James Latiolais v. Eagle, Incorporated
Opinion of the Court
Like several actions before it, this case involves a Plaintiff who was exposed to asbestos at the Avondale shipyard and eventually contracted mesothelioma. The Defendant removed the case to federal court pursuant to
BACKGROUND
During the 1960s and 1970s, the United States Navy contracted with the Defendant Avondale
The Plaintiff, James Latiolais, formerly a machinist aboard the USS TAPPAHANNOCK , was exposed to asbestos while his ship underwent refurbishing at Avondale for several months. During the refurbishing process, Latiolais spent most of each day on the ship. In 2017, Latiolais was *408diagnosed with mesothelioma. He died in October, 2017.
Latiolais sued Avondale in Louisiana state court for causing him to contract mesothelioma. He asserts, inter alia , that Avondale negligently failed to warn him about asbestos hazards and failed to provide adequate safety equipment. He did not allege strict liability claims against Avondale.
Avondale removed the case to federal court under
STANDARD OF REVIEW
Although an order remanding a case to state court is not generally reviewable, "an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise."
DISCUSSION
On appeal, Avondale makes three arguments as to why officer removal is proper. First, as amended in 2011, the removal statute now requires only that a federal directive "relates to"-but not necessarily has a causal relationship to-the Plaintiffs' injuries. Second, Avondale asserts that it has satisfied the causal nexus requirement by showing "that its relationship with Mr. Latiolais derived solely from its work for the federal government." Third, Avondale seeks to avoid precedents of this court contrary to the foregoing propositions. Unfortunately, the failure of the third argument dooms the others.
I. The "relating to" language
The federal officer removal statute was amended in 2011 to broaden the basis for removal to federal court of claims brought against officers or agents of the federal government and those working under its direction. Thus, the statute states that an action filed in state court may be removed to federal court by: "[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."
The Supreme Court has observed more than once that when the term "relating to" appears in a statute, it implies broad and comprehensive coverage. See, e.g., Morales v. Trans World Airlines, Inc.,
In this court, however, what's past is prologue. Before the amendment, Section 1442 authorized removal of a suit against a federal officer, or person acting under a federal officer, only when the suit was "for any act under color of such office."
This court applied to the post-2011 amended statute the "causal nexus" test articulated for the prior statute. Bartel v. Alcoa S.S. Co., Inc. ,
It is true that in Zeringue , a case decided after Bartel but before Legendre , this court appeared to relax the causal nexus standard in light of the post-2011 "relating to" language, but reliance on that case is not appropriate. Zeringue v. Crane Company ,
In a case with similar facts to this one, the Savoie court relied on Bartel and found no causal nexus between Avondale's conduct and government requirements. Even though the government contracts required Avondale to build ships with asbestos, "the government had no control over the shipyard's safety procedures" and "the Navy neither imposed any special safety requirements on the shipyard nor prevented the shipyard from imposing its own safety procedures."
In contrast, the Savoie plaintiff's strict liability claims were held to support removal,
The dichotomy between Zeringue and Savoie was adhered to by Legendre , where the plaintiffs sued Avondale for the plaintiff's asbestos disease based on the theory of negligent failure to warn, not strict liability. Legendre ,
All of these cases post-date the 2011 amendment to Section 1442(a)(1), and all continue to cite Bartel, while drawing a distinction for removal purposes between claims for negligence (not removable) and strict liability (removable) pursuant to the causal nexus test. We are bound by this series of cases.
II. The Causal Nexus Test
Avondale attempts to demonstrate that even under the causal nexus test used in our case law, removal may be sustained. This contention is not persuasive.
Avondale's evidence has not changed since Legendre . Although the government contractually required Avondale to use asbestos in refurbishing the Navy vessels, Avondale once again "makes no showing that it was not free to adopt the safety measures the plaintiffs now allege would have prevented their injuries." Legendre ,
Avondale alleges instead that it has satisfied the causal nexus requirement because "its relationship with Mr. Latiolais derived solely from its work for the federal government." Avondale contends that in the Bartel line of cases, the plaintiffs were former employees (or their family members) who sued the employer defendants, whereas Latiolais, a Navy man, was never *411employed by Avondale, and Avondale's contact with him occurred solely because of its contracts with the federal government. In other words, Avondale's contention is that because its contact with Latiolais was solely due to its government work on the Navy ship on which Latiolais served, officer removal is proper.
This contention might have prevailed but for the discussions in our other cases. Avondale relies on three pre- Bartel Supreme Court cases and Zeringue for its proposition. See Maryland v. Soper ,
In a civil suit of this nature, we think it was sufficient for petitioners to have shown that their relationship to respondent derived solely from their official duties ... In this case, once petitioners had shown that their only contact with respondent occurred inside the penitentiary, while they were performing their duties, we believe that they had demonstrated the required 'causal connection.'
