United States Court of Appeals

for the Fifth Circuit

No. 18-31159

Tarsia Williams; Breck Williams, 

Plaintiffs—Appellants,

versus

Taylor Seidenbach, Incorporated, 

Defendant—Appellee,

consolidated with

_____________

No. 18-31161

_____________

Tarsia Williams; Breck Williams, 

Plaintiffs—Appellants,

versus

McCarty Corporation, 

Defendant—Appellee.

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:9-CV-65

United States Court of Appeals

Fifth Circuit

FILED

February 26, 2021

Lyle W. Cayce

Clerk

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Before Haynes, Graves, and Duncan, Circuit Judges.

Per Curiam:*

Tarsia and Breck Williams (“Plaintiffs”), claim their father was killed 

by asbestos products sold and installed by Defendants McCarty Corporation 

(“McCarty”) and Taylor Seidenbach, Inc. (“TSI”). The district court 

granted Defendants summary judgment. We affirm.

I

Frank C. Williams worked as a mechanical engineer at the NASA 

Michoud Assembly Facility (“MAF”) in New Orleans from around 1974 to 

1993. See Williams v. Taylor-Seidenbach, Inc., 748 F. App’x 584, 585 (5th Cir. 

2018) (per curiam). The MAF comprises dozens of buildings across several 

hundred acres. Williams worked primarily in Building 350, but sometimes

worked in and visited other MAF buildings. Deteriorating asbestos was 

present in Building 350, and asbestos remediation occurred in that building

in the mid-1980’s.

In 2008, Williams was diagnosed with mesothelioma. That same year 

he sued multiple defendants, including McCarty and TSI, in Louisiana state 

court, asserting various tort claims. The suit was removed to the federal 

district court for the Eastern District of Louisiana, and then transferred by a 

multidistrict litigation panel to the Eastern District of Pennsylvania. See 

Williams, 748 F. App’x at 585. Williams died in 2009 and his children, Tarsia 

and Breck, were substituted as plaintiffs. In 2014, the district court granted 

Defendants’ motions for summary judgment. The court found no evidence 

Williams was exposed to respirable asbestos at the MAF. Even assuming he 

was, however, the court also found no evidence linking Williams’ exposure

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

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to Defendants’ products. The district court remanded the case back to the 

Eastern District of Louisiana. Williams, 748 F. App’x at 585. Plaintiffs 

appealed. Id. at 585–86.1

II

We must first address the jurisdictional question of whether the case 

was properly removed to federal court. See Golden v. N.J. Inst. of Tech., 934 

F.3d 302, 309 (3d Cir. 2019). Lockheed Martin (“Lockheed”), Williams’ 

employer, removed the case based on the “federal officer removal” provision 

of 28 U.S.C. § 1442(a)(1). See generally Latiolais v. Huntington Ingalls, Inc., 

951 F.3d 286, 290–91 (5th Cir. 2020) (en banc). The transferee district court 

in Pennsylvania twice denied remand to state court. The Eastern District of 

Louisiana later denied a third motion to remand. Plaintiffs argue that removal 

was improper and that the district court therefore lacked jurisdiction. We 

disagree.

The federal officer removal statute provides in relevant part that a

“civil action . . . commenced in a State court” against “any officer (or any 

person acting under that officer) of the United States” may be removed to 

federal court under certain circumstances. 28 U.S.C. § 1442(a)(1). Removal 

is proper if:

1 Panels of our court previously ruled they lacked appellate jurisdiction because 

Plaintiffs’ without-prejudice dismissal of certain defendants meant there was no final 

appealable judgment as to the remaining defendants. See Williams, 748 F. App’x at 587–

88; see also Williams v. Taylor-Seidenbach, Inc., 935 F.3d 358, 360 (5th Cir. 2019) (holding 

Rule 54(b) judgment did not cure lack of appellate jurisdiction), vacated on en banc reh’g, 

941 F.3d 1183 (5th Cir. 2019). Our en banc court has since ruled, however, that a subsequent 

Rule 54(b) judgment did create an appealable final judgment as to the remaining 

defendants. See Williams v. Taylor-Seidenbach, Inc., 958 F.3d 341, 349 (5th Cir. 2020) (en 

banc). We therefore have appellate jurisdiction. 

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(1) the defendant is a “person” within the meaning of the 

statute; (2) the plaintiff’s claims are based upon the 

defendant’s conduct “acting under” the United States, its 

agencies, or its officers; (3) the plaintiff’s claims against the 

defendant are “for, or relating to” an act under color of federal 

office; and (4) the defendant raises a colorable federal defense 

to the plaintiff’s claims.

Papp v. Fore-Kast Sales Co., 842 F.3d 805, 811 (3d Cir. 2016) (cleaned up); 

accord Latiolais, 951 F.3d at 296.

