Winters v. Diamond Shamrock Chemical Co.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40113
_____________________

MARGARET WINTERS,

Plaintiff-Appellant,

versus

DIAMOND SHAMROCK CHEMICAL COMPANY; ET AL.,

Defendants,

THE DOW CHEMICAL COMPANY; MONSANTO
COMPANY; UNIROYAL, INCORPORATED;
HERCULES, INC.; THOMPSON-HAYWARD
CHEMICAL COMPANY, also known as
Thompson Chemical Corporation;
T H AGRICULTURE & NUTRITION COMPANY,
INC.; DIAMOND SHAMROCK CHEMICAL COMPANY,

Defendants-Appellees.
_________________________________________________________________

Appeal from the United District Court for the
Eastern District of Texas
_________________________________________________________________
August 17, 1998

Before GARWOOD, JOLLY, and HIGGINBOTHAM, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This case is part of the Agent Orange saga. This particular

appeal presents a question regarding the reach of the offensive

collateral estoppel doctrine where the issue sought to be precluded

from relitigation was decided in a trial court outside this circuit

and the foreign court’s decision was not subjected to appellate

review. We hold today that the district court properly denied such

a judgment preclusive effect under the collateral estoppel
doctrine, that we do indeed have jurisdiction under the Federal

Officer Removal Statute, and that we therefore may reach the merits

of this appeal. In so doing, we affirm the judgment of the

district court dismissing the complaint as barred by the Texas

statute of limitations.

I

The defendants supplied the American government with Agent

Orange between 1962 and 1971. Agent Orange is an equally mixed

herbicidal blend of 2,4-Dichlorophenoxyacetic Acid (2,4-D) and

2,4,5-Trichlorophenoxyacetic Acid (2,4,5-T). The blending

production of these two acids can produce varying amounts of

2,3,7,8 Tetrachlorodibenzo-p-dioxin, an extremely toxic substance.

The voluminous lawsuits involving Agent Orange, including this one,

center around the physical defects and diseases allegedly caused by

exposure to this dioxin.

Margaret Winters, now taken from this world by the disease

allegedly caused by Agent Orange, worked as a civilian nurse for

the United States Agency for International Development (“U.S.AID”)

in Vietnam in 1966 and 1967. During her 14-month overseas tenure,

Winters lived in Saigon and worked at a hospital located in Cholon,

a suburb of Saigon. While Winters was living in Vietnam, the

American government employed the herbicide Agent Orange as a

defoliator, in order to provide its military personnel with some

tactical advantage.

2
 Winters returned to Chicago in October 1967. Nearly ten years

later, she began to experience health problems. Specifically, her

eyes hemorrhaged and, in 1981, tumors were discovered behind both

of them. She was diagnosed in August 1983 with non-Hodgkin’s

lymphoma (“NHL”). Winters filed suit ten years later after reading

an article in the local newspaper reporting a link between NHL and

Agent Orange. She alleged that the defendants formulated,

manufactured, and sold Agent Orange to the United States military,

that the herbicide was defective and unreasonably dangerous, that

she was exposed to Agent Orange while in Vietnam, and that the

herbicide caused her usually-terminal cancer. During the pendency

of this action, Winters succumbed to the disease and the torch was

passed to her estate.1

II

The defendants removed the state-filed action to federal court

in the Eastern District of Texas pursuant to both the Federal

Officer Removal Statute, 28 U.S.C. § 1442(a)(1), and the court’s

original jurisdiction, premised on the federal law governing

military procurements, 28 U.S.C. § 1331. The Judicial Panel on

Multidistrict Litigation determined that Winters’s suit was

sufficiently similar to others decided by Judge Jack Weinstein in

the Eastern District of New York and transferred the action to that

district. Winters filed a motion to remand the case to state

1
For uniformity, we refer to the plaintiff as “Winters”
throughout the opinion.

3
court, alleging that the defendants’ asserted grounds for removal

were defective. Judge Weinstein, professing a lack of expertise

with Texas substantive law, transferred the case back to the

Eastern District of Texas.

The Texas district court denied Winters’s motion to remand on

the basis that the defendants sufficiently demonstrated that they

were entitled to a federal forum under the Federal Officer Removal

Statute. The defendants then moved for a judgment as a matter of

law, arguing that they were entitled to a judgment on the basis of

the military contractor defense and laches. The court granted

summary judgment for the defendants on statute-of-limitations

grounds without having received a response from Winters. Winters

then filed a motion for a new trial and/or rehearing and submitted

evidence in support of that motion. The district court declined to

reconsider its ruling and Winters timely appealed.

III

Winters initially argues that the district court erred when it

refused to offensively apply the doctrine of collateral estoppel to

preclude the defendants from arguing that the case was properly

removed from state court. She maintains that the defendants had a

full and fair opportunity to argue their position in Ryan v. Dow

Chem. Co., et al.2 and that the Ryan Court’s decision to remand

2
781 F.Supp. 934 (E.D.N.Y. 1992).

4
should have preclusive effect against the defendants in the present

action.

A

The seminal case setting out the parameters of the offensive

use of collateral estoppel is Parklane Hosiery Co. v. Shore, 439

U.S. 322, 99 S.Ct. 645 (1979). Before addressing Parklane,

however, let us make a few observations generally about the use of

collateral estoppel, or issue preclusion. Four conditions must be

met before collateral estoppel may be applied to bar relitigation

of an issue previously decided by a court of competent

jurisdiction:

(1) the issue under consideration is identical to that
litigated in the prior action; (2) the issue was fully
and vigorously litigated in the prior action; (3) the
issue was necessary to support the judgment in the prior
case; and (4) there is no special circumstance that would
make it unfair to apply the doctrine.

Copeland, et al. v. Merrill Lynch & Co., et al., 47 F.3d 1415, 1422

(5th Cir. 1995) (citing United States v. Shanbaum, 10 F.3d 305, 311

(5th Cir. 1994)).3

3
In addition to those four factors, we have set out a few
other safeguards that must be present before estoppel may be
employed. One such safeguard is a requirement that the “facts and
the legal standard used to assess them are the same in both
proceedings.” Copeland, 47 F.3d at 1422. A second involves an
inquiry into whether a “‘new determination of the issue is
warranted by differences in the quality or extensiveness of the
procedure followed in the two courts.’” Id. at 1423 (quoting
RESTATEMENT (SECOND) OF JUDGMENTS § 28(3)). Third, unless the
issue sought to be precluded from relitigation was a “critical and
necessary part” integral to the prior judgment, collateral estoppel
may not apply. Id.

5
 As noted above, the fourth factor pertinent to application of

the collateral estoppel doctrine is whether any “special

circumstances” exist that would make issue preclusion unfair. The

Supreme Court, in Parklane, set out examples of such “special

circumstances” when application is sought offensively. One is

whether the plaintiff easily could have joined the previous action,

but instead chose to “wait and see” whether a favorable judgment

would be rendered. Parklane, 439 U.S. at 330-31; 99 S.Ct. at 651-

52. A second consideration is whether the defendant had the

incentive to defend vigorously, especially if sued only for nominal

damages or if future suits were not foreseeable. Id. Third,

offensive collateral estoppel asks whether the judgment upon which

the plaintiff seeks to rely is itself inconsistent with a previous

judgment in favor of the defendant. Id.

