Submarine maker successfully dives in federal waters by effectively clearing first-circuit asbestos case – Consumer Protection

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Recently, in Moore v. Elec. Boat Corp., No. 21-1566, 2022 WL 278535 (1st Cir. Jan. 31, 2022), government contractor-accused successfully appealed remand based on 28 USC § 1442, so-called Federal Officer Removal Status.

Moore serves as a reminder – especially to asbestos defendants – that contractors acting under the direction of a branch of the military (or any US agency) must determine the extent of government involvement. A fact-based investigation, such evidence may be sufficient for a removal under the Federal Agents Revocation Act and may allow the contractor-accused to assert certain key federal defenses such as immunity from prosecution. government contractor, sovereign immunity, and protection under federal tort claims. .


In the mid-1960s, Electric Boat Co. (“Electric Boat”) built the USS Francis Scott Key (“Francis Scott”) for the United States Navy at the Electric Boat shipyard in Connecticut. Moore, 2022 WL 278535 at *4. Plaintiff Michael Moore (“Moore”) was an electronics technician on board the Francis Scott from 1965 to 1969. ID.

In 2020, Moore filed an asbestos product liability suit against Electric Boat in Rhode Island state court, alleging that exposure to asbestos while on the Francis Scott caused caused his lung cancer. ID. Electric Boat developed evidence that the Navy oversaw all aspects of the design, construction, maintenance and modification of its submarines, and referred the case to federal court based on the Federal Officer Removal Statute. ID. at 5. The U.S. District Court for the District of Rhode Island granted Moore’s motion to dismiss, finding that the electric boat “did not meet all of the appropriate requirements of 28 U.S.C § 1442.” ID. Electric Boat appealed.

First Circuit Decision

Pursuant to 28 USC § 1442(a)(1), revocation is appropriate when a defendant demonstrates that it:

(1) acted under the authority of a federal officer; and

(2) is accused of conduct performed “for or in connection with” the official authority claimed.

Although the statute outlines only two factors, case law supports consideration of a third factor – that the removal of a federal officer must be based on the allegation of a disguised federal defense.. See Mesa v. California489 US 121, 129 (1989).

The first factor was not in issue. Moore did not dispute that Electric Boat acted under the supervisory authority of the Navy throughout the construction of the ship. Moore2022 WL 278535 to *6.

With respect to the second factor, Moore pointed to Electric Boat’s alleged tortious conduct – that it failed to provide the proper equipment, failed to take adequate safety precautions, and disobeyed state and federal. ID. at *7-8. Nevertheless, the Court held that it was sufficient that, based on the evidence, the Navy controlled and directed the operational details of Electric Boat. The Navy assigned Moore, an enlisted serviceman, to the Electric Boat shipyard while Navy personnel oversaw all aspects of construction, including the use of asbestos. ID. at 8. Thus, Electric Boat’s alleged tortious conduct was related to the Navy’s supervisory authority over the project, satisfying the second factor of the Federal Officer Removal Statute.

Moving on to the third factor, Moore asserted that Electric Boat could not establish a Federal defense. ID. to *10-11. The Court determined that “a disguised federal defense need not be “clearly durable[ratherthanadisguisedfederaldefenseunlessitisimmaterialandmadesolelyforthepurposeofobtainingjurisdictionorwhollyinsubstantialandfrivolous[aucontraireunedéfensefédéraleestdéguiséeàmoinsqu’ellenesoitimmatérielleetfaiteuniquementdanslebutd’obtenirlacompétenceoutotalementinsubstantielleetfrivoleID. At 11 o’clock. Based on this test, the Court analyzed the three defenses invoked – government contractor immunity, sovereign immunity and protection under the Federal Torts Claim Act – to conclude that Electric Boat had acquitted of his obligation to show that each tusk was “colorable” such that removal under the Federal Officer Removal Statute was appropriate.

For the defendant government contractors, this case is a useful precedent to draw upon when considering removal under the Federal Agents Removal Act.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

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