Isaacson v. Dow Chemical Co. ( 2008 )

05-1820-cv
Isaacson v. D ow C hemical C o.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2006
(Argued: June 18, 2007 Decided: February 22, 2008)
Docket Nos. 05-1820-cv; 05-1509-cv; 05-1693-cv; 05-1694-cv;
05-1695-cv; 05-1698-cv; 05-2450-cv
_________________________________________________
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,
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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
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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.
_________________________________________________
BEFORE:
MINER, SACK, HALL, Circuit Judges:
_________________________________________________
This is one of two opinions addressing appeals from a judgment of the United States
District Court for the Eastern District of New York (Weinstein, J.) dismissing this multidistrict
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litigation. This opinion concerns the March 2005 order of the district court denying plaintiffs’
motions to remand seven actions to state court. Because we agree that the district court has
jurisdiction over these actions under the federal officer removal statute, 28 U.S.C. § 1442(a)(1),
the order of the district court is AFFIRMED.
GERSON H. SMOGER, Smoger & Associates, Oakland,
California, MARK R. CUKER, Williams Cuker Berezofsky,
Philadelphia, Pennsylvania, for Plaintiffs-Appellants Joe Isaacson
and Phillys Lisa Isaacson.
CHRISTOPHER E. BUCKEY, Shanley, Sweeney, Reilly & Allen,
P.C., Albany, New York, for Plaintiff-Appellant J. Michael
Twinam.
J. MARK ENGLEHART, Beasley, Allen, Crow, Methvin , Portis
& Miles, P.C., Montgomery, Alabama for Plaintiffs-Appellants
Robert S. Bauer and Sandra J. Bauer.
MARK I. BRONSON, Newman, Bronson & Wallis, St. Louis,
Missouri, for Plaintiffs-Appellants Sheryl A. Walker, et al.
DAVID E. CHERRY, Campbell, Cherry, Harrison, Davis & Dove,
P.C., Waco, Texas, for Plaintiffs-Appellants Sherman Clinton
Stearns and Dortha Monyene Stearns.
JAMES BOANERGES, Cooper, Sprague, Jackson & Boanerges,
P.C., Houston, Texas, for Plaintiffs-Appellants Charles T.
Anderson and Vickey S. Garncarz.
JOAN N. HARROP, Gomien & Harrop, Morris, Illinois,
WILLIAM F. FITZPATRICK, Fitzpatrick & Fitzpatrick, Chicago,
Illinois, 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, New York, for Defendants-Appellees.
SCOTT L. NELSON, BRIAN WOLFMAN, Public Citizen
Litigation Group, Washington, District of Columbia, for Amicus
Curiae Public Citizen, Inc.
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WILLIAM A. ROSSBACH, TIMOTHY M. BECHTOLD,
Rossbach Hart Bechtold, P.C., Missoula, Montana, P.B.
ONDERDONK, JR., Indianapolis, Indiana (Anne Bloom,
Sacramento, California, on the brief), for Amici Curiae Veterans
and Military Service Organizations.
HALL, Circuit Judge:
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. Phillip Morris Cos., Inc., 127 S. Ct. 2301, 2308 (2007).
We therefore affirm the orders of the district court denying the plaintiffs’ motions to remand.
BACKGROUND
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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 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(1997), and Ortiz v. Fibreboard Corp., 527 U.S. 815 (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.
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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 (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 (2002). See
Dow Chem. Co., 539 U.S. at 112. 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.
In its jurisdictional ruling, the district court found that Defendants had satisfied the
requirements for invoking the federal officer removal statute because: (1) they were “persons”
within the meaning of the statute; (2) they were “acting under color of a federal office,” because
the Government specified the formulation of Agent Orange, was aware that it contained dioxin,
knew about the “dioxin ‘problem,’” and controlled the method of warning; and (3) the
government contractor defense was a colorable federal law defense. See Agent Orange II, 304 F.
