Petition for Writ of Certiorari — Isaacson v. Dow Chemical Co. (No. 08-460)

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QO8- 460 00T 6 - 2008

In The OFFICE OF THE CLERK

Supreme Court of the United States

JOE ISAACSON,

PHYLLIS LISA ISAACSON, ET AL.,

Petitioners,

DOW CHEMICAL COMPANY,

MONSANTO COMPANY, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FORA WRIT OF CERTIORARI

MARK R. CUKER GERSON H. SMOGER

MICHAEL J. QUIRK Counsel of Record

WILLIAMS CUKER BEREZOFSKY SMOGER & ASSOCIATES, P.C.

1617 J.F.K. Blvd., Ste. 800 3175 Monterey Blvd., Ste. 3

Philadelphia, PA 19103 Oakland, CA 94602

(215) 557-0099 (510) 531-4529

Counsel for Petitioners

(Additional Petitioners’ Counsel Listed On Inside Cover)

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

ADDITIONAL COUNSEL

DOUGLAS R. KEMP JAMES BOANERGES

WILSON, ELSER, MOSKOWITZ, LEUDERS & BOANERGES, P.C.

EDELMAN & DICKLER, LLP 9432 Old Katy Road

677 Broadway Houston, TX 77055

Albany, NY 12207 (713) 464-3383

(518) 449-8893 Counsel for Petitioner

Counsel for Petitioner Charles T. Anderson and

J. Michael Twinam Vickey S. Garncarz

DAVID E. CITERRY

CHERRY & JORDAN, LLP

P.O. Box 21027

Waco, TX 76703

(254) 776-4040

Counsel for Petitioners Sherman Clinton Stearns and

Dortha Monyene Stearns

JOAN H. HARROP

GOMEIN & HARROP

220 West Main Street, Suite 300

Morris, IL 60450-0708

(815) 942-0071

Counsel for Petitioner Vickey S. Garncarz

MARK I. BRONSON

NEWMAN BRONSON & WALLIS

2300 West Port Plaza Drive

St. Louis, MO 63146

(314) 878-8200

Counsel for Petitioners Robert S. Bauer, Sandra J. Bauer,

Sheryl A. Walker, Eric C. Walker, Stephen J. Walker,

William Hamilton, and Esther M. Hamilton

QUESTION PRESENTED

Whether a private corporation that was perform-

ing under a federal government contract but is sued

for actions neither addressed in the contract nor

otherwise directed or controlled by the government

may nevertheless remove a state court civil action to

federal court under 28 U.S.C. § 1442(a)(1) based on

the mere fact that it is a government contractor.

PARTIES TO THE PROCEEDING

Petitioners (with circuit court docket numbers):

Joe Isaacson (05-CV-1820)

Phyllis Lisa Isaacson (05-CV-1820)

J. Michael Twinam (05-CV-1509)

Robert S. Bauer (05-CV-1693)

Sandra J. Bauer (05-CV-1693)

Sheryl A. Walker (05-CV-1694)

Eric C. Walker (05-CV-1694)

Stephen J. Walker (05-CV-1694)

William Hamilton (05-CV-1694)

Esther M. Hamilton (05-CV-1694)

Sherman Clinton Stearns (05-CV-1695)

Dortha Monyene Stearns (05-CV-1695)

Charles T. Anderson (05-CV-1698)

Vickey S. Garncarz (05-CV-2450)

Respondents:

Dow Chemical Company

Monsanto Company

Hercules Incorporated

Occidental Chemical Corporation

Ultramar Diamond Shamrock Corporation

Chemical Land Holdings, Inc.

T-H Agriculture and Nutrition Company, Inc.

Thompson Hayward Chemical Company

Harcros Chemicals, Inc.

Uniroyal, Inc.

C.D.U. Holdings, Inc.

Uniroyal Chemical Company

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TABLE OF CONTENTS

Page

URE ny eSB gt sy 4 § ee i

PARTIES TO THE PROCEEDING ........................ ii

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I on 5 acs dese ow.cuasedce nuenoovesaweniveerrenss 1

ree NN sscicsneviecesetevisansecnacssanvednesmavecens 2

I IE avira asetc tae lacs 2

STATUTORY PROVISION INVOLVED................ 2

STATEMENT OF THE CASKB..................ccsscesseeeees 3

A. The Underlying Case Against Respon-

i scant cee sone cease cies vaadens eee 3

B. The District Court and the Issue of Re-

as ascetic oceans iden ean eae

C. The Decision of the Court of Appeals..........

REASONS FOR GRANTING THE PETITION..... 13

I. THE SECOND CIRCUITS DECISION

DIVIDES THE FEDERAL COURTS ON

SIGNIFICANT ISSUES PERTAINING TO

THE PROPER APPLICATION OF THE

FEDERAL OFFICER REMOVAL STAT-

SME catccvss nee Uae laiiaceae iin anedaa 16

Il. THE SECOND CIRCUITS EXPANSION

OF § 1442(a)(1) TO COVER ALL PRIVATE

CONDUCT DONE IN CONNECTION

WITH GOVERNMENT CONTRACTS IS

LEGALLY ERRONEOUG ..................cccceeeeees 21

TABLE OF CONTENTS - Continued

Page

A. The Second Circuit Broadened the

Removal Statute’s “Acting Under” Pro-

vision Beyond Recognition .................... 21

B. The Second Circuit's Determination

That There Need Not Be Any Underly-

ing Analysis as to Whether a Contrac-

tor Acted “Under Color of Office” is

Contrary to Every Decision of This

6, RRC ARTE eRe eae NaC 24

Ill. THE SECOND CIRCUITS DECISION

RAISES JURISDICTIONAL ISSUES OF

EXCEPTIONAL IMPORTANCE.......00000... 27

RII isctaichahiscsSacndesiicocpacitalietantaalaliimseadninniicaenie 32

APPENDIX A: Opinion of the U.S. Court of

Appeals for the Second Circuit, decided Feb-

I Se IE ivensknsennacscamiadaune denne la

APPENDIX B: Memorandum and Order of

the U.S. District Court for the Eastern Dis-

trict of New York denying plaintiffs’ motion

to remand, decided February 9, 2004................... 23a

APPENDIX C: Order of the U.S. Court of

Appeals for the Second Circuit denying peti-

tion for rehearing and request for rehearing

en banc, filed May 6, O06 ...........0.cccseeessepscceonsesens 43a

TABLE OF AUTHORITIES

Page

CASES

Akin v. Big Three Industries, Inc., 851 F. Supp.

EE NE BOI Ions vcassehccssusdvcpnsexaxabnvardouctennnccences 19

American Manuf.’s Mutual Ins. Co. v. Sulli-

es Be Le | ee 15, 26

Arness v. Boeing North American, Inc., 997

B. See. TIS CU... Cal. TSBG) sc svesssccecssecscoscee 18, 19

Blum v. Yaretsky, 457 U.S. 991 (1982)................... 15

City of Greenwood v. Peacock, 384 U.S. 808

TI acer teniscsoias ss chug Ganiceasiiiasuy dousatealeiieeaeiaecseeian oe 27

City of Indianapolis v. Chase Nat'l Bank, 314

I in sesii cl chess sun ungesren seinen RAGAN) 29

Dow Chem. Co. v. Stephenson, 539 U.S. 111

EERE Ree ene nee on ee aE ea 7

Federated Dep't Stores, Inc. v. Moitie, 452 U.S.

hah sv scandy acne eben vepbenvancenwaccsiay et 30

Feidt v. Owens Corning Fiberglas Corp., 153

Fe ee rte CI iidssSaccsscannecseransvesercsensancesssens 17

Freiberg v. Swinerton & Walberg Prop. Serv’s,

Inc., 245 F. Supp. 2d 1144 (D. Colo. 2002).....19, 20, 21

Fung v. Abex Corp., 816 F. Supp. 569 (N.D. Cal.

SERRE Ce Ree CEES FREE OR ee ea ne RoE OE 19

Gallagher v. Neil Young Freedom Concert, 49

ee BG CR Ge, FIND sn vcenssveivcevceseensnccreceessavncss 26

Good v. Armstrong World Industries, Inc., 914

SM, BAe (UBF. FR, FI) vo neces cecescconccerecstssvsasss 19

TABLE OF AUTHORITIES — Continued

Page

Green v. A.W. Chesterton Co., 366 F. Supp. 2d

ee ts SE iiesiersecexemeinieneniscienenaduns 18

Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S.

I scracepcacinetantuisais eu erence cunasertiiaesaiins 17

Hercules Inc. v. United States, 24 F.3d 188

ne BIN Re vcksroavisesescrsieincesseventeruisieiaaelanies 5

In re “Agent Orange” Product Liability Litige-

tion, 517 F.3d 76 (2d Cir. 2008).........ccc0sseseesees passim

In re Blackwater Security Consulting, LLC, 460

WPA EE CREE GE. OE vn evan vctvstancacsinnecascdyansitenansicts 28

Kennedy v. Health Options, Inc., 329 F. Supp. 2d

SEO Cae Fs ici iivestiiceontoneicens 17, 28

Krangel v. Crown, 791 F. Supp. 1436 (S.D. Cal.

BE chin es ecerccctes apiansiecdpaetisdiee assy eee ae oaes 20

Maxus Energy Corp. v. United States, 898.

F. Supp. 399 (N.D. Tex. 1995), aff’d, 95 F.3d

Se ee ls inhi osd es pieeitericeas eos 5

Mesa v. California, 489 U.S. 121

2, SEEN PROT = PST NOP 14, 20, 25, 31, 32

Miller v. Diamond Shamrock Co., 275 F.3d 414

rt ira cieeterecednprvremeneeneewesteaperee 22, 23

Murphy Brothers, Inc. v. Michetti Pipe String-

img, Fic., GAG UD. FOR (TID) oscvcsiisevessasesssescivenssnces 17

Powerex Corp. v. Reliant Energy Services, Inc.,

ee Oe ee Re I oad race wees wisencosiencusiicaes 17

Rendell-Baker vu. Kohn, 457 U.S. 830 (1982) ............. 26

TABLE OF AUTHORITIES — Continued

Page

Roche v. American Red Cross, 680 F. Supp. 449

CED, BEE TODD oxcenivcitsincsvitcectodgiansaeccausa eee 20

Ryan v. Dow Chem. Co., 781 F.Supp. 934

$225 & @ | EpOeueemter Er a passim

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

BO CIEE) sieescseeisccreicisinuncens eee 30

Stephenson v. Dow Chem. Co., 273 F.3d 249 (2d

CAA BIE D ovcvcsesenrsencessseaxscrieensioceceenn aaa ee 7

Stephenson v. Dow Chem. Co., 346 F.3d 19 (2d

CBR ID snesiissssaxssovisciesgintieninanree nea 7

Sutton v. Providence St. Joseph Med. Ctr., 192

FS BIG (OC Car: LOD) mvicnecciceroncoee 26

Syngenta Crop Protection, Inc. v. Henson, 537

SF hs ee CREB visciinaccescuncedenvneseeiceneeceuaiies tana Pe

Tancredi v. Metropolitan Life Ins. Co., 316 F.3d

POS Cie Sie. ID a-csicivsies ccs vsncaiteccendeneeacieeeennageeeee 26

Watson v. Philip Morris Companies, Inc., 127

BD. CR, IE Ce oF vntkicnscssineitaeeeeeenennen 22, 20, 24

Willingham v. Morgan, 395 U.S. 402 (1969)........ 13, 31

Winters v. Diamond Shamrock Chem. Co., 149

Fo Gai CORT Cir, TRG) vans cecsceccceseccecsvcces ues 18, 23. ZS

Vill

TABLE OF AUTHORITIES — Continued

Page

CONSTITUTIONS, STATUTES, AND RULES

Neen aa wae shavenereveesdeeonineoneesinent’ 2

ee Oe cc anseecectecsesvenes ea oe Sa passim

Nee eisai: scdaaegiubsesentensencedevieecerenties 27

EM OEE ccccnnivsecsevesevese sclied viha bibuehiicsid nauistaeasidiplnbael 17

iis hn iis sedan dese qusbucrereienneestnees 6

cae sc ccacnsesnesecuikevesonedeuseetnsveveises 15, 26

MISCELLANEOUS

Friendly, The Historic Basis of Diversity Juris-

Meee, GL CARTY. Ls. OV, 4ES.. cc scccccsccvccscccsccscesccesess 29

Gibbs, Forum Shopping Through Federal

Agent Removal Jurisdiction and CAFA, 86-

FEB. Mich. B.J. 20 (Feb. 2007) ...........0ssccsvsscsseeesens 30

Miller, An Empirical Study of Forum Choices

in Removal Cases Under Diversity and Fed-

eral Question Jurisdiction, 41 Am. U. L. Rev.

ess erncuevensavelgensnsventesees 29

Note, The Boyle Festers: How Lax Causal

Nexus Requirements and the “Federal Con-

tractor Defense” Are Leading to a Disruption

of Comity Under the Federal Officer Removal _

Statute, 46 Emory L.J. 1629 (1997)............0... ce. 31

Rehnquist, Seen in a Glass Darkly: The Future

of the Federal Courts, 1993 Wis. L. Rev. 1 ............. 28

TABLE OF AUTHORITIES — Continued

Page

Webster’s New International Dictionary (2d ed.

PIPTITE scisssésvesuansnorsgiaveneineseaeiveemebenedsmmmeaianiiade ida 22

Wilkinson, The Drawbacks ef Growth in the

Federal Judiciary, 43 Emory L.J. 1147 (Fall

ED cxecnechevcncissciteumasdedinaticeu ae eerie 28

INTRODUCTION

This case presents an important question con-

cerning the allocation of state and federal! judicial

authority that has divided the lower federal courts.

