901 F.Supp. 1195 (E.D.Tex. 1995), 193-CV-164, Winters v. Diamond Shamrock Chemical Co.

Docket Nº:193-CV-164
Citation:901 F.Supp. 1195
Party Name:Winters v. Diamond Shamrock Chemical Co.
Case Date:August 02, 1995
Court:United States District Courts, 5th Circuit, Eastern District of Texas

Page 1195

901 F.Supp. 1195 (E.D.Tex. 1995)

Margaret WINTERS, Plaintiff



No. 1:93-CV-164.

United States District Court, E.D. Texas, Beaumont Division.

Aug. 2, 1995

Page 1196

Benton Musslewhite, Houston, TX, William R. Power, Pappas Power & Marcus, Chicago, IL, for Margaret Winters.

Steven Brock, Rivkin Radler & Kremer, Uniondale, NY, Morris C. Carrington, Mehaffy & Weber, Beaumont, TX, Michael Gordon, Caldwalader Wickersham & Taft, New York City, for Diamond Shamrock Chemical Company.

Steven Brock, Rivkin Radler & Kremer, Uniondale, NY, Morris C. Carrington, Mehaffy & Weber, Beaumont, TX, for The Dow Chemical Company.

Steven Brock, Rivkin Radler & Kremer, Uniondale, NY, Morris C. Carrington, Mehaffy & Weber, Beaumont, TX, John C. Sabetta, Lord Day & Lord, Barrett Smith, New York City, for Monsanto Company.

Steven Brock, Rivkin Radler & Kremer, Uniondale, NY, Morris C. Carrington, Mehaffy & Weber, Beaumont, TX, Myron Kalish, Shea & Gould, New York City, for Uniroyal, Inc.

Steven Brock, Rivkin Radler & Kremer, Uniondale, NY, Morris C. Carrington, Mehaffy & Weber, Beaumont, TX, William Krohley, Kelley Drye & Warren, New York City, for Hercules, Inc.

Steven Brock, Rivkin Radler & Kremer, Uniondale, NY, Morris C. Carrington, Mehaffy & Weber, Beaumont, TX, for Thompson-Hayward Chemical Co.

Steven Brock, Rivkin Radler & Kremer, Uniondale, NY, Morris C. Carrington, Mehaffy & Weber, Beaumont, TX, Morton B. Silberman, Clark Gagliardi & Miller, White Plains, NY, for T.H. Agriculture & Nutrition Company Inc.

Page 1197


COBB, District Judge.

Plaintiff Margaret Winters was a civilian employee who lived and worked in Vietnam. She alleges exposure to the herbicide "Agent Orange" that contained a harmful chemical compound called "dioxin." 1 Winters claims that these defendant chemical companies directly or indirectly caused this chemical to be used in Vietnam and, as a result, she suffered serious injury due to her exposure to the dioxin. 2

Plaintiff originally filed this case in the 60th Judicial District Court in Jefferson County, Texas. Defendants removed the action pursuant to the Federal Officer removal statute, 28 U.S.C. section 1442(a)(1), and this court's original jurisdiction grounded on the federal common law governing military procurement, 28 U.S.C. section 1331. The Judicial Panel on Multidistrict Litigation found common questions of fact to exist with actions previously decided by the Eastern District of New York and transferred the case to Judge Jack B. Weinstein for disposition.

In the meantime, plaintiff filed a motion to remand contending that defendants are collaterally estopped from raising the same issues previously decided by Ryan v. Dow Chemical Co., 781 F.Supp. 934 (E.D.N.Y.1992), aff'd on other grounds, 996 F.2d 1425 (2d Cir. 1993), cert. denied, 510 U.S. 1140, 114 S.Ct. 1125, 127 L.Ed.2d 434 (1994). In the alternative, plaintiff maintains that 28 U.S.C. section 1442(a)(1) does not warrant removal of this case. Judge Weinstein chose to abstain from ruling on plaintiff's motion to remand after holding a hearing on the motion. Instead, Judge Weinstein transferred the case back to this court pursuant to 28 U.S.C. section 1404(a) on the grounds that a Texas court could better handle the complex issues of Texas conflicts rules and substantive law applicable to the present case.

With the wheels of justice having ground an excruciatingly slow 360 degrees, this court is again faced with the proper disposition of this action. Plaintiff reurges her Motion to Remand on the same grounds stated above. Finding that special circumstances exist to preclude an application of offensive collateral estoppel in this case, and finding the right of removal under 28 U.S.C. section 1442(a)(1) to be absolute when, as in this case, defendants present a colorable defense arising out of their duty or actions required by federal law, the plaintiff's Motion to Remand is DENIED.


