Deborah Ripley v. Foster Wheeler LLC
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 4:14-cv-00070-AWA-LRL. [999959064]. [15-1918]
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1918
DEBORAH H. RIPLEY, individually and as Administrator of the
Estate of Bernard W. Ripley, deceased,
Plaintiff - Appellee,
and
BERNARD W. RIPLEY,
Plaintiff,
v.
FOSTER WHEELER LLC; FOSTER WHEELER ENERGY CORPORATION,
Defendants – Appellants,
and
J.
HENRY
HOLLAND
CORPORATION;
WACO,
INCORPORATED;
METROPOLITAN
LIFE
INSURANCE
COMPANY;
UNION
CARBIDE
CORPORATION; SB DECKING, INC., a/k/a Selby Battersby; AURORA
PUMP, CO; IMO INDUSTRIES, INCORPORATED, as successor in
interest to Delaval Pumps; GOULDS PUMPS, INCORPORATED;
INGERSOLL-RAND COMPANY; WARREN PUMPS, INCORPORATED; CRANE
COMPANY; GRINNELL CORPORATION; THE
J.R. CLARKSON COMPANY,
individually
and
as
successor
by
mergers
to
Kunkle
Industries, Inc.; MILWAUKEE VALVE COMPANY; FLOWSERVE US,
INC., individually and as successor in interest to Rockwell
Edward Valves and Vogt Valves; SPIRAX SARCO, INC.; ARMSTRONG
INTERNATIONAL, INC., individually and as a successor to
Armstrong Machine Works,
Defendants.
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Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:14-cv-00070-AWA-LRL)
Argued:
September 22, 2016
Decided:
November 1, 2016
Before TRAXLER, DIAZ, and THACKER, Circuit Judges.
Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Traxler and Judge Diaz joined.
ARGUED: Erik David Nadolink, WHEELER TRIGG O’DONNELL, LLP,
Denver, Colorado, for Appellants.
William Harty, PATTEN,
WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for
Appellee.
ON BRIEF: Anthony B. Taddeo, Jr., David M. Sturm,
Matthew D. Joss, TADDEOSTURM PLC, Richmond, Virginia, for
Appellants. Robert R. Hatten, Hugh B. McCormick, III, PATTEN,
WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for
Appellee.
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THACKER, Circuit Judge:
Facing claims in Virginia state court for failing to
warn of asbestos hazards in products manufactured for the Navy,
Foster
Wheeler
LLC
and
Foster
Wheeler
Energy
Corporation
(“Appellants”) removed the case pursuant to the federal officer
removal
statute
to
the
United
States
Eastern District of Virginia.
District
Court
for
the
The district court remanded to
state court, citing longstanding precedent in the district that
denies
the
cases.
government
contractor
defense
Appellants timely appealed.
in
failure
to
warn
For the reasons below, we
reverse.
I.
From 1969 to 1972 and from 1974 to the late 1970s,
Bernard
W.
Shipyard
Ripley
in
worked
Portsmouth,
as
a
boilermaker
Virginia.
He
at
was
malignant mesothelioma on February 24, 2014.
Norfolk
Naval
diagnosed
with
On May 13, 2014,
he and his wife, Deborah Ripley (“Appellee”), filed suit in the
Newport News Circuit Court in Virginia, naming Appellants and
others
exposed
as
defendants.
to
asbestos
The
complaint
contained
3
in
alleges
Mr.
products
Ripley
was
Appellants
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manufactured for the Navy, and that Appellants are liable for
failure to warn of asbestos hazards. 1
On June 16, 2014, Appellants filed a Notice of Removal
in the United States District Court for the Eastern District of
Virginia.
Appellants asserted a government contractor defense,
arguing that the suit stemmed from Appellants’ contract with the
Navy
to
construct
boilers
and
related
equipment,
and
that
removal is thus proper pursuant to the federal officer removal
statute, 28 U.S.C. § 1442(a)(1).
On
August
6,
2015,
the
district
court
granted
Appellee’s motion to remand, following a decades-old practice in
the district that denies the government contractor defense in
failure to warn cases.
court
reasoned,
Because the defense did not apply, the
Appellants
could
not
establish
the
colorable
federal defense necessary to support federal officer removal,
thereby precluding federal subject matter jurisdiction.
On August 8, 2015, Appellant filed a Notice of Appeal,
urging this court to overturn the district court’s remand order. 2
1
Mr. Ripley died on November 14, 2014; the court
substituted Appellee as administratrix of Mr. Ripley’s estate on
March 18, 2015.
2
Of note, this issue only recently became appealable. In
2011, Congress amended 28 U.S.C. § 1447(d) to allow appeals from
remand orders pursuant to § 1442. See Removal Clarification Act
of 2011, Pub. L. No. 112–51, 125 Stat. 545, 546 (2011).
4
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II.
We
review
de
novo
issues
jurisdiction, including removal.
of
subject
matter
See Dixon v. Coburg Dairy,
Inc., 369 F.3d 811, 815–16 (4th Cir. 2004) (en banc) (quoting
Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999)).
Denial
of the government contractor defense in failure to warn cases is
also an issue of law we review de novo.
See Warfaa v. Ali, 811
F.3d 653, 658 (4th Cir. 2016).
III.
The federal officer removal statute allows a defendant
to remove a case from state to federal court if the defendant
establishes (1) it is a federal officer or a “person acting
under that officer,” 28 U.S.C. § 1442(a)(1); (2) a “colorable
federal defense”; and (3) the suit is “for a[n] act under color
of office,” which requires a causal nexus “between the charged
conduct and asserted official authority,” Jefferson Cty., Ala.
v. Acker, 527 U.S. 423, 431 (1999) (alteration and emphasis in
original)
(citation
and
internal
quotation
marks
omitted).
