Opposition Brief — Winters v. Diamond Shamrock Chemical Co.

Supreme Court, US.

FILE D

|

51999 |

No.98-1140 FEB 16 19 |

CLERK

In the Supreme Court of the United States

OcToOBER TERM, 1998

JOHN WINTERS, SR., INDIVIDUALLY AND AS THI

REPRESENTATIVE OF THE ESTATE OI!

MARGARET WINTERS, DECEASED

Petitione -

VS

DIAMOND SHAMROCK CHEMICAL COMPANY

MONSANTO COMPANY; UNIROYAL INCORPORATED

HERCULES INC.; THOMPSON-HAYWARD CHEMICAL COMPANY

also known as Thompson Chemical Corporation; TH AGRICULTURI

& NUTRITION COMPANY, IN¢

Responde AES

On Petition For a Writ of Certiorari To The

United States Court of Appeals For the Fifth Circuit

RESPONDENTS' JOINT BRIEF IN OPPOSITION

Steven Brock* Michael M. G

RIVKIN, RADLER & KREMER CADWALADEK

EAB Plaza WICKERSHAM &

Uniondale, New York 11556 OO Maiden Lar

(S516) 357-3000 New York, N

“Cou '

Attor

Virgil Mountain, Inc. (212) 779-4046

“RORY IESG 2 HEH

Nm

QUESTIONS PRESENTED

Whether the courts below erred in finding—on the unique

factual record developed in Agent Orange product liability

litigation—that Respondent Agent Orange manufacturers

acted pursuant to federal officers’ directions and that a

causal nexus existed between Respondents’ action under

color of federal office and Petitioner’s claims of injury due

to Agent Orange for purposes of federal jurisdiction under

28 U.S.C. § 1442(a)(1) based on findings of jurisdictional

facts that, inter alia: (1) Respondents were “compelled to

deliver Agent Orange to the government under threat of

criminal sanctions”; (2) federal officers mandated “detailed

specifications” for Agent Orange and Respondents

complied with those specifications; and (3) the alleged

harmful design feature of Agent Orange was “expressly

considered and mandated” by the government.

Whether the court of appeals correctly ruled that the district

court did not abuse its “broad discretion” under Parklane

Hosiery by denying offensive collateral! estoppel effect to a

prior district court ruling that was, among other

limitations, tentative and unreviewable on appeal.

Whether a corporation is a “person” entitled to remove

under § 1442 in circumstances where a private individua:!

would be so entitled.

INTERESTED PARTIES

John Winters, Sr., Individually and

as Representative of the Estate of

Margaret Winters Petitioner

Fr. Martin Winters Petitioner

Charles Winters Petitioner

Diamond Shamrock Chemicals Company Respondent

The Dow Chemical Company Respondent

Monsanto Company Respondent

Uniroyal, Inc. Respondent

Hercules, Incorporated Respondent

Thompson-Hayward Chemical Company Respondent

T.H. Agriculture & Nutrition Company, Inc. Respondent

ii

CORPORATE DISCLOSURE STATEMENT

In accordance with Rule 29.1 of the Supreme Court Rules,

respondents hereby state:

i. Diamond Shamrock Chemicals Company

In 1986, Occidental Chemical Corporation, an indirect,

wholly-owned subsidiary of Occidental Petroleum

Corporation, became the successor by merger of Diamond

Shamrock Chemicals Company. Occidental Petroleum

Corporation has the following non-wholly owned subsidiary:

Canadian Occidental Petroleum Ltd.

2. The Dow Chemical Company

The Dow Chemical Company is a_ publicly traded

company. It has no parent company. Upon information and

belief, The Dow Chemical Company owns five percent or

more of the shares issued to the public by Astropower, Inc.

3. Hercules Incorporated

Hercules Incorporated is a publicly held corporation

whose shares are traded on the New York Stock Exchange. It

has no parent company. Upon information and_ belief,

Hercules Incorporated has the following subsidiaries:

Abieta Chemie GmbH

Algas Marinas S.A.

Alliance Technical Products

Aqualon Company

Aqualon France BV

Citrus Colloids Braspectina S.A.

Copenhagen Pectin A/S

Copenhagen Pectin S.A.

lil

Curtis Bay Insurance Co., Ltd.

East Bay Realty Services, Inc.

FiberVisions A.G.

Fiber Visions A/S

FiberVisions Argentina S.A.

FiberVisions (China) A/S

FiberVisions (China) Textile Products, Ltd.

FiberVisions GmbH

Fiber Visions Incorporated

FiberVisions L.L.C.

FiberVisions de Mexico, S.A. de C.V.

FiberVisions Products, Inc.

FiberVisions Products de Mexico, S.A. de C.V.

Franchem AG

Genu Philippines, Inc.

Genu Products Canada Ltd.

Hechem BC

Hercofina

Hercules AB

Hercules BV

Hercules Belgium N.V.

Hercules Canada Inc.

Hercules Chemical Corporation

Hercules China Limited

Hercules Country Club, Inc.

Hercules Credit, Inc.

Hercules CZ S.R.O.

Hercules de Mexico, S.A. de C.V.

Hercules do Brasil Produtos Quimicos Ltda.

Hercules Deutschland GmbH

Hercules Eastern Europe BV

Hercules Europe N.V.

Hercules Finance Company

Hercules Flavor, Inc.

Hercules GmbH

Hercules International Limited

Hercules International Trade Corporation Limited

Hercules (UK) Investments Finance Ltd.

Hercules Investments PLC

Hercules Investments Global Ltd.

Hercules (UK) Investments Limited

Hercules Investments L.L.C.

Hercules Investments P.L.C.

Hercules Islands Corporation

Hercules Italia S.p.A.

Hercules Japan Ltd.

Hercules Korea Chemical Co. Ltd

Hercules Limited

Hercules Nederland BV

Hercules Overseas Corporation

Hercules Polska Sp.Z.0.0.

Hercules Quimica, S.A

Hercules S.A.

Hercules-Sanyo, Inc.

Hercules Singapore Pte Lid.

Hercules Trading Corporation

Hercules Ultramarine, Inc.

HISPAN Corporation HUK Trustee Company Limited

Inversiones Alfa S.A.

Little H Pty Limited

Organa Trust Reg., in Schaan

Oy Hercofinn AB

Pakistan Gum Industries Limited

Patex-Chemie GmbH

Pesquera Punta Rieles Ltda.

Pomosin GmbH

PRAF Limited

P.T. Hercules Mas Indonesia

Quimica Hercules de Colombia S.A.

Quimica Hercules, S.A. de C.V.

Quimproc, S.A. de C.V.

Rika-Hercules Inc

St. Croix Petrochemical Corp.

Servi Q, S.A. de C.V.

Shanghai Hercules Chemicals Company, Ltd.

