Goffner v. Avondale Industries, Inc. et al

Filing 164

ORDER AND REASONS: IT IS ORDERED that Plaintiff's Second 154 Motion to Remand is DENIED. IT IS FURTHER ORDERED that Plaintiff's Request for Oral Argument on the Second Motion to Remand is DENIED as moot. Signed by Judge Susie Morgan on 6/5/2024. (pp)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILSON GOFFNER, SR.,
Plaintiff

CIVIL ACTION
NO. 22-3047

VERSUS
SECTION: “E” (2)
AVONDALE INDUSTRIES, INC.,
ET AL.,
Defendants
ORDER AND REASONS
Before the Court is a motion to remand filed by Plaintiff Wilson Goffner, Sr. (the
“Second Motion to Remand”).1 Defendant Huntington Ingalls Incorporated (“Avondale”)
filed an opposition.2 Plaintiff filed a reply.3 Avondale filed a sur-reply4 and a notice of
supplemental authority.5 For the reasons that follow, Plaintiff’s Second Motion to
Remand is DENIED.6
BACKGROUND
This case arises out of Wilson Goffner, Sr.’s alleged exposure to asbestos. On
February 12, 2021, Plaintiff Goffner filed a petition for damages in the Civil District Court
for the Parish of Orleans, asserting claims under Louisiana state tort law against several
Defendants including Goffner’s former employer, Avondale.7 In the Petition, Plaintiff
alleges he was occupationally exposed to asbestos while working at the Avondale shipyard

R. Doc. 154.
R. Doc. 158.
3 R. Doc. 159.
4 R. Doc. 162.
5 R. Doc. 163.
6 R. Doc. 154.
7 See generally R. Doc. 1-1. Plaintiff asserts negligence claims against Avondale for failure to warn of the
dangers of asbestos and for “failing to provide a safe place in which to work free from the dangers of
respirable asbestos-containing dust,” i.e., failure to prevent the spread of asbestos. Id. at pp. 12-13.
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from “approximately 1969 through approximately the late 1970s.”8 Plaintiff claims that,
on or about May 8, 2020, he was diagnosed with malignant lung cancer “caused in part
from asbestos exposure.”9
On August 30, 2022, Defendant Avondale removed the action to this Court,
invoking federal jurisdiction under 28 U.S.C. § 1441 and claiming “Avondale was, at all
material times, acting under an officer of the United States as set forth in 28 U.S.C. §
1442(a)(1).”10 On September 30, 2022, Plaintiff filed his First Motion to Remand arguing
removal was improper because Avondale and its co-defendants could not “satisfy the
‘colorable’ defense prong” of 28 U.S.C. § 1442(a)(1) (the “Federal Officer Removal
Statute”).11 On December 1, 2022, the Court denied Plaintiff’s First Motion to Remand
(the “December 2022 Order and Reasons”), reasoning that Avondale “acted under” the
direction of a federal officer and carried its burden to sufficiently raise a colorable federal
officer defense.12 On May 6, 2024, Plaintiff filed the instant motion—his Second Motion
to Remand—arguing that removal of the case to this Court was improper because
Avondale was not acting under a federal officer as defined by 28 U.S.C. § 1442(a)(1).13
LEGAL STANDARD
Federal courts are courts of limited jurisdiction and possess only the authority
conferred upon them by the U.S. Constitution or by Congress.14 Pursuant to the Federal
Officer Removal Statute, a defendant may remove a matter brought against:

Id. at p. 4.
Id. at p. 5.
10 R. Doc. 1 at p. 3.
11 R. Doc. 12 at p. 2.
12 R. Doc. 66 at pp. 7, 12 (citing Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020)).
13 R. Doc. 154 at p. 1.
14 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
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[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 . . . .15
Section 1442(a)(1) “is a pure jurisdictional statute in which 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 [Article III] purposes.”16 The Federal Officer
Removal Statute allows officers to “remove cases to federal court that ordinary federal
question removal would not reach[,] . . . even if no federal question is raised in the wellpleaded complaint, so long as the officer asserts a federal defense in response.”17 The
statute aims to “prevent federal officers who simply comply with a federal duty from being
punished by a state court for doing so.”18 Thus, while the removing party ordinarily “bears
the burden of showing that federal jurisdiction exists and that removal was proper,”19
courts assess jurisdiction arising out of the Federal Officer Removal Statute “without a
thumb on the remand side of the scale.”20
LAW AND ANALYSIS
In the Fifth Circuit, to remove a case pursuant to the Federal Officer Removal
Statute, a defendant must demonstrate: (1) “it is a ‘person’ within the meaning of the

