Goffner v. Avondale Industries, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WILSON GOFFNER, SR., CIVIL ACTION

Plaintiff

NO. 22-3047

VERSUS

SECTION: “E” (2)

ANCO INSULATIONS, INC., ET AL.,

Defendants

ORDER AND REASONS

Before the Court is a motion to remand filed by Plaintiff Wilson Goffner, Sr.

(“Plaintiff”).1 Defendant Huntington Ingalls Incorporated (“Avondale”) filed an

opposition.2 Plaintiff filed a reply.3 Avondale filed a sur-reply.4 For the reasons that

follow, Plaintiff’s motion to remand is DENIED.5

BACKGROUND

This personal injury suit is based on Plaintiff’s alleged exposure to asbestos.

Plaintiff alleges he “suffered exposure to asbestos and asbestos-containing products

designed, manufactured, sold and/or supplied and/or maintained, used owned or

removed by the defendants, which exposure ultimately resulted in his contract of

malignant lung cancer.”6 Plaintiff alleges he was employed by Avondale from 1974 to 1997

as a shipfitter, where he handled, and was in the vicinity of others handling, asbestos or

asbestos-containing products.7 On May 8, 2020, Plaintiff was diagnosed with malignant

1 R. Doc. 12.

2 R. Doc. 45.

3 R. Doc. 57.

4 R. Doc. 60.

5 R. Doc. 12.

6 R. Doc. 1-1 at p. 4.

7 Id. at pp. 4, 28.

lung cancer “caused in part from asbestos exposure.”8

On February 12, 2021, Plaintiff filed a petition for damages in Civil District Court,

Parish of Orleans, State of Louisiana, against several Defendants, including Avondale.9

Plaintiff brings a negligence action against Avondale for failure to warn of the dangers of

asbestos and for “failing to provide a safe place in which to work free from the dangers of

respirable asbestos-containing dust,” i.e., failure to prevent the spread of asbestos.10

Avondale removed Plaintiff’s suit to federal court on August 30, 2022.11 In its

Notice of Removal, Avondale asserts the

Court has subject matter jurisdiction under 28 U.S.C. § 1441 in that the

action arises “under the Constitution, laws or treaties of the United States”

within the meaning of that statute, and because Avondale was, at all

material times, acting under an officer of the United States as set forth in 28

U.S.C. § 1442(a)(1).12

On September 30, 2022, Plaintiff filed the instant motion to remand.13 Plaintiff argues

remand is warranted because Avondale and its co-defendants “cannot satisfy the

‘colorable’ defense prong of the Federal Officer Removal statute.”14 Avondale filed an

opposition on October 19, 2022.15 On October 31, 2022, Plaintiff filed a reply.16 Because

Plaintiff raised new arguments in his reply—namely that Avondale also failed to satisfy

element two, that it acted under the direction of a federal officer—Avondale sought and

was granted leave to file a sur-reply, and it did so on November 1, 2022.17 The Court held

8 Id. at p. 5.

9 See generally id.

10 Id. at pp. 12-13.

11 R. Doc. 1.

12 Id. at p. 1.

13 R. Doc. 12.

14 Id. at p. 2.

15 R. Doc. 45.

16 R. Doc. 57.

17 R. Doc. 60.

oral argument on the motion on November 7, 2022.18

LEGAL STANDARD

Federal courts are courts of limited jurisdiction and possess only the authority

conferred upon them by the U.S. Constitution or by Congress.19 “The removing party

bears the burden of showing that federal jurisdiction exists and that removal was

proper.”20 Under 28 U.S.C. § 1442, Congress has allowed for the removal of state cases

commenced against

[t]he United States or any agency thereof or any 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 or on account of any right, title

or authority claimed under any Act of Congress for the apprehension or

punishment of criminals or the collection of the revenue.

The time for removal is set forth in 28 U.S.C. § 1446, which provides:

(b)(3) Except as provided in subsection (c), if the case stated by the initial

pleading is not removable, 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.21

. . .

(g) Where the civil action or criminal prosecution that is removable under

section 1442(a) is a proceeding in which a judicial order for testimony or

documents is sought or issued or sought to be enforced, the 30-day

requirement of subsection (b) of this section and paragraph (1) of section

1455(b) is satisfied if the person or entity desiring to remove the proceeding

files the notice of removal not later than 30 days after receiving, through

service, notice of any such proceeding.22

18 R. Doc. 61.

19 Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. Feb. 28, 2001).

