Isaacson v. Dow Chemical Co.
| Citation | 517 F.3d 129 |
| Decision Date | 22 February 2008 |
| Docket Number | No. 05-1820-cv.,No. 05-1694-cv.,No. 05-1695-cv.,No. 05-1693-cv.,No. 05-1509-cv.,No. 06-2450-cv.,No. 05-1698-cv.,05-1820-cv.,05-1694-cv.,06-2450-cv.,05-1509-cv.,05-1695-cv.,05-1693-cv.,05-1698-cv. |
| Parties | Joe ISAACSON and Phyllis Lisa Isaacson, Plaintiffs-Appellants, v. DOW CHEMICAL CO., Monsanto Co., Hercules, Inc., Occidental Chemical Corp., Ultramar Diamond Shamrock Corporation, Maxus Energy Corp., Chemical Land Holdings, Inc., T-H Agriculture and Nutrition Co., Thompson Hayward Chemical Co., Harcros Chemicals, Inc., Uniroyal, Inc., C.D.U. Holding, Inc., and Uniroyal Chemical Company, Defendants-Appellees. J. Michael Twinam, Plaintiff-Appellant, v. Dow Chemical Company, Monsanto Co., American Home Products, Inc., Hercules Incorporated, Occidental Chemical Corporation, Ultramar Diamond, Chemical Land Holdings, Inc., Maxus Energy Corp., Harcros Chemicals, Inc., Shamrock Corp., Thompson Hayward Chemical Co., T-H Agriculture, Uniroyal Chemical Co., and Valero Marketing Corporation, Defendants-Appellees. Robert S. Bauer and Sandra J. Bauer, Plaintiffs-Appellants, v. Dow Chemical Company, Monsanto Company, Pharmacia Corp., formerly known as Monsanto Co., Solutia, Inc., Hercules, Inc., Thompson Hayward Chemical Co., T-H Agriculture & Nutrition Co., Occidental Chemical Corporation, Occidental Petroleum Corporation, Uniroyal, Inc., C.D.U. Holding, Inc., Uniroyal Chemical Company, Harcros Chemicals, Inc., Ultramar Diamond Shamrock Corporation, Maxus Energy Corp., Tierra Solutions, Inc., and Chemical Land Holdings, Inc., Defendants-Appellees. Sheryl A. Walker, Eric C. Walker, A minor, by his Mother and Next Friend on behalf of Sheryl A. Walker, Stephen J. Walker, William Hamilton and Esther M. Hamilton, His wife, Individually and on Behalf of All Others Similarly Situated, Plaintiffs-Appellants, v. Dow Chemical Company, Monsanto Company, Pharmacia Corp., Solutia, Inc., Hercules Inc., Thompson Hayward Chemical Co., T-H Agriculture & Nutrition Co., Occidental Petroleum Corporation, Occidental Chemical Corp., Uniroyal, Inc., C.D.U. Holding, Inc., Uniroyal Chemical Company, Harcros Chemicals, Inc., Ultramar Diamond Shamrock Corporation, Maxus Energy Corp., Tierra Solutions, Inc., Chemical Land Holdings, Inc., and Valero Energy Corporation, doing business as Valero Marketing and Supply Company, Defendants-Appellees, Does 1-100, Defendants. Sherman Clinton Stearns and Dortha Monyene Stearns, Plaintiffs-Appellants, v. Dow Chemical Company, Hercules, Inc., Occidental Chemical Corp., Thompson Hayward Chemical Co., Elementis Chemicals, Inc., T.H. Agriculture and Nutrition Company, Inc., Maxus Energy Corp., El Paso Gas Transmission Company, Valero Energy Corporation, doing business as Valero Marketing and Supply Company, and Uniroyal Chemical Company, Defendants-Appellees. Charles T. Anderson, Plaintiff-Appellant, v. Dow Chemical Company, Monsanto Company, Occidental Chemical Corporation, Hercules, Inc., and Valero Energy Corporation, doing business as Valero Marketing and Supply Company, Defendants-Appellees, Pfizer, Inc., Solutia, Inc., E.I. Dupont de Demours & Co., Elementis Chemicals, Inc., Roche Holdings, Ltd., Harcros Chemicals, Inc., Crompton Corporation, Repsol-YPF, ConocoPhillips Company, Wyeth, Inc., Velsicol Chemical Corporation, Defendants. Vickey S. Garncarz, Plaintiff-Appellant, v. Dow Chemical Company, Uniroyal Chemical Corp., and Occidental Chemical Corporation, Defendants-Appellees. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
James Boanerges, Cooper, Sprague, Jackson & Boanerges, P.C., Houston, TX, for Plaintiffs-Appellants Charles T. Anderson and Vickey S. Garncarz.
