The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MARSHA T. ROUSSELL CIVIL ACTION
VERSUS NO. 20-2857
HUNTINGTON INGALLS, INC., et al. SECTION M (2)
ORDER & REASONS
Before the Court is the motion of plaintiff Marsha T. Roussell to remand.1 Defendants
Huntington Ingalls Incorporated and Lamorak Insurance Company (“the Avondale Interests”)2 and
Hopeman Brothers, Inc. (“Hopeman”)3 oppose the motion. Roussell replies in further support of
her motion.4 And Hopeman files a surreply in further opposition.5 Having considered the parties’
memoranda, the record, and the applicable law, the Court issues this Order & Reasons denying the
motion to remand.
I. BACKGROUND
This is a personal injury case arising from alleged exposure to asbestos. On November 21,
2019, Roussell was diagnosed with malignant mesothelioma.6 Roussell alleges that her
mesothelioma was caused by secondhand exposure to asbestos from her father, Asward P. Theriot,
who worked at Avondale Shipyard in 1957 and 1958.7 On May 26, 2020, she filed suit in state
1 R. Doc. 15. The motion to remand is the first time the plaintiff has been called “Martha T. Roussell.” Since
all of plaintiff’s prior filings refer to her as “Marsha,” the Court will continue to use this name absent corrective action
on plaintiff’s part.
2 R. Doc. 30.
3 R. Doc. 34.
4 R. Doc. 40.
5 R. Doc. 49.
6 R. Doc. 1-2 at 2.
7 Id.
court against the Avondale Interests among other defendants.8 Asward Theriot’s job application
showed that his brother (Roussell’s uncle), Tracy Theriot, was already working for Avondale.9
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.10
On September 30, 2020, Roussell amended her state-court petition for damages to expand
her claim to include asbestos exposure from her uncle and to add his employer, Hopeman, as a
defendant.11 Hopeman was a subcontractor for Avondale that “sold and installed asbestos-
containing wallboard in vessels under construction and repair at Avondale.”12 Roussell alleges
that Hopeman “was negligent in conducting its operations, cutting and sawing asbestos wall board
and generating large amounts of dust, without regard for workers and without warning those
workers of the hazards of asbestos, including Tracy Theriot, plaintiff’s uncle.”13 She alleges
further that “[d]uring the years [Tracy Theriot] was employed by Avondale and Hopeman, he
incurred daily substantial exposure to asbestos in the normal and routine course of his employment
while working around vessels undergoing construction, maintenance, and repair at the shipyard.”14
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.15 The Avondale
8 Id. at 1.
9 R. Doc. 15-2 at 3.
10 R. Docs. 15-1 at 5; 15-5 at 2.
11 R. Doc. 1-3 at 3-5. Roussell also added Liberty Mutual Insurance Company as the insurer of the now-
defunct manufacturer of the asbestos-containing wallboard installed by Hopeman. Id. at 3-4.
12 Id. at 3.
13 Id.
14 Id. at 4.
15 R. Doc. 1 at 1, 4, 8. Removals under § 1442(a)(1) are subject to the time limits set forth in 28 U.S.C. §
1446(b). See Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 607 (5th Cir. 2018). Generally, a civil action must
be removed within 30 days after the defendant receives a copy of the initial pleading “setting forth the claim for relief
Interests assert that based on when Tracy Theriot is alleged to have worked at Hopeman he must
have worked on federal ships – that is, vessels built pursuant to Avondale’s contracts with the U.S.
Maritime Administration (“MARAD”).16 On December 9, 2020, after Roussell filed this motion
to remand and the Avondale Interests their opposition, Hopeman filed an opposition alleging its
own basis for federal jurisdiction.17
II. PENDING MOTION
Roussell 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.18 She alleges that she still does not know the vessels or shipyards her
uncle worked on.19 She argues that without this key information it is impossible for the Avondale
Interests to raise a plausible federal defense.20 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.21 Relying on the Fifth Circuit’s opinion in Latiolais, they argue that they have
presented sufficient evidence to support a colorable Boyle defense.22 In particular, they explain
upon which such action or proceeding is based.” 28 U.S.C. § 1446(b)(1). However, if the case is not removable based
on the initial pleading, “a notice of removal may be filed within 30 days after receipt by the defendant, through service
or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained
that the case is one which is or has become removable.” Id. § 1446(b)(3). “The information supporting removal in a
copy of an amended pleading, motion, order or other paper … must be unequivocally clear and certain to start the time
limit running.” Morgan, 879 F.3d at 608-09 (alteration, internal quotation marks, and citation omitted). In this case,
the Avondale Interests removed within 30 days of Roussell’s amended complaint, an “amended pleading” under §
1446(b)(3).
