On February 24, 2020, in Latiolais v. Huntington Ingalls, Inc., the Fifth Circuit joined the Third, Fourth, and Eleventh Circuits in applying the plain language of the revised Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). In doing so, it permitted a government contractor defendant to remove an asbestos-related lawsuit against it to federal court.

James Latiolais worked as a machinist aboard the USS Tappahannock and alleged he was exposed to asbestos while the ship underwent refurbishing at government contractor Avondale Industries in the 1960s. Government contracts at the time called for the use of asbestos for thermal insulation. Mr. Latiolais developed mesothelioma and soon thereafter sued Avondale in state court for negligently failing to warn him of the hazards of asbestos. Mr. Latiolais subsequently passed away in October 2017.

After the suit was filed, Avondale removed the case to federal court under 28 U.S.C. § 1442(a)(1). The trial court initially remanded the case to state court because the federal government did not control Avondale’s safety practices and therefore did not directly cause Mr. Latiolais’s mesothelioma. Avondale appealed to the Fifth Circuit, which reviewed the case en banc to clarify the law.

In 2011, Congress revised the Federal Officer Removal Statute to make removal 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 the color of such office.” 28 U.S.C. § 1442(a)(1) (emphasis added). The Fifth Circuit joined with the Third, Fourth, and Eleventh Circuits in reading the phrase “relating to” as a broad one to include actions that were not just causally connected, but those that were merely associated with acts under the color of federal office.

Therefore, to remove a case in the Fifth Circuit under § 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.”

As a government contractor, Avondale had a colorable federal defense under Boyle v. United Technologies Corp., 487 U.S. 500 (1988). Boyle exempts federal contractors from design or other 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 known to the supplier but not to the United States.”

Avondale alleged that the Navy required installation of asbestos on the Tappahannock and required it to comply with certain safety practices, and Avondale followed those requirements. Avondale also alleged that the Navy knew more than Avondale knew about asbestos-related hazards. Therefore, it was “colorable that Avondale did not omit warning the government about any dangers about which the government did not know.” Finally, Avondale’s use of asbestos on these Navy ships and its failure to warn anyone about those hazards was conduct associated with Avondale’s performance of the contract. On this basis, the Court determined that it had subject matter jurisdiction over the case.

This latest development from the Fifth Circuit should remind government contractors that they may use the “government contractor” defense for acts that are not just not strictly caused by, but also merely associated with their actions pursuant to a government contract.

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