Petition for Writ of Certiorari — Winters v. Diamond Shamrock Chemical Co.

Supreme Coat, us.

FILED

No. 981140 NY 160m

Ti .

iit ta

IN THE

Supreme Court of the United States

OCTOBER TERM, 1998

JOHN WINTERS, SR., Individually And As Representative Of The

Estate of Margaret Winters, Deceased; Fr. Martin Winters and

Charles Winters

Petitioners

v.

DIAMOND SHAMROCK CHEMICAL COMPANY; MONSANTO

COMPANY; UNIROYAL INCORPORATED; HERCULES INC.;

THOMPSON-HAYWARD CHEMICAL COMPANY, also known as

Thompson Chemical Corporation; TH AGRICULTURE &

NUTRITION COMPANY, INC.

Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS, FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BENTON MUSSLEWHITE

6161 Savoy, Suite §10

Houston, Texas 77036

(713) 783-2250 Phone

(713) 783-2260 Fax

Attorney for Petitioners

QUESTIONS PRESENTED FOR REVIEW

After this state court case, involving alleged injury from exposure

to Agent Orange in Vietnam, had been removed to federal court pursuant

to 28 U.S.C. 1442(a\(1), the officer removal statute, the courts below

denied the plaintiff's motion to remand, in direct conflict with the leading

case on such removal, the decision of Judge Jack B. Weinstein in Ivy/Ryan

(see cite, finte 2, infra). The judgment below Presents the following

questions:

L.

Whether the chemical company defendants — in view of the

undisputed fact that Agent Orange was simply an off-the-shelf mix of

pre-existing chemical formulae that had, long before defendants sold it

to the Government, been put to domestic commercial use to reduce

unwanted vegetation along roads and railroad tracks and on farms —

failed to satisfy their burden to show that, in furnishing Agent Orange

to the Military for use in Vietnam, they were Subjected to the required

detailed control by federal authority with respect to the acts for which

the defendants were being sued in state court and that there was

sufficient causal connection between what the defendants did under

asserted official authority and what they were being sued for in the

~——

state court, all as required for the defendants to be able properly to

remove this case to federal court under 28 U.S.C. 1442(aX(1) ?

IL.

Whether — since Judge Weinstein in [vy/Ryan decided the

precise issues of whether there was sufficient detailed control by the

government and causal connection between such alleged control and

what the defendants were being sued for in the state court suit, against

the same defendants in this case after said defendants had vigorously

argued and presented their position before Judge Weinstein — the

defendants in this case should have been collaterally estopped with

respect to those issues ?

IL.

Whether corporations are “persons” within the meaning of 28

U.S.C. 1442(aX(1) ?

il

INTERESTED PARTIES

John Winters, Sr., Individually And

As Representative Of The Estate Of

Margaret Winters, Deceased! ~ Petitioner

Fr. Martin Winters - Petitioner

Charles Winters fo Petitioner

DIAMOND SHAMROCK

CHEMICALS COMPANY - Respondent

DOW CHEMICAL COMPANY ~ Respondent

MONSANTO COMPANY - Respondent

UNIROYAL, INC. ~ Respondent

HERCULES, INC. ~ Respondent

THOMPSON-HA YWARD

CHEMICAL COMPANY - Respondent

T H AGRICULTURE & NUTRITION

COMPANY, INC. * Respondent

' Ms. Winters was still alive when this litigation was commenced. She finally

succumbed to the disease which plaintiffs alleged was caused by her exposure to

Agent Orange — non-Hodgkins Lymphoma (“NHL”) - while this case was pending

in the courts below. The appropriate parties (under Texas law, the Estate and the

surviving family) were impleaded but the court of appeals mandated that the case

be styled as initially filed. However, after consulting with the Office of the Clerk

of this Court, Petitioners are styling the Petition as it should be styled in view of

the death of Ms. Winters. For convenience, Petitioners will be referred to as

“plaintiff” throughout this Petition and the Respondent chemical companies will

be collectively referred to as "defendants".

| | |

TABLE OF CONTENTS

QUESTIONS PRESENTED ......ccsccccssccscscvsccsesees i

Be CS HEE FREI dceveciccdccccccersereccvcvesedeés ili

SAS GE CUSR INET Sev ccdcorscccncssccvevesedbscdeten iV

PE CRED dottcthncbssersscGancescinbtisdcadaanes l

PE etctntaiindidnasbiiiiiieciscnenniagnnitnnlien l |

SEAT UES FET CEIEED socccccsiccccevicovsesoncsees 2 |

STATEMENT OF THE CASE .........cccccccccccccccees 2 |

A. C of ings and Disposition

:

iv

TABLE OF AUTHORITIES

Akin v. Big Three Industry Inc. 851 F. Supp. 819, 822

nk YER ES nee Bint SR TD 5, 15, 20, 26

Allen v. Ferguson, 791 F.2d 611 (7th Circ. 1986) ... a icine 5

Armstrong v. Alabama Power Co., 667 F.2d 1386 a Ith Cire. 1982) . Sietdatiiniens 5

Arness v. Boeing North American Inc., 997 F. Supp. 1268 (N.D. Cal. 1998)..20, 24

Arnold v. Blue Cross and Blue Shield of Tex., Inc., 973 F. Supp. 726 (S.D. Tex.,

arcu tierteibiaphideacabaaiiibuaiincnantliastiiatiaaptanddaminieniiiihiiisassetuians Contec 20, 24

Bakalis v. pinball 781 igual at 140, 143-44, (E.D.N.Y.,

1991)... ow ae

Baldridge v v. . Kentucky Ohio Transp., ine, “983 FE. 2d 1341, “1347-50 (6th Cire.

Fa ince ccaricaiti ands inatiieiacatl tleataccianianeiniaeipigibamatieiaitint a t aisin, once 33

BancOhio Corp. v. Fox, 516F.2d 29 (6th Cir. 1975) ... shi 5

Brown and Williamson Tobacco Corp. v. Wigand 913 F. ‘Supp. 530 (D. C. ‘Ky.

a, ROIS et mA ee AR, 20

C.H. v.American Red Cross, 684 F.Supp. 1018, 1023-24 (E.D.Mo. 1987)......16, 35

Crocker v. Borden Inc, 852 F.Supp. 1322 (E.D. LA, 1994) .....cccccccccccceccesesecesseses 25

District of Columbia v. Landmark Services, Inc., 411 F. Supp. 1002

a, A, interne © eeaere cane e mth pean 15

Elk Garden Co. v. T. W. Thayer Co., 206 F. 212, 215 (W.D.Va. 1913),

writ of error dismissed with consent of defendant in error,

SIO Fe CI neritic ities margaritas 32

Ex parte Pennsylvania, 109 U.S. 174, 176, 27 L.Ed. 894 (1883) ... a

F.T.C. v. Food Town Stores, Inc., 547 F.2d 247, 249 (4th Circ. 1977)... nenehdiieeentl 3]

First National Bank v. Aberdeen National Bank, 627 F 2d 843, 848

GE PUTT iccettasecttntmenttitaiaacaradasiasianiina aia viisicenitasnnaniabiniaimnattnteratenemeanin 20

Frith v. Blazon-Flexible Flyer, Inc., 512 F.2d 899 (5th Circ. 1975)...............31, 33

Fung v. Abex Corp., 816 F. Supp. 569, 571-72 (N.D. Cal. 1992) ............. 15, 20, 25

Gaddis v. Smith, 417 S.W.2d 642, 644 (Tex. 1988) ......ccccccccccocsesesssesesessecesesesesvees 39

Gensplit Fin. Corp. v. Foreign Credit Ins. Ass’n, 616 F.Supp. 1504, 1508-10

i PEON ciaretaeipet bad tid hchasctiads saapiaatcebpebbaie a tiatia Wdsvceihicdecsescsarsin:. 35

Glasscock v. Armstrong Cork Co., 946 F.2d 1085, 1092 (5th Cir. 1991)

theca hg | RLS ES IO ar SN PR 39

Glasser v. Amalgamated Workers Union Local 88, 806 F.2d 1539, 1540-41

cee, A OEE net he 34

Good v. ve World Industries, 914 F.Supp. 1125, 1130, 1131 hcmeabi

1996) ... coe siteerweae

Group Health Inc. v. "Blue Cross Ass’ n, 587 F. ‘Supp. 887, 890

eg RRR ES AER TER 16, 35

Guillory v. Ree’s Contract Service, Inc., 872 F. Supp. 344

ct, RS RARE HE: AULIEE S252 Le OEE 20, 24

Gulati v. Zuckerman, 723 F. Supp. 353 (E.D. PA. 1989) ...c.cccccccccecesesesescsseseseees 20

Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 356 (7th Circ. 1987) 02.2000. 34

In Re AgentOrange, 996 F.2d 1425, 1428-1430, (2nd Circ. 1993)........... 36, 38, 40

In re Life Ins. Co. of N. Amer., 857 F.2d 1190, 1193 (8th Cir. 1988) .........0.c00.- 3]

International Primate Protection League v. Administrators of Tulane

Educational Fund, 500 U.S. 72, 111 S.Ct. 1700, 114 LEd 2d 134 pid .14, 38

Ivy, et al. v. Diamond Shamrock, et al.; cert. den. 113 S.Ct. 599 (1992) ... ss

Johnson Steel St. Rail Co. v. Wharton, 152 U.S. 252,

5 TR Gee cetaictenteitineenientniendbitaiibiitcctitiienniaes 28, 30, 31, 32, 33

Johnson v. Herold, 161 F. 603 (Cir. Ct., NJ. 1907) ......ccccccccsscsccecececseeeseeeceeeeeees 3]

Jones Store Co. v. Hammon, 424 F.Supp. 494, 499 (E.D. Mo. 1977) 0.0... 2.00000. 5

Kaplansky v. Associated, YM-YUHA, No. 88-CV-1292, 1989 WL 29938 (E.D.N_Y.

