not need to prove that they warned the Coast Guard of the dangers posed by asbestos to make out a colorable federal contractor defense as to any asbestos exposures that occurred after OSHA promulgated a regulation referring to asbestos exposure in 1971. Because several of the purchase orders post-dated issuance of that regulation, the district court held that the defendants stated a colorable federal contractor defense as to at least exposures caused by those purchase orders. Notably, however, the court determined that Wayne and Lofton did not plausibly allege a complete federal contractor defense against the entirety of Smith's design-defect claim; rather, at this early stage of the litigation, the court determined that the defendants alleged a defense that ran against only some of the alleged asbestos exposures. Specifically, they alleged facts sufficient to discharge their duty to warn the Coast Guard of the dangers posed by asbestos after issuance of the applicable OSHA regulation.

With respect to the "acting under” requirement of the statute, the district court explained that "the private person's 'acting under' must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior." Watson v. Philip Morris Co., 551 U.S. 142, 152 (2007). Accordingly, because Wayne and Lofton sufficiently alleged that they supplied materials pursuant to specifications, the district court held that they sufficiently alleged that they "acted under" a federal officer.

Finally, to establish a causal nexus between conduct performed under federal direction and the plaintiffs' claims, the court noted that "a defendant seeking removal must 'by direct averment exclude the possibility that [the defendant's action] was based on acts or conduct of his not justified by his federal duty." Id. at 785 (alteration in original) (quoting Mesa, 489 U.S. at 132). Again, "[t]he causal connection requirement 'is ordinarily satisfied whenever the removing defendant is able to establish a colorable government contractor defense." Citrano, 1 F. Supp. 3d at 469 (internal quotation marks and citation omitted). The district court noted that Wayne and Lofton alleged that they supplied asbestos paneling under federal direction and that Smith, in turn, believes caused his disease. Accordingly, the court held that Wayne and Lofton alleged facts sufficient to satisfy each of the requirements of 28 U.S.C. § 1442(a)(I), such that the district court had jurisdiction over the case.