After years of inconsistent rulings, the Fifth Circuit is poised to address a removal issue with significant ramifications for Louisiana tort cases. The previous version of 28 U.S.C. § 1442 authorized removal to federal court of a suit against a federal officer “only when the state suit was ‘for any act under color of such office.’” The Fifth Circuit, interpreting this language, held that the removing party must show a causal connection between its actions and the plaintiff’s claims. The causal connection requirement demands more than “mere federal involvement[;] instead, the defendant must show that its actions taken pursuant to the government’s direction or control caused the plaintiff’s specific injuries.”
In 2011, Congress amended § 1442 to allow removal of a state suit against a federal officer “for or relating to any act under color of such office.” While the Third and Fourth Circuits shifted their jurisprudence to comply with this new language, the Fifth Circuit has not. Instead, it continues to apply the pre-amendment causal nexus test to post-amendment cases.
This outdated approach is a casualty of the Fifth Circuit’s “rule of orderliness.” Under that rule, a 3-member panel may not overturn a prior panel “absent an intervening change in law, such as by statutory amendment, or the Supreme Court, or the en banc Court.” With respect to federal officer removal, the first case to interpret the new statute was Bartel v. Alcoa Steamship Co. But rather than acknowledge the effect of the 2011 amendment, the Bartel court continued to apply pre-amendment jurisprudence. This meant that subsequent Fifth Circuit panels would be bound by Bartel.
Despite this bar, the Fifth Circuit has slowly chipped away at Bartel’s viability. In Zeringue v. Crane Company, the Fifth Circuit reaffirmed Bartel but recognized that the 2011 amendment broadened the scope of the statute. In Savoie v. Huntington Ingalls, Inc., the court denied en banc rehearing on procedural grounds but found there was a “colorable argument that, in regard to the negligence claims, this action is removable because of the 2011 statutory amendment . . . .” In Legendre v. Huntington Ingalls, Inc., the court—again constrained by Bartel—stated that “a revised approach may have merit.” The Court explained that “by adding ‘relating to,’ Congress preserved a nexus requirement, but it is unclear the relationship must be causal.”
Latiolais v. Huntington Ingalls, Inc. is the latest Fifth Circuit panel to be handcuffed by the rule of orderliness. This time, however, the court provided extensive commentary criticizing its current approach. The court ultimately affirmed remand “but in hopes that our precedents will be reordered.” Those precedents may finally be “reordered” when the Fifth Circuit rehears Latiolais en banc. Oral argument is set for the week of September 23, 2019.
Whatever the Fifth Circuit decides, the outcome will have a tremendous impact on Louisiana tort cases. For more information about this Article or related issues, please contact attorneys Sara Grace Sirera (ssirera@liskow.com), Philip Dore (pdore@liskow.com), or Scott Seiler (scseiler@liskow.com).
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