United States District Court, E.D. Louisiana
STEPHEN R. LEGENDRE
HUNTINGTON INGALLS INC.
M. AFRICK, UNITED STATES DISTRICT JUDGE
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 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.
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.
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
Court begins by examining whether Avondale can demonstrate a
likelihood of success on the merits.
outset, the Court notes that its prior ruling-contrary to
Avondale's occasional suggestion-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.
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. 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
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.
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. 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.”).
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).
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