Remand Affirmed on Appeal Due to Lack of Causal Connection to Support Removal Under Federal Officer Statute U.S. Court of Appeals, Fifth Circuit, July 26, 2018
The family of Tyrone Melancon filed suit in Louisiana state court alleging that his development of mesothelioma and subsequent death were caused by his exposure to asbestos at the Huntington Ingalls shipyard where he was employed from 1965 to 1979. The plaintiffs alleged that Huntington Ingalls negligently failed to warn Tyrone Melancon of the dangers of asbestos and failed to implement safety procedures for handling asbestos. Huntington Ingalls removed the case to federal court under the federal officer removal statute, alleging that removal was permissible because the company used and installed asbestos-containing materials during the construction of Navy and Coast Guard ships. The plaintiffs’ motion to remand was granted by the district court, holding that Huntington Ingalls did not satisfy the causal nexus requirement necessary for federal officer removal because the government officials had no control over the warnings or safety procedures implemented by Huntington Ingalls.
On appeal, the court analyzed the 2011 amendment to the federal officer removal statute, which unquestionably broadened the scope of the statute. To establish a causal nexus under the statute, the removing party must establish “a ‘causal connection’ between the charged conduct and asserted official authority.” However, the court reiterated its recent holding on this issue, that when the charged conduct was negligent failure to warn, train or adopt safety procedures regarding asbestos, removal would be inappropriate because the nexus requirement is not met. Since these were the allegations in this case,the U.S. Court of Appeals for the Fifth Circuit therefore affirmed the district court’s order remanding the case to state court.