Deborah Ripley v. Foster Wheeler LLC
2016 U.S. App. LEXIS 19631
| 4th Cir. | 2016Background
- Bernard Ripley worked as a boilermaker at Norfolk Naval Shipyard in the 1970s and was later diagnosed with mesothelioma; his wife (substituted as administratrix) sued Foster Wheeler entities for failing to warn about asbestos in products they manufactured for the Navy.
- Appellants removed the Virginia state-court action to federal court under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), asserting a government-contractor defense based on Boyle v. United Technologies.
- The district court remanded, following a longstanding Eastern District of Virginia practice that declined to apply the government-contractor defense to failure-to-warn claims, and concluded removal was improper.
- Appellants appealed the remand order to the Fourth Circuit (appeals allowed after the 2011 Removal Clarification Act).
- The Fourth Circuit reviewed de novo whether the government-contractor defense applies to failure-to-warn claims and whether § 1442 removal was colorably invoked.
- The Fourth Circuit concluded that Boyle’s rationale extends to failure-to-warn claims and reversed and remanded for the district court to determine whether removal was otherwise warranted on the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the government-contractor defense (Boyle) applies to failure-to-warn claims | Ripley: Boyle should not shield contractors from state-law failure-to-warn suits; E.D. Va. precedent rejects defense for warning claims | Foster Wheeler: Boyle’s three-part test and underlying rationales apply equally to failure-to-warn claims, so the defense is available | The defense is available in failure-to-warn cases; Boyle extends to such claims |
| Whether removal under 28 U.S.C. § 1442 was proper on the asserted government-contractor defense | Ripley: Because the defense is unavailable, removal cannot rest on a colorable federal defense | Foster Wheeler: The asserted government-contractor defense supplies a colorable federal defense justifying removal | Court reversed remand and remanded for the district court to decide if Appellants presented sufficient proof to justify § 1442 removal |
Key Cases Cited
- Boyle v. United Technologies Corp., 487 U.S. 500 (U.S. 1988) (announces government-contractor defense and three-part test for design-defect cases)
- Willingham v. Morgan, 395 U.S. 402 (U.S. 1969) (federal officer removal serves to provide a federal forum for federal defenses)
- Jefferson County v. Acker, 527 U.S. 423 (U.S. 1999) (requires causal nexus between charged conduct and asserted official authority for § 1442)
- In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626 (2d Cir. 1990) (applies government-contractor defense to failure-to-warn asbestos claims)
- Tate v. Boeing Helicopters, 140 F.3d 654 (6th Cir. 1998) (applies Boyle framework to warning claims)
- Snell v. Bell Helicopter Textron, Inc., 107 F.3d 744 (9th Cir. 1997) (applies government-contractor defense to failure-to-warn claims)
- Dorse v. Eagle-Picher Indus., Inc., 898 F.2d 1487 (11th Cir. 1990) (applies defense in failure-to-warn context)
- Emory v. McDonnell Douglas Corp., 148 F.3d 347 (4th Cir. 1998) (recognizes sister circuits’ reasoned application of Boyle to warning claims)
- Tozer v. LTV Corp., 792 F.2d 403 (4th Cir. 1986) (discusses separation-of-powers and policy rationales supporting contractor protections)