UNR Industries, Inc. v. U.S., s. 89-1638

CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit
Citation911 F.2d 654
Docket Number89-1639 and 89-1648,Nos. 89-1638,s. 89-1638
PartiesUNR INDUSTRIES, INC., Unarco Industries, Inc. and Eagle-Picher Industries, Inc., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee. KEENE CORPORATION, Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Decision Date30 July 1990

Mayer, Circuit Judge, filed dissenting opinion.

Joe G. Hollingsworth, Spriggs & Hollingsworth, Washington, D.C., argued, for plaintiffs-appellants in nos. 89-1638, 89-1639. With him on the brief was William J. Spriggs, Washington, D.C. Also on the brief were Paul G. Gaston and Catherine R. Baumer, Washington, D.C. Paul C. Warnke, Clifford & Warnke, Washington, D.C., was on the brief, for plaintiff-appellant in no. 89-1648. With him on the brief were Harold D. Murray, Jr. and Philip H. Hecht, Washington, D.C. Also on the brief were John E. Kidd, Anderson Kill Olick & Oshinsky, P.C., New York City, and Lauren B. Homer, Anderson Kill Olick & Oshinsky, P.C., Washington, D.C.

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

Before RICH, MAYER and PLAGER, Circuit Judges.

PLAGER, Circuit Judge.

This appeal is another chapter in the long-fought battle to determine responsibility for injuries sustained over the years by individuals working with asbestos. In these particular cases, plaintiff companies seek indemnification from the United States Government for the companies' liabilities to shipyard workers for injuries caused by exposure to asbestos. Before us is an appeal from an order of the United States Claims Court (Nettesheim, J.) entered June 1, 1989, and reported as Keene Corp. v. United States, 17 Cl.Ct. 146 (1989). The United States moved in the trial court to dismiss eight suits 1 brought by Keene Corporation, Eagle-Picher Industries, UNR Industries, Fibreboard Corporation, H.K. Porter Company, Inc., Raymark Industries, Inc. and GAF Corporation. 2 The trial court granted the motion as to all plaintiffs except GAF Corporation. 3 Keene Corporation (Keene), Eagle-Picher Industries (E-P), and UNR Industries (UNR) all appealed pursuant to 28 U.S.C. Sec. 1295(a)(3) (1988). E-P and UNR appealed jointly, and their appeal was consolidated with Keene's appeal for purposes of oral argument. 4

The trial judge's decision was based on her reading of a statute, 28 U.S.C. Sec. 1500, that pertains to the Claims Court's jurisdiction. The judge believed the statute denied the court jurisdiction, and obligated her to grant the Government's motion to dismiss. We believe the statute does not so dictate, and for that reason we reverse and remand for further proceedings consistent with this opinion.

I.

Much of the background of the present case is detailed in the trial court's opinion, Keene Corp., supra, and need not be recited here. In short, the present appeals raise the question of the proper application of 28 U.S.C. Sec. 1500 (1988) to each of these cases. Section 1500 was enacted in 1868, and was most recently before us in Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed.Cir.1988) (per curiam), cert. denied, --- U.S. ----, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989), aff'g Keene Corp. v. United States 12 Cl.Ct. 197 (1987). The statute deals with the jurisdiction of the Claims Court, and bars that court from hearing claims when, under the terms of 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 arose, was, in respect thereto, acting or professing to act, directly or indirectly under the authority of the United States.

the statute, those claims are pending in other courts:

In the Johns-Manville case two issues involving the interpretation of Sec. 1500 were addressed. First, the Claims Court had applied the statute to bar the plaintiffs' suit on the grounds that there were pending district court cases raising the same claims. On appeal plaintiffs argued that since their third-party district court suits against the Government were based on different theories of relief than their direct action Claims Court suits, they were different "claims" and thus not subject to the Sec. 1500 bar. This Court held otherwise (thereby affirming the Claims Court), concluding that the term "claim" is defined by the operative facts alleged, not the legal theories raised.

For example, the fact that one set of operative facts may create liability both in tort and contract does not mean that a recital of such facts states two separate and distinct "claims" as that term is used in Sec. 1500. We explained that this construction of the term "claim" serves the underlying purpose of Sec. 1500, which is "to prohibit the filing and prosecution of the same claim against the United States in two courts at the same time." Johns-Manville at 1562.

