United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
S. VAN BOKKELEN UNITED STATES DISTRICT JUDGE
Sherrie Baker, et al., filed a motion to remand this case
back to the Lake County Superior Court. For the reasons
below, this Court grants Plaintiffs’ motion.
Overview of the Case
Plaintiffs filed a complaint in state court against multiple
defendants, claiming that, for decades, they
“release[d] . . . dangerously large amounts of toxins
into the environment” and contaminated the soil
underneath Plaintiffs’ homes by producing materials
such as lead and zinc oxide. (DE 13 at 2–4.) Defendants
Atlantic Richfield Company and BP West Coast Products LLC
(collectively, the “Atlantic Defendants”) timely
removed the case on the basis of the Federal Officer Removal
Statute, 28 U.S.C. § 1442(a)(1). (DE 1.) Separately,
Defendants E. I. du Pont de Nemours and Company and The
Chemours Company (collectively, the “DuPont
Defendants”) filed their own notice of removal on the
same basis. (DE 6.)
Standard of Review
Plaintiffs have not brought any federal claims, and complete
diversity does not exist. Nevertheless, § 1442 allows a
defendant to remove the case when the complained-of conduct
was performed “’under color’ of federal
office, regardless of whether the suit could originally have
been brought in a federal court.” Willingham v.
Morgan, 395 U.S. 402, 406 (1969). The purpose of §
1442 is to “ensure a federal forum in any case where a
federal official is entitled to raise a defense arising out
of his official duties.” Arizona v. Manypenny,
451 U.S. 232, 241 (1981). “This policy should not be
frustrated by a narrow, grudging interpretation of §
1442.” Willingham, 395 U.S. at 407.
enjoy the benefit of § 1442, the removing defendant
“must show that it was a (1) ‘person, ’ (2)
‘acting under’ the United States, its agencies,
or its officers (3) that has been sued ‘for or relating
to any act under color of such office, ’ and (4) has a
colorable federal defense to the plaintiff’s
claim.” Ruppel v. CBS Corp., 701 F.3d
1176, 1180–81 (7th Cir. 2012) (quoting 28 U.S.C. §
1442(a)(1)). This burden, however, is not so great that the
defendant must “win his case before he can have it
removed.” Willingham, 395 U.S. at 407.
Instead, if a court must resolve the merits of the complaint
to determine whether § 1442 jurisdiction exists, then
removal is appropriate. Jefferson County v. Acker,
527 U.S. 423, 432 (1999).
Atlantic and DuPont Defendants operated facilities during the
World War II period, where they produced materials the
government needed to support the war effort. They rely on
these operations to establish § 1442 jurisdiction.
However, the bulk of their operations occurred outside this
time period. Thus, remand is appropriate.
The Atlantic Defendants’ Government Contracts Are Too
acts pursuant to a government contract acts under a federal
officer. Ruppel, 701 F.3d at 1181
(“Ruppel’s injury occurred while it ‘acted
under’ a federal officer.”). And when, in the
absence of that contract, the defendant never would have
performed that action, he has acted under color of federal
authority. Willingham, 395 U.S. at 409 (“[The
defendants’] relationship to [the plaintiff] derived
solely from their official duties.”).
get dicey, however, when the defendant regularly performs an
activity, but only sometimes at the behest of the government.
For instance, the Fifth Circuit in Hansen v.
Johns-Manville Prods. Corp., 734 F.2d 1036, 1045 (5th
Cir. 1984), surmised that the government contractor defense
would not apply where the defendant employer “performed
work under government contract for only five of [the
employee’s] twenty-six years of employment.” The
Eastern District of Missouri used this logic to deny §
1442 jurisdiction: “the amount of PCBs manufactured by
[the defendant] . . . at the direction of the government . .
. relative to the total amount of PCBs allegedly persisting
in the environment and food chain, is simply too small to
satisfy” the under-color-of-federal-office element.
Bailey v. Monsanto Co., 176 F.Supp.3d 853, 870 (E.D.
flip side, where the defendant acts more often than not at
the behest of the government, removal can be proper. Cf.
Ruppel, 701 F.3d at 1181 (“Thus, the gravamen of
Ruppel’s complaint occurred while CBS acted under color
of federal authority.”); Savoie v. Pa. Gen. Ins.
Co., 2017 U.S. Dist. LEXIS 84804, at *28 (E.D. La. June
2, 2017) (“[T]he majority of the [asbestos-containing]
ships built at Avondale were built pursuant to contracts with
the federal government.”).
the Atlantic Defendants note that, “[i]n 1944, [they]
held at least five defense contracts, under the terms of
which it supplied $837, 000 worth of zinc oxide to the U.S.
Army.” (DE 56 at 7.) However, while these contracts
could conceivably constitute the Atlantic Defendants’
entire output for 1944, this still leaves them with only one
year in which they actually acted under a federal officer,
given that the Atlantic Defendants produced toxic materials
from 1938 to 1965. (DE 13 ¶ 68.) Elsewhere, the Atlantic
Defendants cite a plethora of regulations spanning from 1941
to 1946. (DE 1 ¶¶ 16–18.) Yet, even granting
that every ounce of production during that period was at the
behest of the government-a wholly unwarranted assumption, as
will be seen later-this leaves the Atlantic Defendants
operating under government orders for roughly one fifth of
the relevant time period. Whether this is enough is
debatable. One year out of twenty-eight, however, does not
Fifth Circuit faced a similar situation in which the
government contracted with the defendants to manufacture an
herbicide the defendants had always produced. See Winters
v. Diamond Shamrock Chem Co., 149 F.3d 387 (5th Cir.
1998). However, that case is distinguishable. There, the
defendants would ordinarily dilute the herbicide to make it
safe for commercial application, but the government wanted a
more potent version, which they dubbed “Agent
Orange.” Id. at 399. Thus, the defendants
needed to make a significantly more dangerous version of
their product. Furthermore, the plaintiffs’ lawsuit
pertained only to the Agent Orange variant of the herbicide.
Id. Here, however, Plaintiffs are suing the Atlantic
Defendants for the consequences of all of their production,
not just the small portion that occurred during the War.
Therefore, Winters does not save the Atlantic
the fact that § 1442 covers acts that merely
“relat[e] to any act under color of [federal]
office” does not change the situation. Congress added
the “or relating to” language in 2011, and the
Third Circuit in In re Commonwealth’s Motion to
Appoint Counsel Against or Directed to Def. Ass’n of
Phila., 790 F.3d 457 (3d Cir. 2015), examined the
significance of this addition. There, the court found that
the lawsuit before it “’relate[d] to’ acts
taken under color of federal office” because the
defendants’ “employment with [a federal officer]
is the very basis of the” proceedings. Id. at
472. Here, on the other hand, Plaintiffs’ lawsuit
relates to actions the Atlantic and DuPont Defendants started
before the War and continued after the War. The 2011
amendment thus does not change the analysis.
The Atlantic Defendants Merely ...