Templet, Sr. v. Avondale Industries, Inc., et al

Filing 25

ORDER: IT IS HEREBY ORDERED that Plaintiff's 5 Motion to Remand is GRANTED and that the case is remanded to the Civil District Court for the Parish of Orleans, State of Louisiana. Signed by Judge Nannette Jolivette Brown on 8/4/2017. (mmv) (Additional attachment(s) added on 8/4/2017: # 1 Remand Letter) (mmv).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ROBERT TEMPLET, SR.

CIVIL ACTION

VERSUS

CASE NO. 17-5935

AVONDALE INDUSTRIES, INC., et al.

SECTION: “G”(1)

ORDER
In this litigation, Plaintiff Robert Templet, Sr. (“Plaintiff”) alleges that he suffered
exposure to asbestos and asbestos-containing products that were designed, manufactured, sold,
and/or supplied by a number of Defendant companies while Plaintiff was employed by Defendant
Avondale Industries, Inc. (“Avondale”).1 Pending before the Court is Plaintiff’s “Motion to
Remand.”2 Having considered the motion, the memoranda in support and in opposition, the record,
and the applicable law, the Court will grant the motion and remand this case to the Civil District
Court for the Parish of Orleans, State of Louisiana.

1

Rec. Doc. 1-2 at 3. In particular, the Defendants in this action include Albert Bossier, Huntington Ingalls
Inc., Lamorak Insurance Co., CBS Corporation, Eagle, Inc., First State Insurance Company, Georgia-Pacific LLC,
Goulds Pumps LLC, Hopeman Brothers, Inc., International Paper Co., Liberty Mutual Insurance Company, Maryland
Casualty Company, McCarty Corporation, Metropolitan Life Insurance Company, Reilly-Benton Company, Inc.,
Taylor-Seidenbach, Inc., Union Carbide Corporation, United States Fidelity and Guaranty Company, J.D. Roberts,
Certain Underwriters at Llyod's, London, Travelers Insurance Company, OneBeacon Insurance Company, Travelers
Indemnity Company, and Zurich American Insurance Company. Id. at 1–2.
2

Rec. Doc. 5.

1

I. Background
A.

Factual Background
In this litigation, Plaintiff alleges that he was employed by Avondale from 1968 to 2002.3

During that time, Plaintiff avers that he handled asbestos and asbestos-containing products in
various locations and work sites, resulting in Plaintiff breathing in asbestos fibers and later
developing diffuse malignant pleural mesothelioma.4 Plaintiff asserts that each of the named
Defendants “designed, tested, evaluated, manufactured, packaged, furnished, stored, handled,
transported, installed, supplied and/or sold [the] asbestos-containing products” to which Plaintiff
was exposed.5 Plaintiff brings Louisiana state law claims for negligence and strict liability.6
B.

Procedural Background
Plaintiff filed a “Petition for Damages” in the Civil District Court for the Parish of Orleans,

State of Louisiana, on May 15, 2017.7 Defendants Avondale, Albert Bossier, Jr., who is an
executive officer at Avondale, and Lamorak Insurance Company removed the case to this Court
on June 19, 2017.8 Defendants allege that removal is proper because this is an action “for or
relating to conduct under color of federal office commenced in a state court against persons acting
under one or more federal officers within the meaning of 28 U.S.C. § 1442(a)(1).”9

3

Rec. Doc. 1-2 at 3.

4

Id.

5

Id.

6

Id. at 4–15.

7

Id. at 1.

8

Rec. Doc. 1 at 2.

9

Id.

2

On July 5, 2017, Plaintiff filed the instant motion to remand.10 On July 5, 2017, Plaintiff
also filed a request for oral argument,11 which the Court denied.12 On July 25, 2017, Avondale
filed a timely opposition, which was subsequently marked as deficient by the Clerk of Court for
exceeding 25 pages.13 On July 26, 2017, Avondale filed a motion for leave to file a 33 page
opposition,14 which the Court granted.15 On July 27, 2017, Avondale filed a motion for leave to
file certain exhibits under seal,16 which the Court granted.17 On August 1, 2017, Plaintiff filed a
reply with leave of Court.18
II. Parties= Arguments
A.

Avondale’s Notice of Removal
In Avondale’s Notice of Removal, Avondale asserts that this Court has subject matter

jurisdiction pursuant to 28 U.S.C. § 1442(a)(1), as this action is allegedly for or relating to conduct
under color of federal office commenced in a state court against persons acting under one or more
federal officers.19 In particular, Avondale contends that Plaintiff stated during his deposition on
June 8, 2017, that he remembered working on Navy Destroyer Escorts and Coast Guard Cutters

10

Rec. Doc. 5.

11

Rec. Doc. 6.

12

Rec. Doc. 21.

13

Rec. Doc. 11.

14

Rec. Doc. 12.

15

Rec. Doc. 14.

16

Rec. Doc. 13.

17

Rec. Doc. 19.

18

Rec. Doc. 22.

19

Rec. Doc. 1 at 2.

3

while the vessels were afloat in the Mississippi River and while Plaintiff was employed at
Avondale.20 According to Avondale, Plaintiff testified in his deposition that he worked near
insulators while installing asbestos-containing products on those vessels, and that he breathed in
asbestos fibers generated during the work.21 Moreover, Avondale points out that Plaintiff testified
that he worked in close proximity to employees of Defendant Hopeman Brothers while aboard the
Coast Guard Cutters and while they were sawing asbestos-containing wallboards, which also
created asbestos dust that Plaintiff allegedly breathed.22
Avondale argues that it is a corporation and therefore a “person” within the meaning of 28
U.S.C. § 1442(a)(1), and that its former executive officers are “persons” within the meaning of the
statute as well.23 Avondale further asserts that Plaintiff worked on the Coast Guard Cutters and
Navy Destroyer Escorts pursuant to contracts between Avondale and the United States
government.24 Moreover, Avondale avers that the use of asbestos-containing materials from which
Plaintiff’s causes of action arise was required by the contractual provisions and design
specifications mandated by the federal government, and that the federal government oversaw the
construction process to ensure compliance.25 Therefore, Avondale contends that it was “acting
under” an “officer . . . of the United States or [an] agency thereof” within the meaning of Section

20

Id. at 2–3.

