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Legendre v. Huntington Ingalls Inc.

United States District Court, E.D. Louisiana

July 6, 2017


         SECTION I



         Arguing that this Court's remand order was “patently erroneous, ” R. Doc. No. 30-1, at 7, because it “irreconcilably conflicts with express holdings by the Fifth Circuit, ” R. Doc. No. 30-1, at 5, and “disregard[ed]” statutory language, R. Doc. No. 30-1, at 6, Huntington Ingalls (“Avondale”) moves[1] to stay this Court's remand order. Because a remand is presently likely regardless of however the Fifth Circuit rules, the Court denies the motion to stay.


         This Court considers four factors when deciding whether to grant a stay pending appeal. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406, 410 (5th Cir. 2013). First, whether the movant has made a strong showing that it will succeed on the merits of the appeal. Second, whether the movant will suffer irreparable harm absent a stay. Third, whether the balance of hardships-i.e., the harm that the movant will suffer absent a stay balanced against the harm that the stay would impose on the other parties interested in the proceedings-favors a stay. Fourth, whether the public interest favors a stay.

         The first two factors of the stay analysis-likelihood of success on the merits and irreparable harm-“are the most critical.” Nken v. Holder, 556 U.S. 418, 434 (2009). And while it is not “enough that the chance of success on the merits be better than negligible, ” id. (internal quotation marks omitted), the Fifth Circuit has licensed a court to excuse a movant from making a strong showing of likelihood of success on the merits provided that the movant can demonstrate (1) “a serious legal question, ” (2) “the balance of equities heavily favors a stay, ” and (3) a “substantial case on the merits.” Patino v. City of Pasadena, No. 17-20030, 2017 WL 477917, at *1 n.4 (5th Cir. 2017).[2]


         This Court begins by examining whether Avondale can demonstrate a likelihood of success on the merits.

         At the outset, the Court notes that its prior ruling-contrary to Avondale's occasional suggestion[3]-was not based solely on Savoie v. Huntington Ingalls, 817 F.3d 457 (5th Cir. 2016). Indeed, though the Court fully concedes that its prior order could have been clearer on the point, the key case in the Court's reasoning is ultimately Bartel v. Alcoa Steamship Co., 805 F.3d 169 (5th Cir. 2015). The lengthy focus on Savoie was due to the fact that Savoie carefully applies Bartel's analysis to near-identical facts to the ones here.

         Bartel is a significant hurdle to Avondale's argument that there is a causal nexus between Avondale's actions under color of federal office and the plaintiffs' claims. In particular, though Bartel deals with a slightly different fact pattern-the ship in Bartel was operated by a private contractor, whereas here the ship was built by the private contractor-the Court is not convinced those differences are material. In both instances, the contractor is being held liable for failing to warn its employees about asbestos that was present on the vessel (or alternatively, the structure under construction) at the behest of the government. And in both cases the defendants were “free to adopt the safety measures the plaintiffs now allege would have prevented their injuries.” 805 F.3d at 174.[4] So even before the Court considers the Savoie panel's careful consideration of Bartel and Bartel's application to a case with near-identical facts, Bartel itself seemingly forecloses the conclusion that Avondale can demonstrate a causal nexus. See Blouin v. Huntington Ingalls Inc., No. 17-2636, 2017 WL 2628103, at *6 (E.D. La. 2017) (“In light of the nature of Plaintiffs' claims in this case, Avondale is not similarly situated to the removing defendant in Zeringue, but rather to the removing defendant in Bartel, which remains good law.”)

         Avondale argues that Bartel binds neither this Court nor the eventual Fifth Circuit panel because it applies case law predating the 2011 amendment to 28 U.S.C. § 1442 to interpret the federal officer removal statute.

         This Court has no doubt that it is bound by Bartel. Cf. Blouin, 2017 WL 2628103, at *6 (observing that Avondale's “characterization” of Bartel “is inaccurate”). Bartel recites the proper statutory language, see 805 F.3d at 172, and then applies it. So this Court-as a federal district court-cannot ignore a precedential decision of the Fifth Circuit under Avondale's purported theory that the Fifth Circuit erred in Bartel.[5] And lest the Court have any doubt on that point, the Zeringue v. Crane Co. court's observation that the result in Bartel is consistent with the proper casual nexus analysis largely removes any discretion that this Court might have otherwise had to take a different approach. See 846 F.3d 785, 794 (5th Cir. 2017) (“Our recent holding in Bartel . . . is not to the contrary.”).

         The more interesting question is how Bartel will bind the eventual Fifth Circuit merits panel. And though Avondale offers some arguments as to how the rule of orderliness applies in this case, R. Doc. No. 30-1, at 6, nowhere does Avondale address that the rule of orderliness has been the subject of some disagreement as of late. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 221 n.1 (5th Cir. 2017) (en banc); id. at 227 (Higginbotham, J., concurring); id. at 232-37 (Smith, J., dissenting).

         Given the ongoing debate regarding the rule of orderliness as well as the continuing questions about the precise effects of the 2011 amendment on the proper causal nexus analysis, this Court has a difficult time forecasting Avondale's prospects of success on the merits of the appeal. Nonetheless, the Court need not resolve that question to determine that Avondale can neither demonstrate a “strong” ...

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