Legendre, et al v. Huntington Ingalls Incorporated, et al

Filing 32

ORDER denying 30 Motion to Stay. Signed by Judge Lance M Africk on 7/6/2017. (blg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
STEPHEN R. LEGENDRE

CIVIL ACTION

VERSUS

No. 17-2162

HUNTINGTON INGALLS INC. ET AL.

SECTION I

ORDER
Arguing that this Court’s remand order was “patently erroneous,” R. Doc. No.
30-1, at 7, because it “irreconcilably conflicts with express holdings by the Fifth
Circuit,” R. Doc. No. 30-1, at 5, and “disregard[ed]” statutory language, R. Doc. No.
30-1, at 6, Huntington Ingalls (“Avondale”) moves 1 to stay this Court’s remand order.
Because a remand is presently likely regardless of however the Fifth Circuit rules,
the Court denies the motion to stay.
I.
This Court considers four factors when deciding whether to grant a stay
pending appeal. See Planned Parenthood of Greater Tex. Surgical Health Servs. v.
Abbott, 734 F.3d 406, 410 (5th Cir. 2013). First, whether the movant has made a
strong showing that it will succeed on the merits of the appeal. Second, whether the
movant will suffer irreparable harm absent a stay. Third, whether the balance of
hardships—i.e., the harm that the movant will suffer absent a stay balanced against
the harm that the stay would impose on the other parties interested in the
proceedings—favors a stay. Fourth, whether the public interest favors a stay.

1

R. Doc. No. 30.

The first two factors of the stay analysis—likelihood of success on the merits
and irreparable harm—“are the most critical.” Nken v. Holder, 556 U.S. 418, 434
(2009). And while it is not “enough that the chance of success on the merits be better
than negligible,” id. (internal quotation marks omitted), the Fifth Circuit has licensed
a court to excuse a movant from making a strong showing of likelihood of success on
the merits provided that the movant can demonstrate (1) “a serious legal question,”
(2) “the balance of equities heavily favors a stay,” and (3) a “substantial case on the
merits.” Patino v. City of Pasadena, No. 17-20030, 2017 WL 477917, at *1 n.4 (5th
Cir. 2017). 2
II.
This Court begins by examining whether Avondale can demonstrate a
likelihood of success on the merits.
At the outset, the Court notes that its prior ruling—contrary to Avondale’s
occasional suggestion3—was not based solely on Savoie v. Huntington Ingalls, 817
F.3d 457 (5th Cir. 2016). Indeed, though the Court fully concedes that its prior order

The parties dispute the propriety of issuing a stay of the remand order. The Court
does not address that issue given its determination that a stay is not warranted. See
Humphries v. OneBeacon Am. Ins. Co., No. 13-5426, 2014 WL 1330034, at 1 n.8 (E.D.
La. 2014).
3 Compare R. Doc. No. 23, at 9 (remand opinion) (“Therefore, although Avondale has
preserved the argument that the Fifth Circuit’s opinions in Savoie and Bartel are
wrongly decided, see [Avondale’s brief], at 12-13, this Court has no choice but to follow
Fifth Circuit law as it currently exists and remand this matter to Louisiana state
court.” (emphasis added)), with R. Doc. No. 30-1, at 4 (Avondale stay brief)
(“Therefore, this Court remanded the case back to state court, concluding that it ‘has
no choice but to follow Fifth Circuit law [Savoie] as it currently exists.’” (alteration in
original)).
2

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could have been clearer on the point, the key case in the Court’s reasoning is
ultimately Bartel v. Alcoa Steamship Co., 805 F.3d 169 (5th Cir. 2015). The lengthy
focus on Savoie was due to the fact that Savoie carefully applies Bartel’s analysis to
near-identical facts to the ones here.
Bartel is a significant hurdle to Avondale’s argument that there is a causal
nexus between Avondale’s actions under color of federal office and the plaintiffs’
claims. In particular, though Bartel deals with a slightly different fact pattern—the
ship in Bartel was operated by a private contractor, whereas here the ship was built
by the private contractor—the Court is not convinced those differences are material.
In both instances, the contractor is being held liable for failing to warn its employees
about asbestos that was present on the vessel (or alternatively, the structure under
construction) at the behest of the government.

And in both cases the defendants

were “free to adopt the safety measures the plaintiffs now allege would have
prevented their injuries.” 805 F.3d at 174. 4 So even before the Court considers the
Savoie panel’s careful consideration of Bartel and Bartel’s application to a case with
near-identical facts, Bartel itself seemingly forecloses the conclusion that Avondale
can demonstrate a causal nexus. See Blouin v. Huntington Ingalls Inc., No. 17-2636,

At times, Avondale has tried to distinguish Bartel on the ground that the
government did not direct the Bartel contractor to use asbestos. Cf. Bartel, 805 F.3d
at 174 (“There is no evidence that the government ever issued orders of any kind, let
alone orders relating to safety procedures or asbestos.”). That argument ignores the
historical reality that asbestos was widely used throughout naval vessels. Avondale’s
suggestion that the Navy could somehow ask a contractor to operate a naval vessel
at sea for an extended period, but then somehow not implicitly ask the contractor to
regularly have its employees interact with the asbestos, is nothing more than
ahistorical fiction.

