     Case: 18-30113   Document: 00514572398   Page: 1   Date Filed: 07/26/2018




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

                                                                       FILED
                               No. 18-30113                        July 26, 2018
                             Summary Calendar
                                                                  Lyle W. Cayce
                                                                       Clerk
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.




                Appeals from the United States District Court
                    for the Eastern District of Louisiana
                          USDC No. 2:17-CV-12367
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                                       No. 18-30113
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


       * 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.
       1See 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).
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                                            No. 18-30113
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




          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)).
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                                       No. 18-30113
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.




       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)).
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                                          No. 18-30113
          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.




          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)).
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