United States: Seventh Circuit Approves Removal To Federal Court Of Asbestos Exposure Suit Against Federal Government Contractor

The Seventh Circuit Court of Appeals has held that removal to federal court of an asbestos suit for liabilities based on products delivered to an agency of the United States government is appropriate. Companies that contracted with the military or other government entities should be cognizant of the opportunity to move their cases to federal court, where procedural protections may be more favorable than those provided in state court. Moreover, if a government contractor in a multi-defendant action successfully removes the case on the basis of federal-officer removal, the entire case is removed as to all defendants.

On November 30, 2012, the United States Court of Appeals for the Seventh Circuit decided Henry Ruppel v. CBS Corporation, No.12-2236. Jones Day briefed and argued the appeal on behalf of CBS. This decision marked the first federal appellate precedent on a question that had deeply divided federal district courts across the country for more than 20 years: whether asbestos suits may be removed to federal court by government contractors who used asbestos in manufacturing products for the government. The court unanimously agreed with CBS that removal was proper under the federal-officer removal statute, 28 U.S.C. § 1442(a).

The Ruppel case began when the plaintiff filed, in Illinois state court, a state-law tort suit against CBS and a series of other defendants. The plaintiff alleged that he had developed mesothelioma as a result of exposure to asbestos, and that the defendants were liable for that exposure under various product liability theories. CBS was named in the suit as the successor to Westinghouse Electric Corporation, which manufactured equipment for the United States Navy many decades ago. Some of that equipment, including turbines for Navy vessels, incorporated asbestos. The plaintiff had served in the Navy and later worked in the shipbuilding industry; he alleged exposure to the asbestos in that equipment.

CBS removed the case to the federal district court for the Southern District of Illinois and invoked as its basis for removal the so-called federal-officer removal statute, found at § 1442(a) of Title 28 of the U.S. Code. That provision authorizes any "agency" or "officer" of the United States—and "any person acting under that officer"—to remove to federal court any suit against them that is "for or relating to any act under color of such office." CBS contended that, as a contractor for the U.S. Navy, it was "acting under" a federal officer when it designed and supplied the relevant products to the Navy, and that the suit was premised on acts taken within the scope of its federal duties. Indeed, CBS intended to assert the federal-law defense of government-contractor immunity.

The district court rejected CBS's arguments and remanded the case to state court. That decision was consistent with the approach taken by many district courts, which construed the removal provision narrowly when invoked by private parties. But, under a statutory amendment enacted in 2011, CBS was entitled to appeal that order. With representation from Jones Day, CBS filed an appeal, and the Seventh Circuit unanimously reversed the remand order, concluding that the case belonged in federal court.

The appellate panel held that CBS satisfied each element of the test for federal-officer removal. First, CBS counts as a "person" within the meaning of the statute. Second, CBS was "acting under" the Navy when it provided equipment to the Navy under government contracts. Third, the plaintiff's suit arose from acts "under color" of federal office, because the design and supply of the asbestos-containing equipment was pursuant to government contracts. Fourth, CBS stated a colorable federal-law defense to the claims. In particular, CBS could plausibly assert government-contractor immunity with respect to the plaintiff's "design-defect" theory of liability, as well as with respect to his "failure-to-warn theory" of liability. The court noted that the use of asbestos was mandated by military specifications, and that the Navy controlled the "content and placement" of any warnings affixed to the equipment. Even if the Navy did not specifically prohibit warnings about the health risks of asbestos, CBS could still invoke government contractor immunity to defend against claims that it should have provided those warnings unilaterally.

The Ruppel decision has important implications for government contractors and for defendants who are sued alongside government contractors (since successful removal by a government contractor removes the entire case as to all defendants). The court's broad construction of the federal-officer removal statute implies that many tort suits against federal contractors can be removed to federal court, where more favorable procedural rules may apply. This precedent should cause district courts—even those outside the Seventh Circuit—to reconsider some of their decisions giving the removal provision a narrower and more grudging interpretation when invoked by private parties. Indeed, the Seventh Circuit expressly rejected these courts' presumption against removal under such circumstances.

Moreover, the court's discussion of federal government-contractor immunity offers a broad and helpful clarification as to the application of that immunity to failure-to-warn claims. Again, many district courts had imposed a high bar to such immunity in the failure-to-warn context, requiring that the federal government specifically and expressly prohibited the type of warning that would have satisfied state law. The Seventh Circuit expressly rejected that demanding test, and its ruling will therefore help to prevent plaintiffs from circumventing government-contractor immunity through creative pleading.

Given the number of asbestos suits being filed against military contractors and other companies whose business dealings with the federal government have resulted in asbestos personal injury claims, companies should explore with their defense counsel at the earliest possible opportunity whether removal papers should be filed. There are strict time limits to filing removal papers, so a prompt evaluation of the basis for removal is necessary.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions