Plaintiff’s Motion to Remand Denied as Removal Deemed Proper Under Federal Officer Statute

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U.S. District Court for the Eastern District of Louisiana

In the instant action, plaintiff Martha T. Roussell alleges she contracted mesothelioma through take-home asbestos exposure from the work of her father, Asward P. Theriot, who worked at Avondale Shipyard in 1957 and 1958. The plaintiff brought this action in state court against multiple defendants including Huntington Ingalls Incorporated and Lamorak Insurance Company (The Avondale Interests).

During the course of discovery it was revealed that Asward Theriot’s job application showed that his brother (Roussell’s uncle), Tracy Theriot, was already working for Avondale. Furthermore, employment records produced by Avondale revealed that Tracy Theriot worked at Avondale from September 20, 1943, through March 19, 1945, and, again, from October 21, 1955, through November 3, 1960, at which time he transferred to Hopeman. Therefore, Roussell amended her claim to include asbestos exposure from her uncle and to add his employer Hopeman as a defendant.

On October 19, 2020, the Avondale Interests removed this case to federal court on the basis of federal-officer jurisdiction under 28 U.S.C. § 1442(a)(1) raising a Boyle government contractor immunity defense and a Yearsley derivative sovereign immunity defense. Roussell filed this instant motion to remand. Hopeman filed an opposition to plaintiff’s motion alleging its own basis for federal jurisdiction.

The plaintiff argues that the Avondale Interests cannot raise a colorable federal defense because they cannot identify a single federal vessel Tracy Theriot worked on as either an Avondale or Hopeman employee. The plaintiff alleges that she still does not know the vessels or shipyards her uncle worked on and further argues that without this key information it is impossible for the Avondale Interests to raise a plausible federal defense. The Avondale Interests respond that factual disputes should be dealt with on the merits of the defense, not as challenges to the existence of federal jurisdiction. Relying on the Fifth Circuit’s opinion in Latiolais, they argue that they have presented sufficient evidence to support a colorable Boyle defense.

The court noted that Section 1442(a)(1) makes removable a civil action commenced in a state court 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.” 28 U.S.C. § 1442(a)(1). The statute allows federal officers to remove to federal court cases “that ordinary federal question removal would not reach.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. 2020). “In particular, section 1442(a) permits an officer to remove a case even if no federal question is raised in the well-pleaded complaint, so long as the officer asserts a federal defense in the response.” Id. After a 2011 amendment, “section 1442(a)(1) makes removable to federal court ‘a civil action [*7] … that is against or directed to … any person acting under a federal officer … for or relating to any act under color of such office.”

After a thorough analysis of the facts presented, the court found the evidence adequately showed that Tracy Theriot was at risk for exposure to asbestos through his work on one or more federal vessels and, consequently, presents a colorable Boyle defense and a proper basis for federal jurisdiction. Therefore, the court denied plaintiff’s motion to remand.