13‐4510
Cuomo v. Crane Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: November 5, 2014 Decided: November 13, 2014)
Docket No. 13‐4510‐cv
________________
SUSAN CUOMO, individually and as administratix for the
Estate of Joseph Cuomo,
Plaintiff‐Appellee,
— v. —
CRANE CO.,
Defendant‐Appellant,
AIR & LIQUID SYSTEMS CORPORATION, as successor by merger to Buffalo Pumps,
Inc., ATWOOD & MORILL COMPANY, AURORA PUMP COMPANY, BLACKMER, BW/IP,
INC., and its wholly owned subsidiaries, BYRON JACKSON PUMPS, CBS
CORPORATION, successor by merger to CBS Corporation, FKA, Viacom Inc., FKA
Westinghouse Electric Corporation, CLEAVER BROOKS COMPANY, INC., FMC
CORPORATION, AMERICA STANDARD INC., FOSTER WHEELER, L.L.C., GARDNER
DENVER, INC., GENERAL ELECTRIC COMPANY, GOULDS PUMPS, INC., IMO
INDUSTRIES, INC., INGERSOLL‐RAND COMPANY, OWENS‐ILLINOIS, INCORPORATED,
RAPID‐AMERICAN CORPORATION, TRANE U.S. INC., FKA American Standard Inc.,
U.S. RUBBER COMPANY (UNIROYAL), UNION CARBIDE CORPORATION, WARREN
PUMPS, L.L.C., WEINMAN PUMP & SUPPLY CO., YARWAY CORPORATION, AMCHEM
PRODUCTS, INC., now known as Rhone Poulenc AG Company now known as
Bayer Conscience, Inc.,
Defendants.
B e f o r e:
LEVAL, LYNCH, and DRONEY, Circuit Judges.
__________________
Defendant‐appellant Crane Co. appeals from an order of the district court
remanding plaintiff‐appellee Susan Cuomo’s failure‐to‐warn action against
Crane to state court after Crane removed the case under the federal officer
removal statute. Crane argues that the district court erred by requiring evidence
that the Navy either affirmatively proscribed or dictated the content of asbestos
warnings as the basis of Crane’s federal contractor defense. Because we agree
that Crane has asserted a colorable federal contractor defense despite the absence
of such evidence, we reverse.
ALANI GOLANSKI, Weitz & Luxenberg, P.C., New York, New York, for
Plaintiff‐Appellee Susan Cuomo.
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MICHAEL JAMES ROSS (Angela DiGiglio and Nicholas P. Vari, on the
brief), K&L Gates LLP, New York, New York, for Defendant‐Appellant
Crane Co.
GERARD E. LYNCH, Circuit Judge:
After defendant‐appellant Crane Co. removed plaintiff‐appellee Susan
Cuomo’s failure‐to‐warn suit on the basis of the federal officer removal statute,
28 U.S.C. § 1442(a)(1), the U.S. District Court for the Southern District of New
York (Shira A. Scheindlin, J.) granted Cuomo’s motion to remand the case to state
court. Reviewing the evidence submitted by both parties, the court concluded
that because the evidence did not establish that the Navy either affirmatively
prohibited or dictated asbestos warnings on Crane’s equipment, Crane did not
raise a colorable federal contractor defense. Because we conclude that Crane’s
proffered evidence sufficed to assert a colorable federal defense at the removal
stage, we reverse.
BACKGROUND
Susan Cuomo, individually and on behalf of the estate of her late husband
Joseph Cuomo, brought state tort claims against Crane Co. and approximately
twenty‐five other defendants in New York state court. Cuomo alleged that
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Crane, a supplier of shipboard equipment to the United States Navy, caused her
husband to be exposed to asbestos during his service from 1974 to 1980 by failing
to affix adequate asbestos warnings to the valves it supplied for the Navy’s
vessels.
On January 11, 2013, Crane removed the suit to federal court under 28
U.S.C. § 1442(a)(1), the federal officer removal statute, asserting that it would
pursue a federal contractor defense at trial. In support of its motion, Crane
presented testimony and documentary evidence, including the affidavits of
retired Rear Admiral David P. Sargent, Jr., who stated that contractors like Crane
were not allowed to deviate from the Navy’s specifications by affixing health
warnings not expressly required by the Navy, and Dr. Samuel A. Forman, a
former Naval medical officer who testified that the Navy recognized the health
risks of asbestos as early as 1922. Crane also provided samples of the Navy’s
manufacturer specifications from the past several decades, which imposed a
variety of requirements on suppliers of valves and similar shipboard equipment
but did not direct suppliers to affix asbestos warnings.
