Under § 1442, an action “against or directed to . . . 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” may be removed to federal court. 28 U.S.C. § 1442(a)(1). To remove, a defendant must show: “(1) that it is a person within the meaning of the statute, (2) that it has ‘a colorable federal defense,’ (3) that it ‘acted pursuant to a federal officer’s directions,’ and (4) ‘that a causal nexus exists between [its] actions under color of federal office and the plaintiff’s claims.’”
A woman dies of mesothelioma. Her heirs sue Avondale Shipyard in state court, alleging she got mesothelioma from her father, who worked at Avondale in the 1940s, building tugs for the US government. Avondale removes under 1442, saying it was doing US government work to US government spec under US government rules. Thus, 1442 removal. The district court reverses, saying Avondale was responsible for safety:
1442 does not support removal where defendant government contractors “were free to adopt the safety measures the plaintiffs now allege would have prevented their injuries.” 805 F.3d at 174. The Legendres provide unrebutted evidence that although the government required Avondale to use asbestos in the construction of the tugs, the government did nothing to restrict Avondale’s safety practices. In Bartel, the government required the defendants to use ships containing asbestos, but did nothing to restrict the defendants’ safety measures. Between the two, the causal nexus analysis is, as highlighted by us in Savoie, "nearly identical."
But what's more interesting is at the end. Interpreting 2011 amendments to 1442, some courts have suggested that all you need is a nexus, not a cause. Under that theory, it could be that removal is appropriate under these circumstances. But what ho? A circuit split?? Supreme Court bound? We shall see.
My 2c: if I were Avondale I wouldn't take this to the Supreme Court. The Court, as currently constructed, jealously guards states' rights in such circumstances. See for instance this prior post about a 5-4 decision on an easy topic, with four votes saying "give more power to the states," despite seemingly clear statutory language. 1442 is a harder topic, and it seems likely you could get five+ votes to keep removal jurisdiction from growing significantly.