Louisiana District Court Upholds Federal Officer Removal Following Recent Fifth Circuit Precedent

U.S. District Court, Eastern District of Louisiana

The United States District Court for the Eastern District of Louisiana has issued its first remand decision following the Fifth Circuit’s clarification of removal under the Federal Officer Removal Statute in February 2020.

Plaintiff, Edward J. Boudreaux, Jr. alleged, among other things, that he was exposed to asbestos while working as a welder, pipefitter, and laborer at the Avondale shipyards between 1963 and 1969. Plaintiff filed suit against numerous defendants, several of which represented the interests of the Avondale shipyard (“the Avondale Interests”). The Avondale Interests removed the case to federal court in August 2019 under the federal officer removal statute (28 U.S.C. § 1442). Plaintiff filed a motion to remand, but the court held the motion in abeyance, to await the Fifth Circuit’s decision in Latiolais v. Huntington Ingalls, Inc., reported here, which clarified the requirements for removal under the federal officer removal statute. Following the Latiolais holding, the court ordered that the parties submit supplemental briefings on the issue.

After reviewing supplemental briefings, in line with the Fifth Circuit’s decision in Latiolais, the district court held that the Avondale Interests’ assertion of the government contractor defense was colorable, as they presented testimony that the federal government approved specifications for the construction of the ships on which Plaintiff worked in the shipyards, and that the government knew more than they did about asbestos-related hazards and safety measures. The court further held that under Latiolais, the Avondale Interests qualified as “persons” under the federal officer statute, that  Avondale’s contracts with the government to build Navy ships satisfied the “acting under” requirement, and that the plaintiff’s claims of alleged negligence with regard to the installation of asbestos was connected with its work for the government. As was true for the defendants in Latiolais, the Avondale interests in this case had also established the requirements for federal officer removal, and Plaintiff’s motion to remand was denied.

Read the case decision here.