SOD cxvcciiennasaiaediceaatlatinsepearncerqianeiiiahanipiatmnaaiiaie a tanal irae tial cetiaenas a 20

Lovell Manufacturing v. Export Bank, 843 F.2d 725 (3rd Cir. 1988)................. 20

Mann v. A.H. Robins Co., 741 F.2d 79, 82 (Sth Cir. 1984) ........c.cccccccccessseeeeeeeees 39

Mesa v. California, 489 U.S. 121, 109 S.Ct. 959 (1989) .........ccccccsceceeererseeseeseeees 14

Milton S. Kronheim & Co. v. District of Columbia, 91 Fed 3d 193, 212

Ge GR Be reitencacapneenierearteintnaaunnn ieee ate aeeteehicdsnensianens 32

Napper v. Anderson, Henley, Shields, Bradford &Pritchard, 500 F.2d 634

Se CI, Fe ibentisatirernatannanmii ea 31, 32, 33

New Jersey v. Moriarity, 268 F.Supp. 546, 555 (D.N.J. 1967) 20. 00. .0. 0. 0. ee 002 oe 13

North Carolina v. Ivory, 906 F.2d 999 (4th Cir. 1990) .........cccccccsccevseeeenseeseeeeeee 20

Nutter v. Mononcahela Power Co., 4 F.3d 319 (4th Cir. 1993)........ccccccccsecceeeeees 33

Pack v. AC and S, Inc., 838 F. Supp. 1099 (D.C. Md. 1993) ............c0000+ 15, 20, 25

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L. Ed 2d

FE CEP U cceeiiniticitesagpieeervicntipieiniasaiataiaiatatiaas eeaepabncs tnd incidence liadapatitstaini 28, 29

Peterson v. Blue Cross/Blue Shield, 508 F.2d 55, 58 (Sth Cir.)..............c0000-+- 16, 35

Roche v. American Red Cross, 680 F.Supp. 449, 455 (D.Mass. 1988) ........... 16, 35

Ruffin v. Aamco Steel Corp., 959 F. Supp. 770 (S.D. Tex., 1997) ........c000000-+ 20, 22

Ryan v. Dow Chemical Co., 781 F.Supp. 934 (E.D.N.Y. 1992), interl

appl. den. twice by 2nd Circ, cert den 113 S.Ct. 599 (1992) .......00ccccecsceeeees 4

Shamrock Oil and Gas v. Sheets,313 U.S. 100, 61 S.Ct. 868, 872 (1941) ............ 27

Standefer v. U.S., 447 U.S. 1023, 100 S.Ct. 1999, 2007 (1980) ............c.ccccceeeeeees 33

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 353,

OS Fe ce irievcsirnsscocnnsitiapnandaanentndtt idiatiimeailadensntattoseetens 35

Tingey v. Pixley-Richards West, Inc., 953 F.2d 1124 (9th Cir. 1992). .............0++- 35

U.S. v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104 (1950) ......c..ccccccccceseeseeeeees 32

U.S. v. Vertac Chemical Corp., 841 F. Supp. 884 (E.D. Ark 1993) ................ 20, 21

Villar v. Crowley Maritime Corporation, 997 F.2d 883 (Sth Cir. ee cert.

den. 114 S.Ct. 690 (1994) ... a aio wl

Whitman v. Raley’s, Inc., 886 F.2d 1197, 1181 (9th Cir. 1989). sicmiaeasahealiaametiauna 33

Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813 (1969) .........cccccseeeeeeees 13, 14

Winters v. Lavine, 574 F.2d 46, 62 (2nd Circ. 1978) ........cccccccecceeseeseeseeee 29, 31, 34

Woodruff v. A.H. Robins Co., 742 F.2d 228, 229 (Sth Cir. 1984) ........cc.ccccseceees 39

Statutes

BO CE, BOG en aves en en en ensncsnitin niin engas ts einen: Se

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth

Circuit, which affirmed both the district court’s refusal to remand this case

to state court and the grant of summary judgment, is reported at 149 Fed.

3d 387 (5™ Cir. 1998) and reprinted in the Appendices, A-38 to A-80. The

decisions and orders of the United States District Court for the Eastern

District of Texas, the first, refusing to remand this case to state court, is

reported in 901 F. Supp. (E.D. Tex. 1995) and reprinted in the Appendices,

A-1 to A-22, and the second, granting summary judgment on the ground of

statute of limitations, is reported at 941 F.Supp. 623 (E.D. Tex. 1996) and

reprinted in the Appendices, A-23 to A-37.

JURISDICTION

The decision of the court of appeals was entered on Aug. 17, 1998.

This Petition is being mailed and post-marked on Nov. 16, 1998, the

ninetieth day, Nov. 15, 1998, being a Sunday and the first business day

thereafter being Monday, Nov. 16, 1998. The jurisdiction of the Court is

invoked pursuant to 28 U.S.C. Sect. 1254(1).

STATUTORY PROVISION

28 U.S.C. Section 1442. Federal officers or agencies sued or

prosecuted

(a) A civil action or criminal prosecution commenced in a State court

against any of the following may be removed by them to the district

court of the United States for the district and division embracing the

place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any

person acting under that officer) of the United States or of any

agency thereof, sued in an official or individual capacity for

any act under color of such office or on account of any right,

title or authority claimed under any Act of Congress for the

apprehension or punishment of criminals or the collection of

the revenue.

Margaret Winters, who was then still alive, filed suit in the

Beaumont state court on Feb. 5, 1993. Ms. Winters asserted causes of

action only under state law. She alleged she served in Vietnam as a

civilian employee of the Agency for International Development in 1966 —

1967; that, while there, she was exposed to Agent Orange, a herbicide the

U.S. military was spraying in the environment in Vietnam in order to

defoliate the jungle and for other purposes; that in 1983 she was diagnosed

as having Non-Hodgkin’s Lymphoma (“NHL”), a cancer that is usually

fatal; that, in the latter part of 1991, she read in a Chicago newspaper that

the Government had just declared that Agent Orange could cause NHL;

that she then filed this suit within a reasonable time thereafter and within

two years of her discovery that Agent Orange may have caused her NHL;

that the defendants formulated, manufactured and sold to the U.S.

Government the Agent Orange to which she was exposed; that the Agent

Orange was defective and unreasonably dangerous; that defendants were

liable under state law theories of negligence, strict product liability,

breaches of warranties and violation of the Texas Deceptive Trade

Practices Act; and that she was entitled to actual and punitive damages.

The defendants removed the case to the federal court. Defendants

asserted only two grounds for removal:

i That defendants, in selling the Agent Orange to the U.S.

Government, were acting under federal officers and were being sued for

acts under the color of such office, and thus were entitled to removal

jurisdiction under 28 U.S.C. 1442(a)\1).

a. That, “under the doctrine of complete federal preemption”,

which they asserted arose out of military procurement, defendants were

entitled to removal under federal question jurisdiction as provided for in 28

U.S.C. Sect. 1441.

Plaintiff filed a motion to remand, which was later amended and

supplemented. The plaintiff essentially contended that 1442(a\1) did not

apply because, in view of the Ivy/Ryan decision,’ defendants were

collaterally estopped from seeking removal on the basis of 1442(a)(1); the

defendant corporations were not “persons” within the meaning of

1442(a\(1); defendants were not “acting under color of federal authority”

when they committed the acts at the core of the state court lawsuit; that

there was inadequate causal connection between what the defendants did

while allegedly acting under federal authority and the state court lawsuit;

and that neither the military contractor defense nor the Defense Production

Act, 50 U.S.C., App. Sect. 2061, et. seq., constituted “colorable federal

defenses” within the meaning of 1442(a)1).

