United States District Court, E.D. Louisiana
CHARLES MERLIN PARFAIT, SR.
HUNTINGTON INGALLS INCORPORATED, ET AL.
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court is the plaintiff's motion to remand and his
motion for Rule 11 sanctions. For the reasons that follow,
the motion to remand is GRANTED and the motion for sanctions
litigation arises from Charles Merlin Parfait Sr.'s claim
that he contracted mesothelioma due in part to asbestos
exposure during his employment at Avondale Shipyards.
April 1, 2019, Mr. Parfait sued various defendants in state
court in Orleans Parish seeking to recover damages associated
with malignant mesothelioma. He alleges that he contracted
this terminal disease due, in part, to direct asbestos
exposure at Avondale Shipyards “during his employment
at the Main Yard from approximately 1968 through
1978.” As to occupational asbestos dust exposure
at Avondale, Mr. Parfait specifically limits his cause of
action to “only negligent failure to adopt adequate
asbestos safety measures that would have prevented the
injuries upon which this Petition is based.” Mr.
Parfait alleges strict liability claims against additional
other defendants, but he specifically disclaims any strict
liability claims against Avondale. Mr. Parfait alleges at
paragraph 17 of his state court petition: “The
defective condition of defendants' products, including
but not limited to those aboard destroyer escorts at
Avondale, are a proximate cause of Petitioner's injuries
complained of herein.” (emphasis added).
2, 2019, Mr. Parfait was deposed. Consistent with the
allegations in his petition, he testified that he worked at
Avondale from 1968 to 1978. From 1968 to 1972, he testified,
he worked as a sheet metal helper. From January 25, 1971
until January 14, 1972, he worked on destroyer escorts being
constructed for the United States Navy. While working on the
destroyer escorts, he testified, he worked alongside
insulators mixing cement and insulating pipe and that the
insulators' work created dust.
than 30 days after Mr. Parfait's deposition was taken, on
July 31, 2019, Huntington Ingalls Incorporated (f/k/a
Northrop Grumman Shipbuilding, Inc., f/k/a Northrop Grumman
Ship Systems, Inc., f/k/a Avondale Industries, Inc., and
f/k/a Avondale Shipyards, Inc.), Albert L. Bossier, Jr., and
Lamorak Insurance Company (collectively, “Avondale
Interests”) removed the lawsuit to this Court, invoking
the Court's subject matter jurisdiction predicated on the
federal officer removal statute, 28 U.S.C. § 1442. The
Avondale Interests allege in their removal notice:
The Petition contains broad allegations of Plaintiff's
exposure to asbestos, but provides no details as to where or
how Plaintiff was exposed to asbestos at Avondale. More
specifically, the Petition does not link Plaintiff's
alleged asbestos exposure to any vessels Avondale built,
refurbished or repaired for the United States Government.
removing defendants submit that Mr. Parfait's deposition
testimony first placed them on notice that his occupational
exposure to asbestos-containing materials being installed
aboard United States Navy destroyer escorts, which were being
built by Avondale under the supervision and control of
officers of the United States, occurred during a specific
time when the Navy required use of asbestos on destroyer
escorts (that is, according to the defendants, during a time
right before the Navy phased out the use of asbestos).
Contending that removal was untimely and that the Court lacks
subject matter jurisdiction under existing law, the plaintiff
now moves to remand this lawsuit back to Civil District Court
for the Parish of Orleans; he also moves for fees, costs, and
sanctions based on improvident removal.
courts are courts of limited jurisdiction,' possessing
‘only that power authorized by'” the United
States Constitution and conferred by Congress. Gunn v.
Minton, 568 U.S. 251, 256 (2013)(citation omitted).
Unless Congress expressly provides otherwise, the general
removal statute provides that a federal court may exercise
removal jurisdiction over state court actions if the federal
court would have original jurisdiction over the case -- that
is, if the plaintiff could have brought the action in federal
court from the outset. See 28 U.S.C. §
the jurisdictional predicate for removal advanced by the
defendants here, the federal officer removal statute, 28
U.S.C. § 1442(a)(1),  Congress has provided otherwise: there
is no requirement that the district court have original
jurisdiction over the plaintiff's claim when a defendant
removes a case invoking the federal officer removal
provision. Rather, § 1442(a)(1), “is a pure
jurisdictional statute in which the raising of a federal
question in the officer's removal petition...constitutes
the federal law under which the action against the federal
officer arises for [Article III] purposes.”
Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir.
2017)(quoting Mesa v. California, 489 U.S. 121, 136
(1989)). The purpose of this provision is to
protect the lawful activities of the federal government from
undue state interference. Willingham v. Morgan, 395
U.S. 402, 406 (1969).
is proper if the plaintiff timely identifies a procedural
defect in removal; remand is mandated if at any time the
Court lacks subject matter jurisdiction. 28 U.S.C. §
1447(c). Although the plaintiff challenges removal in this
case, the removing defendants must establish that federal
jurisdiction exists at the time of removal and that removal
was procedurally proper. See Manguno v. Prudential Prop.
& Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002);
see also Winters v. Diamond Shamrock Chem. Co., 149
F.3d 387, 397 (5th Cir. 1998). Another feature distinguishing
the federal officer removal statute from the general removal
statute is that, unlike § 1441(a),  § 1442(a)
must be liberally construed. See Watson v. Philip Morris
Companies, Inc., 551 U.S. 142, 147 (2007)(“The
words ‘acting under' are broad, and this Court has
made clear that the statute must be ‘liberally
construed.'”); see also City of Walker v.
Louisiana, 877 F.3d 563, 569 (5th Cir.
2017)(“federal officer removal under 28 U.S.C. §
1442 is unlike other removal doctrines: it is not narrow or
limited.”). Thus, although it remains defendants'
burden to establish the existence of federal jurisdiction,
whether federal officer removal jurisdiction exists must be
assessed “without a thumb on the remand side of the
scale.” Savoie v. Huntington Ingalls, Inc.,
817 F.3d 457, 462 (5th Cir. 2016)(citations omitted). This
liberal construction afforded the federal officer removal
statute is likewise afforded to determining whether a federal
officer's removal is timely. See Morgan v. Huntington
Ingalls, Inc., 879 F.3d 602, 607 and n.10 (5th Cir.
2018)(citing Durham v. Lockheed Martin Corp., 445
F.3d 1247, 1253 (9th Cir. 2006)).
28 U.S.C. § 1442 authorizes removal to federal court of
an action “against or directed to ... [t]he United
States or any agency thereof or 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[.]” 28
U.S.C. § 1442(a)(1). Although not in the statutory text,
the case literature requires that the removing “officer
must also allege ‘a colorable federal defense' to
satisfy Article III's ‘arising under'
requirement for subject matter jurisdiction.” State
v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017)(citing
Mesa v. California, 489 U.S. 121, 129
(1989)(explaining that § 1442 is an exception to the
usual “well-pleaded complaint” rule)). The
statute's primary purposes are to prevent hostile state
courts from obstructing federal officers in the execution of
their duties and to allow a federal court to determine the
merits of immunity defenses. Winters v. Diamond Shamrock
Chemical Co., 149 F.3d 387, 397 (5th Cir. 1998)(citing
Willingham v. Morgan, 395 U.S. 402, 406-07 (1969)).
Given these purposes and the differences between § 1441
and § 1442, courts are commanded by Congress and the
Supreme Court to interpret § 1442 generously in favor of
removal when federal officers and their agents seek a federal
forum. See Arizona v. Manypenny, 451 U.S. 232, 242
(1981); see also Zeringue v. Crane Co., 846 F.3d
785, 789 (5th Cir. 2017)(“[a]lthough the principle of
limited federal court jurisdiction ordinarily compels
[courts] to resolve any doubts about removal in favor of
remand, ... courts have not applied that tiebreaker when it
comes to the federal officer removal
remove under § 1442, the defendant must show that: (1)
it is a “person” within the meaning of §
1442; (2) it “acted pursuant to a federal officer's
directions and that a causal nexus exists between its actions
under color of federal office and the plaintiff's
claims[or charged conduct;]” and (3) it has asserted a
“colorable federal defense.” See
Winters, 149 F.3d at 400; Sawyer v. Foster Wheeler
LLC, 860 F.3d 249, 254 (4th Cir. 2017)(Or, in other
words, the removing defendant must show that it is a person
that “acted under a federal officer, that it has a
colorable federal defense, and that the charged conduct was
carried out for or in relation to the asserted official
authority.”)(internal citations, quotations omitted).
exposure litigation pervades the federal officer removal case
literature landscape and singularly informs whether the
causal nexus requirement might be satisfied in this case.