Taiwan Hercules Chemicals, Incorporated

Taloquimia, S.A. de C.V.

WSP, Inc.

ZANEA Seaweed Company Limited

Hercules Incorporated merged with BetzDearborn in

October, 1998. Upon information and belief, BetzDearborn

has the following subsidiaries:

BetzDearborn Argentina

BetzDearborn Australia Pry Limited

BetzDearborn Ges.mbH

BetzDearborn N.V.

BetzDearborn Brasil LTDA.

BetzDearborn Canada, Inc.

BetzDearborn de Chile Ltda.

BetzDearborn Colombia S.A.

BetzDearborn Denmark A/S

BetzDearborn de Ecuador S.A.

BetzDearborn OY

BetzDearborn S.A.

BetzDearborn GmbH

BetzDearborn China, Ltd.

BetzDearborn India Private Limited

PT BetzDearborn Persada

BetzDearborn Ireland Limited

BetzDearborn S.p.A.. Nippon BetzDearborn K.K

BetzDearborn Korea Ltd.

Betz (Malaysia) Sdn. BHD

BetzDearborn de Mexico S.A. de C.V.

BetzDearborn B.V.

BetzDearborn Norge A/S

BetzDearborn del Peru S.A.

V1

BetzDearborn Portuguesa, Lda.

BetzDearborn Pta. Ltd.

BetzDearborn South Africa (Pry) Ltd.

BetzDearborn Iberica S.A.

BetzDearborn AB

BetzDearborn Taiwan Limited

BetzDearborn (Thailand) Co. Ltd.

BetzDearborn Limited

BetzDearborn de Uruguay S.A.

BetzDearborn Venezuela C.A.

4. Monsanto Company

Monsanto company is a publicly traded company. It has

no parent. Upon information and belief, Monsanto Company

is affiliated with DeKalb Genetics Corporation.

5. T.H. Agriculture & Nutrition Co., Inc.

T.H. Agriculture & Nutrition Co., Inc. (now known as

T.H. Agriculture & Nutrition L.L.C.), formerly known as

Thompson-Hayward Chemical Company and also sued herein

as Thompson Chemical Corporation, is a wholly-owned

subsidiary of Philips Electronics North America Corporation,

formerly known as North American Philips Corporation.

Philips Electronics North America Corporation is an indirect

wholly-owned subsidiary of Koninklijke Philips Electronic

N.V., a publicly held corporation based in the Netherlands.

6. Uniroyal, Inc. =

Uniroyal, Inc., whose common and preferred shares were

formerly publicly held, having disposed of substantially all of

its assets and businesses transferred its net assets to the sole

shareholder of its common stock, CDU Holding, Inc., a

privately owned company.

TABLE OF CONTENTS

Page

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B. The Winters Agent Orange Action ....................... 3

I. Filing in Texas, Removal to Federal

Court, and Transfer to MDL-381................. 2

2. Judge Weinstein Declines to Rule on

Petitioner’s Motion to Remand and

Transfers the Case Back to Judge Cobb

WP Pia sdirecucticerscsenjatickins enw tecares chess 3

3. Judge Cobb Finds Federal Removal

Jurisdiction Under § 1442. .............ccceeecese 4

4 Judge Cobb Dismisses on Statute of

Limitations And Denies Reargument. ............ 7

5S. The Fifth Circuit Affirms § 1442

Jurisdiction And Dismissal.................22000.. 7

6. Judge Weinstein Indicates He Will

Follow The Fifth Circuit’s Ruling.............. 10

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TABLE OF CONTENTS

Page

Il. Review Of The Denial Of Offensive Collateral

Estoppel Is Not Warranted Because Petitioner Only

Challenges The Result Below, Not The Controlling

Parklane Hosiery Legal Standard, And The Court

Below Plainly Did Not Abuse Its “Broad Discretion”

Under That SatMteed ...s lbs sesedsrccasesuvevavascheereehens Is

lil. Certiorari Is Not Warranted Because The Lower

Courts Are In General Agreement That § 1442

Provides For Removal By Corporations As Well As

Individuals And That Removal By Corporations

Furthers The Policies Underlying Section 1442 ......... 21

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CO ea re ee eek dae

TABLE OF CONTENTS

Pag

Appendix A:

Docket Entry in /n Re “Agent Orange” Product

Liability Litigation, MDL No. 381, Dated

Se v RAI

Appendix B:

Excerpt of Transcript of Proceedings in Miller, et

al. v. Diamond Shamrock Co., et al., No. CY

95-4865 (E.D.N.Y. Jan. 29, 1999).............. RA2

Appendix C:

Docket Entry in Jn Re “Agent Orange” Product

Liability Litigation, MDL No. 381; Miller, et al

v. Diamond Shamrock Co., et al., No. CV 95

4865 (E.D.N.Y.), Dated January 29, 1999...... RAS

Appendix D:

Handwritten Ruling on Motion For Remand,

Miller, et al. v. Diamond Shamrock Co., et al.,

No. CV 95-4865 (E.D.N.Y.), Dated January 29,

rae divsresccveesccccscee. oy RA

Appendix E:

Handwritten Order in In Re “Agent Orange”

Product Liability Litigation, MDL No. 381;

Miller, et al. v. Diamond Shamrock Co., et al.,

No. CV 95-4865 (E.D.N.Y.), Dated February 2,

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Cited:

tational Primate Protection League

Administrators of the Tulane Edu ational Funa

S00 U.S. 72 (1991)

Dollar, 330 U.S. 731 (1947)

j yope Vo. 1), 270 U.S. 9 { 0)

AC and S, In S38 | Supp 1099 (D. Me

1993), rec. denied. 857 } Supp. 26 (D. M

1994)

AT, Hosier ( | Shores 4 j | \

(1979) ( )

Vil \ Blue Cross Blue Shi ld OT Le a ‘

ae (Sth ( iT.) ceri denied . 7) l

} aS 5)

Vational Bank of Commerce of Sa)

Antonio, 290 F.2d 229 (Sth Cir.). cert le?

68 U.S. 832 (1961)

Villingham v. Morgan, 395 U.S. 402 (1969)

nv. Dow Chemical Co., et al., 781 | Sul

934 (E.D.N.Y. 1992), leave to appeal denied

No. 92-8008 (2d Cir. May 8,

lismissed.

1992 ), appeai

(2d

>.4 7

92-74

1]

» 4

NO e) Cir. June 16

: ’ +

YYZ), ceri denied. »

599 | 199?)

No. 98-1140

In the United States Supreme Court

OcrToBerR TERM, 1998

JOHN WINTERS, SR., INDIVIDUALLY

AND AS THE REPRESENTATIVE OF THE

ESTATE OF MARGARET WINTERS,

DECEASED,

Petitioner,

—VS.—

DIAMOND SHAMROCK CHEMICAL COMPANY:

MONSANTO COMPANY; UNIROYAL INCORPORATED:

HERCULES INC.; THOMPSON-HA YWARD CHEMICAL

COMPANY, also known as Thompson Chemical

Corporation; TH AGRICULTURE & NUTRITION

COMPANY, INC.,

Respondents.