20 See Manguno v. Prudential Property and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. Jan. 8, 2002).

21 28 U.S.C. § 1446(b) (emphasis added).

22 28 U.S.C. § 1442 (2018).

Section 1442(a)(1), “is a pure jurisdictional statute in which the raising of a federal

question in the officer’s removal petition . . . constitutes the federal law under which the

action against the federal officer arises for [Article III] purposes.”23 This statute allows

federal officers to “remove cases to federal court that ordinary federal question removal

would not reach [, ] . . . even if no federal question is raised in the well-pleaded complaint,

so long as the officer asserts a federal defense in response.”24 Broadly speaking, this

statute allows for removal “where a federal official is entitled to raise a defense arising out

of his official duties.”25 The goal of the statute is to “prevent federal officers who simply

comply with a federal duty from being punished by a state court for doing so.”26

Ordinarily, the removing defendant has the burden to establish that federal

jurisdiction exists.27 However, because § 1442(a) must be liberally construed,28 whether

federal officer removal jurisdiction exists must be assessed “without a thumb on the

remand side of the scale.”29

LAW AND ANALYSIS

The federal officer removal statute authorizes removal when: (1) the defendant is

a person within the meaning of the statute; (2) the defendant “acted under” the direction

of a federal officer; (3) the defendant’s complained-of conduct is “connected or associated

23 Zeringue v. Crane Co., 846 F.3d 785, 789 (5th Cir. 2017) (quoting Mesa v. California, 489 U.S. 121, 136

(1989)).

24 Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 290 (5th Cir. Feb. 24, 2020).

25 Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir. 1998).

26 Id. at 397–98.

27 Manguno v. Prudential Prop. and Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. Jan. 8, 2002) (citing De

Aguilar v. Boeing Co., 47 F.3d 1404, 1408 (5th Cir. Mar. 7, 1995)).

28 See, e.g, City of Walker v. Louisiana, 877 F.3d 563, 569 (5th Cir. 2017) (“[F]ederal officer removal under

28 U.S.C. § 1442 is unlike other removal doctrines: it is not narrow or limited.”).

29 Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016) (citations omitted).

with” or “related to” a federal directive;30 and (4) the defendant has a colorable federal

defense.31 Plaintiff argued only that Defendant has not demonstrated elements two and

four of the federal officer removal statute.32 Accordingly, the Court will address each of

elements two and four in turn.

I. Element Two: Avondale “Acted Under” the Direction of a Federal

Officer.

Plaintiff argues Defendant is unable to establish element two of the federal officer

removal statute—that Avondale “acted under” the direction of a federal officer. “In order

to satisfy the ‘acting under’ requirement, a removing defendant need not show that its

alleged conduct was precisely dictated by a federal officer’s directive.”33 “Instead, the

‘acting under’ inquiry examines the relationship between the removing party and the

relevant federal officer, requiring courts to determine whether the federal officer ‘exerts

a sufficient level of subjection, guidance, or control’ over the private actor.”34 “For

example, courts in [the Fifth] [C]ircuit have held that negligence claims against federal

contractors are removable under the federal officer removal statute, even though the

negligence was not directed by federal authorities.”35 Put another away, to litigate in this

Court, Avondale need only show it acted under the direction of a federal officer when it

30 St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. & Indem. Co., No. 20-30093 at *12 (5th Cir. March

8, 2021) (citing Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 291, 296 (5th Cir. Feb. 24, 2020) and

rejecting the Fifth Circuit’s former “causal nexus” requirement).

31 Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286, 296 (5th Cir. Feb. 24, 2020).

32 R. Doc. 12-1; R. Doc. 57. Indeed, the Court finds Avondale has established elements one and three R. Doc.

45 at p. 41 (element one) (“The Supreme Court has long recognized that the federal officer removal statute

also applies to private persons and corporate entities.”); id. at pp. 42-43 (element three) (“The phrase

‘related to’ is extremely broad, meaning ‘to stand in some relation; to have bearing or concern; to pertain;

to refer; to bring into association with or connection with.’ Under this broad standard, Plaintiff’s claims

relate to Avondale’s actions under color of federal office.”).

