Granting rehearing, en banc, the U.S. Fifth Circuit Court of Appeals holds that Avondale was entitled to remove a 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, based on the Federal Officer Removal Statute, as revised and broadened in 2011.

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.  “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 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….”

 

Latiolais v. Huntington Ingalls, No.18-30652, 2020 WL 878930 (5th Cir. Feb. 24, 2020) (en banc).