In re Agent Orange Product Liability Litigation

These cases were brought by individuals who suffered injuries from the use of the herbicide Agent Orange during the Vietnam War against companies that manufactured Agent Orange for the military. The cases were filed in state courts, but the companies removed them to federal court under a statute providing that a federal officer or a person acting under a federal officer may remove cases brought against him or her in state courts for acts under color of federal office. The companies claimed that in manufacturing Agent Orange according to the military’s specifications, they were acting under federal officers and carrying out acts under color of federal office. A federal district court accepted the companies’ arguments and denied the plaintiffs’ motions to remand the cases to state court.

The plaintiffs appealed to the U.S. Court of Appeals for the Second Circuit. Public Citizen filed amicus briefs supporting the plaintiffs’ argument that the companies had no right to remove the cases under the federal officer removal statute. The briefs argued that the statute should not be over broadly construed; that the corporate defendants were not “persons” within the meaning of the statute, which was enacted to protect individuals, not corporations or other entities; that the statute does not authorize removal by defendants who assert the federal contractor defense rather than an official immunity defense; that manufacturing a product for the government is not an act under color of federal office; and that policy reasons did not support extension of the statute to the companies.

On February 22, 2008, the U.S. Court of Appeals for the Second Circuit rejected our arguments, holding that corporations that were acting as federal contractors were entitled to remove cases against them to federal court because they were “persons” who acted under the direction of a federal officer.