Fifth Circuit Declines Stay of Remand Pending Appeal of Removal under Federal Officer Removal Statute
Fifth Circuit Declines Stay of Remand Pending Appeal of Removal under Federal Officer Removal Statute
By: Max Schellenberg
Wilde v. Huntington Ingalls, 2015 U.S. App. LEXIS 10411 (5th Cir. June 19, 2015)In a suit for mesothelioma allegedly passed on by a former worker at Avondale Shipyard to his daughter, the defendant removed the suit from the Civil District Court for the Parish of Orleans, State of Louisiana to the U.S. District Court for the Eastern District of Louisiana purusant to the Federal Officer Removal Statute, 28 U.S.C. Sec. 1442. On the same day the district judge denied the removal (2015 WL 2452350 (E.D. La., May 21, 2015)), the defendant appealed and then asked for a stay of the remand.The Fifth Circuit in a per curiam opinion addressed solely the request for a stay of the remand order. Two elements must be established in order to remove a case under this statute. First, the defendant must prove it was “acting pursuant to a federal officer’s directions” (2015 U.S. App. LEXIS 10411at 5). This was averred in the removal and thus is satisfied.The second element requires a “that a causal nexus exists between the defendants' actions under color of federal office and the plaintiff's claims." (id. and citing Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 398 (5th Cir. 1998) While the defendant pleaded such a causal relationship, there was no direct evidence in the record that the father worked on the vessels when he was employed at Avondale.Finally, the defendant removing under this statute must have a colorable federal contractor defense. (See footnote 22 and citing: Boyle v. United Technologies Corporation, 487 U.S. 500 (1988)). Here the defendant’s failure to attach any of the regulatory materials which it referenced in its notice of removal was another fatal flaw. “[W]e have no basis for determining how precise or general these specifications actually are. Without that information, necessary for Boyle's first prong, we lack a basis for concluding that Huntington is likely to establish even a colorable federal contractor defense.”The court did grant an expedited appeal, however.
