James Latiolais v. Eagle, Incorporated

Case: 18-30652 Document: 00515319928 Page: 1 Date Filed: 02/24/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 18-30652

FILED

February 24, 2020

Lyle W. Cayce

JAMES A. LATIOLAIS, Clerk

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

Appeal from the United States District Court

for the Eastern District of Louisiana

ON PETITION FOR REHEARING EN BANC

Before OWEN, Chief Judge, and JONES, SMITH, STEWART, DENNIS,

ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, WILLETT, HO,

DUNCAN, and OLDHAM, Circuit Judges. 1

EDITH H. JONES, Circuit Judge:

This appeal was reconsidered en banc because Fifth Circuit precedents

concerning the scope of the revised Federal Officer Removal Statute, 28 U.S.C.

§ 1442(a)(1), were extraordinarily confused. See Latiolais v. Huntington

Ingalls, Inc., 918 F.3d 406, 412–13 (5th Cir. 2019). Having reconsidered, we

1 Judges Dennis and Haynes concur in the judgment only. Judges Costa and

Engelhardt are recused.

Case: 18-30652 Document: 00515319928 Page: 2 Date Filed: 02/24/2020

No. 18-30652

strip away the confusion, align with sister circuits, and rely on the plain

language of the statute, as broadened in 2011. As a result, Avondale 2 was

entitled to remove this negligence case filed by a former Navy machinist

because of his exposure to asbestos while the Navy’s ship was being repaired

at the Avondale shipyard under a federal contract. We VACATE the contrary

district court judgment and REMAND for further proceedings in federal court.

BACKGROUND AND PROCEDURE

During the 1960s and 1970s, the United States Navy contracted with the

Defendant-Appellant, Avondale, to build and refurbish naval vessels. Most of

the contracts in the 1960s required asbestos for thermal insulation. According

to Avondale’s expert, a marine engineer and naval historian, the contracts

obliged Avondale “to comply with government plans and specifications, and the

federal government had the right to and did exercise supervision over the

process to ensure such compliance.”

The Plaintiff-Appellee, James Latiolais, then a machinist aboard the

USS Tappahannock, was exposed to asbestos while his ship underwent

refurbishing at Avondale for several months. In 2017, Latiolais was diagnosed

with mesothelioma. He died in October 2017. 3

Latiolais sued Avondale in Louisiana state court for causing him to

contract mesothelioma. He asserted, 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.

2The Defendant-Appellant has borne many names, including Huntington Ingalls,

Northrop Grumman Shipbuilding, and Avondale Industries. Because the parties refer to the

Defendant-Appellant as Avondale, the court does the same.

3Although Latiolais died shortly after filing his petition in Louisiana state court, no

party argues that his death affects any issue in this appeal.

2

Case: 18-30652 Document: 00515319928 Page: 3 Date Filed: 02/24/2020

No. 18-30652

Avondale removed the case to federal court under 28 U.S.C. § 1442(a)(1).

Latiolais sought remand, however, and the district court granted the motion.

Observing this court’s “causal nexus” requirement for federal officer removal,

the district court asked whether the United States or any of its officials

controlled Avondale’s safety practices. The court found no such control and

concluded that removal under § 1442(a)(1) was improper. Avondale timely

appealed.

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.” 28 U.S.C. § 1447(d). “We review the district court’s

remand order de novo, ‘without a thumb on the remand side of the scale.’”

Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 400 (5th Cir. 2018) (quoting

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

DISCUSSION

As amended in 2011 and still effective, the Federal Officer Removal

Statute states in pertinent part:

(a) A civil action or criminal prosecution that is commenced in a

State court and that is against or directed to any of the following

may be removed by them to the district court of the United

States . . . :

(1) The 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) (2018).

Some version of this statute has been in effect since 1815. Watson v.

