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Baker v. Atlantic Richfield Company

United States District Court, N.D. Indiana, Hammond Division

September 30, 2019

SHERRIE BAKER, et al., Plaintiffs,



         Plaintiffs 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.

         A. 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.[1] (DE 6.)

         B. 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.

         To 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.”[2] 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).

         C. Analysis

         The 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.[3]

         (1) The Atlantic Defendants’ Government Contracts Are Too Few

         One who 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.”).

         Things 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. Mo. 2016).[4]

         On the 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.”).

         Here, 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 suffice.

         The 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 Defendants.

         Lastly, 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.

         (2) The Atlantic Defendants Merely ...

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