                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1918


DEBORAH H. RIPLEY, individually and as Administrator of the
Estate of Bernard W. Ripley, deceased,

                Plaintiff - Appellee,

          and

BERNARD W. RIPLEY,

                Plaintiff,

          v.

FOSTER WHEELER LLC; FOSTER WHEELER ENERGY CORPORATION,

                Defendants – Appellants,

          and

J.   HENRY    HOLLAND     CORPORATION;    WACO,     INCORPORATED;
METROPOLITAN    LIFE    INSURANCE    COMPANY;    UNION    CARBIDE
CORPORATION; SB DECKING, INC., a/k/a Selby Battersby; AURORA
PUMP, CO; IMO INDUSTRIES, INCORPORATED, as successor in
interest to Delaval Pumps; GOULDS PUMPS, INCORPORATED;
INGERSOLL-RAND COMPANY; WARREN PUMPS, INCORPORATED; CRANE
COMPANY; GRINNELL CORPORATION; THE       J.R. CLARKSON COMPANY,
individually   and   as    successor   by   mergers   to   Kunkle
Industries, Inc.; MILWAUKEE VALVE COMPANY; FLOWSERVE US,
INC., individually and as successor in interest to Rockwell
Edward Valves and Vogt Valves; SPIRAX SARCO, INC.; ARMSTRONG
INTERNATIONAL, INC., individually and as a successor to
Armstrong Machine Works,

                Defendants.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Arenda L. Wright Allen,
District Judge. (4:14-cv-00070-AWA-LRL)


Argued:   September 22, 2016           Decided:   November 1, 2016


Before TRAXLER, DIAZ, and THACKER, Circuit Judges.


Reversed and remanded by published opinion. Judge Thacker wrote
the opinion, in which Judge Traxler and Judge Diaz joined.


ARGUED: Erik David Nadolink, WHEELER TRIGG O’DONNELL, LLP,
Denver, Colorado, for Appellants.      William Harty, PATTEN,
WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for
Appellee.   ON BRIEF: Anthony B. Taddeo, Jr., David M. Sturm,
Matthew D. Joss, TADDEOSTURM PLC, Richmond, Virginia, for
Appellants. Robert R. Hatten, Hugh B. McCormick, III, PATTEN,
WORNOM, HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for
Appellee.




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THACKER, Circuit Judge:

               Facing claims in Virginia state court for failing to

warn of asbestos hazards in products manufactured for the Navy,

Foster     Wheeler       LLC     and    Foster        Wheeler     Energy         Corporation

(“Appellants”) removed the case pursuant to the federal officer

removal    statute      to     the    United       States    District       Court   for    the

Eastern District of Virginia.                      The district court remanded to

state court, citing longstanding precedent in the district that

denies    the       government       contractor      defense     in    failure      to    warn

cases.     Appellants timely appealed.                  For the reasons below, we

reverse.

                                              I.

               From 1969 to 1972 and from 1974 to the late 1970s,

Bernard    W.       Ripley   worked     as     a    boilermaker       at    Norfolk      Naval

Shipyard       in    Portsmouth,        Virginia.           He   was       diagnosed      with

malignant mesothelioma on February 24, 2014.                           On May 13, 2014,

he and his wife, Deborah Ripley (“Appellee”), filed suit in the

Newport News Circuit Court in Virginia, naming Appellants and

others    as    defendants.           The    complaint       alleges       Mr.   Ripley    was

exposed        to     asbestos         contained        in       products         Appellants




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manufactured for the Navy, and that Appellants are liable for

failure to warn of asbestos hazards. 1

                 On June 16, 2014, Appellants filed a Notice of Removal

in the United States District Court for the Eastern District of

Virginia.         Appellants asserted a government contractor defense,

arguing that the suit stemmed from Appellants’ contract with the

Navy        to   construct     boilers   and     related   equipment,       and   that

removal is thus proper pursuant to the federal officer removal

statute, 28 U.S.C. § 1442(a)(1).

