RODNEY A. MILLER, Plaintiff-Appellant, v. DIAMOND SHAMROCK CO.; DIAMOND SHAMROCK CHEMICAL COMPANY, also known as Occidental Chemical Corporation; DOW CHEMICAL COMPANY; MONSANTO COMPANY; UNIROYAL, INC.; HERCULES, INC.; THOMPSON-HAYWARD CHEMICAL COMPANY, also known as Thompson Chemicals; T. II. AGRICULTURAL & NUTRITION, INC., Defendants-Appellees.
No. 00-41341
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
October 30, 2001
SUMMARY CALENDAR. Revised January 28, 2002
Before REYNALDO G. GARZA, BARKSDALE, and STEWART, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:1
This case is yet another episode in the great Agent Orange saga. In this appeal, we review
I
The defendants are seven chemical companies, each of which entered into contracts with the United States during the 1960s to provide the government with “Agent Orange,” a herbicide used as a defoliant by the military in Vietnam. Agent Orange is an equal mix of 2,4-Dichlorophenoxyacetic Acid (“2,4-D“) and 2,4,5-Trichlorophenoxyacetic Acid (“2,4,5-T“). Agent Orange contains varying amounts of a toxic substance known as 2,3,7,8 Tetrachlorodibenzo-p-dioxin (“dioxin“).2 Dioxin has been linked to various maladies such as liver cancer and chloracne.
The plaintiffs are civilians, some of whom worked at the Corpus Christi Army Depot in Corpus Christi, Texas, at various times over the past 40 years. These workers claim they were exposed to Agent Orange while working on aircraft that used the defoliant in Vietnam. The other plaintiffs are the workers’ spouses and children. They claim that they were exposed to Agent Orange through physical contact with the workers or with the workers’ clothing. The plaintiffs allege that their exposure to Agent Orange has caused various maladies and cancers.
The plaintiffs originally brought suit in state court. The defendants, however, removed the
II
We review the denial of a motion to remand de novo. See Medina v. Ramsey Steel Co., 238 F.3d 674, 680 (5th Cir. 2001). “This standard of review applies even where the district court makes certain findings of fact in denying the motion to remand.” Winters v. Shamrock Chemical Co., 149 F.3d 387, 397 (5th Cir. 1997). Because the defendants invoked the removal jurisdiction of the district court, they bore the burden of establishing jurisdiction. See Frank v. Bear Stearns & Co., 128 F.3d 919, 921–22 (5th Cir. 1997). Because the defendants met their burden, the district court properly denied the plaintiffs’ motion to remand.
This Court has already given full treatment to the questions posed by the plaintiffs’ motion to remand. Winters v. Shamrock Chemical Co. is identical to the present action in all relevant respects. 149 F.3d 387 (5th Cir. 1997), aff‘g 901 F. Supp. 1195 (E.D. Tex. 1995), cert. denied, 526 U.S. 1034 (1999). In Winters, the plaintiff brought suit in state court against the same defendants in the present action. She alleged that her exposure to Agent Orange while in Vietnam had caused her to develop cancer. Id. at 390. As they did the present action, the defendants in Winters removed the case to federal court pursuant to the Federal Officer Removal Statute. Id. The district court denied the plaintiff‘s motion to remand, and this Court affirmed. Id. at 404.
The Federal Officer Removal Statute provides in relevant part:
(a) A civil action or criminal prosecution commenced in a State court against any
of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending (1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.
The plaintiffs do not dispute the legal reasoning of the Winters decision. Rather, they attempt to distinguish it. The plaintiffs argue that Winters was based on the erroneous assumption that the mixing of 2, 4-D and 2, 4, 5-T created a product more toxic than either of the components individually. The plaintiffs then offer proof that only 2, 4, 5-T contains dioxin, so the addition of 2, 4-D actually creates a less toxic product. According to the plaintiffs, the defendants were not acting under the color of federal authority when they made 2, 4, 5-T, which contains dioxin. Thus, as the plaintiff‘s argument follows, there was no causal connection between the defendants’ actions that gave rise to this suit—making 2, 4, 5-T—and the defendants’ actions that were under the direction of the federal government─mixing 2, 4, 5-T and 2, 4-D to make Agent Orange.
