Legendre v. Huntington Ingalls, Inc.

• Decision Date: 16 March 2018
• Docket Number: No. 17-30371,17-30371
• Citation: 885 F.3d 398
• Parties: Stephen R. LEGENDRE; Paul L. Legendre, also known as Leroy Paul Legendre; Ragus J. Legendre; Percy J. Legendre, Jr., Plaintiffs-Appellees 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, formerly known as Avondale Shipyards, Incorporated, formerly known as Avondale Marine Ways, Incorporated, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

885 F.3d 398

Stephen R. LEGENDRE; Paul L. Legendre, also known as Leroy Paul Legendre; Ragus J. Legendre; Percy J. Legendre, Jr., Plaintiffs-Appellees
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, formerly known as Avondale Shipyards, Incorporated, formerly known as Avondale Marine Ways, Incorporated, Defendant-Appellant

No. 17-30371

United States Court of Appeals, Fifth Circuit.

Filed March 16, 2018

Gerolyn Petit Roussel, Jonathan Brett Clement, Roussel & Clement, Mandeville, LA, for Plaintiffs-Appellees.

Gary Allen Lee, Esq., John Maurice Futrell, Esq., Michael Kevin Powell, Lee, Futrell & Perles, L.L.P., New Orleans, LA, for Defendant-Appellant.

Before HIGGINBOTHAM, PRADO, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

The Legendre brothers, Stephen, Paul, Ragus, and Percy, Jr., sued appellant Huntington Ingalls, Inc. (Avondale)¹ 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 affirm.²

I.

In 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.

In 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.

Avondale removed to the Eastern District of Louisiana, asserting federal jurisdiction

885 F.3d 400

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 now appeals.

II.

"[F]ederal 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).

Under § 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.³

In the 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.

First 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."

885 F.3d 401

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.

We 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 jurisdiction. Id. at 460. The district court remanded, finding causal nexus lacking. Id . at 460, 462.

The allegations of federal control in Savoie mirror those in this case, and the parties cited much of the same evidence. As to the plaintiffs' negligence claims, this court in Savoie "agree[d] with the district court that the federal government's mandate of asbestos insulation did not cause the shipyard to engage in the challenged conduct." Id . at 462. We described the Savoie plaintiffs' negligence allegations as "nearly identical" and "essentially the same as the ones made in Bartel [.]" Id . at 462-63. We explained that "the Navy neither imposed any special safety requirements on the shipyard nor prevented the shipyard from imposing its own safety procedures." Id. at 463. Accordingly, the Savoies' negligence claims "challenge[d] discretionary acts of the shipyard free of federal interference," and "the government's directions to the shipyard via the contract specifications did not cause the alleged negligence[.]" Id. These claims therefore could not support removal. Id. The Savoies' strict liability claims, by contrast, "rest[ed] on the mere use of asbestos." Id . at 465. These claims were causally linked to the Navy's requirement that its ships contain asbestos, and therefore supported removal. Id. at 465-66.⁴

Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017), is the final installment in our post-2011 federal officer trilogy. Zeringue sued in state court, asserting that he had been exposed to asbestos while deployed with the U.S. Navy. Id . at 788. Among several other defendants, Zeringue sued Crane, which manufactured valves packed in asbestos for the Navy. Id. at 788, 791. Zeringue asserted strict liability, negligence, and failure to warn claims. Id. at 788. Crane removed under § 1442, asserting that both the valve's design and the decision to warn lay within the discretion of Crane's federal superior. Id. The district court remanded, and we reversed. Id. at 788-89, 795.

In Zeringue , we recognized that the 2011 amendment shifted the causal nexus calculus: "The plain meaning of the added language broadens the scope of the statute as ‘the ordinary meaning of [relating to] is a broad one—"to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with." ’ " Id. at 793 (alteration in original)

885 F.3d 402

(quoting Morales v. Trans World Airlines, Inc. , 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) ); see also id. ("The 2011 amendment expanded the breadth of acts sufficient to establish a causal nexus even further."). But this broadening, we held, did not eliminate the requirement that the removing party "establish ‘a nexus, a "causal connection" between the charged conduct and asserted official authority.’ " Id . (quoting Jefferson Cty. v. Acker , 527 U.S. 423, 431, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999) ). Crane met this requirement—at least as to the claims based on mere use of asbestos⁵ —because its "relationship with...