THOMAS-FISH v. AVBORNE ACCESSORY GROUP, INC et al

Filing 41

OPINION. Signed by Judge Renee Marie Bumb on 7/31/18. (dd, )

[Dkt. No. 35]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

HELEN THOMAS-FISH, Individually
and as Executrix of the Estate
of Robert C. Fish,
Plaintiff,

Civil No. 17-cv-10648 RMB/KMW

v.

OPINION

AETNA STEEL PRODUCTS CORP., et
al.,
Defendants.

LEVY KONIGSBERG, LLP
By: Amber Rose Long, Esq.
Joseph J. Mandia, Esq.
800 Third Avenue, 11th Floor
New York, New York 10022
Counsel for Plaintiff

McGIVNEY, KLUGER & COOK, P.C.
By: William D. Sanders, Esq.
18 Columbia Turnpike, 3rd Floor
Florham Park, New Jersey 07932
Counsel for Defendants

DISTRICT JUDGE RENÉE MARIE BUMB:
This matter comes before the Court upon the filing of a
Motion to Remand by Plaintiff Helen Thomas-Fish (the
“Plaintiff”). Plaintiff originally filed this products liability

suit against Defendants 1 in the Superior Court of New Jersey,
alleging that her deceased husband, Robert Fish (“Fish”), was
injuriously exposed to asbestos while working on the
construction of a federal marine vessel. Defendants removed this
suit to the United States District Court for the District of New
Jersey pursuant to the federal officer removal statute, 28
U.S.C. § 1442(a)(1). Having considered the parties’ briefs, and
for the reasons stated below, the Court will deny the motion to
remand.
I.

BACKGROUND
Plaintiff, individually and as executrix of Fish’s estate,

alleges that Fish contracted and died from mesothelioma caused
by his exposure to asbestos-containing joiner panels during the
construction of the N.S. Savannah. (Compl. ¶ 6) Fish’s alleged
exposure occurred in 1960, while he was employed at the New York
Shipbuilding and Dry Dock Company (“NY Ship”) facility in
Camden, New Jersey, where the N.S. Savannah was being
constructed. (Compl. ¶ 4) The N.S. Savannah was a “prototype
nuclear-powered merchant marine vessel” developed under the

1

Plaintiff sued the following Defendants: Aetna Steel Products
Corporation; Avborne Accessory Group, Inc.; Dover Corporation;
Dover Engineered Systems, Inc.; Roller Bearing Company of
America, Inc.; Sargent Aerospace & Defense, LLC; Sonic
Industries, Inc.; and Sargent Industries, Inc. (Compl. ¶ 6;
Notice of Removal, Ex. A)

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direction of the United States Maritime Administration
(“MARAD”), an agency within the United States Department of
Commerce, and the Atomic Energy Commission (“AEC”). (Notice of
Removal ¶ 11) During Fish’s employment at NY Ship, he allegedly
maintained close proximity to the installation of asbestoscontaining joiner panels on the N.S. Savannah, which “generated
respirable dust in [his] presence and exposed him to asbestos.”
(Compl. ¶ 4) Fish died in 2016 from complications related to
mesothelioma. (Compl. ¶ 2)
On September 22, 2017, Plaintiff brought this products
liability action against a number of companies believed to be
involved in the manufacture, supply, installation or
distribution of the asbestos-containing joiner panels. (Compl. ¶
6) Defendants timely removed the action to this Court, invoking
the federal officer removal statute, 28 U.S.C. § 1442(a)(1),
which allows a defendant to remove from state court a case that
is brought against that defendant for acts committed under the
direction of a federal officer or agency. Defendants assert that
removal is proper because the joiner panels at issue were
installed pursuant to design specifications approved by MARAD, a
federal agency, in conjunction with MARAD’s contracts for the
construction of the non-nuclear components of the N.S. Savannah.
(Notice of Removal ¶¶ 21-22) Defendants’ Notice of Removal
included the report of maritime design expert Dr. Kenneth Fisher

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(the “Fisher Report”), which states that the use of asbestoscontaining joiner panels was contractually required by the
federal government for the N.S. Savannah.
After the parties submitted pre-motion letters in
accordance with this Court’s Individual Rules and Procedures,
Plaintiff timely filed a motion for remand on February 26, 2018,
arguing that removal is improper under 28 U.S.C. § 1442(a)(1).
II.

