U.S. Court of Appeals for the Fifth Circuit Finds Removal is Proper Under Federal Officer Removal Statute U.S. Court of Appeals for the Fifth Circuit, January 20, 2017
Plaintiff Howard Zeringue brought suit against Crane Co. and various other defendants in state court for injuries allegedly caused by exposure to asbestos. The plaintiff alleged that he was first exposed to asbestos in 1952 while he was deployed with the U.S. Navy and served in various capacities in the Navy aboard three vessels until 1956. The plaintiff also alleged he was later exposed to asbestos at two other jobs. However, the plaintiff did not provide the time period for his alleged post-naval exposure. Crane removed the case to the Eastern District of Louisiana pursuant to the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). The district court determined that although Crane had “allege[d] all of the elements for . . . federal officer re-moval” and had provided evidence that permitted a “plausibl[e] assum[ption] that any equipment that Crane built for the Navy was indeed subject to detailed specifi-cations,” Crane had not established that the “government exercised its discretion, with respect to the specific design and warning problems that are implicated by Zeringue’s claims.”
Crane appealed the decision to the United States Court of Appeals for the Fifth Circuit. The court of appeals required that to be removable under 28 U.S.C. § 1442(a)(1), a show (1) that it is a person within the meaning of the statute, (2) that it has “a colorable federal defense,” (3) that it “acted pursuant to a federal officer’s directions,” and (4) “that a causal nexus exists between [its] actions under color of federal office and the plaintiff’s claims.”
Crane asserted government-contractor immunity as its federal defense. The crux of Crane’s argument of government-contractor immunity is that any product that the plaintiff alleged Crane manufactured for or supplied to the Navy would be subject to Navy specifications and requirements; Crane would have complied with any such specifications. Crane included military specifications from 1938, 1966, and 1978 that required asbestos packing used in conjunction with Crane products. The plaintiff claims these specifications do not cover the time period the Plaintiff served in the Navy. The court of appeals found that these documents establish that Crane’s claim to government-contractor immunity was in fact colorable noting that a specific contract limited to the time the plaintiff was in the Navy would be ideal, however, Crane’s evidence was sufficient to establish a colorable defense.
The court continued the analysis under 28 U.S.C. § 1442(a)(1) by determining whether the defendant was “acting under” an officer of the United States at the time of his alleged injury. This relationship typically involves “subjection, guidance, or control,” but, at a minimum, it “must involve an effort to assist, or to help carry out, the duties or tasks of the federal superior.” The court found that because all equipment supplied by Crane to the Navy was built in accordance with the Navy’s specifications, Crane was in fact “acting under” the Navy.
Last, the court determined that there was a “nexus” between the alleged claim and the military authority to satisfy the final requirement of 28 U.S.C. § 1442(a)(1). The rule requires the removing party to establish “a nexus, a ‘causal connection’ between the charged conduct and asserted official authority. The plaintiff argues that there is no nexus because the causal connection must depend upon a showing of precise federal direction. The court disagreed with the plaintiff’s interpretation. The court commented, “Crane’s relationship with Zeringue derives solely from its official authority to provide parts to the Navy, and that official authority relates to Crane’s allegedly improper actions, namely its use of asbestos in those parts. Although the court cannot attenuate the causal nexus requirement “to the point of irrelevance,” the plain import of the phrase “relating to” is that some attenuation is permissible, attenuation which is irreconcilable with Zeringue’s proposed requirement of precise federal direction.”
As a result, the U.S. Court of Appeals for the Fifth Circuit reversed the judgment of the district court and remanded the proceedings to the Eastern District of Louisiana.