     Case: 18-30652   Document: 00515319928        Page: 1   Date Filed: 02/24/2020




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit


                                    No. 18-30652
                                                                        FILED
                                                                 February 24, 2020
                                                                   Lyle W. Cayce
JAMES A. LATIOLAIS,                                                     Clerk

             Plaintiff – Appellee

v.

HUNTINGTON INGALLS, INCORPORATED, formerly known as Northrop
Grumman Shipbuilding, Incorporated, formerly known as Northrop
Grumman Ship Systems, Incorporated, formerly known as Avondale
Industries, Incorporated,

             Defendant – Appellant


                Appeal from the United States District Court
                   for the Eastern District of Louisiana


              ON PETITION FOR REHEARING EN BANC

Before OWEN, Chief Judge, and JONES, SMITH, STEWART, DENNIS,
ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, WILLETT, HO,
DUNCAN, and OLDHAM, Circuit Judges. 1

EDITH H. JONES, Circuit Judge:
      This appeal was reconsidered en banc because Fifth Circuit precedents
concerning the scope of the revised Federal Officer Removal Statute, 28 U.S.C.
§ 1442(a)(1), were extraordinarily confused.        See Latiolais v. Huntington
Ingalls, Inc., 918 F.3d 406, 412–13 (5th Cir. 2019). Having reconsidered, we


      1 Judges Dennis and Haynes concur in the judgment only.     Judges Costa and
Engelhardt are recused.
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                                       No. 18-30652
strip away the confusion, align with sister circuits, and rely on the plain
language of the statute, as broadened in 2011. As a result, Avondale 2 was
entitled to remove this negligence case filed by a former Navy machinist
because of his exposure to asbestos while the Navy’s ship was being repaired
at the Avondale shipyard under a federal contract. We VACATE the contrary
district court judgment and REMAND for further proceedings in federal court.
                       BACKGROUND AND PROCEDURE
       During the 1960s and 1970s, the United States Navy contracted with the
Defendant-Appellant, Avondale, to build and refurbish naval vessels. Most of
the contracts in the 1960s required asbestos for thermal insulation. According
to Avondale’s expert, a marine engineer and naval historian, the contracts
obliged Avondale “to comply with government plans and specifications, and the
federal government had the right to and did exercise supervision over the
process to ensure such compliance.”
       The Plaintiff-Appellee, James Latiolais, then a machinist aboard the
USS Tappahannock, was exposed to asbestos while his ship underwent
refurbishing at Avondale for several months. In 2017, Latiolais was diagnosed
with mesothelioma. He died in October 2017. 3
       Latiolais sued Avondale in Louisiana state court for causing him to
contract mesothelioma. He asserted, inter alia, that Avondale negligently
failed to warn him about asbestos hazards and failed to provide adequate
safety equipment. He did not allege strict liability claims against Avondale.




       2The Defendant-Appellant has borne many names, including Huntington Ingalls,
Northrop Grumman Shipbuilding, and Avondale Industries. Because the parties refer to the
Defendant-Appellant as Avondale, the court does the same.

       3Although Latiolais died shortly after filing his petition in Louisiana state court, no
party argues that his death affects any issue in this appeal.
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                                    No. 18-30652
      Avondale removed the case to federal court under 28 U.S.C. § 1442(a)(1).
Latiolais sought remand, however, and the district court granted the motion.
Observing this court’s “causal nexus” requirement for federal officer removal,
the district court asked whether the United States or any of its officials
controlled Avondale’s safety practices. The court found no such control and
concluded that removal under § 1442(a)(1) was improper. Avondale timely
appealed.
                          STANDARD OF REVIEW
      Although an order remanding a case to state court is not generally
reviewable, “an order remanding a case to the State court from which it was
removed pursuant to section 1442 or 1443 of this title shall be reviewable by
appeal or otherwise.” 28 U.S.C. § 1447(d). “We review the district court’s
remand order de novo, ‘without a thumb on the remand side of the scale.’”
Legendre v. Huntington Ingalls, Inc., 885 F.3d 398, 400 (5th Cir. 2018) (quoting
Savoie v. Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir. 2016)).
                                 DISCUSSION
      As amended in 2011 and still effective, the Federal Officer Removal
Statute states in pertinent part:
      (a) A civil action or criminal prosecution that is commenced in a
      State court and that is against or directed to any of the following
      may be removed by them to the district court of the United
      States . . . :
            (1) The 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 . . . .

