Sherrie Baker v. EI du Pont de Nemours and Comp

In the

United States Court of Appeals

For the Seventh Circuit

____________________

Nos. 19-3159 & 19-3160

SHERRIE BAKER, et al.,

Plaintiffs-Appellees,

v.

ATLANTIC RICHFIELD COMPANY,

E. I. DU PONT DE NEMOURS AND COMPANY, et al.,

Defendants-Appellants.

____________________

Appeals from the United States District Court for the

Northern District of Indiana, Hammond Division.

No. 2:17-cv-00429 — Joseph S. Van Bokkelen, Judge.

____________________

ARGUED JUNE 2, 2020 — DECIDED JUNE 18, 2020

____________________

Before FLAUM, KANNE, and BRENNAN, Circuit Judges.

FLAUM, Circuit Judge. Former residents of the West Calu-

met Housing Complex sued nine industrial manufacturing

companies in Indiana state court. The residents allege that, for

most of the twentieth century, each company directly or

through a predecessor corporate entity polluted the soil in

2 Nos. 19-3159 & 19-3160

and around the site of their later-built residence. Specifically,

the residents claim that the companies’ operations at these fa-

cilities contaminated the property with “lead, arsenic and

likely other substances.”

Several companies removed the case to federal court un-

der 28 U.S.C. § 1442(a)(1), asserting their right to a federal fo-

rum because the case relates to their acts under color of fed-

eral office. During World War II, the companies argue, the

United States government directed them to produce certain

materials for the military, supervised distribution of these

goods, and controlled their ultimate usage. The residents dis-

agreed and moved to remand the case back to state court. The

district court granted that motion, holding in principle that

the companies acted under color of federal office for only a

portion of the time period covered by the residents’ claims.

We reverse.

I. Background

From 1906 to approximately 1970, the defendants-appel-

lants Atlantic Richfield Company, BP West Coast Products

LLC, E. I. du Pont de Nemours and Company, and The

Chemours Company (collectively, “the Companies”), their

predecessors, and a handful of other entities manufactured

certain industrial materials at the U.S. Smelter and Lead Re-

finery, Inc. Superfund Site in East Chicago, Indiana. In the

1970s, the East Chicago Housing Authority constructed the

West Calumet Housing Complex, a low-income residential

building, on the same site.

In September 2017, former West Calumet tenants sued the

Companies as the successors in interest to International

Nos. 19-3159 & 19-3160 3

Smelting and Refining Company (ISR), Anaconda Lead Prod-

ucts Company, International Lead Refining Company, Inter-

national Smelting Company, and other entities in Indiana

state court alleging that they had polluted the soil at and

around their modern-day building, exposing the residents to

hazardous substances like lead and arsenic. Specifically, the

resident-plaintiffs (“the Residents”) claimed Atlantic Rich-

field tortiously contaminated the land between 1938 and 1965,

and that E. I. du Pont de Nemours and Company and The

Chemours Company (together, “DuPont”) did so from 1910

to 1949.

In November 2017, Atlantic Richfield removed the case to

federal court under 28 U.S.C. § 1442(a)(1), asserting that it was

entitled to a government contractor defense. In support of its

notice, Atlantic Richfield contended that its predecessor, ISR,

operated a lead refinery, white lead carbonate plant, and zinc

oxide plant near the site of the modern-day West Calumet

Housing Complex during World War II. At that time, the fed-

eral government thoroughly regulated the use of lead and

zinc, which ISR sold to entities who were under contract with

the government to produce the goods for the military. More

importantly, ISR itself held five contracts with the United

States Army worth $837,000 (today, approximately $12 mil-

lion) in sales of zinc oxide.

