Deborah Getz, et al v. The Boeing Company, et al

Filing

FILED OPINION (J. CLIFFORD WALLACE, JOHN T. NOONAN and RICHARD R. CLIFTON) AFFIRMED. Judge: JCW Authoring,. FILED AND ENTERED JUDGMENT. [7839916]

Case: 10-15284 08/02/2011 Page: 1 of 26

ID: 7839916 DktEntry: 67-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBORAH GETZ, individually and as
a surviving heir of decedent
Kristofer D.S. Thomas; RODNEY
THOMAS, individually and as
surviving heir of decedent,
Kristopher D.S. Thomas; MARY
DUFFMAN, individually and as a
surviving heir of decedent, Scott
E. Duffman; SOPHIA DUFFMAN, a
minor, individually and as a
surviving heir of decedent Scott E.
Duffman, by and through her
Guardian ad Litem, Mary
Duffman; CHRISTINE VAUGHN,
individually and as a surviving
heir of decedent, Travis R.
Vaughn; BRAD VAUGHN,
individually and as a surviving
heir of decedent, Travis R.
Vaughn; HEATHER VAUGHN,
individually and as a surviving
heir of decedent, Travis R.
Vaughn; TAYLIN VAUGHN, a minor,
individually and as a surviving
heir of decedent Travis R.
Vaughn, by and through his
Guardian ad Litem, Heather
Vaughn; JILL GARBS, individually

9949







No. 10-15284
D.C. No.
4:07-cv-06396-CW
OPINION

Case: 10-15284 08/02/2011 Page: 2 of 26

9950

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

and as a surviving heir of
decedent Ryan Garbs; DOUG
GARBS, individually and as a
surviving heir of decedent, Ryan
Garbs; PAUL WILKINSON,
individually and as surviving heir
of decedent Adam Wilkinson;
FELICIA WILKINSON, individually
and as surviving heir of decedent
Adam Wilkinson; TYFFANIE
WILKINSON, individually and as
surviving heir of decedent Adam
Wilkinson; CARSON WILKINSON, a
minor, individually and as a
surviving heir of decedent Adam
Wilkinson, by and through his
Guardian ad Litem, Tyffanie
Wilkinson; ROBERT J. QUINLAN,
individually and as surviving heir
of decedent John Quinlan;
KATHLEEN T. QUINLAN, individually
and as surviving heir of decedent
John Quinlan; JULIE QUINLAN,
individually and as a surviving
heir of decedent John Quinlan;
KEELY QUINLAN, a minor,
individually and as a surviving
heir of decedent John Quinlan, by
and through her Guardian ad
Litem, Julie Quinlan; MADELINE
QUINLAN, a minor, individually and
as a surving heir of decedent John
Quinlan, by and through her







Case: 10-15284 08/02/2011 Page: 3 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

Guardian ad Litem, Julie Quinlan;
ERIN QUINLAN, a minor,
individually and as a surviving
heir of decedent John Quinlan, by
and through her Guardian ad
Litem, Julie Quinlan; HERSHEL
MCCANTS, Sr., individually and as
a surviving heir of Hershel
McCants, Jr.; GOLDIE MURPHY,
individually and as a surviving
heir of decedent Hershel McCants,
Jr.; SHANNON MCCANTS,
individually and as a surviving
heir of decedent Hershel McCants,
Jr.; TREVOR MCCANTS, a minor,
individually and as a surviving
heir of decedent Hershel McCants,
Jr., by and through his Guardian
ad Litem, Shannon McCants;
KYLIE MCCANTS, a minor,
individually and as a surviving
heir of decedent Hershel McCants,
Jr., by and through her Guardian
ad Litem, Shannon McCants;
JORDAN LANHAM; JERRY GOLDSMITH;
RYANNE NOSS, individually and as
spouse of Scot Noss; TIMOTHY
BRAUCH; CHRIS TRISKO; MARK
DANIEL HOUGHTON; CHUCK
ISAACSON; BRENDA ISAACSON,







9951

Case: 10-15284 08/02/2011 Page: 4 of 26

9952

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

individually and as spouse of
Chuck Isaacson,
Plaintiffs-Appellants,
v.
THE BOEING COMPANY, a
corporation; HONEYWELL
INTERNATIONAL, INC., a corporation;
GOODRICH PUMP AND ENGINE
CONTROL SYSTEMS, INC., a
corporation; AT ENGINE CONTROLS
LTDS.; DOES, 1 through 200,
inclusive,
Defendants-Appellees.







Appeal from the United States District Court
for the Northern District of California
Claudia A. Wilken, District Judge, Presiding
Argued and Submitted
March 18, 2011—San Francisco, California
Filed August 2, 2011
Before: J. Clifford Wallace, John T. Noonan, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Wallace

Case: 10-15284 08/02/2011 Page: 5 of 26

9956

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

COUNSEL
Thomas J. Brandi, Daniel Dell’Osso (argued), and Brian J.
Malloy, The Brandi Law Firm, San Francisco, California, for
the appellants.
Steven S. Bell (argued), Charles W. Mulaney, and Kathleen
M. O’Sullivan, Perkins Coie, Seattle, Washington, for appellee The Boeing Company.
Joanna E. Herman, James W. Huston (argued), William V.
O’Connor, and Greg Reilly, Morrison & Foerster, San Diego,
California, for appellee Honeywell International, Inc.
Alan H. Collier (argued) and Mark R. Irvine, Fitzpatrick &
Hunt, Tucker, Collier, Pagano, Aubert, Los Angeles, California, for appellee Goodrich Pump & Engine Control Systems,
Inc.
Michael A. Hession and Kevin R. Sutherland (argued), Clyde
& Co., San Francisco, California, for appellee AT Engine
Controls Ltd.

