Government Contracts Appellate Panel: “Out of Step” Precedent Required Remand
Monday, April 1, 2019

Appellate Panel: “Out of Step” Precedent Required Remand

By Government Contracts Editorial Staff

A panel of the Court of Appeals for the Fifth Circuit affirmed a district court’s order remanding a personal injury claim to state court because the plaintiff’s failure-to-warn claim implicated no federal interests and the case did not meet the causal nexus requirement. The plaintiff alleged he contracted mesothelioma from exposure to asbestos while working aboard a Navy vessel as a machinist when the contractor refurbished the vessel. The contractor removed the plaintiff’s state action to federal district court under the federal officer removal statute (28 USC 1442(a)(1)), but the court granted the plaintiff’s motion to remand, finding there was no causal nexus between the contractor’s actions under color of federal office and the plaintiff’s claims (62 CCF ¶81,384). On appeal, the contractor argued that, as amended in 2011, §1442 requires only that a federal directive “relate to” the plaintiff’s injuries.

Causal Nexus Required. However, the Fifth Circuit’s precedent applied the same causal nexus test to the amended statute (Bartel v. Alcoa Steamship, 805 F3d 169), while drawing a distinction between negligence and strict liability claims. Thus, strict liability claims are removable (Zeringue v. Crane Co., 61 CCF ¶81,218), but negligent failure-to-warn claims are not (Legendre, et al. v. Huntington Ingalls, Inc., 62 CCF ¶81,348). Here, as in Legendre, although the government contractually required the contractor to use asbestos in refurbishing Navy vessels, the contractor did not show a causal nexus, because it did not demonstrate “it was not free to adopt the safety measures the plaintiffs … allege would have prevented their injuries.” Navy vessel inspectors “neither monitored nor enforced safety regulations,” and “on the job safety during the construction … was the responsibility of [the contractor’s] safety department.”

Different Outcome. The panel recognized that Bartel’s causal nexus standard “simply does not give effect to the words ‘relating to,’” and applying the post-2011 statutory language would change the outcome of the appeal. The contractor’s failure to warn about asbestos certainly “relate[d] to its federal act of building the ships.” The panel also noted the Fifth Circuit was “out of step” with the Third and Fourth Circuits, which had shifted away from the causal nexus test and required only a “connection” or “association.” Nevertheless, the rule of orderliness required an en banc decision to overturn the panel’s decision in Bartel.

Dissent. Circuit Judge Haynes dissented, finding Bartel was distinguishable. Here, the plaintiff was a member of the Navy, and the Fifth Circuit had not addressed a situation where only the Navy, not the contractor, could control the plaintiff’s actions. Applying Willingham v. Morgan (395 US 402), the dissent concluded the causal nexus test was satisfied because the contractor’s relationship to the plaintiff was “derived solely” from the contractor’s official duties to refurbish the vessel. (Latiolais v. Huntington Ingalls Inc., CA-5, 63 CCF ¶81,610).

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