See, e.g., Melancon v. Lamorak Ins.
Co., 742 Fed.Appx. 833, 834 (5th Cir. 2018). The scope
of the causal nexus component of federal officer removal is
the most contentious and the most uncertain element in the
present case literature landscape. It focuses on the
connection between the actions taken under federal control
and the plaintiffs' charged conduct; under existing law
in the Fifth Circuit, the element is not met when the
plaintiff restricts his claims to negligence and the
challenged acts of the defendant are “free of federal
interference.” See Savoie v. Huntington Ingalls,
Inc., 817 F.3d 457, 463 (5th Cir. 2016).
simply, in the Fifth Circuit, the causal nexus element in
these cases is met when a plaintiff seeks to recover from a
government contractor on a theory of strict liability but is
absent when the theory of recovery is restricted to
negligence. “For strict liability claims that
‘rest on the mere use of asbestos,' a causal nexus
is established because ‘the government obligates the
defendant to use the allegedly defective product that causes
the plaintiff's harm.'” Melancon, 742
Fed.Appx. at 834. But asbestos claims alleging
“negligent failure to warn, train, or implement safety
procedures do not give rise to federal jurisdiction when
unrebutted evidence shows that the government did nothing to
direct the shipyard's safety practices.”
Templet v. Huntington Ingalls, Inc., 720 Fed.Appx.
726, 726-27 (5th Cir. 2018).
undisputed that the 2011 amendment to the federal officer
removal statute ostensibly 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). The Fifth
Circuit's ostensible failure to fully implement this
amended language in its case literature has been called into
question and is presently on shaky ground.
in March 2019, a panel of the Fifth Circuit acknowledged a
dichotomy in its federal officer jurisdiction case
literature, after the federal officer statute was amended in
2011; Judge Jones writing for the panel majority criticized
the viability of the “causal nexus” element the
court has continued to endorse even after § 1442 was
amended. See Latiolais v. Huntington Ingalls, Inc.,
918 F.3d 406 (5th Cir. 2019). There, Judge Jones wrote that
the 2011 amendment to Section 1442(a)(1) “broaden[ed]
the basis for removal to federal court of claims brought
against officers or agents of the federal government and
those working under its direction[;]” but, the majority
also acknowledged that the Fifth Circuit case literature,
post-amendment, continued to apply the causal nexus test
articulated for the prior iteration of the
statute.See id. (noting that the Fifth
Circuit is “out of step with Congress and our sister
circuits, and noting other circuits have read the 2011
amendments to eliminate the old “causal nexus
requirement.”). Specifically, in Bartel v. Alcoa S.S.
Co., Inc., 805 F.3d 169, 172 (5th Cir. 2015), the Fifth
Circuit panel quoted the newly-amended statute, but adopted
the same causal nexus test that pre-dates the new statute;
the same causal nexus test in which “mere federal
involvement does not satisfy the causal nexus requirement;
instead, the defendant must show that its actions taken
pursuant to the government's direction or control caused
the plaintiff's specific injuries.” See
Latiolais, 918 F.3d at 409 (quoting Savoie v.
Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir.
2016)). Latiolais notes that, in Zeringue
(a case decided after Bartel but before
Legendre), the court “appeared to relax the
causal nexus standard in light of the post-2011
‘relating to' language, but reliance on that case
is not appropriate.” Id. at 410 (noting that
Zeringue instructed that the causal nexus inquiry
must be tailored to the facts of each case, and that
Zeringue ruled only on the propriety of removing a
strict liability claim under the statute and specifically
declined to consider a negligence-based failure to warn
claim, whereas, “[b]efore Zeringue, however,
in a case brought against Avondale[, Savoie, ] this
court had decided that claims for negligent exposure to
asbestos could not be removed pursuant to
Bartel.”). Judge Jones writes in
Latioloais, “[t]he cases that post-date the
2011 amendment to ...