The materials made by ISR—white lead carbonate, zinc

oxide, and lead—were critical wartime commodities because

they were necessary to make essential military and civilian

goods. Given their critical nature, the United States required

ISR to manufacture the zinc oxide, white lead carbonate, and

lead produced at the East Chicago site according to detailed

federal specifications. Certain regulations also mandated that

4 Nos. 19-3159 & 19-3160

ISR prioritize its sales to rubber and paint companies holding

defense contracts (setting aside the predetermined quantities

for the federal government), which effectively prevented ISR

from selling its products to distributors for civilian applica-

tions. Indeed, at one point, conservation orders severely re-

stricted the amount of white lead in paint, and as a result, re-

duced ISR’s sales. Similarly, the government either restricted

or prohibited the use of zinc to manufacture most civilian

products. Other forms of federal oversight included price

control, with violations punishable by criminal prosecution

and the denial of further supplies. In sum, the government

directed nearly every aspect of ISR’s production process at the

site.

On the same day Atlantic Richfield filed its notice of re-

moval, DuPont joined its codefendant and filed a supple-

mental notice. DuPont asserted that the United States govern-

ment directed it to build a facility for the government and

then lease it from the government to produce Freon-12 and

hydrochloric acid (a byproduct of Freon-12) solely for the

government. DuPont’s manufacture of Freon-12 resulted in

waste streams containing lead and arsenic. Additionally,

DuPont received five shipments of surplus lead from the mil-

itary following the war in September 1945, April 1946, Octo-

ber 1946, and December 1946. The government closely con-

trolled the plant’s operation, approving the plans, designs,

and schedules for manufacturing. It even assigned a supervis-

ing engineer and other support staff to oversee the activities

on site.

The Residents moved to remand the case back to state

court in December 2017. The district court granted that mo-

tion, concluding that the Companies had only acted under

Nos. 19-3159 & 19-3160 5

color of federal office for a small part of the alleged time pe-

riod at issue. Put differently, the court found removal im-

proper because most of the Companies’ government business

occurred outside the relevant time frame. The court further

reasoned that Atlantic Richfield was under no obligation to

comply with industrywide regulations, and regardless, was

merely a supplier. As to DuPont, the court determined that

the Residents were not suing DuPont over its Freon-12 pro-

duction, citing the Residents’ statement in their complaint

that “[t]his action does not pertain to DuPont’s manufacture

and production of Freon-12 and the byproduct of hydrochlo-

ric acid.”

These timely appeals followed.

II. Discussion

“We review subject-matter jurisdiction and the propriety

of the removal of a state-court action de novo. The party seek-

ing removal bears the burden of establishing federal jurisdic-

tion.… [T]he Supreme Court has made clear that courts must

liberally construe § 1442(a).” Betzner v. Boeing Co., 910 F.3d

1010, 1014 (7th Cir. 2018) (citations omitted). We therefore

evaluate the Companies’ allegations in support of removal

under the federal pleading standards, asking whether they

are facially plausible. See id. at 1016.

Federal officer removal is appropriate when “the defend-

ant (1) is a person within the meaning of the statute, (2) is act-

ing under the United States, its agencies, or its officers, (3) is

acting under color of federal authority, and (4) has a colorable

federal defense.” Id. at 1015. Recognizing our precedent on

the matter, the Residents do not dispute that the Companies

are persons under § 1442(a). See Ruppel v. CBS Corp., 701 F.3d

6 Nos. 19-3159 & 19-3160

1176, 1181 (7th Cir. 2012) (holding that corporations are per-

sons within the meaning of the federal officer removal stat-

ute). Instead, the Residents focus on the Companies’ pur-

ported failure to establish the third and fourth criteria and as-

sert that Atlantic Richfield specifically does not meet the sec-

ond criterion. We begin with the latter.

Acting Under the Federal Government

The Residents contend that Atlantic Richfield must show

substantially more than its wartime operation of a plant in a

highly regulated industry to establish it acted under federal

authority. They insist that most of the conduct Atlantic Rich-

field relies on to support removal is nothing more than its ad-

herence to regulations that applied to all market participants.