On August 9, 2013, Cuomo moved to remand the suit to state court,
arguing that Crane failed to advance a colorable federal defense. In support of
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her motion, Cuomo produced the affidavit of retired Captain Arnold P. Moore,
who insisted that the Navy “relied heavily” on manufacturers like Crane to
identify health hazards associated with their equipment, as well as prior
testimony by Dr. Forman in which he failed to identify a single instance of the
Navy rebuffing a manufacturer’s decision to affix additional asbestos labels.
On November 1, 2013, the district court granted Cuomo’s motion to
remand. Appraising both parties’ exhibits, the court found that Crane had
provided no evidence that the Navy’s specifications either actively prohibited or
“dictated” the content of any proposed asbestos warnings on Crane’s equipment.
Accordingly, she concluded that Crane failed to identify any “significant conflict”
between the Navy’s safety regulations and New York’s tort liability standards so
as to give rise to a colorable federal contractor defense. See Cuomo v. Air &
Liquid Sys. Corp., No. 13 CIV. 273, 2013 WL 5913379, at *3 (S.D.N.Y. Nov. 1,
2013).
DISCUSSION
We review de novo a district court’s decision on a motion to remand.
Bounds v. Pine Belt Mental Health Care Res., 593 F.3d 209, 214 (2d Cir. 2010).
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The federal officer removal statute provides that any action brought
against an “officer (or any person acting under that officer) of the United States
or of any agency thereof, in an official or individual capacity, for or relating to
any act under color of such office,” may be removed to federal court by the
defendant. 28 U.S.C. § 1442(a)(1); see also Isaacson v. Dow Chem. Co., 517 F.3d
129, 135 (2d Cir. 2008). To invoke the statute, a defendant who is not himself a
federal officer must demonstrate that (1) the defendant is a “person” under the
statute, (2) the defendant acted “under color of federal office,” and (3) the
defendant has a “colorable federal defense.” Isaacson, 517 F.3d at 135 (internal
quotation marks and alterations omitted).
The Supreme Court has cautioned that the scope of the federal officer
removal statute “is not narrow or limited.” Willingham v. Morgan, 395 U.S. 402,
406 (1969) (internal quotation marks omitted). Because a core purpose of the
statute is to let the “validity of the [federal] defense” be “tried in federal court,”
Isaacson, 517 F.3d at 139, a defendant seeking removal need not “virtually . . .
win his case,” Jefferson County, Ala. v. Acker, 527 U.S. 423, 431 (1999) (internal
quotation marks omitted), nor must his defense even be “clearly sustainable” on
the facts, Isaacson, 517 F.3d at 139 (internal quotation marks omitted). Precisely
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in those cases where a plaintiff challenges the factual sufficiency of the
defendant’s defense, the defendant should “have the opportunity to present [his]
version of the facts to a federal, not a state, court.” Willingham, 395 U.S. at 409;
see also Osborn v. Haley, 549 U.S. 225, 251 (2007). The inquiry on the motion to
remand is purely jurisdictional, and neither the parties nor the district courts
should be required to engage in fact‐intensive motion practice, pre‐discovery, to
determine the threshold jurisdictional issue. A merely “colorable” defense is
sufficient to “assure the federal court that it has jurisdiction to adjudicate the
case.” Kircher v. Putnam Funds Trust, 547 U.S. 633, 644 n.12 (2006).
Crane asserts that it is insulated against Cuomo’s state tort claims on the
basis of the federal contractor defense. The federal contractor defense immunizes
defendants who supply equipment for the federal government from state tort
liability so long as “(1) the United States approved reasonably precise
specifications for the allegedly [defective] equipment; (2) the equipment
conformed to those specifications; and (3) the contractor who supplied the
equipment warned the United States about the dangers in the use of the
equipment that were known to the [contractor] but not to the United States.” In
re “Agent Orange” Prod. Liab. Litig., 517 F.3d 76, 88 (2d Cir. 2008) (internal
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quotation marks and alterations omitted); see also Boyle v. United Techs. Corp.,
487 U.S. 500, 512 (1988).1
In support of removal, Crane presented several affidavits and numerous
documentary exhibits suggesting that (1) the Navy provided detailed
specifications for the valves that Crane supplied for its vessels, (2) Crane’s valves
must have conformed to those specifications if they were accepted by the Navy,
and (3) the Navy was well aware of the health risks associated with asbestos by
the 1970s. This evidence provides a colorable factual basis for each prong of the
federal contractor defense. Indeed, several district courts and at least one other
Circuit court have found a near‐identical showing adequate to merit federal
removal under § 1442(a)(1). See Leite v. Crane Co., 749 F.3d 1117, 1120 (9th Cir.