On Petition For a Writ of Certiorari

To The United States Court of Appeals

For the Fifth Circuit

RESPONDENTS’ JOINT BRIEF IN OPPOSITION

COUNTERSTATEMENT OF THE CASE

A. The “Agent Orange Saga”

As the court below noted, this action is “part of the Agent

Orange saga” and must be considered in terms of the history

of that litigation. Pet. App. 39. Agent Orange was a herbicide

used by the United States military in Vietnam to protect

American soldiers by defoliating jungle vegetation which

provided cover for opposing forces. Respondents had

manufactured Agent Orange for the military according to

military specifications. Beginning in 1979, hundreds of suits

alleging injury due to exposure to Agent Orange were filed in

the Eastern District of New York and elsewhere against

Respondents and others. All these cases were consolidated for

pretrial proceedings by the Judicial Panel on Multidistrict

Litigation before Judge Jack B. Weinstein in the Eastern

District of New York as MDL No. 381.

One of those cases, a national class action of veterans and

family members, was settled in 1984. Judge Weinstein

approved the fairness of the class action settlement and ruled

that Respondents were entitled to summary judgment on

various grounds in the other pending suits by civilians and by

veteran plaintiffs who opted out of the class action. These

lings were affirmed by the Second Circuit in a series of

opinions in 1987. In re “Agent Orange” Product Liability Lit.,

S18 F.2d 145, 148 (2d Cir. 1987) (overview and summary of

rulings), cert. denied, 487 U.S. 1234 (1988). Numerous

petitions for certiorari were filed, and all were denied by this

Court.

Other Agent Orange actions filed thereafter have continued

to be transferred to MDL-381. See, e.g., In re “Agent Orange”

Product Liability Lit., 996 F.2d 1425 (2d Cir.), cert. denied,

510 U.S. 1140 (1994) (overview of Agent Orange litigation

history) (finding federal jurisdiction over claims of veteran

plaintiffs and dismissing those claims as barred by the 1984

class action settlement).

5

B. The Winters Agent Orange Action

l. Filing in Texas, Removal to Federal Court,

and Transfer to MDL-381.

Margaret Winters filed the present action in Texas state

court on February 5, 1993, alleging injury due to exposure to

Agent Orange. Winters worked as a civilian nurse for the

United States Agency for International Development in

Vietnam from August 1966 to October 1967. Pet. App. 24.

Because she was a civilian, she was not bound by the 1984

veteran Class action settlement agreement and thus not barred

by that agreement from filing this action. Respondents

removed this action to the Eastern District of Texas pursuant to

28 U.S.C. § 1442(a)(1), where it was assigned to Judge

Howell Cobb. Petitioner filed a motion to remand, which

remained pending when the Judicial Panel on Multidistrict

Litigation transferred the action to Judge Weinstein in the

Eastern District of New York.

2. Judge Weinstein Declines to Rule on Petitioner’s

Motion to Remand and Transfers the Case Back to

Judge Cobb in Texas.

Before Judge Weinstein, Petitioner sought remand based

on an earlier ruling by Judge Weinstein in another Agent

Orange case. See Ryan v. Dow Chemical Co., et al., 781

F. Supp. 934 (E.D.N.Y. 1992), leave to appeal denied, No.

92-8008 (2d Cir. May 8, 1992), appeal dismissed, No. 92-

7487 (2d Cir. June 16, 1992), cert. denied, 113 S.Ct. 599

(1992) (“Ryan”). In that opinion, Judge Weinstein, while

finding lack of removal jurisdiction under § 1442, stated that

the issue presented a “close question” and sua sponte certified

the issue for interlocutory appeal. 781 F.Supp. at 950.

However, Ryan was not reviewed on the merits, as the

4

Me

appeals were denied for lack of appellate jurisdiction to review

a remand order. See 28 U.S.C. § 1447(d).

As it happened, Judge Cobb had recently upheld removal

under § 1442 in another case involving toxic tort claims

against a military contractor. See Akin v. Big Three

Industries, Inc., 851 F. Supp. 819 (E.D. Tex. 1994), aff'd,

156 F.3d 1030 (10th Cir. 1998). Respondents argued before

Judge Weinstein that Akin reflected the clear weight of recent

authority and, moreover, that it would be unfair for MDL

transfer from Judge Cobb to Judge Weinstein to change the

result on federal jurisdiction, particularly given the tentative

nature of the Ryan decision. Judge Weinstein decided not to

deny remand based on his earlier ruling in Ryan. Instead, on

April 13, 1995, he sua sponte ordered the case transferred

back to Judge Cobb, “professing a lack of expertise with

Texas substantive law.” Pet. App. 41.

3. Judge Cobb Finds Federal Removal Jurisdiction

Under §$ 1442.

On August 2, 1995, Judge Cobb denied remand, finding

that defendants had properly removed the case under 28

U.S.C. § 1442(a)(1), which provides for removal of actions

against “any [federal] officer (or any person acting under that

officer)... for any act under color of such office.” The

statute protects federal officers and those acting under them

“from being brought to trial in State courts for acts performed

under the authority of the Federal Government.” Pet. App. 5-

6. The court found that Respondents, as corporations, were

“person[s]” entitled to remove under § 1442 because

corporations, like private individuals, engage in activities

under federal direction which the statute is intended to protect.

Pet. App. 4.

The court found that this Court’s rulings on § 1442

required Respondents to demonstrate a “causal

connection” —1.e., “that plaintiff’s state court action is derived

from activities performed pursuant to’ federal direction” —and

assert a “colorable federal defense.” Pet. App. 6-7. The court

found the requisite causal connection based on a finding that

Respondents “were compelled under threat of criminal

sanctions to deliver Agent Orange to the Defense Department.”

Pet. App. 7. Respondents’ contracts were “DO-rated” under

the Defense Production Act of 1950. U.S.C.A. App. §2061 et

seq., which “required companies to accept and fill

governmental orders regardless of existing contracts or

orders.” Pet. App. 8. The court found that, due to a shortage

of Agent Orange, the government required Respondents to

divert their entire production capacity to Agent Orange instead

of civilian herbicides. /d. See R 554-62.

