United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is plaintiffs' motion to remand to state
court. For the following reasons, the Court
grants the motion.
case arises out of plaintiff Terry Brady's alleged
asbestos exposure. Mr. Brady alleges that he was exposed to
asbestos at various workplaces.The relevant period of employment
for purposes of this motion to remand is Mr. Brady's
service in the U.S. Navy from 1968 to 1989 as a Machinists
Mate and Master Chief aboard several vessels. Mr. Brady
testified in a deposition that while he was aboard the USS
Robert A. Owens, the vessel was docked at Avondale Shipyards
for feed pump refurbishment. According to Mr. Brady, he had
little interaction with the shipyard workers while at
Avondale and took orders only from his Naval
officers. Mr. Brady alleges that he developed lung
cancer because of his exposure to asbestos.
February 8, 2018, Mr. Brady and his wife, Glenda Brady, filed
an action in state court for negligence. Plaintiffs named
numerous defendants, including Huntington Ingalls, Inc.
(Avondale). Plaintiffs' negligence allegations
against Avondale include failure to warn, failure to provide
a safe environment, and failure to employ safe procedures for
handling asbestos.Avondale removed this case to federal court
on March 28, 2018. In its notice of removal, Avondale
asserted that this Court has subject matter jurisdiction
under 28 U.S.C. § 1442(a)(1), because plaintiffs'
claims are for or related to acts performed under color of
federal office. In response, plaintiffs moved to remand
this action to state court.
federal officer removal statute permits an officer of the
United States, “or any person acting under that
officer, ” to remove to federal court a civil action or
criminal prosecution brought against them “in an
official or individual capacity, for or relating to any act
under color of such office.” 28 U.S.C. §
1442(a)(1). The party asserting jurisdiction under this
statute bears the burden of establishing that federal
jurisdiction exists. Winters v. Diamond Shamrock Chem.
Co., 149 F.3d 387, 397 (5th Cir. 1998).
purpose of the federal officer removal provision is to
protect the lawful activities of the federal government from
undue state interference. See Id. (quoting
Willingham v. Morgan, 395 U.S. 402, 406 (1969)).
Because the federal government “can act only through
its officers and agents, ” it has a strong interest in
ensuring that the states do not hinder those officers in the
execution of their duties. Id. (quoting
Willingham, 395 U.S. at 406). Moreover,
“removal of the entire case is appropriate so long as a
single claim satisfies the federal officer removal
statute.” Savoie v. Huntington Ingalls, Inc.,
817 F.3d 457, 463 (5th Cir. 2016).
of its broad language and unique purpose, the federal officer
removal statute has been interpreted to operate somewhat
differently from the general removal provision. Unlike the
general removal statute, which must be “strictly
construed in favor of remand, ” Manguno v.
Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723
(5th Cir. 2002), the federal officer removal provision must
be liberally construed. Watson v. Philip Morris Co.,
Inc., 551 U.S. 142, 147 (2007). A case against a federal
officer may be removed even if a federal question arises as a
defense rather than as a claim apparent from the face of the
plaintiff's well-pleaded complaint. See Zeringue v.
Crane Co., 846 F.3d 785, 789-90 (5th Cir. 2017).
Additionally, removal under § 1442(a)(1) does not
require the consent of co-defendants. See Humphries v.
Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014).
removed this case to federal court based on its work as a
military contractor. See Boyle v. United Techs.
Corp., 487 U.S. 500, 504 (1988) (recognizing federal
contractor immunity). The Fifth Circuit has adopted a
three-part test to determine whether a government contractor
may invoke 28 U.S.C. § 1442(a)(1). The contractor must
show that: (1) it is a “person” within the
meaning of the statute; (2) it acted pursuant to a federal
officer's directions, and a causal nexus exists between
its actions under color of federal office and the
plaintiff's claims; and (3) it has a colorable federal
defense to the plaintiff's claims. Winters, 149
F.3d at 398-400. In their motion to remand, plaintiffs
concede that Avondale is a person within the meaning of the
statute. The parties principally contest the
causal nexus element.
initial matter, Avondale argues that a 2011 amendment to the
removal statute replaced the causal nexus test with a less
restrictive test.Before 2011, the statute permitted
removal by a federal officer who is sued “for any act
under color of such office.” Congress amended the
statute in 2011 to permit removal by an officer in suits
“for or relating to any act under color of
such office.” 28 U.S.C. § 1442(a)(1) (emphasis
added). The Fifth Circuit has applied this amended standard
in at least four published decisions. See Legendre v.
Huntington Ingalls, Inc., 885 F.3d 398 (5th Cir. 2018);
Zeringue, 846 F.3d 785; Savoie, 817 F.3d
457; Bartel v. Alcoa S.S. Co., 805 F.3d 169, 174-75
(5th Cir. 2015). The amendment appeared to have no bearing on
the court's analysis in Bartel. 805 F.3d at 174.
In Zeringue, the court noted that the 2011 amendment
broadened the reach of the causal nexus requirement. 846 F.3d
at 793-94 (“Although the court cannot attenuate the
causal nexus requirement ‘to the point of
irrelevance,' the plain import to the phrase
‘relating to' is that some attenuation is
permissible, attenuation which is irreconcilable with
Zeringue's proposed requirement of precise federal
direction.” (footnote omitted)). But the
Zeringue court also explicitly reaffirmed
Bartel. Id. at 794. The court distinguished
the negligence claims at issue in Bartel from the
strict liability claims that justified removal in
Zeringue. Id. Moreover, the Fifth Circuit
in Legendre explicitly addressed the contention that
Bartel had incorrectly applied pre-2011 precedent.
Legendre, 885 F.3d at 403. The Fifth Circuit held
that the rule of orderliness precluded it from re-examining
Bartel and noted that the argument needed to be
presented to the en banc court. Id. Bartel and its
progeny are therefore binding, and Avondale's challenge
to the Fifth Circuit's pre-2011 causal nexus test is not
properly before this Court.
argue that the causal nexus element is not satisfied because
the Navy had no control over safety at Avondale. Plaintiffs
submit the deposition of Peter Territo, an Avondale safety
officer. Territo testified that Navy inspectors
neither controlled the Avondale safety department, nor
directed Avondale to follow certain safety policies or
procedures. Plaintiffs also submit the affidavit of
Felix Albert, a ship inspector for the U.S. Navy who worked
at Avondale from 1965 to 1976. Albert attests that Avondale
employees did not work under the direct orders of a ship
inspector during the construction of governing vessels, and