LEGAL STANDARD
The federal officer removal statute provides, in relevant

part:
(a) A civil action . . . that is commenced in a State
court and that is against or directed to any of the
following may be removed by them to the district court
of the United States for the district and division
embracing the place wherein it is pending: (1) 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 . . .
28 U.S.C. § 1442(a)(1).
The statute “‘protect[s] officers of the federal
government,’ and those acting under them, ‘from interference by
litigation in state court while those officers [and those under
their charge] are trying to carry out their duties.’” Baran v.
ASRC Fed. Mission Sols., No. 17-7425 (RMB/JS), 2018 WL 3054677,
at *4 (D.N.J. June 29, 2018) (quoting Papp v. Fore-Kast Sales
Co., 842 F.3d 805, 811 (3d Cir. 2016)). “Section 1442(a) is an

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exception to the well-pleaded complaint rule, under which
(absent diversity) a defendant may not remove a case to federal
court unless the plaintiff’s complaint establishes that the case
arises under federal law.” Papp, 842 F.3d at 811 (internal
quotation marks and citation omitted). “Unlike the general
removal statute, the federal officer removal statute is to be
‘broadly construed’ in favor of a federal forum.” Id. (quoting
In re Commonwealth’s Mot. to Appoint Counsel Against or Directed
to Def. Ass’n of Phila., 790 F.3d 457, 466-67 (3d Cir. 2015)).
This presumption in favor of removal “is necessary to ensure
that a federal officer [or a person acting under the officer]
does not have to ‘win his case before he can have it removed’
and provides for a federal forum to adjudicate the merits of the
defense.” In re Asbestos Prods. Liability Litig. (No. VI), 770
F. Supp. 2d 736, 741 (E.D. Pa. 2011) (quoting Willingham v.
Morgan, 395 U.S. 402, 407 (1969)).
A motion to remand “is properly evaluated using the same
analytical approach” to a challenge to subject matter
jurisdiction under Federal Rule of Civil Procedure 12(b)(1).
Papp, 842 F.3d at 811. “A challenge to subject matter
jurisdiction under Rule 12(b)(1) may be either a facial or a
factual attack.” Id. (internal quotation marks and citation
omitted). Whereas a facial attack “does not dispute the facts
alleged” in the notice of removal and “requires the court to

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consider the allegations . . . as true,” a factual attack
“disputes the factual allegations underlying the [] assertion of
jurisdiction and involves the presentation of competing facts.”
Id. (internal quotation marks and citation omitted).
As the parties removing the action to federal court,
Defendants bear the burden of proving that subject matter
jurisdiction exists and removal is proper. See Baran, 2018 WL
3054677, at *4. Defendants must meet four requirements to
properly remove their case under 28 U.S.C. § 1442(a)(1):
(1) [the defendant] is a “person” within the meaning of
the statute; (2) the [plaintiff’s] claims are based upon
the [defendant’s] conduct “acting under” the United
States, its agencies, or its officers; (3) the
[plaintiff’s] claims against [the defendant] are “for,
or relating to” an act under color of federal office;
and (4) [the defendant] raises a colorable federal
defense to the [plaintiff’s] claims.
Papp, 842 F.3d at 812 (citing Def. Ass’n, 790 F.3d at 467).
III. ANALYSIS
Plaintiff argues that Defendants have failed to meet the
“acting under,” “for or relating to,” and “colorable federal
defense” requirements necessary to establish federal
jurisdiction under the federal officer removal statute.
Plaintiff challenges jurisdiction facially and does not dispute
the facts alleged by Defendants in their Notice of Removal.
Therefore, the Court must consider these facts in the light most

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favorable to Defendants. See Papp, 842 F.3d at 811. The Court
will address each of the §1442(a)(1) requirements in turn.
A. “Persons” Within the Meaning of the Statute
Plaintiff does not dispute that Defendants are “persons”
under the federal officer removal statute.

Indeed, Papp states

that “‘corporations, companies, associations, firms,
partnerships, societies, and joint stock companies’” are persons
within the meaning of the statute.