A defendant bears the burden of establishing federal jurisdiction over a suit initiated in state court. Carpenter v. Wichita Falls Indep. School Dist., 44 F.3d 362, 365 (5th Cir. 1995) (citing Wilson v. Republic Iron & Steel Co., 257 U.S. 92, 42 S.Ct. 35, 66 L.Ed. 144 (1921)). Defendants first seek to invoke this court's jurisdiction based on the absolute right of removal afforded to persons acting under color of federal officers or agencies. 28 U.S.C. § 1442(a)(1). This statute, known as the Federal Officer Removal Statute, was enacted to permit federal officials, and those persons acting under them, to enjoy the sanctity of federal court jurisdiction. To successfully remove a case under section 1442(a)(1), a defendant must show that (1) they are "persons" within the meaning of the statute; (2) they must have been "acting under color of federal authority" when committing the acts leading to the instant lawsuit; (3) they must assert a colorable federal defense. Guillory v. Ree's Contract Service, Inc., 872 F.Supp. 344, 346 (S.D.Miss.1994) (citing Akin v. Big Three Indus., Inc., 851 F.Supp. 819, 822 (E.D.Tex.1994); Pack v. AC and S, Inc., 838 F.Supp. 1099, 1101 (D.Md.1993); Fung v. Abex Corp., 816 F.Supp. 569, 571-572 (N.D.Cal.1992)).

Page 1198

This court finds that defendants are considered "persons" for purposes of this statute. The Fifth Circuit has, at least implicitly recognized that section 1442(a)(1) applies to corporate defendants. See Guillory, 872 F.Supp. at 346 n. 3; and see Akin, 851 F.Supp. at 822. In cases where a corporation may be engaged in activities that may implement a federal policy or directive, "person" should be given a broad meaning to include companies that have acted under federal direction or authority. 3 Therefore, defendants meet the first criteria of being considered "persons" under the meaning of 1442(a)(1).

Defendants maintain that they also meet the remaining two criteria based on their actions taken under express federal direction and their claims of the federal defense of immunity under the Defense Production Act, 50 U.S.C.App.§ 2061 et seq., and the federal common law government contractor defense. Defendants assert that these defenses are sufficient to invoke this court's jurisdiction under 28 U.S.C. section 1442(a)(1). 28 U.S.C. section 1442(a)(1) provides:

(a) A civil action or criminal prosecution commenced in a State court against any of the following persons 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) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

This statute has a long jurisprudential history. 4 For over 100 years, the Supreme Court has recognized that the Federal Government

can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be arrested and brought to trial in a State court, for an alleged offense the law of the State, yet warranted by the Federal authority they possess, and if the general government is powerless to interfere at once for their protection,--if their protection must be left to the action of the State court,--the operations of the general government may at any time be arrested at the will of one of its members.

Willingham, 395 U.S. at 406, 89 S.Ct. at 1815 (quoting Tennessee v. Davis, 100 U.S. 257, 263, 25 L.Ed. 648 (1880)); and see Primate Protection League v. Tulane Ed. Fund, 500 U.S. 72, 85-87, 111 S.Ct. 1700, 1708-1709, 114 L.Ed.2d 134 (1991); Mesa v. California, 489 U.S. 121, 125-134, 109 S.Ct. 959, 962-967, 103 L.Ed.2d 99 (1989). Willingham and its offspring essentially explain that the general purpose of this statute is to protect federal agents and officers from being brought to trial in State courts for acts performed under the authority of the Federal Government. Willingham, 395 U.S. at 406, 89 S.Ct. at 1815; Primate Protection League, 500 U.S. at 87, 111 S.Ct. at 1709; Mesa, 489 U.S. at 136-139, 109 S.Ct. at 968-970.

Although this statute was enacted to provide for an absolute right of removal "whenever a suit in a state court is for any act 'under color' of federal office," federal jurisdiction arises only when "a federal interest in the matter" exists. Willingham, 395 U.S. at 406, 89 S.Ct. at 1815; and see Boyle v. United Technologies Corp., 487 U.S. 500, 511-512, 108 S.Ct. 2510, 2518, 101 L.Ed.2d 442 (1988). Mesa enforced this federal interest requirement by clarifying the construction of section 1442(a). Noting the present-day lack of hostility of state prosecutors and state courts toward federal interests, the Court in Mesa reaffirmed the limitations of section 1442(a) by holding "[f]ederal officer removal under 28 U.S.C. § 1442(a) must be predicated upon averment of a federal defense." Mesa, 489 U.S. at 139, 109 S.Ct. at 970.

Page 1199

1. The Causal Connection Test

Consequently, "persons" seeking removal under section 1442(a)(1) must satisfy two requirements. A defendant must first show that a causal connection exists between what the officer or agent has done while acting under federal authority and the state prosecution. 5 A defendant must then present a colorable federal defense. The initial causal connection test is a statutory requirement that "serves to overcome the "well-pleaded complaint" rule which would otherwise preclude removal even if a federal defense were alleged." Mesa, 489 U.S. at 136, 109 S.Ct. at 968.

To satisfy this first requirement, the defendant must establish that the federal official or agent has " 'direct and detailed control' over the...

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