Products Liability Law Reporter

A federal district court held that Huntington Ingalls Inc. (Avondale) had satisfied the elements of the federal officer removal statute, 28 U.S.C. §1442, in an asbestos exposure case.

Wilson Goffner Sr. allegedly was exposed to asbestos while working at the Avondale shipyard from approximately 1969 through the late 1970s. He developed lung cancer and later sued Huntington Ingalls Inc., asserting claims under Louisiana state tort law. The defendant removed the action to federal court, invoking federal jurisdiction. The defendant claimed that Avondale was at all material times acting under an officer of the United States as set forth in §1442(a). The trial court denied the plaintiff’s first motion to remand, reasoning that Avondale had acted under the direction of a federal officer and met its burden of raising a colorable federal officer defense. The plaintiff filed a second motion to remand on the basis that the defendant was not acting under a federal officer as defined by §1442(a)(1).

Denying the motion, the district court noted that under Fifth Circuit case law, to remove a case under the federal officer removal statute, a defendant must show that it is a person who acted pursuant to a federal officer’s directions, that the complained of conduct related to a federal directive, and that it has asserted a colorable federal defense. The court cited a Fifth Circuit opinion holding that Avondale satisfied one of the elements by demonstrating it had a federal contract with the government to repair Navy ships. Moreover, the court said that scores of Fifth Circuit cases have allowed Avondale to avail itself of §1442(a)(1) regarding asbestos exposure claims.

Consequently, the court affirmed the factual findings and legal conclusions below and held that Avondale had satisfied the elements of the federal officer removal statute.

Citation: Goffner v. Avondale Indus., Inc., 2024 WL 2844542 (E.D. La. June 5, 2024).