The court found further causal connection because the

government “expressly contracted for a specific mix of

chemicals.” Pet. App. 12. The government required that Agent

Orange consist of a 50/50 mix of the n-butyl esters of 2,4-

dichlorophenoxyacetic acid (“2,4-D”) and 2,4,5-

trichlorophenoxyacetic acid (“2,4,5-T”) conforming to detailed

and specific military specifications. /d. The court rejected

Petitioner’s argument that the government did not specifically

consider and require the alleged harmful design feature—the

presence of extremely small quantities of dioxin in some Agent

Orange. The court found “that the government expressly

considered the design feature in question, exercised direction

and control over the substances used in the production of

Agent Orange, and that defendants provided the substances in

conformity with those specifications.”! Pet. App. 12. See R

516-20.

| The court’s findings were supported by extensive record evidence of the

knowledge of federal officers involved with the development and

requisitioning of Agent Orange with respect to military herbicides, the

Turning to the second element of jurisdiction under

§ 1442, the district court found that defendants had asserted

two colorable federal defenses: the government contract

defense and immunity under the Defense Production Act. Pet.

App. 17-18. The court noted that this Court found that federal

procurement interests required recognition of the government

contract defense in Boyle v. United Technologies Corp., 487,

U.S. 500 (1988), and that Respondents had been granted

summary judgment on the government contract defense in

earlier Agent Orange litigation. The court found these defenses

demonstrated a federal interest in the matter and were

sufficient for jurisdiction under § 1442.

Finally, the court rejected Petitioner’s request for offensive

collateral estoppel-based on the district court ruling in Ryan.

Pet. App. 20. The district court noted its “broad discretion”

under Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979),

to determine whether estoppel would be unfair in a particular

case. Pet. App. 19. The court determined that estoppel was

unwarranted for several reasons, including the failure of the

Second Circuit to decide jurisdiction under § 1442 in Ryan,

and the limited precedential value of Ryan. Pet. App. 20.

Agent Orange manufacturing process, and dioxin’s possible presence in

Agent Orange and its possible health effects. For example, faced with a

shortage of Agent Orange, federal officers undertook in 1967-68 to build a

government Agent Orange manufacturing plant at Weldon Spring,

Missouri. The documentation of that government plant demonstrates that

federal officers understood factors which affected the creation of dioxin in

the Agent Orange manufacturing process and included a section titled

‘DIOXIN” in the draft manual for operations of the plant. See R 554-62;

In re Agent Orange, 597 F. Supp. 740, 798 (E.D.N.Y. 1984); In re Agent

Orange, 818 F.2d at 1748 (“the government had as much knowledge as

defendants of the dangers of dioxin”); Jn re Agent Orange, 818 F.2d 187

(2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988) (affirming summary

judgment for Respondents on the government contract defense); R 516-70.

6

4. Judge Cobb Dismisses on Statute of Limitations

And Denies Reargument.

On September 25, 1996, the district court, applying Texas

State law, ruled that Petitioner’s suit was barred by the statute

of limitations. Pet. App. 23. While Petitioner did not file suit

until 1993, her cause of action accrued by the mid 1980’s at

the latest, when her illness had been diagnosed and there had

been extensive media coverage regarding alleged links

between Agent Orange and her illness. Pet. App. 30-33. On

October 7, 1996, plaintiff moved for a “new trial and

rehearing” and for reargument on the denial of remand. Pet.

App. 81. On December 13, 1996, after due deliberation on the

full record at that time, the district court denied the motion and

dismissed the case.

5S. The Fifth Circuit Affirms § 1442 Jurisdiction And

Dismissal.

On appeal, the Fifth Circuit affirmed federal jurisdiction

under § 1442, noting that the statute should be given “a broad

reading so as not to frustrate the statue’s underlying rationale.”

149 F.3d at 398, citing Arizona v. Manypenny, 451 U.S.

232, 242 (1981); Willingham v. Morgan, 395 U.S. 402, 407

(1969). Pet. App. 62-63. The court found that Respondents

were “persons” entitled to remove under § 1442 and that they

had asserted colorable federal defenses showing a federal

interest in the matter: the government contract defense and

immunity under the Defense Production Act. Pet. App. 61,

ZF

The court of appeals, like the district court, found the

requisite Causal connection in the government’s “compulsion”

of Respondents and its precise specifications for Agent

Orange:

We are convinced that the government’s

detailed specifications concerning the make-up,

packaging, and delivery of Agent Orange, the

compulsion to provide the product to the

government's specifications, and the on-going

supervision the government exercised over the

formulation, packaging, and delivery of Agent

Orange is all quite sufficient to demonstrate that

the defendants acted pursuant to federal

direction and that a direct causal nexus exists

between the defendants’ actions taken under

color of federal office and Winter’s claims.

Pet. App. 66-67. The court of appeals rejected Petitioner’s

claim that Agent Orange was an “off-the-shelf” product. While

raw materials used to manufacture Agent Orange were also

used by Respondents at other times to manufacture civilian

herbicides, Agent Orange was never used as a civilian

herbicide and differed in important respects from. civilian

herbicides. Pet. App. 64-66. The court of appeals further

noted that the government prohibited Respondents from

placing any warnings on Agent Orange. Pet. App. 65. This

prohibition provided an additional causal nexus with

Petitioner’s failure to warn claims.

Regarding offensive collateral estoppel, the court of

appeals explained at some length that “it would seem

appropriate to hold as a matter of law that collateral estoppel

may not be applied offensively to a jurisdictional

decision—such as one granting a motion to remand—that is

not capable of being subjected to appellate review.” Pet. App.

55. But the Fifth Circuit did not so hold, concluding that “the

restraining hand of precedent .. . arguably limits our

ruling” and that this case could easily be decided under the

abuse of discretion standard without reaching the issue. Pet.

App. 56. Thus, the court of appeals “decide[d] simply

whether the district court abused its discretion when it declined

to estop defendants” from claiming jurisdiction under § 1442.

Pet. App. 57.

The court summarily noted a variety of circumstances in

this case which supported the district court’s discretion in

denying estoppel. First and foremost was the unavailability of

appellate review, which the court plainly viewed as sufficient

to support the district court’s exercise of discretion in and of

itself. Pet. App. 55. In addition, the Ryan court had found

jurisdiction under § 1442 to present a “close question” and

had suggested certification of the issue for interlocutory appeal

sua sponte. Pet. App. 57. Finally, the court noted that it was

not fair to bind a defendant to a decision that had been

affirmed on unrelated alternative grounds. Pet. App. 57. As

the district court below noted, there were two Ryan appeals to

the Second Circuit involving jurisdiction under § 1442, one

denying appellate jurisdiction to review the order remanding

two civilian plaintiffs and a second affirming federal

jurisdiction over the veteran plaintiffs in Ryan on other

grounds and declining to reach the issue of § 1442

jurisdiction. See In re “Agent Orange,” 996 F.2d at 1430-32.

Thus, the court below concluded that “[c]onsiderations of

fairness then, as set out in Parklane, dictate that collateral

estoppel should not be applied to the Ryan Court’s decision.”

Pet. App. 57-58.