2 The parties dispute only the third and 

fourth factors. 

As to the third factor, it is “sufficient for there to be a connection or 

association between the act in question and the federal office.” Papp, 842 

F.3d at 813; Latiolais, 951 F.3d at 296. Here, this requirement is satisfied 

because the record shows that part of Plaintiffs’ case concerned alleged 

asbestos exposure from Williams’ work on “rockets” produced by Lockheed 

for NASA. Just before Lockheed removed the case, Williams testified that 

his work for Lockheed had involved “firing [rockets] up,” that these rockets 

contained asbestos, and that they had been built for NASA. Lockheed also

produced an affidavit attesting that its only product built at MAF for NASA 

was the Space Shuttle External Tank (ET) and detailing NASA’s oversight 

2 The transferee district court applied the precedents of its own circuit, the Third,

on this question of federal law. See United States ex rel. Hocket v. Columbia/HCA Healthcare 

Corp., 498 F. Supp. 2d 25, 40 (D.D.C. 2007) (“As a general rule, questions of federal law 

in MDL-transferred cases are governed by the law of the transferee circuit.”); In re Korean 

Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171, 1175–76 (D.C. Cir. 1987). After our en banc

decision in Latiolais, our circuit’s test for federal-officer removal and that of the Third 

Circuit coincide. See Latiolais, 951 F.3d at 292 (citing In re Commonwealth’s Mot. to Appoint 

Counsel Against or Directed to Defender Ass’n of Phila., 790 F.3d 457, 470–71 (3d Cir. 2015)). 

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of the project. That showed the required “connection or association between 

the acts complained of by [Plaintiffs] and the federal government.” Id.3

The fourth factor is satisfied because Lockheed adequately pled a 

colorable government contractor defense. See generally Boyle v. United Techs. 

Corp., 487 U.S. 500 (1988). While Plaintiffs argue that Lockheed failed to 

plead the defense’s requirement that “the United States approved 

reasonably precise specifications,” id. at 512, Lockheed has supported this 

element with an affidavit attesting to NASA’s detailed specifications for its 

fuel tanks. Plaintiffs argue that Lockheed would have to show the government 

specified that Lockheed use asbestos in the relevant products, and that 

Lockheed did so, but Plaintiffs construe this element of the defense too 

narrowly. See Papp, 842 F.3d at 814–815.

4 The case was therefore properly 

removed under 28 U.S.C. § 1442(a)(1). 

Federal jurisdiction over Plaintiffs’ claims against McCarty and TSI 

is supplemental to this federal-officer jurisdiction. See 28 U.S.C. § 1367.

“[R]emoval of the entire case is appropriate so long as a single claim satisfies 

the federal officer removal statute.” Savoie v. Huntington Ingalls, Inc., 817 

F.3d 457, 463 (5th Cir. 2016), overruled on other grounds by Latiolais, 951 F.3d 

at 291. Plaintiffs’ claims against the various defendants form a single 

controversy: a claim for damages from Williams’ death from mesothelioma, 

allegedly caused by asbestos exposure on the job. Furthermore, because 

Plaintiffs argue that no federal contractor work is at issue in this suit any 

3 Plaintiffs no longer make such a claim, but “when a defendant removes a case to 

federal court based on the presence of a federal claim, an amendment eliminating the 

original basis for federal jurisdiction generally does not defeat jurisdiction.” Rockwell Intern. 

Corp. v. United States, 549 U.S. 457, 474 n.6 (2007); see also Westmoreland Hosp. Ass’n v. 

Blue Cross of W. Pa., 605 F.2d 119, 123 (3d Cir. 1979). 

4 Lockheed has also asserted a colorable defense of derivative sovereign immunity, 

which we find unnecessary to address here. 

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longer, we review a district court’s determination to retain supplemental 

jurisdiction for abuse of discretion, looking to “considerations of judicial 

economy, convenience and fairnessto litigants.” Estate of Ware v. Hosp. of the 

Univ. of Pa., 871 F.3d 273, 286 (3d Cir. 2017). Plaintiffs do not specifically 

claim, and we do not find, any abuse of discretion in the district court’s 

decision. We thus proceed to the merits.

III

We review a summary judgment de novo. Salinas v. R.A. Rogers, Inc., 

952 F.3d 680, 682 (5th Cir. 2020). Summary judgment is proper if the 

movant shows he is entitled to judgment as a matter of law because there is 

no genuine dispute of material fact. FED. R. CIV. P. 56(a). Such a dispute 

“exists ‘if the evidence is such that a reasonable jury could return a verdict 

for the nonmoving party.’” Salinas, 952 F.3d at 682 (quoting Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). We may “affirm summary 

judgment on any grounds supported by the record and presented to the 

district court.” Id. (citation omitted).

