[1] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF ALABAMA 

NORTHERN DIVISION 

CLEVELAND G. KITE, ) 

 ) 

Plaintiff, ) 

 ) 

v. ) CIVIL ACTION 11-0444-WS-N 

 ) 

BILL VANN COMPANY, INC., et al., ) 

 ) 

Defendants. ) 

ORDER 

 This matter is before the Court on the plaintiff’s motion for remand, motion for 

remand based on additional grounds, and motion for expedited consideration of motion 

for remand. (Docs. 58, 59, 90). The parties have presented briefs and evidentiary 

materials in support of their respective positions, (Docs. 58-59, 67-68, 70-75, 78-80, 87-

92, 102), and the motions are ripe for resolution. 

 BACKGROUND

 The plaintiff sued a number of defendants in state court to recover for injuries, 

including malignant mesothelioma, allegedly caused by exposure to asbestos. After his 

discovery deposition disclosed that he claimed exposure occurring on Navy vessels and at 

military installations including Guantanamo Bay, defendants Cummins Inc. (“Cummins”) 

and Warren Pumps LLC (“Warren”) filed a notice of removal. (Doc. 1). Warren 

removed under the “federal officer” removal statute, 28 U.S.C. § 1442(a), based on the 

plaintiff’s alleged exposure aboard the U.S.S. Wisconsin, for which vessel Warren 

supplied pumps insulated with asbestos. Warren and Cummins both removed on the 

basis of “federal enclave” jurisdiction, due to the plaintiff’s alleged exposure at 

Guantanamo Bay and other military installations. Apparently all co-defendants filed 

consents and/or joinders in the removal. (Id., Exhibit D). Defendant CBS Corporation 

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(“CBS”)1 filed a separate notice of consent to removal in which it separately claimed 

removal was proper as to it under federal officer removal due to its provision of 

propulsion turbines for the Wisconsin that were insulated with asbestos. (Doc. 6; Doc. 67 

at 1-2). Defendant Buffalo Pumps, Inc. did likewise. (Doc. 7). 

 DISCUSSION

I. Motion to Expedite. 

 The multi-district litigation panel (“MDL panel”) has entered a conditional 

transfer order, to which the plaintiff has objected. The plaintiff seeks expedited 

consideration of his motions for remand because, given his mesothelioma, he doubts he 

will survive what he predicts will be a long sojourn in the land of MDL. (Doc. 58 at 2-3). 

Despite judicial invitation to do so, (Doc. 60 at 1), the defendants declined the 

opportunity to oppose expedited consideration.2

 Accordingly, the motion to expedite will 

be granted. 

II. Motions for Remand.

 The defendants base removal on federal officer removal and federal enclave 

jurisdiction. Before reaching the merits of these grounds, the Court addresses the 

plaintiff’s argument that he effectively disclaimed anything that could support removal 

under them. 

 

1

 CBS is a successor in interest and not itself a past purveyor of asbestos-containing 

products. For convenience, the Court describes both the defendant and the predecessor entities 

as CBS. 

2

 Warren and Cummins devote one footnote to dispelling the plaintiff’s suggestion that 

MDL litigation is a “black hole.” (Doc. 68 at 30 n.6). Whatever the impact of their statistical 

and anecdotal evidence, they do not use it to articulate any argument that the motion for 

expedited consideration should be denied. They do not, for example, note or apply the test 

adopted by the Court for considering motions to stay resolution of motions to remand pending 

transfer to an MDL court. Betts v. Eli Lilly & Co., 435 F. Supp. 2d 1180, 1182 (S.D. Ala. 2006). 

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A. Disclaimer.

 “[T]he plaintiff expressly disclaims every claim arising under the Constitution, 

treaties or laws of the United States (including any claim arising from an act or omission 

on a federal enclave, or by any officer of the United States or any agency or person acting 

under him/her under color of such office ....” (Complaint at 13-14). It is this language 

on which the plaintiff relies for his disclaimer argument. 

 As a general matter, “the plaintiff [is] the master of the claim ....” Caterpillar, 

Inc. v. Williams, 482 U.S. 386, 392 (1987). Thus, “he or she may avoid federal 

jurisdiction by exclusive reliance on state law, even where a federal claim is also 

available.” Dunlap v. G&L Holding Group, Inc., 381 F.3d 1285, 1290 (11th Cir. 2004) 

(internal quotes omitted). For the same reason, a plaintiff can avoid a federal forum by 

specifically claiming under $75,000, unless the removing defendant proves to a legal 

certainty that the amount in controversy exceeds that amount. Burns v. Windsor 

Insurance Co., 31 F.3d 1092, 1095 (11th Cir. 1994). Subject to rules governing 

fraudulent joinder, necessary parties and the like, a plaintiff may also be able to thwart 

removal by his selection of defendants. Given this backdrop, it is likely that a plaintiff 

may similarly defeat removal by electing not to sue for all the wrongs that a defendant 

has done him. The Court indulges that assumption for present purposes. 

