United States District Court for the Western District of Kentucky, Louisville Division

In November 2024, Barney Horton, Jr. (“decedent”) filed a lawsuit in Kentucky State Court alleging that exposure to asbestos-containing materials caused his mesothelioma. One defendant, General Electric (“GE” or “defendant”) sought to remove the case to federal court on the basis of federal officer removal statute. The plaintiff allegedasbestos exposure from a GE turbine located on a naval vessel where he served. According to GE, the turbine’s features were pursuant to government contracts and GE had acted under an officer of agency of the United States in its production. The federal officer removal statute declares that “[r]emoval is proper under the federal officer removal statute if the removing party: (1) demonstrates that it acted under the direction of a federal officer; (2) raises a colorable federal defense to the plaintiff’s claims; and (3) demonstrates a causal nexus between the plaintiff’s claims and the defendant’s acts performed under color of federal office.” Mesa v. California, 489 U.S. 121, 124-25, 134-35, 109 S. Ct. 959, 103 L. Ed. 2d 99 (1989).

Thereafter, the plaintiff filed an amended complaint disclaiming and waiving “any cause of action or recovery” from injuries caused by asbestos exposure during his service in the Navy. In doing so, the plaintiff moved to remand the action back to state court and contended that GE could not assert a colorable government contractor defense because the plaintiff’s action no longer alleged injuries from his time in the Navy. 

GE opposed, relying on the decedent’s prior VA claims alleging exposure to asbestos as the result of his military service. GE argued that plaintiff could not disclaim the fact that the decedent previously submitted a sworn claim to a federal agency stating the decedent’s mesothelioma was “due to” asbestos exposure during his service in the Navy. 

However, the plaintiff argued that federal courts previously held that disclaiming damages connected to military service “effectively preclude[d] any defense” based on such exposure alone. (Wood v. Crane Co., Kelleher v. A.W. Chesterton Co., and Hayden v. 3M Co.)In each instance, the court remanded the cases back to their respective state court, finding that the defendant no longer had valid grounds for removal.

Ultimately, the court found that the reasoning from the Frawley matter applied with equal or greater force to the instant matter, as there were no possible claims left against GE to which the federal contractor defense applied. In Frawley, the plaintiff amended his complaint to remove claims related to his employment with the Navy as a civilian contract and moved to remand the case to state court. The Frawley court found that “a properly removed case can be remanded to the state court after the complaint is amended to remove the allegations that made removal proper.” Moreover, “[f]ederal actor removal represents an exception to the usual rule that the existence of a federal defense does not confer federal jurisdiction. But once the plaintiffs’ claim against a government contractor is out of the case, it stretches the principle for a federal court to retain the case against the possibility that cross-claims will be pled.”

The court set forth that the Frawley court’s reasoning applies with equal or greater force to this case because there are no possible claims left against GE to which the federal contractor defense applies. In doing so, the court concluded that GE could not assert a colorable federal defense to any remaining claim. As such, the court subsequently determined it had no basis to exercise original jurisdiction. Thus, the court granted the plaintiff’s motion to remand the case to state court.

Read the full decision here.