21

Id. at 3.

22

Id.

23

Id. (citing Savoie v. Huntington Ingalls Incorporated, 817 F.3d 457, 461 (5th Cir. 2016); Peterson v. Blue
Cross/Blue Shield of Texas, 508 F.2d 55, 57 (5th Cir. 1975)).
24

Id. at 4.

25

Id.

4

1442(a)(1), as it was performing a task that the federal government would otherwise have had to
perform, i.e. building ships “used to help conduct a war” and “to further other national interests.”26
Additionally, Avondale asserts “two colorable federal defenses” in its Notice of Removal
to Plaintiff’s claims: (1) Plaintiff’s claims are barred under the doctrine of government contractor
immunity established by the Supreme Court in Boyle v. United Technologies Corporation; and (2)
Plaintiff’s claims are preempted and barred by the exclusive remedy provisions of the Longshore and
Harbor Workers’ Compensation Act (“LHWCA”).27

B.

Plaintiff’s Motion to Remand
In his motion, Plaintiff argues that remand of this case involving only state law negligence

claims is proper, as: (1) Avondale was not “acting under” the direction of a federal officer and
cannot show a “causal nexus” between a federal officer’s “direct and detailed control” over
Avondale’s operations, safety activities, or handling of asbestos and Avondale’s ability to comply
with its state law obligations to warn and protect Plaintiff; and (2) Avondale’s LHWCA defense
does not provide an independent basis for removal, and, regardless, the LHWCA supplements state
law remedies rather than supplanting them.28
1.

Federal Officer Removal Statute

First, Plaintiff asserts that Avondale’s “federal officer removal” argument fails, as 28
U.S.C. § 1442(a)(1) requires Avondale to show that: (1) it is a “person” as defined in Section 1442;
(2) it acted pursuant to a federal officer’s directions and a causal nexus exists between those actions

26

Id. (citing Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 153–54 (2007); Savoie, 817 F.3d at

27

Id. at 5 (citing Boyle v. United Techs. Corp., 487 U.S. 500 (1988); 33 U.S.C. § 901).

28

Rec. Doc. 5 at 1.

461–62).

5

and Plaintiff’s claims; and (3) it has a “colorable federal defense” to the claims asserted.29 Plaintiff
asserts that Avondale has no support for the claim that the federal government compelled Avondale
to not warn or protect Plaintiff from the dangers of asbestos. 30 Plaintiff points out that he only
asserted a negligence state law claim against Avondale for failing to warn or protect him from the
hazards of asbestos, and not a strict liability claim which is premised on the mere use of asbestos.31
Thus, Plaintiff argues that it is insufficient for Avondale to claim that it was acting under
Department of Defense officials generally or that the government ordered Avondale to install
asbestos products, as Avondale must also show that it was under substantial control of the federal
government with regard to warning others of the presence of asbestos.32 According to Plaintiff, the
fact that the federal government specified that Avondale should use asbestos as one of the
thousands of raw materials used in the project is insufficient by itself to create “federal officer”
jurisdiction, just as the federal government’s specification that Avondale should use steel does not
create jurisdiction over a state law negligence action if a piece of steel dropped on a worker due to
Avondale’s negligence.33
Plaintiff further points to an affidavit of Felix Albert, a former federal ship inspector for
the United States Navy during the same time that Plaintiff worked for Avondale, in which Albert
states that Avondale employees did not work under the direction of an officer of the United

29

Rec. Doc. 5-1 at 7 (citing Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998)).

30

Id. at 2.

31

Id. at 1, 4–5, 16–17.

32

Id. at 7–8.

33

Id. at 2 n.1.

6

States.34 According to Plaintiff, Albert also testified that the United States government inspectors
did not monitor or enforce safety regulations, as that was the responsibility of Avondale.35
Likewise, Plaintiff avers that Peter Territo, a former Avondale Safety Director, testified in a 1996
deposition that federal officers did not control the safety department at Avondale and did not
prevent Avondale from meeting its duty to warn.36 Plaintiff asserts that Eddie Blanchard, a
Superintendent of Outfitting at Avondale, also testified in a previous deposition that federal
officers did not control the safety department at Avondale.37 Thus, Plaintiff avers that the evidence
demonstrates that asbestos safety measures at Avondale were never under federal control.38
Furthermore, Plaintiff contends that there is a long line of cases in the Fifth Circuit and the
Eastern District of Louisiana where courts have remanded cases with nearly identical facts and
arguments.39 Plaintiff asserts that these cases support his argument that Avondale cannot satisfy
the causal nexus requirement for Plaintiff’s negligence claims in this matter.40 For example,
Plaintiff argues that in Bartel v. Alcoa Steamship, the Fifth Circuit determined that allegations of
failure to warn and to take safety precautions did not constitute actions taken under color of federal

34

Id. at 8. Rec. Doc. 5-26.

35

Rec. Doc. 5-1 at 8.

36

Id. at 8–9. Rec. Doc. 5-27.

37

Rec. Doc. 5-1 at 9–10.

38

Id. at 13.

39

Id. at 9–10. (citing Savoie v. Huntington Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016); Bartel v. Alcoa
Steamship, 805 F.3d 169, 174 (5th Cir. 2015); Blouin v. Huntington Ingalls, Inc., No. 17-2636, 2017 WL 2628103
(E.D. La. Jun. 19, 2017); Legendre v. Huntington Ingalls, Inc., No. 17-2162, 2017 WL 1458209 (E.D. La. Apr. 25,
2017); Francis v. Union Carbide Corp., No. 11-2695, 2011 WL 6180061, at *1 (E.D. La. Dec. 13, 2011); Landry v.
Northrop Grumman Inds., Inc., No. 06-9889 (E.D. La. Dec. 4, 2006); Griffin v. Northrop Grumman Inds., Inc., No.
06-9439 (E.D. La. Dec. 4, 2006)).
40

Id. at 3.

