Brady, et al v. Taylor Seidenbach, Inc., et al

Filing 59

ORDER AND REASONS granting 25 Motion to Remand. For the foregoing reasons, the Court GRANTS plaintiffs' motion to remand. This case is REMANDED to the Civil District Court for the Parish of Orleans. Signed by Judge Sarah S. Vance on 8/1/2018. (cg) (Additional attachment(s) added on 8/1/2018: # 1 Remand Letter) (cg).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
TERRY BRADY AND GLENDA BRADY
VERSUS

CIVIL ACTION
NO. 18-3350

TAYLOR SEIDENBACH, INC. ET AL.

SECTION “R” (3)

ORDER AND REASONS
Before the Court is plaintiffs’ motion to remand to state court. 1 For the
following reasons, the Court grants the motion.

I.

BACKGROUND
This case arises out of plaintiff Terry Brady’s alleged asbestos exposure.

Mr. Brady alleges that he was exposed to asbestos at various workplaces.2
The relevant period of employment for purposes of this motion to remand is
Mr. Brady’s service in the U.S. Navy from 1968 to 1989 as a Machinists Mate
and Master Chief aboard several vessels.3 Mr. Brady testified in a deposition
that while he was aboard the USS Robert A. Owens, the vessel was docked at

1
2
3

R. Doc. 25.
R. Doc. 25-4 at 7 ¶ 2.
Id. at 8 ¶ 6.

Avondale Shipyards for feed pump refurbishment.4 According to Mr. Brady,
he had little interaction with the shipyard workers while at Avondale and
took orders only from his Naval officers.5

Mr. Brady alleges that he

developed lung cancer because of his exposure to asbestos. 6
On February 8, 2018, Mr. Brady and his wife, Glenda Brady, filed an
action in state court for negligence. Plaintiffs named numerous defendants,
including Huntington Ingalls, Inc. (Avondale).7

Plaintiffs’ negligence

allegations against Avondale include failure to warn, failure to provide a safe
environment, and failure to employ safe procedures for handling asbestos.8
Avondale removed this case to federal court on March 28, 2018.9 In its notice
of removal, Avondale asserted that this Court has subject matter jurisdiction
under 28 U.S.C. § 1442(a)(1), because plaintiffs’ claims are for or related to
acts performed under color of federal office. 10 In response, plaintiffs moved
to remand this action to state court. 11

R. Doc. 42-1 at 5-6.
Id. at 7-10.
6
R. Doc. 25-4 at 9 ¶¶ 7, 10.
7
Id. at 7. Huntington Ingalls, Inc. was formerly known as Northrop
Grumman Ship Systems, Inc. and Avondale Industries, Inc. See id.
8
Id. at 11-13 ¶¶ 14-16.
9
R. Doc. 1.
10
Id. at 2.
11
R. Doc. 25.
2
4
5

II.

LEGAL STANDARD
The federal officer removal statute permits an officer of the United

States, “or any person acting under that officer,” to remove to federal court a
civil action or criminal prosecution brought against them “in an official or
individual capacity, for or relating to any act under color of such office.” 28
U.S.C. § 1442(a)(1). The party asserting jurisdiction under this statute bears
the burden of establishing that federal jurisdiction exists. Winters v.
Diamond Shamrock Chem. Co., 149 F.3d 387, 397 (5th Cir. 1998).
The purpose of the federal officer removal provision is to protect the
lawful activities of the federal government from undue state interference.
See id. (quoting Willingham v. Morgan, 395 U.S. 402, 406 (1969)). Because
the federal government “can act only through its officers and agents,” it has
a strong interest in ensuring that the states do not hinder those officers in
the execution of their duties. Id. (quoting Willingham, 395 U.S. at 406).
Moreover, “removal of the entire case is appropriate so long as a single claim
satisfies the federal officer removal statute.” Savoie v. Huntington Ingalls,
Inc., 817 F.3d 457, 463 (5th Cir. 2016).
Because of its broad language and unique purpose, the federal officer
removal statute has been interpreted to operate somewhat differently from
the general removal provision. Unlike the general removal statute, which
3

must be “strictly construed in favor of remand,” Manguno v. Prudential
Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002), the federal officer
removal provision must be liberally construed. Watson v. Philip Morris Co.,
Inc., 551 U.S. 142, 147 (2007). A case against a federal officer may be
removed even if a federal question arises as a defense rather than as a claim
apparent from the face of the plaintiff’s well-pleaded complaint.

