     Case: 15-30476         Document: 00513085536      Page: 1    Date Filed: 06/19/2015




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


                                      No. 15-30476
                                                                                   FILED
                                                                               June 19, 2015
                                                                              Lyle W. Cayce
MARY JANE WILDE,                                                                   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, formerly known as Avondale Shipyards,
Incorporated, formerly known as Avondale Marine Ways, Incorporated,

                                                 Defendant - Appellant




                      Appeal from the United States District Court
                         for the Eastern District of Louisiana
                                USDC No. 2:15-CV-1486


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       The Federal Officer Removal Statute, 28 U.S.C. § 1442, allows persons
sued for conduct relating to their “act[ions] under color of [federal authority]” 1
to remove a state court case filed against them to federal court. If the district



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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   28 U.S.C. § 1442(a)(1).
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court remands the case back to state court, the court of appeals has jurisdiction
to review the remand order. 2
      In this case, Huntington Ingalls, Inc. (“Huntington”) removed an
asbestos action to federal court under section 1442.                 The district court
remanded. Huntington appealed, and now asks us to stay the remand order
pending appeal. After careful consideration, we decline to do so.
                                            I.
      In the 1940s, Percy Legendre, Sr., worked at Avondale Shipyard, which
is now owned by Huntington. He allegedly was exposed to asbestos, which was
passed along to his daughter, Mary Jane Wilde (“Wilde”). She was diagnosed
with terminal mesothelioma in 2013.
      In July 2014, Wilde sued Huntington in Louisiana state court, alleging
that the company had exposed her, through her father, to dangerous levels of
asbestos. She alleged various negligence and strict liability claims, but made
no mention of any exposure her father had to federal facilities or vessels. 3 The
state court set a trial date of June 22, 2015. On April 7, Wilde’s expert gave
Huntington pre-deposition “reliance materials,” including specification sheets
for two vessels built at Avondale under the direction of the United States
Maritime Commission during the period where her father worked at the
shipyard. 4 After receiving these specifications, Huntington removed the case
on May 5.
      Once the case was in federal court, Wilde moved immediately to remand.
The district court scheduled an expedited hearing, and remanded the case on
May 21, concluding that Huntington had not shown a causal nexus between its
actions undertaken under the color of law and Wilde’s claims. Huntington


      2 28 U.S.C. § 1442(d).
      3 See Petition for Damages, at 2-4, ECF No. 1-1.
      4 See Notice of Removal, at 3, ECF No. 1.

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appealed that same day and now asks us to stay the remand order pending
appeal. 5
                                             II.
                                             A.
       We must consider four factors when deciding to grant a stay pending
appeal:
       (1) whether the stay applicant has made a strong showing that [it]
       is likely to succeed on the merits; (2) whether the applicant will be
       irreparably injured absent a stay; (3) whether issuance of the stay
       will substantially injure the other parties interested in the
       proceeding; and (4) where the public interest lies. 6
A stay, we must note, “is not a matter of right, even if irreparable injury might
otherwise result to the appellant.” 7
                                             B.
       The Federal Officer Removal Statute provides that a civil action brought
against “any person acting under [an officer of the United States]” may be
removed to federal district court. 8 These persons may include government
contractors, so long as they were sued because of actions they took under
federal direction. 9
       In our circuit, a defendant must satisfy three independent factors to
remove: (1) “[t]he defendants must first demonstrate that they are ‘persons’
within the meaning of the statute,” (2) “the defendants acted pursuant to a
federal officer’s directions and that a causal nexus exists between the


       5 Huntington moved to stay the order in district court, as required under Federal Rule
of Appellate Procedure 8(a)(1)(A), which the district court denied. See Order, ECF No. 32.
       6 Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d 406,

410 (5th Cir. 2013) (quoting Nken v. Holder, 556 U.S. 418, 425-26 (2009)).
       7 Nken, 556 U.S. at 427.
       8 28 U.S.C. § 1442(a)(1).
       9 See Mesa v. California, 489 U.S. 121, 130 (1989); see also Arizona v. Manypenny, 451

