En Banc 5th Circuit Clarifies Rule for Removal Under Federal Officer Removal Statute
Latiolais v. Huntington Ingalls, Inc., 2020 U.S. App. LEXIS 5483 *; 951 F.3d 286; 2020 WL 878930 (5th Cir., Feb. 24, 2020).
Latiolais, a machinist in the U.S. Navy assignedto USS Tappahannock, was exposed to asbestos when the vessel was beingrefurbished at the Avondale facility on the Mississippi River. He sued Avondalein state court; Avondale sought to remove the case to federal court pursuant tothe Federal Officer Removal Statute (FORS).[1] The trialcourt granted a motion to remand, which was appealed under 28 U.S.C. § 1447(d).In an opinion by Judge Edith Jones, the first panel upheld the trial court withJudge Haynes, dissenting.[2] Yet, JudgeJones, writing for the majority, opined the confusion in the Fifth Circuitjurisprudence and virtually begged the court to reconsider and grant en bancreview of its precedent.[3]
Rehearing en banc was granted.[4] Adopting anatural interpretation of the 2011 Amendment to FORS and the plain language ofthe amended statute,[5] the unanimouscourt overruled its prior decision in Bartel v. Alcoa Steamship Co.[6] For adefendant to remove under FORS, it must show: “(1) it has asserted a colorablefederal defense, (2) it is a ‘person’ within the meaning of the statute, (3)that has acted pursuant to a federal officer's directions, and (4) the chargedconduct is connected or associated with an act pursuant to a federal officer'sdirections.”[7] Thus, “anycivil action that is connected or associated with an act under color of federaloffice may be removed.”[8]
The other issue of law was whether Avondaleasserted a colorable federal defense to the claim. Avondale asserted a defensethat as a federal contractor it enjoyed the immunity of the federal governmentin the performance of discretionary actions citing Boyle v. UnitedTechnologies Corp.[9] Here,Avondale offered sufficient evidence that the 3 criteria of Boyle were met.[10]
The en banc court, reversing the prior panel,vacated the remand order and allowed removal. In doing so, the FifthCircuit brought itself in line with other circuits which addressed the issue.[11]
The opinion may be found following this linkto the Fifth Circuit’s web site:
http://www.ca5.uscourts.gov/opinions/pub/18/18-30652-CV2.pdf.
[1] 28 U.S.C. § 1442(a)(1)
[2] Latiolais v. Huntington Ingalls, Inc.,918 F.3d 406, 415 (5th Cir. 2019)
[3] Id. at 412
[4] 923 F.3d 427 (5th Cir.2019)
[5] 2020 U.S. App. LEXIS 5483 at *2.
[6] 805 F.3d 169 (5th Cir.2015) and cases cited therein.
[7] 2020 U.S. App. LEXIS 5483 at *18.
[8] Id. at *17
[9] 487 U.S. 500 (1988)
[10] “[F]ederal contractors are not liablefor design defects if ‘(1) the United States approved reasonably precisespecifications; (2) the equipment conformed to those specifications; and (3)the supplier warned the United States about the dangers in the use of theequipment that were known to the supplier but not to the United States. Boyle,487 U.S. at 512, 108 S. Ct. at 2510’”
[11] 2020 U.S. App. LEXIS 5483 at *2.
