The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Arlene and Shelton Boutte CIVIL ACTION
NO. 22-3321
VERSUS
Huntington Ingalls Incorporated, ET AL. SECTION “A” (1)
ORDER AND REASONS
The following motion is before the Court: Motion to Remand to State Court (Rec. Doc.
26), filed by the Plaintiffs Arlene and Shelton Boutte. Defendant Huntington Ingalls
Incorporated (“Huntington Ingalls”) opposes the motion (Rec. Doc. 47). The Plaintiffs’ motion
was submitted for consideration on October 21, 2022 and is now before the Court on the briefs
without oral argument.
Background
This is an asbestos case. Plaintiffs are Shelton and Arlene Boutte, who filed this suit
against the companies who allegedly required the use of asbestos materials during Shelton
Boutte’s professional career. Shelton Boutte is a 66-year-old man who has recently contracted
lung cancer from alleged exposure to asbestos during his career as a rigger at the Avondale
Shipyard from 1973 to 1975. The Plaintiffs bring this lawsuit against Huntington Ingalls as
successor in interest and party responsible for the Avondale Shipyard. The Plaintiffs allege that
Mr. Boutte handled asbestos-containing equipment and worked in the vicinity of other workers
handling asbestos-containing equipment. Additionally, the Plaintiffs allege Avondale was
negligent in a number of different ways including but not limited to: failing to properly ventilate
the area in which their employees worked, failing to warn or provide proper safety appliances to
handle asbestos materials, failing to warn of the dangers of using asbestos materials, and failing
to abide by applicable state and federal regulations regarding the premises’ exposure to asbestos.
In response to these allegations, the Defendants raise defenses arising out of Sections 1441,
1442, and 1446 outlining statutory federal officer authority. The Plaintiffs originally filed this
lawsuit in Civil District Court for the Parish of Orleans. The Defendants removed this case to
this Court, and in response the Plaintiffs have moved to remand the case back to state court.
Legal Standard
Generally, a defendant may only remove a case to federal court if the plaintiff could have
originally filed the case there. 28 U.S.C. § 1441(a). The burden of establishing subject matter
jurisdiction in federal court rests on the party seeking to invoke it. St. Paul Reinsurance Co. v.
Greenberg, 134 F.3d 1250, 1253 (5th Cir. 1998) (citing Gaitor v. Peninsular & Occidental S.S.
Co., 287 F.2d 252, 253–54 (5th Cir.1961)).
Federal district courts have original jurisdiction over cases “arising under the
Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331. The presence or absence
of federal question jurisdiction is governed by the “well-pleaded complaint rule,” which provides
that federal jurisdiction exists only when a federal question is presented on the face of the
plaintiff's properly pleaded complaint. Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987)
(citing Gully v. First National Bank, 299 U.S. 109, 112–13 (1936)). The rule makes the plaintiff
the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state
law. Id. However, to succeed at the removal stage, defendants need only articulate a colorable
defense, which is not “wholly insubstantial and frivolous.” Zeringue v. Crane Co., 846 F.3d 785
(5th Cir. 2017). Unlike the general removal statute, which must be strictly construed in favor of
remand, the federal officer removal statute's language must be liberally interpreted. Watson v.
Philip Morris Companies, Inc., 551 U.S. 142, 147, 127 S.Ct. 2301, 168 L.Ed.2d 42 (2007).
Removing parties claiming a colorable defense that embraces a federal officer statute
under section 1442 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. Latiolais v. Huntington Ingalls Inc., 951 F.3d 286, 291 (5th Cir. 2020) (en banc). The
bar for what constitutes a defense colorable is not as high as what is necessary to survive
summary judgment or to prevail on the merits. Elie v. Ameron Int’l Corp., 2020 WL 2554317,
*2 (E.D. La. May 20, 2020) (Vance, J.). A defense is colorable, as defined by the Fifth Circuit
when: the 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. Latiolais, 951 F.3d at 296-97. The
Fifth Circuit Court of Appeals requires a liberal interpretation of section 1442, unlike general
removal provisions which must be strictly construed in favor of remand. Zeringue, 846 F.3d
785, 789 (5th Cir. 2017); Louisiana v. Sparks, 978 F.2d 226, 232 (5th Cir. 1992). Also differing
from general removal jurisdiction, there is no requirement that the district court have original
jurisdiction over the plaintiff’s claim in a federal officer removal. Cases where the federal
officer statute arises as a defense may be removed even if they are not present on the face of the
plaintiff’s well-pleaded complaint. Jefferson County, Ala. v. Acker, 527 U.S. 423, 430-31
(1999). However, the mere fact that some of the defendant’s work fell under federal regulation
or review is not enough to create a sufficient federal officer jurisdictional question. Watson v.
Phillip Morris Cos. Inc., 551 U.S. 142, 153 (2007).