The crux of the inquiry under this element, however, is

whether there was a special relationship between the defend-

ant and the federal government. That the federal government

may have had special relationships with other private entities

because it was fighting a war is irrelevant.

“The relevant relationship,” the Supreme Court has re-

minded us, “is that of a private person ‘acting under’ a federal

‘officer’ or ‘agency.’” Watson v. Philip Morris Cos., Inc., 551 U.S.

142, 151 (2007) (quoting § 1442(a)(1)). Typically, “[t]hat rela-

tionship … involves subjection, guidance, or control. In addi-

tion, precedent and statutory purpose make clear that the pri-

vate person’s ‘acting under’ must involve an effort to assist, or

to help carry out, the duties or tasks of the federal superior.”

Id. at 151–52 (citations and internal quotation marks omitted).

But “the help or assistance necessary to bring a private

person within the scope of the statute does not include simply

Nos. 19-3159 & 19-3160 7

complying with the law.” Id. at 152. In Watson, the Supreme

Court explained that

a highly regulated firm cannot find a statutory

basis for removal in the fact of federal regula-

tion alone. A private firm’s compliance (or non-

compliance) with federal laws, rules, and regu-

lations does not by itself fall within the scope of

the statutory phrase “acting under” a federal

“official.” And that is so even if the regulation is

highly detailed and even if the private firm’s ac-

tivities are highly supervised and monitored.

Id. at 153.

Notwithstanding that explanation, where a private con-

tractor helps “the Government to produce an item that it

needs[,] [t]he assistance that private contractors provide fed-

eral officers goes beyond simple compliance with the law and

helps officers fulfill other basic governmental tasks.”1 Id. To

illustrate its point, the Supreme Court cited with approval

Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir.

1 The district court held that “mere assistance, in the absence of a legal

duty to render such aid, does not bestow § 1442 jurisdiction.” Like the Sec-

ond Circuit, we “find no authority for the suggestion that a voluntary re-

lationship somehow voids the application of the removal statute.” Isaacson

v. Dow Chem. Co., 517 F.3d 129, 138 (2d Cir. 2008); see also In re Common-

wealth's Motion to Appoint Counsel Against or Directed to Def. Ass'n of Phila-

delphia, 790 F.3d 457, 473 (3d Cir. 2015) (“What matters is that a defense

raises a federal question, not that a federal duty forms the defense. True,

many removal cases involve defenses based on a federal duty to act, or the

lack of such a duty. But the fact that duty-based defenses are the most

common defenses does not make them the only permissible ones.”) (cita-

tion omitted).

8 Nos. 19-3159 & 19-3160

1998). The key circumstance in that case, which distinguished

it from others with close supervision and detailed regulation,

was that the private firm had “fulfilled the terms of a contrac-

tual agreement by providing the Government with a product

that it used to help conduct a war.” Watson, 551 U.S. at 153–

54. “Moreover,” the Court reasoned, the company “per-

formed a job that, in the absence of a contract with a private

firm, the Government itself would have had to perform.” Id.

at 154.

The same wartime context applies here. Atlantic Richfield

(really, its predecessor ISR) provided the federal government

with materials that it needed to stay in the fight at home and

abroad—namely, lead, zinc oxide, and white lead carbonate,

used in turn to manufacture products like rubber, paint, am-

munition, die casts, and galvanized steel. In fact, ISR was un-

der contract with the United States military itself for the pro-

curement of zinc oxide. Without the aid of ISR, the govern-

ment would have had to manufacture the relevant items on

its own. For these reasons, this is not simply a case of compli-

ance, but assistance.

To put it in the terms of our precedent, this appeal in-

volves Atlantic Richfield “working hand-in-hand with the

federal government to achieve a task that furthers an end of

the federal government.” Ruppel, 701 F.3d at 1181; see also id.