28 U.S.C. § 1442.
Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (quoting Mesa v. California, 489 U.S. 121, 136
(1989)).
17 Latiolais, 951 F.3d at 290; see also Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (5th
Cir. 1998) (providing the Federal Officer Removal Statute allows for removal when “a federal official is
entitled to raise a defense arising out of his official duties”).
18 Winters, 149 F.3d at 397–98.
19 Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002) (citing De Aguilar v.
Boeing Co., 47 F.3d 1404, 1408 (5th Cir. 1995)).
20 Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016) (citations omitted); see, e.g, City of
Walker v. Louisiana, 877 F.3d 563, 569 (5th Cir. 2017) (“[F]ederal officer removal under 28 U.S.C. § 1442
is unlike other removal doctrines: it is not narrow or limited.”).
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statute”;21 (2) “it has acted pursuant to a federal officer’s directions”;22 (3) its complainedof conduct is “connected or associated with” or “related to” a federal directive;23 and (4)
it has “asserted a colorable federal defense.”24 The Court’s December 2022 Order and
Reasons previously determined that Avondale satisfied the second prong of the Federal
Officer Removal Statute—that it “acted under” the direction of a federal officer.25 While
Plaintiff Goffner does not challenge the factual findings detailed therein, his Second
Motion to Remand argues Defendant Avondale is unable to establish the second element
of the Federal Officer Removal Statute as a matter of law.26
Plaintiff’s Second Motion to Remand urges the Court to adopt a recent opinion of
the Eleventh Circuit, which purportedly limits removal under the Federal Officer Removal
Statute “to current, not former, federal officers.”27 Plaintiff’s argument relies on State v.
Meadows, in which the Eleventh Circuit held a criminal defendant who acted as chief of
staff to the president could not remove his criminal case to federal court based on the

Latiolais, 951 F.3d at 296.
Id.
23 St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. & Indem. Co., 990 F.3d 447, 454 (5th Cir. 2021)
(citing Latiolais, 951 F.3d at 291, 296 and rejecting the Fifth Circuit’s former “causal nexus” requirement).
24 Latiolais, 951 F.3d at 296.
25 R. Doc. 66 at p. 7 (concluding Avondale sufficiently demonstrated “that it was contracted by the U.S.
Navy to build vessels[,] . . . that its government contracts required Avondale to use asbestos[,] . . . [and
that,] had Avondale not built the ships, the Government itself likely would have had to perform”).
26 R. Doc. 154-1 at pp. 6, 11. Plaintiff’s Second Motion to Remand attempts to challenge Avondale’s
satisfaction of the first prong, arguing it is “improper and unreasonable” to allow Huntington Ingalls Inc.,
“which did not come into existence until 2014, to remove [the] case on the basis it is the alleged successor
of Avondale[,] [which] is no longer in business,” but cites no legal authority to support this argument. Id.
at p. 11. The Court finds Plaintiff’s argument on the first prong unavailing and agrees with Defendant that
Plaintiff’s argument contravenes the fundamental basis of Plaintiff’s claims against Huntington Ingalls, Inc.
for injury he allegedly sustained at Avondale, its predecessor-in-interest. R. Doc. 158 at p. 14. Further, to
the extent that Plaintiff’s reply in support of his Second Motion to Remand challenges Avondale’s
satisfaction of the fourth “colorable federal defense” prong, the Court reiterates its finding that “Avondale
has stated a colorable federal defense of government contractor immunity under Boyle.” See Plaintiff’s
Reply in Support of Second Motion to Remand, R. Doc. 159 at pp. 7-9 (arguing Avondale failed to satisfy
the fourth prong); December 2022 Order and Reasons, R. Doc. 66 at p. 7 (finding Avondale satisfied the
fourth prong by sufficiently stating a federal defense).
27 R. Doc. 154-1 at p. 7 (emphasis in original) (citing State v. Meadows, 88 F.4th 1331, 1335 (11th Cir. 2023)).
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Federal Officer Removal Statute.28 In reaching that conclusion, the Meadows court
reasoned that differences in statutory language between 28 U.S.C. § 1442(a)(1), which is
“silent on the removal of a prosecution commenced against a former officer of the United
States,” and 28 U.S.C. § 1442(b), which grants a right of removal to one “‘who is, or at the
time the alleged action accrued was, a civil officer of the United States,’” “connotes a
difference in meaning” that implies Section 1442(a)(1) excludes “former officers of the
United States.”29
In opposition, Defendant Avondale argues that it has met the requirements of the
Federal Officer Removal Statute, as previously detailed in this Court’s December 2022
Order and Reasons.30 With respect to Plaintiff’s contention that the statute applies only
to current federal officers, Avondale points out that Meadows “is not binding precedent
on this Court,” “involved vastly different facts” than the instant case, and contradicts
Latiolais v. Huntington Ingalls Inc., in which the en banc Fifth Circuit held that
“Avondale satisfied the ‘acting under’ prong due to its contracts with the federal
government to build vessels.”31 Avondale also cites several federal cases applying the
Federal Officer Removal Statute to former federal officers, including two recent opinions
of other courts in this district, which rejected arguments identical to Plaintiff’s and
declined to extend Meadows to preclude Avondale from removing similar cases to federal