Case: 10-15284 08/02/2011 Page: 6 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9957

OPINION
WALLACE, Senior Circuit Judge:
This case arises from the tragic February 2007 crash of an
Army Special Operations Aviation Regiment helicopter in
Afghanistan. Plaintiffs, who include those injured and the
heirs of those killed in the crash, appeal from the district
court’s dismissal of AT Engine Controls (ATEC) for lack of
personal jurisdiction and from the court’s summary judgment
in favor of The Boeing Company (Boeing), Honeywell International, Inc. (Honeywell), and Goodrich Pump and Engine
Control (Goodrich). We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
I.
In February 2007, an Army-operated MH-47E Chinook
helicopter crashed in the Kabul Province of Afghanistan. The
helicopter was transporting military personnel to Bagram Airbase when it encountered snow, rain, and ice. Then, without
warning, one of the Chinook’s engines suddenly shut down,
and the aircraft crashed. Eight servicemen were killed and
fourteen were severely injured.
Two investigations into the cause of the crash revealed that
it occurred after one of the helicopter’s two engines suddenly
flamed out. An initial Army investigation suggested that the
aircraft’s engine control system—the Full Authority Digital
Electronic Control (FADEC)—unexpectedly shut down, causing the engine to fail. According to investigators, the engine’s
Digital Electronic Control Unit (DECU)—the onboard computer that controls fuel flow to the engine—malfunctioned
due to some kind of electrical anomaly.
A second investigation, conducted primarily by the manufacturers of the MH-47E, suggested that the crash occurred
for a different reason. According to these investigators, the

Case: 10-15284 08/02/2011 Page: 7 of 26

9958

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

aircraft’s engine flamed out because it ingested an inordinate
amount of water and ice during the inclement weather. This
investigation further suggested, however, that the flameout
might have been avoided if the MH-47E’s ignition system had
been equipped with a continuous or automatic relight feature,
which would have allowed the engine to restart automatically
in the event of a water- or ice-induced flameout.
Six months after the crash, Plaintiffs filed an action against
the contractors that designed and manufactured the allegedly
defective aircraft. These contractors include: Boeing, which
designed the helicopter’s airframe; Honeywell, which
designed and built the engines (including the ignition system);
Goodrich, which designed the FADEC and was responsible
for the DECU; and ATEC, a British company that designed
the hardware and software for the DECU.
Initially, Plaintiffs sought relief in California state court,
alleging that defendants were liable on theories of product liability, negligence, wrongful death, and loss of consortium.
Boeing, however, quickly removed the action to federal court
pursuant to the Federal Officer Removal Statute, 28 U.S.C.
§ 1442(a), which allows federal officers and agents to remove
state-law claims to federal court by asserting a federal
defense.
In a series of written orders, the district court rejected each
of Plaintiffs’ claims. First, in a March 10, 2009 order, the district court ruled that it lacked personal jurisdiction over
ATEC. Then, in January 2010, the district court granted summary judgment to Boeing, Honeywell, and Goodrich (collectively the Contractors). Getz v. Boeing Co., 690 F. Supp. 2d
982 (N.D. Cal. 2010). According to the district court, Plaintiffs’ state-law claims against the Contractors were preempted
by the government contractor defense. Id.
II.
[1] In resolving Plaintiffs’ appeal, we turn first to the district court’s dismissal of ATEC, the British company, for lack

Case: 10-15284 08/02/2011 Page: 8 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9959

of personal jurisdiction. According to Plaintiffs, ATEC is subject to personal jurisdiction in California pursuant to Federal
Rule of Civil Procedure 4(k)(2). This Rule, which is commonly known as the federal long-arm statute, permits federal
courts to exercise personal jurisdiction over a defendant that
lacks contacts with any single state if the complaint alleges
federal claims and the defendant maintains sufficient contacts
with the United States as a whole. Rule 4(k)(2), titled “Federal Claim Outside State-Court Jurisdiction,” provides:
For a claim that arises under federal law, serving a
summons or filing a waiver of service establishes
personal jurisdiction over a defendant if:
(A)

the defendant is not subject to jurisdiction in
any state’s courts of general jurisdiction; and

(B)

exercising jurisdiction is consistent with the
United States Constitution and laws.