(“‘Acting under’ covers situations, like this one, where the

federal government uses a private corporation to achieve an

end it would have otherwise used its own agents to com-

plete.”); Panther Brands, LLC v. Indy Racing League, LLC, 827

Nos. 19-3159 & 19-3160 9

F.3d 586, 590 (7th Cir. 2016) (referring to the required relation-

ship as “closely monitored and highly regulated”).2 The gov-

ernment’s detailed specifications for the makeup of ISR’s ma-

terials, “the compulsion to provide the product to the govern-

ment’s specifications,” and the continuous federal supervi-

sion all reveal the necessary relationship between ISR and the

government. Winters, 149 F.3d at 400. Accordingly, Atlantic

Richfield acted under federal authority.

Acts for or Relating to Federal Authority

The question, then, is whether the polluting conduct the

Residents complain of relates to the federal directives the

Companies acted under. As we have previously noted, “this

requirement is distinct from the ‘acting under’ requirement in

the same way a bona fide federal officer could not remove a

trespass suit that occurred while he was taking out the gar-

bage—there must be a ‘causal connection between the

charged conduct and asserted official authority.’” Ruppel, 701

F.3d at 1181 (quoting Jefferson Cty., Ala. v. Acker, 527 U.S. 423,

431 (1999)).

The Residents maintain that the Companies did not show

a causal connection between their actions and federal man-

dates. Specifically, the Residents contend that the Companies

have not shown that the Residents’ injuries were caused by

2 Contrary to the Residents’ claims, our caselaw conforms with our

sister circuits’. See Isaacson, 517 F.3d at 136–37 (observing that “close su-

pervision of the private entity by the Government” may demonstrate that

the entity is assisting the government); see also Sawyer v. Foster Wheeler LLC,

860 F.3d 249, 255 (4th Cir. 2017) (“[C]ourts have unhesitatingly treated the

‘acting under’ requirement as satisfied where a contractor seeks to remove

a case involving injuries arising from equipment that it manufactured for

the government.”).

10 Nos. 19-3159 & 19-3160

their wartime production for the government. The Residents,

however, make the mistake of “demanding an airtight case on

the merits in order to show the required causal connection.”

Acker, 527 U.S. at 432. The Supreme Court’s jurisprudence

teaches that the policy in favor of federal officer removal

“should not be frustrated by a narrow, grudging interpreta-

tion of § 1442(a)(1).” Willingham v. Morgan, 395 U.S. 402, 407

(1969). Imposing the Residents’ unduly strict standard of cau-

sation would do just that.

Before 2011, removing defendants “were required to

demonstrate that the acts for which they were being sued oc-

curred at least in part because of what they were asked to do

by the Government. In 2011, however, the statute was

amended to encompass suits for or relating to any act under

color of federal office.” In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Def. Ass’n of Philadelphia, 790 F.3d

457, 471 (3d Cir. 2015) (“Def. Ass’n of Philadelphia”) (citations

and internal quotation marks and brackets omitted).

Since then, three of our fellow circuits have concluded

that, in the Removal Clarification Act, “Congress broadened

federal officer removal to actions, not just causally connected,

but alternatively connected or associated, with acts under color

of federal office.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d

286, 292 (5th Cir. 2020) (en banc); see also id. at 296 (“Subject to

the other requirements of section 1442(a), any civil action that

is connected or associated with an act under color of federal

office may be removed.”); Sawyer v. Foster Wheeler LLC, 860

F.3d 249, 258 (4th Cir. 2017) (“[T]here need be only ‘a connec-

tion or association between the act in question and the federal

office.’”) (citation omitted); Def. Ass’n of Philadelphia, 790 F.3d

at 471 (holding the same).

Nos. 19-3159 & 19-3160 11

Up until today, by contrast, we and the Eleventh Circuit

have stopped short of abandoning the “causal connection”

test, though we both had “essentially implemented a connec-

tion rationale for removal.” Latiolais, 951 F.3d at 292; see also

id. at 295 n.8 (“In part because these courts interpret the

‘causal nexus’ or ‘causal connection’ requirement more ex-

pansively—and more in line with [Supreme Court prece-

dent]—than our court has done in recent cases, the outcomes

in these cases have not been affected by failure to give effect

to the new ‘relating to’ language in section 1442(a).”); Caver v.

