NO CAUSAL NEXUS SHOWN TO REMOVE TO FEDERAL COURT UNDER FEDERAL OFFICER REMOVAL STATUTE

No Causal Nexus Shown to Remove to Federal Court  Under Federal Officer Removal Statute

By: Alexander Lair

Mayeaux v. Taylor-Seidenbach, Inc., No. 16-16813, 2017 U.S. Dist. LEXIS 130208 (E.D. La. Aug. 15, 2017).One of the named defendants in this case, Avondale Industries, Inc. (“Avondale”), had contracts with the United States Government to build U.S. Navy Destroyer Escorts. The plaintiff, George K. Mayeaux, alleged that, during his employment with Avondale, he suffered exposure to asbestos-containing products that were manufactured, sold, installed, distributed, and/or supplied by other named defendants. This exposure to asbestos ultimately led to the development of malignant mesothelioma, causing Mr. Mayeaux to file claims in Louisiana state court on October 19, 2016, against Avondale for negligence and strict liability against the other named defendants. On December 2, 2016, defendants Huntington Ingalls, Inc. and OneBeacon America Insurance Company, the alleged insurer of Henry Carter, a former President of Avondale (collectively, “Avondale”), removed the case to federal court sitting in the Eastern District of Louisiana. Nearly three weeks after this removal, on December 22, 2016, the plaintiff filed a motion to remand, which became the focal point of this opinion.Avondale’s argument that removal was proper relies on 28 U.S.C. § 1442(a)(1), which, as it pertains to this case, gives any “person” acting under an officer of the United States the power to remove a civil suit commenced against them “for or relating to any act under color of such office.” By building ships “used to conduct a war,” Avondale argued that it was preforming a task that the federal government would otherwise have had to perform. Furthermore, Avondale claimed that the federal government required the use of asbestos-containing materials as part of their contractual agreement. In response, plaintiff reasoned that, even though the federal government mandated the use of asbestos-containing materials, it did not preclude Avondale from implementing its own safety precautions, such as warning employees of the potential dangers presented by the materials. Ultimately, the plaintiff argued that remand was proper because Avondale could not show it was entitled to removal under the Federal Officer Removal Statute. In order for removal to be proper under the statute, Avondale 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 existed between its action under color of federal office and the plaintiff’s claims; AND (3) it has a colorable federal defense to the plaintiff’s claims.The second of these criteria became the central issue in deciding the outcome of this motion. In determining if Avondale acted pursuant to a federal officer’s directions, and a causal nexus existed between its action and the plaintiff’s claims, the court looked to Fifth Circuit jurisprudence. In Bartel v. Alcoa S.S. Company, the court found that the proper approach in a negligence claim against a government-contracted shipyard 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. Subsequently, in Savoie v. Huntington Ingalls, Inc., the court concluded that the federal government’s mandate of asbestos insulation did not cause the shipyard to engage in negligent conduct. These two rulings, taken together, stand for the proposition that negligence claims for failing to warn of the dangers of asbestos or to take safety precautions against asbestos exposure do not challenge actions taken under color of federal authority, even though the government was responsible for the existence of the asbestos. Essentially, a government-contracted shipyard must demonstrate that its contract with the government prevented it from taking necessary safety precautions.Here, Avondale failed to present any evidence that the federal government exercised control over its safety procedures or prevented it from taking necessary precautionary measures.  In fact, testimony by two former Avondale Safety Directors confirmed that the federal government did not exercise any control over Avondale’s safety department or its compliance with safety regulations. Based on this information, the court held that removal pursuant to 28 U.S.C. § 1442(a)(1) was improper because Avondale did not show the existence of the necessary causal nexus between Avondale’s actions under color of federal office and plaintiff’s negligence claims.