33 St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. & Indemnity Co., 990 F.3d 447, 454 (5th Cir. 2021).

34 Id.

35 Id.

used asbestos-containing products. Under the statute, Avondale need not show the

alleged failure to warn and failure to prevent the spread was precisely dictated by a federal

officer’s directive.

Moreover, as raised by Avondale, “[a] private entity is acting under the direction

of a federal officer [for removal purposes] where it ‘fulfilled the terms of a contractual

agreement by providing the Government with a product that it used to help conduct a war’

and arguably ‘performed a job that, in the absence of a contract with a private firm, the

Government itself would have had to perform.”36 Likewise, the Fifth Circuit has held “the

mere fact that ‘the federal government would have had to build those ships had the

defendant not done so’ sufficient to satisfy the ‘acting under’ requirement.’”37

In Broussard v. Huntington Ingalls, Inc., another section of this Court held

Avondale was acting under the direction of a federal officer because “the vessels ‘were

being built by Avondale under the detailed supervision and control of one or more officers

of the United States . . . and [the plaintiff] was injured due, in part, to asbestos-containing

products allegedly installed aboard ships built pursuant to contracts with the U.S. Navy’”

and because “the United States government contracted with Avondale to perform a task

that the federal government otherwise would itself have had to perform: building ships

‘used to help conduct a war’ and to further other national interests.”38 The Court finds,

36 Neal v. Ameron Int’l Corp., 495 F. Supp. 3d 375, 388 (E.D. La. 2020) (citing Watson v. Philip Morris

Co.’s, Inc., 551 U.S. 142, 153-54 (2007)).

37 Dempster v. Lamorak Ins. Co., 435 F. Supp. 3d 708, 725 (E.D. La. 2020) (citing Wilde v. Huntington

Ingalls, Inc., 616 F. App’x 710, 713 (5th Cir. 2015)).

38 Broussard v. Huntington Ingalls, Inc., No. 20-836, 2020 WL 2744584, at *5 (E.D. La. May 27, 2020).

for the limited purpose of removal, Avondale was acting under the direction of a federal

officer for the same reasons articulated by the Court in Broussard.39

Avondale has provided evidence that it was contracted by the U.S. Navy to build

vessels.40 Avondale also provided evidence that its government contracts required

Avondale to use asbestos.41 Further, had Avondale not built the ships, the Government

itself likely would have had to perform. Accordingly, Avondale has established element

two of the federal officer removal statute.

II. Element Four: Avondale Has a Colorable Federal Defense Under

Boyle.

Avondale raises three federal defenses to Plaintiff’s claims. First, Avondale raises

the government contractor defense established by Boyle v. United Techs. Corp. and its

progeny.42 Second, it raises the federal defense of derivative sovereign immunity as set

forth in Yearsley v. W.A. Ross Construction Co. and its progeny.43 Finally, Avondale

argues it has presented a colorable defense of preemption under the Longshore and

Harbor Workers’ Compensation Act (“LHWCA”).44 The Court finds Avondale has stated

a colorable federal defense of government contractor immunity under Boyle and as a

result, the Court refrains from addressing Avondale’s remaining federal defenses for the

purposes of this motion.

39 This decision is consistent with the Court’s determination as to element four and the application of

Latiolais at the motion to remand stage.

40 R. Doc. 60 at p. 5; R. Doc. 48-2 at ¶ 15.

41 R. Doc. 45 at p. 4. See Pennino v. Reilly-Benton Co., Inc., No. 21-363, 2021 WL 3783184, at *5 (E.D. La.

Aug. 26, 2021) (finding Avondale acted under the color of federal office and law when Avondale built ships

“constructed with oversight from various governmental authorities and specifications requiring Avondale

to use and install asbestos-containing materials”).

42 R. Doc. 45 at pp. 10-23.

43 Id. at pp. 23-29.

44 Id. at pp. 29-41.

Before turning to the instant motion, the Court finds it useful to outline the

standard for establishing a colorable federal defense and to clarify the proper elements

under Boyle applicable at the motion to remand stage.