Cent. Ala. Elec. Coop., 845 F.3d 1135, 1144 & n.8 (11th Cir. 2017)

(similar). We see no need to do so any longer, however, and

now join all the courts of appeals that have replaced causation

with connection and expressly adopt that standard as our

own.

This position better comports with the Supreme Court’s

decisions, which have never utilized a rigid causation stand-

ard for removal. Indeed, long before the Removal Clarifica-

tion Act of 2011, the Court had opined that “the statute does

not require that the [lawsuit] must be for the very acts which

the [defendant] admits to have been done … under federal

authority. It is enough that [the] acts … constitute the basis …

of the state [lawsuit].” Maryland v. Soper, 270 U.S. 9, 33 (1926);

see also Acker, 527 U.S. at 433 (“The circumstances that gave

rise to the tax liability, not just the taxpayers’ refusal to pay,

‘constitute the basis’ for the tax collection lawsuits at issue.”)

(citation omitted). Putting it another way, the Court has de-

termined that it is “sufficient for [the defendant] to have

shown that their relationship to [the plaintiff] derived solely

from their official duties.” Willingham, 395 U.S. at 409.

12 Nos. 19-3159 & 19-3160

The Residents misunderstand these precedents. To be

sure, they have raised serious questions about whether the

Companies’ pollution that allegedly caused the Residents’ in-

juries flowed from the Companies’ specific wartime produc-

tion for the federal government or from their more general

manufacturing operations outside those confines. But those

are merits questions that a federal court should decide. See id.

(“If the question raised is whether they were engaged in some

kind of ‘frolic of their own’ in relation to respondent, then

they should have the opportunity to present their version of

the facts to a federal, not a state, court.”).

For example, in Winters, the defendants had produced

their goods before the federal government got involved. 149

F.3d at 399. Still, the Fifth Circuit did not make much of this

fact because the government required a distinct formulation

composed of a mixture unlike its commercial counterpart. Id.

So too here. The Companies assert that their materials and

manufacturing processes corresponded to detailed federal

specifications and stayed under the tight control of the gov-

ernment. It rightly remains to be seen whether a connection

or association exists between the Residents’ health conditions

and their alleged exposure to federally dictated chemicals or

others.

Simply stated, the Companies did not need to allege “that

the complained-of conduct itself was at the behest of a federal

agency. It is sufficient for the ‘acting under’ inquiry that the

allegations are directed at the relationship” between the Com-

panies and the federal government. Def. Ass’n of Philadelphia,

790 F.3d at 470; see also Isaacson, 517 F.3d at 137–38 (“To show

causation, Defendants must only establish that the act that is

Nos. 19-3159 & 19-3160 13

the subject of Plaintiffs’ attack (here, the production of the by-

product dioxin) occurred while Defendants were performing

their official duties.”).

Reaching the opposite result, the district court held that

remand was appropriate because “the bulk of [the Compa-

nies’] operations occurred outside this [war]time period.” In

that court’s judgment, the Companies did not have enough

federal government contracts connected to or associated with

this case to remove it. We see no support in the statute or prec-

edent for this rule that a removing defendant must operate

under government orders for most of the relevant time frame.

It may make some sense, at least as a matter of policy, to re-

quire a removing defendant to allege more than a de minimis

amount of federal transactions to establish jurisdiction. This

is not the case in which to do so, however, given that the dis-

trict court estimated that Atlantic Richfield’s predecessor op-

erated under government commands for 20% of the relevant

time span and DuPont for 5-to-15% of the period.3

Assuming for the sake of argument that some of the Resi-

dents’ allegations of soil contamination do not relate to the

Companies’ acts under color of federal office, “removal need

3 Although the Residents purport to disclaim that their lawsuit is

about DuPont’s manufacture of Freon-12 for the government during this

time, the fact is that DuPont alleges that its Freon-12 production resulted

in waste streams that contained lead and arsenic. Those are the two main

toxins the Residents claim harmed them. The Residents cannot have it

both ways. Clearly, the parties dispute whether the Residents’ injuries

arise from products DuPont manufactured for the government. This is just

another example of a difficult causation question that a federal court

should be the one to resolve.