Philip Morris Cos., 551 U.S. 142, 147–49, 127 S. Ct. 2301, 2305 (2007). At first,

Congress authorized only some federal officials sued in connection with their

3

Case: 18-30652 Document: 00515319928 Page: 4 Date Filed: 02/24/2020

No. 18-30652

official duties to seek a federal forum rather than face possibly prejudicial

resolution of disputes in state courts. Willingham v. Morgan, 395 U.S. 402,

405, 89 S. Ct. 1813, 1815 (1969). Over time, though, Congress has broadened

the removal statute repeatedly until it reached the coverage quoted above. See

Watson, 551 U.S. at 147–49, 127 S. Ct. at 2305; 28 U.S.C.A. § 1442 (West).

Federal officers may remove cases to federal court that ordinary federal

question removal would not reach. 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. As

the Supreme Court has explained, “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 Art. III purposes.” Mesa v. California,

489 U.S. 121, 136, 109 S. Ct. 959, 968 (1989). The Court has consistently urged

courts to avoid “a narrow, grudging interpretation of § 1442(a)(1).”

Willingham, 395 U.S. at 407, 89 S. Ct. at 1816; Arizona v. Manypenny,

451 U.S. 232, 242, 101 S. Ct. 1657, 1664 (1981); Jefferson County v. Acker,

527 U.S. 423, 431, 119 S. Ct. 2069, 2075 (1999).

Clearly, a defendant removing under section 1442(a)(1) must show (1) it

is a “person” within the meaning of the statute, (2) it acted “pursuant to a

federal officer’s directions,” and (3) it asserts a “colorable federal defense.”

Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 396–400 (5th Cir.

1998). This court’s cases have also required pleading (4) “a causal nexus”

between the defendant’s acts under color of federal office and the plaintiff’s

claims. E.g., id. at 398. Avondale’s status as a “person” and its federal contract

with the Navy for repairs to the Tappahannock satisfy the first and second

conditions. Whether any “causal nexus” was required is the focal point of

dispute, but the parties also debate the “colorable federal defense” criterion.

4

Case: 18-30652 Document: 00515319928 Page: 5 Date Filed: 02/24/2020

No. 18-30652

I. The Connection Prong

The parties first join issue over the status of the “causal nexus”

requirement. This requirement began as a restatement of part of the Supreme

Court’s test in Willingham, in which the Court interpreted “for any act under

color of such office,” 28 U.S.C. § 1442(a) (1948), to limit federal officer removal

to suits that “grow[] out of conduct under color of office.” 395 U.S. at 407,

89 S. Ct. at 1816. A civil suit “grows,” the Court held, if the defendant’s “acts

or [his] presence at the place in performance of [his] official duty constitute the

basis, though mistaken or false,” of the plaintiff’s action. Id. at 407, 409, 1816,

1817. To establish that much was to establish a “‘causal connection’ between

the charged conduct and asserted official authority.” Id. at 409, 1817 (quoting

Maryland v. Soper, 270 U.S. 9, 33, 46 S. Ct. 185, 190–91 (1926)).

Three decades later, in Winters, this court restated Willingham’s “under

color of office” or “causal connection” test as providing “that the defendants

acted pursuant to a federal officer’s directions and that a causal nexus exists

between the defendants’ actions under color of federal office and the plaintiff’s

claims.” 149 F.3d at 398. In Winters, the defendant’s formulation, packaging,

and delivery of Agent Orange took place under direct governmental

specification and supervision. Id. at 400. Consequently, the court determined

that “a direct causal nexus exists between the defendants’ actions taken under

color of federal office and Winters’s claims” for strict product liability and

failure to provide adequate warnings. Id. at 399–400 (emphasis added).

Notably, in applying Willingham’s color-of-office test, the Winters court

asserted only that a “direct causal nexus” existed, not that it was necessary.

In this court’s decisions following Winters, the “direct causal nexus” test

became a talisman even after Congress, in 2011, amended section 1442(a),

altering the requirement that a removable case be “for” any act under color of

federal office and permitting removability of a case “for or relating to” such

5

Case: 18-30652 Document: 00515319928 Page: 6 Date Filed: 02/24/2020

No. 18-30652

acts, 28 U.S.C. § 1442(a) (2012) (emphasis added). Thus, in Bartel v. Alcoa

Steamship Co., the court accurately quoted the amended statute, but did not

discuss the textual change and still applied a “direct causal nexus” test.

