                                                                                                                           Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-24-1998

Feidt v. Owens Corning
Precedential or Non-Precedential:

Docket 97-5177




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Recommended Citation
"Feidt v. Owens Corning" (1998). 1998 Decisions. Paper 200.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/200


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Filed August 24, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-5177

GERALD E. FEIDT, JR.; ARLENE FEIDT, his wife

v.

OWENS CORNING FIBERGLAS CORPORATION; ABEX
CORPORATION; ACANDS, INC.; ALLIEDSIGNAL, INC.;
AMCHEM PRODUCTS, INC.; ANCHOR PACKING
COMPANY; A.P. GREEN INDUSTRIES, INC.; ARMSTRONG
WORLD INDUSTRIES, INC.; BABCOCK & WILCOX
COMPANY; COMBUSTION ENGINEERING, INC.;
FLEXITALLIC GASKET COMPANY; FLINTKOTE COMPANY;
FOSTER WHEELER CORPORATION; GAF CORPORATION,
in itself and successor to RUBEROID CORPORATION;
GARLOCK, INC.; GENERAL ELECTRIC CORPORATION;
INGERSOLL-RAND COMPANY; LEAR SIEGLER
DIVERSIFIED HOLDINGS CORPORATION; PITTSBURGH
CORNING CORPORATION, in itself and as successor to
UNARCO; PPG INDUSTRIES, INC., as alter ego and/or
successor to PITTSBURGH CORNING CORPORATION;
RAPID AMERICAN CORPORATION, in itself and as
successor to PHILIP CAREY MANUFACTURING COMPANY;
TURNER & NEWALL, LTD; UNIROYAL, INC.; CBS
CORPORATION; WESTINGHOUSE ELECTRIC SUPPLY
CORPORATION; WORTHINGTON PUMP CORPORATION;
JOHN CORPORATIONS, (1-50)

       *CBS Corporation,

       Appellant
       *Pursuant to Rule 43(b),
       F.R.A.P.

On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 96-4349)
Argued August 3, 1998

BEFORE: GREENBERG, SCIRICA, and NYGAARD,
Circuit Judges

(Filed August 24, 1998)

       Thomas F. Marshall
       Law Office of Thomas F. Marshall
       100 High Street
       The Washington House
       Mount Holly, NJ 08060

       David P. Callet (argued)
       Cindy M. Bryton
       Akin, Gump, Strauss, Hauer & Feld
       1333 New Hampshire Avenue, N.W.
       Washington, DC 20036

        Attorneys for Appellant

       Joshua M. Spielberg (argued)
       Franklin P. Solomon
       Tomar Simonoff Adourian O'Brien
       Kaplan Jacoby & Graziano
       20 South Brace Road
       Cherry Hill, NJ 08034

        Attorneys for Appellees,
        Gerald E. Feidt, Jr. and
        Arlene Feidt

       Bruce S. Haines
       Hangley, Aronchick, Segal & Pudlin
       One Logan Square
       12th Floor
       Philadelphia, PA 19103

        Attorneys for Appellee,
        Uniroyal, Inc.

                                  2
       David B. Siegel
       Robert L. Willmore
       Karen D. Burke
       Crowell & Moring
       1001 Pennsylvania Avenue, N.W.
       Washington, DC 20004-2505

        Attorneys for amicus
        curiae E.I. duPont de
        Nemours and Company
        in support of appellant

OPINION OF THE COURT

GREENBERG, Circuit Judge.

I. INTRODUCTION

Appellant CBS Corporation, which during the time
relevant to this appeal was known as Westinghouse Electric
Corporation ("Westinghouse"), appeals from the district
court order entered January 10, 1997, remanding this
matter to state court.1 According to Westinghouse, the
district court erred in remanding the case because its
petition properly invoked removal jurisdiction under 28
U.S.C. S 1442(a)(1). Inasmuch as 28 U.S.C. S 1447(d) bars
our exercise of appellate jurisdiction over the remand order,
we will dismiss this appeal.

The germane facts and procedural history are as follows.
Gerald Feidt and his wife, Arlene Feidt, filed this products
liability suit against various defendants including
Westinghouse in the Superior Court of New Jersey, Camden
County, on July 9, 1996. Feidt alleged that, while working
aboard the U.S.S. Enterprise at the Newport News Ship
Building and Dry Dock Company, he was exposed to
asbestos products including insulation on turbines
_________________________________________________________________

1. On March 16, 1998, the clerk of this court granted CBS's motion to
change the caption so that it, rather than Westinghouse, is the
appellant. Nevertheless, as a matter of convenience, we will refer to
Westinghouse as the appellant.

