The Fifth Circuit recently issued an en banc opinion in Latiolais v. Huntington Ingalls, Inc.,[1] a case previously featured on the Blog, overruling “extraordinarily confused” precedent and establishing a new removal test under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). This new test is likely to have significant impact on future removals to federal court.
The pertinent facts in Latiolais are straightforward. In the 1960s and 70s, the Navy contracted with Avondale to build and refurbish vessels. These contracts required Avondale to use asbestos for insulation. Latiolais, a former Navy machinist, claimed he contracted mesothelioma from asbestos exposure at an Avondale facility. Prior to his death, he filed a state-court lawsuit against Avondale. The lawsuit asserted negligence claims for failure to warn of asbestos hazards and failure to provide adequate safety equipment. There were no strict liability claims.
Avondale removed the lawsuit to federal court under § 1442(a)(1). This statute was amended in 2011 to allow removal of cases “for or relating to any act under color of [federal] office.” Handcuffed by precedent that failed to recognize the import of this amendment, the Latiolais panel reluctantly affirmed remand, “but in hopes that our precedents will be reordered.” The Fifth Circuit finally got that opportunity when this case was heard en banc.[2]
Judge Jones wrote the decision for a unanimous court. The court held that the addition of the phrase “relating to” expanded federal officer removal to actions “not just causally connected, but alternatively connected or associated, with acts under color of federal office.” With this ruling, the Fifth Circuit replaced the outdated “causal nexus” test. Now, a removing party need only show “the charged conduct is connected or associated with an act pursuant to a federal officer’s directions.”
Applying this new test, the en banc court reversed the prior panel decision. The plaintiff’s negligence claims against Avondale involved asbestos exposure. The exposures were “connected with” the Navy’s requirement for asbestos insulation. Therefore, removal was proper.[3]
Latiolais marks a significant change in the law. In recent years, federal officer removal in the Fifth Circuit was limited to claims of strict liability and intentional tort. Now, it appears negligence claims—or at least those alleging failure to warn or provide safe equipment—may also be subject to removal. So how far does this decision go? Are all negligence claims removable? And is there anything plaintiffs can do (such as a jurisdictional disclaimer) to preempt removal? These questions and others await another day.
For more information about this Article or related issues, please contact attorneys Sara Grace Sirera (ssirera@liskow.com), Philip Dore (pdore@liskow.com), or Scott Seiler (scseiler@liskow.com).
[1] No. 18-30652, 2020 WL 878930 (5th Cir. Feb. 24, 2020) (en banc).
[2] As explained in our prior article, under the Fifth Circuit’s “rule of orderliness,” a 3-member panel may not overturn a prior panel “absent an intervening change in law, such as by statutory amendment, or the Supreme Court, or the en banc Court.”
[3] To be sure, there are other requirements for federal officer removal, including that the defendant (1) has asserted a colorable federal defense, (2) is a “person” within the meaning of the statute, and (3) has acted pursuant to a federal officer’s directions. None of those requirements are relevant to this blog post and therefore are not addressed.
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