ORDER

VAUGHN R. WALKER, United States District Judge

Invoking the federal officer removal statute, 28 U.S.C. § 1442(a)(1), and the military contractor defense, defendant Todd Shipyards Corp removed this asbestos related tort action to federal court on April 27, 2001. According to Todd, to the extent asbestos was used on its property, the United States Navy required it, giving rise to the military contractors defense and allowing removal. Presently before the court is plaintiffs' motion to remand. For the reasons that follow, the motion is GRANTED.

I

On March 14, 2001, plaintiffs Paul and Marlene Westbrook filed suit in the San Francisco superior court alleging personal injury and loss of consortium against numerous defendants, among them Todd. Plaintiff Paul Westbrook formerly worked with asbestos as an insulator and now suffers from asbestosis and asbestos-related pleural disease. He has an increased risk of developing further conditions, including cancer.

Plaintiffs' suit against Todd arises out of the operation of a facility at which plaintiff worked for certain subcontractors in the 1960s and 1970s. Plaintiff indicates that he worked as an insulator for both Owens Corning Fiberglass Corp. (1960s and 1970s) and Roberts Brothers Construction Company (1974) on Todd's premises. Def. Exhibits, Exh. B, Complaint at 7 8. It is not clear from the complaint how much plaintiff worked on United States Navy ships at Todd's facilities.

Against Todd, plaintiffs allege only loss of consortium and "premises owner/contractor liability." Id. at 2. This is in contrast with the numerous causes of action brought against other defendants. Plaintiffs allege that Todd:

1. "Should have recognized that the work of said contractors would create during the progress of the work, dangerous, hazardous, and unsafe conditions which could or would harm plaintiff and others unless special precautions were taken;"

2. "Knew or had reason to know, that the contractors it had selected and hired to install, remove, abate or otherwise handle asbestos-containing materials were unfit or unqualified to do so;" and

3. "Failed to use reasonable care to discover whether the contractors it selected and hired to install, remove, abate or otherwise handle asbestos-containing materials were competent or qualified to do so."

Id. at 2-3. The precise nature of plaintiffs' allegations against Todd is murky in two ways.

First, the portions of the complaint cited above focus on the negligent hiring of subcontractors (numbers 2 and 3). But plaintiffs explicitly disclaim any claims based on negligent hiring in their reply brief in connection with this motion. In that brief, plaintiffs assert that their cause of action for premises owner/contractor liability has two components: (1) failure to warn of a dangerous condition on the premises; and (2) negligent exercise of retained control over the premises. Reply B.R. at 3 (citing Grahn v. Tosco Corporation, 58 Cal.App.4th 1373, 68 Cal.Rptr.2d 806 (1997)).

The complaint also fails to make clear to what extent the insulating work that caused plaintiff's injuries was done on United States Navy ships. The complaint lists United States Navy ships and no private ships. But plaintiffs have disclaimed, in writing, any claims arising out of work done on United States Navy ships. See Leroy Decl, Exh. A.

In any event, on April 27, 2001, Todd removed the case to this court. Plaintiffs now move to remand to state court.

II

Todd bears the burden of establishing that removal is proper. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir 1992). To remove a case failing within the federal-question grant of federal jurisdiction, a defendant would have to show that a federal question appears on the face of a well-pleaded complaint. See Louisville Nashville R Co. v. Motley, 211 U.S. 149, 152 (1908). An actual or anticipated federal defense would not justify removal. Id. Removal under the federal officer removal statute, however, is different. That statute allows removal on the basis of a federal defense.

Under 28 U.S.C. § 1442(a)(1), "[t]he 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" may remove to federal court. Removal is proper if the moving party can (1) demonstrate that it acted under the direction of a federal officer; (2) raise a colorable defense to plaintiffs' claims; and (3) demonstrate a causal nexus between plaintiffs' claims and acts it performed under color of federal office. Fung v. Abex Corp, 816 F. Supp. 569, 571-72 (N.D.Cal. 1992) (citing Mesa v. California, 489 U.S. 121, 124-25, 134-35 (1989)); Jefferson County, Alabama v. Acker, 527 U.S. 423, 431 (1999) (defense need only be colorable).

In this case, Todd claims that it is shielded from liability by military contractors immunity. This doctrine was set forth in Boyle v. United Technologies Corp, 487 U.S. 500 (1988). The Boyle Court held that "[l]iability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise 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." Id. at 512.