                                  3
manufactured by Westinghouse. The complaint asserted
that Feidt's exposure to asbestos caused him to suffer from
malignant mesothelioma, a fatal cancer of the lining of the
lung. Feidt died from this condition during the pendency of
this action.

On September 13, 1996, Westinghouse removed this
action to the United States District Court for the District of
New Jersey pursuant to section 1442(a)(1), which is
commonly referred to as the federal officer removal statute.
Subsequently, Feidt filed a motion to remand in the district
court. The court granted the motion, filing a letter opinion
and order (1) remanding the case to state court; and (2)
certifying the issue for an interlocutory appeal pursuant to
28 U.S.C. S 1292(b). In its opinion, the district court
construed the complaint against Westinghouse as being
based solely on its failure to warn persons exposed to its
product of the dangers of exposure to asbestos. The district
court stayed the remand and all other proceedings until the
first of the following events: all the parties failed to apply
within ten days to this court to entertain the appeal; this
court adjudicated or refused to entertain the appeal; or a
party showed good cause for the vacation of the stay.

Westinghouse then filed a timely petition for permission
to appeal the remand order which we granted on March 26,
1997. Westinghouse acknowledges that section 1447(d)
bars this court from reviewing the district court's order to
the extent it remands Feidt's claims against Westinghouse
which allege a failure to warn. Br. at 7 n.3. However,
Westinghouse argues that Feidt asserted design defect,
manufacturing defect, and breach of warranty claims,
based not only on Westinghouse's failure to warn but also
on other conduct. Westinghouse contends that Feidt's
assertion of these non-failure to warn claims, which it
argues that the district court ignored, made this case
removable under section 1442(a)(1). It reasons that the
district court, by ignoring these claims, failed to discharge
its duty to consider all bases for the exercise of jurisdiction
under section 1442(a)(1), thus rendering the jurisdictional
bar in section 1447(d) inapplicable.

                               4
II. DISCUSSION

Except for civil rights cases removed pursuant to 28
U.S.C. S 1443, section 1447(d) provides that "[a]n order
remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise."
Although this bar to the reviewability of remand orders
appears broad and unyielding, the courts have carved
various exceptions from it and therefore will review certain
remand orders.

Most notably, 28 U.S.C. S 1447(c) limits the jurisdictional
bar of section 1447(d) so that only those "remand orders
issued under S 1447(c) and invoking the grounds specified
therein . . . are immune from review under S 1447(d)."
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 346,
96 S.Ct. 584, 590 (1976), abrogated on other grounds,
(1996); see also Gravitt v. Southwestern Bell Tel. Co., 430
U.S. 723, 97 S.Ct. 1439 (1977). Section 1447(c) provides for
remand on the basis of either a procedural defect or lack of
jurisdiction; thus, section 1447(d) prohibits review of
remand orders based on the district court's finding of either
of those conditions. Moreover, section 1447(d) prohibits
review of remand orders "whether erroneous or not and
whether review is sought by appeal or by extraordinary
writ." Thermtron, 423 U.S. at 343, 96 S.Ct. at 589.

Accordingly, we repeatedly have held that section 1447(d)
bars review of remand orders based upon the types of
subject matter jurisdictional issues which district courts
routinely make under section 1447(c). See Liberty Mut. Ins.
Co. v. Ward Trucking Corp., 48 F.3d 742, 749 (3d Cir.
1995); Carr v. American Red Cross, 17 F.3d 671, 682 (3d
Cir. 1994); Aliota v. Graham, 984 F.2d 1350, 1357 (3d Cir.
1993); In re TMI Litig. Cases Cons. II, 940 F.2d 832, 844 (3d
Cir. 1991); see also Hudson United Bank v. Litenda
Mortgage Corp., 142 F.3d 151, 155 (3d Cir. 1998). Thus, in
In re TMI, we noted "that the subject matter jurisdictional
inquiry contemplated by section 1447(c) is limited to the
question of whether Congress intended that the types of
actions at issue be subject to removal." In re TMI, 940 F.2d
at 846.

We conclude that the district court made such a
determination and therefore remanded the case because it

                               5
found that a basic element of removal jurisdiction was
lacking. Consequently, section 1447(d) precludes our review
of the remand order.