805 F.3d 169, 172–75 (5th Cir. 2015). Subsequent panels of this court relied

on Bartel and attempted to discern what kinds of plaintiffs’ claims articulated

causes of action sufficiently related to federal officers or directions to satisfy

the “direct causal nexus” test. See Savoie, 817 F.3d at 462–66; Zeringue v.

Crane Co., 846 F.3d 785, 793–94 (5th Cir. 2017); Legendre, 885 F.3d at 400–

403; see also IntegraNet Physician Res., Inc. v. Tex. Indep. Providers, L.L.C.,

945 F.3d 232, 240 4 (5th Cir. 2019); Schexnayder v. Huntington Ingalls, Inc.,

No. CV 19-11773, 2020 WL 114136, at *2 (E.D. La. Jan. 10, 2020). The original

Latiolais panel highlighted the tension between the amended statute and our

precedents. 918 F.3d at 408–10.

Unsurprisingly, Latiolais no longer relies on our case law alone and

takes the position that, even as amended, section 1442(a) requires a direct

causal nexus test. He contends that the added language applies to a narrow

class of civil proceedings, not including this suit against Avondale; that the

application of interpretive canons to the amended statute’s language

establishes the narrower interpretation; and that in any event the amendment

cannot have been meant to dispense with all functional limitations on removal.

Avondale asserts that the amendment broadened the availability of federal

officer removal. Our analysis therefore turns to statutory interpretation. We

conclude that Avondale has the better of the arguments.

4 But cf. 945 F.3d at 238 n. 18 (stating that the “causal nexus” test is “not outcome

determinative in this case”).

6

Case: 18-30652 Document: 00515319928 Page: 7 Date Filed: 02/24/2020

No. 18-30652

A.

The always primary, and here decisive, interpretive tool is the text itself.

The amending legislation, the Removal Clarification Act of 2011, states,

“Section 1442(a) of title 28, United States Code, is amended-- (1) in paragraph

(1)-- (A) by striking ‘capacity for’ and inserting ‘capacity, for or relating to’.”

Pub. L. No. 112-51, § 2(b)(1)(A), 125 Stat. 545. Following this amendment,

section 1442(a) 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.”

This change 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). Further, the Supreme Court has recognized, “[t]he 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.’” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383,

112 S. Ct. 2031, 2037 (1992). Congress added this “broad” term to “for,” the

preposition relied on in the Supreme Court’s discussion of the “causal

connection” test, Jefferson County, 527 U.S. at 431–32, 119 S. Ct. at 2075. By

the Removal Clarification Act, Congress broadened federal officer removal to

actions, not just causally connected, but alternatively connected or associated,

with acts under color of federal office.

Two other circuit courts have acknowledged the impact of the

amendment and formally adopted a “connection” test. See Sawyer v. Foster

Wheeler, L.L.C., 860 F.3d 249, 258 (4th Cir. 2017); In re Commonwealth’s Mot.

to Appoint Counsel Against or Directed to Defender Ass’n of Phila., 790 F.3d

457, 470–71 (3d Cir. 2015). The Eleventh Circuit, while persisting with the

“causal connection” test, has cited the amended “relating to” language and

7

Case: 18-30652 Document: 00515319928 Page: 8 Date Filed: 02/24/2020

No. 18-30652

essentially implemented a connection rationale for removal. Caver v. Cent.

Ala. Elec. Coop., 845 F.3d 1135, 1144 & n.8 (11th Cir. 2017).

B.

Against this perfectly natural interpretation, Latiolais sets a creative

alternative. He contends that “for” and “relating to” modify different “civil

action[s] or criminal prosecution[s].” To support this counterintuitive proposal,

Latiolais emphasizes a subsection title in the Removal Clarification Act. He

deploys the canon against surplusage. He insists that the plain-meaning

interpretation would be a radical, implicit change in law. And he deplores the

consequences for courts and plaintiffs if the amendment permits wholesale

removal of actions to the federal courts. We must address each of these

arguments. 5

Latiolais stresses a construction of the Removal Clarification Act, which

amended section 1442 in 2011. The provision inserting “or relating to” into

section 1442(a)(1) is part of a subsection entitled “Conforming Amendments.”

