Howard Zeringue v. Allis-Chalmers Corporation , 846 F.3d 785 ( 2017 )

Case: 16-30058 Document: 00513844013 Page: 1 Date Filed: 01/20/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-30058 FILED
January 20, 2017
Lyle W. Cayce
HOWARD ZERINGUE, Clerk
Plaintiff–Appellee,
v.
CRANE COMPANY,
Defendant–Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before CLEMENT, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Howard Zeringue sued Crane Co. (Crane) and twenty other defendants
in state court, asserting strict liability, negligence, and failure to warn claims
to recover for injuries allegedly caused by asbestos exposure. Crane removed
the case to federal court pursuant to the federal-officer removal statute. After
the district court remanded the case to state court, Crane appealed. We
reverse and remand.
I
Zeringue asserts that he was first exposed to asbestos in 1952 while
deployed with the United States Navy, in which he served in various capacities
as an active duty sailor aboard three Navy vessels until 1956. He alleges that
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he was then exposed to asbestos at two other jobs, including one in which he
sold insurance in Avondale Shipyard near ships that contained asbestos, but
he does not provide the time period during which this exposure allegedly
occurred. At no point does Zeringue specify which defendants allegedly
exposed Zeringue during which jobs nor which specific objects contained
asbestos at these various jobsites. Instead, Zeringue maintains that “[a]t all
times relevant” thirteen of the twenty-one defendants, including Crane,
“designed, evaluated, manufactured, packaged, furnished, stored, handled,
transported, installed, distributed, sold and/or supplied asbestos-containing
products to Plaintiff’s jobsites where he was exposed.”
Crane removed the case to the Eastern District of Louisiana pursuant to
the federal-officer removal statute, 28 U.S.C. § 1442(a)(1). Crane’s
involvement in this litigation stems from contracts it obtained to manufacture
and provide parts, predominately valves, for the Navy. In its removal petition,
Crane asserted that “any product that [Zeringue] alleges Crane Co.
manufactured for or supplied to the Navy (and any product literature, labeling,
or warnings that accompanied that product) would be subject to Navy
specifications and requirements” and that, accordingly, “[f]ederal officers
exercised their discretion regarding whether (1) asbestos was used in the
product, and (2) whether a warning would accompany the product.” To bolster
this claim, Crane provided affidavits and sample military specifications.
Crane maintains that this evidence establishes that all products provided to
the Navy required compliance with Navy specifications, some of which
required asbestos use, and could not be installed on Navy ships unless the
Navy Machinery Inspectors first determined that the products did in fact
comply with the detailed specifications.
Zeringue moved to remand the case to state court. The district court
determined that although Crane had “allege[d] all of the elements
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for . . . federal officer removal” and had provided evidence that permitted a
“plausibl[e] assum[ption] that any equipment that Crane built for the Navy
was indeed subject to detailed specifications,” Crane had not established that
the “government exercised its discretion, with respect to the specific design and
warning problems that are implicated by Zeringue’s claims.” Based on this
deficiency, the district court granted Zeringue’s motion. Crane appealed.
II
We review a district court’s decision on a motion to remand de novo. 1 We
have recently observed with regard to 28 U.S.C. § 1442 that “[a]lthough the
principle of limited federal court jurisdiction ordinarily compels us to resolve
any doubts about removal in favor of remand, . . . courts have not applied that
tiebreaker when it comes to the federal officer removal statute in light of its
broad reach.” 2
Section 1442 permits, in pertinent part, “any person acting under [an
officer] of the United States or of any agency thereof” 3 to remove a state suit to
federal court if any of the plaintiff’s claims 4 are “for or relating to any act under
color of such office.” 5 We have interpreted this part of the statute to require a
defendant to 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
1 Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016).
2 Id. (citing Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007); Acuna v. Brown &
Root Inc., 200 F.3d 335, 339 (5th Cir. 2000)).
3 28 U.S.C. § 1442(a)(1).
4 Savoie, 817 F.3d at 463 (“[R]emoval of the entire case is appropriate so long as a
single claim satisfies the federal officer removal statute.”).
5 § 1442(a)(1).