A. The Standard for Establishing a Colorable Federal Defense.

The Fifth Circuit has outlined the standard for asserting a colorable federal officer

defense at the motion to remand stage:

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.’” Jefferson

County, 527 U.S. at 431, 119 S. Ct. at 2075 (quoting Willingham, 395 U.S. at

407, 89 S. Ct. at 1816). 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.” See Zeringue, 846

F.3d at 790; see also Bell, 743 F.3d at 89–91 (deeming an asserted federal

defense colorable simply because it satisfied the “causal connection”

requirement). Certainly, if a defense is plausible, it is

colorable. Compare Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct.

1937, 1949–50, 173 L.Ed.2d 868 (2009) (plausible claim survives a motion

to dismiss), with Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89, 118

S. Ct. 1003, 1010, 140 L.Ed.2d 210 (1998) (“It is firmly established in our

cases that the absence of a valid (as opposed to arguable) cause of action

does not implicate subject-matter jurisdiction.”), and Montana-Dakota

Utils. Co. v. Nw. Pub. Serv. Co., 341 U.S. 246, 249, 71 S. Ct. 692, 694, 95

L.Ed. 912 (1951) (“If the complaint raises a federal question, the mere claim

confers power to decide that it has no merit, as well as to decide that it

has.”).45

For the purpose of removal, a colorable federal defense does not need to be “clearly

sustainable.”46 At the motion to remand stage, it is not for the Court to decide today

whether a Boyle federal contractor defense has merit and shields the defendant from

liability. Said differently, the issue is not whether the defendant’s federal defenses will

ultimately provide a defense against Plaintiff’s claims, but whether the federal defenses

45 Latiolais, 951 F.3d at 296-97.

46 Id. at 296.

are not wholly insubstantial or frivolous. The Court need only find that the defendant

raised a colorable federal defense. The defendant must raise a federal defense that is

plausible and not frivolous or immaterial. The defendant need not win its case before it

can be removed.47

B. The Elements Outlined in Latiolais, Rather Than Jowers, Are

Applicable at the Motion to Remand Stage.

The government contractor defense recognized in Boyle “extends to federal

contractors an immunity enjoyed by the federal government in the performance of

discretionary actions.”48 In Boyle, the Supreme Court held state law liability may not be

imposed for design defects in military equipment “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.”49

While the test outlined in Boyle was not created in the failure to warn context, the

United States Court of Appeals for the Fifth Circuit “clearly has applied the Boyle

government contractor defense in failure to warn cases, as seen in Jowers v. Lincoln

Electric Company.”50 In Jowers, the Fifth Circuit explained, at the post-trial motion

stage:

the defendant would be entitled to the government contractor defense only

if it established: (1) the federal government exercised discretion and

approved warnings for the product; (2) the warnings the defendant

provided about the product conformed to the federal government

47 See Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999) (“We therefore do not require the officer virtually

to ‘win his case before he can have it removed.”) (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)).

48 Latiolais, 951 F.3d at 297.

49 Boyle v. United Tech. Corp., 487 U.S. 500, 512 (1988).

50 Adams v. Eagle, No. 21-694, 2022 WL 4016749, at *6 (E.D. La. Sept. 2, 2022) (citing Jowers v. Lincoln

Elec. Co., 617 F.3d 346 (5th Cir. 2010)).

specification; and (3) the defendant warned the federal government about

dangers known to the defendant but not the government.51

A decade later in Latiolais v. Huntington Ingalls, Inc., a case involving Avondale’s

removal of a plaintiff’s suit on the basis of § 1442, the Fifth Circuit articulated a similar

but distinct set of elements required to establish a Boyle defense at the motion to remand

stage.52 In determining whether Avondale was entitled to a Boyle defense, and as a result

whether the court had jurisdiction, the Fifth Circuit in Latiolais considered whether the

following three elements were met:

(1) the United States approved reasonably precise specifications [as to the

dangerous product, i.e., asbestos]; (2) the equipment conformed to those

specifications; and (3) the supplier warned the United States about the

dangers in the use of [asbestos] that were known to the supplier but not to

the United States.53

The Court recognizes there are differences between the elements in Jowers and in

Latiolais based on the different contexts in which they were decided. Plaintiff asks this

