17 F.4th 764
8th Cir.2021Background:
- Plaintiffs are civilian employees and employees of military contractors who used Aearo/3M CAEv2 dual-ended earplugs and allege hearing loss or tinnitus from improper fit and inadequate warnings.
- Aearo developed CAEv2 to military specifications (shortened stem to fit under helmets); the military required bulk packaging without manufacturer instructions and issued its own wallet-card warnings including a "fold back" flange-fitting instruction.
- Aearo adapted the same CAEv2 design for commercial sale, drafted commercial instructions, solicited and received input from Army audiologist Dr. Ohlin (including sizing guidance), and incorporated his suggestions.
- Plaintiffs sued 3M in Minnesota state court on state-law failure-to-warn theories; 3M removed under 28 U.S.C. § 1442(a)(1), asserting federal officer removal and a Boyle-based federal contractor defense.
- The district court remanded, finding 3M failed to show it was "acting under" a federal officer/agency or that it had a colorable federal contractor defense; 3M appealed. The Eighth Circuit consolidated Graves and Hall and separately considered Copeland (which included some military-issued-plaintiff claims).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1442(a)(1) removal is available for plaintiffs who bought CAEv2 commercially (acting-under / causal connection) | Graves et al.: claims are state-law failure-to-warn; no government compelled or caused 3M to fail to warn commercial purchasers | 3M: Army involvement in design and review of commercial instructions (Ohlin's input) shows acting-under relationship | Court: 3M did not establish "acting under" federal officer for commercial sales; remand affirmed for commercial purchasers (Graves, Hall, and some Copeland plaintiffs) |
| Whether §1442(a)(1) removal is available for plaintiffs who received military-issued CAEv2 (acting-under, causal connection, and colorable federal-contractor defense) | Copeland plaintiffs: failure-to-warn claims; argue 3M lacks colorable federal defense and no conflict with state law | 3M: military required bulk packaging without instructions, military produced wallet-card warnings; Boyle government-contractor defense applies and is colorable | Court: acting-under and causal-connection satisfied for military-issued plaintiffs; 3M raised a colorable Boyle federal-contractor defense as to those plaintiffs; remand orders reversed for that group and matter remanded to identify them |
Key Cases Cited
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (establishes federal-contractor defense to state tort claims when government approved specifications, equipment conformed, and contractor warned government of unknown hazards)
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (defines "acting under" as more than regulatory oversight; requires assistance in carrying out federal tasks)
- Willingham v. Morgan, 395 U.S. 402 (1969) (removal for federal officers requires only a colorable federal defense; officer need not win before removal)
- Mesa v. California, 489 U.S. 121 (1989) (requires a colorable federal defense for federal-officer removal jurisdictional showing)
- Jacks v. Meridian Res. Co., 701 F.3d 1224 (8th Cir. 2012) (articulates elements for private-party federal-officer removal)
- Cuomo v. Crane Co., 771 F.3d 113 (2d Cir. 2014) (explains government control over warning content is required for contractor defense in failure-to-warn cases)
- Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir. 1995) (recognizes contractor defense where government determined warnings)
- Papp v. Fore-Kast Sales Co., 842 F.3d 805 (3d Cir. 2016) (applies Boyle framework to failure-to-warn claims)