On Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil Action No. 85-4846.
Greenberg, Scirica and Hunter, Circuit Judges.
This appeal presents three issues concerning the liability of the United States as a third party for asbestos-related injuries suffered by government shipyard workers. Specifically, we must address: (1) whether the United States is subject to third-party liability under the Longshore and Harbor Workers Compensation Act (LHWCA), 33 U.S.C. § 905(b) (1982); (2) if, in order to sue under § 905(b), a party must also satisfy the requirements for admiralty jurisdiction, see Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972); and (3) in the alternative, whether admiralty jurisdiction can provide an independent basis for subject matter jurisdiction, i.e., did the underlying wrong bear a significant relationship to traditional maritime activity. See id. at 268.
As is often the case when complex issues are presented for appellate review, we benefit from the efforts of other courts that have decided similar cases. Our task is simplified when we are able to draw on another jurist's thorough analysis, and when the process itself is used to examine and refine the dispositive legal issues. These principles are especially applicable here, where the district judge carefully adjudicated a plethora of issues concerning the liability of the United States to asbestos manufacturers sued by government shipyard workers.
Our inquiry requires examination of two decisions of the district court: Eagle-Picher Indus., Inc. v. United States, 657 F. Supp. 803 (E.D.Pa. 1987), the subject of this action, and Colombo v. Johns-Manville Corp., 601 F. Supp. 1119 (E.D.Pa. 1984), which formed the basis for the decision in Eagle-Picher. In Eagle-Picher, the court denied the United States' motion to dismiss Eagle-Picher's, the asbestos manufacturer, suit for contribution. The court held: (1) it had jurisdiction under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674 (1982), which would permit Eagle-Picher to maintain a third-party action for contribution against the United States under § 905(b) of the LHWCA; and (2) under the LHWCA, Eagle-Picher need not satisfy the general admiralty jurisdiction requirement that the underlying wrong had a significant relationship (i.e., a nexus) to a traditional maritime activity. Executive Jet Aviation v. City of Cleveland, 409 U.S. at 268. By declining to apply admiralty principles to an LHWCA claim, the court concluded that Eagle-Picher stated a claim under the LHWCA by demonstrating that the injured worker was engaged in maritime employment pursuant to 33 U.S.C. § 902(3). See Eagle-Picher, 657 F. Supp. at 805-06, 811-14.
The district court's decision rested on a controlling question of law and because immediate appeal would "materially advance the ultimate termination of the litigation," id. at 814 (quoting 28 U.S.C. § 1292(b)), the court certified an interlocutory appeal. We granted the United States permission to appeal the following questions:
1. Whether the limitation on the liability of the United States contained in the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8116(c), precludes the assertion by Eagle-Picher of its claim against the United States for contribution/indemnity, given that the Eagle-Picher claim arises under 28 U.S.C § 2674 which provides that "the United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances. . . ."
2. Whether (assuming Eagle-Picher's claim is not foreclosed by the answer to question 1) Eagle-Picher, in order to support its claim, must, in addition to establishing that Mr. Press was injured on navigable waters while "engaged in maritime employment," 33 U.S.C. § 902(3), make an independent showing that the wrong which befell Mr. Press bore "a significant relationship to traditional maritime activity." Executive Jet Aviation v. City of Cleveland, 409 U.S. 249, 268, 34 L. Ed. 2d 454, 93 S. Ct. 493 (1972).
Although our scope of review is generally governed by the legal questions in the district court's certification order, we may "consider all grounds that might require reversal of the order appealed from." In re Data Access Systems Securities Litigation, 843 F.2d 1537, 1539 (3d Cir. 1988) (en banc) (citing Merican, Inc., v. Caterpillar Tractor Co., 713 F.2d 958, 962 n.7 (3d Cir. 1983), cert. denied, 465 U.S. 1024, 79 L. Ed. 2d 682, 104 S. Ct. 1278 (1984); Akerly v. Red Barn Sys., Inc., 551 F.2d 539, 543 (3d Cir. 1977)); see also Simon v. G.D. Searle & Co., 816 F.2d 397, 400 (8th Cir.), cert. denied, 484 U.S. 917, 108 S. Ct. 268, 98 L. Ed. 2d 225 (1987). With respect to the first question, we conclude that Eagle-Picher cannot assert its claim against the United States, and we will reverse the judgment of the district court. The primary basis for our holding, however, is a rationale other than that suggested by the district court in its certification order. Although we agree with the government that the United States' FECA immunity from suit is a significant circumstance that must be considered under the FTCA,*fn1 we hold that § 903(b)'s express exclusion of federal employees from the coverage of the LHWCA bars a direct LHWCA action by a federal employee against the government. As a result, the § 903(b) exclusion also bars Eagle-Picher's ensuing third-party action for contribution/indemnity.
By holding that Eagle-Picher's claim is foreclosed by our resolution of the first certified question, we obviate the need to decide the second question whether a § 905(b) cause of action must also satisfy the requirements for admiralty jurisdiction.*fn2 Eagle-Picher, however, suggests that regardless of the LHWCA's applicability, the district court could have exercised admiralty jurisdiction over this dispute.*fn3 Under admiralty jurisdiction, the underlying injury must bear "a significant relationship to traditional maritime activity," i.e., have a nexus to maritime activity. See Executive Jet, 409 U.S. at 268. We conclude, as has every court of appeals to address the issue, that injured shipyard asbestos workers fail to satisfy the Executive Jet nexus test.
The parties agree on the basic facts. Between 1941 and 1979 Charles Press was employed by the United States Navy as a sheetmetal worker at the Philadelphia Naval Shipyard. During that time, Press was exposed to asbestos-based insulation products manufactured by Eagle-Picher and other firms. In 1979, Press and his wife filed suit in the Philadelphia Court of Common Pleas seeking damages from Eagle-Picher and twenty-one other manufacturers/distributors for injuries resulting from asbestos exposure. Press died in 1983 of asbestos-related injuries, and his wife pursued the 1979 suit. In 1984, she ...