§ 2(b), 125 Stat. at 545. According to Latiolais, “relating to” must “conform” to

the Act’s immediately preceding subsection, which “clarifies” that standalone

subpoenas and other discovery matters are to be defined among the “civil

action[s] or criminal prosecution[s]” that may be removed. 6 Because the

insertion of “relating to” conforms to that “clarification,” the amended section

5 Latiolais also presents a mélange of legislative history for consideration, but such

history is to be avoided in statutory interpretation. Antonin Scalia & Bryan A. Garner,

Reading Law 31–33, 56–58, 369–90 (2012).

6 In the “Clarification,” Congress broadened the definition of removable proceedings

as follows: “As used in subsection (a), the terms ‘civil action’ and ‘criminal prosecution’

include any proceeding (whether or not ancillary to another proceeding) to the extent that in

such proceeding a judicial order, including a subpoena for testimony or documents, is sought

or issued. If removal is sought for a proceeding described in the previous sentence, and there

is no other basis for removal, only that proceeding may be removed to the district court.”

§ 2(a)(2), 125 Stat. at 545 (codified as amended at 28 U.S.C. § 1442(d)(1) (2018)).

8

Case: 18-30652 Document: 00515319928 Page: 9 Date Filed: 02/24/2020

No. 18-30652

1442(a) means that only “pre-suit discovery matters” “relating to” an act under

color of federal office are removable. Every other “civil action or criminal

prosecution” that is not a pre-suit discovery matter, however, is removable only

if it is “for” an act under color of federal office. The amendments, taken

together, effectuate broader removability for pre-suit discovery matters, while

the removal of liability suits or prosecutions remains in thrall to the direct

causal nexus test.

For several reasons, this alternative interpretation based on

“Conforming Amendments” is untenable. First, an act’s subsection title cannot

defeat the ordinary meaning of the statutory text it amends. Reading the

language inserted into section 1442(a) via the Conforming Amendments yields

that any “civil action or criminal prosecution [more broadly defined to include

pre-suit discovery matters]” that otherwise meets the statutory requirements

may be removed if it “relates to” an act under color of federal office. Any

subsection title with contrary meaning would be unavailing because, in a war

between text and title, text wins. Scalia & Garner, supra, at 222–23.

Moreover, the relevant title is not contrary to the statutory changes

communicated in the text. One “clarifying” subsection of the Removal

Clarification Act broadened the types of proceedings that are removable, no

longer limiting removal to liability suits or criminal prosecutions against

covered persons. § 2(a)(2), 125 Stat. at 545. The “conforming” subsection

broadened the universe of acts that enable federal officers to remove.

§ 2(b)(1)(A), 125 Stat. at 545. Establishing a broader class of removable acts

in section 2(b) conforms to establishing a broader class of removable

proceedings in section 2(a).

Ultimately, Latiolais’s exegesis of the Removal Clarification Act and

thus of section 1442(a) depends on the possibility of distinguishing pre-suit

discovery matters from other proceedings. The text does not justify this

9

Case: 18-30652 Document: 00515319928 Page: 10 Date Filed: 02/24/2020

No. 18-30652

distinction. Instead, the amendment simply broadens the scope of removable

proceedings. Had Congress sought to afford easier removability for pre-suit

discovery matters than lawsuits, it could easily have drafted an entirely new

provision in section 1442 to address the narrow category of state judicial orders

of the type currently contemplated in section 1442(d). Instead, within section

1442, Congress both broadened the definition of “civil action” to include such

orders and chose to add “relating to”—a term well known for its breadth. These

changes neither signal ambiguity nor artificially limit the plain meaning of the

provision. See Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652,

1659 (2017) (“When legislators did not adopt ‘obvious alternative’ language,

‘the natural implication is that they did not intend’ the alternative.” (quoting

Lozano v. Montoya Alvarez, 572 U.S. 1, 16, 134 S. Ct. 1224, 1235 (2014)).

