Christopher Graves; Jeff Hall, et al. v. 3M Company; Aearo Technologies LLC; Casey Copeland, et al. v. 3M Company; Aearo Technologies LLC
Nos. 20-1635; 20-2545-48; 20-2550; 20-2556; 20-3108; 20-3607; 20-3613-14; 20-3616-17; 20-3620; 20-3627; 20-3634; 20-3636; 20-3642-45; 20-3647-49
United States Court of Appeals For the Eighth Circuit
October 20, 2021
Submitted: June 15, 2021; Appeals from United States District Court for the District of Minnesota
Submitted: June 15, 2021
Filed: October 20, 2021
Before LOKEN, KELLY, and ERICKSON, Circuit Judges.
Plaintiffs are employees of civilian and military contractors who used Combat Arms Version 2 (“CAEv2“) earplugs manufactured by Aearo Technologies and sold by 3M Company, which acquired Aearo Technologies in 2008 (collectively, “3M“). After suffering hearing damage or tinnitus, plaintiffs brought separate suits against 3M in Minnesota state court, asserting failure-to-warn claims under state law. 3M removed the actions to federal court, asserting federal officer defenses under
I. Background
In 1999, Dr. Doug Ohlin, Program Manager of
The military required Aearo to package CAEv2 earplugs purchased by the military in bulk, without instructions, because the military intended to train service members on their use. In 2004, the military issued wallet cards to accompany CAEv2 earplugs that provided warnings and instructions, including the “fold back” guidance for proper fitting.
Aearo developed a version of the CAEv2 earplugs for commercial sale, using the same design as the military version in all material respects. Aearo drafted instructions
Each plaintiff in these cases alleges that he or she was exposed to loud, damaging sounds in the workplace and used either military or commercial CAEv2 earplugs for protection. Plaintiffs allege they suffered a range of injuries, including hearing loss and tinnitus, caused by 3M‘s failure to warn of the known risk of injury posed by using CAEv2 earplugs without following specific fitting instructions.
In its petition for removal under
II. Discussion
The single issue on appeal is whether the court erred in determining it lacked jurisdiction under
“The federal officer removal statute permits a defendant to remove to federal court a state-court action brought against the
‘United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office . . . .’
28 U.S.C. § 1442(a)(1) (emphasis added).”
Watson v. Philip Morris Cos., 551 U.S. 142, 145 (2007). “Section 1442(a) is an exception to the well-pleaded complaint rule, under which (absent diversity) a defendant may not remove a case to federal court unless the plaintiff‘s complaint establishes that the case arises under federal law.” Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n.12 (2006) (quotation marks omitted).
When the removing party is not itself a federal officer or agency, as in this case,
A. The “Acting Under” and Causal Connection Elements. In the district court, Graves argued 3M did not satisfy the causation element because there was no evidence “any official government authority caused 3M to fail to warn Mr. Graves.” The district court rejected that contention, relying on cases from other circuits, because 3M provided evidence “that the warnings and instructions for its earplugs plausibly have some connection to, or association with, governmental actions.” Graves, 447 F. Supp. 3d at 913.
The “causal connection” element stems from the requirement in
“To satisfy the ‘acted under’ requirement of
or agency -- describes a relationship that “typically involves ‘subjection, guidance, or control.‘” Id. at 151, quoting Webster‘s New International Dictionary 2765 (2d ed. 1953).
We must apply the Court‘s guidance in Watson to 3M‘s relationship with the military regarding its sale of commercial earplugs to private parties such as Graves. In discussing the federal contractor defense element, the district court found:
In developing the instructions for the commercially available earplugs, 3M sought input from the US army audiologist who had been working on the military product. The audiologist agreed that the instructions “looked good,” and asked whether 3M intended to abandon differential sizing. 3M, realizing it had forgotten something useful, incorporated the feedback into the instructions in the final product. However, 3M has not demonstrated that the government had any control over the instructions or warnings. 3M has not shown that they were obligated to seek government review, or that governmental approval of the commercial product‘s warning was necessary or required. Instead, in the Court‘s view, it appears that 3M voluntarily approached Ohlin for his advice, and that he gave advice 3M found useful. . . . [T]he Court would be hard-pressed to find that 3M could reasonably say ‘the government made me do it’ as to the instructions on the commercially available earplugs. Graves, 447 F. Supp. 3d at 914-15.