2014); see also, e.g., Crews v. Air & Liquid Sys. Corp., No. 7:12‐CV‐1678, 2014 WL
636362, at *6 (N.D.N.Y. Feb. 18, 2014); Gates v. A.O. Smith Water Prods. Co., No.
3:13‐CV‐1435, 2014 WL 104965, at *5 (N.D.N.Y. Jan. 9, 2014). To the extent that
Cuomo’s competing testimony challenges the accuracy or reliability of Crane’s
evidence, it does not undercut Crane’s right to removal, but rather raises the very
1
We have recognized that this standard applies to failure‐to‐warn claims
as well as to defective‐design claims. In re Joint E. & S. Dist. N.Y. Asbestos Litig.,
897 F.2d 626, 629 (2d Cir. 1990).
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type of factual dispute about the validity of the defense that should be submitted
to the judgment of a federal court. See Osborn, 549 U.S. at 251.
The district court concluded, and Cuomo now argues, that Crane cannot
make even a “colorable” bid for the federal contractor defense because it
provided no evidence that the Navy prohibited or actively prescribed the content
of any proposed asbestos labels. That argument exaggerates both the
requirements of the federal contractor defense and the threshold for federal
removal under § 1442(a)(1). In the context of failure‐to‐warn claims, as in the
defective‐design context, the federal contractor defense demands proof that the
government approved “reasonably precise specifications for the allegedly
[defective] equipment,” Agent Orange, 517 F.3d at 88 (emphasis added and
alterations omitted); it does not require that the government issue reasonably
precise specifications for each particular label. While Cuomo correctly notes that
In re Joint Eastern & Southern District New York Asbestos Litigation demanded
some evidence that the disputed product warnings “resulted from a
determination of a government official, and thus that the Government itself
‘dictated’ the[ir] content,” 897 F.2d 626, 630 (2d Cir. 1990) (citation omitted),
“dictating” the content of a warning does not necessarily require the government
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to prescribe its literal terms. Rather, as we went on to clarify, a defendant need
only establish that “the Government . . . dictated or otherwise controlled the nature
and the content of the product warnings,” id. at 632 (emphasis added); see also
id. at 630 n.4, a standard satisfied by evidence showing that “the Government,
making a discretionary . . . decision contrary to the requirements of state law,
incorporate[d] this decision into a military contractor’s contractual obligations,
thereby limiting the contractor’s ability to accommodate safety in a different
fashion,” id. at 632.
In this case, Crane has provided evidence that the Navy issued detailed
and comprehensive specifications regarding the production and packaging of its
valves – specifications that for all their particularity made no mention of asbestos
warnings. Whether or not that evidence will ultimately be sufficient to persuade
a federal court that these specifications articulated a discretionary safety policy
by the Navy effectively “limiting” Crane’s ability to affix additional asbestos
warnings, or even to raise a fact issue that will survive a motion for partial
summary judgment, Crane has certainly provided sufficient evidence to create at
this preliminary stage a “colorable” possibility of satisfying that standard.
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We conclude that Crane’s evidence tending to prove that the Navy issued
precise specifications regarding its shipboard equipment, that the Navy would
not have accepted Crane’s equipment had it not conformed to those
specifications, and that the Navy understood the health risk associated with
asbestos easily clears the low threshold for asserting a federal contractor defense
for purposes of removal under § 1442(a)(1).2 Respecting the policy behind the
federal officer removal statute, we emphasize that the district court’s role on a
remand motion is not to resolve whether the defendant has established the
federal contractor defense or to resolve factual disputes, but only to ensure the
existence of some competent evidence supporting a “colorable” federal defense.
CONCLUSION
For the foregoing reasons, the order of the district court is
REVERSED.
2
Cuomo additionally argues that Crane failed to satisfy the first two
prongs of the federal contractor defense because it produced no copies of its own
procurement contracts with the Navy. Because the district court’s holding dealt
exclusively with the third prong, that issue is not properly before us. See
Singleton v. Wulff, 428 U.S. 106, 120 (1976) (“It is the general rule, of course, that
a federal appellate court does not consider an issue not passed upon below.”). In
any event, as stated above, examples of the Navy’s customary specifications and
testimony that Crane’s valves conformed to those specifications satisfy Crane’s
burden under § 1442(a)(1) even absent specific evidence of Crane’s own contracts.
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