U.S. 232, 242 (1981) (“[T]he right of removal is absolute for conduct performed under color of
federal office.”).
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                                       No. 15-30476
defendants’ actions under color of federal office and the plaintiff’s claims,” and
(3) the defendant has “assert[ed] . . . a colorable federal defense.” 10 Here, we
focus on the second and third factors.
                                             1.
       In order to remove, Huntington must establish that it was (a) “acting
pursuant to a federal officer’s directions,” which is sometimes phrased as
“acting under” federal direction, and, (b) that a causal nexus exists between
the defendants’ actions under color of federal office and the plaintiff’s claims.” 11
       Turning to the first sub-part, in order to be “acting under” the color of
federal authority in the context of federal contractor immunity, the Supreme
Court has looked to whether the contractor “is helping the Government to
produce an item that it needs . . . [or is] perform[ing] a job that, in the absence
of a contract with a private firm, the Government itself would have had to
perform.” 12 In its notice of removal, Huntington avers that when it allegedly
exposed Wilde to asbestos, it was producing ships pursuant to the direction of
the United States Maritime Commission. 13                     Presumably, the federal
government would have had to build those ships had Huntington not done so,
and so it meets this part of the test.
       The second sub-part, whether there is a causal nexus between the federal
officer’s direction that Huntington use asbestos and Wilde’s injuries, is more
complicated. Following the Supreme Court’s lead, we have held that this
connection need not be unduly demanding at the removal stage, however, nor



       10 Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387, 398-400 (5th Cir. 1998).
Other circuits have differently phrased, but substantively identical, tests. See, e.g., Ruppel
v. CBS Corp., 701 F.3d 1176, 1180 (7th Cir. 2012).
       11 Id. at 398.
       12 Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 153-54 (2007). We “liberally”

construe the term “acting under.” See id. at 147.
       13 See Notice of Removal, at 2-4, ECF No. 1.

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can it be attenuated to the point of irrelevance. 14 Our case law is instructive
in demarcating the appropriate line.             In Winters v. Diamond Shamrock
Chemical Company, we reviewed a strict liability claim against an Agent
Orange producer.        We held that the key to causation was whether the
government had specified the standards and supervised the production of the
toxic compound that the plaintiff claimed she was exposed to:
       The gist of this action centers around the trace elements of dioxin
       contained in Agent Orange and whether a causal relationship
       exists between Winters’s terminal disease and her alleged
       exposure to that dioxin. We are convinced that the government’s
       detailed specifications concerning the make-up, packaging, and
       delivery of Agent Orange, the compulsion to provide the product to
       the government’s specifications, and the on-going supervision the
       government exercised over the formulation, packaging, and
       delivery of Agent Orange is all quite sufficient to demonstrate that
       the defendants acted pursuant to federal direction and that a
       direct causal nexus exists between the defendants’ actions taken
       under color of federal office and Winters’s claims. The defendants
       have demonstrated the second criteria necessary for federal
       officers removal. 15
       Here, Huntington has pled a causal relationship between government
direction and the exposure to asbestos by workers on the government-
contracted ships. That link plays out in four steps. First, Huntington provided
a contract between Avondale and the Maritime Commission by which the
former was to produce an N3-S-A1 cargo ship for the latter.                   Under this
agreement, the government would provide Avondale detailed ship construction
specifications, and Avondale was prohibited from “depart[ing] from the
requirements of the plans or specifications without prior written approval of




       14 See, e.g., Williangham v. Morgan, 395 U.S. 402, 409 (1969); Omega Hosp., L.L.C. v.
La. Health Serv. & Indem. Co., 592 F. App’x 268, 272 (5th Cir. 2014) (unpublished); Winters,
149 F.3d at 398.
       15 Winters, 149 F.3d at 399-400.

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the Commission.” 16      The actual construction of the ship was “subject to
inspection . . . by inspectors of the Commission.” 17             Second, Huntington
submitted the actual specifications for that class of ship, which required that
“[a]ll insulating materials [used in the vessel] shall be 85% magnesia or molded
amosite asbestos.” 18 Third, with limitations not relevant here, the contract
specified that “[t]he Commission will furnish all materials to be incorporated
into the construction of the vessels,” including, presumably, asbestos
insulation. 19 Finally, Huntington presents a Maritime Commission health
inspection report indicating that in 1944 the Avondale yard was actually
constructing the N3-S-A1 cargo ship. 20 In short, as in Winters, the federal
government has given its contractor detailed, mandatory directions to use a
toxic compound and supervised its installation. Moreover, unlike Winters,
there is evidence that the federal government actually provided the harmful
material.
      The problem is that there is simply no evidence that Legendre was ever
in contact with these ships. While Wilde pleads that Legendre worked at
Avondale when federal ships were under construction, there is no direct
evidence in the record indicating that Legendre actually worked on or around
the N3-S-A1 ships that contained federally mandated asbestos.                  Nor does
Huntington actually plead that he did so. 21 Without any linkage between
Legendre and the vessels, Huntington cannot show a causal nexus between