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Supp. 2d at 449–51. The court further noted the policy considerations supporting removal: (1)
the scattering of Agent Orange claims throughout the state courts would have a chilling effect on
manufacturers’ acceptance of government contracts; (2) the vagaries of state tort law would deter
military procurement; and (3) state courts may circumvent Boyle v. United Technologies Corp.,
487 U.S. 500 (1988), the Supreme Court’s preeminent decision on the government contractor
defense, if they are unsympathetic to defendants. Agent Orange II, 304 F. Supp. 2d at 451. The
court observed that its present decision was contrary to its prior decision in Ryan v. Dow
Chemical Co., 781 F. Supp. 934 (E.D.N.Y. 1992), where it had held, in virtually identical
circumstances and with roughly the same defendants, that the federal officer removal statute did
not apply. See Agent Orange II, 304 F. Supp. 2d at 445. The court explained its reversal of
course by noting that Ryan was “no longer persuasive” and that Ryan’s holding had been called
into question by the Fifth Circuit in Winters v. Diamond Shamrock Chemical Co., 149 F.3d 387,
392 (5th Cir. 1998). See Agent Orange II, 304 F. Supp. 2d at 445.
Plaintiffs appeal the district court’s memorandum and order finding removal jurisdiction
over their state law claims and the district court’s later order denying all motions to remand.
DISCUSSION
We review de novo the district court’s denial of the motions to remand. See Whitaker v.
Am. Telecasting, Inc., 261 F.3d 196, 201 (2d Cir. 2001). The federal officer removal statute
provides that a case may be removed from state to federal court when the case is brought against
“[t]he 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
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act under color of such office.” 28 U.S.C. § 1442(a)(1). In this case, because they are not
federal officers themselves, Defendants must satisfy a three-pronged test to determine whether
they may effect removal. First, they must show that they are “person[s]” within the meaning of
the statute who “act[ed] under [a federal] officer.” Id. Second, they must show that they
performed the actions for which they are being sued “under color of [federal] office.” Id. Third,
they must raise a colorable federal defense. Jefferson County v. Acker, 527 U.S. 423, 431
(1991). We consider each of these requirements in turn.
I. Corporate Persons and the “Acting Under” Requirement
To satisfy the first requirement, Defendants must show that they were “person[s] acting
under” “color of” a federal officer. As an initial matter, we address whether Defendants are
“persons.”
A. Corporate Persons Under the Federal Officer Removal Statute
Section 1442 extends removal power to the United States, its agencies, federal officers,
and persons acting under federal officers. Although Plaintiffs argued in their briefs that the
defendant chemical companies do not fall under § 1442 because they are not natural persons,
another panel of this Court decided, after briefs were due in this case, that corporate persons
qualify as “persons” under § 1442. In re Methyl Tertiary Butyl Esther (“MTBE”) Prods. Liab.
Litig., 488 F.3d 112, 124 (2d Cir. 2007). Although MTBE thus forecloses any argument that
corporations are not “persons” under the federal officer removal statute, because that case did
not detail its reasoning on this issue, we take this opportunity to explain that result.
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By statute, we presume that the term “person” includes corporations “unless the context
indicates otherwise.” 1 U.S.C. § 1. The context in which the term “person” is used in § 1442
gives no indication that corporations are excluded. In fact, § 1442 also lists other non-natural
entities, such as the United States and its agencies, which suggests that interpreting “person” to
include corporations is consistent with the statutory scheme. The presumption is not
irrebuttable, and it can be overcome where the legislative history of the statute under
consideration shows that “the normal rule of construction set forth in 1 U.S.C. § 1 would run
contrary to the statutory intent.” Toy Mfrs. of Am., Inc. v. Consumer Prod. Safety Comm’n, 630
F.2d 70, 74 (2d Cir. 1980). As a federal district court in California observed in Krangel v.
Crown, 791 F. Supp. 1436 (S.D. Cal. 1992), the legislative history of § 1442 reflects only “the
absence of express congressional intent to expand the protection of the federal officer removal
provision beyond all federal officers to include non-natural entities.” Id. at 1442. The Krangel
Court found that the term “person” did not include corporate persons based on this absence. As
noted above, however, 1 U.S.C. § 1 establishes a baseline presumption that the term “person”
includes corporate persons; the legislative history of § 1442 is relevant only to the extent it
reflects a contrary statutory intent. Because the legislative history is devoid of evidence
suggesting that Congress intended § 1442 not apply to corporate persons, the ordinary
presumption established in 1 U.S.C. § 1 controls.