7

authority.41 According to Plaintiff, the Fifth Circuit held that “although the federal government
had installed asbestos in the ships, it had not prevented the operators from warning plaintiffs about
the dangers of asbestos or from adopting safety procedures to minimize workers’ asbestos
exposure.”42
Similarly, Plaintiff avers that in Savoie v. Huntington Ingalls, Inc., the Fifth Circuit
determined that Avondale failed to show that the federal government’s mandate to use asbestos
insulation caused Avondale to engage in the allegedly negligent conduct of failing to warn of the
hazards of asbestos.43 Plaintiff points out that, unlike here, the plaintiff in Savoie brought a strict
liability claim, which the Fifth Circuit recognized “rest[s] on the mere use of asbestos,” whereas
claims for negligence turn on “discretionary decisions made by the shipyard.”44 Likewise, Plaintiff
points to several district court cases outside of the Fifth Circuit that Plaintiff asserts involved
remands on similar facts.45 For example, Plaintiff argues that in Overly v. Raybestos-Manhattan,
a court in the Northern District of California found that, although the defendant cited “abundant
evidence” that federal government regulations controlled the design and manufacture of U.S. Navy
vessels, “none of these guidelines addresses Avondale’s responsibility to warn its employees of
their exposure to products containing asbestos.”46 According to Avondale, the court held that

41

Id. at 17 (quoting Bartel, 805 F.3d at 174).

42

Id. (quoting Bartel, 805 F.3d at 173–74).

4343

Id. at 15–16 (citing Savoie, 817 F.3d at 462).

44

Id. at 16 (citing Savoie, 817 F.3d at 465).

45

Id. at 10–11.

46

Id. (quoting Overly v. Raybestos-Manhattan, No. 96-2853, 1996 WL 532150, at *4 (N.D. Cal. Sept. 9,
1996) (emphasis in original)).

8

remand was proper because “there is no causal connection between the control exercised by the
United States over Avondale and the legal theory under which plaintiffs seek to hold Avondale
liable.”47 Similarly, Plaintiff argues that there is no such nexus between Plaintiff’s claims and the
directives to Avondale by the federal government at issue here.48
Plaintiff contends that although Section 1442(a)(1) was amended in 2011, it did not bring
negligence-based claims within the ambit of the federal officer removal statute.49 Rather, Plaintiff
avers that the 2011 amendment removed the word “sued” from the statute and was intended to
make clear that pre-suit discovery proceedings under state law can be removed to federal court.50
Moreover, Plaintiff argues that Avondale’s citation to the Fifth Circuit case Zeringue v. Crane
Company is distinguishable, as it involved claims for strict liability and negligence against a
product manufacturer who removed the case, whereas here, Avondale is a premises owner and
employer facing only negligence claims.51
Additionally, Plaintiff asserts that the third prong of the federal officer removal statute is
not met either, as Avondale does not have a colorable federal government contractor defense.52
Plaintiff argues that such a defense is not recognized here, as Plaintiff does not assert a claim
against Avondale based on a design defect or a manufacturing defect.53 Plaintiff further contends

47

Id. at 11 (quoting Overly, 1996 WL 532150, at *4).

48

Id. at 11–12.

49

Id. at 18.

50

Id.

51

Id. at 18–19 (citing Zeringue v. Crane Co., 846 F.3d 785, 788 (5th Cir. 2017)).

52

Id. at 13, 21.

53

Id. at 21.

9

that a government contractor’s defense does not apply because his mesothelioma was caused by
asbestos-containing products manufactured by other Defendants, and not by Avondale, and that
asbestos-containing products are not military equipment.54
2.

Removal Pursuant to the LHWCA

Second, Plaintiff argues that the LHWCA cannot serve as an independent basis for
removal, as a case may not be removed merely on the basis of a preemption defense.55 Regardless,
Plaintiff contends that the LHWCA does not preempt state law, but rather supplements the
remedies that an injured worker may pursue.56 Plaintiff asserts that, because his exposure to
asbestos began in 1968 before Louisiana’s workers’ compensation scheme began covering
mesothelioma, he is free to pursue state law tort claims against Avondale in state court.57
Moreover, Plaintiff points out that he has not filed a claim for LHWCA benefits.58
C.

Avondale’s Opposition to Plaintiff’s Motion to Remand
In its opposition memorandum, Avondale asserts that it built thirty-nine Coast Guard

Cutters and Navy Destroyer Escorts pursuant to contracts between Avondale and the United States
government from 1967 to 1974.59 According to Avondale, these contracts included mandatory
specifications in the construction of the vessels, including detailed requirements that Avondale use

54

Id. (citing In re Hawaii Fed. Asbestos Cases, 960 F.2d 806, 812 (9th Cir. 1992); Hansen v. Johns-Manville
Prod. Corp., 734 F.2d 1036 (5th Cir. 1984)).
55

Id. at 4, 23 (citing GlobeRanger Corp. v. Software AG, 691 F.3d 702, 705 (5th Cir. 2012); Aaron v. National
Union Fire Insurance Co., 876 F.2d 1157 (5th Cir. 1989)).
56
Id. at 4 (citing Sheppard v. Northrup Grumman, Sys. Corp., No. 07-2208, 2007 WL 1550992 at *2, 3, 6–7
(E.D. La. May 24, 2007); Gauthe v. Asbestos Corp., No. 96-2454, 1997 WL 3255 at *3–5 (E.D. La. Jan. 2, 1997)).
57

Id. at 25.