? Ryan v. Dow Chemical Co., 781 F. Supp. 934 (E.D.N.Y. 1992), interl. appl. den.

twice by 2™ Circ. (May 8 and June 8, 1992, No. 92-8008); mand/appl. re remand

dism. by 2™ Circ. (June 16, 1992, No. 92-847), sub. nom. Jvy, et al. v. Diamond

Shamrock, et al.; cert. den. 113 S.Ct. 599 (1992) (hereafter referred to as

“Ivy/Ryan”).

The case was, over the surprising objection of the defendants,’

transferred by the Judicial Panel On Multi-District Litigation to Judge Jack

Weinstein in the Western District of New York. Judge Weinstein later

transferred the case back to Judge Cobb in the Eastern District of Texas,

and did so without having ruled on the plaintiff's motion to remand.‘

Judge Cobb denied the plaintiff's remand motion, App. A-1 to A-

22, 901 F.Supp. 1195, holding that the court had removal jurisdiction

solely on the basis of 1442(aX1). Judge Cobb did not address the

preemption/federal question ground for removal and it was not a basis for

the denial of the motion to remand.

* As noted in plaintiff's response to the Judicial Panel on Multi-District Litigation

(“JPMDL”), the defendants in past Agent Orange cases had always contended that

such cases should be transferred by the JPMDL to Judge Jack Weinstein of the

Eastern District of New York. But, when they found out that this case, upon

removal, had landed in the court of Judge Howell Cobb, defendants reversed their

position 180 degrees and opposed transfer by the JPMDL. The obvious reason for

this switch in positions: Judge Weinstein had ruled in /vy/Ryan that the cases cf

civilian Agent Orange plaintiffs were not subject to 1442(a\(1) removal and should

be remanded to the state court, while Judge Cobb had ruled in an analogous suit

arising out of actions by a government contractor, that it was subject to 1442(aX1)

removal and should not be remanded to state court. See Akin v. Big Three

Industries, 851 F.Supp. 819 (E.D.Tex. 1994).

* Plaintiff had vigorously objected to Judge Weinstein’s decision to transfer the

case back to Beaumont. The first thing he should have done is determine whether

he had federal jurisdiction over the case and rule on the motion to remand. See

Allen v. Ferguson, 791 F.2d 611 (7 Circ. 1986); Armstrong v. Alabama Power

Co., 667 F.2d 1386 (1 iths Circ. 1982); BancOhio Corp. v. Fox, 516 F.2d 29 (6*

Cir. 1975); and Jones Store Co. v. Hammon, 424 F.Supp. 494, 499 (E.D. Mo.

1977) but see Villar v. Crowley Maritime Corporation, 997 F 2d 883 (5* Cir.

1994) cert. den. 114 S.Ct. 690 (1994). Plaintiff believes that it was error for Judge

Weinstein to transfer the case back to Judge Cobb without having resolved the

removal/remand issue, but that error is not being presented in this Petition.

a)

Next, the defendants filed two motions for summary judgment, one

based on the military contractor defense and the other based on the statute of

respect to these motions and, in partial response thereto, the court set a

telephone “management conference”. At the conference, the court stayed all

discovery and directed the plaintiff to write a letter stating the specific

discovery she wanted and why she felt she was entitled to it. The court

expressly extended the time for the plaintiff to respond to both motions until

after it ruled on plaintiff's request for discovery and the court would then

notify the parties of the date the plaintiff's responses would be due.

The plaintiff duly and timely wrote the court a fifteen-page letter,

listing the discovery that was needed in order to respond to the defendants’

motions. Without any ruling on plaintiff's requested discovery, without any

notice to plaintiff that it was about to rule and without the plaintiffs’ having

been given a real opportunity to respond to the defendants’ motions, the

court granted the defendants’ motion for summary judgment on the ground

of limitations. 941 F.Supp. 617, A-23 to A-37. The court never addressed

the military contractor defense motion.

The plaintiff timely filed a motion for new trial and, in that motion,

the plaintiff vigorously complained about the court granting the summary

judgment without ruling on the discovery requests, without notifying

plaintiff when the ri¢sponses would be due and without advising the parties

that it intended to go ahead and rule. Attached to the motion for new trial

was “actual informiation clearly demonstrating that a disputed fact issue

with respect to the discovery rule existed. See excerpts from said motion,

A-81 to A-91. The district court denied the motion for new trial.

During the pendency of the case before the district court, Ms.

Winters died and, with leave of court, plaintiff amended to implead the

Estate of Margaret Winters and the survivors.

The plaintifff timely appealed and the court of appeals, 149 F.3d

387 and A-38 to A-80, held as follows:

l. That plaintiff's contention that defendants were collaterally

estopped was propertly rejected by the trial court on one single ground (the

court of appeals implicitly conceded that all other elements of collateral

estopped were presemt): since the first judgment was a remand judgment -

concerning which, the court of appeals contended, defendants had no right

to appeal (even thouigh they were granted an interlocutory appeal and also

sought a mandamus) — out of fairness, application of collateral! estoppel

must be rejected. 14-9 F.3d at 391-396; A-42 to A-58.

r J In direct conflict with /vy/Ryan, that the defendants were acting

under the authority of the government and there was adequate causal

connection between what defendants were doing while so acting, and the

plaintiff's state court lawsuit, thus justifying removal under 1442(a)\1).

149 F.3d at 396-400; App. A-58 to A-67.

3. That the defendant corporations were “persons” within the

meaning and intent of 1442(aX1). 149F.3d at p. 397; App. A-42.

4. That both the military contractor defense and the Defense

Production Act presented “colorable defenses” to the plaintiff's state court

action. 149 F.3d at p. 400, 401; App. A-67 to A-71.

4 That the district court erred in deciding the summary judgment

motion without notice to plaintiff but such error was harmless because

plaintiff filed her deposition with the motion for new trial and such

deposition was considered by the court of appeals. 149 F.3d at 401, 402;

A-72 to A-74. and

6. That the defendants’ summary judgment was properly granted on

the ground of limitations. 149 F3d at 402 — 404; A-74 to A-79.

eR dee ee

KAN a > sleet

B. Statement of Facts.

l. Evidence re Removal.

With reference to the removal/remand question, the defendants

submitted several affidavits, two by their own lawyers, and a number of

exhibits. The defendants also filed a Memorandum of Law In Opposition

to Remand. The affidavits included those of Brock, Gordon, McCarville

and Frawley, with attachments and exhibits included in several volumes

marked “Document 12” and Documents of Hercules Inc., Vols. I. and I].

(all hereafter referred to as “defendants’ remand evidence”). All of

deft ; i mitted i including the

a i Frawl dM ill all documents

d above, were e this case was even ; it was all

prepared for, and submitted to, Judge Weinstein in /vy/Ryan and was all

fully considered im in d to his decision to remand the /vy/Ryan

(Brown and White) civilian cases. See his discussion of this same

“evidence”, 781 F.Supp. at 937, 938, and the discussion of the law in

connection therewith, 781 F.Supp. at 950-952. Therefore, there was no

need to include this voluminous evidence in the Appendices to this

Petition. As Judge Weinstein noted, the evidence was undisputed on the

key points relating to Government control and causal connection between

such control and the allegations in the state court action.

A reading of those affidavits and exhibits fully establish that Judge

Weinstein was correct in holding that the Agent Orange was purchased by

the U.S. off-the-shelf or, as he phrased it, the Agent Orange consisted only

of “ready-to-order” products. For example, in Defendants’ Memorandum

of Law in Opposition to Plaintiffs’ Motion to Remand, Doc. 12, Michael

Gordon, one of the defendants’ lawyers in this case, discusses in his

affidavit how defendants had been “commercially” producing 2,4-D and

2,4,5-T before the Government asked them to mix the two and sell the

mixture to the Government as Agent Orange. The essence of defendants’

complaints in their affidavits center upon the contention that the

Government “misused” the Agent Orange. “Misuse” is a potential defense

to the merits, not grounds for removal under 1442(a)(1). As to the effect of

“ready-to-order” purchases, see Judge Weinstein’s findings at 782 F.Supp.

at 937, 938, 950, 951.