The 1996 amendment of § 1442 to include agencies does not change the result. Prior to
its amendment in 1996, the statute allowed removal in cases against “[a]ny officer of the United
States or any agency thereof, or person acting under him, for any act under color of such office.”
28 U.S.C. § 1442(a)(1) (1948). As written, the pre-1996 version was unclear on whether it
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applied only to actions against officers or if it also applied to actions against the United States
and its agencies. The amendment clarified that it applied to “[t]he United States,” “any agency
thereof,” “any officer . . . of the United States,” “any officer . . . of any agency,” and “any person
acting under [any such] officer.” Id. Whether or not the term “person” included corporations
was, and remains, an entirely separate issue from whether or not the statute applied to both
agencies and agency officers. The 1996 modification with respect to the latter, therefore, cannot
be interpreted as reflecting any preexisting understandings with respect to the former.
Based on these considerations, we agree with the panel in MTBE that the term “person”
includes corporate persons. We also note that in so holding, our Circuit is in agreement with the
Fifth Circuit, see Winters, 149 F.3d at 398, and several district courts, see Good v. Armstrong
World Indus., Inc., 914 F. Supp. 1125, 1127–28 (E.D. Pa. 1996); Pack v. AC & S, Inc., 838 F.
Supp. 1099, 1102–03 (D. Md. 1993); Fung v. Abex Corp., 816 F. Supp. 569, 572 (N.D. Cal.
1992).
B. The “Acting Under” Requirement
Defendants must show that they were “acting under” a federal officer. The words “acting
under” are to be interpreted broadly, and the statute as a whole must be liberally construed. See
Watson, 127 S. Ct. at 2304–05; Willingham v. Morgan, 395 U.S. 402, 407 (1969) (“Th[e] policy
[of providing the protection of a federal forum to federal officers] should not be frustrated by a
narrow, grudging interpretation of § 1442(a)(1).”).
In Watson, 127 S. Ct. 2301, the Supreme Court expanded on what kind of relationship
between the federal officer and the private actor is needed to satisfy the “acting under”
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requirement. There, the Court considered whether the Philip Morris Companies were “acting
under” a federal officer or agency when they tested and advertised their cigarettes in compliance
with the Federal Trade Commission’s detailed regulations. Id. The Court held that they did not
qualify as “acting under” a federal officer, reasoning that the “help or assistance necessary to
bring a private person within the scope of the [federal officer removal] statute does not include
simply complying with the law.” Id. at 2307. Instead, an entity “act[s] under” a federal officer
when it “assist[s], or . . . help[s] carry out, the duties or tasks of the federal superior.” Id. In
other words, there must exist a “special relationship” between the two. Id. at 2310. For
example, close supervision of the private entity by the Government would constitute such a
special relationship:
[T]he private contractor in such cases is helping the Government to
produce an item that it needs. The assistance that private
contractors provide federal officers goes beyond simple
compliance with the law and helps officers fulfill other basic
governmental tasks. In the context of [Winters, 149 F.3d 387], for
example, Dow Chemical fulfilled the terms of a contractual
agreement by providing the Government with a product that it used
to help conduct a war. Moreover, at least arguably, Dow
performed a job that, in the absence of a contract with a private
firm, the Government itself would have had to perform.
Id. at 2308.
Similarly, in this case, Defendants contracted with the Government to provide a product
that the Government was using during war—a product that, in the absence of Defendants, the
Government would have had to produce itself. Unlike the tobacco companies in Watson,
Defendants received delegated authority; they were not simply regulated by federal law.
Through their contracts with the Government to produce Agent Orange, the chemical companies
“assist[ed]” and “help[ed] carry out[] the duties or tasks of” officers at the Department of
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Defense. See id. at 2307. Defendants thus had the “special relationship” with the Government
required by the “acting under” prong.
