701 F.3d 1176 (7th Cir. 2012), 12-2236, Ruppel v. CBS Corp.

Docket Nº:12-2236.
Citation:701 F.3d 1176
Opinion Judge:FLAUM, Circuit Judge.
Party Name:Henry RUPPEL, Plaintiff-Appellee, v. CBS CORPORATION, Defendant-Appellant.
Attorney:Steven Mitchell Aroesty (argued), Attorney, Napoli Bern Ripka Shkolnik LLP, Edwardsville, IL, for Plaintiff-Appellee. Daniel G. Donahue, Attorney, Foley & Mansfield, St. Louis, MO, Shay Dvoretzky (argued), Attorney, Jones Day, Washington, DC, Robert Sanderson, Attorney, Foley & Mansfield, St. Lou...
Judge Panel:Before FLAUM and SYKES, Circuit Judges, and RANDA, District Judge. [*]
Case Date:November 30, 2012
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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701 F.3d 1176 (7th Cir. 2012)

Henry RUPPEL, Plaintiff-Appellee,


CBS CORPORATION, Defendant-Appellant.

No. 12-2236.

United States Court of Appeals, Seventh Circuit.

November 30, 2012

Argued Oct. 23, 2012.

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[Copyrighted Material Omitted]

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Steven Mitchell Aroesty (argued), Attorney, Napoli Bern Ripka Shkolnik LLP, Edwardsville, IL, for Plaintiff-Appellee.

Daniel G. Donahue, Attorney, Foley & Mansfield, St. Louis, MO, Shay Dvoretzky (argued), Attorney, Jones Day, Washington, DC, Robert Sanderson, Attorney, Foley & Mansfield, St. Louis, MO, for Defendant-Appellant.

Robin S. Conrad, Attorney, National Chamber Litigation, Washington, DC, Michael T. Williams, Attorney, Wheeler Trigg O'Donnell LLP, Denver, CO, for Amicus Curiae.

Before FLAUM and SYKES, Circuit Judges, and RANDA, District Judge. [*]

FLAUM, Circuit Judge.

Henry Ruppel filed suit against CBS in Illinois alleging CBS's predecessor-in-interest, Westinghouse Corporation, caused the mesothelioma from which he currently suffers. Westinghouse had included asbestos in the turbines it supplied to the United States Navy, and Ruppel was allegedly exposed to it during his Naval service and later when he worked on an aircraft carrier as a civilian. CBS removed Ruppel's suit to the Southern District of Illinois under the federal officer removal statute, which permits removal of certain suits where a defendant that acted under a federal officer has a colorable federal defense. 28 U.S.C. § 1442(a)(1). Ruppel moved to remand and, without giving CBS a chance to respond, the district court granted the motion. The district court concluded Ruppel only sued CBS for failing to warn about the dangers of asbestos for which there is no federal defense. CBS appeals the district court's order, and we reverse. CBS's relationship with Ruppel arises solely out of CBS's duties to the Navy. It also has a colorable argument for the government contractor defense, which immunizes government contractors when they supply products with specifications approved by the government.

I. Background

In early 2012, Ruppel sued CBS and forty other defendants in Illinois. Ruppel

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alleged that he developed mesothelioma due to his exposure to asbestos products manufactured, sold, distributed, or installed by defendants. CBS had included asbestos in turbines it supplied to the Navy, which Ruppel encountered during his service on the U.S.S. Fall River between 1946 and 1954 and when he oversaw the construction of the U.S.S. Enterprise, as a civilian, from 1957 to 1971.

CBS removed the proceeding to federal court under the federal officer removal statute. 28 U.S.C. § 1442(a)(1). This statute allows defendants to remove suits for certain actions that they took while acting under federal officers. Among the requirements for removal is a colorable federal defense, and CBS asserted it was entitled to government contractor immunity. Its notice of removal alleged it supplied asbestos under the Navy's direction and in accordance with detailed Navy specifications, the Navy closely controlled the process, and the Navy was aware of asbestos's health hazards. Although CBS only submitted a short, plain statement of the grounds for removal, see 28 U.S.C. § 1446(a), it offered to respond more fully to a motion to remand, which Ruppel filed shortly thereafter. Ruppel implied his complaint asserted only failure-to-warn claims against CBS and argued that, because the military did not " preclude" adequate warnings, the government contractor defense was inapplicable. The local rule provided CBS thirty days to respond to Ruppel's motion, S.D. Ill. R. 7.1(c)(1), but the district court remanded the case after only nine days and before CBS responded. The district court largely adopted Ruppel's arguments. It held that CBS's relationship with the Navy lacked a " causal nexus" to Ruppel's claims because the Navy did not prevent CBS from providing adequate warnings.