The only question presented here is whether Plaintiffs satisfy
the first part of Rule 4(k)(2). That is, do any of their claims
against ATEC—pure state-law claims for product liability,
negligence, wrongful death, and loss of consortium—arise
under federal law?
[2] Until now, we have not examined the precise parameters of the arising-under-federal-law element of Rule 4(k)(2).
We need not, however, navigate through uncharted terrain
without a compass. Here, the commentary to the Rule and the
well-reasoned decisions of our sister circuits agree that Rule
4(k)(2)’s reach is limited to substantive federal claims.
First, the commentary explains that Rule 4(k)(2) was
enacted to “correct[ ] a gap in the enforcement of federal
law.” Fed. R. Civ. P. 4(k)(2), Advisory Committee Note.
Under the former rules for service of process, federal courts
looked to state law, even in federal question cases, whenever

Case: 10-15284 08/02/2011 Page: 9 of 26

9960

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

a federal statute was silent about the proper mechanism for
service. Id.; see also Omni Capital Int’l v. Rudolf Wolff &
Co., 484 U.S. 97, 111 (1987) (recognizing the predecessor
rule’s limitations). As a result, foreign defendants having sufficient contacts with the United States as a whole, but not satisfying the applicable state long-arm statute, would be
“shielded from the enforcement of federal law by the fortuity”
of the Fourteenth Amendment’s “favorable limitation on the
power of state courts.” Fed. R. Civ. P. 4(k)(2), Advisory
Committee Note.
Rule 4(k)(2) eliminates this anomaly. Whereas foreign
defendants lacking sufficient contacts with any single state
could previously avoid responsibility for civil violations of
our federal laws, the revised Rule allows federal courts to
exercise jurisdiction over these defendants, subject only to the
limitations of the Fifth Amendment’s due process clause. Id.
In this manner, Rule 4(k)(2) provides aggrieved plaintiffs
with a mechanism for vindicating their federal rights in cases
involving defendants that lack single-state contacts, but who
possess minimum contacts with the United States as a whole.
Id.
However, Rule 4(k)(2) was narrowly tailored so as to avoid
conflict with the Fourteenth Amendment’s jurisdictional limits in cases alleging only state-law claims:
This narrow extension of the federal reach applies
only if a claim is made against the defendant under
federal law. It does not establish personal jurisdiction if the only claims are those arising under state
law or the law of another country, even though there
might be diversity or alienage subject matter jurisdiction as to such claims.
Id. (emphasis added). Thus, in order to preserve the proper
constitutional balance, Rule 4(k)(2) is available only to plaintiffs who allege a “federally created cause of action.” 4

Case: 10-15284 08/02/2011 Page: 10 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9961

Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1068.1 (3d ed. 1998).
Those circuits to address Rule 4(k)(2) have followed the
approach set forth in the commentary. The Fifth Circuit, for
instance, has limited the Rule to “substantive federal law
claims.” World Tanker Carriers Corp. v. M/V Ya Mawlaya,
99 F.3d 717, 722 (5th Cir. 1996). Agreeing with World
Tanker, the First Circuit has held that a claim that finds its
“roots in . . . a federal source” satisfies Rule 4(k)(2). United
States v. Swiss Am. Bank, Ltd., 191 F.3d 30, 45 (1st Cir.
1999); see also Touchcom, Inc. v. Bereskin & Parr, 574 F.3d
1403, 1413 (Fed. Cir. 2009) (to meet the arising under
requirement of Rule 4(k)(2), federal law must be “a necessary
element of one of the [plaintiff’s] well-pleaded complaints”).
[3] Based on the commentary and this authority, we hold
that Plaintiffs’ claims for product liability, negligence, wrongful death, and loss of consortium do not arise under federal
law for purposes of Rule 4(k)(2). None of these purely statelaw claims alleges any violation of a federal right and none
seeks “the enforcement of federal law.” See Fed. R. Civ. P.
4(k)(2), Advisory Committee Note. Unfortunately for Plaintiffs, their complaint simply does not assert any “substantive
federal law claim” or a claim that finds its “roots in a federal
source.” See World Tanker Carriers, 99 F.3d at 722; Swiss
Am. Bank, 191 F.3d at 45.
[4] Despite the non-federal basis of their complaint, Plaintiffs insist that their claims arise under federal law because the
Contractors removed this action pursuant to the Federal Officer Removal Statute. See 28 U.S.C. § 1442(a) (permitting federal officers and agents to remove an otherwise state-law
action to federal court by raising a federal defense). According to Plaintiffs, their claims became substantively federal
when the Contractors asserted a federal defense in their
removal petition. The problem, at least for Plaintiffs, is that
the Supreme Court’s decision in Arizona v. Manypenny, 451

