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 Statesand "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...