The “evidence” produced by defendants also demonstrates that,

while some general requirements were imposed by the Government, the

Government actually had no control over the design, formulation and

manufacture of 2,4-D and 2,4,5-T. See discussion of defendants’ remand

evidence and findings of Judge Weinstein as to lack of required control,

781 F.Supp. at 947, 948, 950, 951. Moreover, the evidence produced by

defendants did not establish a causal nexus between the allegations in the

10

state court suit and what the “officer or agent has done” under the alleged

control of the Government, id., and see findings of Judge Weinstein as to

lack of causal nexus, 781 F.Supp. at 945, 946, 950, 951. The evidence

concerning 1442(a\1) is further discussed, infra, under “Reasons For

Granting Writ.”

r a Evidence re Statute of Limitations

As to the statute of limitations issue, Ms. Winters expressly

testified that she did not “hear about spraying of Agent Orange when (she)

was in Vietnam in 1966 and ‘67”. See excerpts of Ms. Winters’ deposition

attached to her motion for new trial, App. A-81 to A-91.

Ms. Winters testified as follows:

Q: “Okay. When is the first time — now, this is a very

important question. Think about it before you answer,

because you’re answering under oath.

A: Yes.

Q: When is the first time — tell the jury when is the first time

that you ever heard non-Hodgkin’s disease lymphoma

mentioned in connection with or in association with

exposure to Agent Orange?

When?...

A: It was in the Chicago Sun Times, and it was on the front

page. It was right at the bottom that the government — |

believe the president or — had signed legislation that would

compensate veterans who had suffered — who had been

exposed to Agent Orange and had non-Hodgkin’s

lymphoma.

Q: And that was the first time you ever heard —

1}

A: That was the first time.”

pp. 245-247 of Dep. Exc.; Rec. 724-726; App. A-81 to A-91.

Ms. Winters testified that she read that Sun Times article in 1991,

or much less than two years prior to the date suit was filed. After reading

the Sun Time’s article, Ms. Winters got her nephew, who was a lawyer, to

look into the euation and he began, on her behalf, an intensive and

certainly diligent effort to ascertain if Ms. Winters had a viable lawsuit

and, if she did, to secure her a lawyer. He eventually got in touch with the

American Trial Lawyers Association and they recommended the

undersigned counsel, who filed suit well within two years of the date Ms.

Winters first learned that there might be a connection between NHL and

Agent Orange exposure. App. A-81 — A-91.

REASONS FOR GRANTING THE WRIT

L

In View Of Conflicts ng The Federal cer Remo

Statute Urgently Needs Consideration By This C estions Of

‘Acting Under’ Federal Authority And Causal Connection With The State

Court Action.

The Officer’s Removal Statute, 28 U.S.C. 1442(a)(1), provides in

relevant part as follows:

“(a) A civil action or criminal prosecution commenced in a State

court against any of the following persons may be removed by

them to the district court of the United States for the district and

division embracing the place wherein it is pending:

12

(1) Any officer of the United States or any agency thereof,

or person acting under him, for any act, under color of

- such office or on ‘account,’ of any right, title or authority

claimed under any Act of Congress for the apprehension or

punishment of criminals or the collection of the revenue.

In Ivy/Ryan, Judge Weinstein articulated the relevant history of the statute.

781 F. Supp. at 941 — 943. He pointed out that the statute’s “earlier

incarnations were drafted to protect officials who faced state government

resistance to specific federal laws.” id at 941. He noted, as an example,

that in 1932 South Carolina authorized state “criminal prosecution of

federal tariff collectors.” id. at 942. He discussed several amendments to

the statute until it reached its present form in 1948, with the codification of

section 1442(aX1) — (4). Under this last version, Congress extended the

right of removal to any executive branch officer or “person acting under

him” rather than just to revenue officers. Quoting from New Jersey v.

Moriarity, 268 F. Supp. 546, 555 (D.N.J. 1967), Judge Weinstein noted

that the additions to, and modifications of, the statute “left unchanged the

basic theory and purpose of the removal privilege: that the officer was

entitled to — and the interest of national supremacy required — his

protection in actions brought against him which attacked and threatened

him with personal liabilities or penalties.” 781 F. Supp. at p. 942.

Judge Weinstein then discussed this Court’s history with regard to

actions under 1442(a\1) — first Willingham v. Morgan, 395 U.S. 402, 89

13

S.Ct. 1813 (1969) holding that the statute should not be given “a narrow

grudging interpretation”, 89 S.Ct. at 1816, and later Mesa v. California,

489 U.S. 121, 109 S.Ct. 959 (1989), in which, as Judge Weinstein pointed

out, the Court “signaled a narrowing of section 1442.” Id at 943.

Judge Weinstein then pertinently noted:

“The restrictive approach in Mesa reflects concern by the Court

over the rapid expansion of federal court jurisdiction. Between the

time of Willingham and Mesa, for example, the courts found

section 1442(a)(1) conferred jurisdiction in a broad array of cases

well outside the paradigm case of the individual official being

intimidated by the threat of civil or criminal prosecution in state

On the heels of Mesa came the further restriction of section

1442(aX1) removal in Jnternational Primate Protection League v.

Administrators of Tulane Educational Fund, -- U.S. --, 111, S.Ct.

1700, 114 L.Ed2d 134 (1991). Rejecting the view of some

circuits, the Court held that state court suits naming only a federal

agency (rather than a particular official) as defendant were not

removable under section 1442(a\(1) because a federal agency was

neither an ‘officer of the United States’ nor a ‘person acting under

him.’ Justice Marshall, who twenty-two years earlier had authored

Willingham, emphasized the limited focus of section 1442 by

holding that the statute ought to be interpreted as if it reads ‘officer

of the United States or of an agency thereof.’

The Court also reasoned that, in protecting officials rather than

agencies, Congress sought to distinguish lawsuits on the basis of

their susceptibility to state court manipulation. Congress wished to

protect individual officials because, typically, they would be

relying on an official immunity defense, a type of defense ‘fraught

with difficulty and subject to considerable manipulation.’ Jd. 111

S.Ct. at 1709. By contrast, suits against agencies are more

straightforward, leaving hostile state courts with less room to

discriminate.”

781 F. Supp. at p. 943.

14

Judge Weinstein thus pinpointed one of the reasons the Court

needs to grant writ of certiorari in this case — some courts, in cases

involving government contractors, have opened the door to 1442(a\1)

removal much wider than Congress ever intended. See cases discussed in

781 F.Supp. at 947-949. One case cited was District of Columbia v.

Landmark Services, Inc., 411 F. Supp. 1002 (D.D.C. 1976), which

involved removal because defendant had a contract with the District of

Columbia to operate a bus service. In the same vein, a group of decisions

have been handed down since /vy/Ryan taking the government-contractor

concept to its furthest extreme. See Akin v. Big Three Industry Inc. 851 F.

Supp. 819, 822 (E.D. Tex. 1994); Pack v. AC and S, Inc., 838 F. Supp.

1099 (D.C. Md. 1993) and Fung v. Abex Corp., 816 F. Supp. 569, 571-72

(N.D. Cal. 1992). The point is that the court below and other courts are,

we submit, using Sect. 1442(a)(1) to justify removals that go far beyond

the original intent of Congress and the implications of this Court’s prior

precedents.

15

Another reason the Court should grant writ of certiorari is the

direct conflict between the court below and Jvy/Ryan on the question of

Section 1442(aX1) removal. This case and [vy/Ryan both involve the same

defendants; they both involve civilians who were exposed to Agent Orange

in Vietnam; they both involve the same issue concerning removal; and they

both involve precisely the same evidence with regard to the removal issue.

Judge Weinstein - whom no one can question is the preeminent

authority on the Agent Orange litigation ° — after holding that the defendant

corporations were “persons” within 1442(a)(1), ° and that defendants had

asserted colorable federal defenses, id at 944-946, then addressed the core

issue: “When Is A Person ‘Acting Under’ An Officer” within the meaning

of 1442(a\1). He concluded that, in making that determination, the

controlling rule is:

“The rule established is that removal by a ‘person acting under’ a

federal officer must be predicated upon a showing that the acts that

form_the basis for the state civil or criminal suit, were performed

* See Agent Orange on Trial by Prof. Peter Schuck, Harvard Univ. Press.

° Judge Weinstein, in so holding, noted the split in authorities on this issue:

“Federal courts are divided on the question. Compare C.H. v. American

Cross, 684 F.Supp. 1018, 1023-24 (E.D. Mo. 1987) (‘person’ in 1442(a\(1)

refers to natural person) and Roche v. American Red Cross, 680 F.Supp. 1504,

1508-10 (E.D. Wis. 1985) (same) with Peterson v. Blue Cross/Blue Shield,

508 F.2d. 55, 58 (5® Circ.) (‘person’ not limited to natural person), cert

denied, 422 U.S. 1043, 95 S.Ct. 2657, 45 L.Ed.2d 694 (1975); Bakalis, 781

F.Supp. at 143-44 (same); Group Health Inc. v. Blue Cross Ass'n, 587 F.Supp.