2 The Fifth Circuit noted that some cases involving mutual estoppel or

res judicata arguably rejected an absolute rule against preclusion where

appellate review was unavailable, but distinguished those cases because

the rules of offensive collateral estoppel are “more restrictive” than where

an estoppel is mutual to achieve finality. Pet. App. 56 & n.11.

9

Having found federal jurisdiction, the Fifth Circuit then

affirmed the dismissal of Petitioner’s suit based on Texas state

law of limitations. Pet. App. 71.

6. Judge Weinstein Indicates He Will Follow The

Fifth Circuit’s Ruling

Judge Weinstein entered the opinion of the court of

appeals in this case on the docket in MDL-381 shortly after it

issued. RA1. Then, during a January 29, 1999 hearing in

another civilian Agent Orange case, Judge Weinstein indicated

that he would follow the Fifth Circuit’s decision in this case

rather than his prior decision in Ryan. When counsel for

Respondents requested supplemental briefing on a motion to

remand filed prior to the Fifth Circuit’s denial of remand in

Winters, Judge Weinstein stated as follows:

THE COURT: Hasn’t there been a_ case

subsequent to my remand

analysis, indicating that remand

was not required in these cases?

MR. SABETTA: That’s correct, Your Honor.

THE COURT: Follow that decision.

MR. SCHWARTZ: _ [ argues for remand |

THE COURT: I’m not going to remand it to

the state court.

RA 3-4.3

3 The docket entry for the hearing states that that the motion to remand

was denied and that the case was ordered transferred to the Southern

District of Texas. RA 5-6. However, in a subsequent handwritten order

accompanying the signed transfer order, Judge Weinstein, indicating that

he did not intend to foreclose action by the transferee court as it might

deem appropriate, stated that the motion to remand had not been decided

and that further discovery could take place in Texas. RA7.

10

REASONS FOR DENYING THE PETITION

Petitioner Challenges Only The Result Below—Not

The Legal Principles Applicable To Jurisdiction

Under § 1442—A Matter Of No General

Importance In Light Of The Unique Jurisdictional

Facts Presented In Agent Orange Litigation.

A. Petitioner Admits That The Courts Below Applied

The Correct Legal Standard And Proposes Only A

Factbound Question Unsuitable For Review

The first question proposed by Petitioner for review is

whether defendants in fact satisfy the requirements for

removal under 28 U.S.C. § 1442(a)(1), i.e., whether 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,” and whether the federal control

over defendants was sufficiently “detailed.” Pet.1-2 (emphasis

added). Petitioner raises no objection to the legal standard for

jurisdiction under § 1442 applied by the court below and

concedes that the court “did articulate the test essentially

correctly.” Pet. 17.

Petitioner’s factbound question plainly does not warrant

certiorari and would be ill-suited for resolution in this Court in

any event. Considering whether the causal connection

established in the record was “sufficient” and whether the

federal control was sufficiently “detailed” would involve

analysis of the unique, complex, and voluminous factual!

record of historical, technical and scientific documents and

testimony developed in Agent Orange litigation. Any opinion

by the Court would provide little guidance to the lower courts

as to any matters other than Agent Orange cases because of the

11

atypical factual record on which it would be based. The

granting of certiorari in such circumstances would be

inefficient and unproductive given the extensive factual record,

the alternative findings of the courts below each sufficient to

Support jurisdiction under § 1442, and the deferential review

accorded such findings of jurisdictional facts. See Land v.

Dollar, 330 U.S. 731, 735 n.4 ( 1947) (deferential review).

B. There Remains No Substantial Conflict Of Any

Sort Among Any Federal Courts As To

Jurisdiction Under § 1442 In Agent Orange

Cases.

Both the Fifth Circuit in this case and the Tenth Circujt In

Ain v. Ashland Chemical Co., 156 F.3d 1030 (10th Cir.

1998), have upheld § 1442 removal of toxic tort claims against

esovernment contractors claiming to have acted under federal

direction. Petitioner seeks certiorari based on mere difference

in result between the Fifth Circuit’s ruling upholding

jurisdiction under § 1442 in this case and an earlier district

court ruling to the contrary in Ryan, another Agent Orange

case. Petitioner claims no conflict between decisions of the

courts of appeals. Conflicts between rulings of a district court

and a court of appeals are generally inappropriate for

certiorari, as they are often resolved without developing into a

contlict between courts of appeals. That is what has happened

here. While the district court in Ryan initially ruled against

urisdiction under § 1442, it found the issue a “close

question” at that time and has recently stated that it will follow

the ruling of the Fifth Circuit in this case. Thus. there remains

no substantial conflict among the decisions of any courts of

appeals or district courts—either as to the governing legal

principles or the proper result on the facts of this case.

Petitioner discusses several trial court rulings concerning

§ 1442 jurisdiction over suits against government contractors

in various different factua! circumstances, suggesting that

these trial court rulings are in conflict and that some are

extending § 1442 to the “furthest extreme.” Pet. 15. The

handful of trial court rulings cited involving § 1442 removal

by government contractors during the last decade hardly

supports Petitioner’s hyperbole. In actuality, the rulings have

been fairly equally divided between those finding and those

denying jurisdiction under § 1442. as is to be expected

considering the quite diverse factual records in those cases.

There have been few appellate rulings in such cases to date.

and there is relatively little disagreement as to the applicable

legal rules governing § 1442 jurisdiction even at the trial court

level. The situation as a whole indicates that the trial courts are

handling these cases without difficulty using settled general

principles of § 1442 jurisdiction, with little need of review or

supervision by the courts of appeals, much less this Court.

C. The Fifth Circuit Ruling Fully And Properly

Resolves The Narrow Question Of § 1442

Jurisdiction On The Unique Factual Record

Regarding Agent Orange, Rendering Any Ruling

By This Court Unnecessary And Of No General

Importance.

Petitioner concedes that the Fifth Circuit correctly stated

the controlling legal standard: jurisdiction under § 1442

requires: “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,” citing Willingham v. Morgan, 395

U.S. 402, 409 (1969), citing Maryland v. Soper (No. 1), 270)

U.S. 9, 33 (1926). Pet. App. 62, Pet. 17-18. Unable to

challenge the legal rules applied by the court below or point to

any conflict in the courts of appeals, Petitioner argues at length

simply that the Fifth Circuit is “wrong” and the district court

ruling in Ryan was “eminently correct.” Pet. 20. Petitioner’s

13

arguments misstate or ignore much of the extensive record and

factual findings by the courts below establishing Respondents’

actions at the direction of federal officers and the requisite

causal connection between those actions and Petitioner’s

claims.

The following brief discussion of some of those

misstatements and omissions makes clear both the soundness

of the ruling below and the uncertworthiness of the petition.

