Requirements for Asserting Government Contractor Defense Depend on the Court

A recent decision from the U.S. District Court for the District of New Jersey strikes a startling contrast with a recent decision from the 9th U.S. Circuit Court of Appeals.  Both cases involved removal of state court actions to federal court under the authority of the federal officer removal statute, 42 U.S.C. § 1442(a)(2).  Both decisions turned upon the question of whether the removing defendant had provided adequate evidence of governmental control over warnings to be provided to the military by equipment vendors. The question is whether a defendant must show that the government affirmatively forbade warnings by product manufacturers. New Jersey says yes, the Ninth Circuit says no, and the standard enunciated in New Jersey cannot be harmonized with the standard enunciated by the 9th Circuit.

The 9th Circuit case, Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014), addressed an appeal of a denial of a motion to remand.  The removing parties were equipment manufacturers providing equipment to the U.S. Navy. The court stated, at page 1123:

Contrary to plaintiffs’ assumption, Crane need not prove that the Navy would have forbidden it to issue asbestos warnings had Crane requested the Navy’s approval. As we held in Getz, the government contractor defense isn’t limited to “instances where the government forbids additional warning or dictates the precise contents of a warning.”

The cited Getz opinion stated:

We are not persuaded by Plaintiffs’ suggestion that our decisions in Butler and Hawaii Federal Asbestos limit the defense to cases in which the government specifically forbids warnings altogether or to instances where the government explicitly dictates the content of the warnings adopted. These cases only require that governmental approval (or disapproval) of particular warnings “conflict” with the contractor’s “duty to warn under state law.” . . . To read these cases as limiting preemption to those instances where the government forbids additional warning or dictates the precise contents of a warning would be inconsistent with the Court’s decision in Boyle.

Getz v. Boeing, 654 F.3d 852, 867 (9th Cir. 2011) (citations omitted).

In the recent decision of Papp v. Fore-Kast, 2014 U.S. Dist. Lexis 143787 (D. N.J. 10/23/14), the court ruled the other way in another case involving removal by a defendant that manufactured equipment for the military.

Although, to be sure, Defendants have succeeded in demonstrating that the military tightly controlled both the design and manufacture of the C-47 and its constituent components through the various guidelines and official specifications proffered by Boeing, not one of these documents indicates that a federal officer or agency directly prohibited Boeing from issuing, or otherwise providing, warnings as to the risks associated with exposure to asbestos contained in products on which third-parties, such as Keck, worked or otherwise provided services.

Papp emphasized its position that federal officer removal is improper unless the government specifically directed the manufacturer to not give warnings.

[W]hat few documents Fogg does reference in the remaining paragraphs of the declaration devoted to the issue of warnings either miss the mark, or otherwise do not contain any explicit directive by the military that Boeing was not to provide any warnings to third parties in the position of either Keck or Papp.
. . .
Nowhere in that document is there a specific or explicit instruction by the military that Boeing is precluded from issuing its own warnings.

Papp relies heavily on Feidt v. Owens Corning Fiberglas Corp., 153 F.3d 124 (3d Cir. 1998).  Thus decisions from the 9th and the 3rd Circuits appear to be at odds with each other. It is interesting to note that in Getz, the removing party was Boeing and the product at issue was a MH-47E Chinook helicopter. In Papp, the removing party was again Boeing and the product at issue was a C-47 airplane.  Curiously, the Papp decision makes no reference to Getz or Leite.

It does not seem possible to reconcile the opinions of these courts. One would like to think that the successful exercise of a statutorily established right would not vary so obviously based only upon the location of the court hearing the matter.  The U.S. Supreme Court recently denied review of Liete.  Perhaps this conflict may yet persuade SCOTUS to reconcile the differences.