842 F.3d at 812 (quoting 1

U.S.C. § 1).
B. “Acting Under” a Federal Officer or Agency
As the Third Circuit explained in Papp:
The ‘acting under’ requirement, like the federal removal
statute overall, is to be liberally construed to cover
actions that involve an effort to assist, or to help
carry out, the federal supervisor’s duties or tasks.
The classic case of such assistance as it relates to
government contractors is when the private contractor
acted under a federal officer or agency because the
contractors helped the Government to produce an item
that it needed. When, as occurred in this instance, the
federal government uses a private corporation to achieve
an end it would have otherwise used its own agents to
complete, that contractor is ‘acting under’ the
authority of a federal officer.
842 F.3d at 812.
This case is closely analogous to Papp, where the Third
Circuit held that the ‘acting under’ requirement was “easily
satisfie[d].”

842 F.3d at 813. 2

In Papp, the plaintiff’s

2

See also, Papp, 842 F.3d at 813 (“we are presented here with an
archetypal case.”).
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“allegations [were] directed at actions [the defendant] took
while working under a federal contract to produce an item the
government needed, to wit, a military aircraft [] that the
government otherwise would have been forced to produce on its
own.”

Id.

Very similarly in this case, Plaintiff’s allegations

are directed at Defendants’ actions, or alleged failures to act,
while working under a contract with MARAD (a government agency)
to construct an item the government needed, to wit, a nuclear
powered ship, that the government would otherwise have been
forced to construct on its own. 3
Plaintiff’s arguments to the contrary are unavailing.
First, relying on Good v. Armstrong World Industries, Inc., 914
F. Supp. 1125, 1128 (E.D. Pa. 1996), Plaintiff argues that
Defendants must demonstrate that they were “‘acting under’ the
direct and detailed control of a federal officer.”
Brief, p. 8, 10 n.10, 13)

(Moving

The Court declines to apply this

standard, as Good pre-dates Papp by almost 10 years.

Papp is

binding authority on this Court, and the Court applies its
standard.

Nothing in Papp requires Defendants to allege or

prove that the actions Defendants took, or failed to take,

3

Plaintiff makes no attempt to distinguish Papp’s facts from
this case, even though-- as Defendants observe in their Notice
of Removal-- Plaintiff’s counsel in this suit represented the
Plaintiffs at the trial level in Papp.
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“involved detailed regulation, monitoring, or supervision by the
government.”

(Moving Brief, p. 10)

Second, Plaintiff asserts that Defendants cannot meet their
burden because they have failed to “produce[] a single contract”
or “a single material specification specific to the N.S.
Savannah.”

(Moving Brief, p. 10)

Thus, according to Plaintiff,

“Defendants’ removal is based on [nothing more than] adherence
to federal regulations that were applicable to every vessel
(commercial, government or otherwise-owned) constructed in the
United States.”

(Id. at p. 11)

Plaintiff’s argument

misrepresents the record.
While it is true that Defendants do not submit to the
Court, at this early stage of the litigation, the documents
specific to the N.S. Savannah, Plaintiff does not dispute that
the N.S. Savannah was constructed pursuant to contracts with
MARAD.

Moreover, Defendants submit the report of maritime

design and construction consultant, Kenneth W. Fisher, Ph.D.,
which states that the N.S. Savannah was designed and constructed
pursuant to MARAD contracts. (Fisher Report, p. 2)

This is

sufficient to establish the “acting under” requirement as
explained and applied in Papp.
Lastly, Plaintiff argues that Defendants have failed to
show that they were “acting under” a federal agency in carrying
out the complained-of conduct -- the failure to warn -- because

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they do not provide any evidence that MARAD explicitly directed
Defendants not to provide warnings about the dangers associated
with the asbestos-containing joiner panels. (Moving Brief, p.
14) This argument fails. Defendants are not required to prove
that the “complained-of conduct was done at the specific behest
of the federal officer or agency” in order to satisfy the
“acting under” requirement. See Papp, 842 F.3d at 813 (rejecting
the argument that “the only way [defendant] could show it acted
under a federal officer was to show ‘that a federal officer or
agency directly prohibited [defendant]’ from warning thirdparties of asbestos risks”); Def. Ass’n, 790 F.3d at 470
(holding that the “acting under” inquiry does not require that
the “complained-of conduct itself was at the behest of a federal
agency” but is instead satisfied when “the allegations are
directed at the relationship” between defendant and the federal
government). Rather, as held in both Papp and Defender Ass’n,
Defendants meet the “acting under” requirement because they have
demonstrated that they manufactured, supplied, installed, or
distributed the joiner panels at issue pursuant to contracts
with MARAD.
C. Acts Done “for or Relating to” a Federal Officer or Agency
“In order to meet the ‘for or relating to’ requirement, ‘it
is sufficient for there to be a connection or association
between the act in question and the federal office.” Papp, 842