As we have indicated, Westinghouse removed this case
pursuant to section 1442(a)(1), the federal officer removal
statute, which permits a federal officer, or person acting
under such an officer, to remove to federal court any action
brought against him in state court for conduct performed
under federal direction. To establish removal jurisdiction
under section 1442(a)(1), a defendant such as
Westinghouse must establish that (1) it is a "person" within
the meaning of the statute; (2) the plaintiff 's claims are
based upon the defendant's conduct "acting under" a
federal office; (3) it raises a colorable federal defense; and
(4) there is a causal nexus between the claims and the
conduct performed under color of a federal office. See Mesa
v. California, 489 U.S. 121, 129, 109 S.Ct. 959, 965 (1989);
Willingham v. Morgan, 395 U.S. 402, 409, 89 S.Ct. 1813,
1817 (1969).

The district court held that

       [a] fair reading of the Complaint and the activities of
       Westinghouse alleged on the record generated before
       this Court demonstrates that plaintiffs' claims against
       Westinghouse are predicated solely upon the
       defendant's failure to warn persons such as the plaintiff
       . . . of the dangers of contact with asbestos-laden
       thermal insulation used with the turbines which
       Westinghouse manufactured. While different claims on
       different bases are asserted against other defendants,
       this is the sole potentially viable claim against
       Westinghouse.

Slip op. at 3 (emphasis added). Based upon this
construction of the complaint and its understanding of the
record, the district court analyzed the requirements of the
federal officer removal statute with reference only to claims
against Westinghouse based upon its alleged failure to
warn.

The district court found that Westinghouse was acting
under the direction, control and supervision of an officer of
the United States and presented a colorable claim to the

                               6
government contractor defense. However, the district court
found that removal was inappropriate because
Westinghouse failed to establish the necessary causal
connection between the conduct upon which Feidt's claim
of state law liability was based -- the failure to warn -- and
the conduct Westinghouse allegedly performed under
federal direction -- its federal military contract obligations.
In particular, the district court held that Westinghouse did
not present evidence that the Navy prohibited it from
issuing warnings with respect to the use of asbestos
insulation.

After finding that Westinghouse's removal petition did not
establish the requisite causal connection for federal officer
removal jurisdiction, the district court approved the policy
analysis in Good v. Armstrong World Indus., Inc., 914 F.
Supp. 1125, 1131 (E.D. Pa. 1996). In particular, the district
court quoted the section of Good in which the court found
that the litigation in federal court of the government
contractor defense would not further the purposes
underlying the federal officer removal statute, namely the
threat to the enforcement of the implementation of a federal
policy and the concern for state court manipulation of
federal defenses. See Good, 914 F. Supp. at 1131. The
district court found that this conclusion was valid in this
case and further supported its remand determination.

Westinghouse makes two arguments that the district
court did not base its remand order upon one of the two
grounds enumerated in section 1447(c), and that therefore
section 1447(d) does not prohibit our review. First,
Westinghouse contends that the district court did not base
its remand order upon a routine jurisdictional decision
issued under section 1447(c) because the court "ignored"
the design defect, manufacturing defect, and breach of
warranty claims in Feidt's complaint which were based on
conduct other than the failure to warn. Westinghouse
therefore concludes that the district court did not make a
jurisdictional determination with respect to Westinghouse's
non-failure to warn claims. Second, Westinghouse contends
that the district court remanded the case for policy rather
than jurisdictional reasons.

                               7
Section 1447(d), in prohibiting review of remand orders,
contemplates that district courts may err in remanding
cases. See Thermtron, 423 U.S. at 342, 96 S.Ct. at 589;
Liberty Mutual, 48 F.3d at 750. Indeed, "[n]o matter how
faulty we might consider the district court's reasoning or
methods, section 1447(d) prohibits us from reviewing an
action the district court was empowered to take, and one
that Congress intended to be final." Liberty Mutual, 48 F.3d
at 750-51.2 The district court's authority, indeed obligation,
to determine whether a removal petition properly invokes
its removal jurisdiction necessarily includes the authority to
construe the complaint upon which the court makes its
determination. Upon review of the district court decision,
we find that the district court made a good-faith
construction of the complaint and examination of the
record and then concluded that it lacked subject matter
jurisdiction. See Archuleta v. Lacuesta, 131 F.3d 1359,
1363 (10th Cir. 1997) (reviewing district court's remand
order to determine actual grounds for remand rather than
accepting the court's reference to section 1447(c) or
assertion of subject matter jurisdiction as rationale).

