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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1999
- **Citation:** 526 U.S. 1034

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386018_1151%3A1. Public record. Not legal advice.