United States District Court, E.D. New York
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"]
[EDITORS' NOTE: THIS PAGE CONTAINED "TABLE OF CONTENTS"]
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).
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
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 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).
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
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 Section 1442(a)(1) of Title 28 of the
United 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 district and
division embracing the place wherein it is
(1) The United States or any agency thereof or
any officer (or any person acting under that
officer) of the United States or of any agency
thereof, sued in an official or individual
capacity for any act under color of such office.
. . .
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 Judicial 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 activities 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 defendant may remove under section 1442, then the
entire case is removed to federal court even if some defendants could not
have removed the case under the statute. See, e.g., Falls Riverway
Realty v. City of Niagara Falls, 754 F.2d 49, 52 (2d Cir. 1985)
(noting that one government defendant removed the "entire case"); 3
Moore's Federal Practice ¶ 1442.2. Subject matter jurisdiction is
conferred over properly removed actions. Niagara Mohawk Power Corp.
v. Bankers Trust Co., 791 F.2d 242, 244 (2d Cir. 1986).
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 jurisdiction; 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 predicate 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 herbicides that
plaintiff alleges injured him. The primary question in the instant case
is whether defendants' conduct allegedly 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'l Primate
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 emphasizes 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 and government
outsourcing depends upon corporations requires this result. Under section
1442(a)(1) a "person" includes a corporation. See Winters v. Diamond
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 v. 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
2. Acting Under Color of Federal Office
The "color of office" requirement should not be frustrated by a
"narrow" construction. Courts interpret the rule broadly to achieve the
protective purpose of the statute. Willingham, 395 U.S. at 407.
This element requires a causal nexus between the defendant's actions
under federal office and state court claims. Id. 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 almost
identical facts. See Judgment in Agent Orange III. Defendants
sought removal. The court determined 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 plaintiffs
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 v.
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 plaintiffs' claims and Boeing's
actions at the direction of a federal officer. Id. at 1275.
Akin v. Big Three Indus., Inc. illustrates a properly
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 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 specifications. Repairing 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 satisfied when "a government contractor builds a
product pursuant to Air Force specifications and is later sued because
compliance with those specifications allegedly causes personal injuries."
Id. at 823-24. Likewise, in Crocker v. Harden, 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 manufactured pursuant to government specifications for the Navy. The
court held that this government control established the necessary "causal
nexus." Id., 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 manufacture 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. As stated in Arness, defendants must show that the
government directed the actions on which the plaintiffs based their
claims. 997 F. Supp. at 1275. By contrast, in Good v. Armstrong World
Industries, Inc., plaintiffs sued for injuries related to asbestos
exposure. 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). Similarly,
in Anderson v. Avondale Indus, Inc., defendant'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. Dist. 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 successful on the
merits. Jefferson County v. Acker, 527 U.S. 423, 431 (1999)
Support of removal may be predicated on the federal government
contractor defense. See, e.g., Judgment 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 removal 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 supervised 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 specifications 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 government specifications that the "formulation" for
Agent 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 herbicides were required for effective military use.
Commencing in 1961, defendants produced and delivered Agent Orange to
the United States pursuant 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
incorporated 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 industry's entire capacity to
manufacture 2, 4, 5-T, ordering defendants to accelerate the delivery of
Agent Orange. 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 defendants. 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 Chemical Warfare Laboratories located at
Edgewood Arsenal, Maryland learned of dioxin as a toxic by-product in the
manufacture 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 government
involvement, 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 (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
percentage of inert ingredients to dilute the two
active 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 areas of Vietnam of their
vegetation. To quickly achieve this goal, the
government dictated that Agent Orange contain only
the active 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. Boeing North
American. As already noted, in Arness, defendants were sued
based on the effect of their method of disposal of a toxic byproduct.
997 F. Supp. At 1273. The government had not specified the manner 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 III.
The final element of removal under Section 1442(a)(1) is whether
defendants have established a "colorable federal [law] defense." Mesa
v. California 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 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 Industries, 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
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 government.
V. Policy Considerations Supporting Removal
The military contractor defense is based upon substantive policy
considerations as well as pragmatic procedural factors in controlling
litigation. The government contractor defense, provides substantive
protection for the armed forces and its suppliers. See Boyle v.
United Technologies Corp., 487 U.S. 500, 512 (1988). Section
1442(a)(1) provides procedural protection. Failure to apply the federal
officer removal statute would allow into the back door of state
litigation what the government contractor defense barred at the front
If cases such as those in this present wave of Agent Orange claims were
scattered throughout state courts manufacturers would have to seriously
consider whether they would serve as procurement agents to the federal
government, Since the advent of the 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 circumvented by state courts unsympathetic to the defendants.
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 Federal
Government 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
theoretical protections in the Supreme Court's power to directly
review a state court's decision prejudicial to the federal
government and its contractors, very few cases can be reviewed by this
route. Cf. Kermit Roosevelt III, Light from Dead Stars: The
Procedural Adequate and Independent State Ground Reconsidered, 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").
Plaintiffs' motion to remand is denied. No costs or disbursements.
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