NOT FOR PUBLICATION FILED

OCT 3 2024

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERTO ELORREAGA; ROSEMARY No. 23-16041

ELORREAGA,

D.C. No. 4:21-cv-05696-HSG Plaintiffs-Appellees,

v. MEMORANDUM*

VIACOMCBS INC.,

Defendant-Appellant, ______________________________

AIR & LIQUID SYSTEMS

CORPORATION; WARREN PUMPS,

LLC,

Intervenors.

Appeal from the United States District Court for the Northern District of California Haywood S. Gilliam, Jr., District Judge, Presiding

Argued and Submitted September 11, 2024 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BYBEE and MENDOZA, Circuit Judges, and M. FITZGERALD,** District Judge.

Roberto Elorreaga served in the United States Navy aboard the USS

Rupertus during the 1950s and 1960s as a machinist mate apprentice and the USS

Cowell during the 1960s as a fireman’s apprentice and an electrician’s mate.

Elorreaga sued several parties, including Defendant-Appellant ViacomCBS and

Intervenors Air & Liquid Systems and Warren Pumps, for allegedly manufacturing

or supplying the Navy with asbestos-containing equipment that caused him to

develop malignant pleural mesothelioma. After Elorreaga passed away in October

2021, his wife and sons continued to pursue this case. The district court granted

partial summary judgment to Plaintiff-Appellees, finding that Defendant-Appellant

and Intervenors were not entitled to a government contractor defense against

Plaintiff-Appellees’ federal maritime claims. In the same order, the district court

denied Defendant-Appellant’s and Intervenors’ motions for summary judgment on

the same issue. However, the district court certified its order for interlocutory

review by this Court pursuant to 28 U.S.C. § 1292(b). The question before us is

whether a government contractor defense applies to Plaintiff-Appellees’ federal

** The Honorable Michael W. Fitzgerald, United States District Judge for the Central District of California, sitting by designation.

2 maritime claims. We assume familiarity with the facts and applicable law and

“review de novo a district court’s grant or denial of summary judgment.” Nw.

Env’t Advocs. v. Nat’l Marine Fisheries Serv., 460 F.3d 1125, 1132 (9th Cir. 2006).

We have jurisdiction under 28 U.S.C. § 1292(b), and we reverse and remand.

The district court centered its analysis of the government contractor defense

on Boyle v. United Techs., 487 U.S. 500 (1988), which describes the proper “scope

of displacement” of state-law “[l]iability for design defects in military equipment”

by federal law. 487 U.S. at 512. But Boyle is a preemption case, and it is

inapplicable to Plaintiff-Appellees’ federal maritime claims. See id. at 504 (noting

that “a few areas, involving ‘uniquely federal interests’ . . . are so committed by the

Constitution and laws of the United States to federal control that state law is pre-

empted and replaced, where necessary . . . [by] so-called ‘federal common law.’”)

(internal quotations omitted). Boyle does not provide the proper standard for

government contractor immunity in this case.

However, Defendant-Appellant and Intervenors may assert a government

contractor defense under Yearsley v. W.A. Ross Const. Co., 309 U.S. 18 (1940).1

1 The district court found that “Defendants [did] not raise a Yearsley defense in this case[.]” Elorreaga v. Rockwell Automation, Inc., 666 F. Supp. 3d 1032, 1038 n.1 (N.D. Cal. Mar. 31, 2023). But Defendant-Appellant cited to Yearsley in both its affirmative motion for summary judgment and in its opposition to Plaintiffs’ motion for partial summary judgment. And the district court’s certified 3 Yearsley held that, if the “authority to carry out [a] project was validly conferred,

that is, if what was done was within the constitutional power of Congress, there is

no liability on the part of the contractor for executing its will.” Id. at 20–21. The

Supreme Court later confirmed that Yearsley may provide a federal government

contractor with immunity against a federal law claim. See Campbell-Ewald Co. v.

Gomez, 577 U.S. 153, 167 n.7 (2016). And we have recognized that Yearsley

immunity applies to federal maritime claims. See McKay v. Rockwell Intern.

Corp., 704 F.2d 444, 447 n.1, 448 (9th Cir. 1983) (noting that the “government

contractor defense” was “first articulated by the Supreme Court in Yearsley,” and

applied in a case where “the relevant law is the same under general maritime law

as under the Death on the High Seas Act”); see also Koohi v. United States, 976

F.2d 1328, 1336–37 (9th Cir. 1992) (finding that the government contractor

defense precluded certain Public Vessels Act claims brought against weapons

manufacturers). Consequently, the district court erred by failing to consider how

Yearsley applied to Plaintiff-Appellees’ claims.

order granting Plaintiffs’ motion for partial summary judgment effectively precludes Defendants from asserting any government contractor defense, including one based on Yearsley. See id. at 1046 (“[T]he Court . . . GRANTS Plaintiffs’ motion for summary judgment as to the government contractor defense.”). 4 We reverse the district court’s grant of partial summary judgment to

Plaintiff-Appellees, and we reverse its denial of summary judgment to Defendant-

Appellant and Intervenors. We remand for the district court to consider whether

the government contractor defense applies in this case.

REVERSED AND REMANDED.

5