Sherrie Baker v. EI du Pont de Nemours and Comp ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 19-3159 & 19-3160
SHERRIE BAKER, et al.,
Plaintiffs-Appellees,
v.
ATLANTIC RICHFIELD COMPANY,
E. I. DU PONT DE NEMOURS AND COMPANY, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:17-cv-00429 — Joseph S. Van Bokkelen, Judge.
____________________
ARGUED JUNE 2, 2020 — DECIDED JUNE 18, 2020
____________________
Before FLAUM, KANNE, and BRENNAN, Circuit Judges.
FLAUM, Circuit Judge. Former residents of the West Calu-
met Housing Complex sued nine industrial manufacturing
companies in Indiana state court. The residents allege that, for
most of the twentieth century, each company directly or
through a predecessor corporate entity polluted the soil in
2 Nos. 19-3159 & 19-3160
and around the site of their later-built residence. Specifically,
the residents claim that the companies’ operations at these fa-
cilities contaminated the property with “lead, arsenic and
likely other substances.”
Several companies removed the case to federal court un-
der 28 U.S.C. § 1442(a)(1), asserting their right to a federal fo-
rum because the case relates to their acts under color of fed-
eral office. During World War II, the companies argue, the
United States government directed them to produce certain
materials for the military, supervised distribution of these
goods, and controlled their ultimate usage. The residents dis-
agreed and moved to remand the case back to state court. The
district court granted that motion, holding in principle that
the companies acted under color of federal office for only a
portion of the time period covered by the residents’ claims.
We reverse.
I. Background
From 1906 to approximately 1970, the defendants-appel-
lants Atlantic Richfield Company, BP West Coast Products
LLC, E. I. du Pont de Nemours and Company, and The
Chemours Company (collectively, “the Companies”), their
predecessors, and a handful of other entities manufactured
certain industrial materials at the U.S. Smelter and Lead Re-
finery, Inc. Superfund Site in East Chicago, Indiana. In the
1970s, the East Chicago Housing Authority constructed the
West Calumet Housing Complex, a low-income residential
building, on the same site.
In September 2017, former West Calumet tenants sued the
Companies as the successors in interest to International
Nos. 19-3159 & 19-3160 3
Smelting and Refining Company (ISR), Anaconda Lead Prod-
ucts Company, International Lead Refining Company, Inter-
national Smelting Company, and other entities in Indiana
state court alleging that they had polluted the soil at and
around their modern-day building, exposing the residents to
hazardous substances like lead and arsenic. Specifically, the
resident-plaintiffs (“the Residents”) claimed Atlantic Rich-
field tortiously contaminated the land between 1938 and 1965,
and that E. I. du Pont de Nemours and Company and The
Chemours Company (together, “DuPont”) did so from 1910
to 1949.
In November 2017, Atlantic Richfield removed the case to
federal court under 28 U.S.C. § 1442(a)(1), asserting that it was
entitled to a government contractor defense. In support of its
notice, Atlantic Richfield contended that its predecessor, ISR,
operated a lead refinery, white lead carbonate plant, and zinc
oxide plant near the site of the modern-day West Calumet
Housing Complex during World War II. At that time, the fed-
eral government thoroughly regulated the use of lead and
zinc, which ISR sold to entities who were under contract with
the government to produce the goods for the military. More
importantly, ISR itself held five contracts with the United
States Army worth $837,000 (today, approximately $12 mil-
lion) in sales of zinc oxide.