II. “Under Color of” Federal Office
The second prong requires Defendants to show that the acts complained of—that is,
producing dioxin through the manufacturing of Agent Orange— were taken “under color of
[federal] office.” 28 U.S.C. § 1442(a)(1). Over time, this second prong has come to be known
as the causation requirement. See Maryland v. Soper (No. 1), 270 U.S. 9, 33 (1926). To satisfy
this requirement as applied to a federal officer, “[i]t must appear that the prosecution of him for
whatever offense has arisen out of the acts done by him under color of federal authority and in
enforcement of federal law, and he must by direct averment exclude the possibility that it was
based on acts or conduct of his, not justified by his federal duty.” Id. at 33. The hurdle erected
by this requirement is quite low, as “[t]he statute does not require that the prosecution must be
for the very acts which the officer admits to have been done by him under federal authority.” Id.Rather, “[i]t is enough that his acts or his presence at the place in performance of his official
duty constitute the basis, though mistaken or false, of the state prosecution.” Id. Translated to
non-governmental corporate defendants, such entities must demonstrate that the acts for which
they are being sued—here, the production of dioxin in Agent Orange—occurred because of what
they were asked to do by the Government. We credit Defendants’ theory of the case when
determining whether a causal connection exists. Jefferson County v. Acker, 527 U.S. 423, 432
(1999).
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We agree with the district court that the “acting under” prong is satisfied here. To show
causation, Defendants must only establish that the act that is the subject of Plaintiffs’ attack
(here, the production of the byproduct dioxin) occurred while Defendants were performing their
official duties. See Willingham, 395 U.S. at 409; see also Soper, 270 U.S. at 33. Defendants
have made the required showing. According to their theory of the case, the Government knew
that Agent Orange contained dioxin, and the Government controlled the method of formulation.
The action that Plaintiffs challenge, the production of dioxin, naturally would have occurred
during the performance of these government-specified duties. And even if Plaintiffs were to
prove that the dioxin contamination occurred because of an act not specifically contemplated by
the government contract, it is enough that the contracts gave rise to the contamination. Indeed,
whether the challenged act was outside the scope of Defendants’ official duties, or whether it
was specifically directed by the federal Government, is one for the federal—not state—courts to
answer. See Willingham, 395 U.S. at 409.
Plaintiffs’ arguments to the contrary are unpersuasive. They first claim that Agent
Orange was an off-the-shelf product and, therefore, could not have been manufactured under
color of federal office. As we point out in our companion opinion, however, commercially
available products did not contain the Agent Orange herbicides in a concentration as high as that
found in Agent Orange. See In re “Agent Orange” Prod. Liab. Litig., — F.3d — (2008).
Plaintiffs’ off-the-shelf argument thus fails.
Plaintiffs also suggest that the production of Agent Orange was not under color of federal
office because Defendants voluntarily bid for the government contracts under which they
produced Agent Orange. We find no authority for the suggestion that a voluntary relationship
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somehow voids the application of the removal statute. To require the relationship to have been
not only “special” but also coerced makes little sense in light of the statute’s purpose, and it is
particularly strange when applied to natural persons who are acting under a federal officer—all
of whom, we would trust, are doing so voluntarily.
In light of the broad interpretation that we must afford the requirement that there be a
causal connection between Defendants’ federal duties and the conduct for which they are being
sued, Defendants have satisfied the “acting under” prong of the statute.
III. Colorable Federal Defense
Finally, Defendants must raise a colorable federal defense. Jefferson County, 527 U.S. at
431; Mesa v. California, 489 U.S. 121, 132–34 (1989). The district court found that Defendants
had raised a colorable government contractor defense. Agent Orange II, 304 F. Supp. 2d at 450.
As described more fully in our companion opinion, the government contractor defense protects a
government contractor from liability under state tort law when the Government approved the
product’s general design, the product conformed to that design, and the contractor warned the
Government of the risks of the product. See In re “Agent Orange” Prod. Liab. Litig., — F.3d —
(2008).
Courts have imposed few limitations on what qualifies as a colorable federal defense. At
its core, the defense prong requires that the defendant raise a claim that is “defensive” and
“based in federal law.” Mesa, 489 U.S. at 129–30. More specifically, such defense must “aris[e]
out of [the party’s] official duties.” Arizona v. Manypenny, 451 U.S. 232, 241 (1981). Given
that the removal statute more generally is “not ‘narrow’ or ‘limited’” and that one of its purposes
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is “to have such defenses litigated in the federal courts,” the federal defense requirement is
satisfied in “all cases where federal officers can raise a colorable defense arising out of their duty
to enforce federal law.” Willingham, 395 U.S. at 406–07. To be “colorable,” the defense need
not be “clearly sustainable,” as the purpose of the statute is to secure that the validity of the
defense will be tried in federal court. Id. at 407.
