Motion to Remand Denied Pursuant to Defendant Meeting Federal Officer Removal Statute Requirements

Rivera v. Huntington Ingalls, Inc., 2018 WL 4579826, 2018 U.S. Dist. LEXIS 164061 (E.D. La., Sept. 25, 2018)

By: Ashley Fisher

The basis of this case is a wrongful death and survival action filed by Judith Punch Rivera on behalf of her deceased mother, Dolores Punch, who passed away due to mesothelioma complications allegedly attributable to years of washing her family’s asbestos-ridden work attire. The case was initially filed in Louisiana state court in St. Bernard Parish against the Punches’ former employers, most notably the owner of Huntington Ingalls, Inc. (“Avondale”), a shipyard formerly known as Avondale Industries and Avondale Shipyards. After a subsequent transfer to Orleans Parish, Rivera filed an amended petition alleging strict liability and negligent failure to warn, supervise, and train claims against Avondale. In response, Avondale removed the case to federal court under jurisdiction of the Federal Officer Removal Statute, reasoning that its business utilized asbestos-containing products solely because its contracts with the federal government required it to do so. Rivera filed a Motion to Remand back to state court claiming that Avondale was unable to satisfy the requisite elements for statutory removal, but her demand was ultimately denied by the United States District Court for the Eastern District of Louisiana.The Federal Officer Removal Statute (“FORS”) permits removal of actions commenced in state court “against or directed to … the United States or any agency thereof or any officer (or any person acting under that officer).” Because it could not meet the agency requirement, Avondale had to show that it was a “person” under the statute, had a colorable federal defense, had acted pursuant to direction of a federal officer, and that a causal nexus existed between its actions under color of federal officer and Rivera’s claims in order to meet removal requisites. Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017).Avondale satisfied the first three statutory elements without issue. Rivera conceded that Avondale was likely a “person” under the statute due to the Fifth Circuit’s Savoie decision, holding that the FORS was applicable to both “private persons” and “corporate entities that assist a federal agency in its official duties.” As Avondale was obviously a corporate entity assisting the government with naval shipbuilding at the time the suit commenced, it likely satisfied this element.To show that it had a “colorable federal defense,” Avondale asserted the “contractor defense” established by the United States Supreme Court in Boyle v. United Techs. Corp., which “provides immunity to contractors for conduct that complies with the specifications of a federal contract” upon a showing that (1) the federal government approved “reasonably precise specifications” for the ship construction; (2) conformity to those specifications; and (3) that it “warned the government of any dangers that it knew of if the government did not also know of those dangers.” Upon production of deposition testimony and affidavits from expert witnesses, Avondale successfully met its “colorable” burden of production, thus satisfying all three prongs of Boyle.Rivera argued that Avondale could not meet the FORS “causal nexus” requirement due to its inability to show that its utilization of products containing asbestos was directly caused by obedience of orders from the federal government. Avondale contended that because Rivera’s amended state court petition expressly stated a claim for “strict liability” at the time of removal, it met the nexus requirement as it increased the likelihood as a matter of law that it was acting as a subordinate of the federal government. Accepting Avondale’s reasoning, and citing the Supreme Court’s decision in Carnegie-Mellon University v. Cohill, Judge Milazzo held that removability is based on claims presented at the time of removal, not claims added in later filings. Because Rivera’s amended petition expressly stated a claim for “strict liability” at the time of removal, Avondale satisfied the “causal nexus” requirement of the FORS. Having met all four elements necessary for removal under the FORS, Rivera’s Motion to Remand was DENIED.