The court of appeals heid that any time a defendant

is sued for violations of state law that occurred while

the defendant was performing under a contract with

the federal government, regardless of whether the

conduct forming the basis for suit was addressed in

the contract or otherwise directed or controlled by the

government, the defendant may remove the case to

federal court under the federal officer removal stat-

ute, 28 U.S.C. § 1442(a)(1), as a “person acting under”

a federal officer being sued for acts done “under color

of such office.” This extraordinarily broad holding,

permitting virtually every government contractor to

have its cases litigated in federal court, conflicts with

numerous decisions of other federal courts holding

that this and other statutes covering conduct done

“under color” of government office only apply where

the government actually directed the precise conduct

that is the basis for the suit. The Court should grant

the petition to resolve this split over whether every

government contractor is entitled to federal court

jurisdiction simply because it was performing a

government contract.

OPINIONS BELOW

The opinion of the Court of Appeals (App., infra,

la-22a) is reported at 517 F.3d 129 (2d Cir. 2008). The

order denying rehearing is unreported and repro-

duced at App. 43a-44a. The opinion and order of the

district court (App., infra, 23a-42a) denying petition-

ers’ motion for remand is reported at 304 F. Supp. 2d

442 (E.D.N.Y. 2004). A related opinion on the merits

of Petitioners’ claims was handed down by the Court

of Appeals on the same day as its decision below, and

is reported at 517 F.3d 76 (2d Cir. 2008).

@ canmnesenenpeesmenee

JURISDICTION

The judgment of the Court of Appeals was en-

tered on February 22, 2008. Petitioners filed a timely

petition for rehearing with a request for rehearing en

banc, which the court of appeals denied o. May 8,

2008. On July 28, 2008. Justice Ginsburg extended

the time for filing a petition for a writ of certiorari

until October 6, 2008. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

The federal officer removal statute, 28 U.S.C.

§ 1442(a), provides in relevant part:

(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 indi-

vidual 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.

STATEMENT OF THE CASE

A. The Underlying Case Against Respondents

Petitioner Joe Isaacson enlisted in the Air Force

and served in Vietnam from September 1968 to

September 1969. During his tour of duty, Isaacson

served as a crewman at one of the airfields that

supported Operation Ranch Hand, the name for the

campaign in which airplanes took off to spray mix-

tures of chemical herbicides, including those contain-

ing the “Agent Orange” contaminant dioxin. In 1996,

when he was working as a junior high school assis-

tant principal, Isaacson was diagnosed with non-

Hodgkin’s lymphoma, a rare cancer recognized to be

caused by exposure to dioxin. After his diagnosis,

Isaacson filed a lawsuit against Respondents, the

manufacturers of Agent Orange, in state court in New

Jersey, alleging that his exposure to the chemical

products they manufactured caused his cancer.'

Isaacson’s case itself arises out of the govern-

ment’s purchase of various herbicides for use in

Vietnam — primarily “Agent Purple,” an equal blend

of 2,4-Dichlorophenoxyacetic acid (“2,4-D”) and various

esters of 2,4,5-Tricholorophenoxyacetic acid (“2,4,5-T”),

and “Agent Orange,” an equal blend of 2,4-D and one

2,4,5-T ester (hereinafter collectively referred to as

“Agent Orange.”). The 2,4,5-T in each of these Agents

was contaminated by an extremely toxic, unwanted

' Even though the cases brought by the different Petitioners

herein were never consolidated before the district court, the

Second Circuit issued one opinion regarding removal directed to

all the cases that were before it. In this decision it only dis-

cussed the /saacson Petitioners directly. The other district court

cases that were included within the Second Circuit’s decision

were: Twinam v. Dow Chemical Co. (05-CV-1509): Bauer v. Dow

Chemical Co. (05-CV-1693); Walker v. Dow Chemical Co. (05-CV-

1694); Stearns v. Dow Chemical Co., (05-CV-1695); Anderson v.

Dow Chemical Co. (05-CV-1698); and Garncarz v. Dow Chemical

Co. (05-CV-2450). These Petitioners or their spouses or the

parent of Petitioners listed herein likewise served in Vietnam,

were exposed to Agent Orange, and were diagnosed in or after

1995 with cancer and/or other illnesses caused by exposure to

dioxin. This Petition is jointly brought on behalf of all Petition-

ers referenced by case number in the court of appeals’ decision.

See App. la. However, it will specifically highlight the case of the

Isaacson Petitioners just as the Second Circuit did.

byproduct, dioxin (2,3,7,8-Tetrachlorodibenzo-para-

dioxin or TCDD).

Certain relevant facts regarding Isaacson’s claim

are uncontested: 1) during the manufacture of 2,4,5-T,

increasing amounts of dioxin were produced in direct

relationship to the amount of heat used during the

manufacturing process; see In re “Agent Orange”

Product Liability Litigation, 517 F.3d 76, 83-84 (2d

Cir. 2008), AB47-56, AS22, 25;° 2) Respondents knew

at the time they were manufacturing 2,4,5-T that

dioxin was a byproduct of its manufacture and that it

could cause harm to humans exposed to it, see In re

“Agent Orange,” 517 F.3d at 84; 3) Respondents had

unfettered control over their often proprietary manu-

facturing processes; Id. at 83, AB47-56;' 4) no con-

tract specified or even mentioned the existence of

dioxin in the product being delivered to the U.S.

* Petitioners’ Appendix herein is designated “App. __a.” The

following are references made to the record before the Second

Circuit: the related Bauer [05-CV-1693] opening and reply briefs

are designated “AB” and “RB,” respectively; the Isaacson [05-CV-

1820] opening and reply briefs are designated “AI” and “RI”; the

related Stephenson [(05-CV-1760] opening and reply briefs are

designated “AS” and “RS”; Petitioners’/Appellants’ Court of

Appeals’ Appendix is designated “AA.”

° See also Hercules Inc. v. United States, 24 F.3d 188, 197

(Fed. Cir. 1994) (“Put another way, nothing the government did

or failed to do had any impact upon Hercules’ and Thompson’s

production of Agent Orange.”); Maxus Energy Corp. v. United

States, 898 F. Supp. 399, 402 (N.D. Tex. 1995) (“Diamond was

responsible for controlling product quality.”), aff’d, 95 F.3d 1148

(5th Cir. 1996).

government, AS40, AB33-34; 5) unlike Respondents,

the United States government officials involved in the

procurement process were not aware of the existence

of dioxin in the final product they had contracted for,

AS40, AB34-36; and 6) unlike Respondents, the

United States government did not possess the equip-

ment necessary to test for dioxin contamination of

2,4,5-T. RS28, AA6454-4.° Finally, it is this dioxin that

Petitioners claim caused the injuries of which they

now complain.

B. The District Court and the Issue of Remand

Respondents removed the action to the United

States District Court for the District of New Jersey,

which accepted the removal based on the All Writs

Act, 28 U.S.C. § 1651. See App. 26a-28a (district court

opinion below, recounting procedural history of case).

The case was then consolidated as part of Multi-

district Litigation No. 381, In re “Agent Orange”

Product Liability Litigation, and transferred to the

Eastern District of New York. The district court

(Weinstein, J.) granted Respondents’ motion to dis-

miss the claims of Isaacson and another Plaintiff

(“Stephenson”) as barred by a nationwide class action

settlement approved almost two decades earlier, even

* By contrast, Respondents regularly tested their products

for the level of dioxin contamination. See, e.g., RB37-38, AA6837-

6838. The government itself did not know that such a test could

be performed until 1970. AA6454-4.

though Isaacson was uninjured at the time of the

settlement and all settlement funds had been ex-

pended by the time of his diagnosis.

On appeal, the United States Court of Appeals

for the Second Circuit affirmed the assertion of

jurisdiction over Isaacson’s claims based on the All

Writs Act, while holding that their actions were not

barred and thus could proceed. See Stephenson v. Dow

Chem. Co., 273 F.3d 249, 256-61 (2d Cir. 2001).

This Court granted Respondents’ petition for a

writ of certiorari and affirmed by an equally divided

Court the Second Circuit’s judgment reversing the

dismissal of Stephenson’s claims, while vacating the

Second Circuit’s judgment as to Isaacson’s claims.

Dow Chem. Co. v. Stephenson, 539 U.S. 111 (2003).

The Court remanded Isaacson’s case for reconsidera-

tion in hght of Syngenta Crop Protection, Inc. v.

Henson, 537 U.S. 28 (2002), which held that the All

Writs Act does not create federal question jurisdic-

tion.

On remand, the Second Circuit vacated the

district court’s dismissal order as to Isaacson on

grounds that jurisdiction did not he under the All

Writs Act and remanded the case for consideration of

alternative grounds for federal jurisdiction. Stephen-

son v. Dow Chem. Co., 346 F.3d 19 (2d Cir. 2003).

The alternative ground advanced to the district

court was whether removal could still be maintained

under the federal officer removal statute, 28 U.S.C.

§ 1442(a)(1).

The district court had previously considered this

issue in another “Agent Orange” case and decided

that the facts did not warrant removal under 28

U.S.C. § 1442(a)(1). See Ryan v. Dow Chemical Co.,

781 F. Supp. 934 (£.D.N.Y. 1992). In Ryan, the dis-

trict court had granted remand, holding that the

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.” Jd. at 950. Ryan further found that

the government had “bought the chemical compo-

nents for Agent Orange and other defoliants as exist-

ing products privately developed and used them in

mixtures which were derived from the defendants’

standard recipes.” Jd. Accordingly, Ryan concluded

that “(t]he government sought only to buy ready-to-

order herbicides, not to cause, control, or prevent the

production of the unwanted byproduct, dioxin, which

is the alleged cause of plaintiffs’ injuries.” Jd.

However, when addressing Isaacson’s remand

motion, the same district court, reviewing the same

factual record, held that federal jurisdiction was

properly asserted under the federal officer removal

statute. See App. 23a-42a. In its decision below, the

district court held, as it had in Ryan, that the Respon-

dent corporations were “persons” under § 1442(a)(1).

App. 3la-32a. But the district court reversed its Ryan

ruling that the government contractor defense alone

did not satisfy the statute’s implied requirement that

a colorable federal law defense be asserted. App. 40a.

More significantly, the district court reversed its

earlier understanding of the facts and held that

Respondents showed that they were “acting under

color of federal office,” because “the government

designed, controlled and supervised the production of

Agent Orange.” App. 36a. This finding was necessary

because the district court interpreted the law as

requiring a “causal nexus between the defendant’s

action under federal office and plaintiff’s state law

claims,” App. 32a, and held that this is satisfied

“when there is evidence of intimate government

involvement in the design decisions causally related

to the alleged tort.” App. 34a.

On March 2, 2005, the district court ruled that

all other Petitioners herein had also been properly

removed.

C. The Decision of the Court of Appeals

After the district court granted summary judg-

ment for Respondents based on their assertion of the

government contractor defense, Petitioners appealed

the district court’s removal decision to the Second

Circuit, which affirmed the district court’s finding of

jurisdiction. App. la-22a. However, rather than

simply follow the district court’s rulings, the Second

Circuit went a long way toward rejecting the district

court’s factual underpinning. It held the same as the

district court only by significantly broadening the

removal statute’s coverage to create federal jurisdic-

tion over virtually any conduct committed by a gov-

ernment contractor during the performance of the

government contract. See App. 14a-18a.°

In particular, with respect to the removal stat-

ute’s principal provisions limiting its coverage to

persons “acting under” a federal officer and being

sued for an act done “under color of such office,” the

Second Circuit’s analysis markedly contrasted with

that of the district court. This is because the Second

Circuit, in its simultaneously but separately-issued

summary judgment opinion, Jn re “Agent Orange,”

supra, 517 F.3d 76, expressly rejected the district

court’s conclusion that “the government designed,

controlled and supervised the production of Agent

Orange,” finding instead that:

The defendants do not contest that the

government’s contractual specifications for

Agent Orange are silent regarding the

method of manufacturing or that the gov-

ernment harbored no preference, expressed

or otherwise, regarding how the herbicides

were to be produced.... Indeed, they admit

that they were under no federal contractual

° The court of appeals did, however, embrace the district

court’s rationales in holding that Respondents were “persons”

covered by the removal statute, App. lla-l4a, and that the

federal government contractor defense standing on its own

satisfied the requirement that a colorable federal law defense be

asserted. App. 19a-22a.

duty to produce Agent Orange using any

particular manufacturing process or with any

particular reference to the toxicity levels.

Id. at 93.

Having thus separately rejected the factual basis

for the district court’s jurisdictional ruling, the Second

Circuit proceeded in its removal opinion to interpret the

removal statute’s “acting under” and “acts under color”

requirements far more broadly than has any other

court. First, with regard to whether Respondents were

acting under a federal government officer, the Second

Circuit found that this requirement is to be “interpreted

broadly, and the statute as a whole must be liberally

construed.” App. 14a. Based on this broad and liberal

construction, the Second Circuit held that, “through

their contracts with the Government to produce Agent

Orange, [it was enough that] the chemical companies

assisted and helped carry out the duties or tasks

of officers at the Department of Defense,” so that

Respondents “thus had the special relationship with

the Government required by the ‘acting under’

prong.” App. 16a (citation omitted) (emphasis added).

In addressing the removal statute’s requirement

of acts done “under color of” federal office, the court

of appeals likewise found that “(t]he hurdle erected

by this requirement is quite low,” and that, to show

causation under this prong, “Defendants must only

establish that the act that is the subject of Plaintiffs’

attack (here, the production of the byproduct dioxin)

occurred while Defendants were performing their

official duties.” App. 16a-17a. Alternatively, the

Second Circuit held that it would be sufficient to base

its determination upon a removing government

contractor’s own “theory of the case,” i.e. that “the

Government knew that Agent Orange contained

dioxin, and the Government controlled the method of

formulation.” App. 17a (emphasis added). Yet, the

“theory” that the government controlled production

was exactly what the panel itself had expressly

rejected in its summary judgment opinion as not

being supported by any evidence. Jn re “Agent Or-

ange,” 517 F.3d at 93.

