Zeringue v. Crane Co.

• Decision Date: 20 January 2017
• Docket Number: No. 16-30058,16-30058
• Parties: Howard ZERINGUE, Plaintiff–Appellee, v. CRANE COMPANY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

846 F.3d 785

Howard ZERINGUE, Plaintiff–Appellee,

v.CRANE COMPANY, Defendant–Appellant.

No. 16-30058

United States Court of Appeals, Fifth Circuit.

Filed January 20, 2017

Scott Michael Galante, Galante & Bivalacqua, L.L.C., Jennifer C. Deasy, Margaret E. Woodward, New Orleans, LA, Damon R. Pourciau, Esq., Pourciau Law Firm, L.L.C., Kenner, LA, for Plaintiff–Appellee.

Nicholas P. Vari, Esq., Michael James Ross, K & L Gates, L.L.P., Pittsburgh, PA, Barry Clayton Campbell, Dogan & Wilkinson, P.L.L.C., Metairie, LA, for Defendant–Appellant.

Before CLEMENT, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

Howard Zeringue sued Crane Co. (Crane) and twenty other defendants in state court, asserting strict liability, negligence, and failure to warn claims to recover for injuries allegedly caused by asbestos exposure. Crane removed the case to federal court pursuant to the federal-officer removal statute. After the district court remanded the case to state court, Crane appealed. We reverse and remand.

I

Zeringue asserts that he was first exposed to asbestos in 1952 while deployed with the United States Navy, in which he served in various capacities as an active duty sailor aboard three Navy vessels until 1956. He alleges that he was then exposed to asbestos at two other jobs, including one in which he sold insurance in Avondale Shipyard near ships that contained asbestos, but he does not provide the time period during which this exposure allegedly occurred. At no point does Zeringue specify which defendants allegedly exposed Zeringue during which jobs nor which specific objects contained asbestos at these various jobsites. Instead, Zeringue maintains that "[a]t all times relevant" thirteen of the twenty-one defendants, including Crane, "designed, evaluated, manufactured, packaged, furnished, stored, handled, transported, installed, distributed, sold and/or supplied asbestos-containing products to Plaintiff's jobsites where he was exposed."

Crane removed the case to the Eastern District of Louisiana pursuant to the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane's involvement in this litigation stems from contracts it obtained to manufacture and provide parts, predominately valves, for the Navy. In its removal petition, Crane asserted that "any product that [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings that accompanied that product) would be subject to Navy specifications and requirements" and that, accordingly, "[f]ederal officers exercised their discretion regarding whether (1) asbestos was used in the product, and (2) whether a warning would accompany the product." To bolster this claim, Crane provided affidavits and sample military specifications. Crane maintains that this evidence establishes that all products provided to the Navy required compliance with Navy specifications, some of which required asbestos use, and could not be installed on Navy ships unless the Navy Machinery Inspectors first determined that the products did in fact comply with the detailed specifications.

Zeringue moved to remand the case to state court. The district court determined that although Crane had "allege[d] all of the elements for ... federal officer removal" and had provided evidence that permitted a "plausibl [e] assum[ption] that any equipment that Crane built for the Navy was indeed subject to detailed specifications," Crane had not established that the "government exercised its discretion, with respect to the specific design and warning problems that are implicated by Zeringue's claims." Based on this deficiency, the district court granted Zeringue's motion. Crane appealed.

II

We review a district court's decision on a motion to remand de novo.¹ We have recently observed with regard to 28 U.S.C. § 1442 that "[a]lthough the principle of limited federal court jurisdiction ordinarily compels us to resolve any doubts about removal in favor of remand, ... courts have not applied that tiebreaker when it comes to the federal officer removal statute in light of its broad reach."²

Section 1442 permits, in pertinent part, "any person acting under [an officer] of the United States or of any agency thereof"³ to remove a state suit to federal court if any of the plaintiff's claims⁴ are "for or relating to any act under color of such office."⁵ We have interpreted this part of the statute to require a defendant to show (1) that it is a person within the meaning of the statute, (2) that it has "a colorable federal defense," (3) that it "acted pursuant to a federal officer's directions," and (4) "that a causal nexus exists between [its] actions under color of federal office and the plaintiff's claims."⁶

A

Although Crane is a corporation, "the Supreme Court has long recognized that the removal statute also applies to private persons and corporate entities ‘who lawfully assist the federal officer in the performance of his official duty.’ "⁷ Crane is a "person" for purposes of § 1442.