 Had the plaintiff disclaimed any claim arising from exposure aboard a Navy vessel 

or while on a military installation, he might well have prevailed on his argument. In that 

event, he could not be suing for any exposure occurring on a federal enclave or due to a 

defendant’s provision of asbestos-containing products under the direction of a federal 

officer. Several courts have found such specific pleading disclaimers adequate to 

preclude removal.3

 

 

3 See Powers v. Allis-Chalmers Corp. Product Liability Trust, 2010 WL 2898287 at *1-2 

(N.D. Cal. 2010) (waiver of claims “arising out of or related to asbestos exposure to or on 

(Continued) 

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 The plaintiff’s disclaimer, however, is much more limited. He does not disclaim 

suit as to all exposure occurring at Guantanamo and other military installations, by name 

or more generally. Instead, he disclaims suit only as to exposures “on a federal enclave.” 

This phraseology begs the question whether Guantanamo and the other military 

installations mentioned in his deposition actually constitute “federal enclaves” for 

purposes of removal. The point is not an idle one, as the plaintiff goes to great lengths in 

his briefing to deny that these locations are in fact federal enclaves. That is, despite his 

disclaimer the plaintiff insists that he can sue for exposure occurring at Guantanamo and 

other military installations. The plaintiff’s disclaimer, in short, does not eliminate the 

federal enclave issue from the lawsuit, and it is therefore ineffective to preclude removal 

on the basis of federal enclave. 

 The same is true with respect to federal officer removal. The plaintiff does not 

disclaim suit as to all exposure on Navy vessels but only those exposures which, in his 

own estimation, occurred as a result of a defendant’s operation within the bounds of 

Section 1442(a), and the plaintiff stridently insists that none of the defendants fall within 

this section. The disclaimer does not eliminate any question of federal officer removal 

but simply seeks to force this federal issue to be resolved in state court. 

 

military or federal government aircraft” precluded federal officer removal); Hopkins v. Buffalo 

Pumps, Inc., 2009 WL 4496053 at *6-7 (D.R.I. 2009) (express exclusion of claims other than at 

two identified non-governmental sites precluded federal officer removal); Madden v. A.H. Voss 

Co., 2009 WL 3415377 at *2-3 (N.D. Cal. 2009) (express exclusion of “plaintiff’s asbestos 

exposure at military and federal government jobsites and aboard U.S. Navy vessels” precluded 

federal officer removal); Debrocke v. Allis-Chalmers Corp. Product Liability Trust, 2009 WL 

1464153 at *1-2 (N.D. Cal. 2009) (statement that “Plaintiff’s claims against [a certain defendant] 

exclude plaintiff’s asbestos exposure at military and federal government worksites and aboard 

U.S. Navy vessels” precluded federal officer removal). 

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 A number of cases have ruled that purported disclaimers of a piece with the 

plaintiff’s are inadequate to prevent removal.4

 Their explanations generally are not 

compelling,5

 but the Court finds itself in agreement with Judge Jordan in Marley v. Elliot 

Turbomachinery Co., 545 F. Supp. 2d 1266 (S.D. Fla. 2008), who analyzed a disclaimer 

substantively identical to the one under consideration. 

 This disclaimer is circular. Its applicability depends on a 

 determination of the core question in this case: whether the defendants’ 

 purported omission – failure to warn – was required or caused by 

 their contractual relationship with the Navy. If the failure to warn was 

 required by the Navy, the disclaimer applies and the plaintiffs’ claims 

 fail as a matter of law. If the failure to warn was not required by the Navy, 

 then the disclaimer does not apply. The problem with this argument is that 

 the defendants have the right to have this question decided in federal court. 

Id. at 1274. 

 The plaintiff suggests that he can now effectively waive claims against the Navy 

contractor defendants. (Doc. 90 at 8-10). Such a gesture would come too late to affect 

the propriety of the defendants’ removal. E.g., Connecticut State Dental Association v. 

Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n.9 (11th Cir. 2009) (“Although 

Plaintiffs reference their amended complaints in their briefs, we consider the original 

complaints because removal jurisdiction is determined at the time of removal, and events 

 

4 See In re: Asbestos Products Liability Litigation (No. VI), 770 F. Supp. 2d 736, 740-43 

(E.D. Pa. 2011); Corley v. Long-Lewis, Inc., 688 F. Supp. 2d 1315, 1318, 1329 (N.D. Ala. 2010); 

Despres v. Ampco-Pittsburgh Corp., 577 F. Supp. 2d 604, 607-08 (D. Conn. 2008); O’Connell 

v. Foster Wheeler Energy Corp., 544 F. Supp. 2d 51, 54 n.6 (D. Mass. 2008); Redman v. A.W. 

Chesterton Co., 2007 WL 4447729 at *3 (N.D. Cal. 2008); Ballenger v. Agco Corp., 2007 WL 

1813821 at *1-2 (N.D. Cal. 2007). 

5

 They tend to stress that federal officer removal represents a statutory exception to the 

“well-pleaded complaint” rule, thus allowing removal to be based on a federal defense. True 

enough, but a federal defense to a claim that is not asserted presumably would not justify 

removal. It is the plaintiff’s failure to employ language in his disclaimer actually eliminating any 

claim based on exposures potentially triggering federal officer removal (or federal enclave 

jurisdiction) that renders the disclaimer ineffective. 

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occurring after removal ... do not oust the district court’s jurisdiction.”) (internal quotes 

omitted). 

 For the reasons set forth above, the Court rules that neither the disclaimer 

expressed in the complaint nor the waiver articulated in brief precludes removal. 

B. Federal Officer Removal. 

 “A civil action ... against any of the following may be removed by them ...: (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, sued in an official or individual 

capacity for any act under color of such office ....” 28 U.S.C. § 1442(a)(1). The statute, 

as interpreted, establishes three requirements for removal by a non-governmental 

defendant.6

 First, the removing defendant must be one “acting under” an officer of the United 

States when carrying out the acts for which it is sued. Watson v. Philip Morris 

Companies, 551 U.S. 142, 147 (2007). Second, there must be “a causal connection 

between the charged conduct and asserted official authority.” Jefferson County v. Acker, 

527 U.S. 423, 431 (1999). The parties agree that the defendants satisfy these 

requirements only if the Navy held direct and detailed control over their provision of 

products containing asbestos for incorporation in naval vessels. (Doc. 59 at 4; Doc. 67 at 

13; Doc. 68 at 11-12; Doc. 90 at 26).7

 

 The third requirement for removal under Section 1442(a) is that “federal officer 

removal must be predicated on the allegation of a colorable federal defense.” Mesa v. 

 

6

 The plaintiff does not assert that an artificial entity cannot be a “person” within Section 

1442(a). 

7

 The parties cite Fung v. Abex Corp., 816 F. Supp. 569 (N.D. Cal. 1992), for this 

proposition. See id. at 572 (to satisfy these requirements, “[a] majority of courts have held that 

the federal official must have direct and detailed control over the defendant.”) (internal quotes 

omitted). 

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California, 489 U.S. 121, 129 (1989). To be colorable, the defense need not be “clearly 

sustainable” but merely “plausible.” Acker, 527 U.S. at 432 (internal quotes omitted); 

Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1427 (11th Cir. 1996). 

 The federal defense asserted here is the “government contractor defense.” Under 

that defense, “[l]iability for design defects in military equipment cannot be imposed, 

pursuant to state law, when (1) the United States approved reasonably specific 

specifications; (2) the equipment conformed to those specifications; and (3) the supplier 

warned the United States about the dangers in the use of the equipment that were known 

to the supplier but not to the United States.” Boyle v. United Technologies Corp., 487 

U.S. 500, 512 (1988). 

 The plaintiff believes it more difficult for a defendant to justify removal of a 

failure-to-warn claim than of a defective design claim. He admits that his complaint 

contains defective design allegations against “[e]ach Defendant,” (Complaint at 12, 

¶ 58(a), (b)), but he insists that the complaint’s disclaimer effectively eliminated any 

design defect claim as to the Navy contractor defendants. His theory is that, since he 

knew full well that products supplied by Navy contractors typically are “designed per 

specific [N]avy specifications including the use of asbestos,” he would have been foolish 

to include a design defect claim against these defendants. (Doc. 87 at 6-7; Doc. 90 at 7-

8). Perhaps so, but the explicit language of the complaint accuses all defendants – 

necessarily including the Navy contractor defendants – of defective design and, as 

discussed in Part II.A, his disclaimer is ineffective. The complaint indisputably alleges 

that the Navy contractor defendants provided defectively designed products including 

asbestos.8

 

 

8

 The plaintiff now “chooses not to pursue design defect claims against the named Navy 

contractor Defendants ....” (Doc. 90 at 9). All well and good but, as discussed in Part II.A, the 

gesture comes too late to affect the propriety of removal. 