14 Nos. 19-3159 & 19-3160

not be justified as to all claims asserted in the plaintiffs’ com-

plaint; rather, the defense need only apply to one claim to re-

move the case.” Sawyer, 860 F.3d at 257; see also Ruppel, 701

F.3d at 1182 (“If CBS has a colorable defense as to either claim,

then the entire case is removable.”); Charles Alan Wright &

Arthur R. Miller, Federal Practice and Procedure § 3726 (rev. 4th

ed. 2009) (“Because Section 1442(a)(1) authorizes removal of

the entire action even if only one of the controversies it raises

involves a federal officer or agency, the section creates a spe-

cies of statutorily-mandated supplemental subject-matter ju-

risdiction.”).

Similarly, even if the Residents eventually prove that the

Companies’ pollution occurred because of acts not directed

by the federal government, it is still enough for the present

purposes of removal that at least some of the pollution arose

from the federal acts. See Isaacson, 517 F.3d at 138. Again,

“whether the challenged act was outside the scope of Defend-

ants’ official duties, or whether it was specifically directed by

the federal Government, is one for the federal—not state—

courts to answer.” Id. The Companies’ wartime production

was a small, yet significant, portion of their relevant conduct.

Giving the Companies the benefit of all reasonable inferences

from the facts alleged, we conclude a “federal interest in the

matter” supports removal. Willingham, 395 U.S. at 406 (cita-

tion omitted).

Colorable Federal Defense

Lastly, we must determine whether the Companies have a

colorable federal defense that entitles them to removal. “The

government contractor defense, developed in Boyle v. United

Technologies Corp., [487 U.S. 500, 511–12 (1988),] immunizes

Nos. 19-3159 & 19-3160 15

government contractors from state tort law when the govern-

ment had a hand in a defendant’s allegedly defective design.”

Ruppel, 701 F.3d at 1183. “The defense applies where (1) the

federal government approved reasonably precise specifica-

tions, (2) the manufactured equipment conformed to the gov-

ernment’s specifications, and (3) the contractor warned the

federal government about the equipment’s dangers that were

unknown to the government.” Betzner, 910 F.3d at 1016.

The district court declined to analyze the defense in any

detail. Specifically, it neither reached the defense at all as to

DuPont, nor addressed whether Atlantic Richfield could meet

the third element of the defense (supplier warnings to the

government). Consequently, for the purposes of this appeal,

we assume that the Companies have colorable defenses. That

said, we find it necessary to address the district court’s appar-

ent conclusion that Atlantic Richfield could not avail itself of

the government contractor defense because it merely sold

standard materials that were available across the general mar-

ket. We cannot agree with this analysis.

The government contractor defense broadly applies to any

product supplied for government use so long as it conformed

to the government’s “reasonably precise specifications.”

Boyle, 487 U.S. at 512. That is all that the defense requires

when it comes to the nature or quality of the goods. It is un-

disputed that Atlantic Richfield is the putative successor to a

company that adhered to detailed specifications (e.g., exact

physical and chemical properties) promulgated by the federal

government for manufacturing certain materials in wartime.

Atlantic Richfield has therefore set forth sufficient factual de-

tails regarding its government contractor defense.

16 Nos. 19-3159 & 19-3160

Two recent federal appellate decisions do not persuade us

otherwise. In Mayor & City Council of Baltimore v. BP P.L.C.