Case: 10-15284 08/02/2011 Page: 11 of 26

9962

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

U.S. 232 (1981), forecloses their argument. There, the Court
explained that “the invocation of removal jurisdiction by a
federal officer does not revise or alter the underlying law to
be applied.” Id. at 242. Section 1442(a) confers “a purely
derivative form of jurisdiction, neither enlarging nor contracting the rights of the parties.” Id. Hence, the Contractors’ decision to assert a federal defense merely provides us with
subject-matter jurisdiction over this action. See Mesa v. California, 489 U.S. 121, 136 (1989) (section 1442(a) “serves to
overcome the ‘well-pleaded complaint’ rule[,] which would
otherwise preclude removal even if a federal defense were
alleged”).
[5] Here, the “underlying law to be applied” is California
state law. The only federal interest at issue—the Contractors’
eligibility for a federal defense—has no bearing on Plaintiffs’
ability to vindicate a federal right and it does not constitute
an essential element of Plaintiffs’ well-pleaded complaint. See
Cal. Shock Trauma Air Rescue v. State Compensation Ins.
Fund, 636 F.3d 538, 541 (9th Cir. 2011). The existence of a
federal defense does not transform purely state-law claims
into “federally created cause[s] of action.” See Wright & Miller, supra, § 1068.1 (the reach of Rule 4(k)(2) is limited to
substantive federal-law claims). Accordingly, Rule 4(k)(2)
does not apply. See Manypenny, 451 U.S. at 242.
As for Plaintiffs’ allegations that ATEC might nonetheless
have minimum contacts with California, which they assert
independently of their reliance on Rule 4(k)(2), we reject
Plaintiffs’ contention that the district court should have permitted additional jurisdictional discovery on this issue.
“[W]here a plaintiff’s claim of personal jurisdiction appears
to be both attenuated and based on bare allegations in the face
of specific denials made by the defendants, the Court need not
permit even limited discovery.” Pebble Beach Co. v. Caddy,
453 F.3d 1151, 1160 (9th Cir. 2006) (internal quotation marks
omitted). Here, Plaintiffs fail to identify any specific facts,
transactions, or conduct that would give rise to personal juris-

Case: 10-15284 08/02/2011 Page: 12 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9963

diction over ATEC in California. In light of their purely speculative allegations of attenuated jurisdictional contacts, the
district court did not abuse its discretion when it denied Plaintiffs’ request for further discovery. See id.
III.
[6] We turn now to the main issue presented in this appeal:
whether Plaintiffs’ state-law claims are barred by the government contractor defense. This defense protects government
contractors from tort liability that arises as a result of the contractor’s “compli[ance] with the specifications of a federal
government contract.” In re Hanford Nuclear Reservation
Litig., 534 F.3d 986, 1000 (9th Cir. 2008); see also Rodriguez
v. Lockheed Martin Corp., 627 F.3d 1259, 1265 (9th Cir.
2010) (describing the defense as a shield to tort liability).
The Supreme Court established the framework of the government contractor defense in Boyle v. United Technologies
Corp., 487 U.S. 500 (1988). There, the Court explained that
procurement of military equipment involves “uniquely federal
interests” that sometimes preempt a plaintiff’s product liability claims against government contractors. Id. at 504. To
invoke the defense successfully, the contractor must establish
three elements: “(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.
In their appeal, Plaintiffs raise several challenges to each of
these elements.
A.
[7] Under Boyle’s first element, a contractor must demonstrate that the government “approved reasonably precise specifications.” Id. As we explained in Snell v. Bell Helicopter
Textron, Inc., the government’s approval of a particular speci-

Case: 10-15284 08/02/2011 Page: 13 of 26

9964

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

fication must be more than a cursory “rubber stamp” approving the design. 107 F.3d 744, 748 (9th Cir. 1997). Rather,
approval must result from a “continuous exchange” and “back
and forth dialogue” between the contractor and the government. Butler v. Ingalls Shipbuilding, Inc., 89 F.3d 582, 585
(9th Cir. 1996). When the government engages in a thorough
review of the allegedly defective design and takes an active
role in testing and implementing that design, Boyle’s first element is met. Id.
Plaintiffs argue that the necessary specifications are lacking
with respect to the following design features of the MH-47E
Chinook: (i) the engine’s ignition system, (ii) the FADECDECU, and (iii) the aircraft itself.
1.
[8] According to Plaintiffs, the ignition system was defective because it was manufactured without a continuous relight
function, which would have allowed the engine to restart
automatically in the event of a water-induced flameout. Upon
careful review of the record, we are confident that the United
States Army approved reasonably precise specifications for
this aspect of the MH-47E’s ignition system, which was manufactured by Honeywell.
Under the terms of its contract with the Army, Honeywell
was required to construct the MH-47E’s engine pursuant to
“Military Specification AV-E-8593D.” This provision, which
is titled “General Specification for Engines, Aircraft, Turboshaft, and Turboprop,” provides design criteria, performance expectations, and mandatory quality assurance testing
for all military aircraft. Among other things, the Army’s specification includes diagrams and drawings for engine controls;
engine configuration requirements; and tests for the engine’s
ignition system. Specification AV-E-8593D also required
Honeywell to submit a proposed “complete engine specification” for governmental approval.

Case: 10-15284 08/02/2011 Page: 14 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9965

Honeywell did just that when it submitted its Prime Item
Development Specifications to the Army. These specifications contain numerous drawings, figures, and schematics for
the engine used in the MH-47E Chinook. They also provide
a detailed description of the allegedly defective ignition system. Most importantly, at least for purposes of resolving this
appeal, Honeywell’s specifications explicitly state: “Continuous duty ignition capability is not provided.” Hence, the specifications explicitly identify the “design of the particular
feature at issue” and expressly observe that feature’s absence.
See Snell, 107 F.3d at 747. In this sense, Honeywell’s specifications describe, in reasonable detail, the design feature
alleged to be defective. See id.; Boyle, 487 U.S. at 512.
[9] It is also clear that the Army’s approval of this specification resulted from careful deliberation, not a “rubber
stamp.” See Snell, 107 F.3d at 748. The undisputed record
provides that the Aviation Engineering Directorate—which is
charged with evaluating designs, performing quality assurance tests, and approving aviation equipment—specifically
reviewed Honeywell’s design analyses, reports, and test plans,
and attended multiple formal design meetings. Members of
the Directorate also attested that the government was well
aware of the availability of an automatic relight system, but
chose to forego that technology. This type of “continuous
exchange” and “back and forth dialogue” is what is necessary
to demonstrate that the Army exercised its judgment in
approving Honeywell’s design for the ignition system. Butler,
89 F.3d at 585.
We also reject the notion that the approved specifications
constitute mere performance criteria, instead of design specifications. See In re Haw. Fed. Asbestos Cases, 960 F.2d 806,
813 (9th Cir. 1992) (to qualify for the government contractor
defense, approved specifications must do more than merely
identify “a certain level of performance”). Although some of
the specifications identified by the parties are performance
based—for example, the “Ignition System Performance”

