Melancon v. Lamorak Insurance Company (5th Cir., July 26, 2018)

Our plain-English summary of Melancon v. Lamorak Insurance Company (U.S. Court of Appeals, Fifth Circuit, July 26, 2018).

Sandra Melancon and Lynn Melancon, the widow and daughter of Tyrone Melancon, sued in Louisiana state court. They alleged he was exposed to asbestos daily from 1965 to 1979 while working at the Huntington Ingalls shipyard, and that this contributed to his mesothelioma and death. They named Huntington Ingalls, two of its executives and an insurer, claiming negligent failure to warn him and failure to implement safety procedures. The defendants removed the case to federal court under the federal officer removal statute, saying the company installed asbestos-containing materials on Navy and Coast Guard ships as the government required. The district court sent the case back to state court. The Fifth Circuit reviewed that decision and affirmed. It held that the defendants had not shown a causal connection between the government's directions and the conduct the Melancons challenged, which was failure to warn and to adopt safety procedures. Earlier Fifth Circuit decisions had treated that conduct as private and as implicating no federal interest. The court said it was bound by those decisions.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: U.S. Court of Appeals, Fifth Circuit
• Decided: July 26, 2018
• Docket: No. 18-30113. Summary Calendar
• Stage: Appeal from jurisdiction, venue or removal
• Unpublished opinion. Many courts limit citing unpublished opinions as precedent.
• State: Louisiana

Outcome. The Fifth Circuit affirmed the district court's order remanding the case to Louisiana state court, ruling against Huntington Ingalls and the other defendants and for the Melancons.

What the court held. To remove under the federal officer removal statute, a defendant must show a causal nexus between the government's direction and the charged conduct. Negligent failure to warn, train and adopt safety procedures about asbestos is private conduct that implicates no federal interest, so it does not meet that requirement.

Issues decided: Failure to Warn, Government Contractor Defense and Removal, Venue, Removal and Transfer.

The people and their exposure

• Tyrone Melancon: mesothelioma; died

Who	Work	Where	When	Products
Tyrone Melancon	employee of Huntington Ingalls (shipyards and maritime work)	Huntington Ingalls shipyard	1965-1979

The defendants

• Huntington Ingalls, Incorporated (employer)
• Albert Bossier, Jr.
• J. Melton Garrett
• Lamorak Insurance Company (insurer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Legendre v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2018). The Fifth Circuit affirmed the district court's order remanding the case to Louisiana state court, ruling that Huntington Ingalls (Avondale) failed to show the causal nexus needed for federal officer removal, so the Legendre brothers prevailed.
• Templet v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2018). The Fifth Circuit affirmed the district court's order remanding Templet's asbestos suit to Louisiana state court, rejecting removal by Huntington Ingalls, Albert Bossier Jr. and Lamorak Insurance.
• Savoie v. Huntington Ingalls, Incorporated (U.S. Court of Appeals, Fifth Circuit, 2016). The Fifth Circuit vacated the district court's order remanding the case to state court, holding the shipyard showed a causal nexus for the survival strict liability claims, and remanded for the district court to decide whether the shipyard has a colorable federal defense; the Savoie family lost on the remand ruling.

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

SANDRA VICKNAIR MELANCON; LYNN M. MELANCON, Plaintiffs-Appellees,

v.

LAMORAK INSURANCE COMPANY, as successor in interest to the liability for policies of

insurance Commercial Union Insurance Company, Employers Commercial Union Insurance

Company, and American Employers Insurance Company issued by; HUNTINGTON INGALLS,

INCORPORATED, formerly known as Northrop Grumman Shipbuilding, Incorporated, formerly

known as Northrop Grumman Ship Systems, Incorporated, formerly known as Avondale

Industries, Incorporated, formerly known as Avondale Shipyards, Incorporated, formerly known as

Avondale Marine Ways, Incorporated; ALBERT BOSSIER, JR.; J. MELTON GARRETT, Defendants-

Appellants.

No. 18-30113. Summary Calendar.

Filed: July 26, 2018.

United States Court of Appeals, Fifth Circuit.

Brian Carl Bossier, for Defendant-Appellant.

Edwin A. Ellinghausen, III, for Defendant-Appellant.

John Maurice Futrell, for Defendant-Appellant.

Gary Allen Lee, for Defendant-Appellant.

Samuel M. Rosamond, III, for Defendant-Appellant.

Gerolyn Petit Roussel, for Plaintiff-Appellee.

Jonathan Brett Clement, for Plaintiff-Appellee.

Appeals from the United States District Court for the Eastern District of Louisiana, USDC No. 2:17-CV-12367. Before: JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM.[*]

This case is the latest in an ever-increasing line of cases brought by former Huntington Ingalls employees or their family members in state court alleging asbestos exposure.[1] Tyrone Melancon's widow Sandra Melancon and his daughter Lynn Melancon filed suit in Louisiana state court alleging that their husband and father was exposed to asbestos while working for Huntington Ingalls. They allege that Tyrone Melancon's exposure to asbestos and asbestos-containing products occurred on a daily basis from 1965 to 1979 while he was employed at the Huntington Ingalls shipyard and that this exposure contributed to his development of mesothelioma and eventual death. The Melancons sued Huntington Ingalls, Huntington Ingalls executives Albert Bossier, Jr. and J. Melton Garrett, and Lamorak Insurance Company (collectively, Huntington Ingalls) for negligent failure to warn Tyrone Melancon of the dangers of asbestos and failure to implement safety procedures for handling asbestos.

