In re "Agent Orange" Product Liability Lit.

• Decision Date: 09 February 2004
• Docket Number: No. 98-CV-6383 JBW.,No. MDL 381.,MDL 381.,98-CV-6383 JBW.
• Citation: 304 F.Supp.2d 442
• Parties: In re "AGENT ORANGE", PRODUCT LIABILITY LITIGATION. Joe Isaacson and Phillis Lisa Isaacson, Plaintiffs, v. Dow Chemical Company, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

304 F.Supp.2d 442

In re "AGENT ORANGE", PRODUCT LIABILITY LITIGATION Joe Isaacson and Phillis Lisa Isaacson, Plaintiffs, v. Dow Chemical Company, et al., Defendants.

No. MDL 381.

No. 98-CV-6383 JBW.

United States District Court, E.D. New York.

February 9, 2004.

COPYRIGHT MATERIAL OMITTED

Williams, Cuker, Berezofsky by Mark R. Kuker, Dan Bencivenga, Cherry Hill, NJ, Smoger & Associates by Gerson Smoger, Oakland, CA, for Plaintiffs Joe Isaacson and Phillis Lisa Isaacson.

Kelley Drye & Warren, LLP by William A. Krohley, Willam C. Heck, New York City, for Defendant Hercules, Inc.

Rivkin Radler & Kremer by Steven Brock, James V. Aiosa, Uniondale, NY, Orrick, Herrington & Sutcliffe, LLP by James Lamont Stengel, New York City, for Defendant The Dow Chemical Company.

Cadwalader, Wickersham & Taft, LLP by Michael M. Gordon, New York City, for Defendant Occidental Chemical Corporation.

Seyfarth Shaw, LLP by John C. Sabetta; Andrew T. Hahn, Sr., New York City, Latham & Watkins by James E. Tyrrell, Newark, NJ, for Defendant Monsanto Company.

Myron Kalish, New York City, for Defendant Omniroyal, Inc.

Clark, Gagliardi & Miller by Lawrence T. D'Aloise, White Plains, NY, for Defendants T.H. Agriculture & Nutrition Co.

MEMORANDUM & ORDER (REMOVAL)

WEINSTEIN, Senior District Judge.

Table of Contents

                I. Introduction
                II. Facts
                III. Law
                   A. General Rule
                   B. Elements of Section 1442(a)(1)
                   1. Definition of Person
                   2. Acting Under Color of Federal Office
                   3. Colorable Claim to a Federal Law Defense
                IV. Application of Law to Facts
                V. Policy Considerations Supporting Removal
                VI. Conclusion
                

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).

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, 123 S.Ct. 366, 154 L.Ed.2d 368 (2002), indicating that the All Writs Act alone would not support removal. Dow Chemical Co. v. Stephenson, 539 U.S. 111, 123 S.Ct. 2161, 156 L.Ed.2d 106 (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, 102 S.Ct. 980, 71 L.Ed.2d 116 (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).

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, 304 F.Supp.2d 404 (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 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 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....

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, 89 S.Ct. 1813, 23 L.Ed.2d 396 (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, 109 S.Ct. 959, 103 L.Ed.2d 99 (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, 107 S.Ct. 2425, 96 L.Ed.2d 318 (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, 109 S.Ct. 959 ("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, 89 S.Ct. 1813 (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, 109 S.Ct. 959.

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 Protection League v. Adm'r of Tulane Educ. Fund, 500 U.S. 72, 111 S.Ct. 1700, 114 L.Ed.2d 134 (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...