275 F.3d 414 (5th Cir. 2001), 00-41341, Miller v Diamond Shamrock

Docket Nº:00-41341
Citation:275 F.3d 414
Party Name:RODNEY A. MILLER, Plaintiff-Appellant, v. DIAMOND SHAMROCK CO.; DIAMOND SHAMROCK CHEMICAL COMPANY, also known as Occidental Chemical Corporation; DOW CHEMICAL COMPANY; MONSANTO COMPANY; UNIROYAL, INC.; Page 415 HERCULES, INC.; THOMPSON-HAYWARD CHEMICAL COMPANY, also known as Thompson Chemicals; T. H. AGRICULTURAL & NUTRITION, INC., Defendants-App
Case Date:October 30, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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275 F.3d 414 (5th Cir. 2001)

RODNEY A. MILLER, Plaintiff-Appellant,

v.

DIAMOND SHAMROCK CO.; DIAMOND SHAMROCK CHEMICAL COMPANY, also known as Occidental Chemical Corporation; DOW CHEMICAL COMPANY; MONSANTO COMPANY; UNIROYAL, INC.;

Page 415

HERCULES, INC.; THOMPSON-HAYWARD CHEMICAL COMPANY, also known as Thompson Chemicals; T. H. AGRICULTURAL & NUTRITION, INC., Defendants-Appellees.

No. 00-41341

United States Court of Appeals, Fifth Circuit

October 30, 2001

Page 416

Appeal from the United States District Court for the Southern District of Texas

Before REYNALDO G. GARZA, BARKSDALE, and STEWART, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

This case is yet another episode in the great Agent Orange saga. In this appeal, we review the district court's decision to grant the defendants-appellees' motion for summary judgment where the decision was based exclusively on the military contractor defense. We also review the district court's decision to deny the plaintiffs-appellants' motion to remand the case to state court. Because we can find no error in the court's decisions, we affirm both rulings.

I

The defendants are seven chemical companies, each of which entered into contracts with the United States during the 1960s to provide the government with "Agent Orange," a herbicide used as a defoliant by the military in Vietnam. Agent Orange is an equal mix of 2,4-Dichlorophenoxyacetic Acid ("2,4-D") and 2,4,5-Trichlorophenoxyacetic Acid ("2,4,5-T"). Agent Orange contains varying amounts of a toxic substance known as 2,3,7,8 Tetrachlorodibenzo-p-dioxin ("dioxin").1 Dioxin has been linked to various

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maladies such as liver cancer and chloracne.

The plaintiffs are civilians, some of whom worked at the Corpus Christi Army Depot in Corpus Christi, Texas, at various times over the past 40 years. These workers claim they were exposed to Agent Orange while working on aircraft that used the defoliant in Vietnam. The other plaintiffs are the workers' spouses and children. They claim that they were exposed to Agent Orange through physical contact with the workers or with the workers' clothing. The plaintiffs allege that their exposure to Agent Orange has caused various maladies and cancers.

The plaintiffs originally brought suit in state court. The defendants, however, removed the case to district court based on the Federal Officer Removal Statute. 28 U.S.C. § 1442(a)(1). The plaintiffs unsuccessfully moved to remand. The defendants then filed a motion for summary judgment based on the military contractor defense. The district court granted the motion and entered final judgment in favor of the defendants. The plaintiffs appeal both decisions.

II

We review the denial of a motion to remand de novo. See Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). "This standard of review applies even where the district court makes certain findings of fact in denying the motion to remand." Winters v. Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir. 1997). Because the defendants invoked the removal jurisdiction of the district court, they bore the burden of establishing jurisdiction. See Frank v. Bear Stearns & Co., 128 F.3d 919, 921-22 (5th Cir. 1997). Because the defendants met their burden, the district court properly denied the plaintiffs' motion to remand.

This Court has already given full treatment to the questions posed by the plaintiffs' motion to remand. Winters v. Shamrock Chemical Co. is identical to the present action in all relevant respects. 149 F.3d 387 (5th Cir. 1997), aff'g 901 F.Supp. 1195 (E.D. Tex. 1995), cert. denied, 526 U.S. 1034 (1999). In Winters, the plaintiff brought suit in state court against the same defendants in the present action. She alleged that her exposure to Agent Orange while in Vietnam had caused her to develop cancer. Id. at 390. As they did the present action, the defendants in Winters removed the case to federal court pursuant to the Federal Officer Removal Statute. Id. The district court denied the plaintiff's motion to remand, and this Court affirmed. Id. at 404.