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 CBS has submitted an affidavit for the proposition that “[a]ll aspects of the design, 

performance requirements, and materials used for the construction of the main propulsion 

turbines, turbine generators and related equipment, including thermal insulation, were 

specified by” the Navy and directly enforced at its plant by naval officers. (Gate 

Affidavit, ¶ 7). “Military specifications affirmatively required the use of asbestoscontaining thermal insulation in relation to that equipment.” (Id., ¶ 8). The propulsion 

turbines, related equipment and turbine generators were “built in accordance with the 

Navy specifications in existence at the time and w[ere] approved and accepted by the 

Navy as being in accordance with those specifications.” (Id., ¶ 29). The intervening 

paragraphs flesh out these statements in considerable detail. The plaintiff offers no 

response to CBS’s showing,9

 which the Court concludes satisfies the first two 

requirements for removal as well as the first two elements of a colorable government 

contractor defense. 

 To meet the final element of the government contractor defense, CBS relies on the 

affidavit of Dr. Samuel Forman. (Doc. 67, Exhibit E). Dr. Forman was tasked by the 

Navy to conduct a comprehensive review of the Navy’s awareness of and response to the 

health hazards of asbestos, which he performed. (Id., ¶¶ 8-10). He concludes that, during 

the period when CBS supplied asbestos-containing materials for the Wisconsin, the 

Navy’s knowledge of asbestos was “state-of-the-art” and “quite complete when compared 

to available knowledge.” (Id., ¶¶ 19-20, 56). Dr. Forman describes in some detail the 

 

9

 On the contrary, the plaintiff concedes that “many products designed by contractors for 

the United States Navy are designed per specific [N]avy specifications including the use of 

asbestos” and that “Navy contractors had no control over the use of asbestos in the products 

and/or equipment manufactured according to specific Navy criteria.” (Doc. 87 at 7; Doc. 90 at 

8). 

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Navy’s awareness of dangers posed by asbestos and its efforts to reduce exposure during 

the relevant time period. (Id., ¶¶ 22-24, 29-30, 33-34).10

 The plaintiff has filed a motion to strike Dr. Forman’s affidavit. (Doc. 89). The 

motion, however, is directed exclusively to perceived deficiencies in his affidavit as it 

relates to the plaintiff’s failure-to-warn claims; it is completely irrelevant to his defective 

design claims. 

 The plaintiff has submitted discovery responses from CBS stating that, during the 

relevant time period, it “learned that inhalation of certain types and quantities of asbestos 

fibers, over significant periods of time, was being associated with increased risks of 

disease for some people.” (Doc. 87, Exhibit A at 20-21). The plaintiff argues that CBS 

has, by this response, “admitted to knowing of the hazards of asbestos” at the relevant 

time. (Doc. 87 at 10). CBS may have admitted having some knowledge of some 

hazards, but the question is whether CBS knew about dangers of which the Navy was 

ignorant. The plaintiff neither makes such an allegation nor attempts to support it, and 

CBS’s rather bland discovery responses do not prevent Dr. Forman’s affidavit from 

making it colorable that CBS at the relevant time did not know about dangers in the use 

of asbestos that were unknown to the Navy. The government contractor defense thus 

remains intact for purposes of removal. 

 In a similar vein, the plaintiff points to deposition testimony from a Navy admiral 

which, he says, refutes Dr. Forman’s affidavit concerning the state of the Navy’s 

knowledge at the relevant time. (Doc. 90 at 23). The threshold problem with this 

argument is that the plaintiff has not submitted the deposition testimony on which he 

 

10 The Wisconsin was commissioned in 1944, (Doc. 67 at 4 n.2), and CBS supplied the 

turbines and other equipment before then. The plaintiff apparently worked aboard the Wisconsin

in the late 1980’s, (Doc. 1 at 4; Doc. 90 at 7), but he has not argued that CBS retained a perpetual 

duty to keep the Navy apprised of any new knowledge of asbestos dangers it acquired after 

delivering the equipment and having it accepted as conforming to specifications. At any rate, Dr. 

