FILED

NOT FOR PUBLICATION

SEP 21 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STATE OF WASHINGTON, No. 17-35641

Plaintiff-Appellee, D.C. No. 2:17-cv-00053-RSL

v.

MEMORANDUM*

MONSANTO COMPANY;

PHARMACIA CORPORATION;

SOLUTIA, INC.,

Defendants-Appellants,

and

DOES, 1-100,

Defendant.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Argued and Submitted August 29, 2018** Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** We grant the Motion To Take Judicial Notice, filed February 20, 2018 (Dkt. # 27). Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.

Defendants Monsanto Company, Pharmacia Corporation, and Solutia, Inc.

(collectively “Monsanto”) appeal the district court’s order remanding the case to

state court. Monsanto argues that it manufactured polychlorinated biphenyls

(“PCBs”) under federal direction, and their action was therefore properly removed

to federal court on the basis of federal officer jurisdiction under 28 U.S.C. §

1442(a)(1). We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 1447(d), and

we affirm the district court.

We review the district court’s remand order de novo. Cabalce v. Thomas E.

Blanchard & Assocs., Inc., 797 F.3d 720, 727 (9th Cir. 2015). Section 1442(a)(1)

provides that “[a] civil action or criminal prosecution” initiated in state court “that

is against or directed to . . . any officer (or any person acting under that officer) of

the United States or of any agency thereof, in an official or individual capacity, for

or relating to any act under color of such office” may be removed to federal district

court. 28 U.S.C. § 1442(a)(1). A private entity seeking removal under 28 U.S.C. §

1442(a)(1) must demonstrate that “(a) it is a ‘person’ within the meaning of the

statute; (b) there is a causal nexus between its actions, taken pursuant to a federal

officer’s directions, and plaintiff’s claims; and (c) it can assert a ‘colorable federal

defense.’” Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006)

2 (citing Jefferson Cnty. v. Acker, 527 U.S. 423, 431 (1999); Mesa v. California, 489

U.S. 121, 124–25 (1989)).

The second element, known as the “causal nexus” requirement, is

dispositive here. In order to meet the “causal nexus” requirement, the removing

party must show that it “act[ed] under” federal authority within the meaning of 28

U.S.C. § 1442(a)(1), and that its actions under federal authority are sufficiently

related to plaintiff’s claims. See Goncalves ex rel. Goncalves v. Rady’s Children’s

Hosp. San Diego, 865 F.3d 1237, 1244–45 (9th Cir. 2017) (separating “acting

under” and “causal connection” requirements). A private person acts “under” a

federal officer within the meaning of the statute where that person takes “an effort

to assist, or to help carry out, the duties or tasks of the federal superior,” a

relationship that “typically involves ‘subjection, guidance, or control’” by the

federal officer. Watson v. Philip Morris Cos. Inc., 551 U.S. 142, 151–52 (2007)

(citation omitted) (emphasis in original). Compliance with federal law is not

sufficient. Id. at 153.

Monsanto argues that it acted under federal authority, because the federal

government sponsored, required, and compelled the production of PCBs before,

during, and after World War II. We disagree. In support of removal, Monsanto

attached invoices for sales of PCB products to the federal government and

3 contractors, as well as government specifications for defense products such as heat-

resistant aluminum paint that recommend the use of PCBs. However, this evidence

shows only that the federal government purchased off-the-shelf PCB products from

Monsanto and recommended the use of PCBs as a component in defense

specifications. It does not show that the federal government supervised Monsanto’s

manufacture of PCBs or directed Monsanto to produce PCBs in a particular

manner, so as to come within the meaning of “act[ed] under.” 28 U.S.C. §

1442(a)(1).

Monsanto also submitted necessity certificates and applications for necessity

certificates, arguing that these documents demonstrate that the federal government

“financed expansions of [its] facilities so that it could expand production of PCBs

for the military and its defense contractors.” These documents show that Monsanto

received tax incentives for producing PCBs, but again, do not show that the

government supervised or controlled Monsanto’s manufacture of PCBs.

Finally, Monsanto submitted two letters that document instances in which

the federal government ordered Monsanto to accept a third party’s purchase orders

for PCBs, invoking Section 101 of the Defense Production Act, Pub. L. No.

81-774, 64 Stat. 798, 799 (1950); Monsanto’s response to a letter noting “the

increasing environmental concerns expressed about products containing [PCBs]”

4 but ultimate acceptance of the purchase order; and correspondence discussing

Monsanto’s fulfillment of a purchase order from a defense contractor. These letters

show that Monsanto was required to comply with Section 101 of the Defense

Production Act. However, compliance with federal law is not sufficient to establish

that Monsanto “act[ed] under” federal authority. Watson, 551 U.S. at 153 (citation

omitted). The letters do not show ongoing federal supervision in the manufacture

or production of PCBs.

AFFIRMED.

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