Latiolais v. Huntington Ingalls, Inc.

• Decision Date: 24 February 2020
• Docket Number: No. 18-30652,18-30652
• Citation: 951 F.3d 286
• Parties: James A. LATIOLAIS, Plaintiff – Appellee 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, Defendant – Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

951 F.3d 286

James A. LATIOLAIS, Plaintiff – Appellee

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, Defendant – Appellant

No. 18-30652

United States Court of Appeals, Fifth Circuit.

FILED February 24, 2020

Jody Edward Anderman, Cameron Ray Waddell, Litigation Counsel, Waddell Anderman, L.L.C., Baton Rouge, LA, Sean Patrick Brady, Esq., Thomas More Flanagan, Anders F. Holmgren, Flanagan Partners, L.L.P., New Orleans, LA, for Plaintiff-Appellee.

Gregory George Garre, Charles S. Dameron, Latham & Watkins, L.L.P., Washington, DC, David Michael Melancon, Esq., David Wayne O'Quinn, Esq., Irwin Fritchie Urquhart & Moore, L.L.C., New Orleans, LA, for Defendant-Appellant.

Clinton Frederick Beckner, III, Sidley Austin, L.L.P., Washington, DC, for Amicus Curiae Chamber of Commerce of the United States of America.

David Ryan Cannella, Baron & Budd, New Orleans, LA, for Amicus Curiae Henry C. Johnson, Jr.

Richard Abbott Samp, Chief Counsel, Arlington, VA, for Amicus Curiae Washington Legal Foundation.

Anthony F. Shelley, Adam P. Feinberg, Esq., Miller & Chevalier Chartered, Washington, DC, for Amicus Curiae Blue Cross Blue Shield Association.

William Harty, Litigation Counsel, Patten, Wornom, Hatten & Diamonstein, Newport News, VA, for Amicus Curiae Sea Service Family Foundation.

Before OWEN, Chief Judge, and JONES, SMITH, STEWART, DENNIS, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, WILLETT, HO, DUNCAN, and OLDHAM, Circuit Judges.¹

ON PETITION FOR REHEARING EN BANC

EDITH H. JONES, Circuit Judge:

This appeal was reconsidered en banc because Fifth Circuit precedents concerning the scope of the revised Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), were extraordinarily confused. See Latiolais v. Huntington Ingalls, Inc. , 918 F.3d 406, 412–13 (5th Cir. 2019). Having reconsidered, we strip away the confusion, align with sister circuits, and rely on the plain language of the statute, as broadened in 2011. As a result, Avondale² was entitled to remove this negligence case filed by a former Navy machinist because of his exposure to asbestos while the Navy’s ship was being repaired at the Avondale shipyard under a federal contract. We VACATE the contrary district court judgment and REMAND for further proceedings in federal court.

BACKGROUND AND PROCEDURE

During the 1960s and 1970s, the United States Navy contracted with the Defendant-Appellant, Avondale, to build and refurbish naval vessels. Most of the contracts in the 1960s required asbestos for thermal insulation. According to Avondale’s expert, a marine engineer and naval historian, the contracts obliged Avondale "to comply with government plans and specifications, and the federal government had the right to and did exercise supervision over the process to ensure such compliance."

The Plaintiff-Appellee, James Latiolais, then a machinist aboard the USS Tappahannock , was exposed to asbestos while his ship underwent refurbishing at Avondale for several months. In 2017, Latiolais was diagnosed with mesothelioma

. He died in October 2017.³

Latiolais sued Avondale in Louisiana state court for causing him to contract mesothelioma

. He asserted, inter alia , that Avondale negligently failed to warn him about asbestos hazards and failed to provide adequate safety equipment. He did not allege strict liability claims against Avondale.

Avondale removed the case to federal court under 28 U.S.C. § 1442(a)(1). Latiolais sought remand, however, and the district court granted the motion. Observing this court’s "causal nexus" requirement for federal officer removal, the district court asked whether the United States or any of its officials controlled Avondale’s safety practices. The court found no such control and concluded that removal under § 1442(a)(1) was improper. Avondale timely appealed.

STANDARD OF REVIEW

Although an order remanding a case to state court is not generally reviewable, "an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise." 28 U.S.C. § 1447(d). "We review the district court’s remand order de novo, ‘without a thumb on the remand side of the scale.’ " Legendre v. Huntington Ingalls, Inc. , 885 F.3d 398, 400 (5th Cir. 2018) (quoting Savoie v. Huntington Ingalls, Inc. , 817 F.3d 457, 462 (5th Cir. 2016) ).

DISCUSSION

As amended in 2011 and still effective, the Federal Officer Removal Statute states in pertinent part:

(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States ... :

(1) The 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) (2018).

