STEVEN PAPP, individually and as Executor and Executor as Prosequendum of the Estate of MARY SUE PAPP v. FORE-KAST SALES CO., INC.; HONEYWELL INTERNATIONAL, INC., f/k/a Allied Signal, Inc., as successor-in-interest to the Bendix Corporation; NEW BRUNSWICK PLATING CO., f/k/a New Brunswick Nickel and Chrome Plating; UNION CARBIDE CORPORATION; JOHN DOE CORPORATIONS 1-50; JOHN DOE CORPORATIONS 51-100; GOODRICH CORP., f/k/a B.F. Goodrich Co.; THE GOODYEAR TIRE & RUBBER CO.; THE BOEING COMPANY, individually and as successor by merger to the McDonnell Douglas Corporation
No. 15-2851
United States Court of Appeals for the Third Circuit
November 22, 2016
JORDAN, VANASKIE, and KRAUSE, Circuit Judges
PRECEDENTIAL
The Boeing Company, Appellant
Argued September 9, 2016
Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.
(Filed: November 22, 2016)
Amaryah K. Bocchino
Jason A. Cincilla
Bryan P. Smith
Manion Gaynor & Manning
1007 N. Orange Street
Tenth Floor
Wilmington, DE 19801
Martin F. Gaynor, III [ARGUED]
Nicholas D. Stellakis
Manion Gaynor & Manning
125 High Street
Boston, MA 02110
Brian D. Gross
Manion Gaynor & Manning
One Citizens Plaza
Suite 620
Providence, RI 02903
Hoagland Longo Moran Dunst & Doukas
40 Paterson Street
P.O. Box 480, Room 301
New Brunswick, NJ 08903
Counsel for Appellant, Boeing Co.
Jeffrey P. Blumstein [ARGUED]
Robert E. Lytle
Robert G. Stevens, Jr.
Szaferman Lakind Blumstein & Blader
101 Grovers Mill Road, Suite 200
Lawrenceville, NJ 08649
Joseph J. Mandia
Levy Konigsberg
800 Third Avenue
13th Floor
New York, NY 10022
Counsel for Appellee
OPINION OF THE COURT
JORDAN, Circuit Judge.
Steven Papp filed this failure-to-warn product liability suit against The Boeing Company in the Superior Court of New Jersey, alleging that his late wife, Mary,1 was made ill by exposure to asbestos from a Boeing aircraft. Boeing removed Papp‘s failure-to-warn suit to the United States District Court for the District of New Jersey on the basis of the federal officer removal statute,
I. BACKGROUND
Papp, individually and on behalf of Mary‘s estate, alleges that Mary suffered secondary “take home” asbestos exposure while washing the work clothes of her first husband, Robert Keck. Keck had several jobs that exposed him to asbestos, including one for the New Brunswick Plating Co. (“New Brunswick“) in the late 1970s. While working for New Brunswick, Keck sandblasted the landing gear of World War II military cargo planes to prepare the gear for repairs. Papp contends that that process resulted in Keck having airborne asbestos fibers adhere to his clothing so that Mary, who handled the clothes, inhaled the asbestos.
On August 12, 2013, Papp sued a host of companies in New Jersey, alleging injuries to Mary from exposure to asbestos. He filed his First Amended Complaint (the “Complaint“) on August 16, 2013, adding Boeing as a defendant, both individually and as successor-by-merger to the McDonnell Douglas Corporation. The Complaint did not indicate which Boeing or Douglas aircraft was claimed to have been the source of Mary‘s asbestos exposure. At her deposition taken on September 5, 2013, however, Mary specified that the landing gear Keck sandblasted was for a military cargo plane called the C-47. The C-47 was built by the Douglas Aircraft Company, a predecessor company to Boeing,2 for the United States Navy and Air Force during
The federal officer removal statute requires that the defendant possess a colorable federal defense. In re Commonwealth‘s Motion to Appoint Counsel Against or Directed to Def. Ass‘n of Phila., 790 F.3d 457, 466 (3d Cir. 2015) (“Defender Ass‘n“), cert. denied 136 S. Ct. 980 & 994 (2016). Boeing asserted that it was entitled to the federal defense of government contractor immunity because the C-47 was produced for, and under the specific supervision of, the United States military. More specifically, Boeing argued that the government‘s oversight extended to labels and warnings for all parts of the aircraft, including those parts laden with the asbestos to which Keck, and in turn Mary, would later be exposed. Boeing also states that, to the extent that the dangers of asbestos were known at the time, the government‘s knowledge of those dangers was superior to that of Boeing. As part of its notice of removal, Boeing included the declaration of Larry Fogg (the “Fogg Declaration“). Fogg was a longtime employee of Douglas, who attested, based on his experience and review of the company‘s contracts and records, to the factual underpinnings of Boeing‘s legal position.