Court to, in effect, ignore Latiolais and apply Jowers at the remand stage. The Court

declines to do so. The difference between the Latiolais and Jowers framing of the

elements is based on the different stages of the proceedings at which the cases were

decided. While Jowers, the narrower standard, is applicable at the post-trial motion

stage, when Avondale must prove its defense, Latiolais is applicable at the time of

removal, when Avondale must demonstrate only a colorable defense. The Court finds the

Boyle elements as set out in Latiolais—not Jowers—are applicable when considering a

motion to remand.54

51 Id.

52 Latiolais, 951 F.3d at 297.

53 Id.

54 This outcome is consistent with the other decisions from this Court post-Latiolais. Compare Adams, No.

21-694, 2022 WL 4016749 (finding Avondale was not entitled to Boyle immunity at the summary judgment

C. Avondale Has Stated a Colorable Federal Defense under Boyle.

Turning now to the three Boyle elements as set out in Latiolais, Avondale must

demonstrate (1) the United States approved reasonably precise specifications as to

asbestos; (2) Avondale’s use of asbestos conformed to those specifications; and (3)

Avondale warned the United States about the dangers in the use of asbestos that were

known to it but not to the United States.55 It is clear Avondale has done so.

First, Avondale has put forth sufficient evidence that the United States approved

reasonably precise specifications as to the use of asbestos. In its opposition to the motion

to remand, Avondale provided an affidavit attesting that the U.S. Navy mandated the use

of asbestos on the vessels constructed by Avondale and that Avondale could not deviate

from the precise materials required without prior approval.56 Moreover, Avondale

provided evidence in the form of affidavits stating that MARAD, authorized by the

Merchant Marine Act, provided for the use of asbestos-containing materials.57 Likewise,

the affidavits provided by Avondale demonstrate it was not allowed to make changes to

the material specifications without obtaining approval from MARAD.58

Second, Avondale’s evidence shows it used asbestos in conformance with the

United States’ specifications. Avondale was never cited by federal inspections for

stage), Falgout v. ANCO Insulations, Inc., No. 21-1443, 2022 WL 7540115 (E.D. La. Oct. 12, 2022) (same),

and Crossland, No. 20-3470, 2022 WL 1082387 (same) with Robichaux v. Huntington Ingalls, Inc., No.

22-610, 2022 WL 1553489 (E.D. La. May 17, 2022) (denying remand, finding Avondale demonstrated a

colorable federal officer defense under Boyle and Latiolais at the motion to remand stage).

55 Latiolais, 951 F.3d at 297.

56 R. Doc. 45 at p. 3; R. Doc. 48-2 at pp. 12-13.

57 R. Doc. 48-2 at p. 7.

58 Id. at pp. 7, 9-12.

violations, and the government repeatedly renewed its contracts.59 Plaintiff has made no

allegations that Avondale did not comply with the specifications in its use of asbestos.®°

Finally, Avondale has sufficiently demonstrated that the United States government

knew more about asbestos than it did, and as a result, Avondale was not required to warn

the United States about the use of asbestos. In the instant action, Avondale relies on the

affidavit of Christopher P. Herfel, as it did in Latiolais, a case in which the Fifth Circuit

held “Avondale’s evidence tends to support that the federal government knew more than

Avondale knew about asbestos-related hazards and related safety measures.” Like the

Fifth Circuit in Latiolais, the Court finds Avondale’s evidence is sufficient to carry its

burden on the third element.®? Accordingly, Avondale has raised a colorable federal

officer defense under Boyle.

CONCLUSION

IT IS ORDERED that Plaintiffs motion to remand®3 is DENIED.

New Orleans, Louisiana, this 1st day of December, 2022.

SUSIE none

UNITED STATES DISTRICT JUDGE

59 R, Doc. 45-7 at pp. 2-3; R. Doc. 45-8 at p. 96; R. Doc. 45-11 at p. 11.

60 R, Doc. 12; R. Doc. 57.

61 R, Doc. 45 at p. 17; R. Doc. 48-2 at pp. 14-15.

62 Id. at 297-98. Additionally, Plaintiff argues Avondale’s failure to introduce the government contracts it

relies upon to support its opposition should result in remand. The Court is not persuaded by this argument.

In Latiolais, the Court relied on evidence in the form of affidavits deposition testimonies, and other items

in the record, notably not including the government contracts at issue. Id.

63 R. Doc. 27.

12