See

Zeringue v. Crane Co., 846 F. 3d 785, 789-90 (5th Cir. 2017). Additionally,
removal under § 1442(a)(1) does not require the consent of co-defendants.
See Humphries v. Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014).

III. DISCUSSION
Avondale removed this case to federal court based on its work as a
military contractor. 12 See Boyle v. United Techs. Corp., 487 U.S. 500, 504
(1988) (recognizing federal contractor immunity).

The Fifth Circuit has

adopted a three-part test to determine whether a government contractor may
invoke 28 U.S.C. § 1442(a)(1). The contractor must show 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

12

R. Doc. 1 at 3-4.
4

defense to the plaintiff’s claims. Winters, 149 F.3d at 398-400. In their
motion to remand, plaintiffs concede that Avondale is a person within the
meaning of the statute. 13 The parties principally contest the causal nexus
element.
As an initial matter, Avondale argues that a 2011 amendment to the
removal statute replaced the causal nexus test with a less restrictive test. 14
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) (emphasis added). The Fifth
Circuit has applied this amended standard in at least four published
decisions. See Legendre v. Huntington Ingalls, Inc., 885 F.3d 398 (5th Cir.
2018); Zeringue, 846 F.3d 785; Savoie, 817 F.3d 457; Bartel v. Alcoa S.S.
Co., 805 F.3d 169, 174-75 (5th Cir. 2015). The amendment appeared to have
no bearing on the court’s analysis in Bartel. 805 F.3d at 174. In Zeringue,
the court noted that the 2011 amendment broadened the reach of the causal
nexus requirement. 846 F.3d at 793-94 (“Although the court cannot
attenuate the causal nexus requirement ‘to the point of irrelevance,’ the plain

13
14

R. Doc. 25-3 at 3.
R. Doc. 42 at 15.
5

import to the phrase ‘relating to’ is that some attenuation is permissible,
attenuation which is irreconcilable with Zeringue’s proposed requirement of
precise federal direction.” (footnote omitted)). But the Zeringue court also
explicitly reaffirmed Bartel.

Id. at 794.

The court distinguished the

negligence claims at issue in Bartel from the strict liability claims that
justified removal in Zeringue. Id. Moreover, the Fifth Circuit in Legendre
explicitly addressed the contention that Bartel had incorrectly applied pre2011 precedent. Legendre, 885 F.3d at 403. The Fifth Circuit held that the
rule of orderliness precluded it from re-examining Bartel and noted that the
argument needed to be presented to the en banc court. Id. Bartel and its
progeny are therefore binding, and Avondale’s challenge to the Fifth Circuit’s
pre-2011 causal nexus test is not properly before this Court.
Plaintiffs argue that the causal nexus element is not satisfied because
the Navy had no control over safety at Avondale. Plaintiffs submit the
deposition of Peter Territo, an Avondale safety officer.15 Territo testified that
Navy inspectors neither controlled the Avondale safety department, nor
directed Avondale to follow certain safety policies or procedures.16 Plaintiffs
also submit the affidavit of Felix Albert, a ship inspector for the U.S. Navy

15
16

R. Doc. 25-6.
Id. at 4-5.
6

who worked at Avondale from 1965 to 1976. 17 Albert attests that Avondale
employees did not work under the direct orders of a ship inspector during
the construction of governing vessels, and that they did not act under the
direction of a ship inspector.18 Mr. Albert further attests that government
inspectors neither monitored nor enforced safety regulations. 19
Fifth Circuit precedent does not support Avondale’s right to remove on
this record. Under similar circumstances, the Fifth Circuit has held that a
military contractor does not satisfy the causal nexus requirement for
negligence claims unless the federal government has some control over the
contractor’s safety practices. See Bartel, 805 F.3d at 174-75. In Bartel, the
plaintiffs were merchant mariners who were allegedly exposed to asbestos
aboard government-owned but privately operated ships. Id. at 172. Like Mr.
Brady, the plaintiffs in Bartel asserted only negligence claims, such as failure
to warn, failure to adopt safe procedures, and failure to train. Id. at 171. The
defendants argued that “the Navy’s mere ownership and theoretical control
of the vessels provides an adequate ‘causal nexus.’” Id. at 172. The Fifth
Circuit rejected this argument because “[t]here [was] no evidence that the
government ever issued orders of any kind, let alone orders relating to safety

17
18
19

R. Doc. 25-7.
Id.
Id.
7

procedures or asbestos.” Id. at 174. In other words, there was no evidence
that the government exercised any control over the vessels other than
ownership.

