JAMES A. LATIOLAIS, Plaintiff - Appellee v. HUNTINGTON INGALLS, INCORPORATED, formerly known as Northrop Grumman Shipbuilding, Incorporated, formerly known as Northrop Grumman Ship Systems, Incorporated, formerly known as Avondale Industries, Incorporated, Defendant - Appellant
No. 18-30652
United States Court of Appeals for the Fifth Circuit
February 24, 2020
951 F.3d 286
Before OWEN, Chief Judge, and JONES, SMITH, STEWART, DENNIS, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, WILLETT, HO, DUNCAN, and OLDHAM, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This appeal was reconsidered en banc because Fifth Circuit precedents concerning the scope of the revised Federal Officer Removal Statute,
BACKGROUND AND PROCEDURE
During the 1960s and 1970s, the United States Navy contracted with the Defendant-Appellant, Avondale, to build and refurbish naval vessels. Most of the contracts in the 1960s required asbestos for thermal insulation. According to Avondale‘s expert, a marine engineer and naval historian, the contracts obliged Avondale “to comply with government plans and specifications, and the federal government had the right to and did exercise supervision over the process to ensure such compliance.”
The Plaintiff-Appellee, James Latiolais, then a machinist aboard the USS Tappahannock, was exposed to asbestos while his ship underwent refurbishing at Avondale for several months. In 2017, Latiolais was diagnosed with mesothelioma. He died in October 2017.3
Avondale removed the case to federal court under
STANDARD OF REVIEW
Although an order remanding a case to state court is not generally reviewable, “an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.”
DISCUSSION
As amended in 2011 and still effective, the Federal Officer Removal Statute states in pertinent part:
(a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States . . . :
(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office . . . .
Some version of this statute has been in effect since 1815. Watson v. Philip Morris Cos., 551 U.S. 142, 147–49 (2007). At first, Congress authorized only some federal officials sued in connection with their official duties to seek a federal forum rather than face possibly prejudicial resolution of disputes in state courts. Willingham v. Morgan, 395 U.S. 402, 405 (1969). Over time, though, Congress has broadened the removal statute repeatedly until it reached the coverage quoted above. See Watson, 551 U.S. at 147–49;
Federal officers may remove cases to federal court that ordinary federal question removal would not reach. In particular,
Clearly, a defendant removing under
I. The Connection Prong
The parties first join issue over the status of the “causal nexus” requirement. This requirement began as a restatement of part of the Supreme Court‘s test in Willingham, in which the Court interpreted “for any act under color of such office,”
Three decades later, in Winters, this court restated Willingham‘s “under color of office” or “causal connection” test as providing “that the defendants acted pursuant to a federal officer‘s directions and that a causal nexus exists between the defendants’ actions under color of federal office and the plaintiff‘s claims.” 149 F.3d at 398. In Winters, the defendant‘s formulation, packaging, and delivery of Agent Orange took place under direct governmental specification and supervision. Id. at 400. Consequently, the court determined that “a direct causal nexus exists between the defendants’ actions taken under color of federal office and Winters‘s claims” for strict product liability and failure to provide adequate warnings. Id. at 399–400 (emphasis added). Notably, in applying Willingham‘s color-of-office test, the Winters court asserted only that a “direct causal nexus” existed, not that it was necessary.
In this court‘s decisions following Winters, the “direct causal nexus” test became a talisman even after Congress, in 2011, amended
Unsurprisingly, Latiolais no longer relies on our case law alone and takes the position that, even as amended,
A.
The always primary, and here decisive, interpretive tool is the text itself. The amending legislation, the Removal Clarification Act of 2011, states, “Section 1442(a) of title 28, United States Code, is amended-- (1) in paragraph (1)-- (A) by striking ‘capacity for’ and inserting ‘capacity, for or relating to‘.” Pub. L. No. 112-51, § 2(b)(1)(A), 125 Stat. 545. Following this amendment,
This change plainly expresses that a civil action relating to an act under color of federal office may be removed (if the other statutory requirements are met). Further, the Supreme Court has recognized, “[t]he ordinary meaning of the[] words [‘relating to‘] is a broad one—‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992). Congress added this “broad” term to “for,” the preposition relied on in the Supreme Court‘s discussion of the “causal connection” test, Jefferson County, 527 U.S. at 431–32. By the Removal Clarification Act, Congress broadened federal officer removal to actions, not just causally connected, but alternatively connected or associated, with acts under color of federal office.