58

Id.

59

Rec. Doc. 11 at 9.

10

asbestos-containing materials. 60 Avondale contends that federal inspectors oversaw the handling
of construction materials and the care of those products until they were installed on the vessels,
and that the federal inspectors monitored the day-to-day construction of the vessels.61 Avondale
argues that this included the use and application of asbestos-containing materials.62
As such, Avondale asserts that this case was properly removed under the federal officer
removal statute, which extends to contractors performing tasks on behalf of the federal
government.63 According to Avondale, Section 1442’s purpose is to prevent persons, including
corporations, acting under the direction of federal officers “from being tried in state courts for acts
done within the scope of their federal employment.”64 Avondale asserts that Congress intended for
Section 1442 to be interpreted broadly in favor of removal.65
Avondale argues that all requirements for removal under 28 U.S.C. § 1442 are met here.66
First, Avondale represents that, as a corporation, it is a “person” within the meaning of Section
1442(a)(1).67 Second, Avondale avers that it acted under color of federal officer when it was

60

Id. at 10.

61

Id.

62

Id.

63

Id. at 11.

64

Id. at 11–12 (quoting Peterson v. Blue Cross/Blue Shield of Tex., 508 F.2d 55, 58 (5th Cir. 1975)).

65
Id. (citing Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 460 (5th Cir. 2016); Durham v. Lockheed
Martin Corp., 445 F.3d 1247, 1252 (9th Cir. 2006); Loupe v. Pennsylvania Gen. Ins. Co., No. 16-6075, 2016 WL
6803531, at *2 (E.D. La. Nov. 17, 2016)).
66
Id. at 12–13. In particular, Avondale asserts that it must show: “(1) that it is a person within the meaning
of the statute, (2) that it acted under color of federal office, (3) that a causal nexus exists between [its] actions under
color of federal office and at least one of the plaintiff’s claims, and (4) that it has a colorable federal defense.” Id.
(citing Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017); Winters v. Diamond Shamrock Chem. Co., 149 F.3d
387, 398-400 (5th Cir. 1998)).
67

Id. at 13.

11

contracted by the federal government to construct the Navy Destroyer Escorts and Coast Guard
Cutters.68
Third, Avondale argues that Plaintiff’s negligence claims satisfy the causal nexus element,
particularly in light of the 2011 amendment to Section 1442.69 According to Avondale, before its
amendment in 2011, the federal officer removal statute allowed removal only when the removing
defendant had been sued “for [an] act under color of [federal] office.”70 Avondale represents that
the causal nexus text under the pre-2011 version of Section 1442 required removing defendants to
satisfy a “but for” inquiry and show that the “precise wrongful act or omission alleged by the
plaintiffs was itself specifically directed or compelled by federal officers.”71 Now, Avondale avers,
the removal statute provides for broader removal of suits “relating to . . . act[s] under color of
[federal] office,” which Avondale contends establishes a broader “associated” or “in connection
with” standard.72 Here, Avondale argues that the duties of care it owed Plaintiff resulted directly
from the government’s directive to use asbestos, and therefore Plaintiff’s negligence claims are
“related to” or were “associated with” the government directives.73 Avondale points out that in In
re Commonwealth’s Motion to Appoint Counsel, the Third Circuit held that removal of a lawsuit
against federal public defenders seeking to prevent them from appearing in state court was proper,

68

Id. (citing Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 153–54 (2007); Wilde v. Huntington Ingalls
Incorporated, 2015 WL 3796444, at *2 (5th Cir. June 19, 2015)).
69

Id. at 13–14.

70

Id. at 14 (emphasis in original).

71

Id.

72

Id. at 14–15 (emphasis in original).

73

Id. at 16.

12

as appearing in state court post-conviction hearings was associated or connected with their federal
habeas mandate.74 Likewise, Avondale represents that in Savoie, the Fifth Circuit noted that,
although the defendant had failed to fully brief its argument that the 2011 amendment allows
removal of similar negligence claim, the defendants “make a colorable argument that, in regard to
the negligence claims, this action is removable because of the 2011 statutory amendment adding
the words ‘or relating to’ to § 1442(a)(1).”75 Thus, Avondale contends that it has satisfied the third
factor under Section 1442 by showing that there is a causal connection between Plaintiff’s claims
and the government’s directives.76
Fourth, Avondale argues that it has asserted two “colorable” federal defenses, as Avondale
avers that it is only required to show at this stage that the defense is “plausible.”77 Avondale
contends that one or more of Plaintiff’s claims is barred by its government contractor immunity
defense, which provides immunity for conduct that complies with the specifications of a federal
contract.78 According to Avondale, to prevail on the merits of its defense, it must establish:
“(1) that the government approved reasonably precise specifications for the construction of the
ships; (2) that the ships conformed to those specifications; and (3) that the contractor warned the
government of any hazards presented by the asbestos-containing components the government
required that were known to the contractor but unknown to the government.”79

74

Id. at 16–17.

75

Id. at 17 (citing Savoie, 824 F.3d at 469–70).

76

Id. at 17–18.

77

Id. at 18.

78

Id. at 19.

79

Id. at 20 (citing Boyle, 487 U.S. at 511).

13

Avondale avers that the first factor is met, as the federal vessels at issue here were built
pursuant to contracts with the United States government that imposed mandatory specifications on
Avondale to use asbestos-containing materials.80 Avondale represents that every aspect of the
shipbuilding process, including the use and application of the asbestos-containing materials, was
monitored for compliance by federal inspectors.81 Likewise, Avondale avers that the second factor
requiring compliance with the government’s specifications is easily met and not disputed by
Plaintiff.82 Finally, Avondale argues that the third factor is met, as the Fifth Circuit has held that a
government contractor only has a duty to warn the government of dangers “that were known to the
contractor but not to the United States.”83 In support, Avondale points to the affidavits of Thomas
McCafferty, a maritime historian, which states that the government knew “as much or more than
Avondale did about the hazards of asbestos exposure.”84 Avondale further represents that the
affidavit of Danny Joyce, a representative of Avondale, states that Avondale never had any
information regarding the health hazards of asbestos that was not known by the federal
government.85
Avondale further argues that one or more of Plaintiff’s claims is preempted or barred by
the exclusive remedy provisions of the LHWCA.86 Avondale concedes that it does not assert that

80

Id. at 20–21.

