855 F.2d 1556 (Fed. Cir. 1988), 87-1332, Johns-Manville Corp. v. United States

Docket Nº:87-1332.
Citation:855 F.2d 1556
Party Name:JOHNS-MANVILLE CORPORATION and Johns-Manville Sales Corporation, Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee.
Case Date:August 25, 1988
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit

Page 1556

855 F.2d 1556 (Fed. Cir. 1988)


Corporation, Plaintiffs-Appellants,


The UNITED STATES, Defendant-Appellee.

No. 87-1332.

United States Court of Appeals, Federal Circuit

August 25, 1988

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Harvey G. Sherzer, Howrey & Simon, Washington, D.C., argued, for plaintiffs-appellants. With him on the brief, were Robert M. Bruskin, Barbara A. Duncombe and John R. Alison. Also on the brief, were Robert D. Batson and Nancy E. Stead, Manville Corp., Littleton, Colo., of counsel.

Harold J. Engel, Deputy Director, Dept. of Justice, Washington, D.C., argued, for defendant-appellee. With him on the brief, were John R. Bolton, Asst. Atty. Gen., J. Patrick Glynn, Director and David S. Fishback, Sr. Trial Counsel.

Robert M. Chilvers, Brobeck, Phleger & Harrison, San Francisco, Cal., represented the amicus curiae, Fibreboard Corp. Also on the brief, was Ann T. Olson, Brobeck, Phleger & Harrison, San Francisco, Cal., of counsel. Paul A. Zevnik, Kaye, Scholer, Fierman, Hays & Handler, Washington, D.C., represented the amicus curiae, GAF Corp. With him on the brief, were David O. Bickart and Molly D. Current. Also on the brief, were Max Gitter and Stuart M. Cobert, Paul, Weiss, Rifkind, Wharton & Garrison, New York City and John P. Carey, Paul, Hastings, Janofsky & Walker, Washington, D.C., of counsel.

Before MARKEY, Chief Judge, RICH and ARCHER, Circuit Judges, and NICHOLS and BENNETT, Senior Circuit Judges.


This is an appeal from an interlocutory order of the United States Claims Court (Nettesheim, J.), entered April 6, 1987, and reported as Keene v. United States, 12 Cl.Ct. 197 (1987). The Claims Court granted a motion by the United States to dismiss three suits, Nos. 465-83C, 688-83C, and 1-84C, brought by Johns-Manville Corporation and Johns-Manville Sales Corporation (Johns-Manville). 1 The Claims Court certified the order for immediate appeal pursuant to 28 U.S.C. Sec. 1292(d)(2) (1982). Johns-Manville's petition for review was granted on May 6, 1987. We affirm.


The motion to dismiss was made in response to a sua sponte order, entered January 20, 1987. The order required the United States to state its position on the applicability of 28 U.S.C. Sec. 1500 (1982). In its present form section 1500 states:

The United States Claims Court shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States or any person who, at the time when the cause of action alleged in such suit or process arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.

I. Cases Filed and Theories of Relief

The three cases dismissed by the order on appeal were filed in the Claims Court as test cases which were representative of thousands of separate claims. See Keene, 12 Cl.Ct. at 201. In each of the three cases Johns-Manville seeks indemnification from the United States for Johns-Manville's liabilities to shipyard workers who were exposed to asbestos manufactured by Johns-Manville and sold to the United States. Each case covered a different time period.

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In Johns-Manville Corp. v. United States, No. 465-83C (Cl.Ct. filed July 19, 1983), Johns-Manville seeks indemnification for its actual or potential liabilities for injuries to shipyard workers exposed to asbestos during World War II (WWII). The theories of relief are (1) breach of an implied warranty of specifications, (2) breach of a duty to reveal superior knowledge, (3) reformation of the contract due to mutual mistake of material facts, and (4) equitable adjustment. 2

The second suit, Johns-Manville Corp. v. United States, No. 688-83C (Cl.Ct. filed Nov. 16, 1983), demands indemnification for actual or potential liabilities to workers injured by exposure to asbestos after 1963. Johns-Manville raises the same theories of relief raised in No. 465-83C and additionally raises (1) breach of warranty to use products safely arising from control by the United States of the specifications and conditions of use, (2) rights as an intended and third-party beneficiary of the supply contracts, and (3) breach of an additional implied-in-fact contract to indemnify, arising out of the government's requirement of contract compliance and its control of the asbestos products. The third complaint, Johns-Manville Corp. v. United States, No. 1-84C (Cl.Ct. filed Jan. 3, 1984), seeks indemnification for Johns-Manville's liabilities to workers injured by exposure to asbestos during unrestricted or overlapping time periods. The complaint repeats the theories raised in No. 465-83C and, additionally, alleges the implied contract to indemnify applies to later "rip-out" operations under the exclusive control of the United States.