                 On   August    6,    2015,      the    district    court     granted

Appellee’s motion to remand, following a decades-old practice in

the district that denies the government contractor defense in

failure to warn cases.               Because the defense did not apply, the

court       reasoned,   Appellants       could    not   establish   the     colorable

federal defense necessary to support federal officer removal,

thereby precluding federal subject matter jurisdiction.

                 On August 8, 2015, Appellant filed a Notice of Appeal,

urging this court to overturn the district court’s remand order. 2



        1
        Mr. Ripley died on November 14, 2014; the court
substituted Appellee as administratrix of Mr. Ripley’s estate on
March 18, 2015.
        2
       Of note, this issue only recently became appealable. In
2011, Congress amended 28 U.S.C. § 1447(d) to allow appeals from
remand orders pursuant to § 1442. See Removal Clarification Act
of 2011, Pub. L. No. 112–51, 125 Stat. 545, 546 (2011).



                                           4
                                        II.

            We     review    de    novo       issues     of     subject      matter

jurisdiction, including removal.                See Dixon v. Coburg Dairy,

Inc., 369 F.3d 811, 815–16 (4th Cir. 2004) (en banc) (quoting

Mayes v. Rapoport, 198 F.3d 457, 460 (4th Cir. 1999)).                      Denial

of the government contractor defense in failure to warn cases is

also an issue of law we review de novo.                 See Warfaa v. Ali, 811

F.3d 653, 658 (4th Cir. 2016).

                                     III.

            The federal officer removal statute allows a defendant

to remove a case from state to federal court if the defendant

establishes (1) it is a federal officer or a “person acting

under that officer,” 28 U.S.C. § 1442(a)(1); (2) a “colorable

federal defense”; and (3) the suit is “for a[n] act under color

of office,” which requires a causal nexus “between the charged

conduct and asserted official authority,” Jefferson Cty., Ala.

v. Acker, 527 U.S. 423, 431 (1999) (alteration and emphasis in

original)     (citation     and   internal       quotation      marks     omitted).

Section 1442 is thus an exception to the well-pleaded complaint

rule,     which,   absent    diversity,       prohibits       removal    unless   a

federal     question   appears     on     the    face    of     the     plaintiff’s

complaint.       See Jamison v. Wiley, 14 F.3d 222, 239 (4th Cir.

1994) (citing Mesa v. California, 489 U.S. 121, 136–37 (1989)).



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               The Supreme Court has recognized that “[o]ne of the

primary purposes” of federal officer removal is to provide a

federal forum for a federal defense.                 Willingham v. Morgan, 395

U.S. 402, 407 (1969).              Proof of a “colorable” federal defense

thus does not require the defendant to “win his case before he

can have it removed” nor even establish that the defense is

“clearly sustainable.”           Id.

               Here, Appellants sought removal pursuant to § 1442 by

asserting       the    government       contractor   defense     as   elucidated       in

Boyle v. United Technologies Corp., 487 U.S. 500 (1988).                               In

Boyle,    the     Supreme       Court    announced     that    design     defects      in

military equipment do not give rise to state-law tort claims if,

“(1)      the         United     States      approved         reasonably        precise

specifications;           (2)     the      equipment        conformed      to      those

specifications; and (3) the supplier warned the United States

about the dangers in the use of the equipment that were known to

the supplier but not to the United States.”                      487 U.S. at 512.

The defense only applies if a contractor’s obligations to the

government conflict with state law such that the contractor may

not comply with both.           See id. at 507–09.

               The rationales behind the defense are twofold.                    First,

given    the     complexities       of    military   decision     making        and   the

constitutional delegation of the war powers to the legislative

and     executive       branches,       separation     of    powers     suggests      the

                                            6
judiciary should hesitate to intervene in matters of military

procurement contracts.                  See Tozer v. LTV Corp., 792 F.2d 403,

405–07 (4th Cir. 1986).                 Second, as a practical matter, a higher

risk    of     liability      for       government       contractors      would       increase

costs     to     the    government          while        decreasing       the    supply     of

contractors and research and development in military equipment.