28 U.S.C. § 1442(a)(1) (2018).
      Some version of this statute has been in effect since 1815. Watson v.
Philip Morris Cos., 551 U.S. 142, 147–49, 127 S. Ct. 2301, 2305 (2007). At first,
Congress authorized only some federal officials sued in connection with their
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                                  No. 18-30652
official duties to seek a federal forum rather than face possibly prejudicial
resolution of disputes in state courts. Willingham v. Morgan, 395 U.S. 402,
405, 89 S. Ct. 1813, 1815 (1969). Over time, though, Congress has broadened
the removal statute repeatedly until it reached the coverage quoted above. See
Watson, 551 U.S. at 147–49, 127 S. Ct. at 2305; 28 U.S.C.A. § 1442 (West).
      Federal officers may remove cases to federal court that ordinary federal
question removal would not reach. In particular, section 1442(a) permits an
officer to remove a case even if no federal question is raised in the well-pleaded
complaint, so long as the officer asserts a federal defense in the response. As
the Supreme Court has explained, “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 Art. III purposes.” Mesa v. California,
489 U.S. 121, 136, 109 S. Ct. 959, 968 (1989). The Court has consistently urged
courts to avoid “a narrow, grudging interpretation of § 1442(a)(1).”
Willingham, 395 U.S. at 407, 89 S. Ct. at 1816; Arizona v. Manypenny,
451 U.S. 232, 242, 101 S. Ct. 1657, 1664 (1981); Jefferson County v. Acker,
527 U.S. 423, 431, 119 S. Ct. 2069, 2075 (1999).
       Clearly, a defendant removing under section 1442(a)(1) must show (1) it
is a “person” within the meaning of the statute, (2) it acted “pursuant to a
federal officer’s directions,” and (3) it asserts a “colorable federal defense.”
Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 396–400 (5th Cir.
1998). This court’s cases have also required pleading (4) “a causal nexus”
between the defendant’s acts under color of federal office and the plaintiff’s
claims. E.g., id. at 398. Avondale’s status as a “person” and its federal contract
with the Navy for repairs to the Tappahannock satisfy the first and second
conditions. Whether any “causal nexus” was required is the focal point of
dispute, but the parties also debate the “colorable federal defense” criterion.


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                                  No. 18-30652
                          I. The Connection Prong
      The parties first join issue over the status of the “causal nexus”
requirement. This requirement began as a restatement of part of the Supreme
Court’s test in Willingham, in which the Court interpreted “for any act under
color of such office,” 28 U.S.C. § 1442(a) (1948), to limit federal officer removal
to suits that “grow[] out of conduct under color of office.” 395 U.S. at 407,
89 S. Ct. at 1816. A civil suit “grows,” the Court held, if the defendant’s “acts
or [his] presence at the place in performance of [his] official duty constitute the
basis, though mistaken or false,” of the plaintiff’s action. Id. at 407, 409, 1816,
1817. To establish that much was to establish a “‘causal connection’ between
the charged conduct and asserted official authority.” Id. at 409, 1817 (quoting
Maryland v. Soper, 270 U.S. 9, 33, 46 S. Ct. 185, 190–91 (1926)).
      Three decades later, in Winters, this court restated Willingham’s “under
color of office” or “causal connection” test as providing “that the defendants
acted pursuant to a federal officer’s directions and that a causal nexus exists
between the defendants’ actions under color of federal office and the plaintiff’s
claims.” 149 F.3d at 398. In Winters, the defendant’s formulation, packaging,
and delivery of Agent Orange took place under direct governmental
specification and supervision. Id. at 400. Consequently, the court determined
that “a direct causal nexus exists between the defendants’ actions taken under
color of federal office and Winters’s claims” for strict product liability and
failure to provide adequate warnings.        Id. at 399–400 (emphasis added).
Notably, in applying Willingham’s color-of-office test, the Winters court
asserted only that a “direct causal nexus” existed, not that it was necessary.
      In this court’s decisions following Winters, the “direct causal nexus” test
became a talisman even after Congress, in 2011, amended section 1442(a),
altering the requirement that a removable case be “for” any act under color of
federal office and permitting removability of a case “for or relating to” such
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                                     No. 18-30652
acts, 28 U.S.C. § 1442(a) (2012) (emphasis added). Thus, in Bartel v. Alcoa
Steamship Co., the court accurately quoted the amended statute, but did not
discuss the textual change and still applied a “direct causal nexus” test.
805 F.3d 169, 172–75 (5th Cir. 2015). Subsequent panels of this court relied
on Bartel and attempted to discern what kinds of plaintiffs’ claims articulated
causes of action sufficiently related to federal officers or directions to satisfy
the “direct causal nexus” test. See Savoie, 817 F.3d at 462–66; Zeringue v.
Crane Co., 846 F.3d 785, 793–94 (5th Cir. 2017); Legendre, 885 F.3d at 400–
403; see also IntegraNet Physician Res., Inc. v. Tex. Indep. Providers, L.L.C.,
945 F.3d 232, 240 4 (5th Cir. 2019); Schexnayder v. Huntington Ingalls, Inc.,
No. CV 19-11773, 2020 WL 114136, at *2 (E.D. La. Jan. 10, 2020). The original
Latiolais panel highlighted the tension between the amended statute and our
precedents. 918 F.3d at 408–10.
      Unsurprisingly, Latiolais no longer relies on our case law alone and
takes the position that, even as amended, section 1442(a) requires a direct
causal nexus test. He contends that the added language applies to a narrow
class of civil proceedings, not including this suit against Avondale; that the
application of interpretive canons to the amended statute’s language
establishes the narrower interpretation; and that in any event the amendment
cannot have been meant to dispense with all functional limitations on removal.
Avondale asserts that the amendment broadened the availability of federal
officer removal. Our analysis therefore turns to statutory interpretation. We
conclude that Avondale has the better of the arguments.