The Federal Officer Removal Statute 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 individual 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

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the apprehension or punishment of criminals or the collection of the revenue.

28 U.S.C. § 1442(a)(1); see Winters, 149 F.3d at 390. In denying Winters's motion to remand, the district court found that the defendants: (1) were "persons," (2) "acting under color of federal authority" when committing the acts that allegedly caused her injuries, and (3) had asserted a colorable federal defense. Id. at 397. As in the present action, the colorable federal defense asserted by the defendants in Winters was the military contractor defense. Id. at 400.

The plaintiffs do not dispute the legal reasoning of the Winters decision. Rather, they attempt to distinguish it. The plaintiffs argue that Winters was based on the erroneous assumption that the mixing of 2, 4-D and 2, 4, 5-T created a product more toxic than either of the components individually. The plaintiffs then offer proof that only 2, 4, 5-T contains dioxin, so the addition of 2, 4-D actually creates a less toxic product. According to the plaintiffs, the defendants were not acting under the color of federal authority when they made 2, 4, 5-T, which contains dioxin. Thus, as the plaintiff's argument follows, there was no causal connection between the defendants' actions that gave rise to this suit--making 2, 4, 5-T--and the defendants's actions that were under the direction of the federal government--mixing 2, 4, 5-T and 2, 4-D to make Agent Orange.

The argument fails on both its premise and its conclusion. The determination that the defendants in Winters were acting under color of federal authority was never based on any perceived increase in toxicity of the combination of 2, 4-D and 2, 4, 5-T. Rather, it was based on evidence that indicated the government's "strict control over the development and subsequent production of Agent Orange." Id. at 399. The government specifically asked the defendants to produce Agent Orange using 2, 4, 5-T. Thus, the defendants were acting under color of federal authority when they used 2, 4, 5-T to make Agent Orange.

Further, the plaintiffs are not suing the defendants because they were exposed to dioxin generally. Rather, they are suing because they were exposed to the dioxin contained in Agent Orange specifically. Therefore, it was the production of Agent Orange that gave rise to this suit, and we find that the defendants produced Agent Orange at the behest of the federal government. The plaintiffs have failed to distinguish the instant action from Winters. Because the defendants have demonstrated their right to a federal forum under the Federal Officer Removal Statute, we affirm the district court's decision to deny the plaintiffs' motion to remand.

III

We review the grant of summary judgment de novo. See Veeck v. S. Bldg. Code Congress, Int'l, Inc., 241 F.3d 398, 402 (5th Cir. 2001). Summary judgment is proper only if the record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). There is no genuine issue of fact if, after viewing the evidence in a light most favorable to the nonmoving party, a reasonable fact finder could not find in favor of the nonmoving party. See Merritt-Campbell, Inc. v. RxP Prods., Inc., 164 F.3d 957, 961 (5th Cir. 1999).

The district court granted summary judgment under the military contractor defense. Under the proper circumstances, the military contractor defense shields a contractor from liability for a defect in an item it built or manufactured at the government's direction. "Subjecting

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military contractors to full tort liability would inject the judicial branch into political and military decisions that are beyond its constitutional authority and institutional competence." In re Agent Orange Prod. Liab. Litig. MDL No. 381, 818 F.2d 187, 191 (2d Cir. 1987); see also Boyle v. United Techs. Corp., 487 U.S. 500, 511-12 (1988).

To invoke the military contractor defense, the defendants must prove that: (1) the government approved reasonably precise specifications for the item; (2) the item conformed to those specifications; and (3) the contractor warned the government about the dangers from the use of the item that were known to the contractor but not to the government. See Boyle, 487 U.S. at 512. Because we find no genuine issues of material fact with respect to any one of these issues, we affirm the district court's decision.

A

The first element of the defense is that the government must have approved reasonably precise specifications for the item to be manufactured. Id. at 512. This assures that "the government, and not the contractor, is exercising discretion in selecting the design." Stout v. Borg-Warner Corp., 933 F.2d F.2d 331, 334 (5th Cir. 1991). It is clear from the record that the United States government provided the defendants with exacting specifications for Agent Orange.

In 1963, the Army Munitions Command prepared and promulgated Military Specifications, MIL-H-51147(MU), 19 July 1963, "Herbicide 2,4-dichlorophenoxy-acetate" and MIL-H-51148(MU), 19 July 1963, "Herbicide 2,4,5-trichlorophenoxyacetate." These specifications defined all facets of their respective chemical's composition,...

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