Charles B. Brinkman; Louise K. Brinkman v. General Dynamics Corporation; Electric Boat Corporation

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1752
CHARLES B. BRINKMAN; LOUISE K. BRINKMAN,
Plaintiffs – Appellees,
v.
GENERAL DYNAMICS CORPORATION; ELECTRIC BOAT CORPORATION,
Defendants – Appellants,
and
JOHN CRANE INCORPORATED; J. HENRY HOLLAND CORPORATION;
METROPOLITAN LIFE INSURANCE COMPANY; WACO, INCORPORATED;
UNION CARBIDE CORPORATION; NOLAND COMPANY; CLEAVER-BROOKS
COMPANY, a division of Aqua-Chem, Inc.; AURORA PUMP, CO;
AIR & LIQUID SYSTEMS CORPORATION, successor by merger to
Buffalo Pumps, Inc.; IMO INDUSTRIES, INCORPORATED; GOULDS
PUMPS, INCORPORATED; INGERSOLL-RAND COMPANY; NASH
ENGINEERING COMPANY; WARREN PUMPS, INCORPORATED; CRANE
COMPANY; GRINNELL CORPORATION; J.R. CLARKSON COMPANY,
individually and as successor by mergers to Kunkle
Industries, Inc.; VELAN VALVE CORP.; TRANE U.S. INC.,
formerly known as American Standard, Inc.,
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-00142-AWA-LRL)
Submitted: November 3, 2016 Decided: December 21, 2016
Before TRAXLER, KEENAN, and WYNN, Circuit Judges.

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Vacated and remanded by unpublished per curiam opinion.
Melissa A. Murphy-Petros, WILSON ELSER MOSKOWITZ EDELMAN &
DICKER LLP, Chicago, Illinois, for Appellants. William W.C.
Harty, Robert R. Hatten, Hugh B. McCormick, III, PATTEN, WORNOM,
HATTEN & DIAMONSTEIN, L.C., Newport News, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Plaintiffs Charles Brinkman (“Brinkman”) and Louise
Brinkman filed suit in Circuit Court for the City of Newport
News, Virginia, asserting state law claims against several
defendants. The suit alleged that Brinkman developed
mesothelioma as a result of exposure to asbestos in 1966 and
1967 while serving in the United States Navy on a nuclear
submarine. It is undisputed that defendants General Dynamics
Corporation and Electric Boat Corporation (“Appellants”)
constructed the submarine pursuant to a contract with the Navy.
General Dynamics timely filed a notice of removal in the
United States District Court for the Eastern District of
Virginia pursuant to the federal officer removal statute, 28
U.S.C. § 1442(a)(1). General Dynamics asserted that multiple
colorable federal defenses supported its removal, including
government contractor immunity under Boyle v. United
Technologies Corp., 487 U.S. 500 (1988). Electric Boat joined
the notice of removal.
The district court subsequently granted a motion to remand
filed by the Brinkmans, concluding that Appellants had failed to
allege facts asserting a “colorable federal defense” to the
state law claims asserted against them. Regarding the
government contractor defense, the district court followed “a
decades-old practice in the [Eastern District of Virginia] that

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denies the government contractor defense in failure to warn
cases.” Ripley v. Foster Wheeler LLC, ___ F.3d ___, 2016 WL
6441049, at *1 (Nov. 1, 2016). However, after the district
court issued its decision, we decided for the first time “that
the government contractor defense is available in failure to
warn cases.” Id. at *3 (emphasis added). In light of this
recent holding, we vacate the district court’s order and remand
for further proceedings. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
VACATED AND REMANDED

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