Henry Ruppel v. CBS Corporation
2012 U.S. App. LEXIS 24625
| 7th Cir. | 2012Background
- Ruppel sued CBS and other defendants in Illinois, alleging mesothelioma from asbestos exposure.
- CBS’s predecessor Westinghouse allegedly included asbestos in Navy turbines encountered by Ruppel during Naval service and civilian work on ships.
- CBS removed the case to federal court under 28 U.S.C. § 1442(a)(1), asserting a colorable government contractor defense.
- The district court remanded, finding CBS had no colorable federal defense and that Navy involvement did not establish a nexus to the claims.
- CBS appealed, contending the Navy controlled design/warnings and that the government contractor defense applies to both use-of-asbestos and failure-to-warn claims; the Seventh Circuit reverses and remands for further proceedings.
- The court holds CBS has a colorable defense under the government contractor doctrine and that the removal was proper under § 1442(a)(1).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CBS qualifies as a 'person' under § 1442(a)(1). | Ruppel argues CBS’s removal lacks statutory basis. | CBS contends it is a 'person' under the statute. | CBS is a 'person' under § 1442(a)(1). |
| Whether CBS was 'acting under a federal officer' for removal purposes. | Ruppel asserts CBS’s Navy involvement does not show acting under a federal officer. | CBS maintains it acted under the Navy in building warships. | CBS acted under a federal officer; removal proper. |
| Whether CBS was 'acting under color of federal authority' to support removal. | Ruppel contends no causal connection to federal authority. | CBS’s duties to the Navy created the requisite color of authority. | Yes; the gravamen arose from CBS’s Navy duties. |
| Whether CBS has a colorable federal defense, enabling removal of the entire action. | Ruppel argues no substantial federal defense; state-law claims predominate. | The government contractor defense provides a colorable federal defense to both use-of-asbestos and failure-to-warn claims. | CBS has a colorable defense; removal is proper; case remanded for further proceedings. |
Key Cases Cited
- Willingham v. Morgan, 395 U.S. 402 (U.S. 1969) (establishes federal officer removal purposes and scope)
- Tennessee v. Davis, 100 U.S. 257 (U.S. 1879) (discusses removal in context of federal officers)
- Mesa v. California, 489 U.S. 131 (U.S. 1989) (requires colorable federal defense for § 1442(a) removal)
- Osborn v. Bank of the U.S., 9 Wheat. 738 (U.S. 1824) (Article III jurisdiction and removal concepts)
- Soper (No. 1), Maryland v. Soper (No. 1), 270 U.S. 9 (U.S. 1926) (early treatment of government-instrumental aides to federal officers)
- Davis v. South Carolina, 107 U.S. 597 (U.S. 1883) (support for removal through assistance to federal officers)
- Boyle v. United Technologies Corp., 487 U.S. 500 (U.S. 1988) (government contractor defense governs when government approves specifications and warnings)
- Oliver v. Oshkosh Truck Corp., 96 F.3d 992 (7th Cir. 1996) (applies Boyle to failures-to-warn claims)
- Tate v. Boeing Helicopters, 55 F.3d 1150 (6th Cir. 1995) (government contractor defense recognizes warnings approved by government)
- Getz v. Boeing Co., 654 F.3d 852 (9th Cir. 2011) (rejection of requiring explicit prohibition of warnings for Boyle defense)