We agree with this analysis and therefore conclude that 3M failed to establish it was “acting under” an officer or agency of the United States in developing and disseminating warnings and instructions for its commercial CAEv2 earplugs. The voluntary request for military review and input regarding proposed commercial instructions does not demonstrate that 3M was carrying out or assisting in the government‘s duties. Government advice and assistance, like the regulatory rules and requirements at issue in Watson, do not establish the “acting under” relationship that
state court the claims of plaintiffs who acquired CAEv2 earplugs in the commercial marketplace, which we understand includes Graves, all the Hall plaintiffs, and some of the Copeland plaintiffs. For these plaintiffs, we do not affirm the district court‘s resolution of the federal contractor defense issue. 3M may of course assert that defense to the merits of plaintiffs’ claims in state court.
An uncertain number of the plaintiffs in the Copeland cases worked for defense contractors and received CAEv2 earplugs from the military. 3M presented undisputed evidence that the military required its purchases of CAEv2 earplugs to be sent without instructions/warnings, and that the military developed its own instructions issued on wallet cards to service members. This is sufficient evidence to satisfy the “acting under” and “causal connection” elements of removal under
B. The Colorable Federal Defense Element. Congress enacted the original federal officer removal statute following the War of 1812 and a series of similar statutes thereafter until revising the statute in the 1948 codification. See Watson, 551 U.S. at 147-49. In sustaining these statutes over the years, the Supreme Court “ha[s] not departed from the requirement that federal officer removal must be predicated on the allegation of a colorable federal defense.” Mesa v. California, 489 U.S. 121, 129 (1989). The Court explained that this requirement has important constitutional roots:
Section 1442(a), in our view, is a pure jurisdictional statute, seeking to do nothing more than grant district court jurisdiction over cases in which a federal officer is a defendant. Section 1442(a), therefore, cannot independently support Art. III ‘arising under’ jurisdiction.
Rather, it is the raising of a federal question in the officer‘s removal petition that constitutes the federal law under which the action against the federal officer arises for Art. III purposes. Id. at 136.
“For a defense to be considered colorable, it need only be plausible;
One of the primary purposes of the removal statute -- as its history clearly demonstrates -- was to have such defenses litigated in the federal courts. The position of the court below would have the anomalous result of allowing removal only when the officers had a clearly sustainable defense. . . . In fact, one of the most important reasons for removal is to have the validity of the defense . . . tried in a federal court. The officer need not win his case before he can have it removed.
Willingham, 395 U.S. at 407. This principle applies equally when a private party seeks federal officer removal based on a government contractor defense under federal common law. See Bennett v. MIS Corp., 607 F.3d 1076, 1088-91 (6th Cir. 2010).
In its petition for federal officer removal and in opposing plaintiffs’ motions to remand, 3M argued it has four colorable federal defenses against one or more of the Copeland military contractor plaintiffs -- the “government contractor defense” applied in Boyle; the “combatant activities” defense; and the arguments that some claims implicate federal enclave or federal admiralty jurisdiction. We determine that 3M has raised a colorable government contractor defense to the claims of plaintiffs who purchased CAEv2 earplugs through the military. As that determination establishes federal question jurisdiction over these cases, we need not consider whether the other asserted defenses are “colorable” at this stage of the proceedings. 3M may of course litigate the merits of these assertions as the cases proceed in federal court.
In Boyle, a diversity case, the Supreme Court addressed the question “when a contractor providing military equipment to the Federal Government can be held liable
under state tort law for injury caused by a design defect.” Id. at 502. Plaintiffs sued the manufacturer of a military helicopter for defective design because the helicopter‘s escape hatch opened outward, rather than inward, causing the pilot to drown when water pressure kept his submerged hatch from opening. Id. at 503. The Court concluded that
Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (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. The first two of these conditions assure that the suit is within the area where the policy of the “discretionary function” would be frustrated -- i.e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might
disrupt the contract but withholding it would produce no liability.
