The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge Page 2
MEMORANDUM & ORDER (REMOVAL)
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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
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 ...