“The general rule should be that in cases . . . where, either

for the reasons discussed above or for other reasons, the

application of offensive estoppel would be unfair to a defendant,

a trial judge should not allow the use of offensive collateral

estoppel.” Id. at 331 (emphasis added). The Court specifically

noted, however, that a district court has broad discretion to

determine whether collateral estoppel is appropriately employed

offensively to preclude issue relitigation. Id. at 331; Copeland,

47 F.3d at 1423 (also noting “broad discretion” of district court,

particularly with respect to use of offensive collateral estoppel).

We thus review the district court’s refusal to offensively apply

6
collateral estoppel only for abuse of the broad discretion afforded

it. Copeland, 47 F.3d at 1423.

With this general understanding of offensive collateral

estoppel, we turn to the specifics of this action. The defendants

do not dispute that they had adequate incentive and opportunity to

fully and fairly litigate this removal question before the district

court in New York. Furthermore, no special procedures inured to

their benefit in the action before the Texas court that did not

equally apply to the case before the New York court. The removal

issue litigated in New York was identical to that litigated in

Texas and was integrally related to--indeed, it constituted the

crux of--the particular judgment. With all concrete factors, then,

being in favor of applying offensive collateral estoppel, we

consider whether any “special circumstances” exist that make the

application inappropriate.

B

Judge Weinstein, in Ryan, considered and rejected the

defendants’ argument that the Federal Officer Removal Statute

provided the federal court with removal jurisdiction. 781 F.Supp.

at 944-51. The district court then remanded the action to state

court, but characterized its ruling on § 1442 as “close” and

certified its decision for interlocutory review. Id. at 953. The

Second Circuit dismissed the interlocutory appeal for lack of

7
appellate jurisdiction over a remand order.4 Thus, no reviewing

court was ever able to determine the correctness of Judge

Weinstein’s ruling on this matter--a ruling which Judge Weinstein

recognized as close, and indeed so uncertain that he certified it

for appeal.

The appeal before us thus presents a question concerning the

propriety of applying collateral estoppel offensively to a

jurisdictional determination--i.e., a remand order--that was not

legally capable of appellate review. In the absence of specific

precedent, we will look for guidance in other type cases in which

the absence of appellate review has been a factor in barring the

use of offensive collateral estoppel. See Matter of Schwager, 121

F.3d 177, 183-84 (5th Cir. 1997); cf. Hicks v. Quaker Oats Co., 662

F.2d 1158, 1168-73 (5th Cir. Unit A 1981) (refusing to afford

unappealed alternate grounds of decision offensive collateral

estoppel effect).

In Schwager, the bankruptcy court had applied the doctrine of

offensive collateral estoppel to the jury’s factual findings in the

underlying state court judgment. With relitigation of those facts

precluded, the bankruptcy court had determined that Schwager’s debt

was nondischargeable. On appeal, Schwager argued that collateral

estoppel was improper because the state jury’s findings had been in

4
Ryan, No. 92-8008 (2d Cir. April 15, 1992) (denying petition
for 1292(b) review); Ryan, No. 92-8008 (2d Cir. May 22, 1992)
(denying motion for reconsideration); Ryan, No. 92-7487 (2d Cir.
June 16, 1992) (dismissing appeal).

8
the conjunctive, which made it impossible to determine the basis of

the jury’s determination of Schwager’s debt. Schwager, 121 F.3d at

182-83.

Because the underlying judgment was that of a state court, the

Schwager Court looked to Texas law to determine the proper

application of the estoppel doctrine. Id. at 181 (citing Garner v.

Lehrer (In re Garner), 56 F.3d 677, 679 & n.2 (5th Cir. 1995)

(citing 28 U.S.C. § 1738)). Texas courts apply the Restatement

(Second) of Judgments § 275 as their general rule of issue

preclusion. Id. at 183 (citing Gober v. Terra + Corp. (In re

Gober), 100 F.3d 1195, 1203 n.6 (5th Cir. 1996)). Comment i to the

Restatement provides

i. Alternative determinations by court of first instance.
If a judgment of a court of first instance is based on
determinations of two issues, either of which standing
independently would be sufficient to support the result,
the judgment is not conclusive with respect to either
issue standing alone.

Comment O, however, elaborates further on the situation presented

in comment i:

If the judgment of the court of first instance was based
on a determination of two issues, either of which
standing independently would be sufficient to support the
result, and the appellate court upholds both of these
determinations as sufficient and accordingly affirms the

5
Section 27 provides:
When an issue of fact or law is actually litigated and
determined by a valid and final judgment, and the
determination is essential to the judgment, the
determination is conclusive in a subsequent action
between the parties, whether on the same or a different
claim.

9
 judgment, the judgment is conclusive as to both
determinations. In contrast to the case discussed in
Comment i, the losing party has here obtained an
appellate decision on the issue, and thus the balance
weighs in favor of preclusion.

Texas courts had yet to address comment O, and the Schwager

Court turned to federal circuit cases for guidance in its

application. 121 F.3d at 183. The court reasoned that comment O

allowed for issue preclusion only when the appellate court had

considered the specific issue sought to be barred from relitigation

by collateral estoppel. Id. at 183-84 (citing Arab African Int’l

Bank v. Epstein, 958 F.2d 532, 537 (3d Cir. 1992); (Hicks v. Quaker

Oats Co., 662 F.2d 1158, 1168 (5th Cir. Unit A Dec. 1981)).

Because the state appellate court had not passed on the specific

issue that the bankruptcy court had estopped Schwager from

relitigating, the Schwager Court determined that the doctrine’s

application was erroneous. Id. at 184. The Schwager Court so held

even though lack of review by the state appellate court was

occasioned by Schwager himself. The state court had provided

Schwager with no less than three opportunities to properly brief

his appeal. 121 F.3d at 184. When Schwager declined to comply the

third time, the state court struck the majority of his points of

error, including the issues sought to be precluded from

relitigation. Id. It is important to note then that the Schwager

Court disallowed issue preclusion solely on the premise that the

state appellate court had not specifically passed on the specific

10
issues--even though Schwager’s actions directly had contributed to

that absence of review.

The court in Hicks v. Quaker Oats Co. faced a somewhat

analogous situation and made a similar ruling. 662 F.2d 1158 (5th

Cir. Unit A Dec. 1981).6 The district court in Hicks applied

collateral estoppel to two issues--reliance and promissory

estoppel--that had been decided adversely to the defendants in a

previous litigation before the same district judge. We determined

that application of the doctrine was erroneous for several reasons.

One, which is of particular relevance to our case today, was that

the district court had relied on a determination that had been

subject to no appellate review.