(“Baltimore”), the Fourth Circuit concluded that simply selling

the Navy Exchange Service Command (“NEXCOM”) fuel for

resale on Navy bases was insufficient to qualify for the de-

fense and therefore removal. 952 F.3d 452, 463 (4th Cir. 2020),

petition for cert. filed (U.S. Mar. 31, 2020) (No. 19-1189). As the

court pointed out, the contracts at issue only involved “a

standardized consumer product,” undifferentiated from that

supplied to civilians. Id. at 464. Likewise, in County of San

Mateo v. Chevron Corporation—a case also involving the provi-

sion of fuel to NEXCOM—the Ninth Circuit determined that

the fuel contracts at issue “evince[d] an arm’s length business

relationship to supply NEXCOM with generally available

commercial products.” — F.3d —, —, 2020 WL 2703701, at *8

(9th Cir. May 26, 2020). For that reason, the court held that the

contractor defense, and accordingly removal, was unavailable

to the defendants. Id.

Both factual situations are readily distinguishable from

the one before us. Indeed, Baltimore explicitly differentiated

the situation before it—the provision of fuel for resale to ser-

vicemen and women during peacetime—from those in Win-

ters, where the defendant provided the means to engage in

chemical warfare, and Sawyer, where the defendant provided

specific component parts for use aboard military vessels. 952

F.3d at 463 (citing 149 F.3d at 390; 860 F.3d at 252). Similarly,

San Mateo focused on the fact that the defendants supplied a

product identical to that available to consumers. 2020 WL

2703701 at *8.

Nos. 19-3159 & 19-3160 17

In this case, by contrast, at least some of ISR’s production

went directly to the United States military to support its ef-

forts in World War II, and nearly all its production served as

inputs to produce a wide variety of critical wartime supplies.

The federal government dictated to whom and in what

amounts ISR could sell its products, outside of the quota it

reserved for itself, and it also set precise specifications for

those final products. In these circumstances, it strains credu-

lity to equate ISR to a fuel distributor operating in peacetime

given it operated under such intense directives to produce

specialty items according to precise specifications. The asser-

tion that the production at issue in this case resulted from

arms-length transactions for “off-the-shelf” goods like the

fuel in Baltimore and San Mateo simply ignores the reality that,

unlike in those cases, the government here all but national-

ized ISR’s production during World War II.

More importantly, the “off-the-shelf” theory elides the fact

that, here, the government required ISR to produce the goods

it did according to detailed specifications that differentiated

those goods from the ones it supplied civilian consumers. See,

e.g., Isaacson, 517 F.3d at 138 (rejecting plaintiffs’ off-the-shelf

theory because “commercially available products did not con-

tain the Agent Orange herbicides in a concentration as high

as that found in Agent Orange.”). We can see the logic of with-

holding the government contractor defense from a supplier

who provides what amounts to the same fuel as that available

at any local gas station, but extending this reasoning and de-

scribing lead and other industrial products as “off-the-shelf”

is a bridge too far for us to cross in this case. Consequently,

the rationale of Baltimore and San Mateo does not apply here,

and Atlantic Richfield has a colorable federal defense.

18 Nos. 19-3159 & 19-3160

* * *

“At this point,” it is worth remembering that “we are con-

cerned with who makes the ultimate determination, not what

that determination will be.” Ruppel, 701 F.3d at 1182. This ap-

peal, like others that come to us under the federal officer re-

moval statute, presents “complex issues, but the propriety of

removal does not depend on the answers.” Venezia v. Robin-

son, 16 F.3d 209, 212 (7th Cir. 1994). Both the Residents and

the Companies have reasonable theories of this case. Our role

at this stage of the litigation is to credit only the Companies’

theory. See Acker, 527 U.S. at 432. After reviewing their allega-

tions and the applicable law, we conclude the Companies

have made an adequate threshold showing to remove their

case to federal court.

III. Conclusion

For the reasons stated above, we REVERSE the judgment of

the district court and REMAND for further proceedings con-

sistent with this opinion.