In affirming the district court, the Second Circuit

substantially broadened the federal officer removal

statute to cover every conceivable government pro-

curement contractor sued for conduct that occurred

while it was performing the contract. Without consid-

ering whether the government directed or even knew

of the conduct at issue, the court of appeals held that

there is federal jurisdiction for all government con-

tractors so long as the acts complained of either occur

while they are performing the contract or the contrac-

tor merely theorizes that the acts were done under

government direction.

REASONS FOR GRANTING THE PETITION

This Court has held that, to remove a case under

28 U.S.C. § 1442(a)(1), the removing party must: 1) be

an eligible “person” under the statute; 2) raise a

colorable federal defense; 3) assert that the acts

complained of were undertaken while “acting under

an officer” of the United States government; and 4)

establish that the suit is “for an act under color of

[federal] office,” by demonstrating a “‘causal con-

nection’ between the charged conduct and

asserted official authority.” Willingham v. Mor-

gan, 395 U.S. 402, 409 (1969) (emphasis added).

However, the court of appeals’ expansive interpreta-

tion renders this four-part analysis moot as to govern-

ment contractors. Indeed, it grants removal rights to

federal contractors that are broader than those recog-

nized for federal employees whose removal claims this

Court has scrupulously evaluated and limited.

First, the Second Circuit held that corporations

that contract with the government are always “per-

sons,” and thus proper removing parties. App. lla-

14a. Second, under the Second Circuit’s analysis,

government contractors meet the colorable defense

requirement by definition. App. 19a-22a. Third, the

court of appeals held that the “special relationship”

required pursuant to the “acting under” provision is

met by the mere fact that the defendant entered into

a government contract. App. 14a-16a. Finally, the

Second Circuit rendered moot the question of whether

the act performed was done “under color of [federal]

office” by holding that contractors satisfy this by

showing that the act occurred at any time in the

course of performing the government contract or by

conjuring up a “theory” that the act was undertaken

at the government’s direction, App. 16a-18a, a “the-

ory” that the court accepts at face value even if it is

blatantly wrong. In short, according to the Second

Circuit, any suit filed against a government contrac-

tor for any acts undertaken during the contract’s

performance is removable under 28 U.S.C.

§ 1442(a)(1).

This holding radically expands the existing

division among federal courts over how much gov-

ernment control is needed for a private actor to be

deemed to be “acting under” a government officer and

to be sued for acts done “under color of” such office.

The approach taken by the Second Circuit conflicts

with the courts of nearly every other circuit regarding

what is necessary in order to determine when a

private actor is acting “under color” of government

office when performing the acts complained of in a

lawsuit.

In sharp contrast to the decision below, numerous

federal courts have held in granting motions to re-

mand that state-law claims against federal contrac-

tors fall within the removal statute only if they are

targeted at conduct that the government specifically

directed. These decisions are consistent with this

Court’s ruling in Mesa v. California, 489 U.S. 121

(1989), that removal under this statute is unavailable

even to federal officers if they could not assert a basis

in federal law for their on-the-job conduct that state

authorities were prosecuting. These decisions also are

more consistent with rulings by this Court and vari-

ous circuit courts addressing private action under

civil rights statutes covering acts done “under color

of” state law, see, e.g., 42 U.S.C. § 1983, and holding

that such statutes require focus on “‘the specific

conduct of which the plaintiff complains.’” American

Manuf.’s Mutual Ins. Co. v. Sullivan, 526 U.S. 40, 51

(1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1004

(1982)).

Nothing demonstrates the confusion among

federal courts more than the extreme variability in

addressing the removal issue shown by the courts

below first in Ryan, supra, and then in the two deci-

sions in this case. Each of these decisions articulates

entirely different standards regarding how much, if

any, government control is required to bring a private

contractor’s conduct violating state law within the

ambit of the federal officer removal statute. In Ryan

v. Dow Chemical Co., 781 F.Supp. 934 (E.D.N-Y.

1992), the district court held 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 pursu-

ant to an officer’s direct orders or to

comprehensive and detailed regula-

tions.... [A] person or corporation estab-

lishing only that the relevant acts occurred

under the general auspices of a federal office

or officer is not entitled to section 1442(a)(1)

removal.

Id. at 947 (emphasis added). In its decision below, by

contrast, the same district court held that removal

instead required just “a substantial degree of direct

and detailed federal control.” App. 32a. When Peti-

tioners appealed this ruling, the Second Circuit went

further by finding that all that was necessary was for

“the chemical companies [to have] assisted and

helped carry out the duties or tasks of officers at the

Department of Defense,” in order for Respondents to

have “the ‘special relationship’ with the Government

required by the ‘acting under’ prong.” App. 16a (cita-

tion omitted).

As explained below, this Court’s review is essen-

tial to bring clarity to this important jurisdictional

provision meant to maintain a proper division be-

tween state and federal judicial authority as it ap-

plies to the multitude of claims that are asserted

against private companies performing under ll

manner of contracts with the federal government.

I. THE SECOND CIRCUIT’S DECISICN DI-

VIDES THE FEDERAL COURTS ON SIG-

NIFICANT ISSUES PERTAINING TO THE

PROPER APPLICATION OF THE FED-

ERAL OFFICER REMOVAL STATUTE.

The Second Circuit’s expansive interpretation of

28 U.S.C. § 1442(a)(1), allowing government contrac-

tors to invoke federal jurisdiction for virtually every

state-law claim, directly conflicts with significant

federal case law requiring, depending upon the court,

direct and detailed control of the government contrac-

tor’s activities and/or a direct connection between

the state-law claims being brought and the federal

authority. Much of this contrary authority is in federal

district court opinions, because orders granting remand

are not appealable under 28 U.S.C. § 1447(c). See Feidt

v. Owens Corning Fiberglas Corp., 153 F.3d 124, 127 (3d

Cir. 1998) (dismissing appeal of remand order rejecting

§ 1442(a)(1) removal by government contractor that

manufactured asbestos-insulated turbines for Navy

aircraft carrier); cf. Powerex Corp. v. Reliant Energy

Services, Inc., 127 S. Ct. 2411, 2416 (2007) (holding

that § 1447(c) bars review of remands for lack of

jurisdiction). In light of this prohibition, this Court has

recognized splits of authority involving district courts

over questions of removal and subject matter jurisdic-

tion as warranting certiorari review. See, e.g., Murphy

Brothers, Inc. v. Michetti Pipe Stringing, Inc., 526 U.S.

344, 349 and n.2 (1999); Gulf Offshore Co. v. Mobil Oil

Corp., 453 U.S. 473, 477 and n.3 (1981).

This is such a case because the conflict between

the Second Circuit’s decision below and a wealth of

district court authority applying § 1442(a)(1) is

clearly defined. The Second Circuit held that a gov-

ernment contractor is deemed to be “acting under” a

federal officer by virtue of mere participation in the

contract alone, App. 16a, and that any action taken

while performing the contract is deemed “under color”

of federal office. App. 17a. By contrast, this expansive

interpretation of the statute was rejected by a district

court in the Eleventh Circuit. See Kennedy v. Health

Options, Inc., 329 F. Supp. 2d 1314, 13818 (S.D. Fla.

2004) (“The contractual relationship between inter-

mediaries and the Health Care Financing Admini-

stration does not in itself constitute the direct and

detailed control that is required to assert federal

jurisdiction.”).

Moreover, a number of district courts have re-

manded cases involving government contractors

based upon a review of whether the removing con-

tractor was required or directed by federal authority

to perform the specific conduct challenged in the

state-law claim. In Green v. A.W. Chesterton Co., 366

F. Supp. 2d 149 (D. Me. 2005), for example, the court

remanded claims by a surviving spouse of a shipyard

worker against the manufacturer of asbestos-

insulated turbines on Navy ships. In rejecting the

defendant’s § 1442(a)(1) removal arguments, Green

held that the statute’s “acting under” provision re-

quired evidence that “the US Navy specified the

incorporation of asbestos into the defendant’s product

to which the decedent was exposed so that there is a

‘causal nexus between the federal officer’s directions

and the plaintiff’s claims.’” Jd. at 155 (quoting Win-

ters v. Diamond Shamrock Chem. Co., 149 F.3d 387,

398 (5th Cir. 1998)).

Similarly, in Arness v. Boeing North American,

Inc., 997 F. Supp. 1268 (C.D. Cal. 1998), involving

claims by persons exposed to trichloroethylene manu-

factured for use on an Air Force base and disposed

therefrom, the court rejected the private defendants’

removal arguments for claims of negligent disposal

because defendants failed to allege that disposal

activity was undertaken at the government’s behest.

The court held that “the critical question under the

federal officer removal statute is to what extent

defendants acted under federal direction at the time

they engaged in the conduct now being sued upon.”

Id. at 1275-76 (citation omitted). In Good v. Arm-

strong World Industries, Inc., 914 F. Supp. 1125 (E.D.

Pa. 1996), where a Navy yard worker was exposed to

asbestos in turbine generators, the court likewise

rejected federal officer removal because neither the

removal notice nor the supporting affidavit “estab-

lishe[d] that a federal officer required the use of

asbestos in the design and manufacture of the turbine

generators.” Jd. at 1130.°

Other courts have looked more specifically at a

contractor’s state-law duties. In Freiberg v. Swinerton

& Walberg Property Serv’s, Inc., 245 F. Supp. 2d 1144

(D. Colo. 2002), the court remanded claims by a

nuclear weapons production facility worker against an

on-site contractor whose work exposed the plaintiff to

asbestos. In rejecting the contractor’s arguments for

®* See also Akin v. Big Three Industries, Inc., 851 F. Supp.

819, 823 (E.D. Tex. 1994) (“Finally, GE must establish a nexus

between the acts it performed at the direction of the Secretary of

the Air Force and the present claims for relief.”); Fung v. Abex

Corp., 816 F.Supp. 569, 572 (N.D. Cal. 1992) (“Defendant

General Dynamics must next show that it was ‘acting under’ an

officer of the United States by establishing a nexus between the

actions of the federal officers and the actions for which the

defendant is being sued.”).

removal under § 1442(a)(1), Freiberg held that the

contractor failed to satisfy the statute’s causal nexus

requirement because it could not demonstrate that

“the state action ‘has arisen out of the acts done by’

the defendant ‘under color of federal authority and in

enforcement of federal law,’” and could not “‘exclude

the possibility that’ the state action ‘was based on

acts or conduct of his not justified by his federal

duty.’” Jd. at 1155 (quoting Mesa, 489 U.S. at 1381-32).

Similarly, based on state-law failure to warn claims

by the surviving spouse of steel mill worker exposed

to asbestos installed pursuant to a World War II era

defense plant contract, the court rejected federal

officer removal because of the defendant’s failure to

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.”

In sum, the Second Circuit’s decision amplifies

the fact that there is considerable division and

confusion among federal courts over the federal

officer removal statute’s application to claims

against government contractors.’ In order to bring

" The Second Circuit’s predicate holding that Respondent

corporations are “persons” entitled to removal under the statute,

App. 14a-16a, likewise conflicts with several district court

opinions holding that the statute only applies to natural persons

and not corporate entities. See, e.g., Krangel v. Crown, 791

F.Supp. 1436, 1442 (S.D. Cal. 1992); Roche v. American Red

Cross, 680 F. Supp. 449, 455 (D. Mass. 1988). Additionally, the

Second Circuit’s holding that Respondents’ assertion of the

(Continued on following page)

consistency and clarity to this important area of

jurisdictional law, the Court should grant certiorari.

II. THE SECOND CIRCUIT’S EXPANSION OF

§ 1442(a)(1) TO COVER ALL PRIVATE

CONDUCT DONE IN CONNECTION WITH

GOVERNMENT CONTRACTS IS LEGALLY

ERRONEOUS.

Beyond its incompatibility with other federal

court decisions, the ruling below should be reviewed

because it is manifestly incorrect. Specifically, the

Second Circuit’s expansive reading of the federal

officer removal statute’s “acting under” and particu-

larly its “under color” of federal office provisions

conflicts with this Court’s decisions applying this

statute and identically worded provisions of federal

law.

A. The Second Circuit Broadened the Re-

moval Statute’s “Acting Under” Provi-

sion Beyond Recognition.

First, as discussed, the Second Circuit held that

Respondents satisfied the statute’s “acting under” a

government contractor defense satisfies the statute’s requirement of

a colorable federal defense, App. 19a-22a, is in tension with federal

court authority questioning this proposition. See, e.g., Freiberg, 245

F. Supp. 2d at 1151 n.d (D. Colo. 2002) (questioning “whether the

government contractor ‘defense’ asserted by [defendant] is the type of

federal interest or immunity for which § 1442(a\1) was intended to

provide an exclusively federal forum”).

federal officer requirement simply by virtue of the

fact that they contracted with the government to

provide a product used by the military. App. 16a. In

Watson v. Philip Morris Companies, Inc., 127 S. Ct.

2301 (2007), this Court addressed the same provision

in both holding that a private defendant’s conduct in

complying with federal regulations does not consti-

tute “acting under” a federal officer, and that this is

so “even if the regulation is highly detailed and even

if the private firm’s activities are highly supervised

and monitored.” Jd. at 2308. This Court found instead

that the “acting under” requirement refers to a rela-

tionship that “typically involves ‘subjection, guidance,

or control.’” Id. at 2307 (quoting Webster’s New

International Dictionary 2765 (2d ed. 1953)).

To be sure, Watson discussed the Fifth Circuit’s

ruling in Winters, supra, which had granted removal

by defendants that contracted to manufacture Agent

Orange. Watson stated with regard to the Agent

* Significantly, and unlike in Winters, the panel’s review of

the substantial record below revealed that the alleged “regula-

tion, monitoring or supervision” never existed. Moreover, in its

separate opinion on summary judgment, the panel below limited

Winters and the Fifth Circuit’s companion decision of Miller v.

