Remand Granted Where Defendant Failed to Show Government Exercised Control Over Warnings and Safety U.S. District Court for the Eastern District of Louisiana, August 4, 2017

Plaintiff Robert Templet, Sr. alleged asbestos exposure during his work for defendant Avondale Industries, Inc. The plaintiff was employed by Avondale from 1968-2002, and later developed malignant pleural mesothelioma. Defendants Avondale and Lamorak Insurance Company removed to federal court due to the federal officer removal statute. The plaintiff moved to remand. The court granted the motion and remanded this case back to the State of Louisiana.

Avondale based its removal on the plaintiff’s deposition testimony wherein he testified that they worked on Navy Destroyer Escorts and Coast Guard Cutters. During this time he worked near insulators and asbestos-containing wallboard. Avondale argued this work was done pursuant to contracts with the United States government and federal specifications. Avondale also asserted two colorable federal defenses, in that (1) the plaintiff’s claims were barred under government contractor immunity, and (2) his claims were preempted and barred by federal worker’s compensation exclusivity.

The plaintiff argued that Avondale had no support for its claims that the federal government compelled Avondale to not warn or protect him from asbestos; further, he only asserted a negligence state law claim, not a strict liability claim, and negligence claims were not within the ambit of the federal officer removal statute. The plaintiff also pointed to the affidavit of a federal ship inspector, who stated that Avondale did not work under the direction of an officer of the United States. The plaintiff cited various cases wherein the courts remanded cases with nearly identical facts and arguments. Finally, the plaintiff asserted that the federal worker’s compensation law cited by Avondale could not serve as an independent basis for removal.

The Fifth Circuit has adopted a three-part inquiry to determine whether a government contractor qualifies as a “person acting under [a federal] officer” who is sued “in an official or individual capacity for any act under color of such office.” The contractor must prove that: (1) it is a “person” within the meaning of the statute; (2) it acted pursuant to a federal officer’s directions, and a causal nexus exists between its actions under color of federal office and the plaintiff’s claims; and (3) it has a colorable federal defense to the plaintiff’s claims. In analyzing the elements of the federal officer removal statute, the court found that the second prong was not met, because Avondale did not show that a causal nexus existed between its actions under color of federal office and the plaintiff’s claims. The plaintiff only brought negligence claims against Avondale for its alleged failure to take certain safety precautions and warn the plaintiff about the dangers of asbestos. Avondale did not show that its own discretionary decisions to allegedly fail to warn or protect the plaintiff were related to its actions under color of federal office. Thus, this case was distinguishable from other cases finding that the federal government exercised some control over asbestos warnings and safety materials, rendering removal of a failure to warn claim proper. “Allowing removal of Plaintiff’s claims premised on Avondale’s discretionary decisions would not serve the basic purpose of Section 1442, i.e. ‘to protect the Federal Government from…interference with its operations’.”

Read the full decision here.

 


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