The Hicks Court further noted that special concerns with

collateral estoppel are raised when it is used offensively,

especially “where plaintiffs are relying on an alternative ground

of decision of a court of first instance.” Id. at 1170-71

(emphasis added). We particularly stressed the great importance of

fairness considerations when determining whether offensive estoppel

should be allowed. “Although the decision to apply offensive

collateral estoppel rests in the discretion of the trial

judge, . . . this discretion is not unbounded and must be channeled

through the consideration of fairness listed in Parklane, along

6
We note, as did the Hicks Court, that federal law of issue
preclusion applied because the prior decision had been issued by a
federal court, albeit in a diversity action. 662 F.2d at 1166.
For the same reason, federal law applies to the instant case.

11
with any other considerations of fairness which the trial judge

deems appropriate.” Id. at 1172-73 (noting Parklane’s factors were

not exhaustive).

The Hicks Court stopped short of applying to all cases the

proposed Restatement rule that denies estoppel effect to unappealed

alternative grounds of decision. Id. at 1173 (referring to

Restatement (Second) of Judgments § 68, comment I (Tent. Draft No.

4, April 15, 1977) (now at § 27, comment i)). It did, however,

“hold that such a rule is especially appropriate in the case of

offensive collateral estoppel, where the problems of assuring a

rigorous determination of all grounds of decision are magnified.”

Id. In the light of all the concerns involved, the court reversed

the district court’s application of offensive collateral estoppel.

We have since adhered to the Hicks decision disallowing

offensive collateral estoppel effect to an alternative ground left

unaddressed by the appellate court. See Dow Chemical v. U.S.

E.P.A., 832 F.2d 319, 323 (5th Cir. 1987); Breen v. Centex Corp.,

695 F.2d 907, 915-16 (5th Cir. 1983). In Dow Chemical, Dow had

argued that we should not give estoppel effect to the issue in

question because we had affirmed the district court’s earlier

judgment on other grounds. We agreed and followed Hicks, refusing

to depart from the accepted rule that “once an appellate court has

affirmed on one ground and passed over another, preclusion does not

attach to the ground omitted from its decision.” Dow Chemical, 832

F.2d at 323. We explained the rationale for the rule as a response

12
to concerns that an appellate court’s choice of grounds on which to

base its decision could “arbitrarily and unfairly preclude any

review of alternative grounds reached by the district court.” Id.

n.25. Furthermore, we applied the rule in Dow Chemical to bar

estoppel even though Dow itself had sought to prevent review of the

disputed issue in the earlier action. Id.

C

An element obviously common to each of the cases is the

unreviewed nature of the issue sought to be precluded from

relitigation. In Schwager, Hicks, and Dow Chemical, an appellate

court never passed on the validity of the underlying resolution of

the specific issue (or issues) whose relitigation another party

later sought to bar. The reasoning for rejecting estoppel in those

cases appears for the most part to hinge on the lack of incentive

that the losing litigant has to appeal the erroneous ground from a

judgment premised on alternative grounds.7

Indeed, the Restatement notes that it is of “critical

importance” that the “losing party, although entitled to appeal

7
None of the cases, however, contemplated that the parties
lacked any incentive to litigate the issue before the court of
first instance. Presumably, the issue sought to be precluded in a
later case had been subjected to a thorough vetting at the time it
was first tried. The appellate court simply either never had--as
in Hicks where the losing litigant did not appeal the earlier
decision--or did not take advantage of--as in Schwager and Dow
Chemical where the appellate court affirmed on other grounds--the
opportunity to pass on the propriety of the issue’s resolution.
Implicit in each holding, then, is a requirement of appellate
review.

13
from both determinations, might be dissuaded from doing so because

of the likelihood that at least one of them would be upheld and the

other not even reached.” Restatement (Second) of Judgments § 27,

comment i; see also Hicks, 662 F.2d at 1171. Comment O, which

allows for preclusion when alternative determinations have each

been appealed and decided, points out that “the balance weighs in

favor of preclusion . . . [because] the losing party has here

obtained an appellate decision on the issue.” Restatement (Second)

of Judgments § 27, comment O (noting conclusiveness attaches only

to issue directly addressed by appellate court).

The rationale behind the Restatement focuses on the fairness

factor set out by Parklane. Section 27 states that relitigation of

an issue will be precluded in a later action if the issue was

actually litigated and its determination essential to the judgment.

In such a straightforward situation, the losing litigant has ample

incentive to appeal the adverse ruling and sufficient notice that

it will be bound to that determination in subsequent actions.

Thus, allowing issue preclusion under these circumstances is

considered fair. In contrast, when a judgment is premised on

alternative grounds, the losing litigant is said to lack that full

incentive to appeal, thus rendering it unfair to bind him to either

unappealed determination. Still further, we have applied this

alternative grounds rule even where the failure of the appellate

court to address the specific issue resulted because the losing

14
litigant sought to prevent its review.8 Dow Chemical, 832 F.2d at

323 n.25.

On a continuum from the most fair to the least fair (depending

on the incentive of the losing party to appeal the judgment of the

court of first instance), the situation in which it is most fair to

apply offensive collateral estoppel effect is when the

determination of the first case rests on a single issue, thus

providing the losing party ample opportunity and incentive to

appeal. Next on the continuum of fairness is the determination

based on alternative and independent grounds, a situation which, as

a rule, does not merit preclusion because of the lack of incentive

the losing party has to appeal, i.e., its inherent “unfairness.”

This rule holds true even when the losing party can appeal; he

simply lacks incentive to do so. As the continuum diminishes in

fairness, the next situation is the case before us: where the

losing litigant never had an opportunity to appeal. It is clear

that fairness considerations weigh heavily against binding a party

whose ability to appeal is precluded by a prohibition of law.

Indeed, the Restatement itself specifically provides for an

exception to preclusion when “[t]he party against whom preclusion

is sought could not, as a matter of law, have obtained review of

8
See Restatement (Second) of Judgments § 27, comment i (noting
non-preclusion rule of judgments premised on alternative grounds
should be applied uniformly despite case specific considerations
weighing in favor of preclusion).

15
the judgment in the initial action.”9 Restatement (Second) of

Judgments § 28(1). The comment to that subsection notes that “the

availability of review for the correction of errors has become

critical to the application of [the] preclusion doctrine.”

Restatement (Second) of Judgments § 28(1), comment a; see also 18

Wright, Miller, & Cooper, Federal Practice & Procedure § 4421 at

203 (1981).

We thus see that the availability of review is of paramount

importance to the issue of preclusion. In Avondale Shipyards, Inc.

v. Insured Lloyd’s, 786 F.2d 1265 (5th Cir. 1986), we discussed

whether preclusive effect should be given to an order granting

partial summary judgment. We noted that the order was nonfinal and

thus could be revised by the district court, but we premised our

decision refusing to grant preclusive effect to the partial summary

judgment order on the basis that it was unappealable. Avondale,

786 F.2d at 1270. We noted that we were unaware of “any federal

appellate decision which has applied preclusion to a prior nonfinal

ruling as to which appellate review was unavailable . . . .” Id.