Case: 10-15284 08/02/2011 Page: 15 of 26

9966

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

specification—the key specifications at issue pertain to the
MH-47E’s design. In particular, the provision identifying the
absence of “continuous ignition capability” describes a particular aspect of the ignition system’s design, not a performance
characteristic.
2.
[10] The Army also approved reasonably precise specifications for the design of the FADEC-DECU, which, again, is
the engine control system and computer that allegedly malfunctioned immediately prior to the February 2007 crash.
According to the undisputed record, Goodrich—the contractor
directly responsible for this component—provided Army personnel with lengthy and detailed design specifications
describing both the FADEC (the control system as a whole)
and the DECU (the FADEC’s onboard computer). Among
other things, these specifications include complex diagrams
and design drawings of the FADEC, a description of fault
monitoring procedures for the DECU, algorithms for troubleshooting, and a system for engine fail detection.
[11] Undisputed affidavit evidence also establishes that the
Army carefully reviewed these specifications, scrutinized
their content, and evaluated the reported test results before
approving Goodrich’s specifications. Army engineers
attended regular technical meetings pertaining to the FADECDECU throughout the procurement process. These engineers
also issued formal requests for information pertaining to various design aspects of the FADEC system and called periodic
meetings to discuss and test the fuel control design, software
design, and the design of the electronics (that is, the DECU).
At one point, Army engineers even rejected the “FADEC control system specification,” insisting that Goodrich address certain technical concerns. Such critical and substantive review
ultimately culminating in approval is the type of careful consideration necessary to demonstrate that the government made

Case: 10-15284 08/02/2011 Page: 16 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9967

a discretionary decision when it approved the FADEC-DECU.
See Butler, 89 F.3d at 585.
Plaintiffs present no contrary evidence. Instead, they rely
heavily on a single statement contained in Goodrich’s
approved specifications for the FADEC-DECU:
Specific implementations used to describe the functional requirements throughout this document are for
informational understanding only. Actual implementations used to meet these requirements will be at the
discretion of the designer unless specifically stated
otherwise.
According to Plaintiffs, the government could not have exercised actual discretion over the design because that discretion
was left to Goodrich. There are at least two flaws in Plaintiffs’
argument. First, the statement at issue cannot reasonably be
construed as a broad grant of discretion over the final product.
Rather, discretion was limited to “implementation” of the specific design requirements contained within the approved specifications and thus does not defeat the government contractor
defense. See, e.g., McKay v. Rockwell Int’l Corp., 704 F.2d
444, 450 (9th Cir. 1983) (government contractor defense may
still apply if the specifications leave some “discretion to the
supplier in the formulation of the product’s design”); Oliver
v. Oshkosh Truck Corp., 96 F.3d 992, 999 (7th Cir. 1996)
(“[T]he fact that Oshkosh may have retained some discretion
to position the fuel tanks and exhaust system within the envelope permitted by the specifications, standing alone, [does
not] defeat the government contractor defense” (emphasis
added)). Second, and perhaps more importantly, the evidence
discussed earlier establishes that the Army carefully scrutinized, tested, and made necessary changes to the FADECDECU. This type of exchange and scrutiny is sufficient to
demonstrate that the government exercised judgment in
approving this product’s design. See Butler, 89 F.3d at 585.

Case: 10-15284 08/02/2011 Page: 17 of 26

9968

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

[12] Contrary to Plaintiffs’ view, it makes no difference,
for purposes of our analysis, that a similar engine control system had previously been developed for Great Britain’s Royal
Air Force. Although Boyle makes the government contractor
defense inapplicable when “a federal procurement officer
orders, by model number, a quantity of stock helicopters that
happen to be equipped with” a particular design feature, 487
U.S. at 509, this defense does not require the government to
create the design or the specifications. As long as the United
States makes “a significant policy judgment” in approving the
design, nothing precludes the government from procuring
designs and products that were initially developed for other
nations. Id. at 513; see also Carley v. Wheeled Coach, 991
F.2d 1117, 1125 (3d Cir. 1993) (“[I]t is necessary only that
the government approve, rather than create, the specifications”).
If we were to hold otherwise, the potential for increased liability could dissuade contractors from providing the United
States with sophisticated military equipment that they had initially designed for another nation’s armed forces. This ultimately would put the United States military at a competitive
disadvantage: either the government would be unable to
obtain necessary equipment or it would be forced to pay
higher prices to offset the contractor’s increased risk of liability. Therefore, we are persuaded by the Eleventh Circuit’s
recent decision in Brinson v. Raytheon Co., 571 F.3d 1348
(11th Cir. 2009). There, the court imposed the government
contractor defense even though the product design had been
patented before it was approved by the United States Air
Force. Id. at 1357. The court did so because it was clear that
the Air Force carefully “considered” and “reviewed” the
design prior to approval and implementation. Id. Boyle does
not require more than this.
3.
While they do not identify any additional defect, Plaintiffs
argue that “the helicopter as a whole” was defective. As far