81

Id. at 21–22.

82

Id. at 22–23.

83

Id. at 23 (citing Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1487 (5th Cir. 1989)).

84

Id.

85

Id. at 23–24.

86

Id. at 24–25.

14

its preemption defense establishes subject matter jurisdiction, but rather it is one of two colorable
federal defenses Avondale points to in order to show that removal under Section 1442 is proper.87
Avondale asserts that Plaintiff worked on the Navy Destroyer Escorts and Coast Guard Cutters
while they were in the Mississippi River, and therefore he is covered by the LHWCA.88 Avondale
argues that the applicable law is determined at the time the disease manifests itself, and here
Plaintiff was not diagnosed with mesothelioma until February of 2017.89 Under the current version
of the LHWCA, Avondale contends, Plaintiff’s state law tort action is barred.90 Avondale therefore
concludes that Plaintiff may only choose between the LHWCA benefits and state workers’
compensation benefits, and may not bring state tort law actions for damages.91 Moreover,
Avondale argues that Plaintiff is not covered by the Louisiana workers’ compensation act because
it does not cover exposures to asbestos that occurred before 1975.92 Thus, Avondale asserts that
the LHWCA governs by default and thereby preempts Plaintiff’s tort actions.93
D.

Plaintiff’s Arguments in Further Support of the Motion to Remand
In reply, Plaintiff asserts that Avondale’s arguments regarding the causal nexus

requirement are the same ones that were recently rejected by two other courts in the Eastern District

87

Id. at 24.

88

Id. at 25.

89

Id. at 25–26.

90

Id. at 26.

91

Id.

92

Id.

93

Id. at 27 (citing Cobb v. Sipco Servs. & Marine, Inc., 1997 WL 159491 (E.D. La. Mar. 27, 1997) (Vance,

J.)).

15

of Louisiana involving nearly identical facts and causes of action.94 Plaintiff also points out that
the Fifth Circuit has recently considered two cases involving similar negligence claims that were
removed pursuant to the federal officer removal statute, in which the Fifth Circuit held that both
did not meet the causal nexus requirement even under the post-2011 amended version of Section
1442.95 According to Plaintiff, the Fifth Circuit determined in both cases that claims regarding
Avondale’s failure to properly handle asbestos or failure to warn, train, or implement safety
procedures do not give rise to federal officer jurisdiction.96 Plaintiff avers that Avondale is urging
the Court to find that removal is warranted in every case involving a government vessel.97 Plaintiff
argues, however, that his claims do not arise simply because Avondale built ships for the
government, but rather because Avondale failed to warn of the hazards of asbestos or to take
industrial hygiene measures.98 Plaintiff contends that Avondale has not provided evidence of any
government directives mandating that Avondale not protect its employees.99
Moreover, Plaintiff argues that the 2011 amendment sought to ensure that federal officers
could remove pre-suit discovery proceedings, and that it “was not designed to gut the causal nexus
requirement.”100 According to Plaintiff, the House Report on the 2011 amendment states that there

94
Rec. Doc. 22 1–2 (citing Blouin v. Huntington Ingalls Inc., No. 17-2636, 2017 WL 2628103, at *5 (E.D.
La. June 19, 2017) (Zainey, J.); Legendre v. Huntington Ingalls Inc., No. 17-2162, 2017 WL 1458209, at *5 (E.D.
La. Apr. 25, 2017) (Africk, J.)).
95

Id. at 3–4 (citing Savoie, 817 F.3d at 460; Bartel, 805 F.3d at 172),

96

Id. at 4.

97

Id.

98

Id.

99

Id. at 5.

100

Id. at 6.

16

must still be a causal connection “between the charged conduct and asserted authority” and that
removal is allowed “only when the acts of Federal defendants are essentially ordered or demanded
by Federal authority.”101
Additionally, Plaintiff asserts that Avondale cannot establish a colorable federal defense,
i.e. the third prong of the federal officer removal statute.102 First, Plaintiff contends that Avondale
cannot claim a federal contractor defense, as it cannot show that the federal government specified
that Avondale could not warn Plaintiff or implement industrial hygiene measures. 103 Plaintiff
argues that there is no conflict here between the government’s specifications and Avondale’s state
law duties, and thus the government contractor defense does not apply. 104 Second, Plaintiff avers
that, because his injuries did not occur on a “vessel” as defined in the LHWCA, his claims are not
preempted by the LHWCA.105 Plaintiff points out that the Fifth Circuit has held that a ship that
was 80% to 85% constructed but still incomplete did not constitute a “vessel” under the
LHWCA.106 Here, Plaintiff argues that it is undisputed that the vessels he worked on were still
under construction.107 Moreover, Plaintiff asserts that the LHWCA provides a minimum level of

101

Id.

102

Id.

103

Id. at 6–7.

104

Id. at 7.

105

Id.

106

Id. (citing Rosetti v. Avondale Shipyards, Inc., 821 F.2d 1083, (5th Cir. 1987)).

107

Id. at 8.

17

compensation to injured workers, and it does not limit Plaintiff’s option of pursuing other remedies
under state or federal law.108
III. Law and Analysis
A.

