Federal Officer Removal Upheld in Secondary Exposure Case

U.S. District Court for the Eastern District of Louisiana, October 18, 2021

The plaintiff, Reginald A. Hamilton, Jr., alleged that as a child in the 1960s and 1970s he frequented his grandmother’s restaurant, the Rail Restaurant, which was walking distance from Avondale’s Main Yard, and thus was often patronized by Avondale Shipyard workers, contractors, and employees, and by military personnel. Mr. Hamilton alleged that throughout this time, he was exposed daily (or near daily) to asbestos dust brought into the restaurant by these patrons, and was subsequently diagnosed with mesothelioma.

During the alleged years of exposure, Avondale constructed numerous ships built under contracts executed between Avondale and the federal government, which mandated the use of asbestos-containing materials. Navy and Coast Guard inspectors oversaw the construction of vessels in the shipyard and Maritime Administration personnel inspected construction of cargo vessels daily.

Avondale removed the case to federal court on federal officer grounds (28 U.S.C. § 1442), and the plaintiff then filed a motion to remand. In evaluating whether Avondale had satisfied all the elements necessary to remove to federal court, the court first noted the Supreme Court’s determination in Willingham v. Morgan, 395 U.S. 402, 407 (1969), that urged courts to refrain from “a narrow, grudging interpretation of § 1442(a)(1).”

Next the court turned to the Fifth Department decision in Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020) (citing Mesa v. California, 489 U.S. 121, 136 (1989)), which found that the Federal Officer Removal Statute does not require that the district court have original jurisdiction over a plaintiff’s claims, and a case may be removed even if a federal question arises as a defense rather than a claim in a plaintiff’s complaint. The court further reiterated the Fifth Circuit’s recent rationale in St. Charles Surgical Hosp., L.L.C. v. Louisiana Health Serv. & Indem. Co., 990 F.3d 447, 452 (5th Cir. 2021) (quoting Latiolais, 951 F.3d at 291, 296) that considered whether “defendant’s actions ‘related to’ a federal directive.” Under this approach, a 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. Latiolais, 951 F.3d at 296.

The court noted that when an initial pleading may not be removable, a defendant may file a notice of removal if they receive “a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)(3). In this case, the court found that the plaintiff’s petition alone was insufficient to trigger removal, but Avondale had Mr. Hamilton’s deposition transcript, which contained details that made the case removable, at the time of its filing. As such, Avondale’s removal was timely, within the 30-day timeframe.

To survive the removal stage, Avondale had to show that the plaintiff’s claims “relat[e] to” Avondale’s actions under the direction of a federal officer. Latiolais, 951 F.3d at 296. The court noted that “relating to” is a broad term meaning “to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with.” Id. at 292 (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992)). Under this definition, the Court found that the plaintiff’s claims were “connected or associated with” the defendants’ acts pursuant to a federal officer’s direction, and thus, removal under § 1442(a) was proper. The court found sufficient evidence that Avondale could demonstrate some connection or association with the plaintiff’s claims and its actions pursuant to a federal officer’s direction. That is, Mr. Hamilton alleged that he was exposed to asbestos dust from Avondale workers, as well as Army, Navy, and Marine personnel in the restaurant. Thus, Avondale satisfied all the substantive elements of the federal officer removal statute and removal was proper.

Read the full decision here.