      4 But cf. 945 F.3d at 238 n. 18 (stating that the “causal nexus” test is “not outcome
determinative in this case”).
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                                   No. 18-30652
                                           A.
      The always primary, and here decisive, interpretive tool is the text itself.
The amending legislation, the Removal Clarification Act of 2011, states,
“Section 1442(a) of title 28, United States Code, is amended-- (1) in paragraph
(1)-- (A) by striking ‘capacity for’ and inserting ‘capacity, for or relating to’.”
Pub. L. No. 112-51, § 2(b)(1)(A), 125 Stat. 545. Following this amendment,
section 1442(a) makes removable to federal court “[a] civil action . . . that is
against or directed to . . . any person acting under [a federal] officer . . . for or
relating to any act under color of such office.”
      This change plainly expresses that a civil action relating to an act under
color of federal office may be removed (if the other statutory requirements are
met). Further, the Supreme Court has recognized, “[t]he ordinary meaning of
the[ ] words [‘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.’” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383,
112 S. Ct. 2031, 2037 (1992). Congress added this “broad” term to “for,” the
preposition relied on in the Supreme Court’s discussion of the “causal
connection” test, Jefferson County, 527 U.S. at 431–32, 119 S. Ct. at 2075. By
the Removal Clarification Act, Congress broadened federal officer removal to
actions, not just causally connected, but alternatively connected or associated,
with acts under color of federal office.
      Two other circuit courts have acknowledged the impact of the
amendment and formally adopted a “connection” test. See Sawyer v. Foster
Wheeler, L.L.C., 860 F.3d 249, 258 (4th Cir. 2017); In re Commonwealth’s Mot.
to Appoint Counsel Against or Directed to Defender Ass’n of Phila., 790 F.3d
457, 470–71 (3d Cir. 2015). The Eleventh Circuit, while persisting with the
“causal connection” test, has cited the amended “relating to” language and


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                                      No. 18-30652
essentially implemented a connection rationale for removal. Caver v. Cent.
Ala. Elec. Coop., 845 F.3d 1135, 1144 & n.8 (11th Cir. 2017).
                                             B.
       Against this perfectly natural interpretation, Latiolais sets a creative
alternative. He contends that “for” and “relating to” modify different “civil
action[s] or criminal prosecution[s].” To support this counterintuitive proposal,
Latiolais emphasizes a subsection title in the Removal Clarification Act. He
deploys the canon against surplusage.             He insists that the plain-meaning
interpretation would be a radical, implicit change in law. And he deplores the
consequences for courts and plaintiffs if the amendment permits wholesale
removal of actions to the federal courts.            We must address each of these
arguments. 5
       Latiolais stresses a construction of the Removal Clarification Act, which
amended section 1442 in 2011. The provision inserting “or relating to” into
section 1442(a)(1) is part of a subsection entitled “Conforming Amendments.”
§ 2(b), 125 Stat. at 545. According to Latiolais, “relating to” must “conform” to
the Act’s immediately preceding subsection, which “clarifies” that standalone
subpoenas and other discovery matters are to be defined among the “civil
action[s] or criminal prosecution[s]” that may be removed. 6                  Because the
insertion of “relating to” conforms to that “clarification,” the amended section



