# Opposition Brief — Isaacson v. Dow Chemical Co. (No. 08-460)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2009

## Text

[Supreme Coun 0S TT

FILED

Na ©) | | JAN 2 § 2009 |

} OFFICE O
No. 08-460 EOF THE CLERK |

Jn the Supreme Court of the United States

JOE ISAACSON, ET AL.,
Petitioners,
Vv.

Dow CHEMICAL COMPANY, ET AL.,
Respondents.

On Petition for a Writ of Certiorari to
The United States Court Of Appeals for the
Second Circuit

BRIEF IN OPPOSITION

CHARLES A. ROTHFELD ANDREW L. FREY

Mayer Brown LLP Counsel of Record
1909 K Street, NW LAUREN R. GOLDMAN
Washington, D.C. 20006 CHRISTOPHER J. HOUPT
(202) 263-3000 Mayer Brown LLP

1675 Broadway
New York, NY 10019
(212) 506-2500

Counsel for Respondent
The Dow Chemical Company

ADDITIONAL COUNSEL LISTED ON INSIDE COVERS
RRR ETE ET TT SSE LA STACI ACT I CR AE ae A

JAMES V. AIOSA

RICHARD S. FELDMAN
Rivkin Radler LLP
926 RexCorp Plaza
Uniondale, NY 11556
(516) 357-3000

JAMES L. STENGEL
LAURIE STRAUCH WEISS
Orrick, Herrington &

Sutcliffe LLP
666 Fifth Avenue
New York, NY 10103
(212) 506-3775

Counsel for Respondent
The Dow Chemical Company

LAWRENCE D’ALOISE, JR.
Clark, Gagliardi &
Miller
The Inns of Court
99 Court Street
White Plains, NY 10601
(914) 946-8900

Counsel for Respondents
T.H. Agriculture & Nutri-
tion Co., Inc., Thompson-
Hayward Chemical Co.,
and Harcros Chemicals,
Inc.

WILLIAM A. KROHLEY
WILLIAM C. HECK
Kelley Drye & Warren
LLP
101 Park Avenue
New York, NY 10178
(212) 808-7800

Counsel for Respondent
Hercules Incorporated

MICHAEL M. GORDON
McKee Nelson LLP
One Battery Park Plaza
34th Floor
New York, NY 10004
(917) 777-4567

Counsel for Respondents
Occidental Chemical Cor-
poration, as successor by
merger to Diamond
Shamrock Chemicals
Company; Maxus Energy
Corporation; Tierra Solu-
tions, Inc., formerly
known as Chemical Land
Holdings, Inc.; and Valero
Energy Corporation, as
successor by merger to UI-
tramar Diamond Sham.
rock Corporation

JOHN C. SABETTA SETH P. WAXMAN

ANDREW T. HAHN, SR. PAUL R.Q. WOLFSON
Seyfarth Shaw LLP MAkY K. GARDNER
620 Eighth Avenue Wilmer Cutler Pickering
New York, NY 10018- Hale and Dorr LLP
1405 1875 Pennsylvania Ave.
(212) 218-5509 NW

Washington, D.C. 20006
(202) 663-6000

RICHARD P. BRESS JAMES E. TYRRELL, JR.
Latham & Watkins Patton Boggs LLP
555 Eleventh Street, NW, The Legal Center
Suite 1000 One Riverfront Plaza —
Washington, D.C. 20004 6th Floor
(202) 637-2137 Newark, NJ 07102

(973) 848-5620

Counsel for Respondent Monsanto Company

MYRON KALISH
50 East 79th Street
New York, NY 10021

Counsel for Respondents
Uniroyal, Inc., Uniroyal
Chemical Co., and CDU
Holdings, Inc.

i
COUNTER-STATEMENT OF THE
QUESTION PRESENTED

Whether federal contractors who manufactured a
product that was designed by the federal government
for use in military operations, and who were com-
pelled to supply that product to the United States
under the since-lapsed Defense Production Act of
1950, 64 Stat. 798 (codified at 50 U.S.C. App. § 2061
et seq.), were entitled to invoke the federal officer
removal statute, 28 U.S.C. § 1442(a)(1), to remove
from state to federal court suits asserting state-law
claims arising from the production process.

il
RULE 29.6 STATEMENT

Respondent Monsanto Company has no parent
company, and no publicly-held company owns 10
percent or more of its stock.

Respondent The Dow Chemical Company has no
parent company, and no publicly-held company owns
10 percent or more of its stock.

Respondent Occidental Chemical Corporation,
the successor by merger to Diamond Shamrock
Chemicals Company (which was known prior to Sep-
tember 1, 1983 as Diamond Shamrock Corporation),
is an indirect, wholly-owned subsidiary of Occidental
Petroleum Corporation, a publicly-held company.

Respondent Valero Energy Corporation, the suc-
cessor by merger to Ultramar Diamond Shamrock
Corporation, has no parent company, and no pub-
licly-held company owns 10 percent or more of its
stock.

Respondent Maxus Energy Corporation is an in-
direct, wholly-owned subsidiary of YPF S.A. Ap-
proximately 85 percent of YPF S.A.’s stock is owned
by Repsol YPF S.A., a publicly-held company.

Respondent Tierra Solutions, Inc., formerly
known as Chemical Land Holdings, Inc., is an indi-
rect, wholly-owned subsidiary of YPF S.A. Approxi-
mately 85 percent of YPF S.A.’s stock is owned by
Repsol YPF S.A., a publicly-held company.

Respondent Hercules Incorporated is wholly
owned by Ashland Inc., a publicly-held company.

Respondent Uniroyal, Inc. is a dissolved corpora-
tion.

Respondent C.D.U. Holdings, Inc. is a dissolved
corporation.

ill
Respondent Uniroyal Chemical Corp. is wholly

owned by the Crompton Corporation, a publicly-held
company.

Respondent T H Agriculture & Nutrition Com-
pany, Inc. (now known as T H Agriculture & Nutri-
tion L.L.C.) is a wholly-owned subsidiary of Philips
Electronics North America Corporation. Philips
Electronics North America Corporation is an indirect
wholly-owned subsidiary of Koninklijke Philips Elec-
tronics N.V., a publicly-held company.

Respondent Thompson-Hayward Chemical Co. is
a subsidiary of Harcros Chemicals Inc.

