842 F.3d 805 (3rd Cir. 2016), 15-2851, Papp v. Fore-Kast Sales Co., Inc.

Docket Nº:15-2851
Citation:842 F.3d 805
Opinion Judge:JORDAN, Circuit Judge.
Party Name: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 DO
Attorney:Amaryah K. Bocchino, Jason A. Cincilla, Marc S. Gaffrey, Bryan P. Smith, Manion Gaynor & Manning, Wilmington, DE; Martin F. Gaynor, III [ARGUED], Nicholas D. Stellakis, Manion Gaynor & Manning, Boston, MA; Brian D. Gross, Manion Gaynor & Manning, Providence, RI, Counsel for Appellant, Boeing Co. ...
Judge Panel:Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.
Case Date:November 22, 2016
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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842 F.3d 805 (3rd Cir. 2016)

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, the Boeing Company, Appellant

No. 15-2851

United States Court of Appeals, Third Circuit

November 22, 2016

Argued September 9, 2016.

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On Appeal from the United States District Court for the District of New Jersey. (D.C. No. 3-13-cv-5940). District Judge: Honorable Peter G. Sheridan.

Amaryah K. Bocchino, Jason A. Cincilla, Marc S. Gaffrey, Bryan P. Smith, Manion Gaynor & Manning, Wilmington, DE; Martin F. Gaynor, III [ARGUED], Nicholas D. Stellakis, Manion Gaynor & Manning, Boston, MA; Brian D. Gross, Manion Gaynor & Manning, Providence, RI, Counsel for Appellant, Boeing Co.

Jeffrey P. Blumstein [ARGUED], Robert E. Lytle, Robert G. Stevens, Jr., Szaferman Lakind Blumstein & Blader, Lawrenceville, NJ; Joseph J. Mandia, Levy Konigsberg, New York, NY, Counsel for Appellee.

Before: JORDAN, VANASKIE, and KRAUSE, Circuit Judges.

OPINION

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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, 28 U.S.C. § 1442(a)(1). According to Boeing, it was acting as a government contractor when it engaged in the allegedly tortious conduct. After removal, Papp filed a motion to remand the case to state court, which the District Court granted. The District Court ruled that Boeing had failed to meet a " special burden" of establishing that a federal officer or agency affirmatively prohibited Boeing from warning third parties of the dangers of asbestos found in planes manufactured in the mid-twentieth century. Because we conclude that the federal officer removal statute extends to contractors who possess a colorable federal defense, and that Boeing made a sufficient showing of such a defense at the time of removal, we will reverse.

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

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World War II. Once Boeing learned the identity of the aircraft, it promptly removed the case to federal court pursuant to the federal officer removal statute, 28 U.S.C. § 1442(a)(1). That statute permits a defendant to remove a case to federal court from the state court where suit was originally filed, provided the allegedly culpable behavior took place while the defendant was acting under the direction of a federal officer or agency. 28 U.S.C. § 1442(a)(1).

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, 194 L.Ed.2d 3 & 994, 194 L.Ed.2d 3 (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.

Discussion 3

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, 28 U.S.C. § 1442(a)(1). As with any removal from state court, removal under § 1442(a)(1) begins with the filing of a notice " containing a short and plain statement of the grounds

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for removal." 28 U.S.C. § 1446(a). Because a motion to remand shares an essentially identical procedural posture with a challenge to subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1), it is properly evaluated using the same analytical approach. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir.), cert. denied, 135 S.Ct. 361, 190 L.Ed.2d 252 (2014); see also Defender Ass'n, 790 F.3d at 466 (applying same 12(b)(1) framework to challenge of jurisdiction after removal).

" 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, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969). The statute has been amended over the years to permit removal in a broader set of circumstances. As currently framed and codified at 28 U.S.C. § 1442(a)(1), it provides, in relevant part: 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...

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