Legal Standard
Pursuant to the current text of 28 U.S.C. § 1442(a)(1), a civil action commenced in state

court against “[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” may be removed to federal court. The purpose of
the federal officer removal statute is to protect the federal government from undue state
interference of its lawful activities.109 Before Section 1442(a)(1) was amended in 2011, a person
acting under a federal officer could only remove a case to federal court if the state lawsuit was “for
any act under color of such office;” after the 2011 amendment, Section 1442 allows removal of a
state suit “for or relating to any act under color of such office.”110 According to the Fifth Circuit,
“[t]he 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.’”111

108

Id. at 9.

109

See Mesa v. California, 489 U.S. 121, 126 (1989); Bartel v. Alcoa Steamship Co., 64 F. Supp. 3d 843,
852–53 (M.D. La. 2014), aff’d sub nom. Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir. 2015); St. Bernard Port,
Harbor & Terminal Dist. v. Violet Dock Port, Inc., LLC, 809 F. Supp. 2d 524, 529 (E.D. La. 2011) (Vance, J.).
110

28 U.S.C. § 1442(a)(1) (emphasis added); Zeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017)
(discussing the 2011 amendment).
111

Zeringue, 846 F.3d at 793 (quotation marks omitted).

18

Unlike the general removal statute, which must be “strictly construed in favor of remand,”
the federal officer removal statute’s language must be liberally interpreted.112 Nonetheless, its
“broad language is not limitless.”113 It is the removing party’s burden to establish the existence of
federal jurisdiction over the controversy.114 Orders remanding a case to state court that was
removed pursuant to the federal officer removal statue are appealable under 28 U.S.C. § 1447(d)
and are reviewed de novo by the Fifth Circuit, “without a thumb on the remand side of the scale.”115
The Fifth Circuit has adopted a three-part inquiry to determine whether a government
contractor qualifies as a “person acting under [a federal] officer” who is sued “in an official or
individual capacity for any act under color of such office.”116 The contractor must prove that: (1)
it is a “person” within the meaning of the statute; (2) it acted pursuant to a federal officer’s
directions, and a causal nexus exists between its actions under color of federal office and the
plaintiff’s claims; and (3) it has a colorable federal defense to the plaintiff’s claims.117
B.

Analysis
As stated supra, in order to show that removal under the federal officer removal statute is

proper, Avondale must show that: (1) it is a “person” within the meaning of the statute; (2) it acted

112

Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 147 (2007); Winters v. Diamond Shamrock Chem.
Co., 149 F.3d 387, 398 (5th Cir. 1998) (“Furthermore, this right is not to be frustrated by a grudgingly narrow
interpretation of the removal statute.”); Bartel, 64 F. Supp. 3d at 852–53; St. Bernard Port, Harbor & Terminal Dist.,
809 F. Supp. 2d at 529.
113

Watson, 551 U.S. at 147; Winters, 149 F.3d at 397.

114

Winters, 149 F.3d at 397; St. Bernard Port, Harbor & Terminal Dist., 809 F. Supp. 2d at 529.

115

Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 460 (5th Cir. 2016).

116

Id.; St. Bernard Port, Harbor & Terminal Dist., 809 F. Supp. 2d at 529.

117

Winters, 149 F.3d at 397; Savoie, 817 F.3d at 460; St. Bernard Port, Harbor & Terminal Dist., 809 F.
Supp. 2d at 529.

19

pursuant to a federal officer’s directions, and a causal nexus exists between its actions under color
of federal office and the plaintiff’s claims; and (3) it has a colorable federal defense to the
plaintiff’s claims.118 With regard to the first factor, Plaintiff does not dispute that Avondale as a
corporation qualifies as a “person” within the meaning of Section 1442. Both the Supreme Court
and the Fifth Circuit have recognized that the removal statute applies to both private persons and
corporate entities “‘who lawfully assist’ the federal officer ‘in the performance of his official
duty.’”119 Therefore, the Court finds that Avondale has sufficiently shown that it is a “person”
within the meaning of the federal officer removal statute.
With regard to the second factor, Plaintiff argues that Avondale cannot show that it acted
pursuant to a federal officer’s directions when it allegedly failed to warn and protect Plaintiff from
the dangers of asbestos, or that there is a causal nexus between Avondale’s actions under color of
federal office and Plaintiff’s negligence claims.120 In opposition, Avondale asserts that, under the
current “for or relating to” language of Section 1442(a)(1), it has demonstrated that the duties of
care it owed Plaintiff resulted directly from the government’s specifications to use asbestoscontaining materials in constructing the federal vessels, and therefore Plaintiff’s negligence claims
are “related to” its actions pursuant to the federal government’s directions.121

118

28 U.S.C. § 1442(a)(1); Winters, 149 F.3d at 397; Savoie, 817 F.3d at 460; St. Bernard Port, Harbor &
Terminal Dist., 809 F. Supp. 2d at 529; see also Blouin v. Huntington Ingalls Inc., No. 17-2636, 2017 WL 2628103,
at *5 (E.D. La. June 19, 2017) (Zainey, J.).
119

Savoie, 817 F.3d at 461 (quoting Watson, 551 U.S. at 151 (quoting Davis v. South Carolina, 107 U.S. 597,
600 (1883))).
120

Rec. Doc. 5-1 at 1, 4–5, 16–17.

121

Rec. Doc. 15 at 16.