10

F.3d at 813 (quoting Def. Ass’n, 790 F.3d at 471). 4

Here, as in

Papp, the “act in question” is a failure to warn of the risks of
asbestos. In Papp, the Third Circuit held this prong of the
federal officer removal analysis was established by the removing
defendant’s assertions in its Notice of Removal that the
aircraft “‘was manufactured under the direct supervision,
control, order, and directive of federal government officers,’ .
. . and that that control extended to ‘the content of written
materials and warnings associated with such aircraft.’” 842 F.3d
at 813.
In this case, the removing Defendants assert that: (a)
“[t]he construction of the N.S. Savannah took place under the
direction and control of federal officers” (Notice of Removal ¶
11); (b) the United States Government either “procured,”
“furnished,” and/or “selected” the asbestos-containing products
(Notice of Removal ¶ 4); and (c) MARAD and OSHA published
standards for asbestos exposure which “effectively told
[shipbuilding industry participants] [of the] hazards associated

4

Both Plaintiff and Defendants analyze the “acting under” prong
and the “for or relating to” prong together. While there may be
factual overlap between the two prongs, it is helpful to keep
them analytically separate. The “acting under” prong focuses on
the relationship between (a) the “private contractor” and (b)
the “federal officer or agency,” Papp, 842 F.3d at 812, whereas
the “of or relating to” prong focuses on the relationship
between (a) the “conduct” or “act in question” and (b) the
“federal office.” Id. at 813.
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with the use of asbestos during ship construction.” (Fisher
Report ¶¶ 36-39) These allegations are sufficient to establish
the requisite connection or association between the alleged
failure to warn and the federal agency. As discussed above, and
contrary to Plaintiff’s argument as to this prong, Defendants
are not required to allege that a federal officer specifically
directed the private contractor to do, or not do, the specific
complained-of act. Rather, Papp’s standard only requires a
“connection or association” between the conduct and the federal
agency.
D. A “Colorable” Federal Defense
At the removal stage, Defendants are required to assert a
“colorable” federal defense-- i.e., a defense that is
“legitimate and [could] reasonably be asserted, given the facts
presented and the current law.” Papp, 842 F.3d at 815; see also,
id. (“A defendant need not win his case before he can have it
removed.”).
In their Notice of Removal, Defendants claim that they are
entitled to the “government contractor” defense as stated in
Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988).
Under Boyle, a government contractor is immune from state tort
liability in the workplace if: “(1) the United States approved
reasonably precise specifications; (2) the equipment conformed
to those specifications; and (3) the supplier warned the United

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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.
Although the Boyle test was announced in the context of design
defect liability, the Third Circuit has applied the government
contractor defense in failure-to-warn cases. See Papp, 842 F.3d
at 814-15.
Construing the facts alleged in the light most favorable to
Defendants, Defendants have raised a colorable government
contractor defense. Defendants satisfy the first element of the
Boyle test through their assertions that the federal government
maintained complete control over the specifications of the
joiner panels on the N.S. Savannah and the health hazards in
privately operated, government-owned defense plants including NY
Ship, where the N.S. Savannah was constructed. See Papp, 842
F.3d at 814 (finding that defendant met the first Boyle element
by stating that the government “exercised complete control over
any markings or labels on [defendant’s] aircraft or aircraft
components” and “the contents, including any warnings, of any
technical manuals . . . were directed, reviewed and approved by
the government”); Lewis v. Asbestos Corp., Ltd., No. 10-650 FLW,
2012 WL 3240941, at *5 (D.N.J. Aug. 7, 2012) (holding that
defendant’s allegation that the U.S. Navy “ordered [defendant]
to unvaryingly adhere to every requested specification” with
respect to defendant’s asbestos-containing product satisfied the

