UNR Industries, Inc. v. U.S.

Decision Date23 April 1992
Docket Number89-1639 and 89-1648,Nos. 89-1638,s. 89-1638
Citation962 F.2d 1013
Parties, 22 Envtl. L. Rep. 21,413, 38 Cont.Cas.Fed. (CCH) P 76,310 UNR INDUSTRIES, INC., Unarco Industries, Inc., and Eagle Picher Industries, Inc., Plaintiffs-Appellants, v. The UNITED STATES, Defendant-Appellee. KEENE CORPORATION, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

Joe G. Hollingsworth, Spriggs & Hollingsworth, Washington, D.C., argued for plaintiffs-appellants. With him on the brief were William J. Spriggs, Paul G. Gaston and Catherine B. Baumer, of counsel.

John H. Kazanjian, Anderson, Kill, Olick & Oshinsky, P.C., New York City, argued for plaintiff-appellant. With him on the brief were John E. Kidd, Walter G. Marple, Jr. and Arthur S. Olick. Also on the brief were Paul C. Warnke, Harold D. Murry, Jr., and Philip H. Hecht, Howrey & Simon, Washington, D.C.

Robert M. Loeb, Civil Div., Dept. of Justice, Washington, D.C., argued for defendant-appellee. With him on the brief were Stuart M. Gerson, Asst. Atty. Gen. and Barbara C. Biddle. Also on the brief were J. Patrick Glynn and David S. Fishback, Torts Branch, Civil Div., Dept. of Justice, of Washington, D.C.

Sidney S. Rosdeitcher, David G. Bookbinder, Theodore F. Haas and Robert N. Kravitz, Paul, Weiss, Rifkind, Wharton & Garrison, of New York City, were on the brief for amicus curiae, GAF Corp.


MAYER, Circuit Judge.

This is a rehearing in banc of an appeal from the United States Claims Court, 17 Cl.Ct. 146 (1989), which dismissed the cases of UNR Industries, Inc., Eagle-Picher Industries, Inc., and Keene Corporation because it lacked jurisdiction under 28 U.S.C. § 1500 (1988). An earlier judgment and the opinion of this court, 911 F.2d 654 (Fed.Cir.1990), were vacated, 926 F.2d 1109 (Fed.Cir.1990). We now affirm the judgment of the Claims Court.


Appellants, manufacturers of asbestos products or suppliers of asbestos, sued in the Claims Court for indemnification by the government against liabilities incurred in personal injury suits brought against them by shipyard workers exposed to asbestos. As of the filing of the Claims Court actions, each of the appellants had cases based on the same facts pending in federal district courts. Therefore, the Claims Court dismissed their suits on the authority of 28 U.S.C. § 1500, which reads:

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.

We set out here only a brief description of the appellants and their activities. A more comprehensive scenario is contained in the Claims Court opinion. UNR Industries, Inc. (UNR) and Eagle-Picher Industries, Inc. (Eagle-Picher) are among the many defendants in In re All Maine Asbestos Litigation, Master Asbestos Docket (D.Me.), a consolidation of 225 suits brought by present or former shipyard workers or their representatives claiming injury from exposure to asbestos at the Bath Iron Works, a private shipyard, and the Portsmouth Naval Shipyard, both in Maine. On July 21, 1982, the defendants in that litigation, including UNR and Eagle-Picher, filed third-party complaints for contribution or indemnification against the United States in the United States District Court for the District of Maine. The third-party complaints were drafted pursuant to model complaints and were based on theories of negligence, strict liability, and breach of warranty. Model Complaint A dealt with injuries allegedly incurred at the Bath Iron Works, while Model Complaint B dealt with injuries alleged at the Portsmouth Naval Shipyard. On January 16, 1984, UNR sued the United States in the Claims Court, No. 16-84C, for breach of contract based on warranties allegedly arising from the government's role in the use of asbestos in the shipyards. The Claims Court's jurisdiction over this suit is at issue today.

On July 16, 1986, the district court issued a final order dismissing Model Third-Party Complaint B. In re All Maine Asbestos Litigation (Portsmouth Naval Shipyard Cases), Master Asbestos Docket (D.Me.); see also 772 F.2d 1023 (1st Cir.1985); 581 F.Supp. 963 (D.Me.1984). And on March 12, 1987, the court dismissed the last claims of Model Third-party Complaint A. In re All Maine Asbestos Litigation (Bath Iron Works Cases), 655 F.Supp. 1169 (D.Me.1987), aff'd, 854 F.2d 1328 (Fed.Cir.1988).