The argument fails on both its premise and its conclusion. The determination that the defendants in Winters were acting under color of federal authority was never based on any perceived increase in toxicity of the combination of 2, 4-D and 2, 4, 5-T. Rather, it was based on
Further, the plaintiffs are not suing the defendants because they were exposed to dioxin generally. Rather, they are suing because they were exposed to the dioxin contained in Agent Orange specifically. Therefore, it was the production of Agent Orange that gave rise to this suit, and we find that the defendants produced Agent Orange at the behest of the federal government. The plaintiffs have failed to distinguish the instant action from Winters. Because the defendants have demonstrated their right to a federal forum under the Federal Officer Removal Statute, we affirm the district court‘s decision to deny the plaintiffs’ motion to remand.
III
We review the grant of summary judgment de novo. See Veeck v. S. Bldg. Code Congress, Int‘l, Inc., 241 F.3d 398, 402 (5th Cir. 2001). Summary judgment is proper only if the record shows that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.
The district court granted summary judgment under the military contractor defense. Under the proper circumstances, the military contractor defense shields a contractor from liability for a defect in an item it built or manufactured at the government‘s direction. “Subjecting military
To invoke the military contractor defense, the defendants must prove that: (1) the government approved reasonably precise specifications for the item; (2) the item conformed to those specifications; and (3) the contractor warned the government about the dangers from the use of the item that were known to the contractor but not to the government. See Boyle, 487 U.S. at 512. Because we find no genuine issues of material fact with respect to any one of these issues, we affirm the district court‘s decision.
A
The first element of the defense is that the government must have approved reasonably precise specifications for the item to be manufactured. Id. at 512. This assures that “the government, and not the contractor, is exercising discretion in selecting the design.” Stout v. Borg-Warner Corp., 933 F.2d 331, 334 (5th Cir. 1991). It is clear from the record that the United States government provided the defendants with exacting specifications for Agent Orange.
In 1963, the Army Munitions Command prepared and promulgated Military Specifications, MIL-H-51147(MU), 19 July 1963, “Herbicide 2,4-dichlorophenoxy-acetate” and MIL-H-51148(MU), 19 July 1963, “Herbicide 2,4,5-trichlorophenoxyacetate.” These specifications defined all facets of their respective chemical‘s composition, including its appearance, free acid content, moisture content, packing, and marking. Further, the military ordered Agent Orange pursuant to purchase descriptions such as AFPID 6840-1, 23 Feb. 1968,
The plaintiffs do not dispute the precision of the military specifications. Instead, they argue that Agent Orange was an “off-the-shelf product,” and as such, it was not covered by the military contractor defense. The plaintiffs contend that, because the defendants sold 2,4,5-T and 2,4-D of varying strengths commercially before the war in Vietnam, the mixture called Agent Orange, which was sold to the military, was an off-the-shelf product.
This argument confuses the law and misapplies it to the facts. The plaintiffs argue that this “off-the-shelf limitation” is a new, fourth element of the military contractor defense. Yet, no court has held that the supplier of an off-the-shelf item is ineligible for protection under the military contractor defense,3 and we need not decide the issue here. The plaintiffs have failed to demonstrate a genuine factual dispute that Agent Orange was an off-the-shelf product.
The plaintiffs do not claim that Agent Orange was sold commercially before the war in Vietnam. Instead, they contend that its component parts were. According to the plaintiffs, if the parts are off-the-shelf, the whole must be as well. Nonetheless, such an argument would lead us to an absurd result. As the district court noted, all products can eventually be broken down into various off-the-shelf components. See Record on Appeal at Vol. III, 37–38. The combination of off-the-shelf component parts does not necessarily create a new off-the-shelf product. The plaintiffs offer no evidence that the mixture known as Agent Orange was an off-the-shelf product.
B
Acceptance and use of an item following its production can establish that the item conformed to its specifications. See Kerstetter v. Pacific Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000); In re Air Disaster at Ramstein Air Base, Germany, 81 F.3d 570, 575 (5th Cir. 1996). Moreover, the government‘s issuance of a DD Form 250, Material Inspection and Receiving Report, further establishes the item‘s conformity. See, e.g., Tate v. Boeing Helicopters, 921 F. Supp. 1562, 1567 (W.D. Ky. 1996), affirmed 140 F.3d 654 (6th Cir. 1998) (Defendants were entitled to summary judgment on the second prong of the government contractor defense because the Army executed a “DD250” documenting an operating manual‘s conformance to its specifications.); United States v. Cannon, 41 F.3d 1462, 1468 (11th Cir. 1995) (The signing of a DD Form 250 signifies the government‘s acceptance and the “conformance of the goods.“); Quiles v. Sikorsky Aircraft, 84 F. Supp. 2d 154, 167 (D. Mass. 1999) (Although it is not dispositive, “initial acceptance by the United States government, in the form of a signed DD-250, is some evidence that the aircraft complied with specifications.“); Hendrix v. Bell Helicopter Textron, Inc., 634 F. Supp. 1551, 1557 (N.D. Tex. 1986) (Absent proof that the government‘s acceptance of a helicopter was not correct, the “DD250 acceptance conclusively established that [the] helicopter . . . conformed to the contract specifications.“). Each shipment of Agent Orange was
The plaintiffs do not dispute that the defendants’ Agent Orange conformed to the military‘s specifications as those specifications were expressly formulated. The plaintiffs claim that the Agent Orange produced by the defendants failed to conform because it included dioxin, a toxic chemical that the specifications did not expressly request. According to the plaintiffs, the absence of an express request for something as significant as dioxin is a direct indication that the military did not wish dioxin to be included.
