• Fifth Circuit Affirms Remand, but Leaves Door Open for Removal of Jones Act Cases When Plaintiffs Worked on U.S. Ships
  • November 18, 2015
  • Law Firm: Jones Walker LLP - New Orleans Office
  • On October 19, 2015, in Bartel v. Alcoa Steamship Co., No. 15-30004 (5th Cir. Oct. 19, 2015), the United States Court of Appeals for the Fifth Circuit affirmed the United States District Court for the Middle District of Louisiana’s remand of a case involving asbestos exposure on United States naval ships. In Bartel, which was originally filed in state court, the plaintiffs alleged claims under the Jones Act and general maritime law unseaworthiness for damages related to their alleged injuries and deaths caused by asbestos exposure while working for the defendants. The plaintiffs alleged that the defendant-employers failed to warn them of the dangers of asbestos, failed to train them in using asbestos products, and failed to adopt procedures for safe installation and removal of asbestos products. All of the plaintiffs alleged exposure to asbestos on at least one United States naval ship. The naval ships were owned by the United States Navy but were operated by civilian corporate contractors.

    The defendants removed the case to the Middle District of Louisiana under the Federal Officer Removal Statute, 28 U.S.C. § 1442(a)(1). The statute authorizes the removal of cases against "[t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity for or relating to any act under color of such office." To qualify for removal under the Federal Officer Removal Statute, the defendants bear the burden of proving (1) that they are "persons" within the meaning of the statute; (2) that the defendant acted pursuant to a federal officer's directions and that a causal nexus exists between the defendant's actions under color of federal office and the plaintiff's claims; and (3) that the defendant has asserted a colorable federal defense.

    The Fifth Circuit held that the defendants-all corporate entities-qualified as "persons" under the statute, but held that they failed to meet their burden of establishing a causal nexus between their actions of contracting with the Navy and plaintiffs' claims for injuries and death caused by asbestos exposure. The Fifth Circuit held that unlike the case on which defendants relied, Lalonde v. Delta Field Erection, No. 96-3244, 1998 WL 34301466, at *1 (M.D. La. Aug. 6, 1998), in which removal was permitted when the federal government exercised direct control and oversight of the subject facility's operations and safety procedures, the civilian operators in this case fully controlled the operations and safety procedures aboard the naval ships without any continuing oversight from the Navy. After holding that the defendants failed to meet their burden of proving a requisite nexus existed, the Fifth Circuit did not reach the question of whether the defendants asserted a colorable federal defense.

    Interestingly, however, the Fifth Circuit left the door open for future removal of similar cases. The court noted that at oral argument, the defendants introduced a new theory for removal under the Federal Officer Removal Statute. At oral argument, the defendants argued that solely by operating the naval ships, the requisite nexus existed between defendants' actions under color of federal officer and the plaintiffs' allegations of unseaworthiness (i.e., that the vessels were inherently unsafe). The Fifth Circuit held that the new argument was waived because it was not raised until oral argument, but the court's inclusion of the argument in its opinion implies an open mindedness of the court to hear a more developed version of the argument in the future. If successful, this argument may open the door to removal of Jones Act claims asserted in conjunction with unseaworthiness claims involving vessels owned by the federal government.