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Sawyer v. Foster Wheeler LLC
United States Court of Appeals, Fourth Circuit
June 22, 2017
JANYA SAWYER, Representative of the Estate of Joseph W. Morris; GARNETTE MORRIS, Individually and as Surviving Spouse of Joseph W. Morris; NANCY PIKE, Surviving Child of Joseph W. Morris; EDWARD MORRIS, Surviving Child of Joseph W. Morris; WAYNE MORRIS, Surviving Child of Joseph W. Morris; JOANNE TRAYNOR, Surviving Child of Joseph W. Morris, Plaintiffs - Appellees,
FOSTER WHEELER LLC, Defendant-Appellant, and UNION CARBIDE CORPORATION; JOHN CRANE-HOUDAILLE, INC., f/k/a Crane Packing Company; OWENS-ILLINOIS GLASS CO., f/k/a Owens-Illinois, Inc.; FOSTER WHEELER CORPORATION; HOPEMAN BROTHERS, INC.; UNIVERSAL REFRACTORIES COMPANY; SELBY, BATTERSBY & COMPANY; CBS CORPORATION, a Delaware Corporation, f/k/a Viacom, Inc., f/k/a CBS Corporation, a Pennsylvania Corp., f/k/a Westinghouse Electric Corp.; J.H. FRANCE REFRACTORIES CO.; THE GOODYEAR TIRE & RUBBER CO.; MCIC, INC., and its Remaining Director of Trustees, Robert I. McCormick, Elizabeth McCormick and Patricia Shunk; METROPOLITAN LIFE INSURANCE CO.; GENERAL ELECTRIC COMPANY; BAYER CROPSCIENCE, INC., Individually and as Successor in Interest to Benjamin Foster Co., Amchem Products, Inc., H.B. Fuller Co., Aventis CropScience USA, Inc., Rhone-Poulenc AG Company, Inc., Rhone-Poulenc, Inc., Rhodia Inc.; INTERNATIONAL PAPER COMPANY, Individually and as Successor in Interest to Champion International Corporation, U.S. Plywood Corp.; COOPER INDUSTRIES, INC., Individually and as Successors in Interest to Crouse-Hinds Co.; FERRO ENGINEERING, Division of On Marine Services Company; FOSECO, INC.; WAYNE MANUFACTURING CORPORATION; LOFTON CORPORATION, as Successor-in-Interest to Wayne Manufacturing Corporation, Hopeman Manufacturing Corporation; SCHNEIDER ELECTRIC USA, INC., f/k/a Square D Company; GREENE, TWEED & CO., Individually and as Successor in Interest to Palmetto, Inc.; WALLACE & GALE ASBESTOS SETTLEMENT TRUST, Successor to the Wallace & Gale Company; CROWN, CORK & SEAL CO., INC.; GEORGIA-PACIFIC, LLC, Ind/Successor to BestWall Gypsum Co.; KOPPERS COMPANY, INC.; PFIZER, INC.; PHELPS PACKING & RUBBER CO., Phelps Industrial; PARAMOUNT PACKING & RUBBER, INC.; LLOYD E. MITCHELL, INC.; PECORA CORPORATION, Individually and as Successor in Interest to Pecora, Inc., New Pecora Corp., Defendants,
GENERAL REFRACTORIES CO.; A.W. CHESTERTON COMPANY; MANVILLE TRUST PERSONAL INJURY SETTLEMENT TRUST; SB DECKING, INC., f/k/a Selby, Battersby & Co., Inc.; UNIROYAL, INC.,
Argued: May 10, 2017
from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, Chief District
David Nadolink, WHEELER TRIGG O'DONNELL, LLP, Denver,
Colorado, for Appellant.
Jeffrey John Utermohle, LAW OFFICES OF PETER G. ANGELOS,
P.C., Baltimore, Maryland, for Appellees.
Patrick C. Smith, John C. Ruff, DEHAY & ELLISTON, LLP,
Baltimore, Maryland, for Appellant.
William G. Minkin, Demetrios A. Karas, LAW OFFICES OF PETER
G. ANGELOS, P.C., Baltimore, Maryland, for Appellees.
NIEMEYER, KING, and DUNCAN, Circuit Judges.