Latiolais’s next thrust concerns the word “for,” which remains in section

1442(a)(1). According to Latiolais, if “relating to” modifies “[a] civil action or

criminal prosecution” without qualification, then “for” is superfluous, in

violation of the interpretive canon against surplusage, cf. Corley v. United

States, 556 U.S. 303, 314, 129 S. Ct. 1558, 1566 (2009) (“[O]ne of the most basic

interpretive canons [is] that ‘[a] statute should be construed so that effect is

given to all its provisions, so that no part will be inoperative or superfluous,

void or insignificant.’” (quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S. Ct.

2276, 2286 (2004)). Accordingly, “relating to” must apply only to a subclass of

“civil action or criminal prosecution.”

This reading is also unpersuasive. To start, the canon against

surplusage yields to context as it expresses courts’ “general ‘reluctan[ce] to

treat statutory terms as surplusage.’” Bd. of Trs. of Leland Stanford Junior

Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788, 131 S. Ct. 2188, 2196

(2011) (alteration in original) (emphasis added) (quoting Duncan v. Walker,

533 U.S. 167, 174, 121 S. Ct. 2120, 2125 (2001)). Congress may in fact use “a

10

Case: 18-30652 Document: 00515319928 Page: 11 Date Filed: 02/24/2020

No. 18-30652

perhaps regrettable but not uncommon sort of lawyerly iteration” in which

each word of a series means nearly the same thing. Freeman v. Quicken Loans,

Inc., 566 U.S. 624, 635, 132 S. Ct. 2034, 2043 (2012). If the meaning of a text

is discernibly redundant, courts should not invent new meaning to avoid

superfluity at all costs.

Anyway, such invention would be inappropriate in this case because “for”

is not redundant. Instead, by keeping “for,” Congress left no doubt that cases

previously removable under the Federal Officer Removal Statute remained

removable even as Congress broadened the universe of acts that could sustain

removability. Cf. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226, 128 S. Ct.

831, 840 (2008) (“The construction we adopt today does not render ‘any officer

of customs or excise’ superfluous; Congress may have simply intended to

remove any doubt that officers of customs or excise were included in ‘law

enforcement officer[s].’”). Lacking superfluity, section 1442(a)(1) leaves no

work for the canon against surplusage to do.

Latiolais advances another interpretive doctrine, asserting that, should

“or relating to” achieve broader removability of civil suits and criminal

prosecutions, it would “make radical—but entirely implicit—changes through

technical and conforming amendments,” which Congress does not do. Cyan,

Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018). In fact, the

revision of section 1442(a)(1) was neither radical nor implicit.

Permitting removal of all acts “relating to” an act under color of federal

office that meet the other requirements of removal did not radically change the

Federal Officer Removal Statute. Congress had consistently broadened the

statute before 2011. 7 See Watson, 551 U.S. at 147–49, 127 S. Ct. at 2305;

7 Indeed, after 2011, Congress continued to broaden section 1442 by amending

28 U.S.C. § 1442(c), National Defense Authorization Act for Fiscal Year 2013, Pub. L.

No. 112-239, § 1087, 126 Stat. 1632, 1970–71.

11

Case: 18-30652 Document: 00515319928 Page: 12 Date Filed: 02/24/2020

No. 18-30652

28 U.S.C.A. § 1442 (West). In Willingham and Acker, the Supreme Court had

read the amended statute to require only a minimal “causal connection.”

395 U.S. at 409, 89 S. Ct. at 1817; 527 U.S. at 432–33, 119 S. Ct. at 2075–76.

Given this series of events, moving from the causal connection test under “for”

to a connection test under “for or relating to” was not a radical change. 8

Nor was the change “entirely implicit.” The Cyan case is inapposite. In

Cyan, a defendant sought dismissal of a 1933 Securities Act class action from

state court, contending that a definition in a subpart of a statutory section

referenced by a newly added exception required removal. See 138 S. Ct. at

1068–70. The Supreme Court rejected the argument that the alleged change,

discernible only implicitly, had, for the first time, required removal of 1933 Act

claims. Id. at 1071–72. In this case, by contrast, Congress changed the

operative statutory text, inserting into a phrase identified as the source of the

causal connection test a term that is broad in ordinary and legal usage. If not

preached on the housetops, this explicit change was far from just whispered in

the ear.