Papp moved to remand the case back to state court, and, of course, Boeing opposed remand. The District Court granted the motion. It held that, because Boeing was a contractor and not a federal officer, it had a “special burden” to demonstrate that it was acting under the control of the federal government. (App. at 6.) The Court said that, to prove removal jurisdiction, Boeing was required to show that it performed “the complained-of activity at the direction of official federal authority.” (App. at 8 (quotation marks and citation omitted)). Because the allegedly wrongful behavior was the failure to warn third parties of asbestos, the Court concluded that Boeing must show “that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties ... worked or otherwise provided services.” (App. at 11.) Using that standard, the Court decided that Boeing did not meet its special burden and that remand to state court was proper. Boeing timely appealed.
II. DISCUSSION3
A. THE FEDERAL OFFICER REMOVAL STATUTE
“We review de novo whether the District Court had subject matter jurisdiction[,]” including a court‘s decision to remand for a lack of jurisdiction. Defender Ass‘n, 790 F.3d at 465. At the heart of the present jurisdictional dispute is the federal officer removal statute,
“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack “challenges subject matter jurisdiction without disputing the facts alleged in the [notice of removal], and it requires the court to consider the allegations ... as true.” Id. (internal quotation marks and citation omitted). A factual attack, in contrast, disputes “the factual allegations underlying the [] assertion of jurisdiction,” and involves the presentation of competing facts.4 Id. Because Papp challenges jurisdiction facially, “we construe the facts in the removal notice in the light most favorable to [Boeing].” Defender Ass‘n, 790 F.3d at 466.
The federal officer removal statute has existed in varying forms for some two-hundred years. Its central aim is protecting officers of the federal government from interference by litigation in state court while those officers are trying to carry out their duties. Willingham v. Morgan, 395 U.S. 402, 405-06 (1969). The statute has been amended over the years to permit removal in a broader set of circumstances. As currently framed and codified at
A civil action ... commenced in a State court and that is against ... any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending: (1) 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, in an official or individual capacity, for or relating to any act under color of such office ...
The “or any person acting under that officer” language effects an expansion of coverage that is relevant here. But the statute itself constitutes a break with tradition. “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) (internal quotation marks and citation omitted). “Unlike the general removal statute, the federal officer removal statute is to be ‘broadly construed’ in favor of a federal forum.” Defender Ass‘n, 790 F.3d at 466-67 (quoting Sun Buick, Inc. v. Saab Cars USA, Inc., 26 F.3d 1259, 1262 (3d Cir. 1994)); see also Willingham, 395 U.S. at 406 (noting that the scope of the federal officer removal statute “is not narrow or limited“).
We have held that, in order to properly remove a case under
1. Boeing is a “person” within the meaning of the statute
Boeing‘s status as a “person” within the meaning of the statute is undisputed. Because
2. Boeing was “acting under” a federal officer or agency
The District Court‘s decision to remand this case was based on its conclusion that Boeing had failed to demonstrate that it was “acting under” a federal officer or agency when it did not warn of the dangers associated with asbestos. That conclusion was predicated on two errors. First, the Court wrongly believed that, because Boeing was a federal contractor and not a federal officer, it faced a “special burden” to demonstrate that it was acting under the control of the federal government. (App. at 6.) Second, the Court mistakenly posited that the only way Boeing could show it acted under a federal officer was to show “that a federal officer or agency directly prohibited Boeing” from warning third-parties of asbestos risks. (App. at 11.)
The “acting under” requirement, like the federal removal statute overall, is to be “liberally construe[d]” to cover actions that involve “an effort to assist, or to help carry out, the federal supervisor‘s duties or tasks.” Ruppel v. CBS Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) (quoting Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 152 (2007)); see also Defender Ass‘n, 790 F.3d at 468 (construing “acting under” liberally). The classic case of such assistance as it relates to government contractors is when “the private contractor acted under a federal officer or agency because the contractors ‘help[ed] the Government to produce an item that it need[ed].‘” Defender Ass‘n, 790 F.3d at 468 (quoting Watson, 551 U.S. at 153). When, as occurred in this instance, “the federal government uses a private corporation to achieve an end it would have otherwise used its own agents to complete,” that contractor is “acting under” the authority of a federal officer. Ruppel, 701 F.3d at 1181; see also Defender Ass‘n, 790 F.3d at 468-70 (discussing different ways in which an entity might “act under” a federal officer). Thus, the
Further, we have explicitly rejected the notion that a defendant could only be “acting under” a federal officer if the complained-of conduct was done at the specific behest of the federal officer or agency. See Defender Ass‘n, 790 F.3d at 470 (“[W]e disagree that the [defendant] is required to allege that the complained-of conduct itself was at the behest of a federal agency.“). Instead, we have held that “[i]t is sufficient for the ‘acting under’ inquiry that the allegations are directed at the relationship between the [defendant] and the [federal officer or agency].” Id.