The defendants were therefore “free to adopt the safety

measures” urged by the plaintiffs. Id. The court held that remand was
required. Id.
The Fifth Circuit has consistently reaffirmed Bartel’s analysis. In
Savoie, for example, the court held that the federal government’s mandate of
asbestos insulation did not cause Avondale to engage in alleged negligent
conduct. 817 F.3d at 462. The plaintiffs in Savoie alleged both negligence,
such as failure to take reasonable precautions and failure to warn, and strict
liability. See id. at 460. The court held that the government’s specifications
requiring the use of asbestos, which Avondale was contractually obligated to
follow, sufficed to show a causal nexus between the strict liability claims and
Avondale’s actions under the color of federal authority. Id. at 465-66. The
negligence claims, on the other hand, did not satisfy the causal nexus
requirement for the reasons articulated in Bartel. Id. at 463. The Fifth
Circuit again reaffirmed Bartel in both Zeringue and Legendre. Legendre,
885 F.3d at 402 (“Bartel instructs that § 1442 does not support removal
where defendant government contractors ‘were free to adopt the safety
measures the plaintiffs now allege would have prevented their injuries.’”
8

(quoting Bartel, 805 F.3d at 174)); Zeringue, 846 F.3d at 794 (noting that
“[t]he charged conduct [in Bartel] was private conduct that implicated no
federal interest”).
Furthermore, other sections of this court have remanded cases on
nearly identical facts. See Latiolais v. Huntington Ingalls, Inc., No. 17-11770,
2018 WL 2078607 (E.D. La. May 4, 2018) (Engelhardt, J.); Meyers v.
Chesterton, No. 15-292, 2015 WL 2452346 (E.D. La. May 20, 2015), vacated
as moot sub nom. Meyers v. CBS Corp., No. 15-30528, 2015 WL 13504685
(5th Cir. Oct. 28, 2015). In Latiolais, the plaintiff served as a machinist
aboard the USS Tappahannock while the ship was being recommissioned at
Avondale. Id. at *1. Like Mr. Brady, Latiolais asserted only negligence
claims. Id. Neither Latiolais nor Avondale produced evidence suggesting
that the Navy had issued any orders relating to asbestos safety procedures.
Id. at *3. Moreover, as in this case, Avondale representatives provided
statements that the government did not monitor or enforce safety
regulations at Avondale and that safety was the responsibility of Avondale’s
safety department.

Id.

Because Avondale had not shown government

control over its safety practices, Avondale failed to establish the causal nexus
element and the district court remanded the case. Id. at *3-4.

9

Meyers also involved a plaintiff who served aboard a U.S. Navy ship
and alleged asbestos exposure while the ship was being repaired at a
shipyard. The court found no causal nexus between the defendants’ official
actions and the plaintiff’s failure-to-warn claim because there was no
evidence suggesting that the Navy actually prohibited any warnings related
to asbestos. Meyers, 2015 WL 2452346, at *6; see also id. at *5 (“[T]he causal
nexus prong requires a showing of direct government control over warnings,
such that the government’s ‘direction and control directly interfered with the
defendant’s ability to fulfill its state law obligation to warn employees of
safety hazards.’” (quoting Cole v. Northrop Grumman Ship Sys., Inc., 073049, 2008 WL 2651428, at *4 (E.D. La. July 7, 2008))).
Here, Avondale presents no evidence suggesting that the Navy had any
control over Avondale’s safety procedures during the refurbishment of the
USS Robert A. Owens. Nor does Avondale point to any government orders
prohibiting warnings about the risks of asbestos.

Under Fifth Circuit

precedent, this dearth of evidence is fatal to Avondale’s contention that there
was a causal nexus between Avondale’s actions under color of federal office
and plaintiffs’ negligence claims. Because Avondale does not satisfy the
causal nexus standard, the Court need not address Avondale’s argument that

10

it has presented a colorable federal defense. 20 Accordingly, the Court finds
that Avondale’s notice of removal is invalid and that federal jurisdiction does
not exist over this matter.

IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS plaintiffs’ motion to

remand. This case is REMANDED to the Civil District Court for the Parish
of Orleans.

1st
New Orleans, Louisiana, this _____ day of August, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

20

R. Doc. 42 at 10-20.
11