The materials made by ISR—white lead carbonate, zinc
oxide, and lead—were critical wartime commodities because
they were necessary to make essential military and civilian
goods. Given their critical nature, the United States required
ISR to manufacture the zinc oxide, white lead carbonate, and
lead produced at the East Chicago site according to detailed
federal specifications. Certain regulations also mandated that
4 Nos. 19-3159 & 19-3160
ISR prioritize its sales to rubber and paint companies holding
defense contracts (setting aside the predetermined quantities
for the federal government), which effectively prevented ISR
from selling its products to distributors for civilian applica-
tions. Indeed, at one point, conservation orders severely re-
stricted the amount of white lead in paint, and as a result, re-
duced ISR’s sales. Similarly, the government either restricted
or prohibited the use of zinc to manufacture most civilian
products. Other forms of federal oversight included price
control, with violations punishable by criminal prosecution
and the denial of further supplies. In sum, the government
directed nearly every aspect of ISR’s production process at the
site.
On the same day Atlantic Richfield filed its notice of re-
moval, DuPont joined its codefendant and filed a supple-
mental notice. DuPont asserted that the United States govern-
ment directed it to build a facility for the government and
then lease it from the government to produce Freon-12 and
hydrochloric acid (a byproduct of Freon-12) solely for the
government. DuPont’s manufacture of Freon-12 resulted in
waste streams containing lead and arsenic. Additionally,
DuPont received five shipments of surplus lead from the mil-
itary following the war in September 1945, April 1946, Octo-
ber 1946, and December 1946. The government closely con-
trolled the plant’s operation, approving the plans, designs,
and schedules for manufacturing. It even assigned a supervis-
ing engineer and other support staff to oversee the activities
on site.
The Residents moved to remand the case back to state
court in December 2017. The district court granted that mo-
tion, concluding that the Companies had only acted under
Nos. 19-3159 & 19-3160 5
color of federal office for a small part of the alleged time pe-
riod at issue. Put differently, the court found removal im-
proper because most of the Companies’ government business
occurred outside the relevant time frame. The court further
reasoned that Atlantic Richfield was under no obligation to
comply with industrywide regulations, and regardless, was
merely a supplier. As to DuPont, the court determined that
the Residents were not suing DuPont over its Freon-12 pro-
duction, citing the Residents’ statement in their complaint
that “[t]his action does not pertain to DuPont’s manufacture
and production of Freon-12 and the byproduct of hydrochlo-
ric acid.”
These timely appeals followed.
II. Discussion
“We review subject-matter jurisdiction and the propriety
of the removal of a state-court action de novo. The party seek-
ing removal bears the burden of establishing federal jurisdic-
tion.… [T]he Supreme Court has made clear that courts must
liberally construe § 1442(a).” Betzner v. Boeing Co., 910 F.3d
1010, 1014 (7th Cir. 2018) (citations omitted). We therefore
evaluate the Companies’ allegations in support of removal
under the federal pleading standards, asking whether they
are facially plausible. See id. at 1016.
Federal officer removal is appropriate when “the defend-
ant (1) is a person within the meaning of the statute, (2) is act-
ing under the United States, its agencies, or its officers, (3) is
acting under color of federal authority, and (4) has a colorable
federal defense.” Id. at 1015. Recognizing our precedent on
the matter, the Residents do not dispute that the Companies
are persons under § 1442(a). See Ruppel v. CBS Corp., 701 F.3d
6 Nos. 19-3159 & 19-3160
1176, 1181 (7th Cir. 2012) (holding that corporations are per-
sons within the meaning of the federal officer removal stat-
ute). Instead, the Residents focus on the Companies’ pur-
ported failure to establish the third and fourth criteria and as-
sert that Atlantic Richfield specifically does not meet the sec-
ond criterion. We begin with the latter.
Acting Under the Federal Government
The Residents contend that Atlantic Richfield must show
substantially more than its wartime operation of a plant in a
highly regulated industry to establish it acted under federal
authority. They insist that most of the conduct Atlantic Rich-
field relies on to support removal is nothing more than its ad-
herence to regulations that applied to all market participants.
The crux of the inquiry under this element, however, is
whether there was a special relationship between the defend-
ant and the federal government. That the federal government
may have had special relationships with other private entities
because it was fighting a war is irrelevant.
