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Legendre v. Huntington Ingalls, Inc.

United States Court of Appeals, Fifth Circuit

March 16, 2018

STEPHEN R. LEGENDRE; PAUL L. LEGENDRE, also known as Leroy Paul Legendre; RAGUS J. LEGENDRE; PERCY J. LEGENDRE, JR., Plaintiffs - Appellees
v.
HUNTINGTON INGALLS, INCORPORATED, formerly known as Northrop Grumman Shipbuilding, Incorporated, formerly known as Northrop Grumman Ship Systems, Incorporated, formerly known as Avondale Industries, Incorporated, formerly known as Avondale Shipyards, Incorporated, formerly known as Avondale Marine Ways, Incorporated, Defendant - Appellant

         Appeal from the United States District Court for the Eastern District of Louisiana

          Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.

          STEPHEN A. HIGGINSON, Circuit Judge

         The Legendre brothers, Stephen, Paul, Ragus, and Percy, Jr., sued appellant Huntington Ingalls, Inc. (Avondale)[1] and other defendants in Louisiana state court. In their complaint, the Legendres alleged that the defendants exposed their sister, Mary Jane Wilde, to asbestos and caused her to die of mesothelioma. Avondale invoked the federal officer removal statute, 28 U.S.C. § 1442, and removed to the Eastern District of Louisiana. The district court remanded, holding that Avondale failed to show the required "causal nexus" to support federal jurisdiction. We affirm.[2]

         I.

         In 2016, Mary Jane Wilde died of complications related to mesothelioma. Wilde's father, Percy Legendre, worked at Avondale's shipyard in the 1940s. His responsibilities included working with asbestos insulation in the engine rooms of tugs built for the United States government. The Legendre brothers allege that asbestos fibers clung to their father's clothing and body when he returned home from work each day, and that Wilde was exposed to these fibers at home, causing her disease and eventual death.

         In their complaint, the Legendres allege that Avondale failed to warn its employees of the risks of asbestos exposure and failed to implement proper safety procedures for handling asbestos. The district court held, and Avondale does not dispute, that the Legendres' claims sound in negligence, not strict liability.

         Avondale removed to the Eastern District of Louisiana, asserting federal jurisdiction under 28 U.S.C. § 1442, the federal officer removal statute. The Legendre brothers moved to remand. The district court granted the motion, and Avondale now appeals.

         II.

         "[F]ederal officer removal under 28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or limited." State v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017) (quotation marks omitted). We review the district court's remand order de novo, "without a thumb on the remand side of the scale." Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016); see also 28 U.S.C. § 1447(d) ("[A]n order remanding a case to the State court from which it was removed pursuant to section 1442 . . . of this title shall be reviewable by appeal or otherwise."). Nonetheless, it remains "the defendant's burden to establish the existence of federal jurisdiction over the controversy." Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998).

         Under § 1442, an action "against or directed to . . . any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office" may be removed to federal court. 28 U.S.C. § 1442(a)(1). To remove, a defendant must show: "(1) that it is a person within the meaning of the statute, (2) that it has 'a colorable federal defense, ' (3) that it 'acted pursuant to a federal officer's directions, ' and (4) 'that a causal nexus exists between [its] actions under color of federal office and the plaintiff's claims.'" Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (alteration in original) (quoting Bartel v. Alcoa S.S. Co., 805 F.3d 169, 172 (5th Cir. 2015)). The district court determined that Avondale could not meet the "causal nexus" prong, and therefore did not reach the rest of the test.[3]

         In the past, § 1442 permitted removal "only when the state suit was 'for any act under color of such office.'" Id. at 793 (quoting Act of June 25, 1948, ch. 646, 62 Stat. 938 (codified at 28 U.S.C. § 1442)). But Congress amended the statute in 2011 "to allow the removal of a state suit 'for or relating to any act under color of such office.'" Id. (quoting Removal Clarification Act of 2011, Pub. L. No. 112-51, § 2(b)(2), 125 Stat. 545 (codified at 28 U.S.C. § 1442)). As recognized by the district court, we have interpreted the causal nexus requirement under the modern statute three times.

         First was Bartel v. Alcoa Steamship Co., Inc., 805 F.3d 169 (5th Cir. 2015). In that case, merchant mariners sued their former employers in state court. Id. at 171. The mariners alleged that they had been injured by asbestos exposure on vessels owned by the United States Navy, but operated by the civilian employers. Id. at 171-72. The mariners attributed their injuries "to the employers' failure to warn of the dangers of asbestos, to train their crews in using asbestos-containing products, and to adopt procedures for the safe installation and removal of asbestos." Id. at 171. We found no nexus between these negligence claims and the defendants' actions under color of federal office because the evidence suggested that the government did not issue any "orders relating to safety procedures or asbestos" and that defendants were therefore "free to adopt the safety measures the plaintiffs now allege would have prevented their injuries." Id. at 174.

         We revisited the causal nexus requirement in Savoie v. Huntington Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016). That case, like this one, involved alleged asbestos exposure during construction of federal vessels at Avondale's shipyard. Id. at 459. The Savoies brought both negligence and strict liability claims in state court, and Avondale removed citing federal officer ...


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