Expansion of the Federal Officer Removal Statute to Corporate Defendants: The Agent Orange Litigation Precedent

Expansion of the Federal Officer Removal Statute to Corporate Defendants: The Agent Orange Litigation Precedent

Introduction

The litigation involving multiple plaintiffs-appellants against several major chemical corporations presents a significant development in the application of the federal officer removal statute, 28 U.S.C. § 1442(a)(1). This case centers around the production of Agent Orange by chemical companies contracted by the U.S. Government during the Vietnam War, and subsequent state court lawsuits alleging violations of state laws due to the harmful effects of Agent Orange exposure.

Key issues in this case include the interpretation of "person" under the removal statute to include corporate entities, the application of the "acting under" requirement to corporations acting under federal contracts, and the acceptance of the government contractor defense as a colorable federal defense. The parties involved consist of multiple plaintiffs-appellants, including individual plaintiffs and corporate entities, against defendants-appellees comprising major chemical companies contracted by the Government.

Summary of the Judgment

The United States Court of Appeals for the Second Circuit affirmed the decisions of the District Court, which had denied Plaintiffs' motions to remand the cases to state courts. The core of the affirmation rested on the application of the federal officer removal statute, which permitted the removal of cases from state to federal courts under specific conditions. The court held that the chemical companies were "persons" under the statute, acted under federal officers due to their government contracts for producing Agent Orange, and had sufficiently established a causal connection between their official duties and the production of the harmful byproduct dioxin. Additionally, the defendants successfully raised a colorable federal defense through the government contractor defense, which justified their removal to federal court.

Analysis

Precedents Cited

The judgment references several key cases that influenced the court’s decision:

  • AMCHEM PRODUCTS, INC. v. WINDSOR, 521 U.S. 591 (1997): Established the framework for class action settlements and their effect on subsequent litigation.
  • ORTIZ v. FIBREBOARD CORP., 527 U.S. 815 (1999): Clarified that plaintiffs are not bound by prior settlement agreements unless they have been properly notified and have consented.
  • Watson v. Philip Morris Cos., 127 S.Ct. 2301 (2007): Expanded the interpretation of "acting under" a federal officer, particularly in the context of private contractors complying with federal regulations.
  • Winter's v. Diamond Shamrock Chemical Co., 149 F.3d 387 (5th Cir. 1998): Supported the inclusion of corporate entities under the definition of "persons" for removal purposes.
  • JEFFERSON COUNTY v. ACKER, 527 U.S. 423 (1999): Elaborated on the "three-pronged test" for removal under § 1442(a)(1).
  • Mesas v. California, 489 U.S. 121 (1989): Discussed the nature of a colorable federal defense and its sufficiency for removal.

Legal Reasoning

The court employed a methodical approach to apply the three-pronged test established in JEFFERSON COUNTY v. ACKER:

  • Definition of "Person": The court affirmed that corporate entities qualify as "persons" under § 1442(a)(1), referencing the presumption in 1 U.S.C. § 1 and relying on subsequent case law, including IN RE METHYL TERTIARY Butyl Esther Prods. Liab. Litig..
  • "Acting Under" Requirement: Drawing from Watson v. Philip Morris Cos., the court determined that the Defendants were acting under federal officers due to their contractual obligations to produce Agent Orange, which was under the supervision and specifications of the Department of Defense.
  • Colorable Federal Defense: The Defendants successfully invoked the government contractor defense, a recognized federal defense, satisfying the requirement for removal. The court emphasized that the defense does not need to be an immunity defense but must be rooted in federal law.

Additionally, the court highlighted policy considerations, such as preventing the chilling of government contracting and ensuring uniformity in the enforcement of federal contracts, as supporting factors for applying the removal statute in this context.

Impact

This judgment sets a significant precedent by affirming that corporate defendants can be considered "persons" under the federal officer removal statute when acting under federal contracts. It clarifies the breadth of the "acting under" requirement, emphasizing that a special relationship with the government, such as a contractual obligation to perform specific tasks, suffices for removal.

Furthermore, by accepting the government contractor defense as a valid colorable federal defense, the court broadens the scope of defenses that can facilitate removal to federal court. This may influence future litigation involving government contracts and the accountability of contractors under state laws.

The decision also underscores the judiciary's role in interpreting removal statutes in light of evolving relationships between the government and private contractors, potentially leading to more federal jurisdiction over cases that intertwine federal directives with private enterprise actions.

Complex Concepts Simplified

Federal Officer Removal Statute (28 U.S.C. § 1442(a)(1))

This statute allows defendants to move a lawsuit from a state court to a federal court if they are acting under the authority of a federal officer or agency. Essentially, if a defendant is performing duties specified by a federal entity, they can request the case to be heard in a federal forum.

"Acting Under"

To "act under" a federal officer means that the defendant is performing tasks or duties as directed by a federal authority, not merely complying with general federal laws or regulations. It implies a direct relationship where the defendant is assisting the federal officer in fulfilling governmental functions.

Colorable Federal Defense

A colorable federal defense is a legally sufficient defense that is based on federal law and could potentially defeat the plaintiff's claim. It does not need to be proven yet but must be plausible enough for the case to be heard in federal court.

Government Contractor Defense

This defense allows government contractors to shield themselves from state law liabilities if they were following government-mandated specifications, design approvals, and risk warnings while performing their contractual duties.

Conclusion

The Second Circuit's affirmation in this case marks a pivotal extension of the federal officer removal statute to encompass corporate entities engaged in government contracts. By recognizing corporations as "persons" under the statute and affirming their status as acting under federal officers through special contractual relationships, the court has broadened the scope of federal jurisdiction in cases intersecting federal directives and private sector actions. Additionally, the acceptance of the government contractor defense as a viable colorable federal defense ensures that such defenses are appropriately litigated within federal courts, maintaining consistency and fairness in the enforcement of federal contracts. This decision not only impacts the parties involved in the Agent Orange litigation but also sets a precedent that will influence future litigation involving government contractors and their interactions under federal directives.

Case Details

Year: 2008
Court: United States Court of Appeals, Second Circuit.

Judge(s)

Peter W. Hall

Attorney(S)

Gerson H. Smoger, Smoger Associates, Oakland, CA, Mark R. Cuker, Williams Cuker Berezofsky, Philadelphia, PA, for Plaintiffs-Appellants Joe Isaacson and Phyllis Lisa Isaacson. Christopher E. Buckey, Shanley, Sweeney, Reilly Allen, P.C., Albany, NY, for Plaintiff-Appellant J. Michael Twinam. J. Mark Englehart, Beasley, Allen, Crow, Methvin, Portis Miles, P.C., Montgomery, AL, for Plaintiffs-Appellants Robert S. Bauer and Sandra J. Bauer. Mark I. Bronson, Newman, Bronson Wallis, St. Louis, MO, for Plaintiffs-Appellants Sheryl A. Walker, et al. David E. Cherry, Campbell, Cherry, Harrison, Davis Dove, P.C., Waco, TX, for Plaintiffs-Appellants Sherman Clinton Stearns and Dortha Monyene Stearns. 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, IL, 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, D.C., for Amicus 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, CA, on the brief), for Amici Curiae Veterans and Military Service Organizations.

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