“The relevant relationship,” the Supreme Court has re-
minded us, “is that of a private person ‘acting under’ a federal
‘officer’ or ‘agency.’” Watson v. Philip Morris Cos., Inc., 551 U.S.
142, 151 (2007) (quoting § 1442(a)(1)). Typically, “[t]hat rela-
tionship … involves subjection, guidance, or control. In addi-
tion, precedent and statutory purpose make clear that the pri-
vate person’s ‘acting under’ must involve an effort to assist, or
to help carry out, the duties or tasks of the federal superior.”
Id. at 151–52 (citations and internal quotation marks omitted).
But “the help or assistance necessary to bring a private
person within the scope of the statute does not include simply
Nos. 19-3159 & 19-3160 7
complying with the law.” Id. at 152. In Watson, the Supreme
Court explained that
a highly regulated firm cannot find a statutory
basis for removal in the fact of federal regula-
tion alone. A private firm’s compliance (or non-
compliance) with federal laws, rules, and regu-
lations does not by itself fall within the scope of
the statutory phrase “acting under” a federal
“official.” And that is so even if the regulation is
highly detailed and even if the private firm’s ac-
tivities are highly supervised and monitored.
Id. at 153.
Notwithstanding that explanation, where a private con-
tractor helps “the Government to produce an item that it
needs[,] [t]he assistance that private contractors provide fed-
eral officers goes beyond simple compliance with the law and
helps officers fulfill other basic governmental tasks.”1 Id. To
illustrate its point, the Supreme Court cited with approval
Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir.
1 The district court held that “mere assistance, in the absence of a legal
duty to render such aid, does not bestow § 1442 jurisdiction.” Like the Sec-
ond Circuit, we “find no authority for the suggestion that a voluntary re-
lationship somehow voids the application of the removal statute.” Isaacson
v. Dow Chem. Co., 517 F.3d 129, 138 (2d Cir. 2008); see also In re Common-
wealth's Motion to Appoint Counsel Against or Directed to Def. Ass'n of Phila-
delphia, 790 F.3d 457, 473 (3d Cir. 2015) (“What matters is that a defense
raises a federal question, not that a federal duty forms the defense. True,
many removal cases involve defenses based on a federal duty to act, or the
lack of such a duty. But the fact that duty-based defenses are the most
common defenses does not make them the only permissible ones.”) (cita-
tion omitted).
8 Nos. 19-3159 & 19-3160
1998). The key circumstance in that case, which distinguished
it from others with close supervision and detailed regulation,
was that the private firm had “fulfilled the terms of a contrac-
tual agreement by providing the Government with a product
that it used to help conduct a war.” Watson, 551 U.S. at 153–
54. “Moreover,” the Court reasoned, the company “per-
formed a job that, in the absence of a contract with a private
firm, the Government itself would have had to perform.” Id.
at 154.
The same wartime context applies here. Atlantic Richfield
(really, its predecessor ISR) provided the federal government
with materials that it needed to stay in the fight at home and
abroad—namely, lead, zinc oxide, and white lead carbonate,
used in turn to manufacture products like rubber, paint, am-
munition, die casts, and galvanized steel. In fact, ISR was un-
der contract with the United States military itself for the pro-
curement of zinc oxide. Without the aid of ISR, the govern-
ment would have had to manufacture the relevant items on
its own. For these reasons, this is not simply a case of compli-
ance, but assistance.
To put it in the terms of our precedent, this appeal in-
volves Atlantic Richfield “working hand-in-hand with the
federal government to achieve a task that furthers an end of
the federal government.” Ruppel, 701 F.3d at 1181; see also id.