4

3

2017 WL 2628103, at *6 (E.D. La. 2017) (“In light of the nature of Plaintiffs’ claims
in this case, Avondale is not similarly situated to the removing defendant in Zeringue,
but rather to the removing defendant in Bartel, which remains good law.”)
Avondale argues that Bartel binds neither this Court nor the eventual Fifth
Circuit panel because it applies case law predating the 2011 amendment to 28 U.S.C.
§ 1442 to interpret the federal officer removal statute.
This Court has no doubt that it is bound by Bartel. Cf. Blouin, 2017 WL
2628103, at *6 (observing that Avondale’s “characterization” of Bartel “is
inaccurate”). Bartel recites the proper statutory language, see 805 F.3d at 172, and
then applies it.

So this Court—as a federal district court—cannot ignore a

precedential decision of the Fifth Circuit under Avondale’s purported theory that the
Fifth Circuit erred in Bartel. 5 And lest the Court have any doubt on that point, the
Zeringue v. Crane Co. court’s observation that the result in Bartel is consistent with
the proper casual nexus analysis largely removes any discretion that this Court might
have otherwise had to take a different approach. See 846 F.3d 785, 794 (5th Cir.
2017) (“Our recent holding in Bartel . . . is not to the contrary.”).

The order of the Savoie panel on rehearing, see 824 F.3d 468 (5th Cir. 2016), does
not free this Court to dismiss Bartel. A decision of the Fifth Circuit indicating that
the decision is not precedent on a certain issue does not license this Court to ignore
prior precedential Fifth Circuit opinions. See United States v. St. Clair, 608 F. App’x
192, 194 n.2 (5th Cir. 2015) (“It is clear and obvious that a district court cannot
diverge from a precedential opinion’s holding, regardless of subsequent nonprecedential decisions . . . .”); cf. J.R.R. Tolkien, The Fellowship of the Ring bk. 1, ch.
3 (1954) (“Do not meddle in the affairs of Wizards, for they are subtle and quick to
anger.”).
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4

The more interesting question is how Bartel will bind the eventual Fifth
Circuit merits panel.

And though Avondale offers some arguments as to how the

rule of orderliness applies in this case, R. Doc. No. 30-1, at 6, nowhere does Avondale
address that the rule of orderliness has been the subject of some disagreement as of
late. See, e.g., United States v. Castillo-Rivera, 853 F.3d 218, 221 n.1 (5th Cir. 2017)
(en banc); id. at 227 (Higginbotham, J., concurring); id. at 232-37 (Smith, J.,
dissenting).
Given the ongoing debate regarding the rule of orderliness as well as the
continuing questions about the precise effects of the 2011 amendment on the proper
causal nexus analysis, this Court has a difficult time forecasting Avondale’s prospects
of success on the merits of the appeal. Nonetheless, the Court need not resolve that
question to determine that Avondale can neither demonstrate a “strong” nor a
“substantial” likelihood of success on the ultimate question of whether this case will
be remanded.
In particular, even if Avondale can persuade the Fifth Circuit that this Court
reversibly erred in its causal nexus analysis, Avondale has not yet demonstrated a
colorable federal defense. See, e.g., Blouin, 2017 WL 2628103, at *7 (“The problem,
however, is that this case is not one where the federal government’s contracts,
requirements, or specifications interfered with Avondale’s ability to conform its
conduct in accordance with the duties imposed under state law. . . . Avondale has no
federal defense to Plaintiff’s state law negligence claims.”). So a remand is presently
likely regardless of Avondale’s potential success on its causal nexus appeal.