       5 Latiolais also presents a mélange of legislative history for consideration, but such
history is to be avoided in statutory interpretation. Antonin Scalia & Bryan A. Garner,
Reading Law 31–33, 56–58, 369–90 (2012).

       6  In the “Clarification,” Congress broadened the definition of removable proceedings
as follows: “As used in subsection (a), the terms ‘civil action’ and ‘criminal prosecution’
include any proceeding (whether or not ancillary to another proceeding) to the extent that in
such proceeding a judicial order, including a subpoena for testimony or documents, is sought
or issued. If removal is sought for a proceeding described in the previous sentence, and there
is no other basis for removal, only that proceeding may be removed to the district court.”
§ 2(a)(2), 125 Stat. at 545 (codified as amended at 28 U.S.C. § 1442(d)(1) (2018)).
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                                 No. 18-30652
1442(a) means that only “pre-suit discovery matters” “relating to” an act under
color of federal office are removable. Every other “civil action or criminal
prosecution” that is not a pre-suit discovery matter, however, is removable only
if it is “for” an act under color of federal office. The amendments, taken
together, effectuate broader removability for pre-suit discovery matters, while
the removal of liability suits or prosecutions remains in thrall to the direct
causal nexus test.
      For   several   reasons,   this   alternative   interpretation   based   on
“Conforming Amendments” is untenable. First, an act’s subsection title cannot
defeat the ordinary meaning of the statutory text it amends. Reading the
language inserted into section 1442(a) via the Conforming Amendments yields
that any “civil action or criminal prosecution [more broadly defined to include
pre-suit discovery matters]” that otherwise meets the statutory requirements
may be removed if it “relates to” an act under color of federal office. Any
subsection title with contrary meaning would be unavailing because, in a war
between text and title, text wins. Scalia & Garner, supra, at 222–23.
      Moreover, the relevant title is not contrary to the statutory changes
communicated in the text.        One “clarifying” subsection of the Removal
Clarification Act broadened the types of proceedings that are removable, no
longer limiting removal to liability suits or criminal prosecutions against
covered persons. § 2(a)(2), 125 Stat. at 545. The “conforming” subsection
broadened the universe of acts that enable federal officers to remove.
§ 2(b)(1)(A), 125 Stat. at 545. Establishing a broader class of removable acts
in section 2(b) conforms to establishing a broader class of removable
proceedings in section 2(a).
      Ultimately, Latiolais’s exegesis of the Removal Clarification Act and
thus of section 1442(a) depends on the possibility of distinguishing pre-suit
discovery matters from other proceedings.       The text does not justify this
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                                  No. 18-30652
distinction. Instead, the amendment simply broadens the scope of removable
proceedings. Had Congress sought to afford easier removability for pre-suit
discovery matters than lawsuits, it could easily have drafted an entirely new
provision in section 1442 to address the narrow category of state judicial orders
of the type currently contemplated in section 1442(d). Instead, within section
1442, Congress both broadened the definition of “civil action” to include such
orders and chose to add “relating to”—a term well known for its breadth. These
changes neither signal ambiguity nor artificially limit the plain meaning of the
provision. See Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652,
1659 (2017) (“When legislators did not adopt ‘obvious alternative’ language,
‘the natural implication is that they did not intend’ the alternative.” (quoting
Lozano v. Montoya Alvarez, 572 U.S. 1, 16, 134 S. Ct. 1224, 1235 (2014)).
      Latiolais’s next thrust concerns the word “for,” which remains in section
1442(a)(1). According to Latiolais, if “relating to” modifies “[a] civil action or
criminal prosecution” without qualification, then “for” is superfluous, in
violation of the interpretive canon against surplusage, cf. Corley v. United
States, 556 U.S. 303, 314, 129 S. Ct. 1558, 1566 (2009) (“[O]ne of the most basic
interpretive canons [is] that ‘[a] statute should be construed so that effect is
given to all its provisions, so that no part will be inoperative or superfluous,
void or insignificant.’” (quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S. Ct.
2276, 2286 (2004)). Accordingly, “relating to” must apply only to a subclass of
“civil action or criminal prosecution.”
      This reading is also unpersuasive.         To start, the canon against
surplusage yields to context as it expresses courts’ “general ‘reluctan[ce] to
treat statutory terms as surplusage.’” Bd. of Trs. of Leland Stanford Junior
Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788, 131 S. Ct. 2188, 2196
(2011) (alteration in original) (emphasis added) (quoting Duncan v. Walker,
533 U.S. 167, 174, 121 S. Ct. 2120, 2125 (2001)). Congress may in fact use “a
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                                   No. 18-30652
perhaps regrettable but not uncommon sort of lawyerly iteration” in which
each word of a series means nearly the same thing. Freeman v. Quicken Loans,
Inc., 566 U.S. 624, 635, 132 S. Ct. 2034, 2043 (2012). If the meaning of a text
is discernibly redundant, courts should not invent new meaning to avoid
superfluity at all costs.
      Anyway, such invention would be inappropriate in this case because “for”
is not redundant. Instead, by keeping “for,” Congress left no doubt that cases
previously removable under the Federal Officer Removal Statute remained
removable even as Congress broadened the universe of acts that could sustain
removability. Cf. Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 226, 128 S. Ct.
831, 840 (2008) (“The construction we adopt today does not render ‘any officer
of customs or excise’ superfluous; Congress may have simply intended to
remove any doubt that officers of customs or excise were included in ‘law
enforcement officer[s].’”). Lacking superfluity, section 1442(a)(1) leaves no
work for the canon against surplusage to do.
      Latiolais advances another interpretive doctrine, asserting that, should
“or relating to” achieve broader removability of civil suits and criminal
prosecutions, it would “make radical—but entirely implicit—changes through
technical and conforming amendments,” which Congress does not do. Cyan,
Inc. v. Beaver Cty. Emps. Ret. Fund, 138 S. Ct. 1061, 1071 (2018). In fact, the
revision of section 1442(a)(1) was neither radical nor implicit.
      Permitting removal of all acts “relating to” an act under color of federal
office that meet the other requirements of removal did not radically change the
Federal Officer Removal Statute. Congress had consistently broadened the
statute before 2011. 7 See Watson, 551 U.S. at 147–49, 127 S. Ct. at 2305;


