Court: Eastern District of Louisiana
Plaintiffs Anthony Palermo and Gina Palermo Ventura moved to remand their asbestos case from the Eastern District of Louisiana to Orleans Parish state court. Defendant Huntington Ingalls Incorporated (Avondale) opposed.
On September 7, 2022, Brenda Palermo filed suit in the Civil District Court of Orleans Parish. She alleged she was exposed to asbestos throughout the 1960s and 1970s from the clothes and person of her family members, from which she developed mesothelioma. On August 2, 2023, she filed an amended operative complaint naming Avondale as a defendant, adding allegations she was exposed to asbestos from the clothes and person of her father and cousin while they worked for Avondale, a shipbuilder for the U.S. Navy.
Brenda Palermo died in March 2024, at which point her daughter and husband substituted as plaintiffs.
Avondale removed the suit to the Eastern District of Louisiana, under 28 U.S.C. § 1442(a), the federal officer removal statute. According to Avondale, during the relevant period, its workers constructed vessels under federal government contracts, most of which required asbestos.
Avondale asserted that it was therefore acting under an officer, or agency, of the United States within the meaning of § 1442(a)(1) when its employees built ships for the government using asbestos.
Plaintiffs then moved to remand the action back to state court. Citing the Eleventh Circuit decision State v. Meadows, 88 F.4th 1331, plaintiffs argued Avondale cannot remove under the plain text of the federal officer removal statute, because the removing party is permitted removal under Section 1442(a) only if it is currently acting under an officer of the United States, as opposed to only having formerly acted under a federal officer during past alleged wrongdoing.
Avondale argued contrarily, citing a long line of decisions, including from the Fifth Circuit, granting Avondale’s removal to federal court in asbestos cases under Section 1442(a) for past conduct under a federal officer.
Section 1442 permits a defendant to remove criminal or civil matters brought against any officer of the United States, or any person acting under that officer, relating to any act under color of such office. The Fifth Circuit listed four requirements for a defendant to establish federal jurisdiction under the federal officer removal statute. The 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.”
The parties agreed that Avondale satisfied the first three of the four required elements for removal. Plaintiffs’ only argument for remanding to state court contended that Section 1442(a) applies only to current federal officers, not former officers, and that Avondale, currently not acting under a federal officer, therefore cannot invoke Section 1442(a) to remove.
In State v. Meadows, 88 F.4th at 1338, the Eleventh Circuit held that former White House Chief of Staff Mark Meadows could not remove his criminal case from state court under Section 1442(a). The Meadows court reasoned that the plain language of Section 1442(a) gives eligibility only to current federal officers, and not former officers, to remove a case to federal court.
Plaintiffs in the instant action urged the district court to extend the Meadows reasoning further, i.e., to hold that Section 1442(a)(1) only permits removal by persons currently acting under federal officers.
The district court declined this invitation on several grounds and emphasized that the Meadows case involved a criminal prosecution, not a civil suit.
A copy of the decision can be found here.