IV

Plaintiffs argue the district court erred in granting summary judgment 

because a reasonable jury could conclude that Williams was exposed to 

asbestos products installed and supplied by McCarty and TSI. We first set 

out the causation standard required by Louisiana law. We then consider the 

evidence as to McCarty and TSI. Agreeing with the district court, we 

conclude that no evidence raises a genuine dispute that either Defendant’s 

products substantially contributed to Williams’ injury.5

5 Because we affirm on that basis, we need not consider the district court’s 

alternative conclusion that Williams was not exposed to respirable asbestos at the MAF.

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A

Under Louisiana law, a plaintiff claiming asbestos-related injury must 

prove “significant exposure to the product complained of to the extent that 

it was a substantial factor in bringing about his injury.” Rando v. Anco

Insulations Inc., 2008-1163, p. 35 (La. 9/4/09); 16 So. 3d 1065, 1091. Louisiana 

courts have applied this test to require evidence linking a plaintiff’s injury to 

a defendant’s asbestos-containing product.6 So, to defeat summary 

judgment, Plaintiffs must point to evidence creating a genuine dispute 

whether Williams was exposed to a product connected to either Defendant. 

Proof is sufficient “if defendants’ products are likely to be present at a 

specific location within the workplace,” because “plaintiffs are likely to have 

been exposed to the products if they worked near those specific locations, 

even without explicit testimony that the plaintiff worked near the specific 

product.” Slaughter v. Southern Talc Co., 949 F.2d 167, 172 (5th Cir. 1991)

(applying similar Texas law). For example, Plaintiffs might show 

“[D]efendants’ products were . . . installed randomly and evenly all over”

the MAF campus. Id. at 171. Even a photograph of products at the specific

worksite at the relevant time might do. Egan v. Kaiser Aluminum & Chem. 

Corp., 94-1939, p. 9 (La. App. 4 Cir. 5/22/96); 677 So. 2d 1027, 1034. But 

6 See, e.g., Vodanovich v. A.P. Green Indus., Inc., 2003-1079, p. 3 (La. App. 4 Cir. 

3/3/04); 869 So. 2d 930, 932–33 (requiring plaintiff to “show . . . that he was exposed to 

asbestos from the defendant’s products); Lucas v. Hopeman Bros., Inc., 2010-1037, p. 19

(La. App. 4 Cir. 2/16/11); 60 So. 3d 690, 702 (requiring evidence “specifically plac[ing] 

[the plaintiff] around asbestos fibers emanating from a product [Defendant] Reilly Benton 

sold and/or supplied to Avondale”); Thibodeaux v. Asbestos Corp., 2007-0617, p. 13 (La. 

App. 4 Cir. 2/20/08); 976 So. 2d 859, 867 (evidence failed to show decedent “was actually 

exposed to asbestos-containing products from Eagle while she was at Charity Hospital”); 

Grant v. Am. Sugar Ref., Inc., 2006-1180, p. 5 (La. App. 4 Cir. 1/31/07); 952 So. 2d 746, 749 

(noting “that in asbestos cases there is a need to show that the plaintiff was exposed to the 

defendant’s asbestos product”).

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some evidence must connect Defendants to asbestos where Williams was 

exposed. Otherwise, summary judgment was proper. 

Plaintiffs may rely on direct or circumstantial evidence. Rando, 16 So. 

3d at 1089. Circumstantial evidence “must exclude every other reasonable 

hypothesis with a fair amount of certainty,” but need not “negate all other 

possible causes.” Id. (cleaned up). Moreover, “a plaintiff’s burden of proof 

against multiple defendants in a long-latency case, such as a tort claim for 

mesothelioma, is not relaxed or reduced because of the degree of 

difficulty that might ensue in proving the contribution of each defendant’s 

product to the plaintiff’s injury.” Id. at 1091.

With these principles in mind, we ask whether the evidence raised a 

genuine dispute that either Defendant’s products were a substantial factor in 

bringing about Williams’ injury.

B

First, we consider McCarty. The district court concluded that,

assuming Williams was exposed to asbestos during the 80’s-era remediation 

in Building 350, “there is no evidence that any asbestos was manufactured, 

sold, or supplied (i.e., installed) by [McCarty].” Plaintiffs dispute this, 

pointing to evidence which, they claim, suggests McCarty’s products were 

present where Williams worked, especially in Building 350. We disagree. 

Plaintiffs’ main evidence is this late-1960’s7 advertising brochure

from McCarty:

7

In district court, Plaintiffs asserted the brochure dated to 1968 or 1969, because it 

described as “newly completed” the New Orleans International Trade Mart, finished in 

1968. Defendants do not dispute this. 

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The brochure lists over thirty “commercial insulation” projects “for which 

The McCarty Corporation was the thermal insulation contractor.” One 

project was “NASA Michoud Operation, New Orleans.” The next page 

notes McCarty “is fully equipped for spray insulation,” although it does not 

specify which listed projects, if any, involved spray insulation. According to 

Plaintiffs, this brochure, by identifying McCarty as MAF’s “thermal 

insulation contractor,” sufficiently ties McCarty to Williams’ exposure.