The second issue addressed by this Court is whether third-party complaint cases that are stayed in the district court are "pending" within the terms of Sec. 1500. We held, based on a plain meaning interpretation of the statute, that " 'pending' includes cases which have been filed but stayed." Johns-Manville at 1567.

The case now before us raises a third issue regarding the meaning of Sec. 1500. In the present action, on November 16, 1988, with the Johns-Manville case in hand, the Government moved for summary judgment against the seven parties involved at the trial level. The Government asserted that at the time of filing in the Claims Court, each plaintiff had one or more suits pending in another court. Proceedings on the Government's motion were stayed while the appellants in the Johns-Manville case sought certiorari in the Supreme Court. The Supreme Court declined further review. Keene Corp. v. United States, --- U.S. ----, 109 S.Ct. 1342, 103 L.Ed.2d 811 (1989).

Thereafter, on June 1, 1989, the Claims Court granted the Government's summary judgment based on lack of jurisdiction. Keene Corp. v. United States, 17 Cl.Ct. 146. With the exception of GAF Corporation, the Claims Court determined that each plaintiff had an earlier-filed suit that involved the same claim, i.e. same operative facts, as that in the Claims Court action, and that those earlier-filed suits were "pending" at the time the Claims Court suit was filed.

Keene, UNR, and E-P appealed to this court, arguing that the phrase "has pending" does not mean pending at the time the Claims Court action is filed. They contend that Sec. 1500 should not bar jurisdiction if the earlier-filed suit, though still pending at the time the Claims Court action is filed, is dismissed before the Claims Court entertains the Sec. 1500 motion to dismiss. Keene further argues that in its case, the earlier-filed suit does not involve the same operative facts as its Claims Court suit and that, however, the issue of "has pending" is resolved, Sec. 1500 thus does not bar Claims Court jurisdiction. In view of our disposition of the jurisdiction issue, we need not address this additional issue.

II.
A. Earlier-Filed Suits In The District Courts
1. UNR Industries

In re All Maine Asbestos Litigation, Master Asbestos Docket (D.Me., filed July 21, 1982), is an omnibus consolidation of Eventually, all of the claims of the Model Third-Party Complaints A and B were dismissed. While the claims within each Model Third-Party Complaint were not all dismissed at the same time, for purposes of this opinion it is sufficient to note that by March 12, 1987, all of the claims of the Model Third-Party Complaint A were dismissed, In re All Maine Asbestos Litigation (BIW Cases), 655 F.Supp. 1169, 1171 (D.Me.1987), 5 and that by July 16, 1986, all of the claims of the Model Third-Party Complaint B were dismissed. 6 In re All Main Asbestos Litigation (PNS Cases), Master Asbestos Docket (D.Me. July 16, 1986). 7

225 suits brought by present or former shipyard workers or their representatives seeking recourse for injury due to exposure to asbestos manufactured or supplied by the many named defendants. UNR is one of those defendants. The defendant manufacturers and suppliers, in turn, filed third-party actions for contribution or indemnification against the United States. These third-party suits were initiated in two different complaints, Model Third-Party Complaint Against the United States of America "A" ("Model Third-Party Complaint A") and Model Third-Party Complaint Against the United States of America "B" ("Model Third-Party Complaint B"). Keene Corp., 17 Cl.Ct. at 149-50.

2. Eagle-Picher Industries
a. In re All Maine Asbestos Litigation, Master Asbestos Docket (D.Me., filed July 21, 1982)

E-P's involvement in In re All Maine Asbestos Litigation is similar to that of UNR. Thus all of E-P's third-party complaints against the Government, filed on July 21, 1982, were dismissed no later than March 12, 1987. Keene Corp., 17 Cl.Ct. at 149-50.

b. Albert Lopez, et al v. Eagle-Picher Industries, Inc. v. United States, No. C-84-155M (W.D. Wash., filed Feb. 3, 1983)

On February 3, 1983, E-P filed in the District Court for the Western District of Washington ten third-party complaints against the United States seeking indemnification for its liabilities resulting from asbestos related injuries that its employees allegedly sustained while employed at the Puget Sound Naval shipyard. The case Albert Lopez, et al v. Eagle-Picher Industries, Inc. v. United States, No. C-84-155M (W.D. Wash., filed Feb. 3, 1983) ("Lopez "), was treated as a test case; E-P's third-party complaint was dismissed on May 19, 1986 for failure to state a claim. 8 Lopez v. Johns Manville, 649 F.Supp. 149 (W.D.Wash.1986). The...

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