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By M. Allie Clayton

On November 1, 2016, in the civil case of Ripley v. Foster Wheeler, LLC, a published opinion, the Fourth Circuit established that the government contractor defense is available in failure to warn cases. The Fourth Circuit reversed and remanded to the Eastern District of Virginia to determine if the government contractor presented sufficient proof to warrant removal under U.S.C. § 1442.

Facts and Procedural History

For over four years in and around the 1970s, Mr. Bernard Ripley worked as a boilermaker at the Norfolk Naval Shipyard. In 2014, when Mr. Ripley was diagnosed with malignant mesothelioma, he and his wife, Deborah Ripley, filed suit in Newport News Circuit Court, a Virginia state court. The Ripleys allege that Mr. Ripley was exposed to asbestos due to products that Foster Wheeler, LLC and Foster Wheeler Energy Corp. (“Appellants”) manufactured for the Navy, and that Appellants are liable for failing to warn Mr. Ripley of the asbestos hazards.

Appellants filed a Notice of Removal and removed the case to the United States District Court for the Eastern District of Virginia. Appellants asserted a government contractor defense, arguing that the suit stemmed from Appellant’s contract with the Navy, thus allowing removal pursuant to the federal officer removal statute 28 U.S.C. § 1442(a)(1). The government contractor defense allows a company that contracts with the military to avoid liability under state-law tort claims for design defects. When the Ripleys moved for remand, the district court granted the motion due to a decades-old practice in the district that denies the government contractor defense in failure to warn cases. Because the federal defense did not apply, according to the District Court, the federal courts had no subject matter jurisdiction. Appellants appealed the grant of the motion for remand.

The Issue

Does the government contractor defense apply to failure to warn cases? If it does, can Appellants, under the federal officer removal statute, remove to the federal district court in order to establish the defense?

The Federal Officer Removal Statute

The federal officer removal statute is an exception to the well-pleaded complaint rule. It allows a defendant to remove a case 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. (alteration and emphasis in original).

The Federal Officer Removal Statute—As Applied

Appellants sought removal based on the government contractor defense as explained under Boyle v. United Technologies Corp.. In Boyle, the Supreme Court held that the government contractor defense applied to design defect cases. The reasons for applying the defense to defect cases were two-fold: (1) separation of powers suggested that the judiciary should be hesitant to intervene in matters of military procurement contracts; and (2) a higher risk of liability for contractors would increase costs to the government and decrease the supply of contractors.

The Eastern District of Virginia in McCormick v. C.E. Thurston & Sons, Inc. had previously held that the government contractor defense was “not available in failure to warn cases.” However, the Fourth Circuit found that most other jurisdictions, including the Second, Fifth, Sixth, Seventh, Ninth, and Eleventh Circuits, that have considered this issue held that the defense does apply to failure to warn cases. The Fourth Circuit further found that the reasons for applying the defense to defect cases were equally applicable in the failure to warn cases. The separation of powers consideration was still relevant due to the fact that it was a military contract. Also, the increased costs to the governments due to the increase risk of liability and the decreased supply of contractors was equally relevant in the general failure to warn context, beyond asbestos. Due to the overwhelming amount of opposing precedent and the valid rationales supporting the application of the defense, the Fourth Circuit “join[ed] the chorus and h[e]ld that the government contractor defense is available in failure to warn cases.”

Disposition

The Fourth Circuit went against precedent that the District Court relied on in remanding the case back to the state court. Because of this shift in doctrine, the Fourth Circuit reversed and remanded the case to the District Court to determine if the Appellants have presented enough proof to warrant removal pursuant to 28 U.S.C. § 1442.

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