16 R. Doc. 1 at 3-4.
17 R. Doc. 34. The Fifth Circuit has held “that where a party removes a case to federal court pursuant to §
1442, a later-served defendant preserves its right to a federal forum under § 1442 by asserting the grounds for same
in its answer filed after removal.” Humphries v. Elliott Co., 760 F.3d 414, 417 (5th Cir. 2014). Nevertheless, because
the Court holds that the Avondale Interests have properly and timely alleged federal subject-matter jurisdiction, the
Court does not reach the merits of whether Hopeman has its own independent basis for federal-officer removal.
18 R. Doc. 15-1 at 8-10.
19 Id. at 6.
20 Id. at 8-10.
21 R. Doc. 30 at 9-11, 18-19.
22 Id. at 11-16.
that the only vessels Hopeman worked on at Avondale during Tracy Theriot’s employment were
federal vessels, the Del Rio, Del Sol, and Del Oro.23
III. LAW & ANALYSIS
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.
“[T]o remove under section 1442(a), a defendant must show (1) it has asserted a colorable
federal defense, (2) it is a ‘person’ within the meaning of the statute, (3) that has acted pursuant to
a federal officer’s directions, and (4) the charged conduct is connected or associated with an act
pursuant to a federal officer’s directions.” Id. at 296. Courts are to give a broad interpretation to
§ 1442(a). Id. at 290-91. Thus, the question whether to remand cases removed under the statute
is weighed “without a thumb on the remand side of the scale.” Morgan, 879 F.3d at 607 (quoting
Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016)).
After a 2011 amendment, “section 1442(a)(1) makes removable to federal court ‘a civil
action … that is against or directed to … any person acting under a federal officer … for or relating
to any act under color of such office.’” Latiolais, 951 F.3d at 292 (quoting 28 U.S.C. § 1442(a)(1))
(emphasis added; alterations omitted). In Latiolais the Fifth Circuit recognized that the statute
23 Id. at 3-4.
“plainly expresses that a civil action relating to an act under color of federal office may be removed
(if the other statutory requirements are met).” Id. (emphasis in original). And the Supreme Court
has recognized that “the ordinary meaning of the words ‘relating to’ is a broad one – ‘to stand in
some relation; to have bearing or concern; to pertain; refer; to bring into association with or
connection with.’” Id. (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992))
(brackets omitted).
To be colorable, the asserted federal defense need not be clearly sustainable, as
section 1442 does not require a federal official or person acting under him to win
his case before he can have it removed. Instead, an asserted federal defense is
colorable unless it is immaterial and made solely for the purpose of obtaining
jurisdiction or wholly insubstantial and frivolous. Certainly, if a defense is
plausible, it is colorable.
Id. at 296-97 (internal quotation marks and citations omitted).
In this case, the Avondale Interests raise the government contractor immunity defense
under Boyle v. United Techs. Corp., 487 U.S. 500 (1988).24 Under Boyle, the government
contractor immunity defense applies “when (1) the United States approved reasonably precise
specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned
the United States about the dangers in the use of the equipment that were known to the supplier
but not to the United States.” Id. at 512. The Avondale Interests relied on the same defense in
Latiolais to successfully sustain their federal-officer removal. 951 F.3d at 297.
Applying these principles, the court in Latiolais found that Avondale raised a colorable
Boyle defense where it provided an “affidavit and deposition testimony alleging that the Navy
required installation of asbestos on [one of its vessels], as well as another affidavit alleging that
24 R. Doc. 1 at 8. The Avondale Interests also raise the derivative sovereign immunity defense under Yearsley
v. W.A. Ross Constr. Co., 309 U.S. 18 (1940). R. Doc. 1 at 8. Because one federal defense is sufficient under §
1442(a)(1), it is unnecessary to analyze the Avondale Interests’ Yearsley defense for purposes of federal-officer
removal.
the Navy generally required Avondale to install asbestos and to comply with certain related safety
practices.” Id. Further, the court viewed Avondale’s evidence as supporting “that the federal
government knew more than Avondale knew about asbestos-related hazards and related safety
measures,” and “[f]rom such evidence, it is colorable that Avondale did not omit warning the
government about any dangers about which the government did not know.” Id. at 298. The Fifth
Circuit concluded that this evidence demonstrated that “Avondale’s assertion of a federal defense
is not wholly insubstantial and frivolous.” Id.