(“‘Acting under’ covers situations, like this one, where the
federal government uses a private corporation to achieve an
end it would have otherwise used its own agents to com-
plete.”); Panther Brands, LLC v. Indy Racing League, LLC, 827
Nos. 19-3159 & 19-3160 9
F.3d 586, 590 (7th Cir. 2016) (referring to the required relation-
ship as “closely monitored and highly regulated”).2 The gov-
ernment’s detailed specifications for the makeup of ISR’s ma-
terials, “the compulsion to provide the product to the govern-
ment’s specifications,” and the continuous federal supervi-
sion all reveal the necessary relationship between ISR and the
government. Winters, 149 F.3d at 400. Accordingly, Atlantic
Richfield acted under federal authority.
Acts for or Relating to Federal Authority
The question, then, is whether the polluting conduct the
Residents complain of relates to the federal directives the
Companies acted under. As we have previously noted, “this
requirement is distinct from the ‘acting under’ requirement in
the same way a bona fide federal officer could not remove a
trespass suit that occurred while he was taking out the gar-
bage—there must be a ‘causal connection between the
charged conduct and asserted official authority.’” Ruppel, 701
F.3d at 1181 (quoting Jefferson Cty., Ala. v. Acker, 527 U.S. 423,
431 (1999)).
The Residents maintain that the Companies did not show
a causal connection between their actions and federal man-
dates. Specifically, the Residents contend that the Companies
have not shown that the Residents’ injuries were caused by
2 Contrary to the Residents’ claims, our caselaw conforms with our
sister circuits’. See Isaacson, 517 F.3d at 136–37 (observing that “close su-
pervision of the private entity by the Government” may demonstrate that
the entity is assisting the government); see also Sawyer v. Foster Wheeler LLC,
860 F.3d 249, 255 (4th Cir. 2017) (“[C]ourts have unhesitatingly treated the
‘acting under’ requirement as satisfied where a contractor seeks to remove
a case involving injuries arising from equipment that it manufactured for
the government.”).
10 Nos. 19-3159 & 19-3160
their wartime production for the government. The Residents,
however, make the mistake of “demanding an airtight case on
the merits in order to show the required causal connection.”
Acker, 527 U.S. at 432. The Supreme Court’s jurisprudence
teaches that the policy in favor of federal officer removal
“should not be frustrated by a narrow, grudging interpreta-
tion of § 1442(a)(1).” Willingham v. Morgan, 395 U.S. 402, 407
(1969). Imposing the Residents’ unduly strict standard of cau-
sation would do just that.
Before 2011, removing defendants “were required to
demonstrate that the acts for which they were being sued oc-
curred at least in part because of what they were asked to do
by the Government. In 2011, however, the statute was
amended to encompass suits for or relating to any act under
color of federal office.” In re Commonwealth’s Motion to Appoint
Counsel Against or Directed to Def. Ass’n of Philadelphia, 790 F.3d
457, 471 (3d Cir. 2015) (“Def. Ass’n of Philadelphia”) (citations
and internal quotation marks and brackets omitted).
Since then, three of our fellow circuits have concluded
that, in the Removal Clarification Act, “Congress broadened
federal officer removal to actions, not just causally connected,
but alternatively connected or associated, with acts under color
of federal office.” Latiolais v. Huntington Ingalls, Inc., 951 F.3d
286, 292 (5th Cir. 2020) (en banc); see also id. at 296 (“Subject to
the other requirements of section 1442(a), any civil action that
is connected or associated with an act under color of federal
office may be removed.”); Sawyer v. Foster Wheeler LLC, 860
F.3d 249, 258 (4th Cir. 2017) (“[T]here need be only ‘a connec-
tion or association between the act in question and the federal
office.’”) (citation omitted); Def. Ass’n of Philadelphia, 790 F.3d
at 471 (holding the same).
Nos. 19-3159 & 19-3160 11
Up until today, by contrast, we and the Eleventh Circuit
have stopped short of abandoning the “causal connection”
test, though we both had “essentially implemented a connec-
tion rationale for removal.” Latiolais, 951 F.3d at 292; see also
id. at 295 n.8 (“In part because these courts interpret the
‘causal nexus’ or ‘causal connection’ requirement more ex-
pansively—and more in line with [Supreme Court prece-
dent]—than our court has done in recent cases, the outcomes
in these cases have not been affected by failure to give effect
to the new ‘relating to’ language in section 1442(a).”); Caver v.