Two other circuit courts have acknowledged the impact of the amendment and formally adopted a “connection” test. See Sawyer v. Foster Wheeler, L.L.C., 860 F.3d 249, 258 (4th Cir. 2017); In re Commonwealth‘s Mot. to Appoint Counsel Against or Directed to Defender Ass‘n of Phila., 790 F.3d 457, 470–71 (3d Cir. 2015). The Eleventh Circuit, while persisting with the “causal connection” test, has cited the amended “relating to” language and essentially implemented a connection rationale for removal. Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1144 & n.8 (11th Cir. 2017).
B.
Against this perfectly natural interpretation, Latiolais sets a creative alternative. He contends that “for” and “relating to”
Latiolais stresses a construction of the Removal Clarification Act, which amended section 1442 in 2011. The provision inserting “or relating to” into
For several reasons, this alternative interpretation based on “Conforming Amendments” is untenable. First, an act‘s subsection title cannot defeat the ordinary meaning of the statutory text it amends. Reading the language inserted into
Moreover, the relevant title is not contrary to the statutory changes communicated in the text. One “clarifying” subsection of the Removal Clarification Act broadened the types of proceedings that are removable, no longer limiting removal to liability suits or criminal prosecutions against covered persons. § 2(a)(2), 125 Stat. at 545. The “conforming” subsection broadened the universe of acts that enable federal officers to remove. § 2(b)(1)(A), 125 Stat. at 545. Establishing a broader class of removable acts in section 2(b) conforms to establishing a broader class of removable proceedings in section 2(a).
Latiolais‘s next thrust concerns the word “for,” which remains in
This reading is also unpersuasive. To start, the canon against surplusage yields to context as it expresses courts’ “general ‘reluctan[ce] to treat statutory terms as surplusage.“’ Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011) (alteration in original) (emphasis added) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). Congress may in fact use “a perhaps regrettable but not uncommon sort of lawyerly iteration” in which each word of a series means nearly the same thing. Freeman v. Quicken Loans, Inc., 566 U.S. 624, 635 (2012). If the meaning of a text is discernibly redundant, courts should not invent new meaning to avoid superfluity at all costs.
Anyway, such invention would be inappropriate in this case because “for” is not redundant. Instead, by keeping “for,” Congress left no doubt that cases previously removable under the Federal Officer Removal Statute remained removable even as Congress broadened the universe of acts that could sustain removability. Cf. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226 (2008) (“The construction we adopt today does not render ‘any officer of customs or excise’ superfluous; Congress may have simply intended to remove any doubt that officers of customs or excise were included in ‘law enforcement officer[s].“‘). Lacking superfluity,
Latiolais advances another interpretive doctrine, asserting that, should “or relating to” achieve broader removability of civil suits and criminal prosecutions, it
Permitting removal of all acts “relating to” an act under color of federal office that meet the other requirements of removal did not radically change the Federal Officer Removal Statute. Congress had consistently broadened the statute before 2011.7 See Watson, 551 U.S. at 147–49;
Nor was the change “entirely implicit.” The Cyan case is inapposite. In Cyan, a defendant sought dismissal of a 1933 Securities Act class action from state court, contending that a definition in a subpart of a statutory section referenced by a newly added exception required removal. See 138 S. Ct. at 1068–70. The Supreme Court rejected the argument that the alleged change, discernible only implicitly, had, for the first time, required removal of 1933 Act claims. Id. at 1071–72. In this case, by contrast, Congress changed the operative statutory text, inserting into a phrase identified as the source of the causal connection test a term that is broad in ordinary and legal usage. If not preached on the housetops, this explicit change was far from just whispered in the ear.