      7  Indeed, after 2011, Congress continued to broaden section 1442 by amending
28 U.S.C. § 1442(c), National Defense Authorization Act for Fiscal Year 2013, Pub. L.
No. 112-239, § 1087, 126 Stat. 1632, 1970–71.
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28 U.S.C.A. § 1442 (West). In Willingham and Acker, the Supreme Court had
read the amended statute to require only a minimal “causal connection.”
395 U.S. at 409, 89 S. Ct. at 1817; 527 U.S. at 432–33, 119 S. Ct. at 2075–76.
Given this series of events, moving from the causal connection test under “for”
to a connection test under “for or relating to” was not a radical change. 8
       Nor was the change “entirely implicit.” The Cyan case is inapposite. In
Cyan, a defendant sought dismissal of a 1933 Securities Act class action from
state court, contending that a definition in a subpart of a statutory section
referenced by a newly added exception required removal. See 138 S. Ct. at
1068–70. The Supreme Court rejected the argument that the alleged change,
discernible only implicitly, had, for the first time, required removal of 1933 Act
claims.    Id. at 1071–72.       In this case, by contrast, Congress changed the
operative statutory text, inserting into a phrase identified as the source of the
causal connection test a term that is broad in ordinary and legal usage. If not
preached on the housetops, this explicit change was far from just whispered in
the ear.
       Rather than Cyan, the better analogue to this case is Burgess v. United
States. In 1994, Congress used a “conforming amendment” to define “felony
drug offense” in the Controlled Substances Act (“CSA”). 553 U.S. 124, 134–35.
128 S. Ct. 1572, 1579 (2008). Burgess interpreted this conforming amendment