Petitioner’s arguments are heavily factbound, and involve a

unique and complex factual record. The jurisdictional facts

found below squarely support § 1442 jurisdiction and would

be reviewed deferentially, only for clear error.

a. Federal Compulsion of Respondents

First and foremost, Petitioner seeks to ignore and avoid a

critical fact found by the courts below: Respondents were

“compelled to deliver Agent Orange to the government under

threat of criminal sanctions.” Pet. App. 7-8, 63. Using their

emergency war powers under the Defense Production Act

federal officers effectively seized the entire domestic

manufacturing capacity for 2,4,5-T, the limiting raw material

in the manufacturing of Agent Orange. Had Respondents

refused to supply the chemicals specified by the military,

federal officers could have prosecuted company officials and

seized the manufacturing facilities. This was the first and, as

lar aS we are aware, the only occasion in which the entire

domestic production capacity of a chemical has been taken for

military use. The evidence establishing these facts is extensive

and undisputed. Judge Weinstein in Ryan also recognized that

Respondents were “compelled under threat of criminal

sanction to deliver Agent Orange produced according to

government specifications to the Defense Department.” 781 F.

Supp. at 950.

14

The singular fact of compulsion sets this case apart from

other cases in which government contractors have sought

removal under § 1442, making it a clear-cut example of a case

removable under § 1442 rather than an extreme extension as

Petitioner suggests. The Defense Production Act has been

repealed, and the military has long discontinued the use Agent

Orange. It is unlikely that any significant number of cases

involving government contractors acting under such extreme

federal compulsion will come before the courts in the future.

The presence of such atypical and highly significant facts

counsels strongly against a grant of certiorari in this case. Any

ruling by the Court against such a factual background would

necessarily be narrow and of little guidance in future cases.

For the same reason, the Fifth Circuit’s ruling in this respect

will have little precedential impact outside of other Agent

Orange litigation, and so does not warrant further review.

b. Agent Orange Was Not An “Off the Shelf”

Commercial Product.

Petitioner’s other arguments fare no better, as they also

turn on the unique details of the Agent Orange factual record

and would be of minimal importance outside of Agent Orange

litigation. For example, Petitioner’s “off the shelf” argument

runs as follows: (1) the government was merely a naive

customer that asked Respondents for an “off-the-shelf”

generic weedkiller, (2) Respondents decided to send the

government a commercial herbicide contaminated with dioxin

and concealed that fact from the government, (3) thus there

was no Causal connection between Respondents’ actions under

federal direction and Petitioner’s claims of injury due to dioxin

in Agent Orange. Pet. 17-18.4

4 Petitioner’s argument is a transparent attempt to interject issues going

to the merits into the threshold determination of jurisdiction. But the

purpose of § 1442 is to allow defenses of federal authority to be heard in

federal court, and, as the court below noted. Respondents “need not win

—

15

The Fifth Circuit quoted and discussed some of the

extensive record facts demonstrating that Agent Orange was

not an off-the-shelf commercial product. Pet. App. 64-66. The

court found that federal officers—not respondents—specified

the precise chemical composition of Agent Orange, and that

Respondents were acting under detailed federal direction by

manufacturing Agent Orange conforming to the military’s

specifications. Pet. App. 65-67. The district court had also

rejected Petitioner's “off the shelf’ argument as

“inconsequential” for those reasons. Pet. App. 12.

The Fifth Circuit understood that “the gist of this action

centers around the trace elements of dioxin contained in Agent

Orange.” Pet. App. 66. The court found a “direct causal

nexus” between Petitioner’s claim of injury due to dioxin in

Agent Orange and the “government’s detailed specifications”

of the makeup of Agent Orange. The government—fully

knowledgeable regarding the possible presence and _ health

effects of dioxin in 2,4,5-T—mandated the use of 2,4,5-T in

Agent Orange—not any of dozens of other herbicides which

Respondents might have elected to supply. Pet. App. 65-67; R

516-70. The district court similarly found a causal connection

between the government-mandated specifications that Agent

Orange be made using 2,4,5-T and Petitioner’s claims because

“the government expressly considered the design feature in

question.” Pet. App. 12.

Petitioner severely misstates the Fifth Circuit’s conclusion,

asserting that it is based on an “astounding” and unsupported

belief that some “synergistic” effect resulted from combining

2,4-D and 2,4,5-T in Agent Orange. Pet. 18-19. In fact, the

Court was plainly stating a causal connection between

Petitioner’s claims and Respondents’ actions under federal

[their] case before [they] can have it removed.” Pet. App. 68, quoting

Willingham, 395 U.S. at 407.

16

direction: “the alleged deadly properties of Agent Orange result

from the particular mixture of the component chemicals that

the government dictated.” Pet. App. 71.

D. Considerations of Federalism Do Not Support

Certiorari.

The Petition concludes with two flatly contradictory

invocations of principles of federalism. First, Petitioner argues

that federalism requires that this suit be remanded to state court

because it involves only state law claims and federal interests

are minimal. Pet. 26. Then, on the next page, Petitioner avers

that “important questions of federal procurement policy

suggest the need for intervention by this Court.” Pet. 27.

While § 1442 involves important federal interests, the

rulings of the courts below properly protect those interests.

The general lack of conflict in the rulings of the lower courts

indicates that the competing federal and state interests affected

by § 1442 are being accommodated in accordance with the

principles of federalism. Accordingly, there is no need for

review in this Court.

The courts below concluded that § 1442 removal by

government contractors does involve important federal

interests regarding procurement of military supplies. This

Court in Boyle v. United Technologies, 487 U.S. 500, 512

(1988), found such federal procurement interests sufficiently

important to override substantive state product liability law. It

would seem self-evident in light of Boyle that those federal

interests would also be sufficient to support removal to a

federal forum, a far less drastic intrusion on a State’s

sovereignty than the overriding of its substantive tort law.

In sum, Petitioner raises no legal issue or conflict in

decisions meriting review. Petitioner’s request for certiorari is

17

essentially a challenge to the findings of jurisdictional facts

made by the courts below. Those findings are solidly

supported in the record and would be deferentially reviewed.

Any opinion by this Court would be of little general

importance because of the unusual factual circumstances,

which are now long past.

Il.

Review Of The Denial Of Offensive Collateral

Estoppel Is Not Warranted Because Petitioner Only

Challenges The Result Below, Not The Controlling

Parklane Hosiery Legal Standard, And The Court

Below Plainly Did Not Abuse Its “Broad

Discretion” Under That Standard.

Petitioner asks this Court to review whether the doctrine of

offensive, non-mutual collateral estoppel requires that the

ruling of the Fifth Circuit affirming federal jurisdiction under

§ 1442 be reversed due to a prior district court ruling in a

different Agent Orange case—even though that district court

ruling was tentative and the district court has now indicated

that it is persuaded by and will follow the ruling of the Fifth

Circuit in other Agent Orange litigation before it in MDL-381.