Discussion
The Court finds the Defendant has asserted a colorable federal officer statutory defense
and has satisfied that element of the Fifth Circuit’s removal test. Additionally, the other
elements are not in contest here. The Defendant has satisfied the ‘colorable defense’ element by
asserting the colorable defense of government contractor immunity.
The Defendant’s government contractor immunity arises under Boyle v. Unity
Technologies Corporation which extends immunity for federal contractors who comply within
the specifications of a federal contract. 487 U.S. 500 (1988). For a contractor to be immune
from liability under Boyle, the plaintiff must prove that the government approved the reasonably
precise specifications for construction of the vessels at issue, that the vessels met those
specifications, and that the contractor warned the government of any hazards presented by the
asbestos-containing material the government required that were known to the contactor but
unknown to the government. The Fifth Circuit and this Court have consistently held that Boyle
government contractor immunity is a colorable defense for purposes of removal analysis. The
Court finds no reason to differ in the present matter.
Here, the Defendants allege they were required to use asbestos in Federal Vessels built
under contracts executed between Avondale and the government.1 Those contracts established
mandatory terms, conditions, and specifications imposed upon the Defendants by the
government. The government contracts also required the Defendants to follow asbestos safety
1 Rec. Doc. 47-1. Exhibit A. Herfel Affidavit.
standards during construction of Federal Vessels.2 Among those were the Walsh Healey
standards and the Department of Labor Safety and Health Regulations for Shipbuilding and Ship
Repair, which advised that nearly all workers could be repeatedly exposed to asbestos without
any adverse effects.3
Secondly, the Defendants satisfy the second Boyle factor because they were following the
government’s design specifications to install asbestos—which is a colorable defense to this
lawsuit. The Defendants have provided the requisite evidence that Avondale complied with
specifications for how to use asbestos, including deposition testimony from federal inspectors
from the relevant time alleged in the lawsuit that showed the safety standards when using
asbestos.4
Finally, the Defendants satisfy the third Boyle factor that the government knew more
about the dangers of working with asbestos than the Defendants at the relevant time alleged in
this lawsuit—essentially that the government compelled the defendant. The Court finds that a
colorable defense exists insofar that Defendants did not omit warnings to the government about
the dangers of working with asbestos which the government did not know already. To support
this defense, the Defendants have submitted a number of statements from expert witnesses and
government officials showing the government’s knowledge of the dangers of working with
asbestos that pre-date the relevant time period for this lawsuit.5 The evidence presented to the
2 Id.
3 Rec. Doc. 47-12. Exhibit K. ACGIH TLVs. P. 2; see also, Rec. Doc. 47-13. Exhibit L, Department of Labor Safety &
Health Regulations (1960).
4 Rec. Doc. 18. Exhibit Q, Deposition of James Gooding.
5 Rec. Doc. 47-1. Exhbiti A. Herfel Affidavit; Rec. Doc. 47-3. Exhibit C. Joyce Affidavit; Rec. Doc. 47-22. Exhibit U.
Lemen Deposition.
Court shows that the Defendants did not have more information about the dangers of working
with asbestos than the government, therefore the third element of Boyle is satisfied.
In response to the Defendant’s pleaded government-contractor defense, the Plaintiffs
argue that Boyle does not support a defense under a failure to warn claim. To support this
argument, Plaintiffs cite to an Eastern District Court decision in Adams v. Eagle Inc., to which
Judge Morgan ruled in favor of summary judgment that no Boyle defense existed under a failure
to warn claim. No. CV 21-694, 2022 WL 4016749 (E.D. La. Sept. 2, 2022). However, The
Court finds that the facts of Adams are clearly distinguished from the case at bar. In Adams,
Judge Morgan was tasked with ruling on whether the facts presented by the parties survived
summary judgment. The question in the present motion is quite different and subject to a
considerably lower standard. Furthermore, the Court in Adams found that the defendant had a
viable Boyle defense for the non-failure to warn claims, the same type of additional claims that
are asserted in the case at bar. Still, the question presented on this motion is not whether the
defense would survive summary judgment when examining the available evidence, but rather is
the defense colorable for the case to remain in federal court with the appropriate subject matter
jurisdiction.
Conclusion
The Defendant has asserted a colorable defense that embraces a federal question under
section 1442 government contractor immunity. Furthermore, the Court need not discuss the
further defenses that the Defendant asserted. The Court does not speculate on what further
evidence may shed light on the merits of the defenses asserted on this motion, however for the
purposes of removal jurisdiction the Court can only conclude that the Defendant has reached its
burden as to government contractor immunity arising from Boyle. To that end, this Court has
proper subject matter jurisdiction and the Plaintiffs’ Motion to Remand is DENIED.
Accordingly;
IT IS ORDERED that the Motion to Remand (Rec. Doc. 26) is DENIED.
March 6, 2023
Judg . Zaine
is 3s 2 is 3g 2