       8 If any further confirmation of this point were necessary, it is available in various
decisions by circuit courts that still seek a causal connection between action and act. In part
because these courts interpret the “causal nexus” or “causal connection” requirement more
expansively—and more in line with Willingham, 395 U.S. at 409, 89 S. Ct. at 1817, and
Soper, 270 U.S. at 33, 46 S. Ct. at 190–91—than our court has done in recent cases, the
outcomes in these cases have not been affected by failure to give effect to the new “relating
to” language in section 1442(a). See Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir.
2018); Ruppel v. CBS Corp., 701 F.3d 1176, 1179, 1181 (7th Cir. 2012); Jacks v. Meridian
Res. Co., 701 F.3d 1224, 1230 & n. 3 (8th Cir. 2012); see also Bennett v. MIS Corp., 607 F.3d
1076, 1088 (6th Cir. 2010). Compare Cabalce v. Thomas E. Blanchard & Assocs., 797 F.3d
720, 727–30 (9th Cir. 2015), with Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San
Diego, 865 F.3d 1237, 1244–45 (9th Cir. 2017).
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to have broadened the universe of acts that require a judge to impose a
sentence enhancement under the CSA. See id. at 129, 1577. The Court noted
that “Congress did not disavow any intent to make substantive changes;
rather, the amendments were ‘conforming’ because they harmonized
sentencing provisions in the CSA and the Controlled Substances Import and
Export Act.” Id. at 135, 1579. Likewise here, Congress did not disavow any
intent to make substantive changes, and its “conforming amendment”
harmonized the scope of removal-causing acts with the scope of removable
proceedings. Latiolais’s text-focused arguments fail.
      Latiolais caps his argument with the policy-related complaints that a
plain reading of “relating to” enables removal of cases in a way that conflicts
with past case law and suffuses indeterminacy in place of “workable standards”
based on a “federal interest” in removal.        Latiolais, however, articulates
nothing about how to expound such a “federal interest.” Moreover, if the causal
connection test had provided such “workable standards,” this court would have
had clearer decisions. Finally, the statute’s requirement that a removing party
assert a colorable federal defense remains a constitutional, viable, and
significant limitation on removability.       See Mesa, 489 U.S. at 136–37,
109 S. Ct. at 968–69; see generally Anthony J. Bellia, Jr., The Origins of Article
III “Arising Under” Jurisdiction, 57 Duke L.J. 263 (2007).
                                       C.
      For all these reasons, Latiolais’s interpretation falls to the more natural
reading that Congress applied “relating to” to all “civil action[s] or criminal
prosecutions” without distinction. Subject to the other requirements of section
1442(a), any civil action that is connected or associated with an act under color
of federal office may be removed. Accordingly, we overrule Bartel and its




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                                      No. 18-30652
progeny 9 to the extent that those cases erroneously relied on a “causal nexus”
test after Congress amended section 1442(a) to add “relating to.” Henceforth,
to remove under section 1442(a), a defendant must show (1) it has asserted a
colorable federal defense, (2) it is a “person” within the meaning of the statute,
(3) that has acted pursuant to a federal officer’s directions, and (4) the charged
conduct is connected or associated with an act pursuant to a federal officer’s
directions.
       In addition, the pleadings here satisfy the “connection” condition of
removal. Latiolais alleges that Avondale failed to warn him of the dangers of
asbestos and failed to take measures to prevent exposure. This negligence is
connected with the installation of asbestos during the refurbishment of the
USS Tappahannock. Avondale performed the refurbishment and, allegedly,
the installation of asbestos pursuant to directions of the U.S. Navy. Thus, this
civil action relates to an act under color of federal office.
                          II. Colorable Federal Defense
       The remaining issue of law is whether Avondale asserted a colorable
federal defense to Latiolais’s claim. See, e.g., Bell v. Thornburg, 743 F.3d 84,
89–91 (5th Cir. 2014). It was briefed, but not decided, in the district court, and
we may reach the issue as a matter of discretion. See Singleton v. Wulff,
428 U.S. 106, 121, 96 S. Ct. 2868, 2877 (1976); see also Pinney Dock & Transp.
Co. v. Penn Cent. Corp., 838 F.2d 1445, 1461 (6th Cir. 1988) (“[T]o the extent
the issue is presented with sufficient clarity and completeness and its