Rather than Cyan, the better analogue to this case is Burgess v. United

States. In 1994, Congress used a “conforming amendment” to define “felony

drug offense” in the Controlled Substances Act (“CSA”). 553 U.S. 124, 134–35.

128 S. Ct. 1572, 1579 (2008). Burgess interpreted this conforming amendment

8 If any further confirmation of this point were necessary, it is available in various

decisions by circuit courts that still seek a causal connection between action and act. In part

because these courts interpret the “causal nexus” or “causal connection” requirement more

expansively—and more in line with Willingham, 395 U.S. at 409, 89 S. Ct. at 1817, and

Soper, 270 U.S. at 33, 46 S. Ct. at 190–91—than our court has done in recent cases, the

outcomes in these cases have not been affected by failure to give effect to the new “relating

to” language in section 1442(a). See Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir.

2018); Ruppel v. CBS Corp., 701 F.3d 1176, 1179, 1181 (7th Cir. 2012); Jacks v. Meridian

Res. Co., 701 F.3d 1224, 1230 & n. 3 (8th Cir. 2012); see also Bennett v. MIS Corp., 607 F.3d

1076, 1088 (6th Cir. 2010). Compare Cabalce v. Thomas E. Blanchard & Assocs., 797 F.3d

720, 727–30 (9th Cir. 2015), with Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San

Diego, 865 F.3d 1237, 1244–45 (9th Cir. 2017).

12

Case: 18-30652 Document: 00515319928 Page: 13 Date Filed: 02/24/2020

No. 18-30652

to have broadened the universe of acts that require a judge to impose a

sentence enhancement under the CSA. See id. at 129, 1577. The Court noted

that “Congress did not disavow any intent to make substantive changes;

rather, the amendments were ‘conforming’ because they harmonized

sentencing provisions in the CSA and the Controlled Substances Import and

Export Act.” Id. at 135, 1579. Likewise here, Congress did not disavow any

intent to make substantive changes, and its “conforming amendment”

harmonized the scope of removal-causing acts with the scope of removable

proceedings. Latiolais’s text-focused arguments fail.

Latiolais caps his argument with the policy-related complaints that a

plain reading of “relating to” enables removal of cases in a way that conflicts

with past case law and suffuses indeterminacy in place of “workable standards”

based on a “federal interest” in removal. Latiolais, however, articulates

nothing about how to expound such a “federal interest.” Moreover, if the causal

connection test had provided such “workable standards,” this court would have

had clearer decisions. Finally, the statute’s requirement that a removing party

assert a colorable federal defense remains a constitutional, viable, and

significant limitation on removability. See Mesa, 489 U.S. at 136–37,

109 S. Ct. at 968–69; see generally Anthony J. Bellia, Jr., The Origins of Article

III “Arising Under” Jurisdiction, 57 Duke L.J. 263 (2007).

C.

For all these reasons, Latiolais’s interpretation falls to the more natural

reading that Congress applied “relating to” to all “civil action[s] or criminal

prosecutions” without distinction. Subject to the other requirements of section

1442(a), any civil action that is connected or associated with an act under color

of federal office may be removed. Accordingly, we overrule Bartel and its

13

Case: 18-30652 Document: 00515319928 Page: 14 Date Filed: 02/24/2020

No. 18-30652

progeny 9 to the extent that those cases erroneously relied on a “causal nexus”

test after Congress amended section 1442(a) to add “relating to.” Henceforth,

to 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.

In addition, the pleadings here satisfy the “connection” condition of

removal. Latiolais alleges that Avondale failed to warn him of the dangers of

asbestos and failed to take measures to prevent exposure. This negligence is

connected with the installation of asbestos during the refurbishment of the

USS Tappahannock. Avondale performed the refurbishment and, allegedly,

the installation of asbestos pursuant to directions of the U.S. Navy. Thus, this

civil action relates to an act under color of federal office.