Section 1442 is thus an exception to the well-pleaded complaint
rule,
federal
which,
absent
question
complaint.
diversity,
appears
on
prohibits
the
face
of
removal
the
unless
a
plaintiff’s
See Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir.
1994) (citing Mesa v. California, 489 U.S. 121, 136–37 (1989)).
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The Supreme Court has recognized that “[o]ne of the
primary purposes” of federal officer removal is to provide a
federal forum for a federal defense.
U.S. 402, 407 (1969).
Willingham v. Morgan, 395
Proof of a “colorable” federal defense
thus does not require the defendant to “win his case before he
can have it removed” nor even establish that the defense is
“clearly sustainable.”
Id.
Here, Appellants sought removal pursuant to § 1442 by
asserting
the
government
contractor
defense
as
elucidated
in
Boyle v. United Technologies Corp., 487 U.S. 500 (1988).
In
Boyle,
in
the
Supreme
Court
announced
that
design
defects
military equipment do not give rise to state-law tort claims if,
“(1)
the
United
specifications;
States
(2)
the
approved
equipment
reasonably
conformed
precise
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.”
487 U.S. at 512.
The defense only applies if a contractor’s obligations to the
government conflict with state law such that the contractor may
not comply with both.
See id. at 507–09.
The rationales behind the defense are twofold.
given
the
complexities
of
military
decision
making
First,
and
the
constitutional delegation of the war powers to the legislative
and
executive
branches,
separation
6
of
powers
suggests
the
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judiciary should hesitate to intervene in matters of military
procurement contracts.
See Tozer v. LTV Corp., 792 F.2d 403,
405–07 (4th Cir. 1986).
Second, as a practical matter, a higher
risk
government
of
costs
liability
to
the
for
government
while
contractors
decreasing
would
the
increase
supply
of
contractors and research and development in military equipment.
Id. at 407–08.
We must therefore decide whether the Supreme Court’s
pronouncement
defense
in
Boyle,
applicable
in
holding
design
the
defect
government
cases,
contractor
likewise
shields
defendants against failure to warn claims and thus provides a
basis for federal jurisdiction pursuant to § 1442.
In this case, given “the thousands of asbestos cases
that have preceded” it in the Eastern District of Virginia, the
district
court
“determined
that
the
government
contractor
defense is not available in failure to warn cases.”
McCormick
v. C.E. Thurston & Sons, Inc., 977 F. Supp. 400, 403 (E.D. Va.
1997) (internal quotation marks omitted).
However, the Eastern District of Virginia is clearly
an outlier in this regard.
to
have
considered
District
of
Seventh,
Ninth,
the
Virginia.
and
No other jurisdiction in the country
issue
is
Indeed,
Eleventh
in
accord
the
Circuits
defense to failure to warn cases.
7
with
Second,
have
the
Fifth,
all
Eastern
Sixth,
applied
the
See e.g., In re Joint E. & S.
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Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629–30 (2d Cir. 1990);
Perez v. Lockheed Corp. (In re Air Disaster at Ramstein Air
Base,
Germany,
on
8/29/90),
81
F.3d
570,
576
(5th
Cir.),
modified on other grounds, 88 F.3d 340 (5th Cir. 1996) (per
curium); Tate v. Boeing Helicopters (Tate II), 140 F.3d 654, 656
(6th Cir. 1998); Oliver v. Oshkosh Truck Corp., 96 F.3d 992,
1003–04 (7th Cir. 1996); Snell v. Bell Helicopter Textron, Inc.,
107
F.3d
Indus.,
744,
749–50
Inc.,
898
(9th
F.2d
Cir.
1487,
1997);
1489
Dorse
(11th
v.
Cir.
Eagle-Picher
1990).
And
although we have not yet had the opportunity to consider this
issue directly, we have recognized that these decisions of our
sister
circuits
are
“reasoned
soundly.”
Emory
v.
McDonnell
Douglas Corp., 148 F.3d 347, 350 (4th Cir. 1998) (collecting
cases).
asbestos
Moreover,
products
--
the
multidistrict
tasked
with
litigation
handling
court
thousands
of
for
such
claims -- has also applied the defense and allowed removal on
this
basis
Benjamin
in
failure
Foster
Co.,
to
739
warn
F.
cases.
Supp.
2d
See
770,
e.g.,
777–86
Hagen
(E.D.
v.
Pa.
2010).
In addition to the multitude of authorities adopting
this
approach,
applicable
in
the
failure
rationales
to
warn
identified
cases.
Just
in
as
Boyle
remain
decisions
on
military equipment design involve complex cost-benefit analyses
in
which
lay
juries
and
judges
8
are
not
versed,
military
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procurement
contracts
warning
labeling
and
equipment.
and
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specifications
requirements
involve
inapplicable
to
manifold
nonmilitary
contractor
Cf. Tozer, 792 F.2d at 405–07 (applying government
defense
in
design
defect
case).
Moreover,
the
constitutional separation of the judiciary from military matters
carries no less force with respect to the design of military
equipment than it does with respect to the warnings accompanying
such equipment.
Further, whether the risk of liability flows
from design defect or failure to warn, the effect remains the
same: government contractors willing to take such a risk will
pass the increased cost to the government and will invest less
in research and development.
Given
the
Cf. id. at 407–08.
weight
of
opposing
precedent
and
the
rationales supporting the defense, we now join the chorus and
hold
that
the
government
failure to warn cases.
contractor
defense
is
available
in
Having established this, we leave it to
the district court to decide whether Appellants have presented
sufficient proof to warrant removal pursuant to § 1442.
IV.
For the foregoing reasons, we reverse and remand for
further proceedings.
REVERSED AND REMANDED
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