& 1271 n.8 (citing Restatement (Second) of Judgments § 28, comment

a). Other circuits have also stressed the importance of appellate

review. See, e.g., Lombardi v. City of El Cajon, 117 F.3d 1117,

9
We should make the special note that this section of the
Restatement is not limited to offensive collateral estoppel, but is
applicable to collateral estoppel in general. Usually, when
offensive collateral estoppel is at issue, the restrictions on the
use of the doctrine are more stringent, as indeed Parklane makes
clear.

16
1122 (9th Cir. 1997) (quoting Restatement (Second) of Judgments

§ 28(1)); Johnson v. Watkins, 101 F.3d 792, 795 (2d Cir. 1996);

J.R. Clearwater, Inc. v. Ashland Chemical Co., 93 F.3d 176, 179

(5th Cir. 1996); In re DES Litig., 7 F.3d 20, 24 (2d Cir. 1993);

Alliance to End Repression v. City of Chicago, 820 F.2d 873, 875

(7th Cir. 1987); Edwards v. Boeing Vertol Co., 750 F.2d 13, 15 (3d

Cir. 1984); see Standefer v. United States, 447 U.S. 10, 23 & n.18,

100 S.Ct. 1999, 2007 & n.18 (1980) (noting confidence that initial

litigation was substantially correct is often unwarranted in

absence of appellate review).

In the light of the reasoning set out above, it would seem

appropriate to hold as a matter of law that collateral estoppel may

not be applied offensively to a jurisdictional decision--such as

one granting a motion to remand--that is not capable of being

subjected to appellate review.10 Not only would such a legal rule

comport with the reasoning of most of our estoppel cases, but it

10
Commentators and case law alike have noted that, while
dismissal for lack of jurisdiction does not operate as an
adjudication on the merits (see Fed.R.Civ.P. 41(b)), the “judgment
is effective to preclude relitigation of the precise issue of
jurisdiction . . . that led to the initial dismissal.” Hopwood v.
Texas, 78 F.3d 932, 961 (5th Cir. 1996) (quoting Wright, Miller &
Cooper, Federal Practice & Procedure § 4436, at 338); Deckert v.
Wachovia Student Financial Servs., 963 F.2d 816, 819 (5th Cir.
1992); Equitable Trust Co. v. Commodity Futures Trading Comm’n, 669
F.2d 269, 272 (5th Cir. 1982); Acree v. Air Line Pilots Ass’n, 390
F.2d 199, 203 (5th Cir. 1968). These cases and commentators,
however, were not addressing the situation presented by offensive
application of collateral estoppel effect to a remand order--a
jurisdictional decision subject to no review. As such, they are
not dispositive of the issue before us.

17
would also comply with the Restatement’s admonition that “it is in

the interest of predictability and simplicity for the result of

nonpreclusion to be uniform.” Restatement (Second) of Judgments

§ 27, comment i. The restraining hand of precedent, however,

arguably limits our ruling in this case today.11 We thus turn to

decide simply whether the district court abused its discretion when

it declined to estop the defendants from relitigating the issue of

federal jurisdiction pursuant to the Federal Officer Removal

Statute. Copeland, 47 F.3d at 1423.

11
The Supreme Court decided in 1894 that unavailability of
appellate review alone could not preclude the application of the
doctrine of res judicata. Johnson Steel Street Rail Co. v.
Wharton, Jr. & Co., 152 U.S. 252, 261 (1894). The Court held that
the “existence or nonexistence of a right, in either party, to have
the judgment in the prior suit re-examined, upon appeal or writ of
error, cannot in any case, control [the inquiry into the
application of the doctrine or res judicata].” Id. See also
Napper v. Anderson, Henley, Shields, Bradford & Pritchard, 500 F.2d
634, 635-37 (5th Cir. 1974) (discussing estoppel by judgment and
noting that “[a]s between the two federal district courts, the
inability to appeal from the order of remand does not permit the
issue actually litigated and determined in the federal court in
Arkansas to be relitigated in the second action”); Frith v. Blazon-
Flexible Flyer, Inc., 512 F.2d 899, 901 (5th Cir. 1975); cf.
Standefer v. United States, 447 U.S. 10, 23 & n.18 (1980) (noting
that the lack of appellate review “strongly militates against
giving an acquittal preclusive effect,” but also noting that Court
was not suggesting “that the availability of appellate review is
always an essential predicate of estoppel”).
We note, however, that the Johnson Steel case, issued in 1894,
was a “true” res judicata decision, rendered before nonmutual
collateral estoppel was even recognized. Napper and Frith are also
pre-Parklane and involved mutual--not nonmutual offensive--estoppel
decisions. Furthermore, as noted supra note 9, the rules
applicable to offensive collateral estoppel generally are more
restrictive.

18
 D

As we have iterated, the issue decided by the court in Ryan--

that the court lacked subject matter jurisdiction under the Federal

Officer Removal Statute--was never reviewed by the Second Circuit.

Because it was a remand order under 28 U.S.C. § 1447(d), the court

of appeals held itself without jurisdiction to review the decision.

It is thus clear that the defendants in Ryan did not contribute to

the decision’s lack of reviewability. Indeed, they actively sought

review. Furthermore, the court in Ryan specifically noted the

“closeness of the case” and actually certified the issue for

immediate appeal pursuant to 28 U.S.C. § 1292(b). 781 F.Supp. at

952-53.

We cannot say, then, that binding a defendant to a ruling that

it could not appeal as a matter of law would be any fairer than

binding a defendant to a decision affirmed on grounds unrelated to

the preclusive issue or to a decision left unappealed because the

determination was based on alternative grounds. See Restatement

(Second) of Judgments §§ 27 and 28 and relevant comments; 18

Wright, Miller & Cooper, Federal Practice & Procedure § 4421 (1981

& 1998) (noting as correct outcome in case where preclusion was

denied because there was a lack of opportunity to appeal).

Considerations of fairness then, as set out in Parklane, dictate

that collateral estoppel should not be applied to the Ryan Court’s

decision. We therefore cannot say that the district court abused

19
its discretion in refusing to offensively apply collateral estoppel

to the issue of subject matter jurisdiction under § 1442.

IV

Winters next argues that the district court erred when it

applied the Federal Officer Removal Statute, 28 U.S.C.

§ 1442(a)(1), to deny her motion to remand this action to state

court. 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 persons 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) Any officer of the United States or
any agency thereof, or person acting under
him, 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.

20
28 U.S.C. § 1442(a)(1).12 The district court determined that the

defendants (1) were “persons,” (2) “acting under color of federal

authority” when committing the acts that allegedly led to Winters’s

injuries, and (3) had asserted a colorable federal defense.

Winters, 901 F.Supp. at 1198-1203. Winters challenges the district

court’s conclusions as to all three prongs.

