Feidt v. Owens Corning Fiberglas Corp., 97-5177

• Decision Date: 24 August 1998
• Docket Number: No. 97-5177,97-5177
• Citation: 153 F.3d 124
• Parties: Gerald E. FEIDT, Jr.; Arlene Feidt, his wife v. OWENS CORNING FIBERGLAS CORPORATION; Abex Corporation; Acands, Inc.; Alliedsignal, Inc.; Amchem Products, Inc.; Anchor Packing Company; A.P. Green Industries, Inc.; Armstrong World Industries, Inc.; Babcock & Wilcox Company; Combustion Engineering, Inc.; Flexitallic Gasket Company; Flintkote Company; Foster Wheeler Corporation; Gaf Corporation, in itself and successor to Ruberoid Corporation; Garlock, Inc.; General Electric Corporation; Ingersoll-Rand Company; Lear Siegler Diversified Holdings Corporation; Pittsburgh Corning Corporation, in itself and as successor to UNARCO; PPG Industries, Inc., as alter ego and/or successor to Pittsburgh Corning Corporation; Rapid American Corporation, in itself and as successor to Philip Carey Manufacturing Company; Turner & Newall, Ltd.; Uniroyal, Inc.; CBS Corporation; Westinghouse Electric Supply Corporation; Worthington Pump Corporation; John Corporations, (1-50) *CBS Corporation, Appellant *Pursuant to Rule 43(b), F.R.A.P.
• Court: U.S. Court of Appeals — Third Circuit

Page 124

153 F.3d 124

Gerald E. FEIDT, Jr.; Arlene Feidt, his wife v. OWENS CORNING FIBERGLAS CORPORATION; Abex Corporation Acands, Inc.; Alliedsignal, Inc.; Amchem Products, Inc. Anchor Packing Company; A.P. Green Industries, Inc. Armstrong World Industries, Inc.; Babcock & Wilcox Company Combustion Engineering, Inc.; Flexitallic Gasket Company; Flintkote Company; Foster Wheeler Corporation; Gaf Corporation, in itself and successor to Ruberoid Corporation; Garlock, Inc.; General Electric Corporation; Ingersoll-Rand Company; Lear Siegler Diversified Holdings Corporation; Pittsburgh Corning Corporation, in itself and as successor to UNARCO; PPG Industries, Inc., as alter ego and/or successor to Pittsburgh Corning Corporation; Rapid American Corporation, in itself and as successor to Philip Carey Manufacturing Company; Turner & Newall, Ltd.; Uniroyal, Inc.; CBS Corporation; Westinghouse Electric Supply Corporation; Worthington Pump Corporation; John Corporations, (1-50) *CBS Corporation, Appellant *Pursuant to Rule 43(b), F.R.A.P.

No. 97-5177.

United States Court of Appeals, Third Circuit.

Argued Aug. 3, 1998.

Decided Aug. 24, 1998.

Thomas F. Marshall, Law Office of Thomas F. Marshall, Mount Holly, NJ; David P. Callet (argued), Cindy M. Bryton, Akin, Gump, Strauss, Hauer & Feld, Washington, DC, for Appellant.

Joshua M. Spielberg (argued), Franklin P. Solomon, Tomar Simonoff Adourian O'Brien Kaplan Jacoby & Graziano, Cherry Hill, for Appellees, Gerald E. Feidt, Jr. and Arlene Feidt.

Bruce S. Haines, Hangley, Aronchick, Segal & Pudlin, Philadelphia, PA, for Appellee, Uniroyal, Inc.

David B. Siegel, Robert L. Willmore, Karen D. Burke, Crowell & Moring, Washington, DC, for amicus curiae E.I. duPont de Nemours and Company in support of appellant.

Before: GREENBERG, SCIRICA, and NYGAARD, Circuit Judges

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant CBS Corporation, which during the time relevant to this appeal was known as Westinghouse Electric Corporation ("Westinghouse"), appeals from the district court order entered January 10, 1997, remanding this matter to state court. ¹ According to Westinghouse, the district court erred in remanding the case because its petition properly invoked removal jurisdiction under 28 U.S.C. § 1442(a)(1). Inasmuch as 28 U.S.C. § 1447(d) bars our exercise of appellate jurisdiction over the remand order, we will dismiss this appeal.

The germane facts and procedural history are as follows. Gerald Feidt and his wife, Arlene Feidt, filed this products liability suit against various defendants including Westinghouse in the Superior Court of New Jersey Camden County, on July 9, 1996. Feidt alleged that, while working aboard the U.S.S. Enterprise at the Newport News Ship Building and Dry Dock Company, he was exposed to asbestos products including insulation on turbines manufactured by Westinghouse. The complaint asserted that Feidt's exposure to asbestos caused him to suffer from malignant mesothelioma, a fatal cancer of the lining of the lung. Feidt died from this condition during the pendency of this action.

On September 13, 1996, Westinghouse removed this action to the United States District Court for the District of New Jersey pursuant to section 1442(a)(1), which is commonly referred to as the federal officer removal statute. Subsequently, Feidt filed a motion to remand in the district court. The court granted the motion, filing a letter opinion and order (1) remanding the case to state court; and (2) certifying the issue for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). In its opinion, the district court construed the complaint against Westinghouse as being based solely on its failure to warn persons exposed to its product of the dangers of exposure to asbestos. The district court stayed the remand and all other proceedings until the first of the following events: all the parties failed to apply within ten days to this court to entertain the appeal; this court adjudicated or refused to entertain the appeal; or a party showed good cause for the vacation of the stay.