Diamond Shamrock Co., 275 F.3d 414 (5th Cir. 2001), as follows:

The Fifth Circuit relying in large part on our Agent

Orange I determination concluded the same. See

Miller, 275 F.3d at 421. But we are required to review

the factual! record anew as it is presented to us, not as

it was presented to a different panel twenty years ago.

And we note, as we did in Agent Orange I, that

we were in 1987 without the benefit of briefing

(Continued on following page)

Orange manufacturers in Winters that they were

“helping the government to produce an item it needs,”

and that, “at least arguably, Dow performed a job

that, in the absence of a contract with a private firm,

the Government itself would have had to perform.”

127 S. Ct. at 2307 (emphasis added). However, after

recognizing this arguable distinction, Watson con-

cluded that it “need net further examine here (a case

where private contracting is not at issue) whether

and when particular circumstances may enable

private contractors to invoke the statute.” /d.

However, the Second Circuit’s own factual analy-

sis makes it clear that the court erred in relying on

Watson’s dicta regarding “Agent Orange” contractors.

See App. 15a. Instead, it should have followed Wat-

son’s actual holding that § 1442(a)(1) requires a

relationship involving “subjection, guidance, or con-

trol.” 127 S. Ct. at 2307. The absence of such subjec-

tion, guidance, or control of Respondents’ activities

(t.e. their defective manufacturing processes resulting

in the production of large amounts of the toxic dioxin

contaminant) is made clear by the Second Circuit’s

by the parties on this subject. Agent Orange I Opt-

Out Op., 818 F.2d [187, 190 (2d Cir. 1987)].

In re “Agent Orange,” 517 F.3d at 98 n.19 (emphasis added). In

fact, at the time Winters and Miller were being decided, all “Jn re

Agent Orange” documents were being stored at the National

Archives and were relatively inaccessible. For this or other

reasons, in response to Respondents’ extensive submissions,

plaintiffs’ counsel offered no evidence in Winters and just a

single affidavit by Admiral Elmo Russell Zumwalt, Jr. in Miller.

own finding in its simultaneously issued summary

judgment opinion:

The defendants do not contest that the

government’s contractual specifications for

Agent Orange are silent regarding the

method of manufacturing or that the gov-

ernment harbored no preference, expressed

or otherwise, regarding how the herbicides

were to be produced.... Indeed, they admit

that they were under no federal contractual

duty to produce Agent Orange using any par-

ticular manufacturing process or with any

particular reference to the toxicity levels.

In re “Agent Orange,” 517 F.3d at 93. As a result, the

Second Circuit did not and could not hold that Respon-

dents were under government control or compulsion to

produce Agent Orange with the extremely toxic dioxin

additive that is the basis of Petitioners’ state-law

claims. Absent such government control, the Second

Circuit’s “acting under” determination is contrary to

this Court’s articulated requirements in Watson, and

thus merits review and reversal by this Court.

B. The Second Circuit’s Determination

That There Need Not Be Any Underly-

ing Analysis as to Whether a Contrac-

tor Acted “Under Color of Office” is

Contrary to Every Decision of This

Court.

The Second Circuit’s even more expansive inter-

pretation of the removal statute’s requirement of acts

done “under color” of federal authority is contrary to

this Court’s ruling in Mesa, supra, denying removal of

a state’s prosecution of federal officers for acts they

committed on duty. In Mesa, the Court addressed

homicide and reckless driving prosecutions brought

by the State of California against two United States

Postal Service Workers for acts they committed while

performing their Postal Service duties. 489 U.S. at

123-24. Although the parties agreed that these fed-

eral employees were “persons acting under” an “offi-

cer of the United States,” they disputed whether the

employees were being prosecuted for “act[s] under

color of such office.” Jd. at 125. In unanimously an-

swering this latter question in the negative, the

Court held that the fact that these federal officer

defendants were being prosecuted for acts committed

while on duty was insufficient to show that they were

acting under color of federal office. Jd. at 135. In light

of Mesa’s holding that federal officers themselves

cannot remove state-law claims based solely on the

fact that they address conduct committed while on

duty, the Second Circuit clearly erred in holding

below that private contractors can do just that by

removing claims based on the mere fact that they

were performing under a government contract with

no reference whatsoever to federal authorization of

the specific conduct being prosecuted. See App. 17a

(“[Elven if plaintiffs were to prove that the dioxin

contamination occurred because of an act not specifi-

cally contemplated by the government contract, it is

enough that the contracts gave rise to the contamina-

tton.”) (emphasis added).

Furthermore, the Second Circuit’s expansive

interpretation of the removal statute’s provision

covering acts done “under color” of federal office

conflicts with decisions by this Court and various

circuit courts alike holding that identical language in

federal civil mghts statutes requires focus on “the

specific conduct of which the plaintiff complains.”

American Manufacturers, 526 U.S. at 51 (addressing

42 U.S.C. § 1983) (citation omitted); see also Tancredi

v. Metropolitan Life Ins. Co., 316 F.3d 308, 312 (2d

Cir. 2003) (quoting American Manufacturers); Sutton

v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 836

(9th Cir. 1999) (“Instead, contemporary decisions

stress the necessity of a close nexus between the state

and the challenged conduct rather than application of

a mechanistic formula.”) (emphasis in original) (cita-

tion omitted); Gallagher v. Neil Young Freedom

Concert, 49 F.3d 1442, 1452 (10th Cir. 1995) (same).

Under the identical language of § 1983, this

Court has held that “lalcts of ... private contractors

do not become acts of the government by reason of

their significant or even total engagement in perform-

ing public contracts.” Rendell-Baker v. Kohn, 457 U.S.

830, 841 (1982) (emphasis added). The decision below

flies in the face of this authority by holding that

§ 1442(a)(1)’s identical “under color” provision re-

quires that defendants “only establish that the act

that is the subject of Plaintiffs’ attack (here, the

production of the byproduct dioxin) occurred while

Defendants were performing their official duties.”

App. 16a.

Also in accord with the fact that the statute

requires focus on the specific conduct being sued upon

in the state action is this Court’s interpretation of the

identical “under color” language found in the civil

rights removal statute, 28 U.S.C. § 1443(2), pertain-

ing to persons engaged in law enforcement. City of

Greenwood v. Peacock, 384 U.S. 808, 824 (1966)

(“((W]je hold that the second subsection of § 1443

confers a privilege of removal only upon federal

officers or agents and those authorized to act with cr

for them in affirmatively executing duties under

any federal law providing for equal civil rights.”)

(emphasis added).

Since the Second Circuit’s expansive application

of § 1442(a)(1)’s “under color” provision cannot be

squared with this Court’s consistent requirement that

the specific action must have been performed subject

to federal officer direction or centrol, certiorari should

be granted to reverse this clear error of law in con-

cluding that the acts giving rise to removal include

those done without any federal authorization or

knowledge whatsoever.

Iil, THE SECOND CIRCUIT'S DECISION

RAISES JURISDICTIONAL ISSUES OF

EXCEPTIONAL IMPORTANCE.

Finally, certiorari should be granted because,

based upon the Second Circuit’s exceptionally broad

removal policy, a significant infusion of cases involv-

ing government contractors has the potential to

overwhelm already over-burdened federal courts.

There is no question that the number of contracts

entered into by the government has mushroomed in

recent years. The 2007 defense budget alone allocated

over $84 billion for contract procurement.” As this

contracting has expanded, the number of suits

brought against government contractors will inevita-

bly keep pace.” Under the ruling below, virtually all

of these cases will be removable to federal court.

There is widespread agreement that the federal

judiciary is already stretched to the limit.'’ With such

burgeoning dockets, it is rather easy to forget that the

entire federal Article III judiciary has roughly half

the judges of the state of California and that federal

* See www.defenselink.mil/comptroller/defbudget/fy2007/fy

2007_pl.pdf at 4.

'° See, e.g., In re Blackwater Security Consulting, LLC, 460

F.3d 576 (4th Cir. 2006) (denying appeal of order remanding

survivor wrongful death and fraud claims against defense

subcontractor for misrepresenting terms of and _ providing

inadequate security provisions for support services performed in

Iraq); see also Kennedy v. Health Options, supra, 329 F. Supp. 2d

at 1314 (remanding state law damages claim against private

Medicare insurer for injurnes resulting from denial of medical

care).

‘' See, e.g., Wilkinson, The Drawbacks of Growth in the

Federal Judiciary, 43 Emory L.J. 1147 (Fall 1994); Rehnquist,

Seen in a Glass Darkly: The Future of the Federal Courts, 1993

Wis. L. Rev. 1, 4, 7-9 (overburdening the federal courts will

result in a “decline in the high quality of justice the nation has

long expected of the federal courts,” and a key to avoiding that

result is to limit “inefficient allocations of jurisdiction”).

courts are necessarily courts of limited jurisdiction —

both

Constitutionally and practicably. The decision below,

however, threatens these limitations by construing

the federal officer removal statute as broadly as

possible. By contrast, this Court has cautioned in

analogous circumstances that the federal diversity

jurisdiction statute should be strictly construed to

“relievie] the federal courts of the overwhelming

burden of ‘business that intrinsicaliy belongs to the

state courts.’” City of Indianapolis v. Chase Nat'l

Bank, 314 U.S. 68, 76 (1941) (quoting Friendly,

The Historic Basis of Diversity Jurisdiction, 41 Harv.

L. Rev. 483, 510).

Furthermore, routing injured parties, including

our soldiers and veterans, to often distant federal

courts exacts an unreasonable price on people who

often have limited resources. Distance from the

courthouse alone can limit participation in the judi-

cial process. And this is only one of the reasons prose-

cuting cases in federal courts is generally viewed as

more expensive than litigation in state court.” This

factor, and the location of their counsel in major cities

where federal courts are almost always located,

provide an advantage to large corporate defendants

' See also Miller, An Empirical Study of Forum Choices in

Removal Cases Under Diversity and Federal Question Jurisdic-

tion, 41 Am. U. L. Rev. 369, 404 (1992) (finding that both

plaintiff and defense attorneys agree that “federal court litiga-

tion is more expensive to undertake” than state court litigation).

and is no doubt one reason these defendants routinely

press for a federal forum.”

Moreover, our system of federalism embodies the

principle that state, not federal, courts should be the

principal arbiters of state law. State courts have long

been the primary guardians of these state-law rights,

and federal law consistently has been construed to

respect the vital role played by state courts. See, e.g.,

Federated Dep't Stores, Inc. v. Moitie, 452 U.S. 394,

407 (1981) (Brennan, J., dissenting) (“state courts

remain the preferred forum for interpretation and

enforcement of state law”); Shamrock Oil & Gas

Corp. v. Sheets, 313 U.S. 100, 108 (1941) (“[T]he

policy of the successive acts of Congress regulating

the jurisdiction of federal courts is one calling for the

strict construction of such legislation.”).

As one commentator has explained:

To offer a private corporation acting on its

own initiative the ability to remove a case

brought against it in state court to a federal

forum, simply because that corporation is be-

ing paid by the federal government to pro-

vide a product, is to infringe upon a state’s

sovereignty by thwarting its ability to adju-

dicate disputes in its own judicial system. A

state has an important interest in resolving

cases filed in its courts. ... The only interest

significant enough to be protected by federal

'* See Gibbs, Forum Shopping Through Federal Agent Re

moval Jurisdiction and CAFA, 86-FEB Mich. B.J. 20 (Feb. 2007).

officer removal is the interest in enforcement

of federal law in support of a supreme na-

tional government."

To be sure, this Court has consistently held that

giving federal courts the right te resolve federal

officers’ official defenses in response to state-law

prosecutions prevents those prosecutions from un-

fairly hindering the federal government in performing

its job. But it is the threat that state prosecution may

impede the federal government’s operations that has

undergirded the federal officer removal statute. See,

e.g., Mesa, 489 U.S. at 187 (“Congress’ enactment of

federal officer removal statutes since 1815 served ‘te

provide a federal forum for cases where federal offi-

cials must raise defenses arising from their official

duties.’”) (quoting Willingham, 395 U.S. at 405).

However, when the federal government does not

control the charged acts, as it did not here, and those

same acts are subject to state prosecution when the

identical products are contracted for by anyone other

than the government, then arrogating jurisdiction to

federal court serves no purpose.

The only policy argument advanced by the

courts below for federal jurisdiction is one that

should be unavailing. Both the district court and the

court of appeals below voiced their concerns about

‘’ Note, The Boyle Festers: How Lax Causal Nexus Require-

ments and the “Federal Contractor Defense” Are Leading to a

Disruption of Comity Under the Federal Officer Removal Statute,

46 Emory L.J. 1629, 1657 (1997) (footnotes omitted).

the capacity of state courts to handle litigation. See

App. 4la (district court); 9a-10a (circuit court). In

other words, they distrust the state court system and

view expansive removal jurisdiction as a way to

protect corporate defendants from the vagaries of

state prosecution. But this Court has already dis-

missed such arguments: “We have ... not found the

need to adopt a theory of ‘protective jurisdiction’ to

support Art. III ‘arising under’ jurisdiction . .. and we

do not see any need for doing so here.” Mesa, 489 U.S.

at 137. Indeed, such a policy is antithetical to our

federal system.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

GERSON H. !5MOGER

Counsel oy Record

SMOGER & ASSOCIATES, P.C.