Meadows, 88 F.4th at 1335, 1338.
Id. at 1338-40.
30 R. Doc. 158 at pp. 4-5 (citing December 2022 Order and Reasons, R. Doc. 66).
31 Id. at pp. 3, 6, 10 (citing Latiolais, 951 F.3d 286).
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court pursuant to the Federal Officer Removal Statute—Ditcharo v. Union Pacific
Railroad32 and Marcella v. Huntington Ingalls Inc.33
In Ditcharo and Marcella, plaintiffs sued Avondale in Louisiana state court for
“asbestos-related claims arising from exposures that occurred in the 1960s and 1970s,
when Avondale contracted with the Government to construct and repair Navy ships.”34 In
both cases, Avondale removed the actions to federal court and the plaintiffs sought
remand, arguing Meadows precluded Avondale’s removal because the plaintiffs’ claims
“arose from Avondale’s former and concluded work as a government contractor, [rather
than] any current work.”35 In Ditcharo, Judge Eldon E. Fallon applied Fifth Circuit
precedent consistent with this Court’s December 2022 Order and Reasons and
determined Avondale satisfied the second prong by demonstrating that it had a federal
contract with the Government to repair Navy ships.36 In reaching that conclusion, Judge
Fallon observed that, while the Meadows court held Section 1442(a)(1) “does not permit
removal by former federal officers,” it “did not comment on conduct of individuals who
formerly acted under federal officers.”37 In Marcella, Judge Barry W. Ashe agreed with
the Ditcharo court’s reasoning, concluding that Meadows “does not alter Avondale’s right
to federal-officer removal” with respect to asbestos-exposure claims.38 To support this
conclusion, Judge Ashe distinguished Meadows from the cases involving Avondale,
observing that “Meadows was a criminal case involving a former federal officer, not a civil
Id. at pp. 5-6, 9-10 (citing Ditcharo v. Union Pac. R.R. Co., 23-7399, 2024 WL 1433652, at *2 (E.D. La.
Apr. 3, 2024) (Fallon, J.)).
33 R. Doc. 163 (citing Marcella v. Huntington Ingalls Inc., 24-750, 2024 WL 2814044, at *4-5 (E.D. La.
June 3, 2024) (Ashe, J.)).
34 Marcella, 2024 WL 2814044 at *4 (citing Ditcharo, 2024 WL 1433652 at *2-4).
35 Id. (citing Ditcharo, 2024 WL 1433652 at *2-4).
36 Ditcharo, 2024 WL 1433652 at *2 (citing Latiolais, 951 F.3d at 921).
37 Id. Judge Fallon found Plaintiff’s “interpretation of [the Eleventh Circuit’s] ruling rings hollow.” Id.
38 Marcella, 2024 WL 2814044 at *4.
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case involving claims against a private entity arising from work completed under the
direction of federal officers.”39
This Court agrees with the reasoning of the Ditcharo and Marcella courts. Indeed,
“Meadows, an Eleventh Circuit case, is not binding on this Court and is also factually
distinguishable from the scores of cases within the Fifth Circuit that have allowed
Avondale to avail itself of § 1442(a)(1) with respect to asbestos-exposure claims.”40 This
Court, likewise declines “to twist the Eleventh Circuit’s holding in Plaintiff[’s] favor to find
that Avondale cannot remove the matter to this court because it formerly acted under the
actions of the Navy.”41 Accordingly, this Court affirms the factual findings and legal
conclusions provided in the December 2022 Order and Reasons42 and finds Avondale that
has satisfied the elements of the Federal Officer Removal Statute.
CONCLUSION
IT IS ORDERED that Plaintiff’s Second Motion to Remand is DENIED.43
IT IS FURTHER ORDERED that Plaintiff’s Request for Oral Argument on the
Second Motion to Remand is DENIED as moot.44
New Orleans, Louisiana, this 5th day of June, 2024.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Id. (citing Meadows, 88 F.4th 1331).
See id. (citing Latiolais, 951 F.3d 286).
41 See Ditcharo, 2024 WL 1433652 at *2.
42 R. Doc. 66.
43 R. Doc. 154.
44 R. Doc. 155.
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