Heather Isringhausen Gvillo Jul. 22, 2014, 9:05am

NEW ORLEANS (Legal Newsline) – A Louisiana judge has granted a former insulator’s motion to remand his asbestos case based on the Federal Officer Removal Statute, concluding that the defendant failed to provide NASA regulations requiring asbestos.

Judge Kurt D. Engelhardt delivered the Tuesday decision in the United States District Court for the Eastern District of Louisiana, remanding the case to the Civil District Court, Parish of Orleans.

Claimant Walter H. Ross claims he worked for Rust Engineering & Construction, Inc. at the National Aeronautics and Space Administration (NASA) Michoud Assembly Facility in New Orleans from 1963 until 1975.

During his employment, Ross alleges he was exposed to asbestos while installing and removing heat insulation, boiler insulation, insulation pads, boiler lagging, boiler jackets and other asbestos insulation on the boilers, turbines and piping systems in the facility.

He also claims that he was unaware of the risks associated with asbestos exposure or that he should wear protective equipment and clothing until the early 1970s.

As a result of his exposure, Ross developed pseudomesotheliomatous adenocarcinoma, an asbestos-related disease.

Ross seeks remand of his lawsuit against his former employer, which removed the case pursuant to the Federal Officer Removal Statute.

The purpose of the statute is to “provide a federal forum for officers whose duties under federal law conflict with state law,” Engelhardt explained.

In order for removal to be proper under the statute, a defendant must pass a three-part test determining whether it qualifies as a “person acting under [a federal] officer’ who is sued for an ‘act under color of such office,” he added.

As part of the test, a defendant must prove:

-It is a “person” within the meaning of the statute;

-It acted pursuant to a federal officer’s directions and that a causal nexus exists between the defendant’s actions under color of federal office and the plaintiff’s claims; and

-It has asserted a colorable federal defense.

Engelhardt first confirmed that Rust is a “person” according to the statute, because it is a corporate entity.

However, Rust failed to prove that it acted pursuant to a federal officer’s direction, he ruled.

Rust argued that it is entitled to federal officer removal because it performed its maintenance and repair work at the Michoud facility in accordance with a December 1961 contract with NASA.

It alleged the contract required asbestos materials to be used.

However, Rust failed to point out a single instance in the contract itself or any other documentation proving NASA required or specified that asbestos be used in connection with Rust’s work, the judge ruled.

Instead, Rust relies on the Lalonde decision, in which Magistrate Judge Docia Dalby held that the causal nexus requirement is satisfied as long as the alleged action occurred while performing federal duties regardless of whether the action is connected to a federal directive.

However, shortly after the Lalonde decision, the Winters decision contradicted the ruling, requiring proof that the defendants acted according to a federal officer’s directions.

“The Winters court did not assume that the ‘color of office’ requirement was satisfied merely because the defendants committed the alleged wrongs while performing duties pursuant to their federal contracts,” Engelhardt explained.

Although it was unable to provide any NASA specifications regarding asbestos, Rust still claimed NASA controlled safety and supply regulations, as well as all other aspects of its work at the Michoud facility.

“How these standards might relate to asbestos the court can only guess,” Engelhardt added, “for Rust fails to demonstrate or even point out a single connection between any safety standard imposed by the contract and the claims herein.”

Rust also failed to provide evidence showing the contracting officer imposed a safety measure relating to asbestos or even requiring the use of asbestos, the judge said.

Engelhardt concluded that Rust “failed to make even a minimal showing” that it met the color of office requirement.

“Rust’s oblique suggestion that NASA controlled ‘all other aspects’ of Rust’s work is belied by the contract itself,” he wrote, “which gives Rust vast and broad responsibilities with only very general specifications as to how those duties are to be carried out.”

Lastly, Rust argued that remand is proper because it performed its duties at a government-owned facility rather than a privately owned one. Engelhardt rejected this argument, saying Lalonde is the only case supporting such an argument and it has no authority according to Winters.

As for Rust’s burden to prove it asserted a colorable federal defense, Engelhardt held that the defendant failed to make any arguments to support its assertion that it has a government contractor defense.

As a result, Engelhardt concluded that removal was improper.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.coom


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