Cent. Ala. Elec. Coop., 845 F.3d 1135, 1144 & n.8 (11th Cir. 2017)
(similar). We see no need to do so any longer, however, and
now join all the courts of appeals that have replaced causation
with connection and expressly adopt that standard as our
own.
This position better comports with the Supreme Court’s
decisions, which have never utilized a rigid causation stand-
ard for removal. Indeed, long before the Removal Clarifica-
tion Act of 2011, the Court had opined that “the statute does
not require that the [lawsuit] must be for the very acts which
the [defendant] admits to have been done … under federal
authority. It is enough that [the] acts … constitute the basis …
of the state [lawsuit].” Maryland v. Soper, 270 U.S. 9, 33 (1926);
see also Acker, 527 U.S. at 433 (“The circumstances that gave
rise to the tax liability, not just the taxpayers’ refusal to pay,
‘constitute the basis’ for the tax collection lawsuits at issue.”)
(citation omitted). Putting it another way, the Court has de-
termined that it is “sufficient for [the defendant] to have
shown that their relationship to [the plaintiff] derived solely
from their official duties.” Willingham, 395 U.S. at 409.
12 Nos. 19-3159 & 19-3160
The Residents misunderstand these precedents. To be
sure, they have raised serious questions about whether the
Companies’ pollution that allegedly caused the Residents’ in-
juries flowed from the Companies’ specific wartime produc-
tion for the federal government or from their more general
manufacturing operations outside those confines. But those
are merits questions that a federal court should decide. See id.
(“If the question raised is whether they were engaged in some
kind of ‘frolic of their own’ in relation to respondent, then
they should have the opportunity to present their version of
the facts to a federal, not a state, court.”).
For example, in Winters, the defendants had produced
their goods before the federal government got involved. 149
F.3d at 399. Still, the Fifth Circuit did not make much of this
fact because the government required a distinct formulation
composed of a mixture unlike its commercial counterpart. Id.
So too here. The Companies assert that their materials and
manufacturing processes corresponded to detailed federal
specifications and stayed under the tight control of the gov-
ernment. It rightly remains to be seen whether a connection
or association exists between the Residents’ health conditions
and their alleged exposure to federally dictated chemicals or
others.
Simply stated, the Companies did not need to allege “that
the complained-of conduct itself was at the behest of a federal
agency. It is sufficient for the ‘acting under’ inquiry that the
allegations are directed at the relationship” between the Com-
panies and the federal government. Def. Ass’n of Philadelphia,
790 F.3d at 470; see also Isaacson, 517 F.3d at 137–38 (“To show
causation, Defendants must only establish that the act that is
Nos. 19-3159 & 19-3160 13
the subject of Plaintiffs’ attack (here, the production of the by-
product dioxin) occurred while Defendants were performing
their official duties.”).
Reaching the opposite result, the district court held that
remand was appropriate because “the bulk of [the Compa-
nies’] operations occurred outside this [war]time period.” In
that court’s judgment, the Companies did not have enough
federal government contracts connected to or associated with
this case to remove it. We see no support in the statute or prec-
edent for this rule that a removing defendant must operate
under government orders for most of the relevant time frame.
It may make some sense, at least as a matter of policy, to re-
quire a removing defendant to allege more than a de minimis
amount of federal transactions to establish jurisdiction. This
is not the case in which to do so, however, given that the dis-
trict court estimated that Atlantic Richfield’s predecessor op-
erated under government commands for 20% of the relevant
time span and DuPont for 5-to-15% of the period.3
Assuming for the sake of argument that some of the Resi-
dents’ allegations of soil contamination do not relate to the
Companies’ acts under color of federal office, “removal need
3 Although the Residents purport to disclaim that their lawsuit is
about DuPont’s manufacture of Freon-12 for the government during this
time, the fact is that DuPont alleges that its Freon-12 production resulted
in waste streams that contained lead and arsenic. Those are the two main
toxins the Residents claim harmed them. The Residents cannot have it
both ways. Clearly, the parties dispute whether the Residents’ injuries
arise from products DuPont manufactured for the government. This is just
another example of a difficult causation question that a federal court
should be the one to resolve.