      16   Contract, at 3, ECF No. 1-5. The agreement also stated that “[t]he Commission
shall furnish the Contractor a full set of working plans.” Id. at 6.
        17 Id. at 6.
        18 Specifications, at 104, ECF No. 1-3.
        19 Contract, at 18, ECF No. 1-5.
        20 Inspection Report, at 9, ECF No. 1-6.
        21 Huntington avers that the plaintiff provided Specification Sheets for federally

contracted vessels produced at Avondale. Notice of Removal, at 3, ECF No. 1. It never puts
forward evidence – or even pleads – that Legendre worked on these vessels or was exposed
to asbestos while in their environs.
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                                         No. 15-30476
any federal activity and his exposure to asbestos.                       Wilde’s exposure is
derivative to her father’s; in order for her have a “causal nexus” to federal
asbestos, he must have one as well. And because Huntington does not show
that he does, this claim fails.
                                                2.
       Next, we look to whether Huntington has established a “colorable federal
defense.”     Here, the defendant claims the government contractor defense,
which was set out as a form of federal common law by the Supreme Court in
Boyle v. United Technologies Corporation. 22 That defense limits liability 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.” 23
       Huntington focuses on whether it has a federal defense to Wilde’s strict
liability claims, and we agree that this is its strongest argument. 24 Under
then-governing Louisiana law, to make out a strict liability claim:
       [T]he plaintiff bore the burden of proving three elements: (1) that
       the thing which caused the damages was in the care, custody, and
       control (garde) of the defendant; (2) that the thing had a vice, ruin,
       or defect that presented an unreasonable risk of harm; and (3) that
       the vice, ruin, or defect was the cause-in-fact of the plaintiff's
       damages. 25
       In reviewing Wilde’s claims, the district court read her complaint to focus
on Avondale’s “control,” and concluded that the plaintiff focused on the


       22  487 U.S. 500 (1988).
       23  Id. at 512; see also Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 439 (5th Cir. 2000)
(applying Boyle to failure to warn claims); Williams v. Todd Shipyards Corp., 154 F.3d 416,
at *4 (5th Cir. 1998) (unpublished) (gross negligence).
        24 If removal is proper, the federal district court may be able to exercise supplemental

jurisdiction over Wilde’s other claims. See 28 U.S.C. § 1367(a).
        25 Comardelle v. Pa. Gen. Ins. Co., No. 13-6555, 2014 WL 6639550, at *2 (E.D. La. Nov.

21, 2014) (internal quotation marks omitted).
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company’s failure to use asbestos properly, rather than the fact that it used
asbestos at all:
       Plaintiff’s claims do not hinge on the fact that Avondale possessed
       asbestos, as the mere possession of asbestos did not allegedly cause
       Plaintiff’s injury, but Plaintiff rather claims that Avondale’s
       failure to properly handle the asbestos material caused her injury.
       In other words, Avondale’s failure to use the asbestos safely, and
       not the mere use of asbestos, gives rise to Plaintiff’s claims. 26
In her briefing papers, Wilde embraces this construction, and explicitly
disclaims the theory “that Avondale is liable simply because it had asbestos on
its property.” 27 Instead, she argues that Avondale “fail[ed] to use [asbestos]
safely.” This concession binds Wilde in this and future litigation. 28
       In Boyle, the Court was concerned with a situation where “the state-
imposed duty of care that is the asserted basis of the contractor’s liability . . .
is precisely contrary to the duty imposed by the Government contract.” 29 If the
basis for state liability is an act stemming from the defendant’s compliance
with “reasonably precise [government] specifications,” the contractor is not
liable. 30 By the same token, if the challenged conduct neither stems from nor
conflicts    with    government        contractual      requirements,       the    defense     is
inapplicable. 31



       26  Order, at 11, ECF No. 26.
       27  See Reply, at 3, ECF No. 16.
        28 See, e.g., Colonial Refrigerated Transp., Inc. v. Mitchell, 403 F.2d 541, 550 (5th Cir.

