Federal Officer Removal Jurisdiction Upheld in Agent Orange Cases

In the recent decisions, the Second Circuit, affirming the rulings of U.S. District Judge Jack Weinstein, held that: 1) the federal court had subject matter jurisdiction over the U.S. veterans' claims based on the federal officer removal statute, Isaacson v. Dow Chem. Co., 517 F.3d 129 (2d Cir. 2008); 2) the 'government contractor defense' precluded plaintiffs' claims, i.e., the manufacturers were not liable because the herbicide products were made in accordance with the government's specifications, In re Agent Orange Prod. Liab. Litig., 517 F.3d 76 (2d Cir. 2008); and 3) the chemical companies' manufacture and supply of the chemical herbicides did not violate customary international law norms proscribing the use of chemical weapons and, thus, did not form the basis of a claim under the Alien Tort Statute, Vietnam Association for Victims of Agent Orange v. Dow Chem Co., 517 F.3d 104 (2d Cir. 2008). (By orders dated May 7, 2008, the Second Circuit denied petitions for rehearing and rehearing en banc of these decisions.)

In this article, we discuss the issue of federal officer removal, i.e., the removal of a state action to federal court on the ground that the government had such control over the defendant that the defendant was essentially acting as a federal officer. This issue can arise in the product liability context, particularly with manufacturers providing products to the U.S. military and other forces engaged in ongoing conflicts around the globe. As the Second Circuit recognized in Isaacson, permitting private defendants to invoke federal officer removal fulfills the 'purpose of protecting persons who, through contractual relationships with the Government, perform jobs that the Government otherwise would have performed.' 517 F.3d at 133.