3175 Monterey Blvd., Suite 3

Oakland, CA 94602

(510) 531-4529

MARK R. CUKER

MICHAEL J. QUIRK

WILLIAMS CUKER BEREZOFSKY

1617 J.F.K. Blvd., Suite 800

Philadelphia, PA 19103

(215) 557-0099

Counsel for Petitioners

October 6, 2008

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2006

(Argued: June 18,2007 Decided: February 22, 2008)

Docket Nos. 05-1820-cv; 05-1509-cev; 05-1693-cv; 05-

1694-cv; 05-1695-cv; 05-1698-cv; 05-2450-cv

Joe Isaacson and Phyllis Lisa Isaacson,

Plaintiffs-Appellants,

—_—V.—

Dow Chemical Co., Monsanto Co., Hercules, Inc.,

Occidental Chemical Corp., Ultramar Diamond

Shamrock Corporation, Maxus Energy Corp., Chemical

Land Holdings, Ine , T-H Agriculture and Nutrition

Co., Thompson Hayward Chemical Co., Harcros

Chemicals, Inc., Uniroyal, Inc., C.D.U. Holding Inc.

and Uniroyal Chemical Company,

Defendants-Appellees.

J. Michael Twinam,

Plaintiff-Appellant,

—V. ——

Dow Chemical Company, Monsanto Co., American

Home Preducts, Inc., Hercules Incorporated, Occidental

Chemical Corporation, Ultramar Diamond, Chemical

Land Holdings, Inc., Maxus Energy Corp., Harcros

Chemicals, Inc., Shamrock Corp., Thompson Hayward

Chemical Co., T-H Agriculture, Uniroyal Chemical Co.

and Valero Marketing Corporation,

Defendants-Appellees.

Robert S. Bauer and Sandra J. Bauer,

Plaintiffs-Appellants,

—_—Vi—

Dow Chemical Company, Monsanto Company, Phar-

macia Corp., formerly known as Monsanto Co., Solutia,

Inc., Hercules, Inc., Thompson Hayward Chemical Co.,

T-H Agriculture & Nutrition Co., Occidental Chemical

Corporation, Occidental Petroleum Corporation, Uni-

royal, Inc., C.D.U. Holding, Inc., Uniroyal Chemical

Company, Harcros Chemicals, Inc., Ultramar Diamond

Shamrock Corporation, Maxus Enegy Corp., Tierra

Solutions, Inc. and Chemical Land Holdings, Inc.,

Defendants-Appellees.

Sheryl A. Walker, E.C.W., A minor, by his Mother and

Next Friend on behalf of Sheryl A. Walker, Stephen J.

Walker, William Hamilton and Esther M. Hamilton,

His wife, Individually and on Behalf of All Others

Similarly Situated,

Plaintiffs-Appellants,

—_vV.—

Dow Chemical Company, Monsanto Company, Phar-

macia Corp., Solutia, Inc., Hercules, Inc., Thompson

Hayward Chemical Co., T-H Agriculture & Nutrition

Co., Occidental Petroleum Corporation, Occidental

Chemical Corp., Uniroyal, Inc., C.D.U. Holding, Inc.,

Uniroyal Chemical Company, Harcros Chemicals, Inc.

Ultramar Diamond Shamrock Corporation, Maxus

Energy Corp., Tierra Solutions, Inc., Chemical Land

Holdings, Inc., and Valero Energy Corporation, doing

business as Valero Marketing and Supply Company,

Defendants-Appellees.

Does 1-100,

Defendants.

Sherman Clinton Stearns and Dortha Monyene

Stearns,

Plaintiffs-Appellants,

_—_—V—

Dow Chemical Company, Hercules Inc., Occidental

Chemical Corp., Thompson Hayward Chemical Co.,

Elementis Chemicals, Inc., T.H. Agriculture and Nutri-

tion Company, Inc., Maxus Energy Corp., El Paso Gas

Transmission Company, Valero Energy Corporation,

doing busines as Valero Marketing and Supply Com-

pany and Uniroyal Chemical Company,

Defendants-Appellees.

Charles T. Anderson,

Plaintiff-Appellant,

—vV.—

Dow Chemical Company, Monsanto Company,

Occidental Chemical Corporation, Hercules, Inc.

and Valero Energy Corporation, doing business as

Valero Marketing and Supply Company,

Defendants-Appellees,

Pfizer, Inc., Solutia, Inc., E.I. Dupont de Demours &

Co., Elementis Chemicals, Inc., Roche Holdings, Ltd.,

Harcros Chemicals, Inc., Crompton Corporation,

Repsol-YPF, ConocoPhillips Company, Wyeth, Inc.,

Velsicol Chemical Corporation,

Defendants.

Vickey S. Garncarz,

Plaintiff-Appellant,

—_V—

Dow Chemical Company, Uniroyal Chemical Corp.,

and Occidental Chemical Corporation,

Defendants-Appellees.

BEFORE:

MINER, SACK, HALL, Circuit Judges:

This is one of two opinions addressing appeals

from a judgment of the United Staets District Court

for the Eastern District of New York (Weinstein, J.)

dismissing this multidistrict litigation. This opinion

concerns the March 2005 order of the district court

denying plaintiffs’ motions to remand seven actions to

state court. Because we agree that the district court

has jurisdiction over these actions under the federal

officer removal statute, 28 U.S.C. § 1442(a)(1), the

order of the district court is AFFIRMED.

GERSON H. SMOGER, Smoger & Associates,

Oakland, California, MARK R. CUKER, Williams

Cuker Berezofsky, Philadelphia, Pennsylvania,

for Plaintiffs-Appellants Joe Isaacson and Phyllis

Lisa Isaacson.

CHRISTOPHER E. BUCKEY, Shanley, Sweeney,

Reilly & Allen, P.C., Albany, New York, for Plaintziff-

Appellant J. Michael Twinam.

J. MARK ENGLEHART, Beasley, Allen, Crow,

Methvin, Portis & Miles, P.C., Montgomery, Ala-

bama, for Plaintiffs-Appellants Robert S. Bauer

and Sandra J. Bauer.

MARK I. BRONSON, Newman, Bronson & Wal-

lis, St. Louis, Missouri, for Plaintiffs-Appellants

Sheryl A. Walker, et al.

DAVID E. CHERRY, Campbell, Cherry, Harrison,

Davis & Dove, P.C., Waco, Texas, for Plaintiffs-

Appellants Sherman Clinton Stearns and Dortha

Monyene Stearns.

JAMES BOANERGES, Cooper, Sprague, Jackson

& Boanerges, P.C., Houston, Texas, for Plaintiffs-

Appellants Charles T: Anderson and Vickey S.

Garncarz.

JOAN N. HARROP, Gomien & Harrop, Morris, Il-

linois, WILLIAM F. FITZPATRICK, Fitzpatrick &

Fitzpatrick, Chicago, Illinois, for Plaintiff-

Appellant Vickey S. Garncarz.

ANDREW L. FREY, CHARLES A. ROTHFELD,

Mayer, Brown, Rowe & Maw LLP (Lauren R.

Goldman, Christopher J. Houpt, on the brief),

New York, New York, for Defendants-Appellees.

SCOTT L. NELSON, BRIAN WOLFMAN, Public

Citizen Litigation Group, Washington, District of

Columbia, for Amicus Curiae Public Citizen, Inc.

WILLIAM A. ROSSBACH, TIMOTHY M.

BECHTOLD, Rossbach Hart Bechtold, P.C., Mis-

soula, Montana, P.B. ONDERDONK, JR., Indi-

anapolis, Indiana, (Anne Bloom, Sacramento,

California, on the brief), for Amici Curiae Veter-

ans and Military Service Organizations.

HALL, Circuit Judge:

We are asked to determine whether the federal

officer removal statute, 28 U.S.C. § 1442(a)(1), allows

defendant chemical companies (“Defendants”), who

contracted with the Government to produce Agent

Orange for military use in the Vietnam War, to re-

move to federal court actions filed in state court

alleging violations of state law in connection with

that production. Those plaintiffs who contest federal

jurisdiction claim that Defendants do not qualify as

“persons” who were “acting under” a federal officer

performing acts “under color of federal office” when

they committed the challenged acts. We disagree.

Defendants have demonstrated that they are “per-

sons” within the meaning of the statute; that they

were “acting under” a federal officer; that there is a

causal connection between the formulation, manufac-

turing, packaging, and delivery of Agent Orange and

the state prosecutions; and that they have raised a

colorable federal defense to the state suits. Moreover,

removal in these cases fulfills the federal officer

removal statute’s purpose of protecting persons who,

through contractual relationships with the Govern-

ment, perform jobs that the Government otherwise

would have performed. See Watson v. Philip Morris

Cos., Inc., 127 S.Ct. 2301, 2308 (2007). We therefore

affirm the orders of the district court denying the

plaintiffs’ motions to remand.

BACKGROUND

Our decision today on the applicability of the

federal officer removal statute affects only seven of

the sixteen appeals in the present litigation. The

plaintiffs in these seven appeals (“Plaintiffs”) filed

actions in state courts in Illinois, Missouri, New

Jersey, New York, and Texas in which they alleged

violations of state law, and they asserted that re-

moval would be improper because diversity of citizen-

ship was not complete. See Isaacson Compl. (filed in

New Jersey); Twinam Compl. (filed in New York);

Bauer Compl. (filed in Missouri); Walker Compl. (filed

in Missouri); Stearns Compl. (filed in Texas); Ander-

son Transfer Order (from complaint filed in Texas);

Garncarz Compl. (filed in Illinois). Defendants re-

moved all of the cases to the federal district courts in

their respective states. After Defendants had removed

the cases, the Judicial Panel on Multidistrict Litiga-

tion transferred the cases to the United States Dis-

trict Court for the Eastern District of New York.

The district court first dismissed all of the cases

because it found that they were impermissibly at-

tempting to attack collaterally a 1984 class action

settlement of claims stemming from harms suffered

by veterans as a result of their exposure to Agent

Orange. On appeal, this Court, following the Supreme

Court’s decisions in Amchem Prods., Inc. v. Windsor,

521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp.,

527 U.S. 815 (1999), vacated the dismissal and re-

manded because Plaintiffs were not bound by the

settlement. See Stephenson v. Dow Chem. Co., 273

F.3d 249, 259-61 (2d Cir. 2001). This Court also held

that the district court had subject matter jurisdiction

over the claims under the All Writs Act because,

although the settlement funds were depleted, the

state actions would require interpretation of the

scope of the settlement and could disturb the judg-

ment. See id. at 256.

The Supreme Court affirmed the judgment

vacating the order of dismissal, but it vacated this

Court’s judgment to the extent that that judgment

had affirmed the assertion of removal jurisdiction

under the All Writs Act. See Dow Chem. Co. v. Ste-

phenson, 589 U.S. 111 (2003). The Supreme Court

further directed this Court to reconsider the question

of federal jurisdiction over the claims in light of

Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28

(2002). See Dow Chem. Co., 539 U.S. at 112. On

remand, we found it “clear in light of Syngenta that

federal jurisdiction with respect to the Isaacson’s

claims cannot be grounded on the All Writs Act.”

Stephenson v. Dow Chem. Co., 346 F.3d 19, 21 (2d Cir.

2003). We therefore remanded the case to the district

court for further analysis of the jurisdictional ques-

tion.

Once back in the district court, Defendants

moved for summary judgment, and Plaintiffs moved

to remand the actions to state court. The district

court granted Defendants’ motion for summary

judgment, see In re Agent Orange Prod. Liab. Litig.

(Agent Orange I), 304 F.Supp. 2d 404 (E.D.N-Y.

2004), and in a separate memorandum and order, it

denied the Isaacson plaintiffs’ motion to remand,

because it found that jurisdiction was proper pursu-

ant to the federal officer removal statute, see /n re

Agent Orange Prod. Liab. Litig. (Agent Orange ID,

304 F. Supp. 2d 442 (E.D.N.Y. 2004). In March 2005,

the district court denied the remaining motions to

remand.

In its jurisdictional ruling, the district court

found that Defendants had satisfied the requirements

for invoking the federal officer removal statute be-

cause: (1) they were “persons” within the meaning of

the statute; (2) they were “acting under color of a

federal office,” because the Government specified the

formulation of Agent Orange, was aware that it

contained dioxin, knew about the “dioxin ‘problem,’”

and controlled the method of warning; and (3) the

government contractor defense was a colorable fed-

eral law defense. See Agent Orange II, 304 F. Supp. 2d

at 449-51. The court further noted the policy consid-

erations supporting removal: (1) the scattering of

Agent Orange claims throughout the state courts

would have a chilling effect on manufacturers’ accep-

tance of government contracts; (2) the vagaries of

state tort law would deter military procurement; and

(3) state courts may circumvent Boyle v. United

Technologies Corp., 487 U.S. 500 (1988), the Supreme

10a

Court’s preeminent decision on the government

contractor defense, if they are unsympathetic to

defendants. Agent Orange II, 304 F. Supp. 2d at 451.

The court observed that its present decision was

contrary to its prior decision in Ryan v. Dow Chemicai

Co., 781 F. Supp. 934 (E.D.N.Y. 1992), where it had

held, in virtually identical circumstances and with

roughly the same defendants, that the federal officer

removal statute did not apply. See Agent Orange II,

304 F. Supp. 2d at 445. The court explained its rever-

sal of course by noting that Ryan was “no longer

persuasive” and that Ryan’s holding had been called

into question by the Fifth Circuit in Winters v. Dia-

mond Shamrock Chemical Co., 149 F.3d 387, 392 (5th

Cir. 1998). See Agent Orange Il, 304 F. Supp. 2d at

445.

Plaintiffs appeal the district court’s memoran-

dum and order finding removal jurisdiction over their

state law claims and the district court’s later order

denying all motions to remand.

DISCUSSION

We review de novo the district court’s denial of

the motions to remand. See Whitaker v. Am. Telecast-

ing, Inc., 261 F.3d 196, 201 (2d Cir. 2001). The federal

officer removal statute provides that a case may be

removed from state to federal court when the case is

brought against “(t]he 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,

lla

sued in an official or individual capacity for any act

under color of such office.” 28 U.S.C. § 1442(a)(1). In

this case, because they are not federal officers them-

selves, Defendants must satisfy a three-pronged test

to determine whether they may effect removal. First,

they must show that they are “person(s]” within the

meaning of the statute who “act[ed] under [a federal]

officer.” Jd. Second, they must show that they per-

formed the actions for which they are being sued

“under color of [federal] office.” Jd. Third, they must

raise a colorable federal defense. Jefferson County v.