Id. at 512. Although Boyle was a design-defect case, our sister circuits have applied it to failure-to-warn claims, such as those asserted by the Copeland plaintiffs in these cases. In doing so, they have applied the Boyle elements, slightly modified to reflect the failure-to-warn context, requiring the defendant asserting the federal contractor defense to show (1) the federal government, exercising its discretion, approved specifications for the product in question, including certain warnings; (2) the contractor provided the approved warnings required by the government; and (3) the contractor warned the government about any hazards known to it but not to the government. See Papp, 842 F.3d at 814; Leite v. Crane Co., 749 F.3d 1117, 1123 (9th Cir.), cert. denied, 574 U.S. 934 (2014); Oliver v. Oshkosh Truck Corp., 96 F.3d 992, 1003-04 (7th Cir. 1996), cert. denied, 520 U.S. 1116 (1997); Tate v. Boeing Helicopters, 55 F.3d 1150, 1157 (6th Cir. 1995). Like the district court, we conclude
this is a “logical expansion” of Boyle and therefore “the federal contractor defense applies to failure-to-warn claims.” Graves, 447 F. Supp. 3d at 914 n.3.
We reject 3M‘s contention that it presented a colorable government contractor defense in these failure-to-warn cases with evidence showing the government was involved in and controlled the design of the CAEv2 earplugs. “Simply because the government exercises discretion in approving a design does not mean that the government considered the appropriate warnings, if any, that should accompany the product.” Tate, 55 F.3d at 1156. To remove a failure-to-warn claim under
We nonetheless conclude that 3M made the requisite showing of a colorable federal contractor defense in the military contractor cases. 3M provided evidence that: the government required 3M to package CAEv2 earplugs provided to the military in bulk, without instructions; 3M complied; 3M warned the government that folding back the flanges of the outward end of the earplugs would ensure a proper fit; and the military developed and produced its own instructions that it provided military users on a wallet card. “[W]here the government goes beyond approval and actually determines for itself the warnings to be provided,” the contractor has established the government control and exercise of discretion the government contractor defense is intended to protect. Tate, 55 F.3d at 1157.
Applying Boyle, the district court nonetheless ruled that 3M had not shown a colorable federal contractor defense. In Boyle, the Supreme Court explained:
That the procurement of equipment by the United States is an area of uniquely federal interest does not, however, end the inquiry. That merely establishes a necessary, not a sufficient, condition for the displacement of state law. Displacement will occur only where, as we have variously
described, a “significant conflict” exists between an identifiable “federal policy or interest and the [operation] of state law,” or the application of state law would “frustrate specific objectives” of federal legislation.
Id. at 507 (footnote and citations omitted). Based on this principle, plaintiffs argued, and the district court agreed, “that 3M has failed to show . . . a conflict with state law and has thus
This reasoning fails to recognize the important difference between federal question jurisdiction and the preemption of state law. In Boyle, there was federal diversity jurisdiction. The Court did not need to consider, and did not address, when a colorable federal contractor defense is the basis for federal question jurisdiction. Rather, it decided the merits of whether the contractor defense in that case preempted state law. Thus, requiring a private contractor seeking federal officer removal to show a “colorable” claim of state law preemption violates the fundamental principle that “[t]he officer need not win his case before he can have it removed.” Willingham, 395 U.S. at 407. When the removed cases are litigated on the merits in federal court, it may be that 3M will fail to prove its federal contractor defense, or there may be no conflict requiring preemption under Boyle because state law would recognize the defense in these circumstances. On the other hand, if federal law provides 3M a contractor defense that state tort law would reject, then the federal court will need to apply the preemption principles discussed in Boyle to determine whether the federal contractor defense (or any other defense asserted by 3M) defeats plaintiffs’ claims. When federal duties and state tort law “give contrary messages as to the nature and content of required product warnings, they cause the sort of conflict Boyle found so detrimental to the federal interest in regulating the liabilities of military contractors.” In re Joint E. & S. Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629 (2d. Cir. 1990).
For these reasons, we conclude that 3M has a colorable federal contractor defense for claims made by Copeland plaintiffs who acquired CAEv2 earplugs through the military, and has satisfied the other elements required for
III. Conclusion
We affirm the district court‘s orders remanding to state court the failure-to-warn claims of plaintiffs who acquired commercial CAEv2 earplugs. We reverse the remand orders for plaintiffs who acquired CAEv2 earplugs through the military and remand for further proceedings not inconsistent with this opinion.