      Case: 15-30004          Document: 00513237414        Page: 1   Date Filed: 10/19/2015




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

                                                                                 FILED
                                                                             October 19, 2015
                                            No. 15-30004
                                                                              Lyle W. Cayce
                                                                                   Clerk
WILLIAM E. BARTEL, as personal representative of the Estate of Silas B.
Bishop,

                 Plaintiff - Appellee

v.

ALCOA STEAMSHIP COMPANY, INCORPORATED; CENTRAL GULF
LINES, INCORPORATED; CENTRAL GULF STEAMSHIP CORPORATION;
CROWLEY MARINE SERVICES, INCORPORATED, Successor by Merger
Delta Steamship Lines, Incorporated, formerly known as Mississippi
Shipping Company; DELTA STEAMSHIP LINES, INCORPORATED;
EMPIRE TRANSPORT, INCORPORATED; FARRELL LINES,
INCORPORATED, formerly known as American South African Lines;
JAMES RIVER TRANSPORT, INCORPORATED; CHAS. KURZ &
COMPANY, individually and/or as Successor-in-Interest Keystone Shipping
Company, Successor-in-Interest Keystone Tankship Corporation; MARINE
NAVIGATION COMPANY; CROWLEY MARITIME CORPORATION,
individually and/or as Successor-in-Interest Marine Transport Lines,
Incorporated; MATSON NAVIGATION COMPANY, INCORPORATED;
NATIONAL BULK CARRIERS, INCORPORATED; OGDEN LEADER
STRANSPORT, INCORPORATED; PAN ATLANTIC STEAMSHIP
COMPANY; SEA-LAND SERVICE, INCORPORATED; WABASH
TRANSPORT, INCORPORATED; WATERMAN STEAMSHIP
CORPORATION; MARINE TRANSPORT LINES, INCORPORATED;
KEYSTONE SHIPPING COMPANY; CENTRAL GULF LINES,
INCORPORATED, individually and/or as Successor-in-Interest Central Gulf
Steamship Corporation,

                 Defendants - Appellants

-------------------------------------------------
Cons w/15-30005
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                         No. 15-30004 c/w 15-30005 c/w 15-30032


WILLIAM E. BARTEL, As personal representative on behalf of Estate of
Joseph L. Dennis,

                 Plaintiff - Appellee

v.

AMERICAN EXPORT ISBRANTSEN; FARRELL LINES, INCORPORATED,
on its own behalf and, formerly known as American South African Lines,
Successor-in-Interest American Export Lines, Incorporated formerly known
as American Isbrandtsen Lines, Incorporated, incorrectly named American
Export Isbrandsten; AMERICAN EXPORT LINES, INCORPORATED;
AMERICAN TRADING & PRODUCTION CORPORATION; AMERICAN
TRADING TRANSPORTATION COMPANY; CENTRAL GULF LINES,
INCORPORATED, Individually and/or Successor-in-Interest Central Gulf
Steamship Corporation; CHAS. KURZ ; COMPANY, Individually and/or
Successor-in-Interest Keystone Shipping Company Successor-in-Interest
Keystone Tankship Corporation; FARRELL LINES, INCORPORATED;
TRINIDAD CORPORATION,


                 Defendants - Appellants

-------------------------------------------------
Cons w/15-30032

LAWRENCE CRAIG,

                 Plaintiff - Appellee

v.

RIO GRANDE TRANSPORT, INCORPORATED; SEA-LAND SERVICE,
INCORPORATED; WATERMAN STEAMSHIP CORPORATION,

                 Defendants - Appellants




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                      No. 15-30004 c/w 15-30005 c/w 15-30032
                  Appeals from the United States District Court
                      for the Middle District of Louisiana


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
REAVLEY, Circuit Judge:
       This consolidated action involves claims arising from the plaintiffs’
alleged exposure to asbestos aboard vessels operated or owned by the various
defendants. We must determine whether the cases, originally filed in state
court, properly belong in federal court.
       Plaintiffs Silas B. Bishop, Joseph L. Dennis, and Lawrence R. Craig
worked for decades as merchant mariners aboard many different vessels and
for many different employers. With their respective lawsuits, each alleges that
he was exposed to asbestos over the course of his service and suffered serious
disease or death as a result. 1 The plaintiffs sued their former employers in
Louisiana state court under the Jones Act and general maritime law
(unseaworthiness). They alleged that their injuries were attributable to the
employers’ failure 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.            While all three plaintiffs served on
various vessels during their careers, each of them served on at least one United
States Naval Ship. United States Naval Ships are owned by the Navy but
operated by civilian contractors. Here, Navy-owned vessels aboard which the
plaintiffs worked were operated by defendants Mathiasen Tanker Industry,
Incorporated, American President Lines Limited, and American Overseas
Marine Corporation (the “Federal Officer Defendants”). 2