Acker, 527 U.S. 423, 431 (1991). We consider each of

these requirements in turn.

I. Corporate Persons and the “Acting Un-

der” Requirement

To satisfy the first requirement, Defendants must

show that they were “person[s] acting under” “color

of” a federal officer. As an initial matter, we address

whether Defendants are “persons.”

A. Corporate Persons Under the Federal

Officer Removal Statute

Section 1442 extends removal power to the

United States, its agencies, federal officers, and

persons acting under federal officers. Although Plain-

tiffs argued in their briefs that the defendant chemi-

cal companies do not fall under § 1442 because they are

not natural persons, another panel of this Court de-

cided, after briefs were due in this case, that corporate

12a

persons qualify as “persons” under § 1442. In re

Methyl Tertiary Butyl Esther (““MTBE”) Prods. Liab.

Litig., 488 F.3d 112, 124 (2d Cir. 2007). Although

MTBE thus forecloses any argument that corpora-

tions are not “persons” under the federal officer

removal statute, because that case did not detail its

reasoning on this issue, we take this opportunity to

explain that result.

By statute, we presume that the term “person”

includes corporations “unless the context indicates

otherwise.” 1 U.S.C. § 1. The context in which the

term “person” is used in § 1442 gives no indication

that corporations are excluded. In fact, § 1442 also

lists other non-natural entities, such as the United

States and its agencies, which suggests that inter-

preting “person” to include corporations is consistent

with the statutory scheme. The presumption is not

irrebuttable, and it can be overcome where the legis-

lative history of the statute under consideration

shows that “the normal rule of construction set forth

in 1 U.S.C. § 1 would run contrary to the statutory

intent.” Toy Mfrs. of Am., Inc. v. Consumer Prod.

Safety Comm'n, 630 F.2d 70, 74 (2d Cir. 1980). As a

federal district court in California observed in

Krangel v. Crown, 791 F.Supp. 1436 (S.D. Cal. 1992),

the legislative history of § 1442 reflects only “the

absence of express congressional intent to expand the

protection of the federal officer removal provision

beyond all federal officers to include non-natural

entities.” /d. at 1442. The Krangel Court found that

the term “person” did not include corporate persons

l3a

based on this absence. As noted above, however, 1

U.S.C. § 1 establishes a baseline presumption that

the term “person” includes corporate persons; the

legislative history of § 1442 is relevant only to the

extent it reflects a contrary statutory intent. Because

the legislative history is devoid of evidence suggest-

ing that Congress intended § 1442 not apply to corpo-

rate persons, the ordinary presumption established in

1 U.S.C. § 1 controls.

The 1996 amendment of § 1442 to include agen-

cies does not change the result. Prior to its amend-

ment in 1996, the statute allowed removal in cases

against “[alny officer of the United States or any

agency thereof, or person acting under him, for any

act under color of such office.” 28 U.S.C. § 1442(a)(1)

(1948). As written, the pre-1996 version was unclear

on whether it applied only to actions against officers

or if it also applied to actions against the United

States and its agencies. The amendment clarified

that it applied to “[t]he United States,” “any agency

thereof,” “any officer ... of the United States,” “any

officer ... of any agency,” and “any person acting

under [any such] officer.” Jd. Whether or not the term

“person” included corporations was, and remains, an

entirely separate issue from whether or not the

statute applied to both agencies and agency officers.

The 1996 modification with respect to the latter,

therefore, cannot be interpreted as reflecting any

preexisting understandings with respect tc the for-

mer.

l4a

Based on these considerations, we agree with the

panel in MTBE that the term “person” includes

corporate persons. We also note that in so holding,

our Circuit is in agreement with the Fifth Circuit, see

Winters, 149 F.3d at 398, and several district courts,

see Good v. Armstrong World Indus., Inc., 914

F. Supp. 1125, 1127-28 (E.D. Pa. 1996); Pack v. AC &

S, Inc., 838 F. Supp. 1099, 1102-03 (D. Md. 1993);

Fung v. Abex Corp., 816 F. Supp. 569, 572 (N.D. Cal.

1992).

B. The “Acting Under” Requirement

Defendants must show that they were “acting

under” a federal officer. The words “acting under” are

to be interpreted broadly, and the statute as a whole

must be liberally construed. See Watson, 127 S.Ct. at

2304-05; Willingham v. Morgan, 395 U.S. 402, 407

(1969) (“Th[e] policy [of providing the protection of a

federal forum to federal officers] should not be frustrated

by a narrow, grudging interpretation of § 1442(a)(1).”).

In Watson, 127 S.Ct. 2301, the Supreme Court

expanded on what kind of relationship between the

federal officer and the private actor is needed to

satisfy the “acting under” requirement. There, the

Court considered whether the Philip Morris Compa-

nies were “acting under” a federal officer or agency

when they tested and advertised their cigarettes in

compliance with the Federal Trade Commission’s de-

tailed regulations. /d. The Court held that they did not

qualify as “acting under” a federal officer, reasoning

15a

that the “help or assistance necessary to bring a

private person within the scope of the [federal officer

removal] statute does not include simply complying

with the law.” Jd. at 2307. Instead, an entity “act{s)

under” a federal officer when it “assist[s], or ...

helpi[s] carry out, the duties or tasks of the federal

superior.” Jd. In other words, there must exist a

“special relationship” between the two. Id. at 2310.

For example, close supervision of the private entity

by the Government would constitute such a special

relationship:

(T]he private contractor in such cases is

helping the Government to produce an item

that it needs. The assistance that private

contractors provide federal officers goes be-

yond simple compliance with the law and

helps officers fulfill other basic governmental

tasks. In the context of [Winters, 149 F.3d

387], for example, Dow Chemical fulfilled the

terms of a contractual agreement by provid-

ing the Government with a product that it

used to help conduct a war. Moreover, at

least arguably, Dow performed a job that, in

the absence of a contract with a private firm,

the Government itself would have had to per-

form.

Id. at 2308.

Similarly, in this case, Defendants contracted

with the Government to provide a product that the

Government was using during war — a product that, in

the absence of Defendants, the Government would have

had to produce itself. Unlike the tobacco companies in

16a

Watson, Defendants received delegated authority;

they were not simply regulated by federal law.

Through their contracts with the Government to

produce Agent Orange, the chemical companies

“assist[ed]” and “help[ed] carry out{ ] the duties or

tasks of” officers at the Department of Defense. See

id. at 2307. Defendants thus had the “special rela-

tionship” with the Government required by the

“acting under” prong.

II. “Under Color of” Federal Office

The second prong requires Defendants to show

that the acts complained of — that is, producing dioxin

through the manufacturing of Agent Orange — were

taken “under color of [federal] office.” 28 U.S.C.

§ 1442(a)(1). Over time, this second prong has come to

be known as the causation requirement. See Mary-

land v. Soper (No. 1), 270 U.S. 9, 33 (1926). To satisfy

this requirement as applied to a federal officer, “[iJt

must appear that the prosecution of him for whatever

offense has arisen out of the acts done by him under

color of federal authority and in enforcement of

federal law, and he must by direct averment exclude

the possibility that it was based on acts or conduct of

his, not justified by his federal duty.” Jd. at 33. The

hurdle erected by this requirement is quite low, as

“(t]he statute does not require that the prosecution

must be for the very acts which the officer admits to

have been done by him under federal authority.” Id.

Rather, “[{iJt is enough that his acts or his presence at

the place in performance of his official duty constitute

17a

the basis, though mistaken or false, of the state

prosecution.” Jd. Translated to non-governmental

corporate defendants, such entities must demonstrate

that the acts for which they are being sued — here, the

production of dioxin in Agent Orange — occurred

because of what they were asked to do by the Gov-

ernment. We credit Defendants’ theory of the case

when determining whether a causal connection

exists. Jefferson County v. Acker, 527 U.S. 423, 432

(1999).

We agree with the district court that the “acting

under” prong is satisfied here. To show causation,

Defendants must only establish that the act that is

the subject of Plaintiffs’ attack (here, the production

of the byproduct dioxin) occurred while Defendants

were performing their official duties. See Willingham,

395 U.S. at 409; see also Soper, 270 U.S. at 33. Defen-

dants have made the required showing. According to

their theory of the case, the Government knew that

Agent Orange contained dioxin, and the Government

controlled the method of formulation. The action that

Plaintiffs challenge, the production of dioxin, natu-

rally would have occurred during the performance of

these government-specified duties. And even if Plain-

tiffs were to prove that the dioxin contamination

occurred because of an act not specifically contem-

plated by the government contract, it is enough that

the contracts gave rise to the contamination. Indeed,

whether the challenged act was outside the scope of

Defendants’ official duties, or whether it was specifi-

cally directed by the federal Government, is one for

18a

the federal — not state — courts to answer. See Wil-

lingham, 395 U.S. at 409.

Plaintiffs’ arguments to the contrary are unper-

suasive. They first claim that Agent Orange was an

off-the-shelf product and, therefore, could not have

been manufactured under color of federal office. As

we point out in our companion opinion, however,

commercially available products did not contain the

Agent Orange herbicides in a concentration as high

as that found in Agent Orange. See In re “Agent

Orange” Prod. Liab. Litig., __ F.3d ___ (2008). Plain-

tiffs’ off-the-shelf argument thus fails.

Plaintiffs also suggest that the production of

Agent Orange was not under color of federal office

because Defendants voluntarily bid for the govern-

ment contracts under which they produced Agent

Orange. We find no authority for the suggestion that

a voluntary relationship somehow voids the applica-

tion of the removal statute. To require the relation-

ship to have been not only “special” but also coerced

makes little sense in light of the statute’s purpose,

and it is particularly strange when applied to natural

persons who are acting under a federal officer — all of

whom, we would trust, are doing so voluntarily.

In light of the broad interpretation that we must

afford the requirement that there be a causal connec-

tion between Defendants’ federal duties and the

conduct for which they are being sued, Defendants

have satisfied the “acting under” prong of the statute.

19a

III. Colorable Federal Defense

Finally, Defendants must raise a colorable fed-

eral defense. Jefferson County, 527 U.S. at 431; Mesa

v. California, 489 U.S. 121, 132-34 (1989). The dis-

trict court found that Defendants had raised a color-

able government contractor defense. Agent Orange II,

304 F.Supp.2d at 450. As described more fully in our

companion opinion, the government contractor de-

fense protects a government contractor from liability

under state tort law when the Government approved

the product’s general design, the product conformed

to that design, and the contractor warned the Gov-

ernment of the risks of the product. See In re “Agent

Orange” Prod. Liab. Litig., __ F.3d ____ (2008).

Courts have imposed few limitations on what

qualifies as a colorable federal defense. At its core,

the defense prong requires that the defendant raise a

claim that is “defensive” and “based in federal law.”

Mesa, 489 U.S. at 129-30. More specifically, such

defense must “aris([e] out of [the party’s] official

duties.” Arizona v. Manypenny, 451 U.S. 232, 241

(1981). Given that the removal statute more generally

is “not ‘narrow’ or ‘limited’” and that one of its pur-

poses is “to have such defenses litigated in the federal

courts,” the federal defense requirement is satisfied

in “all cases where federal officers can raise a color-

able defense arising out of their duty to enforce

federal law.” Willingham, 395 U.S. at 406-07. To be

“colorable,” the defense need not be “clearly sustain-

able,” as the purpose of the statute is to secure that

20a

the validity of the defense will be tried in federal

court. Jd. at 407.

The government contractor defense, which is a

creature of federal common law and serves to protect

the interests of the Government rather than the

‘contractor defendant, see In re “Agent Orange” Prod.

Liab, Litig., _.. F.3d __ (2008), is “defensive” and

“federal,” Mesa, 489 U.S. at 129-30. Moreover, as

asserted by Defendants in this case, the defense

clearly “ar[ose] out of [Defendants’] duty” pursuant to

their contractual relationship with the Federal Gov-

ernment. Willingham, 395 U.S. at 407; see also Ma-

nypenny, 451 U.S. at 241. And as found by the district

court, Defendants’ assertions satisfy the particular

requirements of the defense. Agent Orange II, 304

F. Supp. 2d at 450.

Plaintiffs object, however, based on an argument

that (1) only “official immunity defenses” qualify as

“colorable federal defenses,” and (2) the government

contractor defense is not an “official immunity de-

fense” and, therefore, cannot satisfy the federal

defense requirement. Contrary to Plaintiffs’ claims,

we find no support for the proposition that only

“official immunity defenses” satisfy the “colorable

federal defense” requirement. Although Willingham

states that “one of the most important reasons for

removal is to have the validity of the defense of

official immunity tried in a federal court,” 395 U.S. at

407, the Court proffers official immunity as only one

reason for removal; it does not limit removal to situa-

tions that involve official immunity. Furthermore, in

2la

Mesa, the Supreme Court confirms that in Cleveland,

Columbus & Cincinnati. R.R. v. McClung, 119 U.S.

454 (1886), the defendant, a federal customs collector

being sued for violation of his federal duty, satisfied

the colorable federal defense requirement, not by

asserting official immunity, but by defending on the

basis that federal law did not impose any such duty.

Mesa, 489 U.S. at 129-30. Compliance with federal

law, therefore, provides a colorable federal defense

under some circumstances, but it is not coterminous

with an immunity defense.

Because we find that a defense need not be an

immunity defense to qualify as a colorable federal

defense under the removal statute, we need not

decide here whether the government contractor

defense is an immunity defense — an issue on which

courts have disagreed. Compare Murray v. Northrop

Grumman Info. Techs., Inc., 444 F.3d 169, 175 (2d Cir.

