U.S. District Court for the Eastern District of Louisiana

The plaintiff, Callen Cortez, alleged that he was exposed to asbestos during his employment at the Avondale Shipyards from 1969 to 1974, which included riding to and from work with other Avondale employees on a labor bus. Cortez was diagnosed with mesothelioma in June 2020, and field suit against numerous defendants, including Huntington Ingalls, Inc., the successor to Avondale, in the Civil District Court for the Parish of Orleans. Cortez’s complaint alleged failure-to-warn and other negligence claims against Avondale. During his discovery deposition, Cortez testified that he worked primarily at Avondale’s Westwego Yard and traveled to and from work on a labor bus with Avondale employees every day. He specifically recalled riding the bus with a gentleman who went by the name “Black Reulet.”

Avondale removed the case to federal court under the Federal Officer Removal Statute (2 U.S.C. § 1442). Avondale submitted evidence suggesting that “Black Reulet” was Pierre Helton Reulet, a ship fitter on three U.S. Coast Guard Cutters built at the Westwego Yard in 1970. In its notice of removal, Avondale argued that Cortez was therefore exposed to asbestos as a result of its contracts to build vessels on behalf of the United States, and as such, the Federal Officer Removal Statute entitled it to litigate the case in federal court. The plaintiff moved to remand the case back to state court.

With regard to the timeliness of Avondale’s removal, the court found that Avondale’s receipt of Cortez’s deposition transcript provided, for the first time, information suggesting that the matter was removable under the Federal Officer Removal Statute, and started the 30-day removal clock. That is, it was only after Cortez’s deposition that Avondale learned that he worked at Avondale’s Westwego Yard and rode to and from work with Reulet on the labor bus. As such, Avondale’s removal within 30 days of receiving Cortez’s deposition transcript was timely.

As to the substantive arguments on the Federal Office Removal, which requires a defendant to show the following: (1) that it has asserted a colorable federal defense; (2) that it is a “person” within the meaning of the statute; (3) that it has acted pursuant to a federal officer’s directions; and (4) that the charged conduct is connected or associated with an act pursuant to a federal officer’s directions, the court took each element in turn. First, the court held that Avondale had asserted a colorable federal defense to the failure-to-warn claim, given evidence submitted that the United States specified the subject work with asbestos-containing products, inspected such work, and that the government had sophisticated knowledge regarding the potential hazards of asbestos. Next, the court held plainly that Avondale was a “person” within the meaning of the Federal Officer statute, as numerous federal courts have so held. Third, the court found that Avondale had acted “pursuant to a federal officer’s directions” through evidence that the United States specified the use of asbestos on the three Cutters at the Westwego Yard, and that Avondale complied with federal law during Cortez’s employment. Finally, the court held that Avondale submitted sufficient evidence to show that its conduct was “connected to or associated with an act pursuant to a federal officer’s directions,” as the evidence submitted showed that at the time of Cortez’s employment, Avondale was building three U.S. Coast Guard Cutters at the Westwego Yard, and the federal government required Avondale to construct those vessels with asbestos-containing materials.

Noting that the Federal Officer Removal Statute must be liberally construed, the court therefore concluded that Avondale had satisfied the requirements of the statute, and therefore denied Cortez’s motion to remand the case to state court.