Roussell’s uncle, Tracy Theriot, was employed with Hopeman after November 3, 1960.25
Roussell alleges that during his employment with Hopeman “he incurred daily substantial
exposure to asbestos in the normal and routine course of his employment while working around
vessels undergoing construction, maintenance, and repair at the shipyard.”26 The Avondale
Interests provide evidence that Hopeman worked on only three ships, the Del Rio, Del Sol, and
Del Oro, at the Avondale shipyard during the earliest days of Tracy Theriot’s employment with
Hopeman.27 They also provide evidence that each of these vessels was constructed in compliance
with MARAD design C3-S-43a under a contract with the federal government.28 While Latiolais
involved a Navy vessel, its rationale applies with equal force to MARAD vessels where, as here,
evidence has been submitted indicating that work on the MARAD vessels, including Hopeman’s
subcontract, proceeded under the direction of and pursuant to government-approved specifications
requiring the use of asbestos, and the government knew about the risk of its use.29 See, e.g., Becnel
v. Lamorak Ins. Co., 2020 WL 5587666, at *5 (E.D. La. Sept. 18, 2020) (holding that Boyle defense
25 R. Doc. 15-5 at 2.
26 R. Doc. 1-3 at 4.
27 R. Docs. 1-5; 30-2 at 6; 30-15; 30-16; 30-17; 30-18; see also R. Docs. 34-3; 34-4.
28 R. Doc. 30-2 at 6; see also R. Doc. 34-6.
29 R. Docs. 30 at 6-8, 12-16; 30-2 at 6-12, 14-16; 30-3; 30-4; 30-14 at 20-21; see also R. Docs. 34-6; 34-9.
was colorable as to plaintiff’s work on a MARAD vessel). As a result, the Avondale Interests
“plausibly” show that federal vessels were under construction at the shipyard when Tracy Theriot
worked there.30 Latiolais, 951 F.3d at 297. This evidence, combined with Roussell’s allegations,
adequately shows 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.
In her reply, Roussell attempts to assail this logic by identifying facts the Avondale
Interests have not shown, but her effort falls short. Thus, while the duration of Tracy Theriot’s
employment may not be known at this time, Roussell does not dispute that her uncle did transfer
to Hopeman on November 3, 1960, and worked there for some time.31 Again, the allegation is that
Tracy Theriot “incurred daily substantial exposure to asbestos in the normal and routine course of
his employment while working around vessels undergoing construction, maintenance, and repair
at the shipyard.”32 The Avondale Interests have shown that the only vessels Hopeman worked on
during the period immediately after November 3, 1960, were MARAD vessels. Therefore, her
uncle’s exposure to asbestos at Avondale when working for Hopeman plausibly occurred on or
near MARAD vessels.
Nothing in Bertrand Hopeman’s deposition testimony contradicts this conclusion. His
testimony, at the earliest, only relates to his work at Hopeman from 1964 on – after the time period
in question.33 Despite this, Roussell argues that Bertrand Hopeman’s testimony shows that
Hopeman might have been retrofitting other, presumably nonfederal, vessels during this time.34
30 R. Docs. 1 at 3-4; 15-6.
31 This is evident from Roussell’s submission of invoices from the 1976-1977 timeframe, R. Doc. 37-4, which
would only be relevant if Theriot was still employed by Hopeman then.
32 R. Doc. 1-3 at 4.
33 R. Doc. 37-3 at 3.
34 R. Doc. 37-2 at 2.
The testimony of Charles N. Johnson, Jr., however, corroborates a hull list that covered “every
contract that Hopeman would have performed at Avondale” from 1960 to 1976.35 This list
confirms that at the beginning of Tracy Theriot’s employment with Hopeman, only three vessels
were in play, the Del Rio, Del Sol, and Del Oro. Roussell has not produced any evidence that
Hopeman’s work at Avondale was confined to nonfederal vessels during the relevant exposure
period. The invoices for repair work by Hopeman in 1976 and 1977 do not reveal anything about
the work Hopeman was doing circa 1960.36 Even if Roussell’s uncle was doing repair work in
1976 on nonfederal vessels, that does not change the fact that he was allegedly exposed to asbestos
years earlier as a result of his work for Hopeman on MARAD vessels. Therefore, the case was
properly removed to this Court.
IV. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that the motion of plaintiff Marsha T. Roussell to remand (R. Doc. 15)
is DENIED.
New Orleans, Louisiana, this 17th day of December, 2020.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE
35 R. Docs. 34-3 at 2-4; 34-4.
36 R. Doc. 37-4.