2006) (citing Boyle as analogous to the holding that a

private contractor administering a congressional job

training program for Irish nationals was entitled to

official immunity from state tort liability), Densberger

vu. United Tech. Corp., 297 F.3d 66, 75 (2d Cir. 2002)

(noting that Boyle “extended the immunity afforded

to the federal government’s discretionary functions

under the Federal Tort Claims Act to government

contractors”), and Kerstetter v. Pac. Scientific Co., 210

F.3d 431, 435 (5th Cir. 2000) (“Government contractor

immunity is derived from the government’s immunity

from suit where the performance of a discretionary

function is at issue.”), with United States ex rel. Ali v.

22a

Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140,

1147 (9th Cir. 2004) (“[T]he government contractor

defense does not confer sovereign immunity on con-

tractors.”), and In re Joint E. & S. Dist. N.Y. Asbestos

Litig. (Grispo v. Eagle-Picher Indus., Inc.), 897 F.2d

626, 631 (2d Cir. 1990) (noting that Boyle did not

grant military contractors “blanket immunity,” but

rather “hinge[d] the military contractor defense upon the

military contractor’s having followed a government-

approved requirement contrary to a state tort law duty”).

+ * *

The district court properly found that it had

jurisdiction over the present actions under the federal

officer removal statute. Defendants are “persons”

within the meaning of the statute who are entitled to

stand in the shoes of a federal officer because of the

“special relationship” they shared with the Govern-

ment. The production of dioxin occurred “under color

of [federal] office” because it occurred while Defen-

dants were performing their “official” duty, pursuant

to government contract, of manufacturing Agent

Orange. Finally, Defendants have adequately raised

the government contractor defense, which qualifies as

a colorable federal defense.

CONCLUSION

The order of the District Court denying Defen-

dants’ motions to remand is AFFIRMED.

23a

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

i Aides tinneienenneeeiddowcone ».4

In re :

“AGENT ORANGE” > MDL No. 381

PRODUCT LIABILITY.

LITIGATION .

2 a ee a ee ee ».4

JOE ISAACSON and ; MEMORANDUM &

PHILLIS LISAISAACSON, : ORDER (REMOVAL)

—_ 98-CV-6383 (JBW)

Plaintiffs,

-against-

DOW CHEMICAL

COMPANY, et al.,

Defendants.

(Filed Feb. 12, 2004)

APPEARANCES:

For Plaintiffs Joe Isaacson; and Phillis Lisa Isaacson:

Williams, Cuker, Berezofsky

51 Haddonfield Road

Suite 160

Cherry Hill, NJ 08002-4804

By: Mark R. Kuker; Dan Bencivenga

Smoger & Associates

3175 Monterey Boulevard

Oakland, California 94602

By: Gerson Smoger

24a

For Defendant Hercules, Inc.:

Kelley Drye & Warren LLP

101 Park Avenue

New York, NY 10178

By: William A. Krohley; William C. Heck

For Defendant The Dow Chemical Company:

Rivkin Radler & Kremer

EAB Plaza

Uniondale, NY 11556

By: Steven Brock; James V. Aiosa

Orrick, Herrington & Sutcliffe LLP

666 Fifth Avenue

New York, New York 10103

By: James Lamont Stengel

For Defendant Occidental Chemical Corporation:

Cadwalader, Wickersham & Taft LLP

100 Maiden Lane

New York, NY 10038

By: Michael M. Gordon

For Defendant Monsanto Company:

Seyfarth Shaw LLP

1270 Avenue of the Americas

New York, NY 10022

By: John C. Sabetta; Andrew T. Hahn, Sr.

Latham & Watkins

One Newark Center

Newark, NJ 07101-3174

By: James E. Tyrrell

25a

For Defendant Omniroyal, Inc.:

Myron Kalish

50 East 79th Street

New York, NY 10021

For Defendants T.H. Agriculture & Nutrition Co.:

Clark, Gagliardi & Miller

99 Court Street

White Plains, NY 10601

By: Lawrence T. D’Aloise

Jack B. Weinstein, Senior United States District Judge:

Table of Contents

I. Introduction

Il. Facts

Ill. Law

A. General Rule

B. Elements of Section 1442(a)(1)

1. Definition of Person

2. Acting Under Color of Office

3. Colorable Claim to a Federal Law

Defense

IV. Application of Law to Facts

V. Policy Considerations Supporting Re-

moval

VI. Conclusion

26a

I. Introduction

Plaintiff, Joe Isaacson, is a Vietnam veteran. He

claims injuries from exposure to Agent Orange during

his service in Vietnam from 1968 to 1969. Defendants

manufactured and sold Agent Orange to the United

States for use by the military as a defoliant in Viet-

nam. This case has been remanded to determine

whether there is federal jurisdiction. See Stephenson

v. Dow Chemical Co., 346 F.3d 19 (2d Cir. 2003).

Originally filed in New Jersey state court, the

complaint alleged claims under state law only. Defen-

dants removed the case to federal court, asserting a

variety of jurisdictional grounds: 28 U.S.C. §§ 1651

(All Writs Act), 1442 (acting under federal officer),

1332 (diversity), and 1331 (federal question). The

District Court for the District of New Jersey approved

removai based on the All Writs Act, 28 U.S.C. § 1651.

The case was then transferred to this court by the

Multidistrict Panel. MDL 381. The Court of Appeals

for the Second Circuit approved removal solely on the

basis of the All Writs Act. Stephenson v. Dow Chemi-

cal Co., 273 F.3d 249 (2d Cir. 2001).

The Supreme Court remanded in light of its

holding in Syngenta Crop Protection, Inc. v. Henson,

537 U.S. 28 (2002), indicating that the All Writs Act

alone would not support removal. Dow Chemical Co.

v. Stephenson, 123 S. Ct. 2161 (2003) (per curiam). On

remand from the Supreme Court, the Second Circuit

determined that jurisdiction could not be grounded in

the All Writs Act and remanded the case to this court

27a

to determine if there is an alternate ground support-

ing federal jurisdiction. Stephenson v. Dow Chemical

Co., 346 F.383d 19 (2d Cir. 2003).

Pending is plaintiff’s motion to remand the case

to state court on the ground that there is no basis for

federal jurisdiction. Defendants contend that the case

is removable.

It would not be removable on diversity grounds

since diversity of parties is lacking. Nor would it be

removable on the ground that plaintiffs have stated a

federal cause of action since the Court of Appeals by a

split decision disagreed with this court that federal

substantive law was the predicate for Agent Orange

claims. See In re “Agent Orange” Prod. Liab. Litig.,

635 F.2d 987 (2d Cir. 1980), cert. denied, 454 U.S.

1128 (1981). The only other basis is the federal officer

removal statute. 28 U.S.C. § 1442(a)(1).

For reasons indicated below, the motion to re-

mand is denied. Federal jurisdiction is properly

asserted under the federal officer removal statute. A

prior decision of this court reached a contrary conclu-

sion in an Agent Orange case. See Ryan v. Down

Chemical Co., 781 F. Supp. 934 (E.D.N.Y. 1992). The

Ryan decision is no longer persuasive. As the Court of

Appeals for the Fifth Circuit pointed out in rejecting

Ryan’s conclusion, this court recognized its decision

on the point as “close” and “uncertain.” Winters v.

Diamond Shamrock Chemical Co., 149 F.3d 387, 392

(5th Cir. 1998). Ryan was “not legally capable of

appellate review.” Jd. Winters, a persuasive appellate

28a

decision, on facts almost identical to those in Ryan

held the federal officer removal statute applicable to

the defendants in the instant case. Jd. at 401; see also

Miller v. Dow Chemical Co., 275 F.3d 414, 417 (5th

Cir. 2001) (same).

II. Facts

The facts supporting removal of the case on the

basis of the federal officer removal statute are set

forth in extensive contractual and other documents.

See In re “Agent Orange” Products Liability Litiga-

tion, Judgment and Order of Dismissal, __ F. Supp.

2d ___ (E.D.N.Y. Feb. 9, 2004) (“Judgment in Agent

Orange III”). Judgment in Agent Orange IIT contains

a description of the relevant facts. It is deemed incor-

porated in this memorandum and order.

Ill. Law

A. General Rule

The federal officer removal! statute allows execu-

tive branch officials and persons acting under them to

remove to a federal court civil and criminal actions

brought against them in a state court for their official

acts. The relevant portion of Section 1442(a)(1) of

Title 28 of the Untied States Code reads:

(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

29a

district and division embracing the place

wherein it is pending:

(1) The United States or any agency

thereo or any officer (or any person acting

under that officer) of the United States or of

any agency thereof, sued in an official or in-

dividual capacity for any act under color of

such office. ...

The statute has its origins in Congress’s response

to the New England states’ opposition to the War of

1812. Willingham v. Morgan, 395 U.S. 402, 405

(1969). Its reach was extended through the years,

taking its current form in the enactment of the Judi-

cial Code of 1948. Mesa v. California, 489 U.S. 121,

126 (1989).

Section 1442(a)({1) is designed to prevent state

courts from interfering with the implementation of

federal law. It does so by allowing those whose activi-

ties on behalf of the federal government may be

inhibited by state court actions to remove the cases to

a presumably less biased federal forum. If one defen-

dant may remove under section 1442, then the entire

case is removed to federal court even if some defen-

dants could not have removed the case under the

statute. See, e.g., Falls Riverway Realty v. City of

Niagra Falls, 754 F.2d 49, 52 (2d Cir. 1985) (noting

that one government defendant removed the “entire

case”); 3 Moore’s Federal Practice 7 1442.2. Subject

matter jurisdiction is conferred over properly re-

moved actions. Niagra Mohawk Power Corp. v. Bank-

ers Trust Co., 791 F.3d 242, 244 (2d Cir. 1986).

30a

In general, lawsuits may be removed from state

court to federal court only if a federal district court

would have had original jurisdiction over the suit —

the “well pleaded complaint rule.” Caterpillar, Inc. v.

Williams, 482 U.S. 386, 392 (1987). The federal officer

removal statute expands the scope of federal jurisdic-

tion; an action may be properly removed if it satisfies

three elements. See, e.g., Mesa, 489 U.S. at 136 (“The

removal statute itself merely serves to overcome the

‘well-pleaded complaint’ rule which would otherwise

preclude removal even if a federal defense were

alleged.”).

First, a defendant must demonstrate that it is a

“person” within the meaning of the statute. Second,

the defendant must establish that the suit is “for any

act under color of [federal] office,” i.e., there is a

“causal connection between the charged conduct and

asserted official authority.” Willingham, 395 U.S. at

409 (citations omitted). Causation exists if the predi-

cate acts of the state suit were undertaken while a

person was acting as or under a federal officer, and

the acts were under color of the relevant federal

office. Ryan, 781 F. Supp. at 939. Third, defendants

must raise a colorable claim to a federal law defense.

Mesa, 489 U.S. at 131-38.

Defendants claim to have been persons “acting

under” federal officers within the meaning of section

1442(a)(1) when they manufactured and delivered to

the Department of Defense for use in war the herbi-

cides that plaintiff alleges injured him. The primary

question in the instant case is whether defendants’

3la

conduct allegediy giving rise to plaintiffs’ state law

claims constituted acts under a federal officer within

the meaning of section 1442(a)(1).

B. Elements of Section 1442(a)(1)

1. Definition of Person

“(U]nless the context indicates otherwise ... the

words ‘person’ and ‘whoever’ include corporations,

companies, ..., and joint stock companies, as well as

individuals... .” 1 U.S.C. § 1. The Supreme Court has

not ruled on whether corporations can be considered

persons under the federal officer removal statute. In

its most recent explication of the meaning of “person,”

the Court held that a federal agency was not a person

under the statute. Int? Primate Protection League v.

Adm’r of Tulane Educ. Fund, 500 U.S. 72 (1991).

Responding to the International Primate decision,

Congress amended the statute to allow for removal by

federal agencies. Federal Courts improvement Act of

1996, Pub. L. 104-317, 110 Stat. 3847, 3850; see also

Nebraska ex. rel Dept. of Soc. Servs. v. Bentson, 146

F.3d 676, 678 (9th Cir. 1998); Dalrymple v. Grand

River Dam Auth., 145 F.3d 1180, 1184 n.6 (10th Cir.

1998) (deeming the amendment a legislative reversal

of International Primate).

Congress’s amendment of the statute to empha-

sizes its broad scope supports the conclusion that

“person” encompasses more than mere individuals.

Protection of federal government operations in today’s

organizational climate where so much of our economy

32a

and government outsourcing depends upon corpora-

tions requires this result. Under section 1442(a)(1) a

“person” includes a corporation. See Winters v. Dia-

mond Shamrock Chemical Co., 149 F.3d 387 (5th Cir.

1998); Thompson v. Comm. Ins. Co., 1999 U.S. Dist.

LEXIS 21725 (S.D. Ohio 1999); Arness v. Boeing N.

Am., Inc., 997 F. Supp. 1268, 1272 (C.D. Cal. 1998);

Ruffin v. Armco Steel Corp., 959 F. Supp. 770, 773

(S.D. Tex. 1997); Good v. Armstrong World Indus., 914

F.Supp. 1125, 1127-1128 (E.D. Pa. 1996); Fung uv.

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

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

23 (E.D. Tex. 1994); Ryan, 781 F. Supp. at 946-47.

2. Acting Under Color of Federal Office

The “color of office” requirement should not be

frustrated by a “narrow” construction. Courts inter-

pret the rule broadly to achieve the protective pur-

pose of the statute. Willingham, 395 U.S. at 407. This

element requires a causal nexus between the defen-

dant’s actions under federal office and plaintiff’s

state court claims. Jd. at 409; Winters, 149 F.3d at

398. A substantial degree of direct and detailed

federal control over the defendant’s work is required.

Winters, 149 F.3d at 398; Arness, 997 F. Supp. at

1273.

