Motion to Remand Denied Under Federal Officer Removal Statute

U.S. District Court for the Eastern District of Louisiana, August 26, 2021

In this asbestos action, decedent Salvador Pennino alleged asbestos exposure from working at the Avondale Shipyards. A fact witness deposition took place on January 20, 2021, during which the deponent testified that he observed the decedent hanging ductwork on Lykes Lines vessels. Defendants received the deposition transcript on January 29, 2021, and subsequently filed a Notice of Removal on February 19, 2021. Thereafter, the plaintiffs filed a Motion to Remand, arguing that the removal was untimely.

The court found that this matter was not removable on the face of the initial complaint as the complaint did not specify the ships that the decedent worked on at Avondale. As such, a defendant can file a Notice of Removal within thirty days after “they receive 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 as per 28 U.S.C. § 1446(b)(3).” The court also found that the fact witness’ deposition transcript qualified as an “other paper” to meet the removal standard. Since the defendants filed their Notice of Removal within thirty days of receipt of the deposition transcript, this matter was timely removed.

Under 28 USC § 1442(a)(1), “[f]ederal officer removal allows for a civil action commenced in state court to be removed to federal court if the action is related to an officer, person acting under that officer, or agency of the United States when that entity is acting ‘for or relating to’ the color of such office.” As per Fifth Circuit precedent, courts have “considered whether there is a direct causal nexus between the removing defendant’s conduct and a federal officer’s instructions.” To do this, a defendant must meet the Latiolais standard, where “the defendant must show (1) it has asserted a colorable federal defense, (2) it is a person within the meaning of the statute, (3) it 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 plaintiffs argued that the defendants have not asserted a colorable federal defense. The court rejected this argument as “undisputed evidence demonstrates that Lykes Line C4-S-66a cargo ships were built at Avondale pursuant to the Merchant Marine Act, and administered by MARAD … and constructed with oversight from various governmental authorities and specifications requiring Avondale to use and install asbestos-containing materials.” Therefore, the court held that the defendants have asserted a colorable federal defense. Thus, the matter was properly removed.

Read the full decision here.