1V

TABLE OF CONTENTS

Page
COUNTER-STATEMENT OF THE
PEF Wes REGION BE BGEUIIIEN BUDD ooo. ccceseverscncosssssvscescscsessseses i
RULE 20:6 STATEMENT. ......00cccccccsesossecsscscceescessseees il
MMII AAT FREE LI ives sncssecnsunscessssesécesssesseess Vv
I aoa cctasebaviceciianenusunieokaveuene 1
THE PETITION SHOULD BE DENIED.................. 9

A. The Decision Below Does Not Conflict
With The Approach Taken By Other
Courts To Removal By Government
I irae saat Un Li esial cones sedeuuniuueosrnievavi 10

B. The Courts Below Correctly Held
Removal Proper In The Circumstances

OS gE CPL TS a OI RM aR aS ee 14
ee ERT Ce eR ea ee ee eR 23

Vv

TABLE OF AUTHORITIES

CASES

Am. Mfrs. Mut. Ins. Co. v. Sullivan,
526 U.S. 40 (1999)

)

Arness v. Boeing N. Am., Inc.,
997 I. Supp. 1268 (C.D. Cal. 1998)

Boyle v. United Techs. Corp.,
487 U.S. 500 (1988)

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

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

Good v. Armstrong World Indus., Inc.,
914 F. Supp. 1125 (E.D. Pa. 1996)

Green v. A.W. Chesterton Co.,
366 F.Supp. 2d 149 (D. Me. 2005)

In re “Agent Orange” Prod. Liab. Litig.,
304 F. Supp. 21 404 (E.D.N.Y. 2004),
aff'd, 517 F.3d 76 (2d Cir. 2008),
petition for cert. filed, 77 U.S.L.W. 3242
(U.S. Oct. 6, 2008) (No. 08-461)

In re “Agent Orange” Prod. Liab. Litig.,
818 F.2d 187 (2d Cir. 1987)

Ivy v. Diamond Shamrock Chems. Co.,
996 F.2d 1425 (2d Cir. 1993)

vl

TABLE OF AUTHORITIES—continued

Page(s)

CASES (cont’d)
Jefferson County v. Acker,

BT Wi, BS Ua Fn dcvencvisctavensvcsrssvcsiences 6,9, 14, 17
Kelly v. Martin & Bayley, Inc.,

603 Fad SBE C70 Cir. ZO0T)........00ccrcccccccaccessessees 19
Mesa v. California,

489 U.S. 121 (1989) .o.cccccccccceccececcscceeseeeeees 14, 16-17
Miller v. Diamond Shamrock Co.,

210 PF .Oer O14 CO Civ. 2001)... coves ccccceccceeecsecses 9
Rendell-Baker v. Kohn,

Ge ee et I ov sva vce sntsencacansdsseeeconerenaane 18-19
Ryan v. Dow Chem. Co.,

Tel F. Supe. BG4 4B... 1OG2) an. ccccccsccresscveess 14
Stephenson v. Dow Chem. Co.,

346 F.3d 19 (2d Cir. 2003) (per curiam)............... 6
Stephenson v. Dow Chem. Co.,

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

petition for cert. filed, 77 U.S.L.W. 3242

(U.S. Oct. 6, 2008) (No. 08-461)............ 4, 2 20 16
Syngenta Crop Protection, Inc. v. Henson,

GST ESB. FO Oe on ccescicensssvecsee Stee etpseieacesiiteaw ia 5

Watson v. Philip Morris Cos.,
651 0S. 14%, 127 BS. Ct: ZaG1 (007)........... passim

Vil

TABLE OF AUTHORITIES—continued

Page(s)

CASES (cont’d)
Willingham v. Morgan,

B95 U.S. 402 (19GQ)......cserscssosrsssessesseereereers passim
Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387 (5th Cir. 1998)............. 3, 8, 9, 13, 14
STATUTES
BE U.S.C. © Le seis ehirseskeccstneserevecvccess passim
BERR OM Be 8 19
4S UB... BF rites tdek kn cessecenescccceses 18
SO UF Al, Fe radar savncscscecexsssecccessees 4
HO WS, Fa ee eet esdsevscsscecerccccccceesee 4
Defense Production Act of 1950,

64 Stat. 798 (codified at 50 U.S.C. App.

Se ee Oe a airaeiiec cs asccveescascccccces 3
OTHER AUTHORITIES
EUGENE GRESSMAN ET AL., SUPREME COURT

PRACTICE Go rari ekicerncisesccecssccccccceees. 12

RICHARD H. FALLON, JR., ET AL., HART &
WESCHLER’S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM (60M @G. ZOO0B)..............0...ccs.cc00e. 9

18 OXFORD ENGLISH DICTIONARY (2d ed. 1989)....... 15

BRIEF IN OPPOSITION

STATEMENT

These cases arise out of pctitioners’ state-law
claims that they were injured by exposure to the
chemical 2,3,7,8-tetrachlorodibenzo para dioxin (“di-
oxin”), trace amounts of which were present in vari-
ous herbicides — collectively referred to here as
“Agent Orange” — that respondents produced for use
by the U.S. military during the Vietnam War. In
Stephenson v. Dow Chemical Co., 517 F.3d 76 (2d
Cir. 2008), petition for cert. filed, 77 U.S.L.W. 3242
(U.S. Oct. 6, 2008) (No. 08-461), the Second Circuit
rejected those claims on the merits, holding them
barred by the federal government contractor defense.
The question posed by the petition here is whether
the Second Circuit was correct in also holding that
removal of these cases from state to federal court
was proper under 28 U.S.C. §1442(a)\1), which per-
mits removal by federal officers and those acting un-
der them.

That question does not merit this Court’s consid-
eration. The decisions of the courts below favoring
removal, which rested on the close control the gov-
ernment exercised over the production of Agent Or-
ange, plainly are correct. Petitioners do not even as-
sert a conflict in the courts of appeals on the question
presented, and they are incorrect in contending that
the district courts are confused on the standards
governing removal under Section 1442(a)(1). More-
over, the lower courts have not yet had an opportu-
nity to consider the impact of this Court’s recent de-
cision in Watson v. Philip Morris Cos., 551 U.S. 142,
127 S. Ct. 2301 (2007), which is the first time the
Court has addressed application of Section 1442(a)(1)

2

to a private entity; that makes review of the question
presented here premature. And even if the Court
were otherwise inclined to consider the issue, unique
features of this case — among them, that the govern-
ment invoked the since-lapsed Defense Production
Act of 1950 (the “DPA”), 64 Stat. 798 (codified at 50
U.S.C. App. §§ 2061 et seq.), to compel respondents to
produce Agent Orange — make it an especially ill-
suited vehicle with which to resolve any question of
general importance regarding the scope of federal-
officer removal. Further review accordingly is not
warranted.