Applying the Mesa test to the facts of this case, the court concludes that plaintiffs' motion to remand must be granted for two reasons. First, plaintiffs have asserted, in writing in the state court action, that: "Plaintiff's claims against defendant Todd Shipyards Corporation, exclude plaintiff's asbestos exposure at military and federal government jobsites and aboard U.S. Navy vessels." Leroy Decl, Exh. A. To the extent this "stipulation" (as plaintiffs call it) is binding, Todd's ground for removal is eviscerated. If plaintiffs' claims arise only from work done on private ships, not under the direction of any federal officers, Todd's military contractor defense is unavailable.

The question then is whether plaintiffs' written waiver is sufficient. The waiver of claims arising out of work done on federal jobsites and vessels is not a "stipulation" between the parties since Todd has not signed it. But another judge in this district has credited such a written disclaimer in a motion to remand. See Overly v. Raybestos-Manhattan, 1996 WL 532150 at *3 (N.D.Cal. 1996). In Overly, Judge Illston accepted the plaintiffs' written waiver of claims related to design defects and therefore granted the motion to remand. The court sees no reason not to hold plaintiffs in this case to their waiver of claims arising out of work done on federal jobsites and vessels. This waiver, therefore, justifies remand. If plaintiffs later attempt to reverse course, and are allowed to do so by the state court despite their express waiver, Todd can always file for removal once again.

The motion to remand is also appropriate for a second reason. Even if plaintiffs' claims relate to work done on United States Navy ships, it is not clear that they even implicate the military contractors defense. In terms of the Mesa test, prongs (2) or (3) are probably not met. This is because the cause of action plaintiffs bring, based on premises owner/contractor liability, does not turn simply on Todd's use of asbestos. Rather, the claim appears to turn on a failure to warn about the dangers of asbestos and negligent exercise of retained control. The defense: "The Navy made me do it," does not apply to either basis of liability. Todd has shown, through the declaration of Roger B. Horne (Exh. I), the deposition of Tom Hixson (Exh. C) and various military specifications documents (Exh. J, K, L M), that the Navy required Todd to use asbestos insulation. But Todd has not shown that the Navy required it to refrain from issuing warnings. Absent such a showing, Todd has no colorable military contractor defense to a failure to warn claim. See In re Hawaii Federal Asbestos Cases, 960 F.2d 806, 812-13 (9th Cir 1992); Overly, 1996 WL 532150 at *4; see also Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124, 129 (3d Cir. 1998) (discussing district court's remand of failure to warn claim in the face of a military contractors' defense, but affirming remand based on 28 U.S.C. § 1447(d)).

Todd's military contractors defense would fare no better with respect to the negligent exercise of retained control claim. That claim, as explained in Grahn v. Tosco, 58 Cal.App.4th 1373, 68 Cal.Rptr.2d 806 (1997), is premised on the notion that "One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." Id. at 1393. The degree of control Todd retained in this case is not clear. But accepting Todd's contention that it was required by the Navy to use asbestos, the decision to use asbestos cannot give rise to liability under this theory. Only decisions within Todd's control, whether to have the workers use breathers for example, could give rise to liability. Since Todd alleges that only the use of asbestos was required by the Navy, Todd's military contractor defense cannot shield Todd from liability for negligent exercise of retained control.

As the court understands plaintiffs' claims, Todd lacks a colorable military contractor defense. This means that Todd cannot meet prong two of the Mesa test. Another way to describe this situation is to say that Todd does have a colorable military contractor defense, but it is limited to defending against claims arising only out of the choice to use asbestos, because that is the only action that was directed by the government. Under this rubric, it is prong three of the Mesa test that is not met as there is no causal connection between the acts performed under the government's orders and the claims brought by plaintiffs. Either way, given the court's understanding of plaintiffs' claims, Todd would be unable to demonstrate that removal was appropriate even if plaintiffs had not waived their claims arising out of work at government jobsites and on government vessels.

For these reasons, plaintiffs' motion to remand (Doc. #3) is GRANTED. Plaintiffs seek an award of $1563.78, the amount they incurred in attorneys' fees bringing this motion to remand. Under 28 U.S.C. § 1447(c), the court may order a removing defendant to pay plaintiffs their "just costs and any actual expenses, including attorney fees, incurred as a result of removal." Whether to grant such an award is within the court's discretion. In this case, the removal was unnecessary. The day before Todd removed this action, plaintiffs waived their claims to damages arising out of work done on federal government jobsites and vessels. As a result, the court concludes that an award of fees is appropriate and awards the requested amount, $1563.78. The amount is supported by the Leroy declaration and appears reasonable.

IT IS SO ORDERED.