20

In Bartel v. Alcoa S.S. Company, a 2015 case decided after Section 1442(a) was amended
in 2011, the Fifth Circuit explained that it is “necessary but not sufficient for a defendant to show
it ‘acted pursuant to a federal officer’s directions,’” as the removing party must also show that a
causal nexus exists.122 In Bartel, the Fifth Circuit instructed that, when considering whether a
causal nexus exists for removal, it is “important to understand the nature of the plaintiffs’
allegations . . . [for] failure to warn, failure to train, and failure to adopt procedures for the safe
installation and removal of asbestos.”123 Thus, the Bartel court opined that the proper approach for
such negligence claims is to consider whether the federal government exercised control over safety
requirements such that a failure to warn was caused by the government’s instructions.124 Because
the defendants “[could] do no better than to show that the federal government owned the vessels
in question” and did not produce evidence that the government issued orders relating to safety
procedures or asbestos, the Fifth Circuit held that remand was proper.125 “What little evidence
there is suggests the Federal Officer Defendants operated the vessels in a largely independent
fashion and, at a minimum, were free to adopt the safety measures the plaintiffs now allege would
have prevented their injuries.”126
A year later in Savoie v. Huntington Ingalls, Inc., the Fifth Circuit again held that, “with
respect to the [plaintiff’s] negligence claims, we agree with the district court that the federal

122

Bartel v. Alcoa S.S. Co., 805 F.3d 169, 172 (5th Cir. 2015) (emphasis added) (quoting Winters, 149 F.3d

123

Id. at 173.

124

Id. (citing Lalonde v. Delta Field Erection, No. 96-3244, 1998 WL 34301466, at *1 (M.D. La. Aug. 6,

125

Id. at 174.

126

Id.

at 398).

1998)).

21

government’s mandate of asbestos insulation did not cause the shipyard to engage in the
challenged conduct.”127 In other words, the Fifth Circuit concluded that negligence claims for
failing to warn of the dangers of asbestos or to take safety precautions against asbestos exposure
“did not challenge actions taken under color of federal authority even though the government was
responsible for the existence of the asbestos.”128 The Fifth Circuit noted that the shipyard failed to
demonstrate that its government contracts “prevented it from taking any of these protective
measures identified by Plaintiffs,” as an affidavit stating that the Navy inspected and oversaw the
vessels for safety was insufficient to trigger Section 1442(a)(1) jurisdiction.129 The Fifth Circuit
further pointed out that the other evidence presented made clear that the government had no control
over the shipyard’s safety procedures or safety department.130 In sum, the Fifth Circuit concluded
that because the plaintiff’s 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,” removal on those grounds were not proper.131
The Fifth Circuit further determined, however, that the plaintiff’s strict liability claims against the
shipyard, which were premised on the “mere use of asbestos” and “do not turn on discretionary
decisions made by the shipyard,” supported federal officer removal.132

127

817 F.3d 457, 462 (5th Cir. 2016).

128

Id.

129

Id. at 463.

130

Id.

131

Id.

132

Id. at 465.

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This litigation was removed to this Court by Defendants Avondale, Albert Bossier, Jr., and
Lamorak Insurance Company.133 In Plaintiff’s Petition for Damages, Plaintiff alleges that he was
exposed to asbestos-containing products by the negligence conduct of Avondale and its corporate
officers.134 In particular, Plaintiff alleges that Avondale and its executive officers failed to properly
discharge their duties to Plaintiff by failing to: (1) provide Plaintiff with a safe work environment
or adequate safety equipment; (2) warn Plaintiff about the hazards of asbestos or reveal critical
information regarding the risks associated with asbestos; (3) timely remove asbestos hazards from
the workplace; (4) properly ensure compliance with safety regulations; (5) provide a safe means
of eliminating asbestos dust in the air; and (6) provide necessary protections to lessen or eliminate
the transfer of asbestos from the workplace to Plaintiff’s home.135 Plaintiff further alleges that
Lamorak Insurance Company is liable to Plaintiff as Avondale’s insurer.136 Plaintiff does not assert
any strict liability claims against Defendants Avondale, Albert Bossier, Jr., and Lamorak Insurance
Company.137
Based on the foregoing and in light of the Fifth Circuit’s holdings in Bartel and Savoie, the
Court finds that Avondale has not shown the second prong of the federal officer removal statute is
met, i.e. that a causal nexus exists between its actions under color of federal office and the
plaintiff’s claims.138 Plaintiff has only brought negligent claims against Avondale for its alleged

133

Rec. Doc. 1.

134

Rec. Doc. 1-2 at 11.

135

Id. at 11–12.

136
Id. at 14–15. Plaintiff erroneously refers to Lamorak Insurance Company as OneBeacon Insurance
Company in the Petition. Id.
137

Id.

138

Winters, 149 F.3d at 397; Savoie, 817 F.3d at 460; St. Bernard Port, Harbor & Terminal Dist., 809 F.

23

failure to take certain safety precautions and warn Plaintiff about the dangers of asbestos. 139 In
response, Avondale points to the existence of the government contract as the basis for Plaintiff’s
work and the federal government’s specifications that asbestos-containing products were to be
used in constructing the federal vessels.140 Avondale further argues that the 2011 amendment to
the text of Section 1442(a)(1) widens the scope of the federal officer removal statute.141 However,
as the Fifth Circuit has made clear in two cases decided under the current version of 28 U.S.C.
§ 1442(a)(1), removal is not proper when the “federal government’s mandate of asbestos insulation
did not cause the shipyard to engage in the challenged conduct.”142 In Zeringue v. Crane Company,
a recent case decided in 2017, the Fifth Circuit directly addressed the effect of the 2011 amendment
on Section 1442.143 In Zeringue, the Fifth Circuit confirmed that Section 1442, “both before and
after the 2011 amendment,” requires the causal nexus prong to be satisfied, and that while the 2011
amendment expanded the breadth of acts within the removal statute’s reach, courts should not
“attenuate the causal nexus requirement ‘to the point of irrelevance.’”144
While the Zeringue court ultimately concluded that removal was proper because the
manufacturer-defendant had shown that it was ordered by the Navy to provide the asbestos-

Supp. 2d at 529.
139

Rec. Doc. 1-2 at 11–15.

140

See Rec. Doc. 15 at 16–18 (noting that the government directed Avondale to use asbestos in building the
Coast Guard Cutters and Navy Destroyer Escorts, and therefore Plaintiff’s claims are “related to,” “associated,” or
“connected with” the government’s directives).
141

Id.

142

Savoie, 817 F.3d at 462.