Westinghouse's argument that the court disregarded
some of Feidt's claims cannot change our result, as it was
the court's duty to construe the complaint to ascertain the
nature of Feidt's claims and clearly it did exactly that. At
worst, the court made a mistake. This case certainly does
not involve a situation in which the district court recited
that it was remanding the case for lack of jurisdiction when
its motive was otherwise. Therefore, we find that the district
court's decision is a routine jurisdictional determination
under section 1447(c), which section 1447(d) precludes us
from reviewing. Because section 1447(d) contemplates that
a district court may err in making a nonreviewable
jurisdictional determination, we render no opinion
regarding the proper construction of the complaint.3
_________________________________________________________________

2. It would be bizarre to hold that a court of appeals could review a
remand order only if erroneous, as in that circumstance the
jurisdictional determination would be a merits determination.

3. Although we render no opinion regarding the accuracy of the district
court's construction of the complaint, we note that Feidt has represented

                               8
We now turn to Westinghouse's second argument,
namely, that because the district court based its remand
order upon policy considerations, the court did not issue its
remand order pursuant to section 1447(c) and, therefore,
section 1447(d) does not bar this appeal. It is clear that
policy considerations such as an overcrowded docket and
judicial economy are not valid bases for remand under
section 1447(c). See Thermtron, 423 U.S. at 345-46, 96
S.Ct. at 590; see also Quackenbush, 517 U.S. at 712, 116
S.Ct. at 1718 (holding that a remand order based upon
abstention principles is not barred from appellate review by
section 1447(d) because an "abstention-based remand order
does not fall into either category of remand order described
in S 1447(c)"); Archuleta, 131 F.3d at 1363 (noting that
policy considerations such as judicial economy and the
plaintiff 's choice of forum are not in themselves valid bases
for remand under section 1447(c)); see also Ryan v. State
Bd. of Elections, 661 F.2d 1130, 1133 (7th Cir. 1981)
(noting that a properly removed case may not be remanded
for discretionary reasons under section 1447(c)); Elrad v.
United Life & Accident Ins. Co., 624 F. Supp. 742, 743-44
(N.D. Ill. 1985) (citing Thermtron as holding that the district
court may not remand for discretionary or policy reasons).
However, the district court's mere mention of such
considerations in the course of its discussion of its lack of
jurisdiction does not automatically render the remand order
appealable where the policy rationale is not the sole reason
for remand. See Archuleta, 131 F.3d at 1363.

As we discussed above, after finding that Westinghouse's
_________________________________________________________________

to this court and the district court that the gravamen of his complaint
against Westinghouse is a liability claim based upon Westinghouse's
failure to warn. Nevertheless, the district court did not base its
jurisdictional conclusions on an attempt by Feidt to narrow his
complaint. See Angus v. Shiley Inc., 989 F.2d 142, 145 (3d Cir. 1993). In
any event, if Feidt asserts in state court that liability should be
imposed
against Westinghouse based upon conduct other than its failure to warn,
our opinion should not be understood to preclude Westinghouse from
filing a second notice of removal pursuant to 28 U.S.C. S 1446(b). At that
time, Westinghouse would have the opportunity to present its arguments
regarding removal jurisdiction with respect to those claims.

                               9
removal petition did not establish the requisite causal
connection, the district court noted that removal in this
case did not further the policies and purposes of section
1442(a)(1). This policy discussion was not necessary
because, after finding that Westinghouse's removal petition
failed to establish the causal nexus required under section
1442(a)(1), the district court was obligated to remand the
case for lack of jurisdiction under section 1447(c). The
discussion of the underlying policies therefore was not
determinative, and this case is distinguishable from
Thermtron, in which the district court remanded the case
solely because of its overcrowded docket.4

Finally, we reject Westinghouse's suggestion that,
because the district court certified the district court
jurisdictional issue pursuant to 28 U.S.C. S 1292(b), and we
granted leave to appeal, the analysis of the effect of section
1447(d) somehow should be different from an analysis
made in an appeal under 28 U.S.C. S 1291. The district
court certified the ultimate jurisdictional issue involved in
this case: "Was the present action removable by the
defendant Westinghouse pursuant to 28 U.S.C.
S 1442(a)(1)?" Thereafter, we granted Westinghouse's
petition for permission to appeal.

