Remand Denied Based on Recent Decision on Federal Officer Removal Statute

U.S. District Court for the Eastern District of Louisiana, June 10, 2020

Plaintiff William Hulin alleged he contracted lung cancer as a result of exposure to asbestos containing products for which the defendants were liable. Specifically, he believed he had been exposed to asbestos while working as a tacker welder at Avondale Industries from 1956 to 1973. Prior to filing the complaint, the plaintiff filed an ex parte petition to take his deposition.  The plaintiff’s deposition was taken on October 3, 2019 and was circulated among defendants on October 8, 2019.  On November 12, 2019, the plaintiff filed his complaint suing, among others, Huntington Ingalls, Inc., the successor corporation to Avondale.  Huntington was served with the complaint on December 3, 2019. Notably, Huntington was only sued on negligence grounds. The plaintiff did not allege any claims for strict liability against Huntington. 

Huntington removed the case to federal court based on Federal Officer Removal Statute, 28 U.S.C. § 1442, on March 17, 2020. The Federal Officer Removal Statute authorizes removal of a suit by the “United States or any agency thereof or any officer (or any person acting under that officer) of the United States or any agency thereof, in an official or individual capacity, for or relating to any act under color of such office . . . .” 28 U.S.C. § 1442(a)(1). To remove an action under Section 1442(a), a defendant must show: (1) it has asserted a colorable federal defense, (2) it is a “person” within the meaning of the statute, (3) that has acted pursuant to a federal officer’s directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer’s directions.

The plaintiff did not contest that the four requirements of the Federal Officer Removal Statute were met. Rather, the plaintiff argued that the removal was untimely. Generally, a defendant has 30 days from service to remove a matter to federal court. See 28 U.S.C. § 1446(b)(1). The Notice of Removal must be filed “within 30 days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is or has become removable.” Id.

The only issue for the court here was whether there existed an “order or other paper” necessitating the removal to be initiated on or after February 15, 2020.

On February 24, 2020, the Fifth Circuit handed down an en banc decision, Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020).  The decision in Latiolais reversed established Fifth Circuit precedent based on Congress’s 2011 amendment to the Federal Officer Removal Statute, allowing negligence only claims to be removable under the Federal Officer Removal Statute. Huntington relied on the Latiolais decision in their notice of removal, arguing that the Hulin matter was only removable once Latiolais changed Fifth Circuit law. Therefore, Huntington argued that the “order or other paper” that made the Hulin matter removable was the Fifth Circuit’s opinion in Latiolais, which was issued on February 24, 2020-less than thirty days before the Hulin matter was removed to federal court.

The court here noted, “generally, decisions in unrelated cases do not constitute ‘orders’ and are therefore not grounds for removal under 28 U.S.C. § 1446(b)(3).” But in Green v. R.J. Reynolds Tobacco Co., 274 F.3d 263, 266 (5th Cir. 2001), the Fifth Circuit created a narrow exception to this general rule. “It held that an order in a separate case may be an ‘order’ under Section 1446(b)(3) when both cases involve (1) the same defendants, (2) similar factual circumstances, and (3) the decision resolves a legal issue that has the effect of making the case removable.” Green, 274 F.3d at 267-68.

The court found “this case falls within the Green exception. First, Huntington was also a defendant in Latiolais. Second, both the Hulin matter and Latiolais involve claims for injury arising from Avondale’s use of asbestos at the direction of a federal officer. Third, Latiolais resolved the exact legal question at issue here: whether the Federal Officer Removal Statute allows for removal of asbestos-related negligence claims. Therefore, after Latiolais, asbestos-related claims that asserted negligence but not strict liability could be removed under the Federal Officer Removal Statute for the first time in this circuit. The claims at issue in this litigation, which are negligence claims against Huntington relating to asbestos, are the exact claims that Latiolais held for the first time could be removed. Plaintiff’s argument to the contrary-that before Latiolais the claims present in this case were removable-is flatly contradicted by the law.”

Because the defendants removed this matter within 30 days of the Fifth Circuit’s decision in Latiolais, removal of this matter to federal court was timely and the plaintiff’s motion to remand was denied.