Case: 10-15284 08/02/2011 Page: 18 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9969

as we can tell, this argument is premised on the theory that
Boeing, which was contracted to configure the aircraft, delivered a final product containing a defective ignition system
and/or FADEC-DECU. We reject Plaintiffs’ argument for the
reasons expressed above: the government approved reasonably precise design specifications for both of these component
parts.
B.
[13] We turn now to the second element of the government
contractor defense. That element requires a defendant to
establish that the product conformed with approved specifications. Boyle, 487 U.S. at 512. Until now, we have not provided a detailed examination of this requirement. In Snell, for
instance, we refused to reach the conformity question because
the contractor did not establish Boyle’s first element as a matter of law. 107 F.3d at 748-49. Other circuits, however, have
extensively examined the conformity element, and their analysis provides persuasive guidance.
[14] Following our sister circuits’ lead, we hold that the
operative test for conformity with reasonably precise specifications turns on whether “the alleged defect . . . exist[ed]
independently of the design itself.” Miller v. Diamond Shamrock Co., 275 F.3d 414, 421 (5th Cir. 2001) (internal alteration omitted) (internal quotation marks omitted). “To say
that a product failed to conform to specifications is just
another way of saying that it was defectively manufactured.”
Harduvel v. Gen. Dynamics Corp., 878 F.2d 1311, 1321 (11th
Cir. 1989). Therefore, absent some evidence of a latent manufacturing defect, a military contractor can establish conformity with reasonably precise specifications by showing
“[e]xtensive government involvement in the design, review,
development and testing of a product” and by demonstrating
“extensive acceptance and use of the product following production.” Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 43536 (5th Cir. 2000).

Case: 10-15284 08/02/2011 Page: 19 of 26

9970

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

[15] Upon careful review of the record, we conclude that
the MH-47E conformed with the approved specifications for
both the ignition system and the FADEC-DECU. The government invested years in reviewing, developing, and testing
both the MH-47E and its engine. When the finished helicopter
was delivered, Army officials again carefully examined the
engine, inspected the aircraft’s component parts, conducted
test flights, and administered rigorous tests and examinations
to ensure conformity. Army officials then executed a DD
Form 250—a Material Inspection and Receiving Report—for
both the ignition system and the FADEC-DECU. Through
that form, the Army officially certified “that all articles delivered [were] inspected and found to conform in all respects . . .
to all applicable blueprints, specifications, and standards.”
Because Plaintiffs do not present any evidence of a latent
manufacturing defect that was undiscovered at the time of
acceptance, the government’s careful scrutiny and subsequent
certification of the MH-47E provide sufficient proof of conformity. See Miller, 275 F.3d at 421; Kerstetter, 210 F.3d at
435-36.
In an effort to overcome summary judgment, Plaintiffs
place great emphasis on a post-accident email addressed to
the Contractors. In it, an Army officer expressed frustration
with the Contractors over their failure to provide a promised
“input/output table” to Army personnel. Apparently, this table
would have measured “the electrical parameters used by the
DECU to control” the engines on the MH-47E. The email
states:
For the record, the request for the I/O table was
made because a FADEC/DECU Electrical Interface
Control Document was apparently never written during the design, development, and testing of the
FADEC System. Action item 33/34 directly
requested that Boeing and Honeywell provide the
Aircraft to DECU and the Engine to DECU I/O,
respectively, contractually required to be delivered

Case: 10-15284 08/02/2011 Page: 20 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9971

back in 1988. We are still waiting for the [sic] a copy
of the data delivered by either company that met that
specific contractual obligation.
This email leaves unclear how the absence of a 1988 I/O table
has any bearing on whether the DECU conformed with reasonably precise design specifications. See Boyle, 487 U.S. at
512. Significantly, nothing in the record explains how the I/O
data might have implicated a manufacturing aberration in the
DECU’s component parts that existed “independently of the
design itself.” See Miller, 275 F.3d at 421. Thus, while Plaintiffs suggest that the I/O data might have provided evidence
of an “electrical anomaly,” the notion that the measurements
would have identified a deviation from the approved design
specifications is speculative and thus insufficient to defeat
summary judgment. See Nelson v. Pima Cmty. Coll., 83 F.3d
1075, 1081-82 (9th Cir. 1996) (a litigant may not rely on mere
speculation and conjecture to avoid summary judgment).
In addition, while the MH-47E Chinook’s engine obviously
did not perform like it was supposed to—the aircraft’s engine
stalled midflight—this does not preclude the Contractors from
establishing the defense. Here, Plaintiffs are quick to point out
that the government contracted for a helicopter that would
have maintained flight in the adverse weather conditions
encountered by the MH-47E. Likewise, they assert that “the
failure or shutdown of one engine” was not supposed to
“compromise the remaining engine or safety of flight systems.” The problem for Plaintiffs is that “[n]onconformance
with a specification means more than that the ultimate design
feature does not achieve its intended goal.” Kerstetter, 210
F.3d at 435; see also Oliver, 96 F.3d at 1000 (mere allegation
of nonperformance is insufficient).
[16] The government contractor defense does not depend
upon satisfaction of some general performance goal. Otherwise, “[a] product involved in a design-induced accident
would, as a definitional matter, always be deemed not to com-