1. The background regarding the development of
Agent Orange and the procedural history of early
Agent Orange litigation are set out in the brief in op-
position to the petition for certiorari in No. 08-461,
Stephenson v. Dow Chemical Co.' In brief, and inso-
far as is relevant here, the U.S. military used Agent
Orange as a herbicide during the war in Vietnam to
prevent enemy forces from concealing themselves
and ambushing American, South Vietnamese, and
other allied soldiers. The strategy is credited with
saving the lives of thousands of allied troops. See In
re “Agent Orange” Prod. Liab. Litig., 818 F.2d 187,
192-93 (2d Cir. 1987) (Agent Orange’s “success as a
herbicide saved many, perhaps thousands of, lives”).

1 Petitioners’ statement of facts is misleading in significant re-
spects. To offer one example, petitioners label it “uncontested”
that “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.” Pet. 6. In fact, as
the district court noted, “[t]he government was aware of the di-
oxin in Agent Orange.” Pet. App. 37a. See id. at 17a (“Accord-
ing to [respondents] theory of the case, the Government knew
that Agent Orange contained dioxin{[.}”).

3

The herbicidal properties of the components of Agent
Orange, 2,4-dichlorophenoxyacetic acid (“2,4-D”) and
2,4,5-trichlorophenoxyacetic acid (“2,4,5-T”’), had
been discovered by the U.S. military during the Sec-
ond World War, and it was the military that “devel-
oped these compounds as weapons of war.” In re
“Agent Orange” Prod. Liab. Litig., 304 F. Supp. 2d
404, 426 (E.D.N.Y. 2004), affd, 517 F.3d 76 (2d Cir.
2008), petition for cert. filed, 77 U.S.L.W. 3242 (U.S.
Oct. 6, 2008) (No. 08-461).

As the defoliation program got underway, “|t}]he
government designed, controlled, and supervised the
production of Agent Orange as a product vital to the
prosecution of the war in Vietnam.” Pet. App. 36a.
Although respondents “had produced 2,4-D and 2-
4,5-T for commercial use before government in-
volvement, their commercial formulations were
never composed of a mixture of 100% pure 2,4-
D/2,4,5-T, which the government required for the
most part.” Jd. at 38a (quoting Winters v. Diamond
Shamrock Chem. Co., 149 F.3d 387, 399 (Sth Cir.
1998)). Thus, “the Agent Orange supplied to the
government was not a ready-to-order, preexisting or
off-the-shelf chemical mixture.” Jbid. Instead, as
Judge Jack Weinstein, the district judge below, ex-
plained, “[flederal officers determined through gov-
ernment specifications that the ‘formulation’ for
Agent Orange would be a 50/50 mix of the n-butyl es-
ters of 2,4-D and 2,4,5-T.” Jd. at 36a-37a. As a con-
sequence, respondents’ contracts with the govern-
ment “set forth or incorporated by reference detailed
specifications for the herbicide.” Jd. at 37a.

Eventually, as the defoliation program acceler-
ated, the government compelled respondents to pro-
duce Agent Orange under the DPA. See Pet. App.

4

37a. That statute, which by its terms expired on
September 30, 1990 (see 50 U.S.C. App. § 2166(a)),
granted the President the authority to “to require ac-
ceptance and performance” of “contracts or orders”
deemed “necessary or appropriate to promote the na-
tional defense.” 50 U.S.C. App. § 2071(a). Regula-
tions promulgated under the DPA by the Business
and Defense Services Administration required that
every government order bearing a “rating” be “ac-
cepted and filled regardless of existing contracts and
orders,” on pain of criminal penalties. BDSA Reg. 2,
§§ 10, 27, A907, A910.2 Virtually all of respondents’
contracts with the government were rated. A912,
A917-18, A935-36. Ultimately, the government ap-
plied the DPA to effectively “commandeer[] the
United States industry’s entire capacity to manufac-
ture 2,4,5-T [and] ordered [respondents] to accelerate
the delivery of Agent Orange” (Pet. App. 37a), in
1967 directing each manufacturer to use its entire
plant capacity for production of Agent Orange. See,
e.g., A935-36, A965, A967, A1325-26, A1485.

2. Some years after the Vietnam War ended,
veterans and members of their families brought a
class action against respondents, claiming that they
had been injured by exposure to dioxin, an unwanted
byproduct of the Agent Orange production process,
present 1n minute quantities measurable in parts per
million (the average dioxin content was 1.58 parts
per million by weight). See In re “Agent Orange”
Prod. Liab. Litig., 304 F. Supp. 2d at 424; see also In
re “Agent Orange” Prod. Liab. Litig., 818 F.2d 187
(litigation by class action opt-outs); Juy v. Diamond

2“A _” refers to the defendants-appellees’ appendix in the Sec-
ond Circuit.

a

9)

Shamrock Chems. Co., 996 F.2d 1425 (2d Cir. 1993)
(litigation by class members who manifested injury
after class action settlement but were nevertheless
held subject to the bar of the settlement). More re-
cently, a different group of plaintiffs brought addi-
tional actions against respondents, arguing that they
were not bound by the class action scttlement be-
cause they did not manifest injury until after the
class settlement funds were exhausted in 1994. See
Pet. App. 7a. This new group of plaintiffs included
petitioners here, who initially brought their suits in
various state courts. Defendants removed the suits
to federal court and, along with actions initiated in
federal court, the cases were consolidated in the
Eastern District of New York pursuant to order of
the Judicial Panel on Multi-District Litigation. Ibid.
The district court held that the 1984 settlement
barred these new plaintiffs’ actions.