Eagle-Picher is also a defendant in cases in the Western District of Washington for asbestos-related injuries suffered by workers at the Puget Sound Naval Shipyard. As part of this litigation, on February 3, 1983, Eagle-Picher filed ten third-party complaints founded on theories of negligence, breach of warranty, and admiralty against the government. These complaints were dismissed for failure to state a claim on May 19 and June 30, 1986. Lopez v. Johns-Manville, 649 F.Supp. 149 (W.D.Wash.1986), aff'd sub nom. Lopez v. A.C. & S., Inc., 858 F.2d 712 (Fed.Cir.1988).

On March 25, 1983, Eagle-Picher sued the government in the Claims Court to recover money paid for litigating and settling claims arising from asbestos-caused injuries. No. 170-83C. It relies on contractual theories that the government created warranties by specifying the use of asbestos and by controlling the workplace. The Claims Court's jurisdiction over this lawsuit is at issue.

Along with eight other asbestos suppliers, in 1978 Keene Corporation (Keene) was sued by the representative of a laborer allegedly injured by asbestos exposure in 1943. Miller v. Johns-Manville Bldg. Products, No. 78-1283E (W.D.Pa. filed Nov. 8, 1978). On June 1, 1979, Keene initiated a third-party complaint against the government, demanding indemnification or contribution because the asbestos was either supplied by, or according to the specifications of, the government. Although Keene moved to dismiss this third-party action on April 23, 1980, it is unclear whether the court acted on the motion; regardless, Keene has accepted a dismissal date of May 13, 1980.

On December 21, 1979, Keene sued in the Court of Claims on the theory that the government as an asbestos supplier and as the regulator of the workplace had made and breached various warranties appertaining to asbestos. No. 579-79-C (Keene I ). It is seeking damages growing out of more than 5,000 suits filed against it by persons alleging injuries from asbestos exposure as early as the mid-1930's. Jurisdiction over this suit is at issue.

On January 22, 1980, Keene sued the government in the District Court for the Southern District of New York under the Federal Tort Claims Act for what it spent defending and settling thousands of lawsuits alleging asbestos-related injuries incurred as far back as the 1930's. It based this suit on theories of breach of warranty, negligence, strict liability, and the Federal Employees' Compensation Act, 5 U.S.C. §§ 8101-8193 (1976). On September 30, 1981, the court dismissed the suit as barred by the doctrine of sovereign immunity. Keene Corp. v. United States, No. 80-Civ-0401 (S.D.N.Y. Sep. 30, 1981), aff'd, 700 F.2d 836 (2d Cir.1983).

On September 25, 1981, Keene filed its second suit against the government in the Court of Claims. No. 585-81C (Keene II ). Again, it demands damages for the defense, settlement, and judgment costs of asbestos related personal injury claims dating back to the 1930's. Further, it alleges a violation of the fifth amendment because the government recouped from Keene payments under the Federal Employees' Compensation Act that it paid to workers suffering from asbestos-related injuries. We must also decide whether the Claims Court has jurisdiction over this case.

The Claims Court interpreted section 1500 as forbidding jurisdiction "if, as of the date an action is filed, plaintiff has pending in another federal court the same claim." 17 Cl.Ct. at 155.

The jurisdictional inquiry targets the date of filing in the Claims Court, not some subsequent date, such as the date on which the Government is made aware of the antecedent action, or the date on which the Government invokes section 1500 seeking to dismiss the Claims Court action, or the date on which the Claims Court acts. Therefore, a plaintiff cannot cure a want of jurisdiction in the Claims Court by voluntarily or involuntarily dismissing its parallel action, or even by suffering a court-ordered termination on the merits.

Id. (citation omitted). The court concluded that under the standard announced in Johns-Manville Corp. v. United States, 855 F.2d 1556 (Fed.Cir.1988), the complaints of each appellant in both the district courts and the Claims Court were based on a "homogeneity of operative facts." 17 Cl.Ct. at 156. It dismissed them, as well as those of Fireboard Corporation, H.K. Porter Company, Inc., and Raymark Industries, Inc., who have not appealed, because a case based on the same facts was pending in another court as of the date each plaintiff filed its Claims Court action. The complaint of GAF Corporation, an amicus curiae here, was not dismissed because of an exception to section 1500 set out in Tecon Engineers, Inc. v. United States, 343 F.2d 943, 170 Ct.Cl. 389 (1965).

In the order accepting the suggestion for this rehearing in banc, 926 F.2d 1109, 1110 (Fed.Cir.1991), we directed the parties to address the following questions:

a) Whether the term "has pending" as used in 28 U.S.C. § 1500 (1988) can be properly construed to mean pending at the time the Claims Court first entertains and acts on a Government motion to dismiss (or its equivalent),...

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