This argument is problematic in two respects. First, it is unclear why the government would remain silent with respect to dioxin if the government wished to forbid its inclusion. An express prohibition would have been much more effective.
Second, Agent Orange could not have been made according to the government‘s specifications without including dioxin, because the government specifically requested that Agent Orange be made with 2, 4, 5-T. For there to be nonconformity, “[t]he alleged defect must exist independently of the design itself, and must result from a deviation from the required military specifications.” Kerstetter v. Pacific Sci. Co., 210 F.3d 431, 435 (5th Cir. 2000). The alleged defect was the inclusion of dioxin in Agent Orange. Dioxin was included because 2, 4, 5-T was included. Thus, the alleged defect resulted not from a deviation from the required military specifications, but from the defendants’ strict adherence to them.
C
The Second Circuit has addressed this element in the context of a summary judgment motion. In re Agent Orange Product Liability Litigation, MDL No. 381, 818 F.2d 187, 191 (2d Cir. 1987), aff‘g 611 F. Supp. 1223, 1263 (E.D.N.Y. 1985), cert. denied sub nom. Lombardi v. Dow, 487 U.S. 1234 (1988). In that case, the district court granted summary judgment for the defendants, based in part on the military contractor defense. See 611 F. Supp. at 1263–64. The Second Circuit affirmed, noting that no genuine issue of material fact existed as to whether the chemical companies had a duty to inform the government of the potential hazards of Agent Orange because of “the paucity of scientific evidence that Agent Orange was in fact hazardous.” 818 F.2d at 193. Judge Weinstein, whose experience with this multidistrict litigation makes him an authority on the subject, noted at the trial level that “[i]t is clear from the record, in light of all the information received to date, that the government knew as much as, or more than, the defendant chemical companies about the possible adverse health effects of Agent Orange as it was used in Vietnam,” 611 F. Supp. at 1263, and the Second Circuit unequivocally echoed this finding: “We agree with the district court that the information possessed by the government at pertinent times was a great as, or greater than, that possessed by the chemical companies.” 818 F.2d at 189-90.
The plaintiffs argue that, under the Supreme Court‘s decision in Boyle, even constructive knowledge of the potential hazards of Agent Orange on the part of the defendants would defeat the military contractor defense. This is contrary to the clearly established case law. “The government contractor defense does not require a contractor to warn the government of defects about which it only should have known.” Kerstetter v. Pacific Sci. Co., 210 F.3d 431, 436 (5th Cir. 2000) (emphasis added). “After Boyle, a government contractor is only responsible for warning the government of dangers about which it has actual knowledge.” Trevino v. General Dynamics Corp., 865 F.2d 1474, 1487 (5th Cir. 1989) (emphasis added).6
The plaintiffs’ argument stretches the rule in Currency beyond its breaking point. Whereas that case involved the knowledge of an individual agent, the present action involves pervasive
Plaintiffs argue that because of the complex nature of the United States Government, knowledge on the part of employees within various agencies, particularly at the lower echelons, cannot be imputed to the White House or the Secretary of Defense. Their position appears to be an overstatement of the knowledge requirement. Neither the Secretary of Defense nor the President are “the government.” Widespread knowledge among lower echelons can be attributed to the Executive.
In re “Agent Orange” Prod. Liab. Litig., 579 F. Supp. 740, 796 (E.D.N.Y. 1984).
The plaintiffs have failed to demonstrate any genuine issue of material fact with respect to any one of the three elements of the military contractor defense. Thus, the district court properly granted the defendants’ motion for summary judgment. Accordingly, we affirm.
IV
We AFFIRM the district court‘s judgment denying the plaintiffs’ motion to remand the instant action to state court. We also AFFIRM the district court‘s judgment granting summary judgment to the defendants based on the military contractor defense.