887, 890 (S.D.N.Y. 1984) (same).”

781 F.Supp. at 946.

16

pursuant to an officer’s direct orders or to comprehensive and

detailed regulations.”

781 F. Supp. at 947. Judge Weinstein, based upon the undisputed

evidence, concluded as follows:

“They (defendants) are being sued for formulating and producing a

product all of whose components were developed without direct

government control and all of whose methods of manufacture were

determined by the defendants. Although the defendants later

produced and delivered Agent Orange under the control of federal

officers, these subsequent acts are distinct from the earlier acis of

product and manufacturing design being sued upon. The

government sought only to buy read-to-order_ herbicides, not to

cause, control, or prevent the production of the unwanted

dioxin, which is the all cause of plaintiff's injuries.

The necessary direct and detailed official control over the acts for

which the defendants are now being sued is therefore lacking.”

781 F. Supp. at p. 450; emphasis ours.

The court below, though having before it the very same

defendants, causes of action, removal/remand issue under 1442(a)(1) and

the very same evidence as were before Judge Weinstein, reached a

diametrically opposite holding. 149 F.3d at 397-400, 401; App. A-62 to A-

67, A-71 (ftnte 16). The court, erroneously we submit, gave a broad

interpretation to 1442(a)(1) with regard to the issue of “acting under”, even

though it did articulate the test essentially correctly:

17

“The second factor necessary for Sect. 1442 removal is a finding

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 (in the state

court action).”

149 F.3d at 398.

The court below quoted from the affidavit of John P. Frawley of

defendant Hercules but that very same affidavit was before Judge

Weinstein.’ The court below then articulated its disagreement with Judge

Weinstein as follows:

“Judge Weinstein determined that remand was proper because he

found that the defendants had failed to satisfy the second prong of

the Federal Officer Removal Statute — that they acted under color

of federal office. Ryan, 781 F.Supp. at 950. Judge Weinstein,

although acknowledging that the case presented a close question,

held that the defendants had not demonstrated sufficient

government control over the production of Agent Orange because

‘[t]he government sought only to buy ready-to-order herbicides.’

Id. He found it determinative that the defendants had formulated,

produced and commercially sold all of the component parts of

Agent Orange, albeit in different compositions, before government

involvement. Jd. Our reading of the record, however, reflects that

the alleged deadly properties of Agent Orange result from the

particular mixture of the component chemicals that the government

dictated.”

’ Such affidavit is expressly cited and discussed by Judge Weinstein in his

opinion. 781 Supp. at 937.

18

149 F.3d at p. 401; ftnte. 16. The last statement in the foregoing quote is

rather astounding. Apparently the court below believed that some

“synergistic” effect arose from mixing 2,4,5-T and 2,4-D. But there was

no evidence of any synergistic effect — absolutely none — in the record.

Indeed, the court below simply overlooked or ignored the

undispu ed fact, thoroughly discussed by Judge Weinstein, 781 F. Supp. at

93 , 938, that the essence of plaintiff's claims is that dioxin was the culprit

and the dioxin was already in the components of Agent Orange long before

they were ordered by the government, mixed and used in Vietnam.*

® As Judge Weinstein stated:

“As affidavits from some defendants’ employees indicate, the component

elements of the herbicides delivered to the Defense Department, including the

elements whose production generated dioxin, were developed and used long before

the Vietnam war. See. e.g., Affidavit of John P. Frawley, p. 2 (March 1980)

(Hercules employee); Affidavit of William J. McCarville p. 4 (Dec. 10, 1991)

(Monsanto employee); Affidavit of Michael M. Gordon p. 4 (Dec. 12 1991)

(Diamond Shamrock counsel); see also In re “Agent Orange” Prod. Liab. Lit.,

597 F.Supp. 740, 848-49 (E.D.N.Y. 1984) (noting that Agent Orange was ‘closely

related to shelf products with which the chemical companies had a good deal of

familiarity from the civilian market’ and that ‘defendants had years of experience

with the herbicide’s components’).” 781 F.Supp. at 937.

19

Thus, we have abroad in the federal judiciary two diametrically

opposed holdings with regard to 1442(a)(1) — Jvy/Ryan versus this case. °

This conflict should, we respectfully submit, be resolved as only it can be -

by this Honorable Court.

Another reason supporting the grant of writ in this case is that the

court below is wrong and /vy/Ryan is eminently correct. Indeed, the

weight of authority supports Judge Weinstein’s analysis in /vy/Ryan. See

cases cited in footnote 9. The Good case is especially instructive. In that

case, former members of the U.S. Navy, who worked on several vessels

containing turbine generators which allegedly emitted asbestos, thus

causing personal injuries, brought suit in state court against the

manufacturer of the generators. The manufacturer removed to federal

court under 1442(a)(1).

* The cases, which have held similarly to, or expressly followed, Ivy/Ryan are:

Lovell Manufacturing v. Export Bank, 843 F.2d 725 (3™ Cir. 1988); North

Carolina v. Ivory, 906 F.2d 999 (4* Cir. 1990); First National Bank v. Aberdeen

National Bank, 627 F.2d 843, 848 (8 Cir. 1980); Gulati v. Zuckerman, 723

F.Supp. 353 (E.D. PA. 1989); Brown and Williamson Tobacco Corp. v. Wigand,

913 F.Supp. 530 (D.C.Ky. 1996); Kaplansky v. Associates, YM-YUHA, No, 88-

CV-1292, 1989 WL 29938 (E.D.N.Y. 1989); Good v. Armstrong World Industries,

914 F.Supp. 1125, 1130, 1131 (E.D.PA. 1996); U.S. v. Vertac Chemical Corp.,

841 F.Supp. 884 (E.D. Ark. 1993); Ruffin v. Armco Steel Corp., 959 F.Supp. 770

(S.D. Tex. 1997); Arnold v. Blue Cross & Blue Shield of Texas, 973 F.Supp. 726

(S.D. Tex., 1997); Guillory v. Ree’s Contract Services, Inc., 872 F.Supp. 344 (S.D.

Miss. 1994); and Arness v. Boeing North Amer. Inc., 997 F.Supp. 1268 (N.D. Cal.

1998). The district court cases which have ruled against remand on such issue are:

Akin v. Big Three Industry Inc., 851 F.Supp. 819, 822 (E.D. Tex. 1994); Pack v.

AC and S, Inc., 838 F.Supp. 1099 (D.C. Md. 1993); Fung v. Abex Corp., 816

F.Supp. 569, 571-72 (N.D. Cal. 1992); and the decision of the courts below in this

case.

20

In granting the plaintiffs’ motion to remand, the court relied upon,

and extensively citted, Judge Weinstein’s opinion in /vy/Ryan and stated:

“This facttual recitation evidencing the conglomerate of people

employed by the United States Navy who had oversight authority,

does not support the blanket assertion by Westinghouse that the

Secretary of the Navy provided direct detailed control over

Westinghouse. The suggestion in the notice of removal that the

Secretary of the Navy was connected to the design and

manufacture of turbines by Westinghouse is not supported by the

record and! indeed is refuted by the record. At most, the Secretary

appears to have been the official outer point of multiple layers of

individuals; employed by the federal government who worked with

Westinghowse during the design and manufacture of the turbines.

Although it is true that the United States Navy and many

individuals, employed by the Navy worked with Westinghouse,

Westinghouse does not show that the Secretary of the Navy or any

other federal officer directly controlled and supervised the work of

Westinghouse.”

914 F. Supp. at 1129.

In Vertac, while the case did not involve removal under 1442(a\1)

but involved the question whether the U.S. had sufficient control over the

Agent Orange matpufacturer, Hercules, to make the U.S. liable as an

“arranger” under the Comprehensive Environmental Response,

Compensation, and Liability Act of 1980 Sect. 107 (a) (2), 42 U.S.C.A.

Sect. 9607 (a) (2) (“CERCLA”), the court expressly followed Judge

Weinstein’s reasoniing in the Jvy/Ran decision that there was a lack of

compulsion or contirol with respect to the “ready to order” Agent Orange

herbicides used in the Vietnam War. 841 F.Supp. at 890.

21

Ruffin involves a state court suit for damages arising out of an

asbestos-related death. Defendant Armco removed under 1442(a\1),

asserting that governmental officials controlled and directed the

construction of ARMCO’s steel plant (which is where the alleged asbestos

was situated). Citing and quoting from /vy/Ryan extensively, 959 F. Supp.

at 775, 776, the court remanded the case to the state court, noting:

“Critical under the statute is ‘to what extent defendants acted under

federal direction’ at the time they were engaged in the conduct

now being sued upon.”