Rather than Cyan, the better analogue to this case is Burgess v. United States. In 1994, Congress used a “conforming amendment” to define “felony drug offense” in the Controlled Substances Act (“CSA“). 553 U.S. 124, 134–35 (2008). Burgess interpreted this conforming amendment to have broadened the universe of acts that require a judge to impose a sentence enhancement under the CSA. See id. at 129. The Court noted that “Congress did not disavow any intent to make substantive changes; rather, the amendments were ‘conforming’ because they harmonized sentencing provisions in the CSA and the Controlled Substances Import and Export Act.” Id. at 135. Likewise here, Congress did not disavow any intent to make substantive changes, and its “conforming amendment” harmonized the scope of removal-causing
Latiolais caps his argument with the policy-related complaints that a plain reading of “relating to” enables removal of cases in a way that conflicts with past case law and suffuses indeterminacy in place of “workable standards” based on a “federal interest” in removal. Latiolais, however, articulates nothing about how to expound such a “federal interest.” Moreover, if the causal connection test had provided such “workable standards,” this court would have had clearer decisions. Finally, the statute‘s requirement that a removing party assert a colorable federal defense remains a constitutional, viable, and significant limitation on removability. See Mesa, 489 U.S. at 136–37; see generally Anthony J. Bellia, Jr., The Origins of Article III “Arising Under” Jurisdiction, 57 Duke L.J. 263 (2007).
C.
For all these reasons, Latiolais‘s interpretation falls to the more natural reading that Congress applied “relating to” to all “civil action[s] or criminal prosecutions” without distinction. Subject to the other requirements of
In addition, the pleadings here satisfy the “connection” condition of removal. Latiolais alleges that Avondale failed to warn him of the dangers of asbestos and failed to take measures to prevent exposure. This negligence is connected with the installation of asbestos during the refurbishment of the USS Tappahannock. Avondale performed the refurbishment and, allegedly, the installation of asbestos pursuant to directions of the U.S. Navy. Thus, this civil action relates to an act under color of federal office.
II. Colorable Federal Defense
The remaining issue of law is whether Avondale asserted a colorable federal defense to Latiolais‘s claim. See, e.g., Bell v. Thornburg, 743 F.3d 84, 89–91 (5th Cir. 2014). It was briefed, but not decided, in the district court, and we may reach the issue as a matter of discretion. See Singleton v. Wulff, 428 U.S. 106, 121 (1976); see also Pinney Dock & Transp. Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988) (“[T]o the extent the issue is presented with sufficient clarity and completeness and its resolution will materially advance the progress of this already protracted litigation, we should address it.“).
To be “colorable,” the asserted federal defense need not be “clearly sustainable,” as
In this case, Avondale asserts the federal defense outlined in Boyle v. United Technologies Corp., 487 U.S. 500 (1988). This defense extends to federal contractors an immunity enjoyed by the federal government in the performance of discretionary actions. Zeringue, 846 F.3d at 790.11 Accordingly, federal contractors are not liable for design defects if “(1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States.” Boyle, 487 U.S. at 512 (quoted in Zeringue, 846 F.3d at 790). Furthermore, “the government contractor defense does not necessarily apply only to claims labeled ‘design defect.“’ Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 801 (5th Cir. 1993). Instead, “[w]hether it will apply to a particular claim depends only upon whether Boyle‘s three conditions are met with respect to the particular product feature upon which the claim is based.” Id. at 801–02.
In this case, Avondale offered evidence that the three Boyle conditions are met. First, Avondale submitted one affidavit and deposition testimony alleging that the Navy required installation of asbestos on the Tappahannock, as well as another affidavit alleging that the Navy generally required Avondale to install asbestos and to comply with certain related safety practices. These documents make colorable that the government approved reasonably precise specifications about the installation of asbestos. Second, Latiolais does not challenge that Avondale complied with those specifications, if they existed. Indeed, Latiolais himself testified that Avondale used asbestos in refurbishing the
In light of the evidence submitted, Avondale‘s assertion of a federal defense is not wholly insubstantial and frivolous. We, of course, do not speculate on what further evidence may come to light as the case proceeds and conclude only that Avondale has a colorable federal defense.
CONCLUSION
As the foregoing discussion demonstrates, this action meets the conditions for removal under