Considered under the proper standard, it is plain that the allegations against Boeing all involve conduct that occurred when it was “acting under” the direction of a federal officer or agency. In fact, we are presented here with an archetypal case. Papp‘s allegations are directed at actions Boeing took while working under a federal contract to produce an item the government needed, to wit, a military aircraft, and that the government otherwise would have been forced to produce on its own. That being so, Boeing easily satisfies the “acting under” requirement of the
3. The Complaint rests on acts done “for or relating to” a federal officer or agency
The next requirement, often referred to as the “nexus” or “causation” requirement, demands that the alleged conduct have been undertaken “for or relating to” a federal office. Under the prior version of the statute, which required a showing that a defendant had been sued “for any act under color of [federal] office,”
Here, there is indeed a connection or association between the acts complained of by Papp and the federal government. At the heart of Papp‘s claim against Boeing is the failure to provide sufficient warning about the dangers of asbestos in the landing gear of the C-47 aircraft. In its notice of removal, Boeing asserts that the C-47 was manufactured “for the United States Armed Forces under the direct supervision, control, order, and directive of federal government officers acting under the color of federal office,” (App. at 39), and that that control extended to “the content of written materials and warnings associated with such aircraft,” (id. at 41). Those alleged facts alone satisfy the “for or relating to” requirement, as they demonstrate a direct connection or association between the federal government and the failure to warn described by Papp. As a result, Boeing has satisfied the third requirement of
4. Boeing raises a colorable federal defense
The fourth and final requirement to demonstrate removal jurisdiction
Taking the undisputed facts from the notice of removal, including the Fogg Declaration, as true, Boeing has stated sufficient facts to make out a colorable defense. As to the first element of the Boyle test, Boeing asserted that the government exercised complete control over “any markings or labels on [Boeing] aircraft or aircraft components,” that in-person meetings occurred between Boeing and government personnel where warnings were discussed, and that “[t]he contents, including any warnings, of any technical manuals... were directed, reviewed, and approved by” the government. (Opening Br. at 19-20.)
As to the second element, Boeing‘s notice of removal and the attached Fogg Declaration are explicit that Boeing followed every specification set forth by the government when building the C-47 aircraft.
Finally, as to the third element, the Fogg Declaration states that, at the time the C-47 aircraft was being built, Boeing was not aware of the health hazards of asbestos. Furthermore, some of the documents produced by Boeing suggest that the government had a superior understanding of the risks of asbestos.7 Because we are bound to accept Boeing‘s assertion that the risks were not known to it, Boeing
The District Court took issue with several points in the Fogg Declaration, in particular Fogg‘s assertion that the government had oversight of the warnings related to the aircraft. The Court seemed especially troubled that Fogg did not provide thorough citations to the documents delivered with his declaration. Given the posture of the case though, that objection is misplaced. A defendant “need not win his case before he can have it removed.” Willingham, 395 U.S. at 407. At the removal stage, Boeing needed only show that its
asserted Boyle defense was “colorable,” which is to say that the defense was “legitimate and [could] reasonably be asserted, given the facts presented and the current law.” Colorable Claim, BLACK‘S LAW DICTIONARY (10th ed. 2014); see also Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 782-83 (E.D. Pa. 2010) (“[A] defense is colorable for purposes of determining jurisdiction under Section 1442(a)(1) if the defendant asserting it identifies facts which, viewed in the light most favorable to the defendant, would establish a complete defense at trial.“). It has done so and, not insignificantly, the facts presented were not contested in the District Court. If Boeing is able to prove at trial by a preponderance of the evidence the facts alleged in its notice of removal, including the facts asserted in the Fogg Declaration, it will have established a prima facie defense under Boyle and may prevail on the merits. That is sufficient to constitute a “colorable” federal defense. Boeing‘s notice of removal thus met the fourth and final requirement of
Having satisfied all of
B. TIMELINESS
In addition to challenging the merits of Boeing‘s removal argument, Papp asserts, in the alternative, that Boeing did not timely seek removal. That assertion, made in a footnote, reads as follows:
Because the Court below determined that remand was jurisdictionally required under the second grounds, it did not deem it necessary to address the timeliness issue. However, since the issue of jurisdiction8 is de novo before this Court, should [the District Court‘s] stated rationale for remand not be accepted, it is respectfully submitted that the issue of timeliness, which was fully briefed by both parties below, would be an appropriate subject for consideration.
(Ans. Br. at 5 n.4 (internal citations to the record omitted).) It is well established that “[f]ederal courts of appeals refuse to take cognizance of arguments that are made in passing without proper development.” Johnson v. Williams, 133 S. Ct. 1088, 1095 (2013); see also Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997) (“[A]n argument consisting of no more than a conclusory assertion ... will be deemed waived.“). The footnote, standing alone, does not sufficiently present Papp‘s argument on the issue of timeliness. Indeed, it is not even phrased as an argument, but rather simply states that the issue would be “appropriate for consideration.” (Ans. Br. at 5 n.4.) The
or word limits imposed by the appellate and local rules. See Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998) (“Allowing litigants to adopt district court filings would provide an effective means of circumventing the page limitations on briefs set forth in the appellate rules ....“). That cannot be permitted, and we join our fellow Circuits in declining to do so. See id. (collecting cases).9 Papp has therefore forfeited any argument as to timeliness.10
Boeing‘s role as a federal contractor until the deposition of Mary Papp, during which Boeing learned for the first time that the allegations against it related to its production of the C-47 aircraft.
Papp concedes that answers to deposition questions “can constitute ‘other paper’ for purposes of triggering the time for removal under
III. CONCLUSION
For the foregoing reasons, we will reverse.