5th Cir. Affirms Remand Under Federal Officer Removal Statute Conflicting Precedent Basis of Decision; En Banc Reconsideration Urged
Latiolais v. Huntington Ingalls, Incorporated, No. 18-30652, 5th Cir., March 11, 2019; 2019 U.S. App. LEXIS 7109 (5th Cir. Mar. 11, 2019); no WestLaw Cite yet
By: Professor Crais
This decision was just released shortly after 12 noon today. The panel, consisting of Judges Jones, Hayne and Oldham affirmed the remand of a case which the defendant sought to remove from state to federal court pursuant to the Federal Officer Removal Statute (FORS).
This case is another in the string of suits against Huntington Ingalls by claimants who were exposed to asbestos while vessels either were under construction or refurbishment at the former Avondale Shipyards. Huntington sought to remove under the Federal Officer Removal Statute and argued that the 2011 Amendment to the statute which added “relating to” language broadened the basis for removal under the FORS. The panel in an opinion by Judge Edith Jones noted that the Supreme Court has held that “relating to” language implies broad and comprehensive coverage. However, though the defendant’s argument has appeal, the penal felt constrained by the 2015 decision of the Court in Bartel v. v. Alcoa S.S. Co., Inc., 805 F.3d 169 (5th Cir. 2015) and subsequent decisions.
The panel noted the conflicting precedent of Bartel (id.) , Savoie v. Huntington Ingalls, Inc., 817 F.3d 462 (5th Cir. 2016), Zeringue v. Crane Company, 846 F.3d 785 (5th Cir. 2017) and Legendre v. Huntington Ingalls, Inc., 885 F.3d 403 (5th Cir. 2018). While Bartel is a pre-2011 Amendment decision, the three post-2011 Amendment cases continue to rely on Bartel as the fundamental precedent in the 5th Circuit establishing a rule that negligence cases are not removable under the FORS but strict liability cases are. The case was governed by this precedent and could not be removed.
The panel, however, noted the need for en banc reconsideration of the Bartel decision “in order to align our precedent with the statute’s evolution.” Judge Jones also opined that the Fifth Circuit’s case law is not in line with the decisions of the Third and Fourth Circuits. “This court is out of step with Congress and our sister circuits.”
Follow this link to the decision on the website of the Fifth Circuit:
http://www.ca5.uscourts.gov/opinions/pub/18/18-30652-CV0.pdf