959 F. Supp. at 775. As noted above, /vy/Ryan made it clear that the

alleged defective design and manufacture of the 2,4,5-T and 2,4-D

occurred long before the sale of the Agent Orange to the Government.

With regard to failure to warn allegations in the state court suit,

Ruffin had this to say:

“Because the claims asserted by the Estate in this case are

. predicated on negligence and limited to a failure to warn theory of

liability, Armco must show that the government authority it

operated under directly interfered with its ability to fulfill its state

law obligation to warn its employees of safety hazards. See Ryan,

781 F.Supp. at 950 (holding removal improper under Sect.

1442(aX(1) because defendants were sued for producing a product

comprised of components developed without government control

and although defendants were required under war contract to

supply the government with product requisite connection between

defendants’ conduct and state law action was missing).”

959 F.Supp. at 976.

oS Ces Me

Oe Ae Re TRS LN NNN AES SESS SEE

In this case, the allegations of failure to warn in the plaintiff's

petition pertain to the failure of the defendants to advise the decision-

makers in the United States Government — for example, the President,

Secretary of Defense, the Chairman of the Joint Chiefs of Staff and the

commanding officers in Vietnam such as Admiral Zumwalt — that the

Agent Orange contained dioxin and of the real hazards of such herbicide.

It is the plaintiffs position that, had the defendants so warned, the Agent

Orange probably would not have been used and only those herbicides that

did not contain dioxin would have been used. Again, the Government

certainly never sought to exercise control over the defendants so as to

prevent them from telling the Government decision-makers the truth about

the dioxin and its potential hazards. The plaintiff never contended that any

labels, that might have been put upon the containers had it not been for the

mandate of the government, would have been seen by any of the veterans

or civilians in any event. Therefore, this case is not, and never has been,

the classic “failure to warn to users” product liability case. It has always

been a defective and negligent design and manufacture case, relating to the

presence of dioxin in the Agent Orange, along with the alleged failure to

warn the decision-makers.

23

In Arness, a state court suit was filed against federal contractors

asserting environmental pollution in violation of state law. The defendant

contractors removed under 1442(a)(1) and plaintiffs filed a motion to

remand. In granting the motion to remand, the court, citing and quoting

from /vy/Ryan, held that, while the government did order the defendants

“to flush rocket engine hardware with TCE (the complained-of chemical)

‘to satisfy the government’s production requirements’”, the plaintiffs

“lawsuit is premised on BNA’s disposal of TCE, not its use of TCE.” 997

F. Supp. at 1273-1276; emphasis ours."°

Finally, in Guillory the court, after citing and thoroughly

discussing /vy/Ryan, held that:

“Certainly, the contract, as well as the guard post assignment,

establishes some basic parameters within which Ree’s services are

to be performed. However, based on the totality of the evidence,

the court can conclude only that the relevant acts occurred under

the general oversight of a federal officer. Defendants simply have

not demonstrated the type of detailed direction necessary to

support the removal. Accordingly, the court concludes that

plaintiffs motion to remand must be granted.”

872 F. Supp. at 348.

In many of the federal contractor cases, wherein the courts have

refused to remand after removal under 1442(a)(1), the courts have gone out

of their way to distinguish /vy/Ryan, not to reject it, as the court below did.

'° And in Arnold the court cited and relied upon vy/Ryan in rejecting removal

under 1442(a\1). 973 F. Supp. at 740-743.

24

See Pack v. AC and S, Inc., 538 F.Supp. 1099 (D.C.Md.1993). And in

Fung v. Abex Corp., the court stated:

“Ryan is also distinguishable from the instant case since

defendants in Ryan were being sued for formulating and producing

a product of whose components were developed without direct

government control and all of whose methods of manufacture were

determined by the defendants. Ryan, 781 F.Supp. at 950. While

the government contracted defendants to build submarines in the

instant case, it monitored General Dynamics’ performance at all

times and required the defendant to construct and repair the vessels

in accordance with the applicable and approved specifications

incorporated into the contract.”

815 F.Supp. at 572, 571.

In Crocker v. Borden Inc., 852 F. Supp. 1322 (E.D. LA., 1994), the

court acknowledged that “the third Mesa requirement is that Westinghouse

must demonstrate a causal nexus between the claims against it and the acts

it performed under color of federal office,” 852 F.Supp. at 1327, but made

the same finding of nexus that was made in Fung, which was factually

similar to Crocker.

However, based upon its statement of facts, Akin cannot be

distinguished from Ivy/Ryan. The district judge who decided Akin is also

the district judge who decided this case (Judge Cobb).'’ Now that the Fifth

Circuit has affirmed the district court in this case, a stark and unmitigated

conflict among the decisions of the federal courts has been presented.

' As noted by Judge Cobb in his decision in this case:

“This court respectfully disagrees with the decision in Ryan.”

901 F.Supp. at 1200.

25

Another reason the Court should, we submit, grant writ with regard

to the 1442(a)1) removal in this case is the impact of the issue upon the

venerable doctrine of federalism. Judge Weinstein focused upon this

consideration in /vy/Ryan:

“From the standpoint of federalism, its mere assertion of a

nebulous federal procurement interest cannot, without further

specification, be a basis for removal. Otherwise any state suit

against a manufacturer whose product has at one time been

diverted and adapted for military use — for example, a nuisance suit

against a metal foundry — would potentially be subject to removal,

seriously undercutting the power of the state courts to hear and

decide basic tort law. Such a result is incompatible with the

respect owed to state courts under our federal system.”

781 F.Supp. at 951.

Plaintiff certainly agrees with that observation. However, efforts

by federal contractor defendants, encouraged by decisions such as Akin and

the decision in this case, are a cause of serious concern. Many lower

federal courts seem to have lost sight of this court’s admonishment in

Shamrock Oil and Gas v. Sheets, 313 U.S. 100, 61 S.Ct. 868, 872 (1941):

“The policy of the successive acts of Congress regulating the

jurisdiction of the federal courts is one calling for the strict

construction of such (removal) legislation. The power reserved to

the states under the constitution to provide for the determination of

controversies in their courts, may be restricted only by the action

of Congress in conformity to the Judiciary Articles of the

Constitution. Due regard for the rightful independence of state

governments, which should actuate federal courts, require that they

scrupulously confine their jurisdiction to the precise limits which

the statute has defined.”

61 S.Ct. at 872.

26

d

Finally, important questions of federal procurement policy suggest

the need for intervention by this Court. Again, Judge Weinstein mentioned

the potential impact upon federal procurement policy:

“The point is not that section 1442(aX1) is necessarily

inappropriate to protect the enforcement of federal procurement

policy. It is that removal is not appropriate when the civil or

criminal suit brought in state court has only a speculative impact

on such policy. In this respect the defendants are in an altogether

different position from the private insurers, which as Medicare

intermediaries, have relied on section 1442(aX1). See cases cited

in Part II.B.2.b., supra. The insurers act as continuing conduits for

government policy and the state court lawsuits had the potential to

interfere with an ongoing federal program. The defendants, by

contrast, are being sued entirely for past acts in allegedly providing

a tainted product to the government.”

781 F.Supp. at 951.

In the final analysis, a detached and objective reading of

1442(a)(1) and its congressional history raises the question of whether it

was ever intended to be extended as far as government contractors are

seeking to extend it. With the direct conflicts among the lower courts and

the other considerations discussed above, it is clear, we respectfully

submit, that this is a question that urgently needs to be resolved by this

Honorable Court.

'? There are certain hypothetical situations wherein Judge Weinstein felt the

federal contractor could properly remove the case to federal court. See 781 F.

Supp. at 941-944, 945-952. Plaintiff does not agree with this thinking and urges

the Court to grant writ and limit 1442(a)(1) to its original intent. In any event,

whether or not the Court goes beyond the precise question presented, at the very

least, it is, we respectfully submit, extremely important for the Court to resolve the

direct conflict between Ivy/Ryan and this case.

27

Il.

The Question of Whether the Doctrine of Collateral Estoppel Is

licable Where the P. ing Estoppel Claims It Did Not

Have A Right To The Earlier Decision, Needs Resolution

This Court.

In this Court’s seminal decision establishing the right to offensive

collateral estoppel, Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct.

645, 58 L. Ed.2d 552 (1979), the Court noted:

“Collateral estoppel, like the related doctrine of res judicata, has

the dual purpose of protecting litigants from the burden of

relitigating an identical issue with the same party or his privy and

of promoting judicial economy by preventing needless litigation.”

