Ninth Circuit Reverses District Court’s Decision to Remand Ninth Circuit Court of Appeals, December 10, 2018

CALIFORNIA — Westinghouse appealed the decision of the District Court for the Central District of California, which remanded the matter due to the lack of a colorable federal defense.The district court concluded that the asbestos insulation in a nuclear propulsion system was not military equipment and therefore Westinghouse failed to present a colorable military contractor defense. The district court found that Westinghouse had met the other elements required for federal officer removal. The Ninth Circuit noted that several of its cases framed the issue more broadly, such that the focus was on the whole product provided by the supplier. Thus the evidence supported at least a colorable argument that the military “approved reasonably precise specifications” for the equipment at issue. The Ninth Circuit therefore found that Westinghouse satisfied its burden to show a causal nexus between plaintiffs’ claims and the actions it took pursuant to a federal officer’s direction. Accordingly, the decision was reversed and remanded.

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