The plaintiffs brought this action in state court against numerous defendants including Foster Wheeler LLC and Foster Wheeler Energy Corporation alleging Mr. Ripley developed mesothelioma while working as a boilermaker at Norfolk Naval Shipyard in Virginia from 1969-72 and again from 1974 until the late 1970s. Foster Wheeler removed the case based on the federal officer removal statute. Specifically, Foster Wheeler asserted the government contractor defense. The plaintiff moved to remand. Following “decades old practice of denying the government contractor defense in a failure to warn case,” the court remanded the case. Foster Wheeler appealed.
The court ran through an analysis of federal officer removal and stated the a defendant is permitted to remove on federal officer removal when the following is established 1) it is a federal officer or a “person acting under that officer” 2) a colorable federal defense; and 3) the suit is “for an act under the color of office,” which requires a causal nexus between the charged conduct and asserted official authority. The court noted that the defendant does not have “to win” his case just to remove it. Relying on precedent from the Boyle decision, the court stated that design defects in military equipment do not “give rise to state tort law.” For its reasoning, the court noted that the judicial branch should be reluctant to involve itself in military decisions based on separation of powers. Also noted was the concern that more risk for government contractors meant higher cost for government.
The court concluded that the Eastern District of Virginia’s decision to deny government contractor defense was an “outlier” amongst other jurisdictions. Further, the court found that Boyle was still applicable in a failure to warn case. The court remanded the case for a determination as to whether Foster Wheeler had put forth sufficient proof to warrant removal.