As with § 1442, Petitioner does not dispute the applicable

legal standard: the elements of offensive collateral estoppel as

established in Parklane Hosiery Co. v. Shore, 439 U.S. 322

(1979). Pet. 28. Under Parklane Hosiery, a district court

possesses “broad discretion” in determining whether fairness

permits the use of offensive collateral estoppel in the

circumstances of a particular case, and appellate review of the

exercise of that discretion is deferential. 439 U.S. at 331.

Petitioner's proposed question for review regarding collateral

estoppel, like the question involving § 1442, simply asks

whether the ruling on the facts of this particular case is correct.

18

Petitioner does not pose any substantial legal issue at all, much

less an issue of general importance involving conflicting

appellate rulings which might be appropriate for review. A

ruling by the Court in these circumstances would be of interest

only to the parties. Review for possible abuse of the district

court’s “broad discretion” would be particularly wasteful of

judicial resources in this case given the numerous alternative

factors supporting the lower courts’ discretionary denial of

estoppel

In an attempt to fashion a conflict, Petitioner attacks a

purported ruling that the Fifth Circuit explicitly declined to

make. Petitioner claims that 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.”

Pet. 34. While the court of appeals did discuss whether

Petitioner’s argument for offensive collateral estoppel was so

weak given the unavailability of an appeal from Ryan that it

Should be denied as a matter of law, the court expressly

declined to decide the issue on that basis. Pet. App. 56.

Petitioner’s extended discussion regarding this issue is beside

the point for purposes of certiorari.

The court below made clear that the issue it decided was

“simply whether the district court abused its discretion when it

declined to estop defendants” from claiming jurisdiction under

§ 1442. Pet. App. 57. Given the deferential review granted to

a district court’s exercise of its “broad discretion” as to

whether offensive collateral estoppel is fair in a particular case,

Petitioner has little to say in support of certiorari for the actual

holding below.

Petitioner does complain that the Fifth Circuit “reached out

to a purported ground for ‘unfairness’ not mentioned nor

discussed in Parklane.” Pet. 29. There is obviously no merit

to Petitioner’s complaint. Parklane Hosiery adopted the

19

following “general rule” to guide trial courts in the exercise of

their “broad discretion”:

where, either for the reasons discussed above

or for other reasons, the application of

offensive estoppel would be unfair to a

defendant, a trial judge should not allow the

use of offensive collateral estoppel.

439 U.S. at 331 (emphasis added). The reference to “other

reasons” clearly indicates this Court’s intention that trial courts

should consider all relevant reasoning bearing on the question

of fairness or unfairness of preclusion in a particular case.

The various grounds discussed by the courts below are

each widely recognized by the courts and commentators as

appropriate factors for trial courts to consider when

determining whether to apply offensive collateral estoppel, as

the citation and discussion in the opinions below makes clear.

Petitioner has failed to identified any legal or policy issues in

the Fifth Circuit’s actual holding of any substantial

significance, much less issues of general importance which

might divide the lower courts and call for resolution by this

Court.

Petitioner ignores the fact that Judge Weinstein found the

jurisdiction issue to be a “close question” and certified it for

appeal, but that appellate review was barred. Petitioner urges

this Court to grant review and apply offensive collateral

estoppel to overturn the Fifth Circuit’s ruling, reinstate Judge

Weinstein’s tentative ruling in Ryan, and require all other

courts to follow Ryan rather than the Fifth Circuit’s

ruling—even though Judge Weinstein himself did not apply

Ryan when this case was transferred for a time to his court

and has indicated that he will follow the Fifth Circuit’s ruling.

Such a result would turn the requirement of fairness

20

|

|

Eg

underlying offensive collateral estoppel on its head and do

great violence to the principles of trial court discretion in the

application of offensive collateral estoppel established in

Parklane Hosiery.

Certiorari Is Not Warranted Because The Lower

Courts Are In General Agreement That § 1442

Provides For Removal By Corporations As Well As

Individuals And That Removal By Corporations

Furthers The Policies Underlying Section 1442.

Petitioner also requests—with minimal explanation—that

the Court grant review to rule that a corporation is not a

“person” for purposes of § 1442 and can never remove cases

under that statute, even when compelled to act under the

direction of federal officers pursuant to federal authority. Pet.

36-37. Petitioner is unable to cite any rulings in the courts of

appeals supporting its position—only two older district court

cases involving removals by the American Red Cross. Pet. 16

n. 6, 36-37. The courts below found that a corporation should

be considered a “person” potentially entitled to remove under

§$ 1442 because corporations may act under the direction of

federal officers to implement federal policy in the same manner

as individuals. Pet. App. 4; 61-62. Numerous courts of

appeals and district courts have upheld removal by

corporations under § 1442. See. e.g., Akin v. Big Three

Industries, 851 F. Supp. 819 (E.D. Tex. 1994), aff'd, Akin

v. Ashland Chemical Co., 156 F.3d 1030 (10th Cir. 1998):

Camacho v. Authoridad de Telephonos de Puerto Rico, 868

F.2d 482 (1st Cir. 1989); Peterson v. Blue Cross/Blue Shield,

S08 F.2d 55 (Sth Cir.), cert. denied, 422 U.S. 1043 (1975);

Texas v. National Bank of Commerce of San Antonio, 290

F.2d 229, 231 (Sth Cir.), cert. denied, 368 U.S. 832 (1961);

Crocker v. Borden, Inc., 852 F. Supp. 1322 (E.D. La. 1994):

21

~

Pack v. AC and S, Inc., 838 F. Supp. 1099 (D. Md. 1993),

rec. denied, 857 F. Supp. 26 (D. Md. 1994); Fung v. Abex

Corp., 816 F. Supp. 569, 572 (N.D. Cal. 1992); See Wright,

Miller & Cooper, Federal Practice and Procedure § 3727

(“Courts generally allow a corporation to be considered a

person” for Section 1442 purposes.”). In view of this general

consensus, there is no conflict among the courts of appeals or

other courts meriting review

Aware of the absence of conflict, Petitioner suggests that

the rulings of the courts below and the other courts cited above

are somehow inconsistent with “a reasonable extension” of

International Primate Protection League v. Administrators of

the Tulane Educational Fund, 500 U.S. 72 (1991). Pet. 37

Petitioner stubbornly ignores the fact that Congress

subsequently amended § 1442 to legislatively reverse the

decision in Primate Protection, even though this was pointed

out by the court of appeals in its opinion below. Pet. App. 59

Petitioner’s request for an “extension” of a ruling that has been

legislatively reversed obviously does not merit review

Moreover, Primate Protection focussed on whether the term

federal “officer” in § 1442 could be read to include a federal

‘agency, a linguistically difficult reading for which there was

little support in other uses of “officer” in federal statutes. This

case involves the interpretation of “person” to include

corporations, which is commonplace in federal law where the

federal policies underlying the law apply to corporations a

well as individuals

;

i

i

I

Dated:

* Counsel of Record

CONCLUSION

The petition for a writ of certiorari should be denied.