Westinghouse then filed a timely petition for permission to appeal the remand order which we granted on March 26, 1997. Westinghouse acknowledges that section 1447(d) bars this court from reviewing the district court's order to the extent it remands Feidt's claims against Westinghouse which allege a failure to warn. Br. at 7 n. 3. However, Westinghouse argues that Feidt asserted design defect, manufacturing defect, and breach of warranty claims, based not only on Westinghouse's failure to warn but also on other conduct. Westinghouse contends that Feidt's assertion of these non-failure to warn claims, which it argues that the district court ignored, made this case removable under section 1442(a)(1). It reasons that the district court, by ignoring these claims, failed to discharge its duty to consider all bases for the exercise of jurisdiction under section 1442(a)(1), thus rendering the jurisdictional bar in section 1447(d) inapplicable.

II. DISCUSSION

Except for civil rights cases removed pursuant to 28 U.S.C. § 1443, section 1447(d) provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Although this bar to the reviewability of remand orders appears broad and unyielding, the courts have carved various exceptions from it and therefore will review certain remand orders.

Most notably, 28 U.S.C. § 1447(c) limits the jurisdictional bar of section 1447(d) so that only those "remand orders issued under § 1447(c) and invoking the grounds specified therein ... are immune from review under § 1447(d)." Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346, 96 S.Ct. 584, 590, 46 L.Ed.2d 542 (1976), abrogated on other grounds, Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 715, 116 S.Ct. 1712, 1720, 135 L.Ed.2d 1 (1996); see also Gravitt v. Southwestern Bell Tel. Co., 430 U.S. 723, 97 S.Ct. 1439, 52 L.Ed.2d 1 (1977). Section 1447(c) provides for remand on the basis of either a procedural defect or lack of jurisdiction; thus, section 1447(d) prohibits review of remand orders based on the district court's finding of either of those conditions. Moreover, section 1447(d) prohibits review of remand orders "whether erroneous or not and whether review is sought by appeal or by extraordinary writ." Thermtron, 423 U.S. at 343, 96 S.Ct. at 589.

Accordingly, we repeatedly have held that section 1447(d) bars review of remand orders based upon the types of subject matter jurisdictional issues which district courts routinely make under section 1447(c). See Liberty Mut. Ins. Co. v. Ward Trucking Corp., 48 F.3d 742, 749 (3d Cir.1995); Carr v. American Red Cross, 17 F.3d 671, 682 (3d Cir.1994); Aliota v. Graham, 984 F.2d 1350, 1357 (3d Cir.1993); In re TMI Litig. Cases Cons.II, 940 F.2d 832, 844 (3d Cir.1991); see also Hudson United Bank v. Litenda Mortgage Corp., 142 F.3d 151, 155 (3d Cir.1998). Thus in In re TMI, we noted "that the subject matter jurisdictional inquiry contemplated by section 1447(c) is limited to the question of whether Congress intended that the types of actions at issue be subject to removal." In re TMI, 940 F.2d at 846.

We conclude that the district court made such a determination and therefore remanded the case because it found that a basic element of removal jurisdiction was lacking. Consequently, section 1447(d) precludes our review of the remand order.

As we have indicated, Westinghouse removed this case pursuant to section 1442(a)(1), the federal officer removal statute, which permits a federal officer, or person acting under such an officer, to remove to federal court any action brought against him in state court for conduct performed under federal direction. To establish removal jurisdiction under section 1442(a)(1), a defendant such as Westinghouse must establish that (1) it is a "person" within the meaning of the statute; (2) the plaintiff's claims are based upon the defendant's conduct "acting under" a federal office; (3) it raises a colorable federal defense; and (4) there is a causal nexus between the claims and the conduct performed under color of a federal office. See Mesa v. California, 489 U.S. 121, 129, 109 S.Ct. 959, 965, 103 L.Ed.2d 99 (1989); Willingham v. Morgan, 395 U.S. 402, 409, 89 S.Ct. 1813, 1817, 23 L.Ed.2d 396 (1969).

The district court held that

[a] fair reading of the Complaint and the activities of Westinghouse alleged on the record generated before this Court demonstrates that plaintiffs' claims against Westinghouse are predicated solely upon the defendant's failure to warn persons such as the plaintiff ... of the dangers of contact with asbestos-laden thermal insulation used with the turbines which Westinghouse manufactured. While different claims on different bases are asserted against other defendants, this is the sole potentially viable claim against Westinghouse.

Slip op. at 125 (emphasis added). Based upon this construction of the complaint and its understanding of the record, the district court analyzed the requirements of the federal officer removal statute with reference only to claims against Westinghouse based upon its alleged failure to warn.

The district court found that Westinghouse was acting under the direction, control and supervision of an officer of the United States and presented a colorable claim to the government contractor defense. However, the district court found that removal was inappropriate because Westinghouse failed to establish the necessary causal connection between the conduct upon which Feidt's claim of state law liability was based--the failure to warn--and the conduct Westinghouse allegedly performed under federal direction--its federal military contract obligations. In particular, the district court held that Westinghouse did not present evidence that the Navy prohibited it from issuing warnings with respect to the...