A

(1)

We initially note that when faced with a motion to remand, it

is the defendant’s burden to establish the existence of federal

jurisdiction over the controversy. Vasquez v. Alto Bonito Gravel

Plant Corp., 56 F.3d 689, 692 (5th Cir. 1995); Dodson v. Spiliada

Maritime Corp., 951 F.2d 40, 42 (5th Cir. 1992); Kidd v. Southwest

12
This section was amended in 1996 to read:
(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.
28 U.S.C. § 1442(a)(1) (West Supp. 1998) (as amended 1996). The
1996 amendment overruled the Supreme Court’s ruling in 1991 that a
federal officer, but not a federal agency, could effect removal
pursuant to the statute. See International Primate Protection
League v. Administrators of Tulane Educ. Fund, 500 U.S. 72, 111
S.Ct. 1700 (1991).

21
Airlines Co., 891 F.2d 540, 543 (5th Cir. 1990). The district

court determined that the defendants met their burden in this case

and we review that decision de novo. Sherrod v. American Airlines,

Inc., 132 F.3d 1112, 1117 (5th Cir. 1998); Vasquez, 56 F.3d at 692.

This standard of review applies even where the district court makes

certain findings of fact in denying the motion to remand. Vasquez,

56 F.3d at 692.

(2)

The Supreme Court has on numerous occasions explained the

purposes behind § 1442(a)(1). See Willingham v. Morgan, 395 U.S.

402, 405-07 (1969), for the historical background of the Federal

Officer Removal Statute. It consistently has been iterated as a

principle of federalism and supremacy that the federal government

can act only through its officers and agents, and they
must act within the States. If, when thus acting, and
within the scope of their authority, those officers can
be arrested and brought to trial in a State court, for an
alleged offense against the law of the State, yet
warranted by the Federal authority they possess, and if
the general government is powerless to interfere at once
for their protection,--if their protection must be left
to the action of the State court,--the operations of the
general government may at any time be arrested at the
will of one of its members.

Willingham, 395 U.S. at 406 (quoting Tennessee v. Davis, 100 U.S.

257, 263 (1880)); see also Mesa v. California, 489 U.S. 121, 126

(1989) (quoting Davis); Arizona v. Manypenny, 451 U.S. 232, 241

n.16 (1981) (same).

In the light of that established precept, the Supreme Court

has noted that one of the most important functions of this right of

22
removal is to allow a federal court to determine the validity of an

asserted official immunity defense. Willingham, 395 U.S. at 407;

see also Manypenny, 451 U.S. at 242 (noting right of removal is

“absolute for conduct performed under color of federal office”);

State of La. v. Sparks, 978 F.2d 226, 232 (5th Cir. 1992) (noting

chief purpose is to “prevent federal officers who simply comply

with a federal duty from being punished by a state court for doing

so”). Removal pursuant to § 1442(a)(1) is thus meant to “ensure a

federal forum in any case where a federal official is entitled to

raise a defense arising out of his official duties.” Manypenny,

451 U.S. at 241; Murray v. Murray, 621 F.2d 103, 106 (5th Cir.

1980) (noting removal statute is “incident of federal supremacy”).

Furthermore, this right is not to be frustrated by a grudgingly

narrow interpretation of the removal statute. Willingham, 395 U.S.

at 407; Manypenny, 451 U.S. at 242 (quoting Willingham); Sparks,

978 F.2d at 232 (noting Supreme Court requirement of liberal

interpretation for over two decades).

B

(1)

With this mural of broad brush strokes behind us, we turn to

the removal issue presented in this case. The defendants must

first demonstrate that they are “persons” within the meaning of the

statute. We have previously held that corporate entities qualify

as “persons” under § 1442(a)(1). International Primate Protection

League, No. 93-3067, at 2 (5th Cir. May 4, 1994) (unpublished

23
opinion).13 Winters thus cannot seriously contest the district

court’s determination of this initial prerequisite in the

defendants’ favor. The district court did not err when it held

that the defendants met the removal statute’s first criteria.

(2)

The second factor necessary for § 1442 removal is a finding

that the defendants acted pursuant to a federal officer’s

directions and that a causal nexus exists between the defendants’

actions under color of federal office and the plaintiff’s claims.

Willingham, 395 U.S. at 409 (citing Maryland v. Soper (No. 1), 270

U.S. 9, 33 (1926)). We have previously noted the Supreme Court’s

admonishment that the statute’s “color of federal office”

requirement is neither “limited” nor “narrow,” but should be

afforded a broad reading so as not to frustrate the statute’s

underlying rationale. Murray, 621 F.2d at 107. On the other hand,

the Court has clarified that the right to removal is not unbounded,

and only arises when “a federal interest in the matter” exists.

Willingham, 395 U.S. at 406; Mesa, 489 U.S. at 139. The question

we must determine is whether the government specified the

composition of Agent Orange so as to supply the causal nexus

between the federal officer’s directions and the plaintiff’s

claims.

13
Unpublished opinions issued before January 1, 1996, are
precedent. 5th Cir.L.R. 47.5.3.

24
 The district court determined that the Defense Department had

contracted with the chemical companies for a specific mixture of

herbicides, which eventually became known as Agent Orange.

Winters, 901 F.Supp. at 1199-1201 (citing In re Agent Orange Prod.

Liab. Litig., 996 F.2d 1425, 1436 (2d Cir. 1993)). The court

further found that the defendants were compelled to deliver Agent

Orange to the government under threat of criminal sanctions. Id.

at 1199. Because of the direct control that the court found the

government exercised over the composition and production of Agent

Orange, the court found a concomitant “substantial federal

interest” at stake in the matter. Id. at 1200-01 (also noting

federal interest in procurement costs).

The welfare of military suppliers is a federal concern
that impacts the ability of the federal government to
order and obtain military equipment at a reasonable cost.
Federal interests are especially implicated where, as in
this case, the Defense Department expressly issued
detailed and direct orders to the defendants to supply a
certain product. The specificity of the order raises
this issue to a federal concern subject to removal under
section 1442(a)(1).

Id.

Winters contends, however--citing Judge Weinstein’s opinion in

Ryan for support--that the defendants failed to demonstrate that

the government exercised the kind of detailed control over the

production and formulation of Agent Orange necessary under

§ 1442(a)(1) to withstand a motion to remand. In essence, Winters

argues that the government provided little direction to the

defendants because the government bought Agent Orange as an “off-

25
the-shelf” product. She further contends that no substantial

causal nexus exists between the defendants’ actions under federal

direction--simply providing the government with their product--and

her causes of action, i.e., strict liability for a defective and

unreasonably dangerous product and failure to provide adequate

warnings.

