951 F.3d 286
5th Cir.2020Background
- In the 1960s–70s the U.S. Navy contracted with Avondale to refurbish naval vessels and required asbestos insulation under Navy plans and supervision.
- James Latiolais, a Navy machinist on the USS Tappahannock, was exposed to asbestos during repairs and later developed mesothelioma; he sued Avondale in Louisiana state court alleging negligence (failure to warn, inadequate safety equipment).
- Avondale removed under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1); the district court granted remand, applying the Fifth Circuit’s prior “causal nexus” requirement and finding no direct government control over safety practices.
- The Fifth Circuit reheard the appeal en banc to resolve confusion about the scope of § 1442(a)(1) after Congress amended the statute in 2011 to permit removal of actions "for or relating to" acts under color of federal office.
- The en banc court held the amendment broadened removability beyond a strict “direct causal nexus” test, adopted a “connection” (connected or associated) standard, overruled prior Fifth Circuit precedents to the extent inconsistent, and found Avondale met the connection requirement.
- The court also found Avondale asserted a colorable federal defense (the government-contractor/Boyle defense) and vacated the remand, remanding for further proceedings in federal court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether §1442(a)(1) still requires a "direct causal nexus" to permit removal | Latiolais: 2011 amendment didn’t eliminate direct causal-nexus limit; "relating to" applies narrowly (pre-suit discovery) | Avondale: amendment broadened removability to actions connected or associated with acts under color of federal office | Court: "for or relating to" permits removal where charged conduct is connected or associated (connection test); overrules contrary Fifth Circuit law |
| Whether Avondale acted "under" a federal officer's directions | N/A: plaintiff disputed sufficient government control over safety practices | Avondale: contracts and evidence show Navy required asbestos and exercised supervisory control | Court: Avondale’s contract performance alleged to be pursuant to Navy directions satisfied the "acting under" requirement for removal |
| Whether Avondale is a "person" under §1442(a)(1) | N/A | Avondale: as contractor, qualifies as a "person acting under" federal officer | Court: Avondale is a "person" within the statute |
| Whether Avondale asserted a colorable federal defense (government-contractor/Boyle) | Latiolais: defense is insufficient or speculative | Avondale: Boyle defense applies if government approved specifications, equipment conformed, and supplier warned government of unknown dangers | Court: Boyle defense is colorable on the present record (not frivolous); suffices for removal at this stage |
Key Cases Cited
- Willingham v. Morgan, 395 U.S. 402 (U.S. 1969) (origin of "acts under color of office"/causal-connection framing)
- Jefferson County v. Acker, 527 U.S. 423 (U.S. 1999) (discusses "for" language and causal connection)
- Watson v. Philip Morris Cos., 551 U.S. 142 (U.S. 2007) (historical expansion of federal officer removal)
- Mesa v. California, 489 U.S. 121 (U.S. 1989) (federal defense in removal petition constitutes federal law for Article III purposes)
- Boyle v. United Technologies Corp., 487 U.S. 500 (U.S. 1988) (government-contractor immunity test)
- Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998) (articulated causal nexus test adopted in prior Fifth Circuit precedent)
- Bartel v. Alcoa Steamship Co., 805 F.3d 169 (5th Cir. 2015) (applied direct causal-nexus approach pre-en banc overruling)
- Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017) (addressed Boyle defense and removal issues)
- Legendre v. Huntington Ingalls, Inc., 885 F.3d 398 (5th Cir. 2018) (prior panel decision discussing remand and removal tests)