6 Bartel v. Alcoa S.S. Co., 805 F.3d 169, 172 (5th Cir. 2015) (internal quotation marks
omitted) (quoting Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-400 (5th Cir.
1998)).
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A
Although Crane is a corporation, “the Supreme Court has long
recognized that the removal statute also applies to private persons and
corporate entities ‘who lawfully assist the federal officer in the performance of
his official duty.’” 7 Crane is a “person” for purposes of § 1442.
B
Section 1442 “is a pure jurisdictional statute” in which “the raising of a
federal question in the officer’s removal petition . . . constitutes the federal law
under which the action against the federal officer arises for [Article] III
purposes.” 8 It permits a federal defense, which is generally statutorily
impotent to establish subject matter jurisdiction, 9 to serve as the federal
question that endues the court with jurisdiction. 10 As with a federal claim that
creates federal question jurisdiction, 11 a federal defense fulfilling this same
function does not need to be “clearly sustainable,” as § 1442 does not require a
federal official, or a person acting under an official, to “win his case before he
can have it removed,” but rather the defense needs only to be “colorable.” 12
Although neither we nor the Supreme Court has defined “colorable” in the
context of § 1442, the Supreme Court has clarified that a non-colorable federal
claim, for the purposes of federal question jurisdiction, is a claim that is
“‘immaterial and made solely for the purpose of obtaining jurisdiction’ or is
7 Savoie, 817 F.3d at 461 (quoting Watson, 551 U.S. at 151).
8 Mesa v. California, 489 U.S. 121, 136 (1989).
9 See New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 328-29 (5th Cir.
2008).
Mesa, 489 U.S. at 129, 136-37.
10
Arbaugh v. Y & H Corp., 546 U.S. 500, 513 n.10 (2006).
11
12 Jefferson Cty. v. Acker, 527 U.S. 423, 431, 432 (1999) (internal quotation marks
omitted) (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)).
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‘wholly insubstantial and frivolous.’” 13 Because § 1442 allows the assertion of
a colorable federal defense to serve the function typically reserved for the
assertion of a colorable federal claim, it follows that a non-colorable federal
defense is a defense that is immaterial and made solely for the purpose of
obtaining jurisdiction or that is wholly insubstantial and frivolous.
Crane asserts government-contractor immunity, originally articulated
in Boyle v. United Technologies Corp., 14 as its federal defense. This defense is
an extension of the immunity afforded to the federal government for the
performance of discretionary actions pursuant to 28 U.S.C. § 2680(a). 15 The
logic is that because a contractor will pass any added costs from litigation risk
exposure to the government, “[i]t makes little sense to insulate the
Government against financial liability for the judgment that a particular
feature of military equipment is necessary when the Government produces the
equipment itself, but not when it contracts for the production.” 16 Accordingly,
government contractors are also immune from suit for design defects if “(1) the
United States approved reasonably precise specifications; (2) the equipment
conformed to those specifications; and (3) the supplier warned the United
States about the dangers in the use of the equipment that were known to the
supplier but not to the United States.” 17
The first two conditions ensure that the government exercised its
discretion, as required by the statutory source from which government-
13 Arbaugh, 546 U.S. at 513 n.10 (quoting Bell v. Hood, 327 U.S. 678, 682-83 (1946));
see also Colorado v. Symes, 286 U.S. 510, 519 (1932) (holding that federal-officer removal
requires that a claim be “not without foundation and . . . made in good faith”).
14 487 U.S. 500 (1988).
15 28 U.S.C. § 2680(a) (providing the government with immunity against “[a]ny
claim . . . based upon the exercise or performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal agency or an employee of the
Government, whether or not the discretion involved be abused”).
16 Boyle, 487 U.S. at 512.
17 Id.
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contractor immunity derives, by considering “the design feature in question,” 18
which the government can do by “evaluat[ing] th[at] design feature.” 19 The
government contractor can then prove that it conformed to the government
specifications by showing “[a]cceptance and use of an item following its
production.” 20
The gravamen of Crane’s claim of government-contractor immunity is
that “any product that [Zeringue] alleges Crane Co. manufactured for or
supplied to the Navy (and any product literature, labeling, or warnings that
accompanied that product) would be subject to Navy specifications and
requirements,” with which Crane would have complied. To support this claim,
Crane supplied sample military specifications and three affidavits. These
documents establish that Crane’s claim to government-contractor immunity is
colorable.