Notwithstanding Winters’s arguments, our review of the record

convinces us that the district court committed no error when it

held that the defendants had satisfied the second criteria for

removal pursuant to § 1442(a)(1). The evidence indicates that the

government maintained strict control over the development and

subsequent production of Agent Orange. For instance, management

for defendant Hercules, Inc. offered the following uncontradicted

testimony:

. . . Hercules had manufactured for domestic sale,
among other products the n-butyl esters of 2,4-
Dichlorophenoxyacetic acid (“2,4-D”) and 2,4,5-
Trichlorophenoxyacetic acid (“2,4,5-T”), the two
component ingredients of “Agent Orange”, since
approximately 1962. Both the n-butyl esters and other
esters and salts of 2,4-D and 2,4,5-T (generally
hereinafter referred to as “phenoxy herbicides”) had been
sold commercially in the United States, separately and in
various combinations, as herbicides for many years before
Hercules entered into production. However, Hercules
never manufactured or registered “Agent Orange” for
domestic use either prior to or after making “Agent
Orange” for the Government.

* * *

The Government required that “Agent Orange” be
produced to its specifications set forth in the contracts
and documents referenced therein. For example, the first
contract specified that “Agent Orange” consist of a 50-

26
 50% mixture by volume of the n-butyl esters of 2,4-D and
2,4,5-T with a tolerance under the contract for each
ingredient of + 1.5%. The 2,4-D was required to have an
acid purity of a minimum of 98.0% by weight and to
contain not more than 0.5% of “free acid” by weight, and
the 2,4,5-T was required to have an acid purity of a
minimum of 99.0% by weight. . . . Other specifications
concerned the packaging, labeling and shipping of “Agent
Orange.”

* * *

The Government also inspected the labeling of the
drums in which “Agent Orange” was shipped. Nothing but
what the Government specified was allowed to be placed on
the drums. . . . No warning was placed on the
containers, and none was permitted by the contract
specifications.

Record Volume 1 at 121-123 (March 1980 Aff. of John P. Frawley).

The evidence is substantially similar with respect to the

other defendants as well. Each was required to produce and provide

to the Department of Defense the herbicidal mixture known as “Agent

Orange”--with the specifications for the defoliant (and its

packaging) specifically dictated by the government. Although the

defendants had produced 2,4-D and 2,4,5-T for commercial use before

government involvement, their commercial formulations were never

composed of a mixture of 100% pure 2,4-D/ 2,4,5-T, which the

government required for the most part (98% for 2,4-D and 99% for

2,4,5-T) in its contracts with the defendants. Instead, the

defendants had always included a substantial percentage of inert

ingredients to dilute the two active ingredients and required

further dilution before commercial application. In contrast, the

government’s specifications for Agent Orange included use of the

27
two active chemicals in unprecedented quantities for the specific

purpose of stripping certain areas of Vietnam of their vegetation.

To quickly achieve this goal, the government dictated that Agent

Orange contain only the active ingredients 2,4-D and 2,4,5-T and it

applied the product in Vietnam without dilution.

The gist of this action centers around the trace elements of

dioxin contained in Agent Orange and whether a causal relationship

exists between Winters’s terminal disease and her alleged exposure

to that dioxin. We are convinced that the government’s detailed

specifications concerning the make-up, packaging, and delivery of

Agent Orange, the compulsion to provide the product to the

government’s specifications, and the on-going supervision the

government exercised over the formulation, packaging, and delivery

of Agent Orange is all quite sufficient to demonstrate that the

defendants acted pursuant to federal direction and that a direct

causal nexus exists between the defendants’ actions taken under

color of federal office and Winters’s claims. The defendants have

demonstrated the second criteria necessary for federal officers

removal.

(3)

The third and final factor necessary for removal pursuant to

§ 1442 is the assertion of a “colorable federal defense.”

Willingham, 395 U.S. at 406-07; Manypenny, 451 U.S. at 241

(“[R]emoval under § 1442(a)(1) and its predecessor statutes was

meant to ensure a federal forum in any case where a federal

28
official is entitled to raise a defense arising out of his official

duties.”); Mesa, 489 U.S. at 129, 133-34 (“[A]n unbroken line of

this Court’s decisions extending back nearly a century and a

quarter have understood all the various incarnations of the federal

officer removal statute to require the averment of a federal

defense.”). It is important to note that the defendants need not

prove the asserted defense, but need only articulate its

“colorable” applicability to the plaintiff’s claims. “One of the

primary purposes of the removal statute--as its history clearly

demonstrates--was to have such defenses litigated in the federal

courts. . . . In fact, one of the most important reasons for

removal is to have the validity of the defense of official immunity

tried in a federal court. The officer need not win his case before

he can have it removed.” Willingham, 395 U.S. at 407 (emphasis

added). In this case, the defendants have proposed two defenses

that they contend meet the removal statute’s requirement: (1) the

government contract defense, and (2) the immunity afforded them

under the Defense Production Act.

(a)

The Supreme Court set out the test for immunity under the

government contractor defense in Boyle v. United Techs. Corp., 487

U.S. 500, 512 (1988). The Court wrote that

[l]iability for design defects in military equipment
cannot be imposed, pursuant to state law, when (1) the
United States approved reasonably precise specifications;
(2) the equipment conformed to those specifications; and
(3) the supplier warned the United States about the

29
 dangers in the use of the equipment that were known to
the supplier but not to the United States.

Id. The Court explained that the government’s immunity inured to

the benefit of the contractor because it was derivative of the

government’s own immunity from suit “where the performance of a

discretionary function is at issue.” In re Air Disaster at

Ramstein Air Base, Germany, 81 F.3d 570, 574 (5th Cir. 1996)

(citing Boyle, 487 U.S. at 511). The Court further noted that “the

selection of the appropriate design for military equipment to be

used by our Armed Forces is assuredly a discretionary function.”

Boyle, 487 U.S. at 511. Thus, the decisions regarding the specific

formulation, packaging, delivery, and use of Agent Orange in

Vietnam constitute governmental exercise of a discretionary

function.

We need not again delve into the specifics contained in the

record, as we have done supra, to determine whether the defendants’

proffer of the government contractor defense satisfies the third

requirement for removal under § 1442; we simply note that the

evidence we have earlier described amply supports the defendants’

assertion that the specifications for Agent Orange were provided by

the government and that the product conformed to those

specifications. See Smith v. Xerox Corp., 866 F.2d 135, 138 (5th

Cir. 1989) (noting “government contractor defense requires only

that the government approve reasonably precise specifications” and

that this factor was met where government supplied the relevant

30
specifications). Furthermore, the Defense Department periodically

subjected the defendants to supervisory reviews to determine their

compliance with the contractual provisions--ascertaining not only

their compliance with the contractual requirements for the

herbicidal mixture itself, but also with how it was packaged and

transported.14 The government did not “merely accept[], without any

substantive review or evaluation, decisions” made by the

defendants. Trevino v. General Dynamics Corp., 865 F.2d 1474, 1480

(5th Cir. 1989) (noting the “trier of fact will determine whether

the government has exercised or delegated to the contractor

discretion over the product design”). Finally, the evidence

indicates that the defendants provided the Defense Department with

ample warnings concerning the risks of the component parts of Agent

Orange, but were specifically prohibited from placing any warnings

on the finished product itself except as allowed by contract.