99 S.Ct. at 649. The Fifth Circuit articulated the principle elements of

collateral estoppel as follows:

“(1) the issue under consideration is identical to that litigated in

the prior action; (2) the issue was fully and vigorously litigated in

the prior action; (3) the issue was necessary to support the

judgment in the prior case; and (4) there is no special circumstance

that would make it unfair to apply the doctrine.”

Winters, 149 F.3d at 391.

In this case, the court below does not take issue with the fact that

all of the first three stated elements were satisfied. 149 F.3d at 391 — 396.

As to the last element, “unfairness,” in Parklane this Court gave three

examples of when it would be “unfair” to apply the doctrine of collateral

estoppel:

28

“In the present case, however, none of the circumstances that

might justify reluctance to allow the offensive use of collateral

estoppel is present. ... First, in light of the serious allegations made

in the SEC’s complaint against the petitioners, as well as the

foreseeability of subsequent private suits that typically follow a

successful Government judgment, the petitioners had every

incentive to litigate the SEC lawsuit fully and vigorously. Second,

the judgment in the SEC action was not inconsistent with any

previous _ decision. Finally, there will in the

respondent’s action be no procedural opportunities available to the

petitioners that were unavailable in the first action of a kind that

might be likely to cause a different result.”

99 S.Ct. at 652. The Fifth Circuit did not conclude that any one of the

three examples set out in Parklane applied in this case. Instead, it reached

Out to a purported ground for “unfairness” not mentioned nor discussed in

Parklane: that, because the prior proceeding involved an order (remand

order) from which the usual right to appeal has been purportedly prohibited

by statute, it would be “unfair” to collaterally estop the defendants with

respect to such prior order in a subsequent judicial proceeding. 149 F.3d at

391-396.

This holding by the court below is directly contrary to the prior

holding of this Court, earlier decisions of the Fifth Circuit and other circuit

courts and federal decisions. Early on, this Court, in Johnson Steel St. Rail

Co. v. Wharton, 152 U.S. 252, 14 S.Ct. 608 (1894), was confronted with

the question of whether a judgment — obtained in a prior proceeding from

which the losing party could not appeal because the amount in controversy

29

was too small — could constitute res judicata in a subsequent proceeding.

The Court stated:

“The inquiry as to the conclusiveness of a judgment in a prior suit

between the same parties can only be whether the court rendering

such judgment — whatever the nature of the question decided, or

the value of the matter in dispute — had jurisdiction of the parties

and the subject matter, and whether the question sought to be

raised in the subsequent suit was covered by the pleadings, and

actually determined in the former suit. The existence or

nonexistence of a right, in either to have the judgment in the

prior suit re-examined, upon appeal or writ of error, cannot, in any

case, control this inquiry.”

14 S.Ct. at p. 611; emphasis ours. There are numerous other federal

decisions applying this same rule, and some have extended it to collateral

estoppel situations. See Napper v. Anderson, Henley, Shields, Bradford &

Pritchard, 500 F.2d 634 (5" Circ. 1974);'° Johnson v. Herold, 161 F. 603

(Cir. Ct., N.J. 1907); Winters v. Lavine, 574 F.2d 46, 62 ve Circ. 1978);

'3 Napper is precisely in point. It is a removal case, wherein the prior court

remanded because it found there was a lack of removal jurisdiction in view of the

absence of diversity. In a subsequent proceeding, the defendant argued against

estoppel on the question of diversity on the theory that, since defendant could not

appeal from the prior remand order, it should not be estopped to show diversity

and removal jurisdiction in that subsequent proceeding. The court rejected that

argument and held that estoppel applied. The court stated:

“As between the two federal district courts, the inability to appeal from

the order of remand does not permit the issue actually litigated and

determined in the federal court in Arkansas to be relitigated in the second

action. Johnson Company v. Wharton, 1894, 152 U.S. 252, 14 S.Ct. 608,

38 L.Ed. 429.”

500 F.2d at 636, 637. The reasoning of the court of appeals in this case as to how

it could distinguish this case from the rationale of its own decisions in Napper and

Frith is really strained. See finte 14, infra. But the obvious discord between the

Fifth Circuit in this case and its prior decisions in Napper and Frith point up all

the more reason why this Court should intervene.

30

Frith v. Blazon-Flexible Flyer, Inc., 512 F.2d 899 (5 Circ. 1975)

(applying collateral estoppel to finding of no fraudulent joinder in

removal/remand determination in a prior proceeding); see the dicta in

F.T.C. v. Food Town Stores, Inc., 547 F.2d 247, 249 (4" Circ. 1977); and

see In re Life Ins. Co. of N. Amer., 857 F.2d 1190, 1193 (8" Cir. 1988)

(holding that findings in remand hearing have preclusive effect). The court

in Winters v. Lavine stated pertinently:

“We believe that there are two reasons why the Appellate

Division’s decision should retain its preclusive effect despite

Winters’ inability to appeal from it as of right. First, even if there

were nO opportunity whatsoever for Winters to appeal the

Appellate Division’s ruling, that decision would still retain its

preclusive effect, for the extent of preclusion produced by a prior

judicial determination of material and essential issues is not

affected by the fact that the losing party could not appeal that

determination to a higher court. Johnson Co. y. Wharton, 152 U.S.

252, 256-57, 260-61, 14 S.Ct. 608, 38 L.Ed. 429 (1894); Ex parte

Pennsylvania, 109 U.S. 174, 176, 27 L.Ed. 894 (1883); Napper v.

Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d 634,

636-37 (5" Cir. 1974), cert. denied 423 U.S. 837, 96 S.Ct. 65, 46

L.Ed.2d 56 (1975); Elk Garden Co. v.T W Thayer Co., 206 F.

212, 215 (W.D.Va. 1913), writ of error dismissed with consent of

defendant in error, 228 F. 1021 (4" Cir. 1915).”

574 F.2d at 62.

Somewhat related to the point here is the Munsingwear doctrine,

formulated in U.S. v. Munsingwear, Inc., 340 U.S. 36, 71 S.Ct. 104 ( 1950).

There the court held that a prior determination, wherein an appeal

therefrom was dismissed as moot, could still provide the basis for collateral

estoppel or res judicata. For a thorough discussion of Munsingwear

31

doctrine, see Milton S. Kronheim & Co. v. District of Columbia, 91 Fed 3d

193, 212 (D.C. Cir. 1996).

On the other hand, there are a number of cases, aside from this

case and the decision of the court below, that appear to be in direct conflict

with the holding in Johnson Steel."* See the comment of this Court in

Standefer v. U.S., 447U.S. 1023, 100 S.Ct. 1999, 2007 (1980) that the

unavailability of appellate review “strongly militates against giving” a

judgment preclusive effect; Nutter v. Monongahela Power Co., 4 F.3d 319

(4™ Cir. 1993);'° Baldridge v. Kentucky Ohio Transp., Inc., 983 F.2d 1341,

'* The court below acknowledged the decision in Johnson Steel but, in what

appears to be very superficial reasoning, tried to distinguish it, stating:

“The Supreme Court decided in 1894 that unavailability of appellate

review alone could not preclude the application of the doctrine of res

judicata. Johnson Steel Street Rail Co. v. Wharton, Jr. & Co., 152 U.S.

252, 261, 14 S.Ct. 608, 38 L.Ed. 429 (1894). The Court held that the

existence or nonexistence of a right, in either party, to have the judgment

in the prior suit re-examined, upon appeal or writ of error, cannot in any

case control [the inquiriy into the application of the doctrine or res

judicata].”. . .

We note, however, that the Johnson Steel case, issued in 1894, was a

‘true’ res judicata decision, rendered before nonmutual collateral estoppel

was even recognized. Napper and Frith are also pre-Parklane and

involved mutual — not nonmutual offensive — estoppel decisions.

Furthermore, as noted supra note 9, the rules applicable to offensive

collateral estoppel generally are more restrictive.”

149 F.3d at 396, finte. 11.

' In Nutter, the court stated:

“We do not believe the district court’s jurisdictional findings incident to

remand should preclude relitigation of the same issues im state court.

Accordingly, we hold that the district court’s jurisdictional findings

regarding complete preemption have no preclusive effect. Under our

holding, any issues on remand may be relitigated in state court.”

4 F.3d at 323.

32

1347-50 (6" Circ. 1993); Whitman v. Raley’s, Inc., 886 F.2d 1197, 1181

(9th Cir. 1989); Glasser v. Amalgamated Workers Union Local 88, 806

F.2d 1539, 1540-41 (11™ Circ. 1986); and Hussein v. Oshkosh Motor Truck

Co., 816 F.2d 348, 356 (7 Circ. 1987).

