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.)