14 Nos. 19-3159 & 19-3160
not be justified as to all claims asserted in the plaintiffs’ com-
plaint; rather, the defense need only apply to one claim to re-
move the case.” Sawyer, 860 F.3d at 257; see also Ruppel, 701
F.3d at 1182 (“If CBS has a colorable defense as to either claim,
then the entire case is removable.”); Charles Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3726 (rev. 4th
ed. 2009) (“Because Section 1442(a)(1) authorizes removal of
the entire action even if only one of the controversies it raises
involves a federal officer or agency, the section creates a spe-
cies of statutorily-mandated supplemental subject-matter ju-
risdiction.”).
Similarly, even if the Residents eventually prove that the
Companies’ pollution occurred because of acts not directed
by the federal government, it is still enough for the present
purposes of removal that at least some of the pollution arose
from the federal acts. See Isaacson, 517 F.3d at 138. Again,
“whether the challenged act was outside the scope of Defend-
ants’ official duties, or whether it was specifically directed by
the federal Government, is one for the federal—not state—
courts to answer.” Id. The Companies’ wartime production
was a small, yet significant, portion of their relevant conduct.
Giving the Companies the benefit of all reasonable inferences
from the facts alleged, we conclude a “federal interest in the
matter” supports removal. Willingham, 395 U.S. at 406 (cita-
tion omitted).
Colorable Federal Defense
Lastly, we must determine whether the Companies have a
colorable federal defense that entitles them to removal. “The
government contractor defense, developed in Boyle v. United
Technologies Corp., [487 U.S. 500, 511–12 (1988),] immunizes
Nos. 19-3159 & 19-3160 15
government contractors from state tort law when the govern-
ment had a hand in a defendant’s allegedly defective design.”
Ruppel, 701 F.3d at 1183. “The defense applies where (1) the
federal government approved reasonably precise specifica-
tions, (2) the manufactured equipment conformed to the gov-
ernment’s specifications, and (3) the contractor warned the
federal government about the equipment’s dangers that were
unknown to the government.” Betzner, 910 F.3d at 1016.
The district court declined to analyze the defense in any
detail. Specifically, it neither reached the defense at all as to
DuPont, nor addressed whether Atlantic Richfield could meet
the third element of the defense (supplier warnings to the
government). Consequently, for the purposes of this appeal,
we assume that the Companies have colorable defenses. That
said, we find it necessary to address the district court’s appar-
ent conclusion that Atlantic Richfield could not avail itself of
the government contractor defense because it merely sold
standard materials that were available across the general mar-
ket. We cannot agree with this analysis.
The government contractor defense broadly applies to any
product supplied for government use so long as it conformed
to the government’s “reasonably precise specifications.”
Boyle, 487 U.S. at 512. That is all that the defense requires
when it comes to the nature or quality of the goods. It is un-
disputed that Atlantic Richfield is the putative successor to a
company that adhered to detailed specifications (e.g., exact
physical and chemical properties) promulgated by the federal
government for manufacturing certain materials in wartime.
Atlantic Richfield has therefore set forth sufficient factual de-
tails regarding its government contractor defense.
16 Nos. 19-3159 & 19-3160
Two recent federal appellate decisions do not persuade us
otherwise. In Mayor & City Council of Baltimore v. BP P.L.C.
