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IN RE "AGENT ORANGE" PRODUCT LIABILITY LITIGATION

February 9, 2004.

In re "AGENT ORANGE" PRODUCT LIABILITY LITIGATION; JOE ISAACSON and PHILLIS LISA ISAACSON, Plaintiffs, -against- DOW CHEMICAL COMPANY, et al., Defendants


The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge Page 2

MEMORANDUM & ORDER (REMOVAL)

[EDITORS' NOTE: THIS PAGE CONTAINED "NAMES OF ATTORNEYS"] Page 3

 [EDITORS' NOTE: THIS PAGE CONTAINED "TABLE OF CONTENTS"]

  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 Vietnam. 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). Page 4

  Originally filed in New Jersey state court, the complaint alleged claims under state law only. Defendants 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 removal 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 Chemical 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 to determine if there is an alternate ground supporting federal jurisdiction. Stephenson v. Dow Chemical Co., 346 F.3d 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). Page 5

  For reasons indicated below, the motion to remand is denied. Federal jurisdiction is properly asserted under the federal officer removal statute. A prior decision of this court reached a contrary conclusion in an Agent Orange case. See Ryan v. Dow 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." Id. Winters, a persuasive appellate decision, on facts almost identical to those in Ryan, held the federal officer removal statute applicable to the defendants in the instant case. Id. 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 Litigation, Judgment and Order of Dismissal, — F. Supp.2d — (E.D.N.Y. Feb. 9, 2004) ("Judgment in Agent Orange III"). Judgment in Agent Orange III contains a description of the relevant facts. It is deemed incorporated in this memorandum and order.

  III. Law

 A. General Rule

  The federal officer removal statute allows executive 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 ...


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