We respectfully submit that the Court should resolve these

conflicts among the federal courts. It is particularly necessary to do so

because these conflicts center upon such important considerations as

finality of judgments, economy of justice, fairness in not giving a party

more than one day in court on a particular issue, the streamlining of the

justice system through the application of res judicata and offensive

collateral estoppel and the effect of the absence of the usual method of

appeal with respect to the application of collateral estoppel and res

judicata.

The judicial turmoil that is generated by decisions such as that of

the court below, seizing as it does upon something so remote as the right to

an appeal to preclude the application of such venerable doctrines as res

judicata and collateral estoppel, we respectfully submit rises to the level of

appropriate certiorari intervention.

We also point out that the defendants in this case were granted by

the district court leave to appeal the remand decision in Ivy/Ryan under 28

U.S.C. 1292(b). The effect of a permissive appeal upon subsequent

33

collateral estoppel is discussed in Winters v. Lavine, 574 F.2d at 62

(discussing discretionary appeal under N.Y.C.P.L.R., Sect. 5602(a)(1)\i)

and how it militates in favor of preclusive effect). Also, while 28 U.S.C.

1447(d) has been construed generally to preclude appeals from remand

orders, there are exceptions, for example the Thermtron doctrine. See

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S. 336, 353, 96 S.Ct.

584, 593 (1976) and, for an extension of that doctrine, Tingey v. Pixley-

Richards West, Inc., 953 F.2d 1124 (9 Cir. 1992).

In the final analysis, the central question before the Court, with

regard to the application of collateral estoppel in this case, is whether an

order of remand can ever have collateral estoppel or preclusive effect. The

court below essentially held that a remand order, or any order from which

the usual right of appeal does not exist, can never have preclusive effect. '®

This is the holding that has created serious conflict among the federal

courts and has significant impact upon the efficacy of the collateral

estoppel doctrine.

'© The court below seemed to rely heavily upon Comment O of the Restatement

(Restatement [Second] of Judgments, Sec. 27, comment O), which states that “the

balance weighs in favor of preclusion... (because) the losing party has here

obtained an appellate decision on the issue.” However, we have not found where

this Court has adopted comment O or given it the broad effect the court below has

given it.

34

And, if the preclusive effect of a remand order is ever possible,

certainly it should have that effect in this case. In lvy/Ryan, defendants had

the judge they had sought through the JPMDL and the judge who clearly

had the most knowledge about the Agent Orange litigation (Judge

Weinstein).'’ Defendants had a judge who, based on historical data, had

ruled in favor of the defendants a great majority of the time. For example,

in In Re Agent Orange, 996 F.2d 1425, 1428-1430 (2™ Circ. 1993) the

court discusses the long list of decisions in which Judge Weinstein had

held favorably to defendants. Defendants were allowed by Judge

Weinstein to put on all the evidence they wanted to. Judge Weinstein had

even allowed defendants to add the 1442(aX(1) ground after the 30 day

removal period had gone by. 781 F. Supp. at 939-941. Defendants were

given all the time they needed to brief and argue the removal/remand under

1442(aX(1). Judge Weinstein also certified, at defendants’ request, an

interlocutory appeal on the remand issue. id. at 952, 953. Defendants had

two shots in the court of appeals, one on interlocutory appeal and the other

on the petition for mandamus. No one can say, therefore, that defendants

did not have a fair and complete opportunity with respect to the 1442(a)\1)

issue, to present their version of the facts and law.

35

In sum, the issue of collateral estoppel, like the issue of ‘acting

under’ within the meaning of 1442(aX(1) is — with the direct conflicts

among the federal courts, the importance of questions dealing with the

finality of judgments and economy of justice and the efficacy of the

offensive collateral estoppel doctrine — very ripe for consideration by this

Court.

Til. —

The Question of Whether a Corporation Is A “Person” Within The

Meaning of 1442(a)(1) Is Also Deserving of Intervention By This

Court.

In Ivy/Ryan, Judge Weinstein concluded that a corporation can be

a “person” within the meaning of 1442(a)(1), 781 F. Supp. at pp. 946, 947

and, in so holding, noted the division among the courts on this issue. See

footnote 6, supra.

A reading of the cases cited in that footnote discloses reasonable

rationales for the holdings in both of these lines of authority. Part of the

reason these diametrically opposed camps have arisen in the federal

judiciary is that, as Judge Weinstein noted, the “(I)egislative history is ...

unilluminating.” Id. at 946.

Since the use of 1442(a\(1) for removal purposes is rapidly

increasing, we respectfully submit that it is ever more important for the

Court to resolve this conflict among the federal courts.

36

We submit that a reasonable extension of this Court’s decision in

International Primate Protection League v. Administration of Tulane Educ.

Fund, 500 U.S. 72, 111 S.Ct. 1700 (1991) — wherein the court held that the

phrase “person acting under” should be construed narrowly and that it was

not meant to include “government agencies” — is that “persons acting

under” also does not include corporations.

Whatever the correct interpretation of that phrase, we submit that it

must come from this Court. This case is an appropriate vehicle for the

Court to resolve this extremely important question.

IV.

The Statute of Limitations Issue

Because, once the Court decides that this case should have been

remanded, every action of the courts below following the erroneous denial

of the motion to remand becomes void, there is no real need to discuss the

grant of summary judgment by the courts below. However, out of an

abundance of caution, we want the Court to know that the courts below

erred with regard to the limitation issue because they misinterpreted and/or

misapplied the Texas discovery rule.

With all due respect, the courts below seemed to forget that their

function was not to decide the factual issue of “discovery of the injury and

its cause” but simply to decide whether a factual dispute as to that issue

existed. Clearly, the deposition of Margaret Winters establishes such a fact

issue. See A-81 to A-91. Whether she was telling the truth when she

testified under oath that she did not discover that her NHL may have been

caused by her exposure to Agent Orange in Vietnam until within two years

of the filing of her suit, is unquestionably a matter for the jury or fact-

finder.

The irony is that the Texas “discovery rule” was accurately

described by the court below in another of its decisions, Glasscock v.

Armstrong Cork Co., 946 F.2d 1085, 1092 (5® Cir. 1991) cert. den. 112

S.Ct. 1778 (1992):

“The parties agree that in Texas a two year statute of limitations

controls this products liability action. See Tex. Civ. Prac. & Rem.

Code Ann. Sect. 16.003. Texas has adopted a discovery rule for

determining when a cause of action accrues for certain classes of

cases. See Gaddis v. Smith, 417 S.W.2d 642, 644 (Tex.1988). The

limitation period for a products liability action does not begin to

run until a plaintiff discovers or should have discovered his injury

and its cause in fact. Mann v. A.H. Robins Co., 741 F.2d 79, 82

(5™ Cir. 1984); see also Woodruff v. A.H. Robins Co., 742 F.2d

228, 229 (5™ Cir. 1984). The statute of limitations did not accrue

in this case until Roy Ghent knew or should have known that his

injuries resulted from exposure to asbestos.”

946 F.2d at 1092; emphasis ours.

38

—

Indeed, how could a court hold that Ms. Winters should be

expected, as a matter of law, somehow to know that Agent Orange causes

NHL over two years before the suit was filed in early 1993, when the

Second Circuit, in that very same year, stated:

“In addition, despite continuing research, the crucial issue of

‘general causation,’ i.e. whether any injuries are attributable to

Agent Orange, remains unsettled. As one 1992 commentator noted,

reviewing scientific literature: ‘To date there has been no conclusive

evidence that exposure to Agent Orange is carcinogenic, mutagenic

or teratogenic in humans. Furthermore, no deaths attributable

solely to exposure to Agent Orange and its dioxin contaminant have

been reported.’ 13B Arthur L. Frank, Courtroom Medicine:

Cancer 25A-4.”

In Re Agent Orange, 996 F.2d 1425, 1436-37 (2™ Cir. 1993).'8

In any event, once this case is remanded to the state courts of Texas

they will, no doubt, follow the rule established long ago in Texas that the

plaintiff must discover not only the injury but also the cause of the injury

before the limitation period begins to run.

Conclusion

The Court has before it, by virtue of this Petition, three extremely

important issues — all of which are hotly disputed among the federal courts,

'* Of course the study by Congress and other epidemiological studies have, in the

last five years, made it clear that there is more than enough scientific support to

establish a causal connection between exposure to Agent Orange and NHL.

39

all of which involve crucial questions in the field of removal/remand law and

collateral estoppel and all of which are very ripe for intervention and

resolution by this Honorable Court.

Wherefore, Plaintiffs request this Court to grant writ of certiorari

on all three questions presented.

Respectfully submitted,

CB~—_ 1S

Benton Musslewhite

T.S.B. No. 14752000

6161 Savoy Street, Suite 810

Houston, Texas 77036

713/783-2250 Phone

713/783-2260 Fax

Attorney for the Petitioners