5

Avondale’s claim to a colorable federal defense is based largely on Zeringue.
See R. Doc. No. 30-1, at 2-3; R. Doc. No. 8, at 18-21. Zeringue is not a perfect match
for this case. Zeringue analyzed design defect claims against Crane Company. See
846 F.3d at 788-89. There, Crane submitted evidence that the valves were built to
Navy specifications directing the use of asbestos. Id. at 791. By contrast, this case
deals with a shipyard’s failure to warn workers about the dangers of take home
asbestos as well as the shipyard’s negligence for failing to institute proper safety
measures to prevent workers from taking asbestos home with them. See R. Doc. No.
23, at 9-10 (noting that claims against Avondale are not strict products liability
claims); see also Blouin, 2017 WL 2628103, at *7 (“Avondale’s treatment of the federal
defense issue in briefing tracks Zeringue nearly verbatim but Zeringue was decided
on claims specific to a manufacturer that followed government specifications when
incorporating asbestos into its design. For purposes of a federal defense, Avondale is
not similarly situated to the manufacturer in Zeringue and the nature of the claims
against Avondale are substantively different than the claims in Zeringue that drove
the panel’s decision as to removal.”).
The distinction between the claims at issue in Zeringue and the claims at issue
here matters. The elements of a federal contractor defense in a failure to warn case
are not identical to the elements of a federal contractor defense in a strict liability
design defect case. To show a federal contractor defense in a design defect case, a
manufacturer must show “(1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and (3) the

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supplier warned the United States about the dangers in the use of the equipment
that were known to the supplier but not to the United States.” Zeringue, 846 F.3d
790. Meanwhile, to show a federal contractor defense in a failure to warn products
liability case, a defendant must show that the “(1) the federal government exercised
discretion and approved warnings for the product; (2) the warnings the defendant
provided about the product conformed to the federal government specification; and
(3) the defendant warned the federal government about dangers known to the
defendant but not the government.” Jowers v. Lincoln Elec. Co., 617 F.3d 346, 352
(5th Cir. 2010).
Thus, unlike in Zeringue—where the contractor need only make a colorable
allegation that it was required to use asbestos—here Avondale needs to allege that
that the government either (1) precluded Avondale from providing any asbestos
warnings at all or (2) dictated or approved a particular asbestos warning used or
provided by Avondale. See Sawyer v. Foster Wheeler LLC, ___ F.3d ___, 2017 WL
2680581, at *4 (4th Cir. 2017) (“[T]he government need not prohibit the contractor
from providing additional warnings; the defense applies so long as the government
dictated or approved the warnings that the contractor actually provided.”).
Alternatively—because only one claim need be removable for federal officer
jurisdiction to be proper—Avondale could also demonstrate a federal contractor
defense to plaintiffs’ negligence claims with respect to Avondale’s safety program by
demonstrating that (1) the federal government exercised its discretion to approve a
particular safety program regarding asbestos, (2) Avondale followed that safety

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program, and (3) Avondale warned the federal government about dangers known to
the defendant but not the government.

Cf. Boyle v. United Techs. Corp., 487 U.S.

500, 512 (1988).
Yet Avondale focuses the relevant sections of its notice of removal, R. Doc. No.
1, at 5 ¶ 12, and its brief opposing remand, R. Doc. No. 8, at 21-23, entirely on the
proposition that the government required Avondale to use asbestos when
constructing ships. Now that is likely true, but that neither alleges that the “federal
government exercised discretion and approved” any warnings provided by Avondale
regarding asbestos, Jowers, 617 F.3d at 352, nor that the federal government dictated
or approved any particular safety program by Avondale regarding asbestos. Thus,
Avondale has failed to allege and argue a core element of the federal contractor
defense: whether the government exercised any discretion regarding asbestos
warnings or shipyard asbestos safety procedures in the first places. And Avondale
cannot hope to demonstrate a colorable federal defense if it does not even allege or
argue a core element of the applicable federal contractor defenses in this matter.
That failure distinguishes this case from Zeringue. Zeringue dealt with a
situation where the contractor alleged the correct elements of the federal contractor
defense, and then the Fifth Circuit examined what sort of evidence a defendant needs
to put forward to show that the defense is colorable. See 846 F.3d at 792 (“[D]efinitive
proof is not necessary for removal, and the military specifications and affidavits do
suffice as a not-insubstantial and non-frivolous basis upon which Crane may assert
government-contractor immunity.”)

By contrast, though the record here has some

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suggestion that the federal government may have at the very least made
recommendations regarding asbestos precautions, see R. Doc. No. 8-1, at ¶ 15, and
that there was a contemporaneous industrial hygiene program, see R. Doc. No. 8-1,
at ¶ 17, Avondale has neither alleged nor argued that any such programs satisfy the
first prong of the relevant Boyle analysis.
Given that this Court can only decide the motion to remand and the motion to
stay “on the basis of the issues adequately raised, and the arguments sufficiently
made,” Savoie, 824 F.3d at 469, and the arguments and allegations raised by
Avondale do not satisfy the first prong of the Boyle analysis for the claims at issue
here, the Court concludes that Avondale has neither demonstrated a strong nor a
substantial case that this Court ultimately has jurisdiction. Therefore, Avondale has
not met its burden of showing that a stay is warranted. See Nken, 556 U.S. at 434.
III.
Accordingly,
IT IS ORDERED that the motion to stay is DENIED.
New Orleans, Louisiana, July 6, 2017.

_______________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

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