Huntington Ingalls removed the case to the United States District Court for the Eastern District of Louisiana under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), alleging that removal was permissible because the company used and installed asbestos-containing materials during the construction of Navy and Coast Guard ships. The government had contractually mandated the use of asbestos-containing materials in the construction of these ships and government officials frequently inspected the ships to ensure compliance with these specifications. The Melancons moved to remand to state court, and the district court granted the motion to remand. The district court held that Huntington Ingalls did not satisfy the causal nexus requirement necessary for federal officer removal because the government officials had no control over the warnings provided by Huntington Ingalls or the safety procedures implemented. Huntington Ingalls appeals.

We review a district court's decision on a motion to remand de novo.[2] While this court "ordinarily. . . resolve[s] any doubts about removal in favor of remand," we review a federal officer removal decision "without a thumb on the remand side of the scale."[3] Under 28 U.S.C. § 1442, a suit filed in state court may be removed to the federal district court for an action against any officer or agent of the United States "for or relating to any act under color of such office."[4] The "or relating to" language was added to the statute in 2011.[5] As this court recently confirmed in Zeringue v. Crane Company, to remove under § 1442, a defendant must show: "(1) that it is a person within the meaning of the statute, (2) that it has `a colorable federal defense,' (3) that it `acted pursuant to a federal officer's directions,' and (4) `that a causal nexus exists between [its] actions under color of federal office and the plaintiff's claims.'"[6]

To establish a causal nexus, "both before and after the 2011 amendment," the removing party must establish "a nexus, a `causal connection' between the charged conduct and asserted official authority."[7] For strict liability claims that "rest on the mere use of asbestos," a causal nexus is established because "the government obligates the defendant to use the allegedly defective product that causes the plaintiff's harm."[8] However, this court recently confirmed in Legendre v. Huntington Ingalls, Inc. that when the "`charged conduct'" is negligent failure "to warn, train, and adopt safety procedures regarding asbestos," removal would be inappropriate because the nexus requirement is not met.[9] While the 2011 amendment to § 1442 unquestionably broadened the scope of the statute and "shifted the causal nexus calculus,"[10] this court has declined to extend § 1442 to "private conduct that implicate[s] no federal interest," as this would "stretch[] the causal nexus requirement to the point of irrelevance."[11]

Here, as in Legendre and Templet v. Huntington Ingalls, Inc., the Melancons allege negligence pertaining to the failure to "warn, train, and adopt safety procedures." This court has held that such "private conduct. . . implicate[s] no federal interest."[12] As in Legendre, "nothing. . . suggests that [Huntington Ingalls] was not `free to adopt the safety measures the plaintiffs now allege would have prevented their injuries.'"[13] There is no evidence that Huntington Ingalls could not have adopted the warnings or safety procedures proposed by the Melancons. Under our current precedent, the district court properly held that Huntington Ingalls failed to show a "causal nexus" between the government's actions and the charged conduct as required under 28 U.S.C. § 1442.

The causal nexus test derives from the pre-2011 statutory language.[14] Huntington Ingalls seeks a revised approach that eliminates the causal requirement from the nexus test following the 2011 amendment. Yet this court has already altered this test to incorporate the new "relating to" language. This court has acknowledged that "[t]he 2011 amendment expanded the breadth of acts sufficient to establish a causal nexus even further," but the court explained that the "causal nexus inquiry `must. . . be tailored to fit the facts of each case.'"[15] A showing "of precise federal direction" is not required, and the "plain import of the phrase `relating to' is that some attenuation is permissible," but the court "cannot attenuate the causal nexus requirement `to the point of irrelevance.'"[16] We are bound by our precedent. The district court's order remanding this case to state court is AFFIRMED.

[*] Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

[1] See e.g., Legendre v. Huntington Ingalls, Inc., 885 F.3d 398 (5th Cir. 2018); Savoie v. Huntington Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016); Templet v. Huntington Ingalls, Inc., 720 F. App'x 726 (5th Cir. 2018) (per curiam) (unpublished). [2] Savoie, 817 F.3d at 462.

[3] Id.

[4] 28 U.S.C. § 1442(a).

[5] Legendre, 885 F.3d at 400 (citing Zeringue v. Crane Co., 846 F.3d 785, 793 (5th Cir. 2017)).

[6] 846 F.3d at 789 (quoting Bartel v. Alcoa S.S. Co., 805 F.3d 169, 172 (5th Cir. 2015)).

[7] Id. at 793 (quoting Jefferson Cty. v. Acker, 527 U.S. 423, 431 (1999)).

[8] Savoie, 817 F.3d at 465-66.

[9] 885 F.3d at 402 (quoting Zeringue, 846 F.3d at 794).

[10] Id. at 401.

[11] Id. at 402 (quoting Zeringue, 846 F.3d at 794).

[12] Id.; Templet v. Huntington Ingalls, Inc., 720 F. App'x 726, 727 (5th Cir. 2018) (per curiam) (unpublished) [13] 885 F.3d at 402-03 (quoting Bartel v. Alcoa S.S. Co., 805 F.3d 169, 174 (5th Cir. 2015)).

[14] Id. at 403.

[15] Zeringue, 846 F.3d at 793 (quoting Willingham v. Morgan, 395 U.S. 402, 408 (1969)).

[16] Id. at 794 (quoting Wilde v. Huntington Ingalls, Inc., 616 F. App'x 710, 713 (5th Cir. 2015)).

Sources

• The opinion on Google Scholar
• Louisiana asbestos laws
• Louisiana asbestos exposure sites