Jones Act Does Not Prevent Removal Based On Federal Officer Removal Statute

Hutchins v. Anco Insulations, Inc.., 2021 WL 1961664 (E.D. La. May 17, 2021, Barbier, J.)

In a case of first impression, Judge Barbier held in Hutchins v. Anco Insulations, Inc. that the Jones Act does not prevent removal of a suit under the Federal Officer Removal Statute (28 U.S.C. §1442(a)(1), hereinafter FORS).  

A suit was initially filed in state court against thirty defendants by the widow of an employee of Lykes Bros. Steamship Co. who allegedly was exposed to asbestos while working on Lykes vessels from 1964 until 2006. It was removed pursuant to the Federal Officer Removal Statute to federal court by Huntington Ingalls, the successor to Avondale Shipyards, where the vessels were built. After the removal, a second state court suit was filed against Continental Insurance Company, the insurer of Lykes Bros. Nearly a year later, Continental filed to remove that suit to federal court also based on the FORS. Plaintiff filed a Motion to Remand asserting the removal was untimely.

Continental claimed the removal was timely because though the petition did not reveal on its face that it could be removed, documents provided by its expert qualified as “other papers” from which it ascertained the case could be removed. Judge Barbier noted that the Fifth Circuit has not abandoned the voluntary/involuntary rule which requires voluntary acts of the claimant to qualify as “other papers” not evidence adduced by the defendant. Nonetheless, as the Supreme Court, the Fifth and the Ninth Circuits have supported liberal interpretation of FORS, removal is proper. In addition, to remand would result in a waste of judicial economy as inevitably in discovery Continental would have the information to remove. The Motion to Remand for untimely removal was denied.

More importantly, the court addressed the issue of whether the Jones Act would still prevent removal. Judge Barbier noted that this is the first case to address the issue though it was alluded to in Bartel v. Alcoa S.S. Co., 64 F. Supp. 3d 843, 852 (M.D. La. 2014) and Craig v. Am. Overseas Marine Corp., No. 14-256, 2014, WL 7186767, at *3 (M.D. La. Dec. 16, 2014). But, as elements of FORS were not met in those cases, the courts did not decide the question.

He concluded that removal was proper due to the liberal policy of FORS and the Supreme Court’s decision in Willingham v. Morgan, 395 U.S. 402, 406 (1969) in which the Court stated that a defendant has an “absolute right” to remove under FORS “whenever a suit in a state court is for any act ‘under color’ of federal office, regardless of whether the suit could originally have been brought in a federal court....” (Willingham, 395 U.S. at 406-07). Thus, a Jones Act suit may be removed from state to federal court under 28 U.S.C. § 1442(a).