Two of Crane’s provided military specifications, one from 1938 and one
from 1978, required asbestos in the packing used in certain valves. Crane also
provided a military specification from 1966 that required asbestos use for pipe
covering, insulation, and millboard. Although Zeringue correctly recognizes
that these specifications do not cover the specific period during which he served
upon Navy vessels, he admitted in his briefing before the district court that “it
is a bit of a stretch to even conclude that Crane Co.’s affiants” (and, logically,
Crane itself) “have personal knowledge of the products and warnings at issue
in this case, as allegations regarding specific products simply were not made
18 Id.
19 Kerstetter v. Pac. Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000).
20 Miller v. Diamond Shamrock Co., 275 F.3d 414, 420 (5th Cir. 2001); see also
Kerstetter, 210 F.3d at 435-36 (“Extensive government involvement in the design, review,
development and testing of a product, as well as extensive acceptance and use of the product
following production, is evidence that the product line generally conformed with the
government-approved specifications.”).
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[in the petition for damages].” Certainly, a specific contract that establishes
that the government required asbestos for the parts with which Zeringue came
into contact would be ideal, but to require that level of specificity to establish
a colorable federal defense would equate to requiring Crane to “win his case
before he can have it removed,” a requirement which we cannot impose. 21
The three submitted affidavits bolster Crane’s defense. Anthony
Pantaleoni, Crane’s Vice-President of Environment, Health and Safety,
stipulated that “[a]ll equipment supplied by Crane Co. to the Navy was built
in accordance with [military] specifications” and that the military
specifications “governed all aspects of a piece of equipment . . . including
materials.” Retired Rear Admiral David Sargent, whose assignments in the
Navy primarily involved the operation and maintenance of Navy ships, echoed
these claims, noting that the uniformity necessary “to ensure commonality
across systems” meant that “[e]quipment could not have been installed aboard
Navy vessels unless it was first determined by the Navy to be in conformity
with all applicable Navy specifications.”
The final affidavit is from Dr. Samuel Forman, a former Navy physician
tasked with investigating the Navy’s “historical handling and knowledge of
various industrial hygiene issues, including asbestos disease.” Dr. Forman’s
affidavit supports Crane’s assertion that the Navy knew as much or more than
Crane did about the dangers of asbestos exposure. Specifically, Dr. Forman
stated that the Navy’s knowledge of asbestos dangers “has been quite complete
when compared to available knowledge over time, and at least by the early
1940s, the Navy had become a leader in the field of occupational medicine
relating to, among other things, asbestos dust inhalation exposure.” Dr.
21See Jefferson Cty. v. Acker, 527 U.S. 423, 431, 432 (1999) (internal quotation marks
omitted) (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)).
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Forman’s affidavit demonstrates that by at least 1939, the Navy had learned
that exposure to asbestos dust for prolonged periods could result in “an
industrial disease of the lungs.”
These sample military specifications and affidavits are not definitive
proof that Zeringue’s asbestos exposure resulted from the Navy’s—not
Crane’s—discretionary decision, nor are they definitive proof that Crane did
not need to supply the Navy with information regarding the dangers of
asbestos because of the Navy’s existing knowledge. But definitive proof is not
necessary for removal, and the military specifications and affidavits do suffice
as a not-insubstantial and non-frivolous basis upon which Crane may assert
government-contractor immunity.