       9 IntegraNet Physician Res., Inc. v. Tex. Indep. Providers, L.L.C., 945 F.3d 232 (5th
Cir.    2019);     Legendre     v.     Huntington    Ingalls,   Inc.,   885     F.3d     398
(5th Cir. 2018); Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017); Savoie v. Huntington
Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016).
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                                       No. 18-30652
resolution will materially advance the progress of this already protracted
litigation, we should address it.”).
       To be “colorable,” the asserted federal defense need not be “clearly
sustainable,” as section 1442 does not require a federal official or person acting
under him “to ‘win his case before he can have it removed.’” Jefferson County,
527 U.S. at 431, 119 S. Ct. at 2075 (quoting Willingham, 395 U.S. at 407,
89 S. Ct. at 1816). Instead, an asserted federal defense is colorable unless it is
“immaterial and made solely for the purpose of obtaining jurisdiction” or
“wholly insubstantial and frivolous.” See Zeringue, 846 F.3d at 790; see also
Bell, 743 F.3d at 89–91 (deeming an asserted federal defense colorable simply
because it satisfied the “causal connection” requirement).                  Certainly, if a
defense is plausible, it is colorable. Compare Ashcroft v. Iqbal, 556 U.S. 662,
678–79, 129 S. Ct. 1937, 1949–50 (2009) (plausible claim survives a motion to
dismiss), with Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 89, 118 S. Ct.
1003, 1010 (1998) (“It is firmly established in our cases that the absence of a
valid (as opposed to arguable) cause of action does not implicate subject-matter
jurisdiction.”), and Montana-Dakota Utils Co. v. Nw. Pub. Serv. Co., 341 U.S.
246, 249, 71 S. Ct. 692, 694 (1951) (“If the complaint raises a federal question,
the mere claim confers power to decide that it has no merit, as well as to decide
that it has.”). 10
       In this case, Avondale asserts the federal defense outlined in Boyle v.
United Technologies Corp., 487 U.S. 500, 108 S. Ct. 2510 (1988). This defense




       10 It may well be that courts, “in resolving a motion to remand, should first ask if the
defendant offers a colorable federal defense.” See Legendre, 885 F.3d at 405 (Higginbotham,
J., concurring). Still, in doing so, courts must avoid premature merits determination. See id.
Thus, even if a federal defense makes “sharp demands,” id., a court should not base removal
on whether the defendant actually meets those demands. Only a colorable assertion of the
federal defense is necessary.

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                                       No. 18-30652
extends to federal contractors an immunity enjoyed by the federal government
in the performance of discretionary actions.              Zeringue, 846 F.3d at 790.11
Accordingly, federal contractors are not liable 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.” Boyle, 487 U.S. at 512, 108 S. Ct. at
2510 (quoted in Zeringue, 846 F.3d at 790). Furthermore, “the government
contractor defense does not necessarily apply only to claims labeled ‘design
defect.’” Bailey v. McDonnell Douglas Corp., 989 F.2d 794, 801 (5th Cir. 1993).
Instead, “[w]hether it will apply to a particular claim depends only upon
whether Boyle’s three conditions are met with respect to the particular product
feature upon which the claim is based.” Id. at 801–02.
       In this case, Avondale offered evidence that the three Boyle conditions
are met. First, Avondale submitted one affidavit and deposition testimony
alleging that the Navy required installation of asbestos on the Tappahannock,
as well as another affidavit alleging that the Navy generally required Avondale
to install asbestos and to comply with certain related safety practices. These
documents make colorable that the government approved reasonably precise
specifications about the installation of asbestos. Second, Latiolais does not
challenge that Avondale complied with those specifications, if they existed.
Indeed, Latiolais himself testified that Avondale used asbestos in refurbishing
the Tappahannock.         Third, Avondale’s evidence tends to support that the
federal government knew more than Avondale knew about asbestos-related



       11 As the Boyle Court explained, “[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.” 487 U.S. at 512, 108 S. Ct. at 2510 (quoted in Zeringue, 846 F.3d at 790).
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                                No. 18-30652
hazards and related safety measures. From such evidence, it is colorable that
Avondale did not omit warning the government about any dangers about which
the government did not know.
      In light of the evidence submitted, Avondale’s assertion of a federal
defense is not wholly insubstantial and frivolous.        We, of course, do not
speculate on what further evidence may come to light as the case proceeds and
conclude only that Avondale has a colorable federal defense.
                               CONCLUSION
      As the foregoing discussion demonstrates, this action meets the
conditions for removal under section 1442(a). The district court’s remand order
is VACATED, and we REMAND for further proceedings in federal court.




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