Id. at 407–08.

               We must therefore decide whether the Supreme Court’s

pronouncement          in     Boyle,       holding       the     government      contractor

defense      applicable        in       design    defect       cases,   likewise       shields

defendants against failure to warn claims and thus provides a

basis for federal jurisdiction pursuant to § 1442.

               In this case, given “the thousands of asbestos cases

that have preceded” it in the Eastern District of Virginia, the

district       court        “determined          that    the     government      contractor

defense is not available in failure to warn cases.”                               McCormick

v. C.E. Thurston & Sons, Inc., 977 F. Supp. 400, 403 (E.D. Va.

1997) (internal quotation marks omitted).

               However, the Eastern District of Virginia is clearly

an outlier in this regard.                 No other jurisdiction in the country

to   have      considered         the    issue    is    in     accord   with    the    Eastern

District       of   Virginia.             Indeed,        the    Second,    Fifth,      Sixth,

Seventh,       Ninth,       and    Eleventh       Circuits       have   all     applied    the

defense to failure to warn cases.                       See e.g., In re Joint E. & S.

                                                  7
Dist. N.Y. Asbestos Litig., 897 F.2d 626, 629–30 (2d Cir. 1990);

Perez v. Lockheed Corp. (In re Air Disaster at Ramstein Air

Base,    Germany,        on    8/29/90),          81    F.3d       570,     576    (5th    Cir.),

modified on other grounds, 88 F.3d 340 (5th Cir. 1996) (per

curium); Tate v. Boeing Helicopters (Tate II), 140 F.3d 654, 656

(6th Cir. 1998); Oliver v. Oshkosh Truck Corp., 96 F.3d 992,

1003–04 (7th Cir. 1996); Snell v. Bell Helicopter Textron, Inc.,

107    F.3d    744,     749–50      (9th     Cir.      1997);      Dorse     v.    Eagle-Picher

Indus.,       Inc.,     898    F.2d      1487,        1489    (11th       Cir.    1990).        And

although we have not yet had the opportunity to consider this

issue directly, we have recognized that these decisions of our

sister    circuits       are       “reasoned       soundly.”          Emory       v.    McDonnell

Douglas Corp., 148 F.3d 347, 350 (4th Cir. 1998) (collecting

cases).         Moreover,          the     multidistrict           litigation          court    for

asbestos       products       --    tasked      with     handling         thousands       of   such

claims -- has also applied the defense and allowed removal on

this    basis    in     failure       to    warn       cases.         See    e.g.,      Hagen   v.

Benjamin       Foster    Co.,      739     F.   Supp.        2d    770,     777–86     (E.D.    Pa.

2010).

               In addition to the multitude of authorities adopting

this     approach,       the       rationales          identified          in     Boyle    remain

applicable       in   failure       to     warn       cases.        Just     as   decisions      on

military equipment design involve complex cost-benefit analyses

in     which    lay     juries       and     judges          are   not      versed,       military

                                                  8
procurement      contracts        and   specifications          involve     manifold

warning   and    labeling      requirements       inapplicable    to     nonmilitary

equipment.      Cf. Tozer, 792 F.2d at 405–07 (applying government

contractor      defense      in   design     defect    case).         Moreover,    the

constitutional separation of the judiciary from military matters

carries no less force with respect to the design of military

equipment than it does with respect to the warnings accompanying

such equipment.         Further, whether the risk of liability flows

from design defect or failure to warn, the effect remains the

same: government contractors willing to take such a risk will

pass the increased cost to the government and will invest less

in research and development.            Cf. id. at 407–08.

              Given    the    weight    of       opposing    precedent     and     the

rationales supporting the defense, we now join the chorus and

hold   that    the    government    contractor        defense    is    available    in

failure to warn cases.            Having established this, we leave it to

the district court to decide whether Appellants have presented

sufficient proof to warrant removal pursuant to § 1442.

                                           IV.

              For the foregoing reasons, we reverse and remand for

further proceedings.

                                                            REVERSED AND REMANDED




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