C
Section 1442 also requires a government contractor seeking removal to
establish that it was “acting under” an officer of the United States or an agency
when the acts giving rise to the complaint occurred. 22 Although the words
“acting under” are undoubtedly broad, the Supreme Court has clarified that
they “must refer to . . . a relationship that involves ‘acting in a certain capacity,
considered in relation to one holding a superior position or office.’” 23 This
relationship “typically involves ‘subjection, guidance, or control,’” 24 but, at a
minimum, it “must involve an effort to assist, or to help carry out, the duties
or tasks of the federal superior.” 25
Direct oversight of the specific acts that give rise to a plaintiff’s
complaint is not required to satisfy this part of § 1442. In Wilde v. Huntington
Ingalls, Inc., an unpublished decision, this court held that, based on a
22 Watson v. Philip Morris Cos., 551 U.S. 142, 147 (2007).
23 Id. at 151 (quoting 18 OXFORD ENGLISH DICTIONARY 948 (2d ed. 1989)).
24 Id. (quoting WEBSTER’S NEW INTERNATIONAL DICTIONARY 2765 (2d ed. 1953)).
25 Id. at 152.
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government contractor’s averment that “when it allegedly exposed [the
plaintiff] to asbestos, it was producing ships pursuant to the direction of the
United States Maritime Commission,” the contractor was acting under a
federal officer. 26 The court noted that the mere fact that “the federal
government would have had to build those ships had [the defendant] not done
so” satisfied this requirement. 27 This reasoning is persuasive.
Crane’s provision of parts in an effort to assist the Navy’s construction
of vessels satisfies the “acting under” requirement. The military specifications
and affidavits that Crane provided suggest that the Navy exercised a
significant degree of guidance and control over Crane. These affidavits, as
noted above, state that “[a]ll equipment supplied by Crane Co. to the Navy was
built in accordance with [military] specifications,” which “governed all aspects
of a piece of equipment . . . including materials,” and “[e]quipment could not
have been installed aboard Navy vessels unless it was first determined by the
Navy to be in conformity with all applicable Navy specifications.” Even absent
this significant degree of oversight, the Navy directed Crane to build parts,
and, had Crane not done so, the Navy would have had to build those parts
instead. In accordance with our duty to avoid “a narrow, grudging
interpretation of § 1442(a)(1),” 28 we conclude that the facts in the record before
us are sufficient to establish that Crane was “acting under” the Navy.
D
Before 2011, § 1442 allowed the removal of a state suit against a federal
officer, or a person acting under a federal officer, only when the state suit was
“for any act under color of such office.” 29 In 2011 Congress extended § 1442 to
26 616 F. App’x 710, 713 (5th Cir. 2015) (per curiam).
27 Id.
28 Willingham v. Morgan, 395 U.S. 402, 407 (1969).
29 Act of June 25, 1948, ch. 646, 62 Stat. 938 (codified at 28 U.S.C. § 1442).
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allow the removal of a state suit “for or relating to any act under color of such
office.” 30 The plain meaning of the added language broadens the scope of the
statute as “the ordinary meaning of [relating to] is a broad one—‘to stand in
some relation; to have bearing or concern; to pertain; refer; to bring into
association with or connection with.’” 31
This element of § 1442, both before and after the 2011 amendment,
requires the removing party to establish “a nexus, a ‘causal connection’
between the charged conduct and asserted official authority.” 32 This causal
nexus requirement ensures that removal “only arises when ‘a federal interest
in the matter’ exists.” 33 Even before the 2011 amendment, the causal
connection did not need to be “airtight,” because such a requirement would
“defeat the purpose of the removal statute.” 34 This reasoning led the Supreme
Court to remark in Willingham v. Morgan that “it [is] sufficient” for a federal
officer in a civil suit to establish the requisite causal connection by showing
that the officer’s “relationship to [the plaintiff] derived solely from [the officer’s]
official duties.” 35 This court, in rejecting the argument that negligent acts are
not within a person’s official authority, clarified that an act is within an
officer’s authority, and within the scope of § 1442, “so long as he does not depart
from the course of his duty so that it becomes his personal act.” 36 The 2011
amendment expanded the breadth of acts sufficient to establish a causal nexus
30 Removal Clarification Act of 2011, Pub. L. No. 112-51, § 2(b)(2), 125 Stat. 545
(codified at 28 U.S.C. § 1442) (emphasis added); see also In re Commonwealth’s Motion to
Appoint Counsel, 790 F.3d 457, 467 (3d Cir. 2015).