Willingham ,
Whatever force could be derived from these statements in Zeringue , however, was weakened by its assurance that "[o]ur recent holding in Bartel ... is not to the contrary."
Because Latiolais's claims are the same failure to warn claims that both Zeringue and Legendre held implicated no federal interests, we cannot hold that this case meets the causal nexus requirement.
*412III. The rule of orderliness and need to reconsider Bartel en banc
Avondale argues that Legendre misapplied the rule of orderliness vis-a-vis Bartel and that Bartel should not control this case "because it did not meaningfully consider or address the effect of the 2011 amendment." Legendre explained that, "[t]his court adheres to a rule of orderliness, under which a panel may not overturn a controlling precedent absent an intervening change in law, such as by a statutory amendment, or the Supreme Court, or our en banc court." Legendre ,
Nevertheless, Bartel should be reconsidered en banc in order to align our precedent with the statute's evolution. As discussed above, "[b]efore 2011, § 1442 allowed the removal of a state suit against a federal officer, or person acting under a federal officer, only when the state suit was 'for any act under color of such office.' " Zeringue ,
Bartel 's causal nexus standard simply does not give effect to the words "relating to." This case exemplifies the problem. Avondale refurbished vessels using asbestos insulation as directed by the Navy. Because Avondale ran its own safety department free of Navy directives, however, any alleged failure by Avondale to warn its employees or others about asbestos is not an act under color of federal office, so Avondale is not being sued "for" a federal act. However, Avondale's failure to warn about asbestos certainly "relates to" its federal act of building the ships. Applying the post-2011 statutory language would change the outcome of this appeal and would authorize removal of many more cases than the causal nexus test permits.
Finally, Legendre explained that "although we are bound by precedent, we note that other circuits have read the 2011 amendments to eliminate the old 'causal nexus' requirement." Id. at 403. The Third and Fourth Circuits shifted their jurisprudence away from the causal nexus test and now require only a "connection" or "association." Specifically, the Third Circuit, after discussing the addition of the phrase "relating to," held "it is sufficient for there to be a 'connection' or 'association' between the act in question and the federal office." In re Commonwealth's Motion to Appoint Counsel Against or Directed to Defender Association of Philadelphia ,
CONCLUSION
For the foregoing reasons, but in hopes that our precedents will be reordered, the remand order of the district court must be AFFIRMED .
The Defendant Huntington Ingalls was formerly known by many names including Northrop Grumman Shipbuilding and Avondale Industries. Because the parties refer to the Defendant as Avondale, the court does the same.
Although Latiolais died shortly after filing his petition in Louisiana state court, no party argues that his death affects any issue in this appeal.
The court concluded that removal was proper because "removal of the entire case is appropriate so long as a single claim satisfies the federal officer removal statute." Savoie ,
Mere use of asbestos is a strict liability claim, whereas failure to warn is a negligence claim. See Savoie ,
The Eleventh Circuit has also considered the "relating to" language, but the court's position is less clear. See Caver v. Central Alabama Electric Coop. ,
Dissenting Opinion
I respectfully dissent from the court's decision to extend Bartel v. Alcoa Steamship Co. ,
The core fact that distinguishes this case from Bartel is that Latiolais was a member of the Navy. He was subject to Avondale's actions exclusively because the Navy assigned him to the USS TAPPAHANNOCK . The Navy alone, not Avondale, could control Latiolais's actions.
Our case law, including Bartel , has never addressed such a situation.
Latiolais's status as a Navy man and Avondale's status as a contractor for the Navy satisfies the causal nexus test. The Supreme Court has held that the causal nexus test is satisfied when defendants "have shown that their relationship to [a plaintiff] derived solely from their official duties." Willingham v. Morgan ,
The majority opinion seems to agree with this point, noting that Willingham "suggest[s] that removal is proper" based on that test, but it reasons that our decision in Zeringue v. Crane Co. ,
Other circuits have reached the same result based on nearly identical facts. See *414Ruppel v. CBS Corp. ,
Because this case differs significantly from the Bartel line of cases, it is not a good vehicle to take the underlying issue en banc even assuming arguendo that the Bartel line of cases are wrong.
Reference
- Full Case Name
- James A. LATIOLAIS, Plaintiff-Appellee v. HUNTINGTON INGALLS, INCORPORATED, Formerly Known as Northrop Grumman Shipbuilding, Incorporated, Formerly Known as Northrop Grumman Ship Systems, Incorporated, Formerly Known as Avondale Industries, Incorporated, Defendant-Appellant
- Cited By
- 20 cases
- Status
- Published