STEPHEN R. LEGENDRE; PAUL L. LEGENDRE, also known as Leroy Paul Legendre; RAGUS J. LEGENDRE; PERCY J. LEGENDRE, JR., Plaintiffs - Appellees
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
from the United States District Court for the Eastern
District of Louisiana
HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge
Legendre brothers, Stephen, Paul, Ragus, and Percy, Jr., sued
appellant Huntington Ingalls, Inc. (Avondale) 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
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.
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.
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
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).
§ 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.
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.
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.
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 ...