Long v. Foster Wheeler Energy Corp.

For three decades, Richard Long worked as a laborer and foreman at shipyards in Oregon. After he was diagnosed with mesothelioma, he brought a state-law action for product liability and negligence against the manufacturers of asbestos and asbestos-containing products that he was exposed to in the course of his work. In his state-court complaint, he specified that he was not bringing any claims based on exposures at federal government sites or for conduct taken under the direction of any federal employee or contractor. He later confirmed that he was not bringing any claims based on asbestos exposures connected to Naval or Coast Guard vessels. Nonetheless, Foster Wheeler Corp., one of the defendants, removed the case from Oregon state court to federal district court, invoking the federal-officer removal statute and claiming that Mr. Long’s illness was a result of exposure on military vessels. The district court remanded the case to state court, holding that the federal-officer removal statute did not apply and that admiralty jurisdiction did not bar remand. Foster Wheeler appealed the remand order to the Ninth Circuit Court of Appeals.

Public Citizen serves as co-counsel for Mr. Long on appeal. Our brief explains that the district court correctly held the action was not removable under the federal-officer statute, because the acts challenged by Mr. Long lack a causal connection to acts taken by Foster Wheeler under federal-officer direction, and because Foster Wheeler lacks a colorable federal defense to the claims Mr. Long brought against it. Mr. Long was entitled to waive claims based on military ship exposures, and the impact of such a waiver on the merits of the claims Mr. Long did bring is an issue of state law to be resolved by the state court. In addition, the brief explains, because there was never a basis for removal jurisdiction and because Mr. Long chose to bring his claims “at law” as opposed to “at admiralty,” there was no basis for the exercise of admiralty jurisdiction.