Forman’s affidavit supports the proposition that the Navy’s awareness of asbestos hazards 

remained cutting-edge throughout the period of the plaintiff’s exposure aboard the Wisconsin. 

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relies,11 so there is in fact no testimonial evidence on file with which to counter CBS’s 

evidence. Even if there were some inconsistency shown by the plaintiff, he has not 

explained how a tension in the evidence precludes Dr. Forman’s affidavit from making 

CBS’s defense colorable. 

 CBS has thus met all the requirements for removal under Section 1442(a). As a 

final argument, the plaintiff argues that removal of an asbestos case under that section is 

now impossible because the federal government so heavily regulates the use of asbestos 

that state proceedings cannot adversely affect future government contracts. (Doc. 87 at 

4-6). The plaintiff relies on Good v. Armstrong World Industries, Inc., 914 F. Supp. 1125 

(E.D. Penn. 1996), to support his position. 

Good was another case alleging exposure to asbestos-containing products supplied 

to the Navy by CBS. The Court ruled that CBS satisfied all elements of a colorable 

federal contractor defense but determined that removal was unnecessary to uphold the 

policies underlying Section 1442(a), which it identified as avoiding state interference 

with the implementation of federal policy and avoiding state manipulation of a federal 

defense. 914 F. Supp. at 1130-31. The Good Court identified the federal interest 

underlying the government contractor defense as “protecting future defense 

procurement,” an interest it did not believe could be adversely affected by an asbestos 

case since it was “common knowledge” that the military no longer uses asbestos. Id. at 

1130. The Court also concluded that the policy of avoiding state manipulation of a 

federal defense was not in play because the federal contractor defense “raises 

straightforward common law issues that state courts are as adept at handling as the 

federal judiciary.” Id. at 1131. 

 The plaintiff cites, and the Court has located, no case following Good in this 

regard. Nor is the Court inclined to do so. Assuming without deciding that Good

 

11 The deposition is described as Exhibit G, (Doc. 90 at 22), but the plaintiff’s exhibits 

end with F-2. (Doc. 91). 

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accurately expresses the policies informing Section 1442(a) and the impact on them of 

remanding a case involving the provision of asbestos-containing products to the military, 

the Court’s role is to enforce the statute, not the policies motivating its enactment. When 

as here the requirements for removal under Section 1442(a), as construed by the Supreme 

Court, are satisfied, this Court has no authority to order remand because removal, though 

statutorily proper, is unnecessary to fulfill congressional policy.12 If, as the Good Court 

apparently believed, Section 1442(a) sometimes allows removal when no legislative 

policy is advanced thereby, that is a matter for Congress to rectify, not the Court. 

 “It is well settled that, if one claim cognizable under Section 1442 is present, the 

entire action is removed, regardless of the relationship between the Section 1442 claim 

and the non-removable claims.” Nadler v. Mann, 951 F.2d 301, 306 n.9 (11th Cir. 1992) 

(internal quotes omitted). The plaintiff does not assert otherwise. Because it is clear that 

Section 1442(a) removal by CBS of the plaintiff’s defective design claim was proper, it is 

unnecessary for the Court to consider whether removal was likewise proper as to the 

defective design claims against the other Navy contractor defendants, the failure-to-warn 

claims against any Navy contractor defendant, or the federal enclave removal by Warren 

and Cummins. 

 

 

12 International Primate Protection League v. Administrators of Tulane Educational 

Fund, 500 U.S. 72 (1991), is not, as the plaintiff maintains, to the contrary. The Supreme Court 

did not deny agencies the right to remove under Section 1442(a) because there was no good 

policy reason to allow it but because the language of Section 1442(a) does not extend the 

opportunity for removal to agencies in the first place. Id. at 79-84. The High Court discussed 

policy only to refute the defendants’ position that the statutory exclusion of agencies would 

produce absurd results. Id. at 84-87. 

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 CONCLUSION 

 For the reasons set forth above, the plaintiff’s motion to expedite is granted and 

his two motions for remand are denied.

13 

 DONE and ORDERED this 29th day of September, 2011. 

s/ WILLIAM H. STEELE

 CHIEF UNITED STATES DISTRICT JUDGE

 

13 The plaintiff’s two motions to exclude evidence, (Docs. 88, 89), are denied as moot, as 

they are limited to witnesses and/or legal theories not made the basis of the Court’s ruling on the 

motions for remand. 

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