In each of these two federal court cases, the plaintiffs moved to remand their respective cases back to state court. In the California case, plaintiff Farid Malek alleged that he was exposed to asbestos during his work on the premises of the Abadan Oil Refinery from 1951 to 1979. The case was removed to federal court by defendants Chevron U.S.A. Inc., Texaco Inc., ExxonMobil Corporation, and ExxonMobil Oil Corporation based on the federal officer removal statute, 28 U.S.C. 1442(a)(1), and pursuant to an agreement between them and the United States government.

The court granted the plaintiffs’ removals, stating: “Overall, Defendants’ brief contains no support for the conclusion that the Government: (1) directed Defendants to operate the Refinery in a manner that led to Mr. Malek’s injuries; or (2) directed Defendants’ to enter into the Agreement. Thus, there is no reason for the Court to find that allowing this action to proceed would require the Court to question the Executive Branch’s decision to encourage Defendants to enter into the Agreement.”  The court went on to state: “Defendants’ alleged actions giving rise to Plaintiffs’ claims were not directed by any federal officer or performed ‘under the color’ of any U.S. Government office or officer. Accordingly, the political question doctrine is not a colorable defense available to Defendants.”

In the Maryland case, the plaintiffs sued multiple companies for the alleged asbestos exposure of the decedent, Dennis Citrano, from his work as an electrician second class in the engine room of the USS Santa Barbara at the Baltimore, Maryland Bethlehem Steel Sparrows Point Shipyard. Defendant General Electric Company (GE) removed the case to federal court based on the federal officer removal statute, 28 U.S.C. 1442(a)(1). The court denied the plaintiffs’ motion for remand in 2013 on the basis that GE had established a colorable federal defense. The plaintiffs again moved to remand following GE obtaining a consent of voluntary dismissal from the plaintiffs. Defendant CBS Corporation opposed the motion, arguing that the remand was premature since discovery was still pending and any cross-claims it or any other defendant has against GE gives rise to federal jurisdiction.

In granting the remand, the court held: “Contrary to CBS’s contention, all claims over which the Court had independent federal jurisdiction have been dismissed. ‘[T]rial courts enjoy wide latitude in determining whether . . . to retain jurisdiction over state claims when all federal claims have been extinguished,’ and have ‘a powerful reason to choose not to continue to exercise jurisdiction.’”

Read the full California decision here.

Read the full Maryland decision here.

If you have questions about how this decision may impact your business, please contact:

• Joseph J. Welter (716.566.5457; jwelter@goldbergsegalla.com)
• Jason A. Botticelli (716.566.5460; jbotticelli@goldbergsegalla.com)
• Or another member of Goldberg Segalla’s Toxic Torts Practice Groups