We disagree. The brochure does not reveal enough about McCarty’s 

work at the MAF to create a genuine fact dispute. It establishes only that 

McCarty supplied MAF with insulation, in some form, in the years leading 

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up to 1968, but that leaves a critical evidentiary gap unfilled. The brochure 

does not show that McCarty supplied insulation in Building 350 (where 

Williams generally worked) or 351 (where he often ate lunch) or in any other 

building Williams may have visited.

8 Nor does it suggest that McCarty 

products could be found “randomly and evenly all over” the MAF. 

Slaughter, 949 F.2d at 171. Consequently, far from “exclud[ing] every other 

reasonable hypothesis with a fair amount of certainty,” Rando, 16 So.3d at 

1089, the brochure leaves a key point untouched. No reasonable jury could 

conclude merely from the brochure that McCarty supplied asbestos products 

to Building 350 or any other building Williams regularly visited. 

No other evidence brings Plaintiffs any closer to meeting their burden. 

For instance, Plaintiffs reference two building surveys from 1984 and 1997

showing that asbestos materials were discovered in Building 350 and 

elsewhere at MAF, but those documents do not link the materials to

McCarty. Similarly, deposition testimony by Williams and his former coworker George Stemley, also refers to asbestos in Building 350 but says

nothing about its origin.

9

Plaintiffs’ reply brief refers in passing to other evidence they say 

implicates McCarty. Even assuming these arguments are not waived, Dixon 

8

In opposing summary judgment, Plaintiffs argued that Building 350 was itself the 

“Operations” building at MAF, and that the McCarty brochure therefore refers to this 

building specifically, not to MAF generally. On appeal, Plaintiffs do not make this argument 

and have therefore waived it. Sindhi v. Raina, 905 F.3d 327, 334 (5th Cir. 2018). Moreover, 

in the district court, they cited no evidence suggesting “Michoud Operations” referred 

specifically to Building 350. 

9 Plaintiffs suggest that the district court’s order “recognized” McCarty installed 

its products in Building 350, but that is inaccurate. The quoted passage appears to be the 

court’s summary of Plaintiffs’ own arguments. The court went on to clarify that “there is 

no evidence that any asbestos [to which Williams may have been exposed] was 

manufactured, sold, or supplied (i.e., installed) by [McCarty].” (emphasis added).

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v. Toyota Motor Credit Corp., 794 F.3d 507, 508 (5th Cir. 2015), none of this 

evidence helps Plaintiffs. For instance, Plaintiffs mention expert Frank 

Parker, whose affidavit asserted that both McCarty and TSI were responsible 

for Williams’s exposure. But that affidavit was based, not on evidence of 

Defendants’ activities, but only on Parker’s “knowledge of the insulation 

sellers and installers and workers of various companies who regularly did 

insulation work in the New Orleans metropolitan area.” Moreover, at an

earlier deposition, Parker testified he had seen no evidence that McCarty 

supplied asbestos products to Williams’s worksite.10 Plaintiffs also reference

documents produced about McCarty’s MAF work circa 1964, but those do 

not specify where the work occurred or what materials were used. The same 

is true for M.R. McCarty’s deposition, taken in 1980, which does not even 

mention any work done by the company at MAF.

In sum, Plaintiffs have failed to identify any record evidence creating 

a genuine dispute that McCarty’s products substantially contributed to

Williams’ injury. We therefore affirm the summary judgment on that basis. 

C

Second, we consider TSI. As Defendants correctly point out, 

Plaintiffs fail to identify any evidence suggesting that TSI was connected to 

asbestos that harmed Williams. “Mere assertion” of TSI’s connection to 

Williams’ injury “is insufficient to survive summary judgment.” Lawrence v. 

Fed. Home Loan Mortg. Corp., 808 F.3d 670, 674 (5th Cir. 2015).

Plaintiffs again rely on the 1980 deposition of M.R. McCarty, who 

testified that McCarty sometimes used TSI products when supply from 

10 The district court did not consider Parker’s affidavit as evidence of a connection 

to McCarty, likely because it contradicted Parker’s prior statements. See Winzer v. 

Kaufman Cty., 916 F.3d 464, 472 (5th Cir. 2019). 

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Johns-Manville, its principle source, ran out. But even assuming McCarty’s

products could be placed at Williams’ worksite (and, as explained, the 

evidence fails to support that), Plaintiffs would still have to show a triable 

issue as to whether McCarty used TSI’s products there. The deposition 

testimony fails to do so.

***

The judgment of the district court is AFFIRMED.

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