454 F.Supp.3d 1132
D.N.M.2020Background
- New Mexico (Attorney General) sued Monsanto, Solutia, and Pharmacia in state court for PCB contamination of New Mexico natural resources, asserting public nuisance, design defect, failure-to-warn, negligence, unjust enrichment, and Unfair Practices Act claims and seeking damages, injunctive relief, and penalties.
- Monsanto removed to federal court asserting (a) federal-officer removal under 28 U.S.C. §1442; (b) federal-question/federal-enclave jurisdiction under 28 U.S.C. §1331; and (c) that federal common law or federal statutes displace state law.
- Monsanto relied on historical sales to the military, letters asserting priority orders under wartime authorities, and various exhibits; most sales were to government contractors, not direct contracts with the United States.
- The State argued Monsanto was a vendor/subcontractor, not acting "under" federal officers; that the alleged tortious conduct (concealment, inadequate warnings, disposal instructions, creation of nuisance) was not directed by the Government; and that federal defenses do not establish removability.
- The court reviewed the record and precedent, found Monsanto did not show the requisite "acting under" relationship, causal nexus, or colorable federal defenses for §1442 removal; found the claims did not arise on federal enclaves; and held federal common law or federal statutes did not completely preempt the State's pleaded state-law causes of action.
- The Court granted the State's motion to remand and directed remand to the First Judicial District Court, Santa Fe County, New Mexico.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Federal-officer removal (§1442): whether Monsanto "acted under" a federal officer and may remove | State: Monsanto was a vendor/subcontractor; Government did not direct manufacture, warnings, disposal, or concealment relevant to claims | Monsanto: historical sales to military, priority letters and wartime directives show it acted under federal authority | Held: Monsanto failed to show an "acting under" relationship, required causal nexus, or a colorable federal defense; §1442 removal denied |
| Causal nexus requirement for §1442 | State: Plaintiff's claims (concealment, failure to warn, disposal, nuisance) are not causally connected to any government direction | Monsanto: government procurement/priority orders tied its production/sales to federal needs | Held: Letters and sales to contractors did not establish government compulsion or control over the specific acts causing New Mexico harm; causal nexus lacking |
| Federal-enclave jurisdiction / federal-question under §1331 | State: Claims concern State-owned resources located in New Mexico; suit does not arise on federal enclaves | Monsanto: some contaminated waterways are on/near federal enclaves and federal common law governs transboundary pollution | Held: Plaintiff disclaimed federal enclaves; partial or adjacent occurrence insufficient; no federal-enclave jurisdiction; federal common law does not completely preempt state claims |
| Colorable federal defenses (government-contractor doctrine; Defense Production Act) as basis for removal | State: Defenses are ordinary federal defenses and cannot convert state claims into removable federal claims | Monsanto: government-contractor defense and DPA immunity justify federal defenses and removal | Held: Monsanto cannot invoke government-contractor defense (no direct contracts/specifications shown) or DPA immunity (no showing of compelled production); defenses are insufficient to support removal |
Key Cases Cited
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (§1442 "acting under" requires unusually close relationship or government supervision beyond routine regulation)
- Boyle v. United Technologies Corp., 487 U.S. 500 (1988) (elements of government-contractor defense to tort liability)
- City of Milwaukee v. Illinois & Michigan, 451 U.S. 304 (1981) (Clean Water Act amendments displace federal common-law nuisance claims asserted in Milwaukee I)
- Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) (well-pleaded complaint rule: federal-question jurisdiction depends on plaintiff's properly pleaded claim)
- Felix v. Lucent Techs., Inc., 387 F.3d 1146 (10th Cir. 2004) (ordinary federal preemption is a defense and does not make a state-law complaint removable)
- New Mexico v. Gen. Elec. Co., 467 F.3d 1223 (10th Cir. 2006) (CERCLA can preempt particular remedies but does not necessarily completely preempt state-law claims)