805 F.3d 169
5th Cir.2015Background
- Three plaintiffs (Bishop, Dennis, Craig) — long‑time merchant mariners — sued former employers in Louisiana state court alleging asbestos exposure aboard many vessels, claiming Jones Act and general maritime (unseaworthiness) liabilities.
- Each plaintiff served on at least one U.S. Navy‑owned ship (USNS) that was operated by civilian contractors (Mathiasen Tanker Industry, American President Lines, American Overseas Marine — the "Federal Officer Defendants").
- Defendants removed the actions to federal court under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1), claiming they acted under federal direction when operating Navy‑owned vessels.
- The district court remanded, finding defendants failed to show a causal nexus between actions under federal authority and plaintiffs’ claims; defendants appealed.
- The Fifth Circuit reviewed de novo, focusing on whether defendants acted pursuant to federal directions and whether a causal nexus existed between those actions and plaintiffs’ failure‑to‑warn and unseaworthiness claims.
- The court affirmed remand, concluding ownership alone and the presented contracts did not establish ongoing federal supervision or directives tying defendants’ operational decisions to plaintiffs’ injuries.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether removal under 28 U.S.C. §1442(a)(1) is proper | Plaintiffs: claims belong in state court; no federal‑actor nexus | Defendants: as contractors operating Navy ships, they acted under federal officer direction, so removal is proper | Held: No — defendants failed to show required causal nexus; remand affirmed |
| Whether government ownership of vessels alone suffices for causal nexus | Plaintiffs: ownership without evidence of directives/supervision is insufficient | Defendants: Navy ownership and contracts create nexus between federal office and alleged failures | Held: No — mere ownership or theoretical control is insufficient without evidence of specific directives or ongoing supervision |
| Whether plaintiffs’ claims are failure‑to‑warn (operational) vs. intrinsic unseaworthiness (design) | Plaintiffs: claims focus on failure to warn, train, and adopt safety procedures (operational) | Defendants (later): also argued claims include intrinsic unseaworthiness tied to vessel design and delivery | Held: Court analyzed failure‑to‑warn/operational claims and refused to consider belated intrinsic‑design argument raised on appeal |
| Whether courts may consider new theories raised first at oral argument on appeal | Plaintiffs: district‑court record should govern; new appellate theory inappropriate | Defendants: raised intrinsic unseaworthiness theory at oral argument | Held: Court declined to consider the new theory absent extraordinary circumstances; refused to expand removal jurisdiction on that basis |
Key Cases Cited
- Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998) (explains elements for federal‑officer removal, including causal nexus and colorable federal defense)
- Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720 (5th Cir. 2002) (requires assessing state‑court claims as they existed at time of removal)
- IMFC Prof'l Servs. of Fla., Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152 (5th Cir. Unit B 1982) (dismissal of federal‑actor defendants does not necessarily divest federal jurisdiction for removal analysis)
- Bartel v. Alcoa Steamship Co., 64 F. Supp. 3d 843 (M.D. La. 2014) (collects failure‑to‑warn cases where government ownership alone did not support federal‑officer removal)
- Whitehead v. Food Max of Mississippi, Inc., 163 F.3d 265 (5th Cir. 1998) (court will not consider arguments first raised at oral argument)
- N. Alamo Water Supply Corp. v. City of San Juan, Tex., 90 F.3d 910 (5th Cir. 1996) (extraordinary‑circumstances standard for considering new issues on appeal)