Joan N. Harrop, Gomien & Harrop, Morris, Illinois, William F. Fitzpatrick, Fitzpatrick & Fitzpatrick, Chicago, IL, for Plaintiff-Appellant Vickey S. Garncarz.
Andrew L. Frey, Charles A. Rothfeld, Mayer, Brown, Rowe & Maw LLP (Lauren R. Goldman, Christopher J. Houpt, on the brief), New York, NY, for Defendants-Appellees.
Scott L. Nelson, Brian Wolfman, Public Citizen Litigation Group, Washington, DC, for Amieus Curiae Public Citizen, Inc.
William A. Rossbach, Timothy M. Bechtold, Rossbach Hart Bechtold, P.C., Missoula, MT, P.B. Onderdonk, Jr., Indianapolis, IN, (Anne Bloom, Sacramento, California, on the brief), for Amici Curiae Veterans and Military Service Organizations.
Before: MINER, SACK, HALL, Circuit Judges.
We are asked to determine whether the federal officer removal statute, 28 U.S.C. § 1442(a)(1), allows defendant chemical companies ("Defendants"), who contracted with the Government to produce Agent Orange for military use in the Vietnam War, to remove to federal court actions filed in state court alleging violations of state law in connection with that production. Those plaintiffs who contest federal jurisdiction claim that Defendants do not qualify as "persons" who were "acting under" a federal officer performing acts "under color of federal office" when they committed the challenged acts. We disagree. Defendants have demonstrated that they are "persons" within the meaning of the statute; that they were "acting under" a federal officer; that there is a causal connection between the formulation, manufacturing, packaging, and delivery of Agent Orange and the state prosecutions; and that they have raised a colorable federal defense to the state suits. Moreover, 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. See Watson v. Philip Morris Cos., Inc., ___ U.S. ___, 127 S.Ct. 2301, 2308, 168 L.Ed.2d 42 (2007). We therefore affirm the orders of the district court denying the plaintiffs' motions to remand.
Our decision today on the applicability of the federal officer removal statute affects only seven of the sixteen appeals in the present litigation. The plaintiffs in these seven appeals ("Plaintiffs") filed actions in state courts in Illinois, Missouri, New Jersey, New York, and Texas in which they alleged violations of state law, and they asserted that removal would be improper because diversity of citizenship was not complete. See Isaacson Compl. (filed in New Jersey); Twinam Compl. (filed in New York); Bauer Compl. (filed in Missouri); Walker Compl. (filed in Missouri); Stearns Compl. (filed in Texas); Anderson Transfer Order (from complaint filed in Texas); Garncarz Compl. (filed in Illinois). Defendants removed all of the cases to the federal district courts in their respective states. After Defendants had removed the cases, the Judicial Panel on Multidistrict Litigation transferred the cases to the United States District Court for the Eastern District of New York.
The district court first dismissed all of the cases because it found that they were impermissibly attempting to attack collaterally a 1984 class action `settlement of claims stemming from harms suffered by veterans as a result of their exposure to Agent Orange. On appeal, this Court, following the Supreme Court's decisions in Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815, 119 S.Ct. 2295, 144 L.Ed.2d 715 (1999), vacated the dismissal and remanded because Plaintiffs were not bound by the settlement. See Stephenson v. Dow Chem. Co., 273 F.3d 249, 259-61 (2d Cir. 2001). This Court also held that the district court had subject matter jurisdiction over the claims under the All Writs Act because, although the settlement funds were depleted, the state actions would require interpretation of the scope of the settlement and could disturb the judgment. See id. at 256.
The Supreme Court affirmed the judgment vacating the order of dismissal, but it vacated this Court's judgment to the extent that that judgment had affirmed the assertion of removal jurisdiction under the All Writs Act. See Dow Chem. Co. v. Stephenson, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (2003). The Supreme Court further directed this Court to reconsider the question of federal jurisdiction over the claims in light of Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002). See Dow Chem. Co., 539 U.S. at 112, 123 S.Ct. 2161. On remand, we found it "clear in light of Syngenta that federal jurisdiction with respect to the Isaacson's claims cannot be grounded on the All Writs Act." Stephenson v. Dow Chem. Co., 346 F.3d 19, 21 (2d Cir.2003). We therefore remanded the case to the district court for further analysis of the jurisdictional question.
Once back in the district court, Defendants moved for summary judgment, and Plaintiffs moved to remand the actions to state court. The district court granted Defendants' motion for summary judgment, see In re Agent Orange Prod. Liab. Litig. (Agent Orange I), 304 F.Supp.2d 404 (E.D.N.Y.2004), and in a separate memorandum and order, it denied the Isaacson plaintiffs' motion to remand, because it found that jurisdiction was proper pursuant to the federal officer removal statute, see In re Agent Orange Prod. Liab. Litig. (Agent Orange II), 304 F.Supp.2d 442 (E.D.N.Y.2004). In March 2005, the district court denied the remaining motions to remand.
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