The government contractor defense, which is a creature of federal common law and
serves to protect the interests of the Government rather than the contractor defendant, see In re
“Agent Orange” Prod. Liab. Litig., — F.3d — (2008), is “defensive” and “federal,” Mesa, 489
U.S. at 129–30. Moreover, as asserted by Defendants in this case, the defense clearly “ar[ose]
out of [Defendants’] duty” pursuant to their contractual relationship with the federal
Government. Willingham, 395 U.S. at 407; see also Manypenny, 451 U.S. at 241. And as found
by the district court, Defendants’ assertions satisfy the particular requirements of the defense.
Agent Orange II, 304 F. Supp. 2d at 450.
Plaintiffs object, however, based on an argument that (1) only “official immunity
defenses” qualify as “colorable federal defenses,” and (2) the government contractor defense is
not an “official immunity defense” and, therefore, cannot satisfy the federal defense requirement.
Contrary to Plaintiffs’ claims, we find no support for the proposition that only “official immunity
defenses” satisfy the “colorable federal defense” requirement. Although Willingham states that
“one of the most important reasons for removal is to have the validity of the defense of official
immunity tried in a federal court,” 395 U.S. at 407, the Court proffers official immunity as only
one reason for removal; it does not limit removal to situations that involve official immunity.
Furthermore, in Mesa, the Supreme Court confirms that in Cleveland, Columbus & Cincinnati.
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R.R. v. McClung, 119 U.S. 454 (1886), the defendant, a federal customs collector being sued for
violation of his federal duty, satisfied the colorable federal defense requirement, not by asserting
official immunity, but by defending on the basis that federal law did not impose any such duty.
Mesa, 489 U.S. at 129–30. Compliance with federal law, therefore, provides a colorable federal
defense under some circumstances, but it is not coterminous with an immunity defense.
Because we find that a defense need not be an immunity defense to qualify as a colorable
federal defense under the removal statute, we need not decide here whether the government
contractor defense is an immunity defense—an issue on which courts have disagreed. Compare
Murray v. Northrop Grumman Info. Techs., Inc., 444 F.3d 169, 175 (2d Cir. 2006) (citing Boyle
as analogous to the holding that a private contractor administering a congressional job training
program for Irish nationals was entitled to official immunity from state tort liability), Densberger
v. United Tech. Corp., 297 F.3d 66, 75 (2d Cir. 2002) (noting that Boyle “extended the immunity
afforded to the federal government’s discretionary functions under the Federal Tort Claims Act
to government contractors”), and Kerstetter v. Pac. Scientific Co., 210 F.3d 431, 435 (5th Cir.
2000) (“Government contractor immunity is derived from the government’s immunity from suit
where the performance of a discretionary function is at issue.”), with United States ex rel. Ali v.
Daniel, Mann, Johnson & Mendenhall, 355 F.3d 1140, 1147 (9th Cir. 2004) (“[T]he government
contractor defense does not confer sovereign immunity on contractors.”), and In re Joint E. & S.
Dist. N.Y. Asbestos Litig. (Grispo v. Eagle-Picher Indus., Inc.), 897 F.2d 626, 631 (2d Cir. 1990)
(noting that Boyle did not grant military contractors “blanket immunity,” but rather “hinge[d] the
military contractor defense upon the military contractor’s having followed a
government-approved requirement contrary to a state tort law duty”).
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* * *
The district court properly found that it had jurisdiction over the present actions under the
federal officer removal statute. Defendants are “persons” within the meaning of the statute who
are entitled to stand in the shoes of a federal officer because of the “special relationship” they
shared with the Government. The production of dioxin occurred “under color of [federal] office”
because it occurred while Defendants were performing their “official” duty, pursuant to
government contract, of manufacturing Agent Orange. Finally, Defendants have adequately
raised the government contractor defense, which qualifies as a colorable federal defense.
CONCLUSION
The order of the District Court denying Defendants’ motions to remand is AFFIRMED.
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