143

846 F.3d 785, 793 (5th Cir. 2017).

144

Id. (citing Wilde v. Huntington Ingalls, Inc., 616 Fed. App’x 710, 713 (5th Cir. 2015)).

24

containing parts on which the plaintiff’s strict liability claims were premised, it recognized that its
holding was consistent with its decision in Bartel, which involved claims for failure to warn or
provide safety measures analogous to Plaintiff’s here.145 The Fifth Circuit recognized that the
conduct in Bartel “implicated no federal interest,” and allowing those defendants to remove
“would have stretched the causal nexus requirement to the point of irrelevance.”146 Thus, contrary
to Avondale’s suggestion that the decision in Zeringue supports removal here, Zeringue confirms
that Bartel remains good law.147 By contrast, Avondale does not distinguish the facts of this case
from the negligence claims in Bartel and Savoie or otherwise show how Plaintiff’s claims are
“related to” Avondale’s acts under color of federal office such that a causal nexus exists.
Here, like in Bartel, Plaintiff only asserts negligence claims against his employer,
Avondale, for its failure to meet its duties to Plaintiff. Moreover, Avondale has adduced no
evidence that the federal government prevented Avondale from taking the protected measures
identified by Plaintiff or exercised control over Avondale’s safety procedures or safety
department.148 In other words, Avondale has not demonstrated that its own discretionary decisions
to allegedly fail to warn or protect Plaintiff from the dangers of asbestos while Plaintiff was
employed by Avondale resulted from or is “related to” its actions under color of federal office, to
the extent that any such actions exist.149 As such, this case is distinguishable from such cases as

145

Id. at 788, 794.

146

Id. at 794.

147

See, e.g., Blouin v. Huntington Ingalls Inc., No. 17-2636, 2017 WL 2628103, at *6 (E.D. La. June 19,
2017) (Zainey, J.) (“Simply, Zeringue expressly recognizes that Bartel remains a correct result even under the 2011
amendments.”).
148

Savoie, 817 F.3d at 463.

149

28 U.S.C. § 1442(a)(1).

25

Papp v. Fore-Kast Sales Company, decided by the Third Circuit in 2016,150 and Sawyer v. Foster
Wheeler LLC, decided by the Fourth Circuit in 2017,151 which both found that there was evidence
that the federal government exercised some control over asbestos warnings and safety materials,
and thus removal of a failure to warn claim was proper.152 Rather, similar to the plaintiff in Savoie,
Plaintiff has pointed to affidavits from both a federal inspector and a former Avondale Safety
Director that confirmed that the federal government did not exercise any control over Avondale’s
safety department or its compliance with safety regulations.153
In short, Avondale has identified no evidence nor any plausible reason to distinguish this
matter from the clear Fifth Circuit holdings in Bartel, Savoie, and Zeringue, or the recent
conclusions of several district courts that rejected the same arguments put forth by Avondale
here.154 Allowing removal of Plaintiff’s claims premised on Avondale’s discretionary decisions
would not serve the basic purpose of Section 1442, i.e. “to protect the Federal Government
from . . . interference with its ‘operations.””155 Accordingly, because Avondale has not shown that

150

842 F.3d 805, 813 (3d Cir. 2016).

151

860 F.3d 249, 258 (4th Cir. 2017).

152
Sawyer, 860 F.3d at 258 (noting that the Navy dictated the content of warnings on the defendant’s boilers);
Papp, 842 F.3d at 813 (pointing out that the United States Armed Forces exercised control over the written materials
and warnings associated with the aircraft at issue).
153

See Rec. Doc. 5-1 at 8–9.

See, e.g., Blouin, No. 17-2636, 2017 WL 2628103, at *6 (rejecting Avondale’s argument that it could
remove claims for failure to warn and failure to implement safety measures under the 2011 amendments to Section
1442); Legendre v. Huntington Ingalls Inc., No. 17-2162, 2017 WL 1458209, at *5 (E.D. La. Apr. 25, 2017) (Africk,
J.) (finding that Avondale failed to establish a causal nexus with the plaintiff’s negligence claims challenging
Avondale’s discretionary decisions); Wilde v. Huntington Ingalls Inc., No. 15-1486, 2015 WL 2452350, at *6 (E.D.
La. May 21, 2015) (Fallon, J.) (determining that there was no evidence that the government restricted Avondale’s
ability to warn of the asbestos dangers, and therefore there was no jurisdiction over the plaintiff’s failure to warn
claims).
154

155

Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 142 (2007).

26

the necessary causal nexus between Avondale’s actions under color of federal office and Plaintiff’s
claims exists, the Court finds that removal pursuant to 28 U.S.C. § 1442(a)(1) was improper.
Accordingly, the Court concludes that the above-captioned matter must be remanded for lack of
subject matter jurisdiction,156 and therefore grants Plaintiff’s motion to remand.157
IV. Conclusion
Based on the foregoing, the Court finds that removal pursuant to 28 U.S.C. § 1442(a)(1)
was improper, as Avondale has not shown that the necessary causal nexus between Avondale’s
actions under color of federal office and Plaintiff’s negligence claims exists. Avondale has not
pointed to any evidence that the government controlled Avondale’s safety procedures or safety
department such that its alleged failure to warn or protect Plaintiff from the dangers of asbestos is
“related to” its actions under color of federal office. Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s “Motion to Remand”158 is GRANTED and
that the case is remanded to the Civil District Court for the Parish of Orleans, State of Louisiana.
NEW ORLEANS, LOUISIANA, this 4th

day of August, 2017.

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

156

See Savoie, 817 F.3d at 462; Bartel, 805 F.3d at 172.

157
Rec. Doc. 5. Because the Court finds that Avondale has not satisfied the causal nexus requirement for
removal under Section 1442(a)(1), the Court need not address Plaintiff’s arguments that Avondale also lacks a
colorable federal defense.
158

Id.

27