On appeal, the Second Circuit held that the fed-
eral courts had jurisdiction over petitioners’ actions
under the All Writs Act but reversed the district
court’s ruling that the post-1994 plaintiffs were
bound by the class settlement, finding instead that
they had not been adequately represented in the pro-
ceedings leading to the settlement. This Court af-
firmed the latter ruling by an equally divided Court,
but it reversed the holding predicating federal juris-
diction on the All Writs Act, in light of its decision in
Syngenta Crop Protection, Inc. v. Henson, 537 U.S.
28 (2002). It accordingly remanded the removed
cases for reconsideration of the propriety of removal.
See Dow Chem. Co. v. Stephenson, 539 U.S. 111
(2003) (per curiam); Pet. App. 8a. The Second Cir-
cuit then returned the cases to the district court for
(1) a determination whether an alternative basis ex-
isted for removal jurisdiction and (2) resolution of the

6

merits of those claims that were properly in federal
court. Stephenson v. Dow Chem. Co., 346 F.3d 19, 21
(2d Cir. 2003) (per curiam).

On remand, Judge Weinstein held that the cases
were properly removed undcr Section 1442(a)(1),
which in relevant part provides for the removal of a
suit against “(t]he United States or any agency
thereof or any officer (or any person acting under
that officer) of the United States or any agency
thereof, sued in an official or individual capacity for
any act under color of such office.” Pet. App. 23a-
42a. Judge Weinstein opined that removal is per-
missible under that provision if three elements are
satisfied. First, “a defendant must demonstrate that
it is a ‘person’ within the meaning of the statute.”
Id. at 30a. Second, the suit must be for an “act un-
der color of federal office,” which calls for “a causal
nexus between the defendant’s actions under federal
office and the plaintiffs state court claims” and re-
quires “[a] substantial degree of direct and detailed
federal control over the defendant’s work.” Id. at
30a, 32a. Third, “defendants must raise a colorable
claim to a federal law defense,” which “may be predi-

cated on the federal government contractor defense.”
Id. at 30a, 36a.

Noting that this Court has rejected “a ‘narrow,
grudging interpretation” of Section 1442(a)(1) (Pct.
App. 35a (quoting Jefferson County v. Acker, 527 U.S.
423, 431 (1999))), Judge Weinstein found these re-
quirements satisfied here. He held that “corpora-
tions are persons under Section 1442(a)(1).” Jd. at
36a. He also determined that respondents “act[ed]
under” a federal officer because “the government or-
dered specifications that differed from defendants’
commercial applications,” and “[t]he government’s

7

full knowledge of the dioxin ‘problem’ inherent in the
production of Agent Orange is evidence that the fed-
eral officials maintained control over the acts on
which the litigation is based.” Jd. at 39a-40a. And
Judge Weinstein reasoned that “[t]he government
contractor defense is a colorable federal law defense
in much the same way that self-defense is a colorable
state-law defense to civil assault charges. In an as-
sault case, the defendant may claim: ‘He made me do
it; here a defendant may properly assert, ‘the Gov-
ernment made me do it.” dd. at 40a. Judge
Weinstein added that this conclusion is strongly
supported by the policy underlying federal officer
removal because the government contractor defense,
“while laying down a substantive rule, may be read-
ily circumvented by state courts unsympathetic to
the defendants.” Id. at 41a.

3. The Second Circuit affirmed, relying in sub-
stantial part on this Court’s decision in Watson. Pet.
App. la-22a. The court of appeals agreed with Judge
Weinstein that “removal in these cases fulfills the
federal officer removal statute’s purpose of protecting
persons who, through contractual relationships with
the Government, perform jobs that the Government
otherwise would have performed.” /d. at 6a.

Like the district court, the court of appeals found
that corporations are “persons” within the meaning
of Section 1442(a)(1). Pet. App. 12a. It also con-
cluded that respondents “acted under” federal offi-
cers, pointing out that “[t]he words ‘acting under’ are
to be interpreted broadly, and the statute as a whole
must be liberally construed.” /d. at 14a (citing Wat-
son, 127 S. Ct. at 2304-05, and Willingham v. Mor-
gan, 395 U.S. 402, 407 (1969)). The Second Circuit
noted that, in Watson, this Court cited with evident

8

approval the Fifth Circuit’s holding in Winters, 149
F.3d 387, that manufacturers of Agent Orange satis-
fied the “acting under” requirement because they
helped federal officers “fulfill * * * basic governmen-
tal tasks.” Pet. App. at 15a (quoting Watson, 127 S.
Ct. at 2308). So too, the Second Circuit held that, in
this case, “the chemical companies ‘assist[ed]’ and
‘help|ed] carry out|| the duties or tasks of officers of
the department of defense. See [Watson, 127 S. Ct.]
at 2307. Defendants thus had the ‘special relation-
ship’ with the Government required by the ‘acting
under’ prong.” Jd. at 16a.

Finally, the court of appeals held that respon-
dents were being sued for an “act under color of [fed-
eral] office.” The court explained that, to satisfy this
requirement, nongovernmental defendants “must
demonstrate that the acts for which they are being
sued — here, the production of dioxin in Agent Or-
ange — occurred because of what they were asked to
do by the Government.” Pet. App. 17a. “According to
[respondents’] theory of the case,” the court contin-
ued, “the Government knew that Agent Orange con-
tained dioxin, and the Government controlled the
method of formulation”; “whether the challenged act
was outside the scope of [respondents’| official duties,
or whether it was specifically directed by the federal
Government, is one for the federal — not state —
courts to answer.” Jd. at 17a-18a (citing Willingham,
395 U.S. at 409). Finding that respondents also
raised “a colorable federal defense” because the gov-
ernment contractor defense “is a creature of federal
common law and serves to protect the interests of the
Government rather than the contractor defendant”
(id. at 19a, 20a), the court of appeals accordingly
held removal proper.

9
THE PETITION SHOULD BE DENIED

The general contours of Section 1442(a)(1) are
settled. The statute has three elements: it permits
removal of suits against “[1] any person [2] acting
under [a federal] officer * * * [3] for any act under
color of such office.” Section 1442(a)(1) is phrased “in
sweeping terms” (RICHARD H. FALLON, JR., ET AL.,
HART & WESCHLER’S THE FEDERAL COURTS AND THE
FEDERAL SYSTEM 908 (5th ed. 2003)), and this Court
has repeatedly “rejected a ‘narrow, grudging inter-
pretation’ of the statute” (Jefferson County, 527 U.S.
at 431), instead “ma[king] clear that the statute
must be ‘liberally construed.” Watson, 127 S. Ct. at
2305.

