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.
2

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.
3

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 
4

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).
5

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)). 
6

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 
7

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. 
8

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 
9

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