       1 Bishop and Dennis are deceased, and their estates are represented by William E.
Bartel, the named party.
       2 These Federal Officer Defendants have since been dismissed from the action. While

the claims against them gave rise to potential removability we now consider, our analysis is
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                      No. 15-30004 c/w 15-30005 c/w 15-30032
       The defendants argue that removal was warranted under the Federal
Officer Removal Statute, 28 U.S.C. §1442(a)(1). Under this statute, an action
“against or directed to . . . 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” may be removed
to federal court. 28 U.S.C. § 1442(a)(1). To qualify for removal, defendants
must show that they are “persons” within the meaning of the statute, “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.” Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387,
398–400 (5th Cir. 1998). Additionally, they must assert a “‘colorable federal
defense.’” Id. at 400. The defendant bears the burden of making this showing,
and we review the district court’s determination de novo. Id. at 397.
       It is undisputed that defendants, as corporate entities, qualify as
“persons” within the meaning of the Federal Officer Removal Statute. See
Winters, 149 F.3d at 398. For removal to be proper, it is necessary but not
sufficient for a defendant to show it “acted pursuant to a federal officer’s
directions.” Winters, 149 F.3d at 398. The defendant must also show “that a
causal nexus exists between the defendants’ actions under color of federal office
and the plaintiff’s claims.” Id.
       Here, defendants argue that the Federal Officer Defendants acted
pursuant to a federal authority “when they contracted with the United States




unaffected by the dismissals. “To determine whether jurisdiction is present for removal, we
consider the claims in the state court petition as they existed at the time of removal.”
Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723 (5th Cir. 2002). Moreover,
“elimination of the federal officer from a removed case does not oust the district court of
jurisdiction.” IMFC Prof’l Svcs. of Florida, Inc. v. Latin Am. Home Health, Inc., 676 F.2d 152,
159 (5th Cir. Unit B 1982). Our analysis proceeds as if the Federal Officer Defendants had
not been dismissed.
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                     No. 15-30004 c/w 15-30005 c/w 15-30032
Navy to operate and crew Navy ships with civilians.” (Blue at 13.) And, they
argue that this same fact also establishes a causal nexus exists between the
plaintiff’s injuries and the defendants’ actions under color of office. To support
these arguments, they provide a contract governing the relationship between
the federal government and one Federal Officer Defendant, Mathiasen Tanker
Industry, Incorporated. They also provide evidence that vessels operated by
the remaining Federal Officer Defendants were Navy-owned.
      The defendants’ argument collapses the inquiry from two steps to one.
That is, they believe the Navy’s mere ownership and theoretical control of the
vessels provides an adequate “causal nexus” between the Federal Officer
Defendants’ actions and the plaintiffs’ claims.      Inasmuch as the plaintiffs
allege injuries arising from the intrinsic attributes of the ships, as delivered to
the Federal Officer Defendants, defendants could have argued that mere
operation of the ships supplies an adequate causal nexus. That is to say, if
mere operation of intrinsically dangerous (unseaworthy) vessels caused
injuries for which the Federal Officer Defendants may be liable, then that same
mere operation may provide a causal nexus supporting removal. It is therefore
important to understand the nature of the plaintiffs’ allegations. As mentioned
already, the plaintiffs’ complaints are primarily concerned with failure to
warn, failure to train, and failure to adopt procedures for the safe installation
and removal of asbestos. These allegations are not concerned so much with
vessel design as they are with vessel operation. At oral argument, however,
the defendants argued the plaintiffs’ allegations of unseaworthiness are
broader and encompass the intrinsically unsafe nature of the vessels. We first
address those claims concerned with the defendants’ acts and omissions—the
“failure to warn claims.” We then turn to the claims concerned with the
intrinsic   dangers    posed    by   mere    operation      of   the   vessels—the
“unseaworthiness claims.”
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                     No. 15-30004 c/w 15-30005 c/w 15-30032
      In adopting the magistrate judge’s report and recommendation, the
district court found that defendants failed to establish an adequate causal link
because plaintiffs’ claims were “analogous” to “failure to warn cases” where the
government owns a work space infected with asbestos and the civilian
contractor operating the facility fails to warn of the danger or otherwise
mitigate the risk. See Bartel v. Alcoa Steamship Co., 64 F.Supp.3d 843, 855
(M.D. La. 2014) (collecting cases). In their briefing, the defendants directly
attacked this reasoning, relying extensively on an unpublished 1998
magistrate judge’s ruling, Lalonde v. Delta Field Erection.       See Case No.
CIV.A.96-3244-B-M3, 1998 WL 34301466, at *1 (M.D. La. Aug. 6, 1998). That
case, however, is distinguishable and cuts squarely against the defendants.
      Like this case, Lalonde involved allegations of failure to warn, supervise,
and make safe. See id. at *1. There, however:
      The federal government imposed numerous safety requirements at
      the facility, such as the wearing of protective equipment. The
      United States required that safety meetings be held in each
      department on a monthly basis, and, in addition, required plant-
      wide safety meetings be held on a monthly basis. The government
      dictated the topics of these meetings. In summary, [the defendant]
      operated a federal government-owned facility, exclusively for the
      government, under the oversight and ultimate control of officers of
      the federal government.
Id. at *3 (emphases added).
      Thus, not only did the federal government own the facility, it exercised
direct and continuing oversight of its operations, including safety briefings and
practices. If there were any failure to warn in Lalonde, the failure was caused
by the government’s instructions.
      This approach is proper. For example, in Winters, where the defoliator
Agent Orange allegedly caused terminal cancer in the plaintiff, we asked
“whether the government specified the composition of Agent Orange so as to
supply the causal nexus between the federal officer’s directions and the
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                      No. 15-30004 c/w 15-30005 c/w 15-30032
plaintiff’s claims.” 149 F.3d at 398. After surveying a considerable evidentiary
record, we concluded “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” established that the defendants there “acted
pursuant to federal direction and that a direct causal nexus exist[ed] between
the defendants’ actions taken under color of federal office and [the plaintiff’s]
claims.” Id. at 400 (emphases added).
       Here, the defendants can do no better than to show that the federal
government owned the vessels in question. Even with respect to the Federal
Officer Defendant that produced its contract with the government, Mathiasen
Tanker Industry, Incorporated, there is no evidence showing that the
government actually exercised continuing oversight over operations aboard
ship. The contract provides that, in the absence of specific orders from the
Navy, the vessel was to be operated “according to accepted commercial
practices.” There is no evidence that the government ever issued orders of any
kind, let alone orders relating to safety procedures or asbestos. What little
evidence there is suggests the Federal Officer Defendants operated the vessels
in a largely independent fashion and, at a minimum, were free to adopt the
safety measures the plaintiffs now allege would have prevented their injuries.
Upon this ground the district court found remand proper. We agree. 3




