Government Contracts Fifth Circuit Revises Causal Nexus Standard for Removal
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Monday, March 30, 2020

Fifth Circuit Revises Causal Nexus Standard for Removal

By Government Contracts Editorial Staff

In an en banc opinion, the Court of Appeals for the Fifth Circuit vacated and remanded a district court’s remand order because the contractor satisfied the requirements for removal under the federal officer removal statute, as amended in 2011. Before his death, the plaintiff filed suit against the contractor in state court, alleging he contracted mesothelioma from asbestos exposure while working aboard a Navy vessel as a machinist when the contractor refurbished the vessel. He alleged the contractor negligently failed to warn about asbestos hazards and provide adequate safety equipment. After the contractor removed the action to federal district court under 28 USC 1442(a)(1), 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).

Out-of-Step Precedent. The Fifth Circuit panel applied the court’s precedent and concluded the contractor did not satisfy the causal nexus text, because it failed to show it was not free to adopt the safety measures the plaintiff alleged would have prevented his injuries (63 CCF ¶81,610). However, the panel recognized this causal nexus standard was “out of step” with other circuits and did not give effect to a 2011 amendment of §1442, which allows removal of cases “for or relating to any act under color of [federal] office.”

Plain Language. In reconsidering the panel’s decision, the en banc court “strip[ped] away the confusion” regarding the scope of the revised statute and “rel[ied] on the [statute’s] plain language” to hold that a removing party need only show that “the charged conduct is connected or associated with an act pursuant to a federal officer’s directions.” Here, the plaintiff’s action related to an act under color of federal office because the contractor’s alleged negligence was connected with the installation of asbestos during the vessel’s refurbishment. Further, the contractor asserted the elements of a colorable federal defense, outlined in Boyle v. United Technologies Corp. (SCt, 34 CCF ¶75,489), by offering evidence the government approved reasonably precise specifications for installing asbestos, the contractor complied with the specifications and warned the government about dangers that were unknown to the government. (Latiolais v. Huntington Ingalls, Inc., CA-5, 64 CCF ¶81,863)

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