31 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383 (1992) (quoting BLACK’S
LAW DICTIONARY 1158 (5th ed. 1979)).
32 Jefferson Cty. v. Acker, 527 U.S. 423, 431 (1999) (quoting Willingham, 395 U.S. at
409).
33 Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998) (quoting
Willingham, 395 U.S. at 406).
34 Acker, 527 U.S. at 432.
35 395 U.S. at 409 (emphasis added).
36 Allman v. Hanley, 302 F.2d 559, 561 (5th Cir. 1962).
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even further. It remains, however, that the causal nexus inquiry “must . . . be
tailored to fit the facts of each case.” 37
Despite the relatively broad reach of the causal nexus requirement,
Zeringue contends that Crane has not established the existence of a causal
nexus because “the causal connection must depend upon a showing of precise
federal direction,” which Zeringue argues Crane has not established. However,
the plain language of § 1442 cannot bear Zeringue’s construction.
Crane has established the requisite causal nexus between the charged
conduct and its official authority. Crane’s relationship with Zeringue derives
solely from its official authority to provide parts to the Navy, and that official
authority relates to Crane’s allegedly improper actions, namely its use of
asbestos in those parts. Although the court cannot attenuate the causal nexus
requirement “to the point of irrelevance,” 38 the plain import of the phrase
“relating to” is that some attenuation is permissible, attenuation which is
irreconcilable with Zeringue’s proposed requirement of precise federal
direction.
Moreover, were we to require the level of precision requested by
Zeringue, we also would unduly undermine the purpose of § 1442 by
impermissibly requiring defendants seeking removal, like Crane, to establish
more than a colorable claim that a purported design defect was the result of a
federal officer’s discretion. Requiring “precise federal direction” to show a
causal nexus, as Zeringue urges us to do, would not only render the “colorable”
federal defense requirement a nullity, as the causal nexus requirement would
hold the removing party to a heightened burden, but also would be contrary to
37 Willingham, 395 U.S. at 408.
38 Wilde v. Huntington Ingalls, Inc., 616 F. App’x 710, 713 (5th Cir. 2015) (per curiam).
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the Supreme Court’s admonishment that “the test for removal should be
broader, not narrower, than the test for official immunity.” 39
Our recent holding in Bartel v. Alcoa Steamship Co. 40 is not to the
contrary. In Bartel, the Navy—not the contractors—supplied ships that
contained asbestos to the defendants. 41 The defendants argued that there was
a causal nexus between their authority to operate the ships, derived simply
from the Navy providing the ships, and the charged conduct of failing “to warn
of the dangers of asbestos, to train their crews in using asbestos-containing
products, and to adopt procedures for the safe installation and removal of
asbestos.” 42 The charged conduct was private conduct that implicated no
federal interest. Because the very purpose of the causal nexus requirement is
to ensure that removal “only arises when ‘a federal interest in the matter’
exists,” 43 an extension of § 1442 to allow those defendants to remove would
have stretched the causal nexus requirement to the point of irrelevance.
Conversely, if we were to decline to extend the protection of § 1442 to
this case, in which the Navy directed Crane to provide parts, we would render
irrelevant Congress’s decision to allow the removal of suits for acts “relating
to” any act taken under official authority. Again, we will not follow such “a
narrow, grudging interpretation of § 1442(a)(1).” 44 Crane has established a
casual nexus.
39 Willingham, 395 U.S. at 404.
40 805 F.3d 169 (5th Cir. 2015).
41 Id. at 172, 174.
42 Id. at 171, 172.
43 Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th Cir. 1998) (quoting
Willingham, 395 U.S. at 406).
44 Willingham, 395 U.S. at 407.
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III
Crane has established the right to remove the suit pursuant to § 1442.
Because “removal of the entire case is appropriate so long as a single claim
satisfies the federal officer removal statute,” we do not determine whether
Crane independently established the right to remove Zeringue’s failure to warn
claim. 45
* * *
For the foregoing reasons, we REVERSE the judgment of the district
court and REMAND for proceedings consistent with this opinion.
45 Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 463 (5th Cir. 2016).
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