1968) (“Where a party has taken a position under oath in one judicial proceeding, he is
estopped to make a contrary assertion in a later proceeding.”). Courts regularly recognize
post-removal claim disclaimers in federal officer proceedings. See, e.g., Dougherty v. A O
Smith Corp., No. 13-1972, 2014 WL 3542243, at *9-16 (D. Del. July 16, 2014) (collecting
cases).
        29 Boyle v. United Technologies Corp., 487 U.S. 500, 509 (1988).
        30 Id. at 512.
        31 See In re Katrina Canal Breaches Litig., 620 F.3d 455, 465 (5th Cir. 2010) (“The

government contractor defense in Boyle, ‘stripped to its essentials,’ is fundamentally a claim
that ‘the Government made me do it.’”) (quoting In re Joint E. & S. Dist. N.Y. Asbestos Litig.,
897 F.2d 626, 632 (2d Cir. 1990) (brackets omitted)).
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       The government specifications at issue in the case, however, must be
“reasonably precise,” that is, they must “address, in reasonable detail, the
product design feature.” 32 Or, phrased differently, “[t]he requirement that the
specifications be precise means that the discretion over significant details and
all critical design choices will be exercised by the government.” 33 “[G]eneral
instructions” are not enough. 34 It is not necessary that the defendant provide
the full text of the actual specifications, but they must provide enough
information for us to determine whether they are legally sufficient. 35
       Huntington avers in its notice of removal that:
       The United States government also promulgated specific safety
       rules, regulations and requirements for shipbuilding.        This
       included the 1943 ‘Minimum Requirements for Safety and
       Industrial Health in Contract Shipyards,’ which was a publication
       of the U.S. Navy and Maritime Commission that set minimum
       standards pertaining to the use of asbestos in contract shipyards.
       Avondale was guided by and required to comply with these and
       other United States government safety regulations during Federal
       Vessel construction. 36
The problem is that Huntington does not attach any of these regulatory
materials to its notice of removal, nor does it describe in any detail their



       32  Id. at 461 (internal quotation marks omitted) (quoting Kerstetter v. Pac. Scientific
Co., 210 F.3d 431, 438 (5th Cir. 2000)).
        33 Trevino v. Gen. Dynamics Corp., 865 F.2d 1474, 1481 (5th Cir. 1989).
        34 In re Katrina, 620 F.3d at 464.
        35 See, e.g., Smith v. Xerox Corp., 866 F.2d 135, 138 (5th Cir. 1989) (company had

produced “reasonably specific” specifications when it provided “a listing of [the original
specifications for the product in question], as well as a copy of the original government
performance criteria dictating the environmental specifications the government wanted the
[product] to meet in terms of temperature, humidity, and salt resistance, and a production
contract furnished by [defendant] for a series of [products] containing specific reference to
government-approved specifications.”); see also Cuomo v. Crane Co., 771 F.3d 113, 116 (2d
Cir. 2014) (accepting as sufficient “several affidavits and numerous documentary exhibits
suggesting that . . . the Navy provided detailed specifications”); Ruppel v. CBS Corp., 701
F3.d 1176, 1184 (7th Cir. 2012) (accepting as sufficient affidavits of design manager and
“MilSpecs” manual).
        36 Notice of Removal, at 6-7, ECF No. 1.

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                                    No. 15-30476
relative requirements. As a result, we have no basis for determining how
precise or general these specifications actually are. Without that information,
necessary for Boyle’s first prong, we lack a basis for concluding that
Huntington is likely to establish even a colorable federal contractor defense.
      Without either a casual nexus or a strong showing of a colorable federal
contractor defense, Huntington cannot show a likelihood of success, and so we
need not address the other factors governing the issuance of a stay. 37
                                         III.
      We DENY Huntington’s motion for a stay pending appeal. We GRANT
Wilde’s motion to file a sur reply. We DENY AS MOOT Huntington’s motion
to expedite ruling on motion for stay pending appeal. We EXPEDITE the
appeal.
      We note that our conclusions are WITHOUT PREJUDICE to the
consideration of this appeal by a merits panel.
      Judge Jones would lean to grant the stay.




      37 See, e.g., La Union Del Pueblo Entero v. Fed. Emergency Mgm’t Agency, 608 F.3d
217, 225 (5th Cir. 2010).
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