The Second Circuit’s application of these stan-
dards does not warrant review. Its decision is wholly
consistent with the rulings of other courts of appeals
that — as this Court noted in Watson — have approved
the removal to federal court of suits against manu-
facturers of Agent Orange. See 127 S. Ct. at 2308
(citing Winters, 149 F.2d at 387); Miller v. Diamond
Shamrock Co., 275 F.3d 414 (5th Cir. 2001). Nor is
there significant confusion in the district courts on
removal standards under Section 1442(a)(1); no court
has held removal by a government contractor im-
proper when, as here, the contractor is able to allege
that “(t]he government designed, controlled, and su-
pervised the production” of the assertedly harmful
product. Pet. App. 36a. And the decision below
plainly was correct in holding that Section 1442(a)(1)
authorizes removal of a case, like this one, where
“the relationship between the contractor and the
Government is an unusually close one involving de-
tailed regulation, monitoring, or supervision” and the
suit centers on actions of the contractor in “help[ing]

10

[federal] officers fulfill * * * basic governmental
tasks.” Watson, 127 S. Ct. at 2308. The petition for
certiorari accordingly should be denied.

A. The Decision Below Does Not Conflict
With The Approach Taken By Other
Courts To Removal By Government
Contractors.

Petitioners assert that the Second Circuit held
removal proper “based on the mere fact that [respon-
dents are] government contractor{s]” (Pet. 1), a char-
acterization of the holding that is repeated through-
out the petition. See Pet. 10, 12, 14, 16, 22, 28. This
holding, petitioners continue, conflicts with the deci-
sions of a handful of district courts, which are said to
have rejected the proposition that “mere participa-
tion in the contract alone” justifies removal, instead
looking to whether the “removing contractor was re-
quired or directed by federal authority to perform the
specific conduct challenged in the state-law claim.”
Id. at 17, 18. But both prongs of this argument are
wrong.3

3 Petitioners assert in a footnote to the petition that the Second
Circuit’s ruling that corporations are “persons” under Section
1442(a)(1) “conflicts with several district court opinions holding
that the statute only applies to natural persons.” Pet. 20 n.7.
It is not entirely clear whether petitioners mean to challenge
this aspect of the Second Circuit’s decisions. Such a contention
would, in any event, be insubstantial. The most recent of the
two district court decisions relied upon by petitioners is more
than 15 years old; for the reasons persuasively explained by the
Second Circuit (at Pet. App. 12a-14a), the courts have more re-
cently, and uniformly, held that corporations are “persons”
within the meaning of the statute. See id. at 3la-32a (citing
cases).

11

To begin with, petitioners mischaracterize the
holding below. The Second Circuit expressly did not
hold that any act by an entity that contracts with the
United States supports removal, or that removal
may be premised on the “mere fact” that the defen-
dant entered into a contract with the government.
To the contrary, it was central to the holdings of both
courts below that Agent Orange was not an off-the-
shelf product; it was designed by, and respondents
produced it according to precise specifications pro-
vided by, the government. Pet. App. 18a, 38a. Noth-
ing in the decisions of the court of appeals or district
court supports removal of disputes arising out of the
vast run of routine contracts performed by entitics
that provide light bulbs or chicken salad sandwiches
to the government.

Moreover, both courts below also emphasized
that removal by a private entity is proper only when
the defendant advances a colorable federal contractor
defense. Pet. App. 19a-22a, 35a. That requires a
showing of substantial federal involvement in, and
the exercise of government discretion regarding, the
activities giving rise to the plaintiffs’ suit. See Boyle
v. United Techs. Corp., 487 U.S. 500, 511-12 (1988).
Here, the court of appeals found a “special relation-
ship” between respondents and the government,
pointing to “close supervision of the private entity by
the Government” and noting that, in providing “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’ — “the
chemical companies ‘assist[ed]’ and ‘help[ed] carry
out[] the duties or tasks of officers at the Depart-
ment of Defense.” Pet. App. 15a-16a (quoting Wat-
son, 127 S. Ct. at 2307) (brackets added by the
court). Petitioners therefore are simply wrong in

12

reading the Second Circuit’s decision to hold that
removal is proper “any time a defendant is sued for
violations of state law that occurred while the defen-
dant was performing under a contract with the fed-
eral government.” Pet. 1.

It thus is not surprising that — wholly apart from
the point that conflict with a district court decision
ordinarily does not justify the grant of certiorari’ —
petitioners also are wrong in contending that the
Second Circuit’s decision is inconsistent with the dis-
trict court decisions cited at Pet. 17-19. Although pe-
titioners are correct in observing that courts have re-
jected the proposition that every suit involving a
government contractor is removable, the Second Cir-
cuit, as noted, clearly did not endorse that proposi-
tion here. To be sure, some district courts have re-
quired a significant degree of government “regula-
tion, monitoring, or supervision” of the contractor to
justify removal. Watson, 127 S. Ct. at 2308. See
Green v. A.W. Chesterton Co., 366 F. Supp. 2d 149 (D.
Me. 2005); Arness v. Boeing N. Am., Inc., 997 F.
Supp. 1268 (C.D. Cal. 1998) (cited at Pet. 18). But

4 See EUGENE GRESSMAN ET AL., SUPREME COURT PRACTICE 256
(9th ed. 2008) (“The Supreme Court will not grant certiorari to
review a decision of a federal court of appeals merely because it
is in direct conflict on a point of federal law with a decision ren-
dered by a district court, whether in the same circuit or in an-
other circuit.”). While petitioners are correct in stating (Pet. 17)
that decisions to remand are not appealable, the decision that
removal is proper may be appealed — as was done in this case.
Courts of appeals therefore address removal standards with
some frequency. Indeed, this is the third decision of a court of
appeals to address the specific question whether manufacturers
of Agent Orange may remove under Section 1442(a)(1). As
noted in text, each court to decide that question has held re-
moval proper.