Without deciding the merits of the government contractor defense in

this case, we certainly deem its assertion sufficiently colorable

for § 1442 removal purposes.

(b)

Because we determine that the first proffered defense--the

government contractor defense--satisfies the third prong under

§ 1442 and thus suffices to establish federal court jurisdiction,

14
For instance, one government inspector even demanded that he
be allowed to count the barrels of Agent Orange loaded on a train
and to survey their arrangement for traveling purposes.

31
we need not also address in depth the “colorability” of the

defendants’ assertion of the Defense Production Act15 as a defense

to Winters’s claims. We simply note our agreement in this respect

with Judge Weinstein, the “most knowledgeable and informed judge

ever with respect to the Agent Orange cases”--according to

Winters--who determined that the defendants’ assertion of the

Defense Production Act as a defense satisfied the removal statute.

Ryan, 781 F.Supp. at 945.16

For the reasons set out supra, we hold that the district court

did not err when it denied Winters’s motion to remand. The

defendants demonstrated their right to a federal forum pursuant to

§ 1442(a)(1).

15
50 U.S.C. App. § 2061 et seq. (1988). In relevant part, the
Defense Production Act provides:
No person shall be held liable for damages or penalties
for any act or failure to act resulting directly or
indirectly from compliance with a rule, regulation, or
order issued pursuant to this Act.
Id. § 2157.
16
Our difference with Judge Weinstein is, for the most part,
set out supra in Part IV(B)(2). Judge Weinstein determined that
remand was proper because he found that the defendants had failed
to satisfy the second prong of the Federal Officer Removal
Statute--that they acted under color of federal office. Ryan, 781
F.Supp. at 950. Judge Weinstein, although acknowledging that the
case presented a close question, held that the defendants had not
demonstrated sufficient government control over the production of
Agent Orange because “[t]he government sought only to buy ready-to-
order herbicides.” Id. He found it determinative that the
defendants had formulated, produced and commercially sold all of
the component parts of Agent Orange, albeit in different
compositions, before government involvement. Id. Our reading of
the record, however, reflects that the alleged deadly properties of
Agent Orange resulted from the particular mixture of the component
chemicals that the government dictated.

32
 V

Having decided that the district court correctly determined

its jurisdiction over this matter, we turn to the parties’

arguments with respect to the district court’s entry of summary

judgment. Winters initially contends that the court procedurally

erred when it ruled on the defendants’ motion for summary judgment

without allowing her an adequate opportunity to respond. She also

argues that there are fact questions as to when her cause of action

accrued and that holding that the statute of limitations had

expired was error.

A

We first address the alleged procedural error. The defendants

filed their motion for summary judgment on May 28, 1996. That same

day, the court entered an order granting Winters until June 7 to

furnish it with a letter setting out what discovery she would need

to complete before she could respond to the defendants’ motion.

The court also noted that the “[t]ime to respond to [the] motions

for summary judgment is hereby extended until the court’s ruling on

discovery.” Winters complied with the order and supplied the court

with a letter requesting six months’ time in which to engage in

discovery and to respond to the summary judgment motion. Most

importantly, however, Winters said that she could respond to the

statute of limitations issue within 90 days and she set forth no

specific discovery that she needed to conduct with respect to that

matter. On September 25, without ruling on Winters’s discovery

33
requests and without providing her with notice, the district court

granted the defendants’ motion for summary judgment on statute of

limitations grounds.

The district court’s failure to set a reply date to the

defendants’ pending motion for summary judgment effectively denied

Winters an opportunity to respond before the court’s ruling. We

previously have held that ruling on a motion for summary judgment

without providing either notice or a hearing “cut[s] off [a]

plaintiff’s opportunity to develop a record on which the court

could fairly rule on the merits of his complaint” and, thus,

constitutes error. Kobort v. Hampton, 538 F.2d 90, 91 (5th Cir.

1976); see also NL Indus., Inc. v. GHR Energy Corp., 940 F.2d 957,

965 (5th Cir. 1991) (“Any reasonable doubts about whether [the non-

moving party] received notice that its entire case was at risk must

be resolved in favor of [that party].”); Capital Films Corp. v.

Charles Fries Prod., 628 F.2d 387, 391-92 (5th Cir. 1980) (holding

court abuses discretion when it prematurely rules on a summary

judgment motion after inducing a party reasonably to believe that

he had additional time in which to respond).

The court’s entry of judgment in the defendants’ favor without

providing the nonmovant with advance notice of its intention to

address the dispositive motion, however, does not require reversal

in this case. After receiving the court’s order, Winters timely

filed a motion for new trial or rehearing. She also submitted

evidence in support of that motion and the court considered all of

34
her attachments before denying her motion. Because she was

afforded an opportunity, albeit after the initial ruling, to

present the court with evidence supporting her arguments, the

court’s error in ruling without providing her an opportunity to

respond, may be considered harmless. Resolution Trust v. Sharif-

Munir-Davidson Dev. Corp., 992 F.2d 1398, 1403 (5th Cir. 1993).

Because the district court thus rectified its initial procedural

error, we may now reach the merits of its decision.

B

The defendants moved for summary judgment on the basis, inter

alia, that Winters’s claims17 were barred by the statute of

limitations. The district court determined that, under Texas law,

Winters’s claims accrued by 1986 at the latest. Because she did

not file this lawsuit until 1993, the court held that the two-year

statute of limitations had long since run. We review an award of

summary judgment de novo, using the same standards as applied by a

district court. Bailey v. McDonnell Douglas Corp., 989 F.2d 794,

799 (5th Cir. 1993).

The parties do not contest the application of Texas

substantive law to this matter. In Texas, a two-year statute of

limitations governs personal injury actions. Tex. (Civ.Prac.&

Rem.) Code Ann. § 16.003(a) (Vernon 1986). Claims not brought

17
Winters brought negligence claims, product liability claims,
and a breach of implied warranty claim. She has not appealed the
district court’s resolution of her breach of implied warranty
claim.

35
within two years from the date the cause of action accrues are

barred. Id.; Schaefer v. Gulf Coast Regional Blood Ctr., 10 F.3d

327, 331 (5th Cir. 1994). A cause of action accrues when the legal

wrong is completed and the plaintiff becomes entitled to commence

her suit, even if she remains unaware of the injury. Vaught v.

Showa Denko K.K., 107 F.3d 1137, 1140 (5th Cir. 1997).

Texas courts, however, have adopted a “discovery rule” that

lengthens the time within which a plaintiff may institute suit.

Id. (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351

(Tex. 1990)). Under the discovery rule, the cause of action may

accrue for purposes of ripeness when the legal wrong is

consummated, but the statute of limitations is tolled until the

plaintiff discovers, or through the exercise of reasonable care and

diligence should have discovered, the nature of her injury. Swift

v. State Farm Life Ins. Co., 129 F.3d 792, 796-97 (5th Cir. 1997);

Vaught, 107 F.3d at 1140 (citing Moreno; Willis v. Maverick, 760

S.W.2d 642, 644 (Tex. 1988)); Schaefer, 10 F.3d at 331.

