Federal Officer Removal Statute Found Inapplicable in Negligence Claim Against Shipyard Defendant; Remand Granted United States District Court E.D. Louisiana, June 12, 2018
LOUISIANA – The plaintiff, Gregory Brown brought this action against several defendants including Avondale Shipyard (Avondale) claiming that he developed lung cancer from exposure to asbestos while working for Avondale at its shipyard on and off from 1967-1971. Specifically, Mr. Brown worked as a cleanup man, tacker, and insulator helper. He also claimed exposure to asbestos from his employment for other employers from 1965- 1978. The plaintiff was deposed and gave testimony regarding his work on ships while at Avondale but did not state that the ships were owned by the United States Navy or United States Coast Guard. Of note, the plaintiff sued Avondale on a negligence theory but did not assert a claim for strict liability.
Avondale removed the matter to the United States District Court pursuant to Federal Officer Removal Statute. Avondale argued that it “was acting under the authority of an officer of the United States.” The plaintiff moved for remand and took the position that the Federal Officer Removal Statute was not applicable because he did not bring a strict liability claim against Avondale. The court began its analysis and stated that a defendant is required to show “1) that it is a person within the meaning of the statute, 2) that it has a colorable federal defense, 3) that it acted pursuant to a federal officer’s direction, and 4) that a causal nexus exits between the actions under color of a federal office and the plaintiff’s claims.” The court was convinced that Avondale met the definition of a person under the statute. Relying on the recent and synonymous Templet case, the court quickly noted that Federal Officer Removal Statute is not applicable in cases asserting claims of negligence for failure to warn. Avondale argued that the standard was out of date post amendment of § 1442(a)(1). For example, Avondale cited the addition of “relating to” before the “any act under the color of such office warranted a different approach. The court was not persuaded as the precedent upon which the court relied was post decided 2011. Consequently, the case was remanded to state court.