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Parfait v. Huntington Ingalls Inc.

United States District Court, E.D. Louisiana

September 11, 2019


         SECTION "F"



         Before 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 is DENIED.


         This 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.

         On April 1, 2019, Mr. Parfait sued various defendants in state court in Orleans Parish seeking to recover damages associated with malignant mesothelioma.[1] 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.”[2] 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).

         On July 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.

         Less 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.

         The 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.



         “'Federal 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. § 1441(a).[3]

         As for the jurisdictional predicate for removal advanced by the defendants here, the federal officer removal statute, 28 U.S.C. § 1442(a)(1), [4] 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)).[5] 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).

         Remand 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), [6] § 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)).


         Title 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 statute.”)(citations omitted).

         To 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).

         Asbestos 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).

         Put 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.[7] “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).

         It is 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.

         Recently, 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.[8]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.”).[9] 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 ...

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