13

that is present in this case, where “[t]he government
designed, controlled, and supervised the production
of Agent Orange as a product vital to the prosecution
of the war in Vietnam.” Pet. App. 36a. See Pet. 15a,
17a.5 Nothing in the district court decisions relied
upon by petitioners suggests that removal is inap-
propriate in such circumstances.®

5 The record here shows extensive day-to-day direction of and
contro) over Agent Orange production by Commerce and De-
fense Department officers. For example, the government as-
signed federal officers (including an Administrative Contracting
Officer, an Industrial Specialist, a Quality Assurance Represen-
tative, a Preservation Packing Specialist, a Transportation Of-
ficer, and a Labor Relations Specialist) to oversee the execution
and fulfillment of each Agent Orange contract (A1402); the
Business and Defense Services Administration directed each
manufacturer to provide monthly reports of production, total
shipments, and end-of-month inventory of 2,4,5-T and 2,4-D
(A2571); and it repeatedly ordered contractors to accelerate
their herbicide production. A2571. Any factual quibbles peti-
tioners may have with the lower courts’ findings on these points
are plainly inappropriate grounds for certiorari.

6 In Green, for example, where the plaintiff claimed injury from
exposure to asbestos used as insulation by a federal contractor,
the district court held that “the removing defendant must dem-
onstrate that the government specified the composition of the
offending product at issue so that there is a ‘causal nexus be-
tween the federal officer’s directions and the plaintiffs claims.”
366 F. Supp. 2d at 153 (quoting Winters, 149 F.3d at 398).
Here, of course, the federal government did specify the compo-
sition of Agent Orange — and the court in Green relied for its
standard on Winters, in which the Fifth Circuit approved re-
moval by manufacturers of Agent Orange. Similarly, in Good v.
Armstrong World Industries, Inc., 914 F. Supp. 1125, 1129 (E.D.
Pa. 1996), another asbestos case cited by petitioners (at Pet.
19), the defendant failed to show that “any * * * federal officer
directly controlled and supervised [its] work.” But respondents
made such a showing here. Petitioners also are wrong in as-
serting that “[nJothing demonstrates the confusion among the

14

B. The Courts Below Correctly Held Re-
moval Proper In The Circumstances Of
This Case.

Petitioners also are incorrect in their challenge
to the merits of the holding below. The Second Cir-
cuit’s decision relied on standards articulated by this
Court in Watson, Jefferson County, Willingham, and
Mesa v. California, 489 U.S. 121 (1989). Its analysis
— and its unexceptional holding that removal to fed-
eral court may be sought by private parties who as-
sisted the United States in the conduct of a war by
providing essential war matcrials, produced accord-
ing to precise government specifications that were
designed by the U.S. military and that differed mate-
rially from the formulation and use of commercial
herbicides — is entirely consistent with this Court’s
doctrine.

1. Pointing to Watson, petitioners insist that re-
spondents did not “act under” a federal officer be-
cause — on the assumption that the government did
not specify the methods respondents were to use in
manufacturing Agent Orange — respondents’ rela-
tionship with the government did not involve “sub-
jection, guidance, or control.” Pet. 23 (quoting Wat-
son, 127 S. Ct. at 2307). But this contention assumes
its conclusion. Nothing in the statutory mandate
that the party seeking removal “act under” federal

federal courts more” than Judge Weinstein’s change of mind be-
tween Ryan v. Dow Chem. Co., 781 F. Supp. 934 (E.D.N.Y.
1992), in which he held that Section 1442(a)(1) removal was not
available to producers of Agent Orange, and this litigation, in
which he reached the opposite conclusion. Pet. 15. In fact, the
holding below eliminated any disagreement in the lower courts,
as Judge Weinstein declared himself persuaded by the Fifth
Circuit’s holding favoring removal in Winters. See Pet. App.
27a-28a.

15

supervision requires a showing that the government
dictated every detail of the means used by that party
to carry out the tasks assigned to it by the govern-
ment, and nothing in any decision of this Court sug-
gests that such a showing is necessary. There is no
question that, in this case, respondents were
“Is]ubject to the instruction, direction, or guidance
of” the United States (Watson, 127 S. Ct. at 2307
(quoting 18 OXFORD ENGLISH DICTIONARY 949 (2d ed.
1989))) within the ordinary meaning of those terms:
respondents produced Agent Orange according to the
government’s “detailed specifications” (Pep. App.
37a); “[t]he government was aware of the dioxin in
Agent Orange” (ibid.); the government actually com-
pelled respondents to produce Agent Orange under
the DPA, on pain of criminal penalties; and, as we
have noted, the government exercised substantial
day-to-day direction and control over Agent Orange
production. See note 5, supra; see also Pet. App. 16a
(“Defendants received delegated authority; they were
not simply regulated by federal law.”), id. at 36a
(“The government designed, controlled, and super-
vised the production of Agent Orange as a product
vital to the prosecution of the war in Vietnam.”), id.
at 39a (“federal officials maintained control over the
acts on which the litigation is based”).’

’ For this reason, petitioners are wrong in their improbable as-
sertion that the Second Circuit’s removal holding 1s inconsistent
with the same panel's simultaneous ruling on the merits re-
yarding application of the government contractor defense. Peti-
tioners point to the court of appeals’ observation, in its merits
ruling, that respondents “were under no federal contractual
duty to produce Agent Orange using any particular manufac-
turing process or with any particular reference to the toxicity
levels.” Pet. 24 (quoting Stephenson, 517 F.3d at 93). But as
we show in text, removal does not turn on a demonstration that

16

There should be no doubt that this relationship
satisfies the “acting under” standard articulated in
Watson. “(T]he relationship between [respondents]
and the Government [was] an unusually close one
involving detailed regulation, monitoring, or supervi-
sion.” 1278S. Ct. at 2308. “The assistance that |re-
spondents] provide[d] federal officers * * * help[ed]
officers fulfill * * * basic governmental tasks” (ibid.)
— that is, fighting a war. And respondents surely
“lawfully assist[ed]’ the federal officer[s] ‘in the per-
formance of [their] official duty.” Jd. at 2307.8 Re-
spondents accordingly “acted under” a federal officer.

2. Petitioners get no further in contending that
respondents did not act “under color” of federal au-
thority. In making this argument, petitioners rely on
Mesa for the proposition that “the fact that * * * fed-

the government mandated every particular of the defendant’s
conduct; it is enough that, as here, respondents were “([s]ubject
to the instruction, direction, or guidance of” the United States.
Watson, 127 S. Ct. at 2307.