Some version of this statute has been in effect since 1815. Watson v. Philip Morris Cos. , 551 U.S. 142, 147–49, 127 S. Ct. 2301, 2305, 168 L.Ed.2d 42 (2007). At first, Congress authorized only some federal officials sued in connection with their official duties to seek a federal forum rather than face possibly prejudicial resolution of disputes in state courts. Willingham v. Morgan , 395 U.S. 402, 405, 89 S. Ct. 1813, 1815, 23 L.Ed.2d 396 (1969). Over time, though, Congress has broadened the removal statute repeatedly until it reached the coverage quoted above. See Watson , 551 U.S. at 147–49, 127 S. Ct. at 2305 ; 28 U.S.C.A. § 1442 (West).

Federal officers may remove cases to federal court that ordinary federal question removal would not reach. In particular, section 1442(a) permits an officer to remove a case even if no federal question is raised in the well-pleaded complaint, so long as the officer asserts a federal defense in the response. As the Supreme Court has explained, "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 Art. III purposes." Mesa v. California , 489 U.S. 121, 136, 109 S. Ct. 959, 968, 103 L.Ed.2d 99 (1989). The Court has consistently urged courts to avoid "a narrow, grudging interpretation of § 1442(a)(1)." Willingham , 395 U.S. at 407, 89 S. Ct. at 1816 ; Arizona v. Manypenny, 451 U.S. 232, 242, 101 S. Ct. 1657, 1664, 68 L.Ed.2d 58 (1981) ; Jefferson County v. Acker , 527 U.S. 423, 431, 119 S. Ct. 2069, 2075, 144 L.Ed.2d 408 (1999).

Clearly, a defendant removing under section 1442(a)(1) must show (1) it is a "person" within the meaning of the statute, (2) it acted "pursuant to a federal officer’s directions," and (3) it asserts a "colorable federal defense." Winters v. Diamond Shamrock Chem. Co. , 149 F.3d 387, 396–400 (5th Cir. 1998). This court’s cases have also required pleading (4) "a causal nexus" between the defendant’s acts under color of federal office and the plaintiff’s claims. E.g. , id. at 398. Avondale’s status as a "person" and its federal contract with the Navy for repairs to the Tappahannock satisfy the first and second conditions. Whether any "causal nexus" was required is the focal point of dispute, but the parties also debate the "colorable federal defense" criterion.

I. The Connection Prong

The parties first join issue over the status of the "causal nexus" requirement. This requirement began as a restatement of part of the Supreme Court’s test in Willingham , in which the Court interpreted "for any act under color of such office," 28 U.S.C. § 1442(a) (1948), to limit federal officer removal to suits that "grow[ ] out of conduct under color of office." 395 U.S. at 407, 89 S. Ct. at 1816. A civil suit "grows," the Court held, if the defendant’s "acts or [his] presence at the place in performance of [his] official duty constitute the basis, though mistaken or false," of the plaintiff’s action. Id. at 407, 409, 89 S.Ct. at 1816, 1817. To establish that much was to establish a " ‘causal connection’ between the charged conduct and asserted official authority." Id. at 409, 89 S.Ct. at 1817 (quoting Maryland v. Soper , 270 U.S. 9, 33, 46 S. Ct. 185, 190–91, 70 L.Ed. 449 (1926) ).

Three decades later, in Winters , this court restated Willingham ’s "under color of office" or "causal connection" test as providing "that the defendants acted pursuant to a federal officer’s directions and that a causal nexus exists between the defendants’ actions under color of federal office and the plaintiff’s claims." 149 F.3d at 398. In Winters, the defendant’s formulation, packaging, and delivery of Agent Orange took place under direct governmental specification and supervision. Id. at 400. Consequently, the court determined that "a direct causal nexus exists between the defendants’ actions taken under color of federal office and Winters’s claims" for strict product liability and failure to provide adequate warnings. Id. at 399–400 (emphasis added). Notably, in applying Willingham ’s color-of-office test, the Winters court asserted only that a "direct causal nexus" existed, not that it was necessary.

In this court’s decisions following Winters, the "direct causal nexus" test became a talisman even after Congress, in 2011, amended section 1442(a), altering the requirement that a removable case be "for" any act under color of federal office and permitting removability of a case "for or relating to " such acts, 28 U.S.C. § 1442(a) (2012) (emphasis added). Thus, in Bartel v. Alcoa Steamship Co. , the court accurately quoted the amended statute, but did not discuss the textual change and still applied a "direct causal nexus" test. 805 F.3d 169, 172–75 (5th Cir. 2015). Subsequent panels of this court relied on Bartel and attempted to discern what kinds of plaintiffs’ claims articulated causes of...