Prior to filing in the Claims Court, Johns-Manville filed indemnification claims in district courts. Johns-Manville Sales Corp. v. United States, No. C81 4561 RFP (N.D.Cal. filed Dec. 7, 1981) (the Robinson case), seeks indemnification for amounts paid for defense and settlement of an action brought by John C. Robinson for injuries allegedly due to exposure to asbestos products sold to the United States by Johns-Manville. 3 The complaint pleads jurisdiction and rights of recovery under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346(b), 2671-2680 (1976). The legal theories of relief raised are (1) negligence in discharge of the duties of the United States as a vessel owner in the use of asbestos products, (2) negligence in breach of implied warranties that Johns-Manville would not be liable for damages resulting from compliance with the specifications and that the products would be used in a safe manner, and (3) negligence in failing to reveal superior knowledge of the dangers of asbestos.

Prior to filing in the Claims Court, Johns-Manville also filed 59 third-party complaints in the Eastern District of Virginia. 4 In those actions Johns-Manville and other asbestos manufacturers seek indemnification from the United States if the manufacturers are found liable for asbestos exposure injuries to the plaintiffs. Johns-Manville pleads (1) breach of warranties

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of safe use, merchantability, and fitness for a particular purpose and (2) breach of duty to maintain a safe work place and to enforce health standards.

II. Facts Pleaded

In the Robinson case, Johns-Manville alleges as facts that the United States (1) compelled Johns-Manville to enter the supply contracts, (2) controlled the products by requiring compliance with the government's specifications, (3) controlled the conditions of use of the products, (4) controlled access to the shipyards, (5) did not enforce its established safety standards, (6) knew of the health risks caused by lack of enforcement of the safety standards, (7) knew or should have known of the potential liability to Johns-Manville caused by the failure of the United States to enforce safety standards, and (8) Robinson was exposed to excessive concentrations of asbestos.

The factual allegations in the Claims Court cases overlap the factual allegations in the Robinson case and the third-party complaints. They all allege (1) the United States compelled compliance with supply contracts and with the Navy's specifications, (2) the United States had control of the shipyard working conditions, and (3) the United States established safety standards in the shipyards but did not follow them.

Issues on Appeal

Whether the trial court erred in holding:

1. a prior-filed district court suit presents the same "claim for or in respect to" an action filed in the Claims Court by the same plaintiff where each action is based on the same operative facts but different theories of relief.

2. a prior-filed, stayed suit is pending for purposes of barring jurisdiction in the Claims Court under 28 U.S.C. Sec. 1500.


This is a case of statutory construction. The disposition of the issues before this court requires determining the proper application of 28 U.S.C. Sec. 1500, quoted above. Particularly in issue is the operation of the phrase "any claim for or in respect to which the plaintiff ... has pending...." We will first discuss the part of the phrase reading "any claim for or in respect to" and then discuss the term "pending."

I. Interpretation of "any claim for or in respect to"

  1. Operative Facts versus Theories of Recovery

    1. Legislative History:

      Statutory construction requires the application of recognized rules. See generally Sutherland Statutory Construction (4th ed.). First, " ' "[t]he starting point in every case involving construction of a statute is the language itself." ' " Greyhound Corp. v. Mt. Hood Stages, Inc., 437 U.S. 322, 330, 98 S.Ct. 2370, 2375, 27 L.Ed.2d 239 (1978). Second, where a statute states what a term "means" then all other meanings not stated are excluded. Colautti v. Franklin, 439 U.S. 379, 392 n. 10, 99 S.Ct. 675, 684, n. 10, 58 L.Ed.2d 596 (1979). Third, clear evidence of legislative intent prevails over other principles of statutory construction. National R.R. Passenger Corp. v. National Ass'n of R.R. Passengers, 414 U.S. 453, 458, 94 S.Ct. 690, 693, 38 L.Ed.2d 646 (1974). Fourth, absent a very clear legislative intent, the plain meaning will prevail. Aaron v. SEC, 446 U.S. 680, 697, 100 S.Ct. 1945, 1956, 64 L.Ed.2d 611 (1980). Last, "Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change." Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 870, 55 L.Ed.2d 40 (1978); National Lead Co. v. United States, 252 U.S. 140, 146-47, 40 S.Ct. 237, 239, 64 L.Ed. 496 (1920); Farrell Lines, Inc. v. United States, 499 F.2d 587, 605, 204 Ct.Cl. 482 (1974); cf. Pierce v. Underwood, --- U.S. ----, 108 S.Ct....

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