On the day after the district court's order, CBS filed an " emergency motion for a vacatur or stay pending remand order," arguing the court should have provided CBS the opportunity to respond to Ruppel's motion. CBS also asked the district court to refrain from sending a certified copy of its remand order because the copy would permit the state court proceedings to resume. The next day, however, the district court made a docket entry noting it sent the certified copy to the state court. Later, it denied CBS's motion, noting 28 U.S.C. § 1447(d) stripped it of jurisdiction to reconsider the remand order. The district court did not address the exception in that subsection for cases, like this one, removed under section 1442.

CBS next filed a motion to alter or amend the judgment under Rule 59(e), raising most of the arguments it now raises on appeal and supporting its factual assertions with affidavits and exhibits. Namely, this material supported CBS's assertions that the Navy required CBS to use asbestos, the Navy controlled the content of any warnings, and the Navy knew of asbestos's health risks. The district court never responded to this motion. The state court proceedings had already resumed, and, fearing a final judgment in state court, CBS withdrew its Rule 59(e) motion and filed a notice of appeal. Although 28 U.S.C. § 1447(d) generally prevents this Court from reviewing a district court's remand order, it permits appellate review of cases removed under section 1442.

II. Discussion

Congress has passed versions of the federal officer removal statutes since 1815 to provide a federal forum for officers whose duties under federal law conflict with state law.

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Willingham v. Morgan, 395 U.S. 402, 405, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). The statute evinces concern that " unfriendly" states will impose state-law liability on federal officers and their agents for actions " done under the immediate direction of the national government." Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1879). Because the federal government " can act only through its officers and agents," the removal statute promotes litigating federal defenses (like official immunity) in a federal forum so that " the operations of the general government [are not] arrested at the will of one of [the states]." Id.; see Willingham, 395 U.S. at 406-07, 89 S.Ct. 1813. Although the views expressed in these cases may have been more applicable in the nineteenth century than today, the statute's current text continues to permit " any officer ... of the United States or ... person acting under" them to remove actions " for or relating to any act under color of such office." 28 U.S.C. § 1442(a)(1). Importantly, the " under color of office" component encompasses an additional requirement— defendants must have a colorable federal defense to the plaintiff's action. Mesa v. California, 489 U.S. 121, 132-34, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). This requirement creates Article III jurisdiction, id. at 136, 109 S.Ct. 959 (because section 1442(a) is purely jurisdictional, " the raising of a federal question in the officer's removal petition ... constitutes the federal law under which the action against the officer arises for Art[icle] III purposes" ); see generally Osborn v. Bank of U.S., 22 U.S. (9 Wheat.) 738, 820-27, 6 L.Ed. 204 (1824), and it represents an exception to the well-pleaded complaint rule, which would ordinarily defeat jurisdiction when the federal question arises outside of the plaintiff's complaint, Mesa, 489 U.S. at 136, 109 S.Ct. 959; see generally Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908).

" We review the legal question of whether there [is] federal jurisdiction" de novo. Franciscan Skemp Healthcare, Inc. v. Cent. States Joint Bd. Health & Welfare Trust Fund, 538 F.3d 594, 596 (7th Cir.2008). The party seeking removal bears the burden of proving the grounds for its motion. Shah v. Inter-Continental Hotel Chi. Operating Corp., 314 F.3d 278, 280 (7th Cir.2002); Chase v. Shop 'N Save Warehouse Foods, Inc., 110 F.3d 424, 427 (7th Cir.1997). Ruppel incorrectly argues that private parties (as opposed to federal officers) invoking this statute carry a " special burden." See Williams v. Gen. Elec. Co., 418 F.Supp.2d 610, 614 (M.D.Pa.2005). To the contrary, " [t]he federal officer removal statute is not ‘ narrow’ or ‘ limited,’ " Willingham, 395 U.S. at 406, 89 S.Ct. 1813, and Ruppel's reading also finds no support in the statute's authorization of removal by private persons alongside federal officers, drawing no distinction between governmental and private parties, see 28 U.S.C. § 1442(a)(1). Indeed, the statute has historically authorized removal by private parties without qualification. See Maryland v. Soper (No. 1), 270 U.S. 9, 30, 46 S.Ct. 185, 70 L.Ed. 449 (1926) (private individual acting as chauffeur for agents entitled to removal, although the Court denied removal for other reasons); Davis v. South Carolina, 107 U.S. 597, 600, 2 S.Ct. 636, 27 L.Ed. 574 (1883) (noting " the protection which the law thus furnishes to the marshal and his deputy, also shields all who lawfully assist him in the performance of his official duty" ). With this in mind, we turn to the statute's four requirements. CBS must show it was a(1) " person" (2) " acting under" the United States, its agencies, or its officers (3) that has been sued " for or relating to any act under color of such office," and (4) has a colorable federal defense to the plaintiff's

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claim. See 28 U.S.C. § 1442(a); Mesa, 489 U.S. at 132-34, 109 S.Ct. 959.

A. CBS Is a Person Under the Statute.

CBS easily satisfies the person requirement. In construing statutes, " unless the context indicates otherwise" the " words ‘ person’ and ‘ whoever’ include corporations [and] companies ... as well as individuals." 1 U.S.C. § 1. There is no indication that Congress meant to...

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