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
40
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.
41