Westinghouse cites no case law to support a holding that
the bar of section 1447(d) does not apply where a district
court certifies the order pursuant to 28 U.S.C. S 1292(b)
and a court of appeals grants leave to appeal. In fact, there
is much authority that the certification of such an issue is
inappropriate and does not circumvent the section 1447(d)
jurisdictional bar. See In re TMI, 940 F.2d at 846
(suggesting in dicta that review under section 1292(b)
would not be available);5 Krangel v. General Dynamics
_________________________________________________________________

4. However, we recognize that a policy analysis is sometimes part of
statutory interpretation. In the circumstances, we have no need to
consider whether the policy discussion really was nothing more than an
explication of the meaning of section 1442(a)(1) and thus could be
regarded as part of the jurisdictional analysis.

5. In In re TMI, after the district court certified an issue for appeal
under
section 1292(b), we granted leave to appeal. See In re TMI, 940 F.2d at
836. However, In re TMI is distinguishable from this appeal and does not

                               10
Corp., 968 F.2d 914, 916 (9th Cir. 1992) (holding that
section 1447(d) precluded it from granting a section 1292(b)
petition for permission to appeal); Ray v. American Nat'l
Red Cross, 921 F.2d 324, 326 (D.C. Cir. 1990) (same); In re
Bear River Drainage Dist., 267 F.2d 849, 851 (10th Cir.
1959) (holding that section 1292(b) does not apply to allow
an appeal otherwise precluded by section 1447(d)); In re
Rosenthal-Block China Corp., 278 F.2d 713, 714 (2d Cir.
1960) (citing In re Bear River with approval).

Moreover,

       a statute dealing with a narrow, precise, and specific
       subject is not submerged by a later enacted statute
_________________________________________________________________

alter our conclusion that certification and permission to appeal under
section 1292(b) does not circumvent the jurisdictional bar of section
1447(d).

In In re TMI, the plaintiffs instituted suits in state court which became
subject to the Price-Anderson Amendments Act, 42 U.S.C. S 2011 et seq.,
which created an express federal claim for nuclear accidents. See id. at
835. Such claims were subject to removal pursuant to 28 U.S.C.
S 2210(n)(2), and the defendants thereby removed the case to federal
court. See id. at 835, 837. The In re TMI district court found that the
Act
was unconstitutional, and therefore the court did not have subject
matter jurisdiction over the claim. See id. at 837-38. Thus, the district
court remanded the case to the state court. See id. at 838. The district
court then certified the issue of whether the Act was unconstitutional for
immediate appeal to this court pursuant to section 1292(b). See id. In
that case, we held that the district court's remand order was reviewable
because the district court's decision was not a routine jurisdictional
inquiry into the satisfaction of the removal requirements. See id. at 844.

Here, the district court certified the question of whether Westinghouse
had satisfied the jurisdictional requirements of the federal removal
statute. Thus, the certification and permission for appeal under section
1292(b) in this case concerns the very issue which Congress has
precluded a court of appeals from reviewing -- whether a district court
erred in finding that a defendant did not satisfy the elements for removal
under the applicable statute. Thus, where section 1447(d) would
preclude this court from reviewing the remand question concerned,
certification and permission to appeal under section 1292(b) are
improper. This result is consistent with In re TMI where section 1447(d)
did not bar appellate jurisdiction over the issue certified.

                               11
       covering a more generalized spectrum. `Where there is
       no clear intention otherwise, a specific statute will not
       be controlled or nullified by a general one, regardless of
       the priority of enactment.'

Rodzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96
S.Ct. 1989, 1992 (1976) (quoting Morton v. Mancari, 417
U.S. 535, 550-51, 94 S.Ct. 2474, 2483 (1974)); see also In
re Guardianship of Penn, 15 F.3d 292, 296 (3d Cir. 1994).
Section 1447(d) prohibits review of a particular type of
district court order, namely a remand order under section
1447(c), whereas section 1292(b) is a more general grant of
appellate jurisdiction. Thus, the jurisdictional bar of section
1447(d) trumps the power to grant leave to appeal in
section 1292(b).

Finally, we point out that our Internal Operating
Procedures provide that while a motions panel "may grant
a motion to dismiss an appeal" for lack of jurisdiction, if a
motions panel does not grant such a motion it refers the
motion "without decision and without prejudice" to the
merits panel. See I.O.P. 10.3.5. By a parity of reasoning, an
order of a motions panel granting leave to appeal should
not bar a merits panel from examining this court's
jurisdiction.

III. CONCLUSION

For the foregoing reasons, we dismiss this appeal for lack
of jurisdiction.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                               12