Uniondale, New York

February 16, 1999

Respectfully submitted,

, a

liner reef

Steven Brock*

RIVKIN, RADLER & KREMER

Attorneys for Respondent

The Dow Chemical Company

EAB Plaza

Uniondale, New York

(516) 357-3000

11556

Michael M. Gordon

CADWALADER,

WICKERSHAM & TAFT

Attorneys for Respondent Diamond

Shamrock Chemicals Company

100 Maiden Lane

New York, New York

(212) 504-6000

10038

William Krohley

KELLEY, DRYE & WARREN

Attorneys for Respondent

Hercules Incorporated

101 Park Avenue

New York, New York

(212) 808-7800

10178

i)

ee)

John C. Sabetta

SEYFARTH, SHAW,

FAIRWEATHER & GERALDSON

Attorneys for Respondent

Monsanto Company

1270 Avenue of the Americas

New York, New York 10020

(212) 218-5500

Myron Kalish

PARKER, DURYEE,

ROSOFF & HAF]

Attorneys for Respondent

Uniroyal, Inc.

$29 Fifth Avenue

New York, New York 10017

(212) 878-1790

lawrence D’Aloise

CLARK, GAGLIARDI & MILLER

Attorneys for Respondent T. H

Agriculture & Nutrition Co., In

The Inns of Court

99 Court Street

White Plains, New York 1060]

(914) 946-8900

APPENDIX A

Docket Entry in In Re “Agent Orange” Product

Liability Litigation, MDL No. 381,

Dated October 6, 1998

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

IN RE “AGENT ORANGE”

PRODUCT LIABILITY LITIGATION MDL No. 38]

DOCKET ENTRY

Sub# Date Description ——__

16547 = 10/6/98 Opinion Margaret Winters C of A

Fifth Circuit (ri)

RAI

APPENDIX B

Excerpt from Transcript of Proceedings in

Miller, et al. v. Diamond Shamrock Co., et al.,

No. CV 95-4865 (E.D.N.Y. Jan. 29, 1999)

NITED STATES DISCTRICT COURT

EASTERN DISTRICT OF NEW YORK

RODNEY MILLER, et al. CV 95-4865

Plaintiffs,

DIAMOND SHAMROCK CO., et al..

Defendants

. 7. ( bh

lited States Courthouse

he

a

: a

a oe

<

i

4

PRANSCRIPT OF STATUS CONFERENCE

;EFORE THE HONORABLE JACK B. WEINSTEIN

UNITED STATES DISTRICT JUDGI

At NCES

i VA | IN Qi HW \ R i / t (

by (

Diamond Shamrock MICHAEL M. GORDON. ESO

T)

Monsanto Cs Sevfarth Shaw Fairweat!

& Geraldson

RA2

1610 Avenue of the Americas

New York, New York 10620

BY: JOHN SABETTA, ESO.

For Defendant

T. H. Agriculture LAWRENCE T. D’ALOISE,

& Nutrition: JR., ESO.

For Defendant Hercules: WILLIAM KROHLEY. ESQ.

Court Reporter: Anthony M. Mancuso

225 Cadman Plaza East

Brooklyn, New York 11201

(718) 254-7226

Proceedings recorded by mechanical Stenography, transcript

produced by CAT.

MR. SABETTA: There is pending in this case a motion

to remand, which was filed when the case was in federal

district court in Texas, came up to your Honor. We submitted

Opposition papers when the case first became part of your

Honor’s docket, and that motion has not been resolved. It will

need to be resolved at some point.

We would like, in connection with that motion, to

submit supplemental papers, because there’s been a fair

amount that’s happened since the motion was first filed.

THE COURT: Hasn’t there been a case subsequent to

my remand analysis, indicating that remand was not required

in these cases?

MR. SABETTA: That’s correct, your Honor.

THE COURT: Follow that decision.

RA3

MR. SCHWARTZ: I’m remaining silent and not

nterrupting

On that point, the identical state court case that was

removed was remanded, by Judge Janice Graham Jack,

leral judge in Corpus Christi, to the state court. And all but

thirteen of the ninety-four have settled. One or two of these

lefendants may have a related defendant who was or still is in

fhe ><

Hic CdaSCs.

Ihe issues are not identical. Besides the normal remand.

hey raised the question that it was a complex — that this, being

1 federal complex, was a basis for independent federal court

jurisdiction. She denied those, and, of course, that was not

ippealable. It isn’t appealable in the Fifth Circuit.

fTHE COURT: I’m not going to remand it to the st

‘ t<

rt

I'm going to transfer it back to Texas.

MR. SCHWARTZ: Very well. your Honor

APPENDIX C

Docket Entry in In Re “Agent Orange” Product

Liability Litigation, MDL No. 381; Miller, et al. y.

Diamond Shamrock Co., et al., No. CV 95-4865

(E.D.N.Y.), Dated January 29, 1999

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

IN RE “AGENT ORANGE”

PRODUCT LIABILITY LITIGATION MDL No. 381

RODNEY A. MILLER, ET AL..

Plaintiffs,

-against- 95-CV-4865

DIAMOND SHAMROCK

CHEMICALS COMPANY, ET AL..

Defendants

DOCKET ENTRY

1/29/99 23 Calendar entry: before Judge Weinstein—Civil

Cause for Motion hearing. Case called.

Counsel for all sides present. Motion argued

Motion Denied. Case is ordered transferred

back to the District Court, Southern District of

Texas. (sg)

(Entry date 01/03/99)

" 7

liller,

ee

APPENDIX D

et al. v. Diamond Shamrock Co..,

95-4865 (E.D.N.Y.), Dated January

sj

vv I NS i i N 1 / ; \ A

R MANCUSO MAG

Handwritten Ruling on Motion For Remand,

et al.,

No.

29, 1999

APPENDIX E

Handwritten Order in In Re “Agent Orange”

Product Liability Litigation, MDL No. 381; Miller.

et al. v. Diamond Shamrock Co., et al., No.

CV 95-4865 (E.D.N.Y.), Dated February 2, 1999

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

IN RE “AGENT ORANGE”

PRODUCT LIABILITY LITIGATION MDL No. 381

RODNEY A. MILLER, ET AI

Plaintiffs

igainst »

AMOND SHAMROCK

EMICALS COMPANY, ET AI

Defendants

ORDER’

Notify parties: The Court makes no decision [regarding? |

motion to remand. Further discovery can mor

“Handwritten Order endorsed on a letter from John C. Sabetta

to Hon. Jack B. Weinstein, dated February 2, 1999

RA7