8 Petitioners err in asserting that “the panel’s review of the sub-
stantial record below revealed that the alleged ‘regulation,
monitoring or supervision’ never existed.” Pet. 22 n.8. See also
Id. at 10 (contending that the court of appeals “expressly re-
jected the district court’s conclusion that ‘the government de-
signed, controlled and supervised the production of Agent Or-
ange”). Neither the Second Circuit’s holding on removal nor its
companion ruling on the merits even remotely suggested the
absence of significant government control over the design and
production of Agent Orange. Petitioners’ argument that the
Second Circuit’s ruling on the merits raised doubts about the
state of the record on this point is wrong; the portion of the
merits decision quoted by petitioner (id. at 22-23 n.8) ad-
dressed, not the degree of control exercised by the government,
but the extent of the government's knowledge of the possible
dangers of exposure to Agent Orange. See Stephenson, 517
F.3d at 98 n.19.

17

eral officer defendants were being prosecuted for acts
committed while on duty was insufficient to show
that they were acting under color of federal office,”
and maintain that “the Second Circuit clearly erred
in holding below that private contractors can do just
that.” Pet. 25. But this contention rests on a plain
misunderstanding both of Mesa and of the Second
Circuit’s holding.

In Mesa, the Court held removal improper be-
cause the defendants did not offer a federal defense
at all. See 489 U.S. at 129, 133-34. Here, in con-
trast, respondents advance the government contrac-
tor defense, which “clearly ‘ar[ose] out of [Defen-
dants’] duty’ pursuant to their contractual relation-
ship with the Federal Government.” Pet. App. 20a
(quoting Willingham, 395 U.S. at 407; bracketed ma-
terial added by the court). Petitioners do not deny
that the government contractor defense satisfies the
requirement of a “colorable federal defense” identi-
fied in Mesa. 489 U.S. at 129.9 And for this purpose,
it is enough that the federal defense is plausible; the
Court does “not require the [defendant] virtually to
‘win his case before he can have it removed.” Jeffer-
son County, 527 U.S. at 431 (quoting Willingham,
395 U.S. at 407).

Petitioners also are wrong on two counts when
they maintain that the Second Circuit’s analysis of

9 Petitioners do note that there is “federal court authority ques-
tioning this proposition,” pointing to a single district court deci-
sion that, in dictum, expressed uncertainty on the point. Pet.
21 n.7. But as Judge Weinstein explained below, the many
courts that have actually decided the question were unanimous
in holding that the government contractor defense is a “color-
able federal defense” for removal purposes. Pet. App. 36a; see
also id. at 2Ga-21a.

18

the “under color’ requirement is inconsistent with
decisions of this Court interpreting “identical lan-
guage in federal civil rights statutes.” Pet. 26. For
one thing, the language of Section 1442(a)(1) and
that of 42 U.S.C. § 1983, which was at stake in the
decisions cited by petitioners at Pet. 26, is not identi-
cal. Section 1983, which refers to actions taken “un-
der color of state law,” is directed at circumstances
where a private actor essentially is acting as the
State. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526
U.S. 40, 52 (1999) (emphasis added). Section
1442(a)(1), which refers to actions taken “under color
of [federal] office’ and expressly contemplates re-
moval by private persons who are not officers of the
United States, does not require the same sort of ex-
ercise of governmental] authority.

In any event, and even disregarding that distinc-
tion in the statutory text, the decisions cited by peti-
tioners are in fact consistent with the approach
taken by the Second Circuit here. In American
Manufacturers, the Court held only that a private
party does not act under color of state law within the

sees

meaning of Section 1983 when it “is subject to state
regulation”; “subtle encouragement” by the State
does not convert private activity into state action.
526 U.S. at 52-53. But here, of course, the federal
government — by specifically requesting and then, by
invoking the DPA, compelling production of Agent
Orange — offered far more than “subtle encourage-
ment” to respondents. Similarly, in Rendell-Baker v.
Kohn, 457 U.S. 830 (1982), the Court held that a pri-
vate party does not become a state actor simply be-
cause it is a government contractor when the par-
ticular actions challenged “were not compelled or
even influenced by any state regulation.” Jd. at 840-
41. See id. at 844 (White, J., concurring in the

19

judgment) (action not “based upon some rule of con-
duct or policy put forth by the State”). That holding
has no application to a situation like the one here,
where a private party is compelled to produce mate-
rials designed by the United States for use in the
prosecution of military action. These decisions offer

no reason to question the correctness of the holding
below.?°

3. Finally, even if there were some doubt about
the proper scope of Section 1442(a)(1), this case
would not be an appropriate one in which to consider
the question. Watson, the first modern decision in
which the Court has discussed application of the
statute to a government contractor, is little more
than a year old. The lower courts have not yet had
an opportunity to apply the Court’s analysis to any
significant degree, and it appears that the only deci-
sion of a court of appeals other than this one to apply
Watson did so in a factual setting (tobacco regula-
tion) identical to that considered in Watson. See
Kelly v. Martin & Bayley, Inc., 503 F.3d 584 (7th Cir.
2007) (per curiam). It therefore would be appropri-
ate for this Court to await further consideration of

the issue by the lower courts before weighing in it-
self.

10 Petitioners draw no more support from City of Greenwood v.
Peacock, 384 U.S. 808 (1966), which they cite at Pet. 27. The
Court there held that the civil rights removal statute, 28 U.S.C.
§ 1443(2), applies only to federal officers and those acting under
them, and therefore could not be invoked by private parties who
were not acting in concert with federal officers. See 384 U.S. at
810, 815, 821, 824. That holding has no bearing in this case,
where there is no doubt that respondents were acting at the be-
hest of the federal government.

20

Moreover, as we have noted, this case involves a
unique consideration that plainly bears on applica-
tion of the proper removal analysis: respondents
were compelled to supply Agent Orange to the gov-
ernment by invocation of the DPA. Because that
statute is no longer in effect, and there accordingly is
no possibility that a case with this unusual feature
will arise in the future, resolution of the dispute here
would provide little useful guidance to the lower
courts. If the Court is inclined to consider the scope
of Section 1442(a)(1), it would be appropriate to do so
in a vehicle that has more in common with the usual
run of government contractor cases.

