Fifth Circuit Clarifies Requirements Under Federal Officer Removal Statute

United States Court of Appeals, Fifth Circuit, February 24, 2020

LOUISIANA — Noting that its precedents concerning the scope of the Federal Officer Removal Statute were “extraordinarily confusing,” in the matter of Latiolais v. Huntington Ingalls, Inc., the Fifth Circuit has aligned itself with sister circuits and clarified the requirements to remove a case to federal court. The salient facts follow.

The United States Navy contracted with the defendant-appellant, Avondale, in the 1960s and 1970s to build and refurbish naval vessels, and most of the contracts from the 1960s required asbestos for thermal insulation. The plaintiff, James Latiolais, was a machinist aboard the U.S.S. Tappahannock and alleged that he was exposed to asbestos while the ship was being refurbished at Avondale for several months. He was subsequently diagnosed with mesothelioma and filed suit against Avondale in Louisiana state court, alleging that Avondale negligently failed to warn him about asbestos hazards and failed to provide adequate safety equipment.

Avondale removed the case to federal court under the Federal Officer Removal Statute (28 U.S.C. Section 1442(a)(1)). The plaintiff sought remand and the district court granted the motion, finding no evidence that the United States or any of its officials controlled Avondale’s safety practices, pursuant to the causal nexus test under Fifth Circuit precedent. On appeal, the Fifth Circuit addressed the causal nexus test and whether the same was required under the removal statute.  

The court examined the statute, which as amended by the Removal Clarification Act of 2011, permits the removal of a “civil action…that is against or directed to…any person acting under [a federal] officer…for or relating to any act under color of such office.” Prior to the 2011 amendment, the statute read “for any act under color of such office.” The amendment added the “or relating to” language. The causal nexus test had arisen in Fifth Circuit case law prior to Removal Clarification Act to determine whether a cause of action was for any act under color of such office, and courts in the Fifth Circuit continued to use the test even after the 2011 amendment in assessing whether a causal nexus existed between the defendant’s actions under color of federal office and the plaintiff’s claims.

Looking to the plain language of the current Removal Statute, the Fifth Circuit held that to remove a case to federal court under 28 U.S.C. 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.” It overruled Fifth Circuit precedent relying on the causal nexus test, holding that subject to the other requirements of the statute, any civil action that is connected or associated with an act under color of federal office may be removed.

In the case before the court, the negligence alleged was in connection with the installation of asbestos during the refurbishment of the U.S.S. Tappahannock, and Avondale alleged that it performed the refurbishment, and thus the installation of asbestos, pursuant to the directions of the United States Navy. As such, the plaintiff’s claims related to an act under color of federal office, and Avondale was entitled to remove the case to federal court.