13

first Boyle requirement.). According to Defendants, MARAD’s
specifications mandated the use of asbestos-containing JohnsManville Marinite joiner panels and “[o]nly the involved
government agencies . . . could have allowed the use of nonasbestos joiner bulkheads, at the time of the N/S Savannah’s
construction in 1958-1961.” (Fisher Report ¶¶ 27-29, 44)
Furthermore, the U.S. Public Health Service took on “[t]he
responsibility for the evaluation and control of health hazards
in [government-owned but privately operated defense] plants.”
(Fisher Report ¶ 34) Defendants’ evidence sufficiently
establishes, for purposes of the colorable defense analysis,
that MARAD approved “reasonably precise specifications” for the
joiner panels. 5

5

Plaintiff asserts that Defendants merely provided “off-theshelf” products to the government. (Moving Brief, p. 12-13)
Plaintiff relies on Boyle, which distinguished a situation
involving a “federal procurement officer [who] orders, by model
number, a quantity of stock [military equipment] that happen to
be equipped” with a particular safety feature-- which would not
warrant government contractor immunity-- from one in which
military equipment design specifications incorporate significant
governmental discretion. 487 U.S. at 509, 511. The Fisher Report
establishes, for purposes of the colorable defense analysis,
that the federal government purposely chose joiner panels that
contained asbestos, and “the decision to incorporate asbestos as
the primary joinery material was controlled solely by US
government agencies: the Coast Guard and the Maritime Commission
(later [MARAD]).” (Fisher Report ¶¶ 27-30) The Fisher Report
thus suggests that MARAD exercised a certain amount of
discretion in setting forth “reasonably precise specifications”
for the joiner panels on the N.S. Savannah rather than simply
ordering commercially available joiner panels that happened to
contain asbestos. However, should this case proceed to summary
14

With respect to the second element, the Fisher Report
states that “the bulkhead joinery system incorporated into the
N/S Savannah utilized asbestos cement panels such as the JohnsManville’s Marinite panels,” demonstrating that Defendants’
joiner panels conformed to MARAD’s specifications. (Fisher
Report ¶ 29); see Papp, 842 F.3d at 814 (finding the second
requirement met by defendant’s “explicit” assertion that it
“followed every specification set forth by the government” while
building the asbestos-containing aircraft).
As to the third and final element, the Fisher Report states
that the U.S. Navy and U.S. Maritime Commission had published
recommended limits of exposure to air contamination for all
shipyards that remained in place throughout the period of the
N.S. Savannah’s construction. (Fisher Report ¶¶ 36-37)
Defendants maintain that, at the time the N.S. Savannah was
built, “shipbuilding industry participants effectively had been
told that whatever hazards were associated with the use of
asbestos during ship construction were already identified by the
federal government,” and “the federal government was enforcing
appropriate standards of air cleanliness at the shipyards

judgment, and the issue of the government contractor defense is
raised, Plaintiff is, of course, free to present contrary
evidence.
15

constructing ships for government agencies.” (Fisher Report ¶
39)
These assertions, taken as true, show that Defendants did
not have superior knowledge of the risks of asbestos that they
failed to share with the government. See Papp, 842 F.3d at 814
(holding that the court, when faced with a facial attack of
subject matter jurisdiction, is bound to accept defendant’s
allegations in its notice of removal, including defendant’s lack
of awareness of the risks of asbestos, as true); Lewis, 2012 WL
3240941, at *5 (finding that defendant satisfied the third Boyle
element by stating that it had no information about the dangers
of its asbestos-containing product that was not already known to
the U.S. Navy). Defendants have put forth facts that
sufficiently satisfy, at this stage of the case, each of the
three elements of the government contractor defense, thus
presenting a colorable federal defense pursuant to § 1442(a)(1). 6
IV.

CONCLUSION
For the reasons set forth above, the Court holds that

Defendants have sufficiently established this Court’s
jurisdiction pursuant to the federal officer removal statute.

6

To be clear, the Court does not rule on whether the government
contractor defense actually bars Plaintiff’s claims. Indeed,
such a determination is not possible upon the present record.
The Court holds only that Defendants’ asserted government
contractor defense is colorable, as that term is used in the
federal officer removal analysis.
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Therefore, Plaintiff’s motion to remand will be denied. An Order
consistent with this Opinion shall issue on this date.

DATED: July 31, 2018
___s/ Renée Marie Bumb______
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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