“Discovery” does not mean “actual knowledge of the particulars of

a cause of action,” but whether the plaintiff has “knowledge of

facts which would cause a reasonable person to diligently make

inquiry to determine his or her legal rights.” Vaught, 107 F.3d at

1140, 1141-42. Under this interpretation, the tolling period may

expire and the statute of limitations begin to run before a

plaintiff subjectively learns the “details of the evidence by which

to establish [her] cause of action.” Id. at 1140.

36
 Winters has alleged that she was exposed to Agent Orange while

in Vietnam and that the herbicide caused the NHL with which she

positively was diagnosed in August 1983. Although her cause of

action may have accrued no later than October 1967--when she left

Vietnam--she maintains that she did not “discover” the facts

necessary to inform her of her legal rights against the defendants

until she read a newspaper article in 1991 that reported a link

between Agent Orange and NHL.18 The defendants contend that she

should have discovered her cause of action at least by 1986.

The record is replete with numerous newspaper articles and

excerpts from television and radio reports dating from 1984--and,

indeed, before--that concern Agent Orange and its alleged

deleterious effects on veterans who were exposed to it in Vietnam.19

An overwhelming number of the media publications reported on the

18
The newspaper article was in the Chicago Sun-Times. It
reported that President Bush had signed into law legislation
awarding compensation to veterans suffering from NHL who had been
exposed to Agent Orange.
19
See, e.g., “Agent Orange trial jury review begins,” Chicago
Tribune, May 1, 1984; “7 Agent Orange makers on trial,” Chicago
Sun-Times, May 7, 1984; Anne Keegan, “Vietnam vets feel robbed of
day in court,” Chicago Tribune, May 7, 1984, at 1; “Vets pleased
with decision,” Chicago Calumet, May 8, 1984; Hugh Hough,
“Settlement is a ‘slap in the face,’ Viet vet says,” Chicago
Sun-Times, May 8, 1984; “Agent Orange makers to pay $180 million,”
Chicago Sun-Times, May 8, 1984; Bob Olmstead, “Agent Orange accord
hit,” Chicago Sun-Times, May 11, 1984; Joseph R. Tybor, “Vets
accuse lawyers of selling out,” Chicago Tribune, May 25, 1984;
“This Morning” (ABC television broadcast, May 7, 1984) (news bit
concerning Agent Orange); “4:30 Chicago News” (WMAQ-TV(NBC) Channel
Five local news) (news bit about settlement and interviews with
local vets). Winters resided in Chicago during the 80s.

37
veterans’ suits brought against the chemical companies and on the

$180 million out-of-court settlement reached on May 7, 1984.

Almost all of the reports in the mid-80s mention that Agent Orange

is alleged to have caused various illnesses, including cancer.

Still another major story that garnered a blitz of media

coverage concerned Admiral Elmo Zumwalt’s admission that a

connection probably existed between Agent Orange and his son’s

cancer.20 Admiral Zumwalt had ordered the use of the chemical

defoliant in Vietnam while his son served there on a Navy patrol

boat. Zumwalt’s son discovered in 1983 that he suffered from

advanced cancer of the lymph glands; Zumwalt’s grandson also was

afflicted by a birth defect. Because the story dripped with irony,

the media widely reported on both illnesses in the context of their

alleged causal relationship with Agent Orange.

Winters testified that she first thought that she might have

been exposed to Agent Orange while she had been working as a nurse

in Saigon when she read newspaper reports in the 80s of the

defoliant’s use in Vietnam. She also testified that she may have

seen on the news during that same time the publicity about veterans

who were suing for cancer that was allegedly caused by Agent

Orange. She said, however, that she did not “follow” the reports

20
See, e.g., "Zumwalt haunted by Agent Orange,” Chicago
Tribune, May 22, 1984; Georgie Anne Geyer, “World’s complexity
makes U.S. uneasy,” Chicago Sun-Times, May 31, 1984.

38
about the claims and that she never read of any reported link

between Agent Orange and NHL until the 1991 article.

Winters testified, however, that she made no effort to gather

information as to what may have caused the NHL after her diagnosis

in 1983. In fact, she never inquired of the cause of her illness

until after she read the 1991 article. The extensive media

publicity of the mid-80s, however, should have put Winters on

notice that she needed to investigate any possible connection

between her cancer--NHL--and her alleged exposure to Agent Orange

while in Vietnam. Although she testified that she focused only on

the reports of the chemical spraying and not the claims associated

with its spraying, she conceded that most reports were made in the

conjunctive--discussing the spraying only as it was relevant to the

claims. Because most of the media reports also discussed claims

that the herbicide caused cancer, among various other illnesses,

Winters surely had sufficient knowledge in the mid-80s “of such

facts as would cause a reasonably prudent person to make an inquiry

that would lead to discovery of the cause of action.” Vaught, 107

F.3d at 1140 (quoting Hoover v. Gregory, 835 S.W.2d 668, 671

(Tex.Ct.App. 1992)).

But Winters argues that she could not reasonably have

discovered her cause of action before 1991 because “not a single

doctor who treated her or dealt with her NHL, ever told her that

there might be even the possibility of a connection between Agent

Orange exposure and NHL.” Texas does not allow, however, for the

39
tolling of the limitations period until “a plaintiff discovers a

specific cause of action against a specific defendant.” Id. at

1142 (citing Moreno, 760 S.W.2d at 357 n.9). The question

presented is not “whether a plaintiff has actual knowledge of the

particulars of a cause of action . . .; rather, it is whether the

plaintiff has knowledge of facts which would cause a reasonable

person to diligently make inquiry to determine his or her legal

rights.” Id. at 1141-42 (quoting Bell v. Showa Denko K.K., 899

S.W.2d 749, 754 (Tex.Ct.App. 1995)). The media’s coverage of the

Agent Orange matter in the 80s placed within Winters’s grasp such

triggering facts. “The discovery rule operates to trigger the

statute of limitations once a plaintiff has the requisite

knowledge, regardless of whether or how the plaintiff is advised by

the medical community.” Vaught, 107 F.3d at 1142 (emphasis added)

(also noting that a plaintiff “who may be incorrectly advised, may

be precluded from pursuing her cause of action, even though she

took the necessary investigatory steps mandated by the discovery

rule”). Thus, under the “discovery rule,” the two-year statute of

limitations was triggered some time in the mid-80s and Winters’s

suit, filed in 1993, is barred.

VI

In conclusion, we hold that the district court did not abuse

its discretion when it declined to afford Judge Weinstein’s remand

decision in Ryan offensive collateral estoppel effect so as to bar

the defendants’ relitigation of the applicability of the Federal

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Officer Removal Statute. We further hold that the Federal Officer

Removal Statute provides federal jurisdiction over this action and

that the plaintiff’s claims are barred by the Texas statute of

limitations. For the foregoing reasons, we AFFIRM the judgment

entered by the district court.

A F F I R M E D.

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