U.S. District Court for the Eastern District of Louisiana
Plaintiff Wilson Goffner, Sr. was diagnosed with malignant lung cancer in March 2020following his employment at the Avondale shipyard in the late 1960s and 1970s. In February 2021, the plaintiff filed a petition for damages in the Civil District Court for the Parish of New Orleans, asserting claims under Louisiana state tort law against numerous defendants, including his former employer, Avondale Industries. Avondale then removed the action to the Louisiana Eastern District Court, invoking federal jurisdiction under 28 U.S.C. § 1441 and claimed “Avondale was, at all material times, acting under an officer of the United States as set forth in 28 U.S.C. § 1442(a)(1).”
In response, the plaintiff filed his First Motion to Remand and argued removal was improper as Avondale and its codefendants were unable to “satisfy the ‘colorable’ defense prong” of 38 U.S.C. § 1442(a)(1) (the Federal Office Removal Statute).Initially, the court denied the plaintiff’s motion and found Avondale acted under the direction of a federal officer and thus carried its burden to sufficiently raise a colorable federal officer defense. The plaintiff filed a Second Motion to Remand on May 4, 2024, and contended that removal was improper because Avondale had not acted under a federal officer as defined by 28 U.S.C. § 1442(a)(1).
The court noted that federal courts are “of limited jurisdiction and possess only the authority conferred upon them by the U.S. Constitution or by Congress.” Concerning the Federal Officer Removal Statute, a defendant can remove a matter brought against “[T]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office.” As such,federal officers may remove a case absent as federal question, as long as said officer asserts a federal defense in response.
In the Fifth Circuit, a defendant must demonstrate “(1) ‘it is a “person” within the meaning of the statue’; (2) ‘it has acted pursuant to a federal officers’ directions’; (3) its complained of conduct is ‘connected or associated with’ or ‘related to’ a federal directive; and (4) it has ‘asserted a colorable federal defense’” in order to remove a case pursuant to the Federal Officer Removal Statute. The plaintiff’s second motion argued Avondale was unable to establish the critical second element, and urged the court to adopt a recent opinion from the Eleventh Circuit. According to the plaintiff, State v. Meadows limited removal under the Federal Officer Statute “to current, not former, federal officers.” In response, Avondale argued that the case featured vastly different facts. Instead, Avondale pointed to Ditcharo v Union Pac. R.R. Co. and Marcella v Huntington Ingalls Inc.
The circuit court agreed with Avondale. In Ditcharo, the court applied Fifth Circuit precedent that determined Avondale satisfied the second prong through its federal contract with the United States Government to repair Navy vessels. Likewise, in Marcella, the court applied Ditcharo and found non-binding case law did not alter a party’s removal rights with respect to asbestos-exposure claims. As such, the court “decline[d] ‘to twist the Eleventh Circuit’s holding in Plaintiff[‘s] favor to find that Avondale cannot remove the matter to this court because it formerly acted under the actions of the Navy.” Therefore, it determined Avondale satisfied the elements of the Federal Officer Removal Statute. Thus, the court the denied plaintiff’s Second Motion to Remand.
Read the full decision here.