B

Section 1442"is a pure jurisdictional statute" in which "the raising of a federal question in the officer's removal petition ... constitutes the federal law under which the action against the federal officer arises for [Article] III purposes."⁸ It permits a federal defense , which is generally statutorily impotent to establish subject matter jurisdiction,⁹ to serve as the federal question that endues the court with jurisdiction.¹⁰ As with a federal claim that creates federal question jurisdiction,¹¹ a federal defense fulfilling this same function does not need to be "clearly sustainable," as § 1442 does not require a federal official, or a person acting under an official, to "win his case before he can have it removed," but rather the defense needs only to be "colorable."¹² Although neither we nor the Supreme Court has defined "colorable" in the context of § 1442, the Supreme Court has clarified that a non-colorable federal claim, for the purposes of federal question jurisdiction, is a claim that is " ‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is ‘wholly insubstantial and frivolous.’ "¹³ Because § 1442 allows the assertion of a colorable federal defense to serve the function typically reserved for the assertion of a colorable federal claim, it follows that a non-colorable federal defense is a defense that is immaterial and made solely for the purpose of obtaining jurisdiction or that is wholly insubstantial and frivolous.

Crane asserts government-contractor immunity, originally articulated in Boyle v. United Technologies Corp. ,¹⁴ as its federal defense. This defense is an extension of the immunity afforded to the federal government for the performance of discretionary actions pursuant to 28 U.S.C. § 2680(a).¹⁵ The logic is that because a contractor will pass any added costs from litigation risk exposure to the government, "[i]t makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production."¹⁶ Accordingly, government contractors are also immune from suit for design defects if "(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States."¹⁷

The first two conditions ensure that the government exercised its discretion, as required by the statutory source from which government-contractor immunity derives, by considering "the design feature in question,"¹⁸ which the government can do by "evaluat[ing] th[at] design feature."¹⁹ The government contractor can then prove that it conformed to the government specifications by showing "[a]cceptance and use of an item following its production."²⁰

The gravamen of Crane's claim of government-contractor immunity is that "any product that [Zeringue] alleges Crane Co. manufactured for or supplied to the Navy (and any product literature, labeling, or warnings that accompanied that product) would be subject to Navy specifications and requirements," with which Crane would have complied. To support this claim, Crane supplied sample military specifications and three affidavits. These documents establish that Crane's claim to government-contractor immunity is colorable.

Two of Crane's provided military specifications, one from 1938 and one from 1978, required asbestos in the packing used in certain valves. Crane also provided a military specification from 1966 that required asbestos use for pipe covering, insulation, and millboard. Although Zeringue correctly recognizes that these specifications do not cover the specific period during which he served upon Navy vessels, he admitted in his briefing before the district court that "it is a bit of a stretch to even conclude that Crane Co.'s affiants" (and, logically, Crane itself) "have personal knowledge of the products and warnings at issue in this case, as allegations regarding specific products simply were not made [in the petition for damages]." Certainly, a specific contract that establishes that the government required asbestos for the parts with which Zeringue came into contact would be ideal, but to require that level of specificity to establish a colorable federal defense would equate to requiring Crane to "win his case before he can have it removed," a requirement which we cannot impose.²¹

The three submitted affidavits bolster Crane's defense. Anthony Pantaleoni, Crane's Vice–President of Environment, Health and Safety, stipulated that "[a]ll equipment supplied by Crane Co. to the Navy was built in accordance with [military] specifications" and that the military specifications "governed all aspects of a piece of equipment ... including materials." Retired Rear Admiral...