Akin v. Ashland Chemical Co.
| Citation | 156 F.3d 1030 |
| Decision Date | 21 August 1998 |
| Docket Number | No. 97-6030,97-6030 |
| Parties | 29 Envtl. L. Rep. 20,032, Prod.Liab.Rep. (CCH) P 15,331, 98 CJ C.A.R. 5094 James E. AKIN; Richard G. Arellano; Charles L. Baldwin; Annie M. Barnes; Terry D. Blain; Marcia Bannock; Delton E. Brown; Timothy L. Caraway; Thomas W. Clark; Richard Cotey; Connie Cottrell; Ronnie D. Cottrell; Steven L. Coy; Hugh Crow; Nathan D'Amico; Donna M. Davis; Louis R. Dickinson; Ollie Dillishaw, Jr.; Danny L. Dunn; Jenny L. Duren; Bill R. Durington; Steven Ray Duty; Leon Ealon; Debra M. Emerich; Janette K. Farley; Jon G. Gabbard; Linda D. Gatewood; Max R. Glover; Wendell P. Gomez; Eric L. Janousek; David Keiser; Larry D. Lidell; Robert C. Love; Jack L. Manning; Thomas Marshall; Michael D. Mowles; Jeffrey Murray; Melvin E. Norton; Zenephor Overstreet; James M. Owen; Terry W. Oxley; Ronald K. Peoples; Michael Phillips; Marie L. Plumlee; Phillip Plumlee; Rick Reames; Jack D. Rhoden; Wayne Richardson; Norma Roberts; Charlon S. Rogers; Sandra Rolland; Marlys Rone; Judy A. Rowland; Tony E. Ruble; Reatha R. Schlegel; Gloria Shelton, as representative of the estate of Wilton F. Shelton, deceased; Charlie Sheppard; Herman D. Sikes; William D. Slattery; Clayton D. Statsny; Melissa C. Statsny; Gayla S. Staton; Martha J. Storozyszyn; Rick L. Stuart; Mike Sullivan; Emmett Thomas, Jr.; Benjamin Tingle; Marilyn J. Tracey; Helen Walker; Randy F. Wiens; Leonard Williams; Leonard Williams; Morten D. Williams; Glenda Wright; Herman Dale Wright; Kenneth L. Wright; Albert A. Wyatt; James D. Wyatt; Johnnie R. York; Larry N. Smith; Danny Driskill; Gerald Houston, Plaintiffs--Appellants, v. ASHLAND CHEMICAL COMPANY; Dow Chemical Company; McGean-Rohco, Inc.; Thunderbird Sales Company, Inc., Defendants--Appellees, and E.I. DUPONT DE NEMOURS & CO.; General Electric Company; J.W. Harris Co., Inc; Metallurgical Technologies, Inc.; Ashland Oil; Spray on Systems, Inc.; Plaze, Inc.; Royal Lubricants Company, Inc.; Stetco Inc.; Thompson & Formby, Inc.; L & F Products, Inc.; Miniwax Company, Inc.; Dow Industrial Serv |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
James A. Ikard, Oklahoma City, Oklahoma (E. Hart Green and Mitchell A. Toups, Weller, Green, McGown & Toups, Beaumont, Texas, and Shari A. Wright and Robert J. Binstock, Reich & Binstock, Houston, Texas, with him on the briefs), for Plaintiffs-Appellants.
Clyde A. Muchmore, Crowe & Dunlevy, Oklahoma City, Oklahoma (Kelley C. Callahan and Harvey D. Ellis Jr., Crowe & Dunlevy, Oklahoma City, Oklahoma, and Mort G. Welch, Welch, Jones & Smith, Oklahoma City, Oklahoma, with him on the brief), for Defendants-Appellees.
Before TACHA and BALDOCK, Circuit Judges, and GREENE, District Judge. *
BACKGROUND
On November 13, 1992, plaintiffs filed this toxic tort case in state court at Beaumont, Texas. After receipt of answers to interrogatories, defendant General Electric (GE) removed the case to the United States District Court for the Eastern District of Texas. The Texas district court judge upheld removal jurisdiction, denied plaintiffs' motion to remand and transferred venue to the Western District of Oklahoma as a more convenient forum. The Oklahoma district court judge granted summary judgment in favor of defendants. Plaintiffs appealed, arguing that removal was untimely and summary judgment unwarranted.
The United States has power and exclusive authority "in all Cases whatsoever ... over all places purchased" by the government "for the erection of Forts, Magazines, Arsenals, Dock-Yards, and other needful Buildings," U.S. Const. art. I, § 8, cl. 17. Such places are "federal enclaves" within which the United States has exclusive jurisdiction. 1 Personal injury actions which arise from incidents occurring in federal enclaves may be removed to federal district court as a part of federal question jurisdiction. There is no dispute that Tinker Air force Base at Oklahoma City, Oklahoma is such a federal enclave.
Plaintiffs argue that the removal petition was defective in that all co-defendants did not consent and join in the removal papers. In the case at bar, defendant GE removed the case based on its status as a "person acting under" a federal officer, as well as the status of Tinker Air Force Base as a federal enclave. Federal officer removal constitutes an exception to the general removal rule under 28 U.S.C. § 1441 and § 1446 which require all defendants to join in the removal petition. The exception is set forth at 28 U.S.C. § 1442(a)(1) which provides in part that:
(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 ...."
Id. (emphasis added). This statutory exception allows a federal officer independently to remove a case to federal court even though that officer is only one of several named defendants. The Congressional policy permitting federal officer removal could easily be frustrated by simply joining non-federal defendants unwilling to remove if consent of co-defendant(s) were required. Thus in Bradford v. Harding, 284 F.2d 307, 310 (2d Cir.1960), the Second circuit ruled that "[t]he 'general government' must be able to assure each of its officers that a federal forum will be available if he wishes it, whether others sued with him wish it or no." Likewise, in Fowler v. Southern Bell Tel. & Tel. Co., 343 F.2d 150, 152 (5th Cir.1965), the Fifth circuit held "it is settled that the filing of a petition for removal by a single federal officer removes the entire case to the federal court." In Ely Valley Mines, Inc. v. Hartford Accident & Indem. Co., 644 F.2d 1310, 1315 (9th Cir.1981), the Ninth circuit reasoned that "[s]ince the federal officer is the only one entitled to remove under § 1442, he alone can remove without other defendants joining in the petition, and the entire case is removed to the federal court." In City of Aurora v. Erwin, this court noted the importance to the United States and the absolute nature of federal officer removal jurisdiction, quoting the Supreme Court that exercise of such jurisdiction " 'should not be frustrated by a narrow, grudging interpretation.' " 706 F.2d 295, 296 (10th Cir.1983) (quoting Arizona v. Manypenny, 451 U.S. 232, 242, 101 S.Ct. 1657, 68 L.Ed.2d 58 (1981)). On the basis of the foregoing, we hold that G.E. properly removed the case to federal court without the consent of co-defendants.
The right to remove a case to federal court is determined from allegations set forth in the initial pleading, "or other paper from which it may first be ascertained that the case is one which is or has become removable ..." 28 U.S.C. § 1446(b) (emphasis added).
Appellants argue that removal was untimely because the initial pleading provided defendants with all necessary information to ascertain removability. 2 Appellees argue that plaintiffs' allegations of injuries sustained "while working at" Tinker...
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