(“Baltimore”), the Fourth Circuit concluded that simply selling
the Navy Exchange Service Command (“NEXCOM”) fuel for
resale on Navy bases was insufficient to qualify for the de-
fense and therefore removal. 952 F.3d 452, 463 (4th Cir. 2020),
petition for cert. filed (U.S. Mar. 31, 2020) (No. 19-1189). As the
court pointed out, the contracts at issue only involved “a
standardized consumer product,” undifferentiated from that
supplied to civilians. Id. at 464. Likewise, in County of San
Mateo v. Chevron Corporation—a case also involving the provi-
sion of fuel to NEXCOM—the Ninth Circuit determined that
the fuel contracts at issue “evince[d] an arm’s length business
relationship to supply NEXCOM with generally available
commercial products.” — F.3d —, —, 2020 WL 2703701, at *8
(9th Cir. May 26, 2020). For that reason, the court held that the
contractor defense, and accordingly removal, was unavailable
to the defendants. Id.
Both factual situations are readily distinguishable from
the one before us. Indeed, Baltimore explicitly differentiated
the situation before it—the provision of fuel for resale to ser-
vicemen and women during peacetime—from those in Win-
ters, where the defendant provided the means to engage in
chemical warfare, and Sawyer, where the defendant provided
specific component parts for use aboard military vessels. 952
F.3d at 463 (citing 149 F.3d at 390; 860 F.3d at 252). Similarly,
San Mateo focused on the fact that the defendants supplied a
product identical to that available to consumers. 2020 WL
2703701 at *8.
Nos. 19-3159 & 19-3160 17
In this case, by contrast, at least some of ISR’s production
went directly to the United States military to support its ef-
forts in World War II, and nearly all its production served as
inputs to produce a wide variety of critical wartime supplies.
The federal government dictated to whom and in what
amounts ISR could sell its products, outside of the quota it
reserved for itself, and it also set precise specifications for
those final products. In these circumstances, it strains credu-
lity to equate ISR to a fuel distributor operating in peacetime
given it operated under such intense directives to produce
specialty items according to precise specifications. The asser-
tion that the production at issue in this case resulted from
arms-length transactions for “off-the-shelf” goods like the
fuel in Baltimore and San Mateo simply ignores the reality that,
unlike in those cases, the government here all but national-
ized ISR’s production during World War II.
More importantly, the “off-the-shelf” theory elides the fact
that, here, the government required ISR to produce the goods
it did according to detailed specifications that differentiated
those goods from the ones it supplied civilian consumers. See,
e.g., Isaacson, 517 F.3d at 138 (rejecting plaintiffs’ off-the-shelf
theory because “commercially available products did not con-
tain the Agent Orange herbicides in a concentration as high
as that found in Agent Orange.”). We can see the logic of with-
holding the government contractor defense from a supplier
who provides what amounts to the same fuel as that available
at any local gas station, but extending this reasoning and de-
scribing lead and other industrial products as “off-the-shelf”
is a bridge too far for us to cross in this case. Consequently,
the rationale of Baltimore and San Mateo does not apply here,
and Atlantic Richfield has a colorable federal defense.
18 Nos. 19-3159 & 19-3160
* * *
“At this point,” it is worth remembering that “we are con-
cerned with who makes the ultimate determination, not what
that determination will be.” Ruppel, 701 F.3d at 1182. This ap-
peal, like others that come to us under the federal officer re-
moval statute, presents “complex issues, but the propriety of
removal does not depend on the answers.” Venezia v. Robin-
son, 16 F.3d 209, 212 (7th Cir. 1994). Both the Residents and
the Companies have reasonable theories of this case. Our role
at this stage of the litigation is to credit only the Companies’
theory. See Acker, 527 U.S. at 432. After reviewing their allega-
tions and the applicable law, we conclude the Companies
have made an adequate threshold showing to remove their
case to federal court.
III. Conclusion
For the reasons stated above, we REVERSE the judgment of
the district court and REMAND for further proceedings con-
sistent with this opinion.