Case: 10-15284 08/02/2011 Page: 21 of 26

9972

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

ply with such generalities since no performance specifications
approved by the government would purposely allow a design
that would result in an accident.” Kleemann v. McDonnell
Douglas Corp., 890 F.2d 698, 703 (4th Cir. 1989). For the
defense to have any substance, “[n]onconformance to precise
specifications must mean more than that the design does not
work in compliance with some ‘general admonition against an
unwanted condition.’ ” Id. at 703, quoting Harduvel, 878 F.2d
at 1319 n.3. Here, the Contractors present undisputed evidence that the ignition system and the DECU conformed with
the reasonably precise design specifications approved by the
Army. That is the end of the matter for purposes of Boyle’s
test for conformity.
C.
[17] The final element of the government contractor
defense requires government contractors to warn the United
States “about the dangers in the use of the equipment that
were known to the [contractor] but not to the United States.”
Boyle, 487 U.S. at 512. Under this element, “a government
contractor is only responsible for warning the government of
dangers about which it has actual knowledge.” Kerstetter, 210
F.3d at 436 (internal quotation marks omitted).
[18] We conclude that the Contractors satisfied this final
requirement. With respect to the potential for a water- or iceinduced flameout, it is clear that the Army was already aware
of this particular risk. As Honeywell points out, a 1990 Army
Field Manual stated explicitly that “[t]urbine engines sometimes tend to flameout” and that “ingestion of ice broken
loose at the engine inlet may cause such a situation.” In addition, the Army was well aware of an automatic relight feature
to overcome this problem. The Chief of the Aviation Engineering Directorate, which approved the design specifications
for the MH-47E, stated in his undisputed affidavit that “automatic re-light . . . technology has always been known to the
Army, but the Army elected not to include it” on the Chinook

Case: 10-15284 08/02/2011 Page: 22 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9973

line of helicopters. Moreover, because the approved specifications affirmatively acknowledged the absence of a continuous
relight function, Plaintiffs cannot seriously argue that the
Army was unaware of that component’s existence. See Boyle,
487 U.S. at 512.
Plaintiffs nonetheless insist that issues of fact remain
because the Army had never heard of an engine actually flaming out due to water or ice ingestion. The problem for Plaintiffs is that the Contractors were equally unaware of any prior
incidents. At most, Plaintiffs’ evidence suggests that the Contractors should have been aware of the alleged defect. Boyle,
however, does not require a contractor to warn about dangers
of which it merely should have known. 487 U.S. at 512; Kerstetter, 210 F.3d at 436.
To the extent that the crash may have occurred as a result
of an electrical anomaly with the FADEC-DECU, summary
judgment is likewise appropriate. According to Plaintiffs, the
Contractors should have warned of this potential defect
because they were aware of other Chinook aircraft that had
experienced engine anomalies prior to the February 2007
crash. A review of these other incidents, however, makes
clear that all of these aircraft were MH-47Es. Because the
MH-47E is operated exclusively by the United States Army,
government personnel were necessarily aware of the potential
problem prior to the crash. Again, Boyle does not require government contractors to warn of dangers that were already
known to the United States. 487 U.S. at 512.
IV.
[19] Our analysis to this point leaves us with just one additional issue to resolve: whether Plaintiffs can state a claim
against the Contractors for allegedly violating their state-law
duty to warn of dangers of which the Contractors should have
known. Although federal courts, including ours, have unanimously held that the government contractor defense may pre-

Case: 10-15284 08/02/2011 Page: 23 of 26

9974

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

empt these types of claims, a contractor cannot defeat a
failure-to-warn claim simply by establishing the elements of
the Boyle defense as it applies to design and manufacturing
defect claims. See e.g., Butler, 89 F.3d at 586. Rather, the
contractor must show that it “act[ed] in compliance with ‘reasonably precise specifications’ imposed on it by the United
States” in deciding whether “to provide a warning.” Id. (internal alteration omitted). As the Seventh Circuit has explained:
[W]hen state law would otherwise impose liability
for a failure to warn, that law can be displaced when
the contractor can show that: (1) the government
exercised its discretion and approved certain warnings; (2) the contractor provided the warnings
required by the government; [and] (3) the contractor
warned the government about dangers in the equipment’s use that were known to the contractor but not
to the government.
Oliver, 96 F.3d at 1003-04. This means that the contractor
must demonstrate that the government “approved reasonably
precise specifications” thereby limiting the contractor’s “ability to comply with [its] duty to warn.” Snell, 107 F.3d at 749
(internal quotation marks omitted).
According to Plaintiffs, the Contractors violated their duty
to warn because they knew or should have known of an electrical problem with the FADEC-DECU, but failed to provide
timely warnings to the operators of the MH-47E Chinook.
[20] It is beyond dispute that the “government exercised its
discretion” when it selected relevant warnings for the MH47E. Oliver, 96 F.3d at 1003. Here, the complete set of warnings is contained in the helicopter’s Operator’s Manual. That
Manual sets forth specific “warnings,” “emergency procedures,” and “critical instructions” for the aircraft. Significantly, based on the government’s agreement with the
Contractors, the Army was fully responsible for the Opera-