NIEMEYER, Circuit Judge
appeal, we are presented with the single issue of whether a
government contractor was entitled to remove a state tort
action to federal court under 28 U.S.C. § 1442(a)(1)
based on the contractor's assertion that it had a
colorable federal defense of government-contractor immunity.
Morris worked as shipbuilder at the Bethlehem Steel Sparrows
Point Shipyard, beginning in 1948 and continuing into the
1970s. He died of mesothelioma in 2015. Morris' family
and the personal representative of his estate commenced this
action against Foster Wheeler LLC and other defendants in a
Maryland state court, alleging that Morris' death was
caused by exposure to asbestos while assembling boilers at
the Shipyard and that the defendants failed to warn him of
the dangers of asbestos, which was a component of the
Wheeler, a manufacturer of the boilers that Morris and other
Shipyard employees assembled for use aboard U.S. Navy
vessels, removed this action to federal court pursuant to 28
U.S.C. § 1442(a)(1), claiming that it manufactured the
boilers under a contract with the Navy and therefore
possessed a colorable federal defense of
government-contractor immunity. The district court, however,
granted the plaintiffs' motion to remand the case to
state court, concluding that Foster Wheeler did not make a
sufficient showing that it had a colorable federal defense
and that, in any event, the conduct for which it was sued was
not causally connected to official authority.
appeal, we conclude that the district court applied the wrong
standard for determining removability under §
1442(a)(1), and, because we conclude that Foster Wheeler met
the statute's requirements, we reverse. But because the
court left open the question of whether Foster Wheeler's
removal was timely noticed, we remand the case to the
district court to make that determination in the first
2015, Morris' surviving spouse, his children, and the
representative of his estate commenced this action against
Foster Wheeler and other defendants in the Circuit Court for
Baltimore City, Maryland, alleging - in claims for strict
liability, breach of warranty, and negligence, among others -
that the defendants had failed to warn Morris of the dangers
of asbestos. They asserted that Morris was exposed to
asbestos while working in the boiler shop at the Sparrows
Point Shipyard from 1948 through the 1970s and that his
exposure caused the mesothelioma that killed him in 2015. In
response to interrogatories, the plaintiffs explained in more
detail that Morris and other Shipyard employees assembled
boilers containing asbestos at the Shipyard that had been
manufactured offsite, including ones manufactured by Foster
Wheeler filed a notice of removal pursuant to 28 U.S.C.
§ 1446, claiming authority for removal under §
1442(a)(1), which provides for removal by federal officials
and their agents in specified circumstances. In its notice,
Foster Wheeler stated that, during the relevant time period,
it manufactured boilers for the U.S. Navy under the
Navy's strict specifications; that its boilers were sent
in pieces to the Sparrows Point Shipyard for assembly; that
Morris and his fellow employees assembled the boilers at the
Shipyard; and that the boilers contained asbestos. It
asserted, moreover, that "in the manufacture and sale of
boilers and auxiliary equipment for the Navy, including all
aspects of warnings associated with that equipment, [it] was
acting under an officer or agency of the United States"
and therefore had a colorable defense of
government-contractor immunity, entitling it to remove the
case to federal court to have that defense heard there.
support of its notice, Foster Wheeler submitted an affidavit
from J. Thomas Schroppe, a former Foster Wheeler employee
who, from 1962 to 1999, rose through the ranks of Foster
Wheeler as an engineer and eventually became president of its
subsidiary Boiler Corporation. Schroppe, who stated that he
was "personally involved" in the Navy's
procurement contracts for boilers "at all the various
stages of development, " described "the contract
process from the perspective of Foster Wheeler as the vendor,
as well as the levels of interaction between Foster Wheeler
and the Navy." He stated that Foster Wheeler designed
boilers to match highly detailed ship specifications and
military specifications provided by the Navy, and that
"deviations from these specs were not acceptable."
He also spoke to the "intense direction and
control" that the Navy exercised "over all written
documentation to be delivered with its naval boilers, "
The Navy required that every piece of equipment be supplied
with a defined number of copies of one or more technical
manuals. Navy personnel participated intimately in the
preparation of this kind of information and exercised
specific direction and control over its contents. These
manuals included safety information related to the ...