Petitioners’ policy arguments in favor of immedi-
ate review are insupportable. Their contention that
the Second Circuit’s decision “has the potential to
overwhelm already over-burdened federal courts”
(Pet. 27-28) rests on a misstatement of the holding
below, which does not permit removal of “virtually
all” suits brought against government contractors.
Id. at 28. And petitioners’ assertion regarding the
purported inconvenience of litigating in federal court
(id. at 28-29), as well as their suggestion that an ex-
pansive removal rule is inconsistent with principles
of federalism (id. at 30-32), simply disregards the
particular goals that Congress sought to advance in
Section 1442(a)(1). The courts below did not, as peti-
tioners would have it, depart from controlling law by
improperly “voic[ing] their concerns about the capac-
ity of state courts to handle litigation.” Pet. 31-32.
Instead, this Court, in decisions dating back more
than a century, consistently has identified the con-
gressional purpose behind Section 1442(a)(1) and its
many statutory predecessors: “Congress has decided
that federal officers, and indeed the federal Govern-

21

ment itself, require the protection of a federal fo-
rum.” Willingham, 395 U.S. at 407.

As the Court put it most recently in Watson, “the
removal statute’s ‘basic’ purpose is to protect the
Federal Government from * * * interference with its
‘operations” at the hands of hostile state courts. 127
S. Ct. at 2306. “State court proceedings may reflect
‘local prejudice’ against unpopular federal laws or
federal officials,” “States hostile to the Federal Gov-
ernment may impede * * * the enforcement of * * *
federal law,” “[aJnd States may deprive federal offi-
cials of a federal forum in which to assert federal
immunity defenses.” Ibid. And, as the plain terms
of Section 1442(a)(1) indicate, “some of these same
considerations may apply” when “a private person
acts as an assistant to a federal official.” Jd. at 2307.
For this reason, “[t]he federal officer removal statute
is not ‘narrow’ or ‘limited,” and its important policy
“should not be frustrated by a narrow, grudging in-
terpretation of § 1442(a)(1).” Willingham, 395 U.S.
at 406-07.

These considerations apply with full force to this
litigation. The Vietnam War, like the other great na-
tional controversies that prompted enactment of Sec-
tion 1442(a)(1)’s predecessor statutes (see Watson,
127 S. Ct. at 2305), was the source of heated debate
and, in some quarters, considerable hostility to the
policies of the national government. The Agent Or-
ange defoliation program, which had a central role in
that debate, has not become less controversial over
time. The court of appeals therefore was quite cor-
rect in observing that “removal in these cases fulfills
the federal officer removal statute’s purpose of pro-
tecting persons who, through contractual relation-
ships with the Government, perform jobs that the

22

Government otherwise would have performed.” Pct.
App. 6a. Indeed, as Judge Weinstein noted below,
“(bJecause government contractor cases are freighted
with factual findings, [the government contractor de-
fense], while laying down a substantive rule, may be
readily circumvented by state courts unsympathetic
to the defendants.” Jd. at 41a. And “[i]f cases such
as those in the present wave of Agent Orange claims
were scattered throughout state courts[,] manufac-
turers would have to seriously consider whether they
would serve as procurement agents to the federal
government,” an outcome that would “provide a sig-
nificant deterrent to necessary military procure-
ment.” Jbid. Because the decision below accordingly
is faithful to the language and purpose of Section
1442(a)(1), and because there is no confusion in the
lower courts that requires this Court’s attention, this
case does not warrant further review.

23

CONCLUSION

The petition for a writ of certiorari should be de-

nied.

Respectfully submitted.

CHARLES A. ROTHFELD ANDREW L. FREY

Mayer Brown LLP Counsel of Record
1909 K Street, NW LAUREN R. GOLDMAN
Washington, D.C. 20006 CHRISTOPHER J. HOUPT
(202) 263-3000 Mayer Brown LLP
1675 Broadway
New York, NY 10019
(212) 506-2500
JAMES V. AIOSA JAMES L. STENGEL
RICHARD S. FELDMAN LAURIE STRAUCH WEISS
Rivkin Radler LLP Orrick, Herrington &
926 RexCorp Plaza Sutcliffe LLP
Uniondale, NY 11556 666 Fifth Avenue
(516) 357-3000 New York, NY 10108

(212) 506-3775

Counsel for Respondent
The Dow Chemical Company

LAWRENCE D’ALOISE, JR. MICHAEL M. GORDON

Clark, Gagliardi & McKee Nelson LLP
Miller One Battery Park Plaza

The Inns of Court 34th Floor

99 Court Street New York, NY 10004

White Plains, NY 10601 (917) 777-4567
(914) 946-8900
Counsel for Respondents
Counsel for Respondents Occidental Chemical Cor-
T.H. Agriculture & Nutri- poration, as successor by
tion Co., Inc., Thompson- merger to Diamond

24

Hayward Chemical Co.,
and Harcros Chemicals,
Ine.

WILLIAM A. KROHLEY
WILLIAM C. HECK
Kelley Drye & Warren
LEP
101 Park Avenue
New York, NY 10178
(212) 808-7800

Counsel for Respondent
Hercules Incorporated

JOHN C. SABETTA
ANDREW T. HAHN, SR.
Seyfarth Shaw LLP
620 Eighth Avenue
New York, NY 10018-
1405
(212) 218-5509

RICHARD P. BRESS
Latham & Watkins
555 Eleventh Street, NW,
Suite 1000
Washington, D.C. 20004
(202) 637-2137

Shamrock Chemicals
Company; Maxus Energy
Corporation; Tierra Solu-
tions, Inc., formerly
known as Chemical Land
Holdings, Inc.; and Valero
Energy Corporation, as
successor by merger to Ul-
tramer Diamond Sham-
rock Corporation

SETH P. WAXMAN
PAUL R.Q. WOLFSON
MARY K. GARDNER
Wilmer Cutler Pickering
Hale and Dorr LLP
1875 Pennsylvania Ave.
NW
Washington, D.C. 20006
(202) 663-6000

JAMES E. TYRRELL, JR.
Patton Boggs LLP
The Legal Center
One Riverfront Plaza —
6th Floor
Newark, NJ 07102
(973) 848-5620

Counsel for Respondent Monsanto Company

MYRON KALISH
50 East 79th Street
New York, NY 10021

Counsel for Respondents
Uniroyal, Inc., Uniroyal
Chemical Co., and CDU
Holdings, Inc.

JANUARY 2009

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386020_0740%3A2. Public record. Not legal advice.