       3 Defendants argue that requiring evidence like contracts or orders “places an
unreasonable burden on the Federal Officer Defendants and ignores the fact that it ha[s]
been more than twenty years since Plaintiffs-Appellees’ [sic] sailed on board these vessels
and almost fifty years since some of the pertinent contracts were originally executed.” While
the defendants may find it inconvenient and difficult to locate evidence relating to events
that occurred decades ago, that difficulty does not affect the burden of proof or permit us to
guess that the evidence, if it were produced, would favor the defendants.
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                     No. 15-30004 c/w 15-30005 c/w 15-30032
      At oral argument, the defendants introduced a new theory. Defendants
faulted the district court and the magistrate judge for analyzing the plaintiffs’
respective cases as failure-to-warn cases and overlooking the general
unseaworthiness claims—i.e., claims that the work environment was
intrinsically unsafe. Counsel for defendants labelled this supposed error a
“very important point” and “a major point of our complaints about what the
magistrate judge did.” When asked if this argument had been made in either
the initial opposition to plaintiffs’ motions to remand or in the subsequent
objections to the magistrate judge’s report and and recommendation, counsel
for the defendants weakly offered that it “was mentioned in there.” We have
reviewed the oppositions and objections.        The argument was never made.
Moreover, the argument cannot be gleaned from the defendants’ appellate
briefs.
      Absent “extraordinary circumstances,” we will not consider an argument
raised for the first time on appeal. N. Alamo Water Supply Corp. v. City of San
Juan, Tex., 90 F.3d 910, 916 (5th Cir. 1996). Further, “we do not generally
consider points raised for the first time at oral argument.” Whitehead v. Food
Max of Mississippi, Inc., 163 F.3d 265, 270 (5th Cir. 1998). There are no
extraordinary circumstances here. See N. Alamo Water Supply Corp., 90 F.3d
at 916 (“Extraordinary circumstances exist when the issue involved is a pure
question of law and a miscarriage of justice would result from our failure to
consider it.”). No miscarriage of justice will result if plaintiffs’ claims are heard
in state court rather than federal court. Without the benefit of adversarial
briefing and trial court consideration, we decline the defendants’ belated
invitation to greatly expand the scope of federal officer removal jurisdiction in
cases involving USNS vessels.        We express no view on the merits of the
argument.


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                     No. 15-30004 c/w 15-30005 c/w 15-30032
      Because defendants did not establish the necessary causal nexus
between their actions and the plaintiffs’ claims, we need not decide whether
the defendants have asserted a colorable federal defense. Likewise, we need
not address plaintiffs’ additional arguments in favor of remand.
      AFFIRMED.




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