Case: 10-15284 08/02/2011 Page: 24 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9975

tor’s Manual and its contents. Thus, because the Army, not
the Contractors, selected which warnings to include in the
Manual, Plaintiffs’ contention that the government did not
exercise discretion over the content of these warnings is
meritless. Where “the government chooses its own warnings,
the contractor has certainly fulfilled [Boyle’s] first condition.”
Id. at 1004; see also Tate v. Boeing Helicopters, 55 F.3d
1150, 1157 (6th Cir. 1995) (“[W]here the government goes
beyond approval and actually determines for itself the warnings to be provided, the contractor has surely” demonstrated
that “the government exercised its discretion”).
The Contractors easily satisfy the second and third elements of the government contractor defense as it applies to
Plaintiffs’ state-law failure to warn claims. The second
element—providing the warning required by the government
—is satisfied by the Contractor’s delivery of the Operator’s
Manual. As for the final element—whether the Contractors
“warned the government about dangers in the equipment’s use
that were known to the [C]ontractor[s] but not to the
government”—this element is satisfied for the reasons
explained earlier in connection with Plaintiffs’ design and
manufacturing defect claims: the Contractors and the government had equal awareness of the allegedly undisclosed risks.
See Oliver, 96 F.3d at 1004.
[21] We are not persuaded by Plaintiffs’ suggestion that
our decisions in Butler and Hawaii Federal Asbestos limit the
defense to cases in which the government specifically forbids
warnings altogether or to instances where the government
explicitly dictates the content of the warnings adopted. These
cases only require that governmental approval (or disapproval) of particular warnings “conflict” with the contractor’s
“duty to warn under state law.” Butler, 89 F.3d at 586; see
also Haw. Fed. Asbestos, 960 F.2d at 813 (rejecting the
defense where the government’s specifications were silent
about warnings). To read these cases as limiting preemption
to those instances where the government forbids additional

Case: 10-15284 08/02/2011 Page: 25 of 26

9976

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

warning or dictates the precise contents of a warning would
be inconsistent with the Court’s decision in Boyle. See Oliver,
96 F.3d at 1004 n.8 (rejecting plaintiff’s argument that Butler
and Hawaii Federal Asbestos could be interpreted as imposing such a “rigid” rule). Boyle makes clear that government
discretion, rather than dictation, is the standard. 487 U.S. at
512-13. Accordingly, given that the Army considered,
reviewed, and determined which warnings to provide, the
government’s exercise of discretion necessarily “conflicts”
with the Contractors’ “duty to warn under state law.” See Butler, 89 F.3d at 586.
V.
Finally, we address two evidentiary issues. First, we hold
that the district court did not abuse its discretion in declining
Plaintiffs’ request for additional discovery pursuant to Federal
Rule of Civil Procedure 56(f). Here, Plaintiffs failed to “proffer sufficient facts to show that the evidence sought exists,
and that it would prevent summary judgment.” Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009)
(internal quotation marks omitted) (rejecting similar arguments asserted pursuant to Rule 56(f)).
Similarly, the district court did not abuse its discretion by
entering summary judgment based on the MH-47E’s Operator’s Manual, which the Contractors submitted for the first
time in their reply to the motion for summary judgment.
According to Plaintiffs, the district court was not permitted to
consider this evidence without first giving them an opportunity to respond. Provenz v. Miller, 102 F.3d 1478, 1483 (9th
Cir. 1996) (“Where new evidence is presented in a reply to a
motion for summary judgment, the district court should not
consider the new evidence without giving the non-movant an
opportunity to respond” (internal alteration omitted) (internal
quotation marks omitted)). However, by failing to object to or
otherwise challenge the introduction of the Operator’s Manual
in the district court, Plaintiffs have waived any challenge on

Case: 10-15284 08/02/2011 Page: 26 of 26

ID: 7839916 DktEntry: 67-1

GETZ v. THE BOEING CO.

9977

the admissibility of this evidence. See Yamashita v. Territory
of Guam, 59 F.3d 114, 117 (9th Cir. 1995) (holding a similar
evidentiary challenge as waived).
VI.
We have considered each of Plaintiffs’ arguments challenging the district court’s dismissal of ATEC for lack of personal
jurisdiction and its summary judgment in favor of the Contractors. None of these arguments are persuasive.
Finally, because the government contractor defense bars
each of Plaintiffs’ state-law claims, we need not consider the
Contractors’ alternative argument—based on the combatant
activities exception—for upholding the district court’s summary judgment. See Morse v. Frederick, 551 U.S. 393, 431
(2007) (“[T]he cardinal principle of judicial restraint is that if
it is not necessary to decide more, it is necessary not to decide
more” (Breyer, J., concurring in the judgment in part and dissenting in part) (internal quotation marks omitted)).
AFFIRMED.