II. Colorable Federal Defense

The remaining issue of law is whether Avondale asserted a colorable

federal defense to Latiolais’s claim. See, e.g., Bell v. Thornburg, 743 F.3d 84,

89–91 (5th Cir. 2014). It was briefed, but not decided, in the district court, and

we may reach the issue as a matter of discretion. See Singleton v. Wulff,

428 U.S. 106, 121, 96 S. Ct. 2868, 2877 (1976); see also Pinney Dock & Transp.

Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988) (“[T]o the extent

the issue is presented with sufficient clarity and completeness and its

9 IntegraNet Physician Res., Inc. v. Tex. Indep. Providers, L.L.C., 945 F.3d 232 (5th

Cir. 2019); Legendre v. Huntington Ingalls, Inc., 885 F.3d 398

(5th Cir. 2018); Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017); Savoie v. Huntington

Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016).

14

Case: 18-30652 Document: 00515319928 Page: 15 Date Filed: 02/24/2020

No. 18-30652

resolution will materially advance the progress of this already protracted

litigation, we should address it.”).

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 (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 (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 (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.”). 10

In this case, Avondale asserts the federal defense outlined in Boyle v.

United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510 (1988). This defense

10 It may well be that courts, “in resolving a motion to remand, should first ask if the

defendant offers a colorable federal defense.” See Legendre, 885 F.3d at 405 (Higginbotham,

J., concurring). Still, in doing so, courts must avoid premature merits determination. See id.

Thus, even if a federal defense makes “sharp demands,” id., a court should not base removal

on whether the defendant actually meets those demands. Only a colorable assertion of the

federal defense is necessary.

15

Case: 18-30652 Document: 00515319928 Page: 16 Date Filed: 02/24/2020

No. 18-30652

extends to federal contractors an immunity enjoyed by the federal government

in the performance of discretionary actions. Zeringue, 846 F.3d at 790.11

Accordingly, federal contractors are not liable for design defects if “(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.” Boyle, 487 U.S. at 512, 108 S. Ct. at

2510 (quoted in Zeringue, 846 F.3d at 790). Furthermore, “the government

contractor defense does not necessarily apply only to claims labeled ‘design

defect.’” Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 801 (5th Cir. 1993).

Instead, “[w]hether it will apply to a particular claim depends only upon

whether Boyle’s three conditions are met with respect to the particular product

feature upon which the claim is based.” Id. at 801–02.

In this case, Avondale offered evidence that the three Boyle conditions

are met. First, Avondale submitted one affidavit and deposition testimony

alleging that the Navy required installation of asbestos on the Tappahannock,

as well as another affidavit alleging that the Navy generally required Avondale

to install asbestos and to comply with certain related safety practices. These

documents make colorable that the government approved reasonably precise

specifications about the installation of asbestos. Second, Latiolais does not

challenge that Avondale complied with those specifications, if they existed.

Indeed, Latiolais himself testified that Avondale used asbestos in refurbishing

the Tappahannock. Third, Avondale’s evidence tends to support that the

federal government knew more than Avondale knew about asbestos-related

11 As the Boyle Court explained, “[i]t makes little sense to insulate the Government

against financial liability for the judgment that a particular feature of military equipment is

necessary when the Government produces the equipment itself, but not when it contracts for

the production.” 487 U.S. at 512, 108 S. Ct. at 2510 (quoted in Zeringue, 846 F.3d at 790).

16

Case: 18-30652 Document: 00515319928 Page: 17 Date Filed: 02/24/2020

No. 18-30652

hazards and related safety measures. From such evidence, it is colorable that

Avondale did not omit warning the government about any dangers about which

the government did not know.

In light of the evidence submitted, Avondale’s assertion of a federal

defense is not wholly insubstantial and frivolous. We, of course, do not

speculate on what further evidence may come to light as the case proceeds and

conclude only that Avondale has a colorable federal defense.

CONCLUSION

As the foregoing discussion demonstrates, this action meets the

conditions for removal under section 1442(a). The district court’s remand order

is VACATED, and we REMAND for further proceedings in federal court.

17