Cases applying section 1442(a)(1) involving

defense contractors support the defense’s contentions

in the present litigation. In Winters, for example,

plaintiffs sued Agent Orange manufacturers under

33a

almost identical facts. See Judgment in Agent Orange

III. Defendants sought removal. The court deter-

mined that it was sufficient that the government

specified “the composition of Agent Orange so as to

supply the causal nexus between the federal officer’s

directions and the plaintiff’s claims.” Winters, 149

F.3d at 398. Central to the court’s holding was a

finding identical to that in the instant case — “that

the government maintained strict control over the

development and subsequent production of Agent

Orange.” Id. at 399.

The Fifth Circuit approved removal based on the

federal officer statute in a subsequent Agent Orange

case. Miller v. Dow Chemical Co., 275 F.3d 414, 417

(5th Cir. 2001). By contrast — unlike the case at bar —

federal control was almost nonexistent in Arness uv,

Boeing North American. The plaintiffs had sued

Boeing based on Boeing’s disposal of a toxic substance

used to “flush rocket engine hardware.” 997 F. Supp.

at 1273. Government specifications required Boeing

to clean the engines with a toxic substance, but did

not specify how Boeing was to dispose of the cleanser.

The court found that a federal officer did not direct or

control Boeing’s disposal of the toxin, and, thus, there

was no connection between the plaintiff’s claims and

Boeing’s actions at the direction of a federal officer.

Id. at 1275.

Akin v. Big Three Indus., Inc., illustrates a prop-

erly removable case. 851 F.Supp. 819 (E.D. Tex.

1994), removal aff’d by Akin v. Ashland Chemical

Co., 156 F.3d 1030 (10th Cir. 1998). A corporate

34a

manufacturer of jet engines was involved in a toxic

tort case arising out of chemical exposure at an Air

Force base. The defendants produced the jet engines

in accordance with government specification. Repair-

ing the engines involved a grinding process, which

necessarily gave rise to the emission of objectionable

chemicals. The court held that the “acting under”

requirement is satisfies when “a government contrac-

tor builds a product pursuant to Air Force specifica-

tions and is later sued because compliance with those

specifications allegedly causes person injuries. Id. at

823-24. Likewise, in Crocker v. Borden, the claim was

based on exposure to asbestos while the plaintiffs

were shipyard employees. 852 F. Supp. 1322 (E.D. La.

1994). Defendants utilized asbestos as insulation in

marine turbines. The marine turbines were manufac-

tured pursuant to government specifications for the

Navy. The court held that this government control

established the necessary “causal nexus.” /d. at 1327.

See also, e.g., Reed v. Fina Oil & Chemical Co., 995

F. Supp. 705 (E.D. Tex. 1998) (government dictated

processes through which the victim initially came

into contact with chemicals allegedly causing disease;

government controlled specifications of chemicals);

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

1993) (government had extensive control over manu-

facture of turbines, even specifying type of asbestos

cloth).

The “causal nexus” is also satisfied when there is

evidence of intimate government involvement in the

design decisions causally related to the alleged tort.

35a

As stated in Arness, defendants must show that the

government directed the actions on which the plain-

tiffs based their claims. 997 F.Supp. at 1275. By

contrast, in Good v. Armstrong World Industries, Inc.,

plaintiffs sued for injuries related to asbestos expo-

sure. 914 F. Supp. 1125 (E.D. Pa. 1996). The court

found that the Navy was involved in the design and

manufacture of the turbines, but that it did not

specify the use of asbestos. Acting under the general

direction of the Navy “is not the same as acting under

the direct and detailed control of a federal officer.” Id.

at 1129. But cf. Crocker v. Borden, 852 F. Supp. 1322

(1994) (opposite holding under similar facts). Simi-

larly, in Anderson v. Avondale Indus., Inc., defen-

dant’s attempt at removal was defeated by an

inability to prove “intimate government oversight or

involvement in the design or production of [a lagging

adhesive].” 1994 U.S. Dis. LEXIS 17598, *10 (E.D.

La. 1994).

3. Colorable Claim to a Federal Law Defense

Removal “must be predicated on the allegation of

a colorable federal defense.” Mesa, 489 U.S. at 129. In

deciding whether a defendant has such a defense,

courts reject a “narrow, grudging interpretation;” they

do not require that the defense is likely to be success-

ful on the merits. Jefferson County v. Acker, 527 U.S.

423, 431 (1999) (citation omitted).

36a

Support of removal may be predicated on the

federal government contractor defense. See, e.g. Judg-

ment in Agent Orange III; Winters, 149 F.3d at 401;

Miller, 275 F.3d at 418; Guillory v. Ree’s Contract

Serv., Inc., 872 F. Supp. 344, 346 (S.D. Miss. 1994)

(denying remova] on other grounds); Crocker, 852

F. Supp. at 1327; Akin, 851 F. Supp. at 823; AC & S,

Inc., 838 F. Supp. at 1103; Fung v. Abex Corp., 816

F. Supp. 569, 573 (N.D. Cal. 1992). But see Freiberg v.

Swinerton & Walberg Prop. Servs., 245 F. Supp. 2d

1144, 1151 n.5 (D. Colo. 2002) (questioning “whether

the government contractor ‘defense’ asserted by

Swinerton here is the type of federal interest or

immunity for which § 1442(a)(1) was intended to

provide an exclusively federal forum”).

IV. Application of Law to Facts

Defendants corporations are persons’ under

Section 1442(a)(1).

The government designed, controlled, and super-

vised the production of Agent Orange as a product

vital to the prosecution of the war in Vietnam. See

Judgment in Agent Orange III. Formal military speci-

fications and requirements for Agent Orange were

prepared and promulgated by the government. After

the testing of many different herbicides, the military

concluded that a mixture of the butyl esters of 2,4-D

and 2,4,5-T was most effective for military defoliation

purposes. Federal officers determined through govern-

ment specifications that the “formulation” for Agent

37a

Orange would be a 50/50 mix of the n-butyl] esters of

2,4-D and 2,4,5-T. The government determined that

“extremely high dose rates” of these undiluted herbi-

cides were required for effective military use.

Commencing in 1961, defendants produced and

delivered Agent Orange to the United States pursu-

ant to numerous contracts entered into with the

Defense General Supply Center, the Defense Fuel

Supply Center, the United States Army or the United

States Air Force. The contracts set forth or incorpo-

rated by reference detailed specifications for the

herbicide. Those specifications were promulgated by

the government. A government directive issued

pursuant to Section 101 of the Defense Production

Act of 1950 commandeered the United States indus-

try’s entire capacity to manufacture 2,4,5-T, ordering

defendants to accelerate the delivery of Agent Or-

ange. See, e.g., Hercules, Inc. v. United States, 516

U.S. 417, 419 (1996) (“The military prescribed the

formula and detailed specifications for manufacture.”)

The government also strictly and precisely defined

the markings that were to be placed on drums of

Agent Orange supplied by defendants, prohibiting the

placement of warnings.

The government was aware of the dioxin in Agent

Orange. It knew more about its dangers than defen-

dants. The herbicidal properties of 2,4-D and 2,4,5-T

were explored in research conducted by the United

States military during World War II. In the 1950s,

scientists at the Army Chemical Corps Warfare

Laboratories located at Edgewood Arsenal, Maryland

38a

learned of dioxin as a toxic by-product in the manu-

facture of 2,4,5-T. The President's Science Advisory

Committee (“PSAC”), an organization within the

White House, was briefed by the military on the

Vietnam defoliation program in 1963 and recognized

dioxin as an element in Agent Orange.

As the Court of Appeals for the Fifth Circuit

concluded in Winters and Miller, the Agent Orange

supplied to the government was not a ready-to-order,

preexisting or off-the-shelf chemical mixture. The

court noted in Winters:

Although the defendants had produced 2,4-D

and 2,4,5-T for commercial use before gov

ernment involvement, their commercial for-

mulations were never composed of a mixture

of 100% pure 2,4-D/2,4,5-T, which the gov-

ernment required for the most part (98% for

2,4-D and 99% for 2,4,5-T) in its contracts

with the defendants. Instead, the defendants

had always included a substantial percent-

age of inert ingredients to dilute the two ac-

tive ingredients and _ required further

dilution before commercial application. In

contrast, the government's specifications for

Agent Orange included use of the two active

chemicals in unprecedented quantities for

the specific purpose of stripping certain ar-

eas of Vietnam of their vegetation. To quickly

achieve this goal, the government dictated

that Agent Orange contain only the active

39a

ingredients 2,4-D and 2,4,5-T and it applied

the product in Vietnam without dilution.

Winters. 149 F.3d at 399: see also Miller, 275 F.3d at

419

This case is distinguishable from Arness v. Boe

ing North American. As already noted, in Arness,

defendants were sued based on the effect of their

method of disposal of a toxic by-product. 997 F. Supp.

At 1273. The government had not specified the man-

ner in which the toxic by-product would be disposed

of. Here, the government ordered specifications that

differed from defendants’ commercial applications. In

addition, the method of warning and application was

completely in the government’s hands.

The government’s full knowledge of the dioxin

“problem” inherent in the production of Agent Orange

is evidence that the federal officials maintained

control over the acts on which the litigation is based

See Miller, 275 F.3d 418; Winters, 149 F.3d at 400. See

also, e.g., Akin v. Big Three Indus., Inc., 851 F. Supp.

918 (E.D. Tex. 1994): Pack v. AC and S, Inc., 838

F. Supp. 1099 (D. Md. 1993); Fung v. Abex Corp., 816

F. Supp. 569 (N.D. Cal. 1992); Judgment in Agent

Orange Il,

The final element of removal under Section

1442(a)(1) is whether defendants have established a

“colorable federal [law] defense.” Mesa v. Califronia,

489 U.S. 121, 129 (1989). Although the Supreme

Court has stated that “one of the most important

reasons for removal is to have the validity of the

40a

defense of official immunity tried in a federal court,”

Willingham, 395 U.S. at 407, the Court did not limit

the scope of federal law defenses in removal cases to

immunities. The government contractor defense is a

colorable federal law defense in much the same way

self-defense is a colorable state law defense to civil

assault charges. In an assault case, the defendant

may claim: “He made me do it;” here a defendant may

properly assert, ““The Government made me do it.’”

In re Joint Eastern and Southern Dist. New York

Asbestos Litigation (Grispo v. Eagle-Picher Indsus

tries, Inc.), 897 F.2d 626, 632 (2d Cir. 1990).

An element of the government contractor defense

is that the contractor must inform the government of

any dangerous consequences known to it but not to

the government. This requirement is satisfied in the

present case. See Judgment Agent Orange III; see

also, e.g., Winters, 149 F.3d at 401.

The defendants have satisfied all elements for

removal to federal court based on section 1442(a)(1) of

Title 28 of the United States Code. As “persons”

acting under a federal officer, in the Agent Orange

litigation, defendants were proxies for the govern-

ment

V Policy Considerations Supporting Removal

The military contractor defense is based upon

substantive policy considerations as well as prag-

matic procedural factors in controlling litigation. The

government contractor defense provides substantive

4la

protection for the armed forces and its suppliers.

See Boyle v. Untied Technologies Corp., 487 U.S. 500,

512 (1988). Section 1442(a)(1) provides procedural

protection. Failure to apply the federal officer re-

moval statute would allow into the back door of state

litigation what the government contractor defense

barred at the front door.

If cases such as those in the present wave of

Agent Orange claims were scattered throughout state

courts manufacturers would have to seriously con-

sider whether they would serve as procurement

agents to the federal government. Since the advent of

Agent Orange litigation in 1979, mass tort law has

become more hazardous for defendants. While on

balance state tort law does more good than harm, its

vagaries and hazards would provide a significant

deterrent to necessary military procurement.

Because government contractor cases are

freighted with factual findings, Boyle, while laying

down a substantive rule, may be readily circum-

vented by state courts unsympathetic to the defen-

dants. Central to “Congress’ concern [was] local

hostility to federal authority.” Mesa, 489 U.S. at 140

(BRENNAN, J., concurring). “Congress has decided

that federal officers, and indeed, the Federai Gov-

ernment itself, require the protection of a federal

forum. This policy should not be frustrated by a

narrow, grudging interpretation of § 1442(a)(1).”

Willingham, 395 U.S. at 407. While there are theo-

retical protections in the Supreme Court’s power to

directly review a state court’s decision prejudicial to

42a

the federal government and its contractors, very few

cases can be reviewed by this route. Cf. Kermit Roo-

sevelt III, Light from Dead Stars: The Procedural

Adequate and Independent State Ground Reconsid-

ered, 103 Colum. L. Rev. 1888, 1918 (2003) (noting

that in habeas corpus cases that “the task of error-

correction, once the province of the Supreme Court on

direct review, has been farmed out to the district

courts.”).

VI. Conclusion

Plaintiffs’ motion to remand is denied. No costs or

disbursements.

SO ORDERED.

/s/ Jack B. Weinstein

Jack B. Weinstein

Dated February 9, 2004

Brooklyn, New York

43a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

DANIEL PATRICK MOYNIHAN

UNITED STATES COURTHOUSE

500 PEARL STREET

NEW YORK 10007

[CATHERINE O’HAGAN WOLFE,

CLERK Letterhead]

At a stated term of the United States Court of

Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500

Pear] Street, in the City of New York, on the 7th day

of May two thousand eight.

Nos. 05-1820-cv, 05-1509-cv, 05-1693-cv, 05-1694-cv,

05-1695-cv, 05-1698-cev, 05-2450-cv.

Appellants having filed a petition for panel

rehearing, or, in the alternative, for rehearing en

banc, and the panel that determined the appeal

having considered the request for panel rehearing,

and the active members of the Court having consid-

ered the request for rehearing en banc,

44a

IT IS HEREBY ORDERED that the petition is

denied.

For the Court:

Catherine O'Hagan Wolfe, Clerk

By:

Frank Perez, Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.