Landon Young v. Chemguard, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 17, 2022
• Docket: 21-15912
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 17 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LANDON YOUNG, individually and as No. 21-15912 husband; HEATHER YOUNG, individually and as wife, D.C. No. 2:21-cv-00568-SPL

Plaintiffs-Appellees, MEMORANDUM* v.

TYCO FIRE PRODUCTS, LP, a Delaware limited partnership; et al.,

Defendants-Appellants,

and

ANGUS FIRE, LTD., a Delaware limited partnership,

Defendant.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted January 11, 2022 Pasadena, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and BLOCK,** District

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Frederic Block, United States District Judge for the Judge.

In this appeal, we determine whether the district court erred by remanding

this case after it was removed to federal court under the federal officer removal

statute, 28 U.S.C. § 1442. Applying the framework we previously set forth in Leite

v. Crane Co., 749 F.3d 1117 (9th Cir. 2014), we affirm.

Plaintiff-Appellee Landon Young is a firefighter with the Goodyear Fire

Department in Goodyear, Arizona. For over a decade, he worked with aqueous

film-forming foams (AFFFs), a class of allegedly carcinogenic fire-fighting agents.

After Mr. Young developed testicular cancer, he and his wife sued several AFFF

manufacturers and distributors—Defendants-Appellants Chemguard, Inc.; Tyco

Fire Products, LP; Perimeter Solutions, LP; L.N. Curtis and Sons, Inc.; and

Matlick Enterprises, Inc. (collectively, “Chemguard”)—in Arizona state court,

asserting product liability claims under Arizona state law.1

Chemguard removed the case to federal court under the federal officer

removal statute. This statute allows cases to be heard in federal court if they’re

“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

Eastern District of New York, sitting by designation. 1 The Youngs also sued Angus Fire Ltd., but it hasn’t appeared in this case either before the district court or on appeal.

2 or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1).

Chemguard argues that this case can be heard in federal court under this

statute based on the use of military-grade AFFFs at Luke Air Force Base, a

military base a few miles north of Goodyear. According to Chemguard, chemical

components of these so-called “MilSpec” AFFFs seeped into the groundwater at

Luke, migrated south to Goodyear, and got into the town’s water supply. There,

Chemguard alleges, Mr. Young drank the contaminated water and used it in his

firefighting duties. While Chemguard denies that AFFFs caused Mr. Young’s

cancer, it argues that to the extent AFFFs did contribute to his cancer, at least some

of those AFFFs were likely MilSpec AFFFs that originated at Luke. And because

Chemguard made these MilSpec AFFFs to meet Department of Defense

requirements, Chemguard says that the federal officer removal statute applies here.

The Youngs filed a motion to remand the case. They say that Chemguard’s

removal was improper because the Youngs have not asserted any MilSpec- or

groundwater-related claims. The district court agreed and remanded the case based

on the allegations in the complaint. Chemguard appealed.

We have jurisdiction to review the district court’s grant of a motion to

remand under 28 U.S.C. § 1447(d) and review the district court’s grant of the

motion to remand de novo. Aguon-Schulte v. Guam Election Comm’n, 469 F.3d

1236, 1240 (9th Cir. 2006); Riggs v. Airbus Helicopters, Inc., 939 F.3d 981, 984

3 (9th Cir. 2019), cert. den., 141 S. Ct. 161 (2020). We accept as true all facts

alleged in the notice of removal and draw all reasonable inferences in favor of the

party seeking removal. Fidelitad v. Insitu, Inc., 904 F.3d 1095, 1098 (9th Cir.

2018).

We affirm the district court’s decision to remand. See Zixiang Li v. Kerry,

710 F.3d 995, 999 (9th Cir. 2013) (noting that the Ninth Circuit can affirm on any

basis supported by the record, whether or not it was relied on by the district court).

A defendant removing a case to federal court under the federal officer removal

statute must show, among other things, that “a causal nexus exists between [the

plaintiff’s] claims and the actions [the defendant] took pursuant to a federal

officer’s direction.” Leite, 749 F.3d at 1120.

Here, Chemguard has failed to plausibly allege such a nexus in its notice of

removal. Some of the notice’s allegations on this issue are impermissibly

conclusory—for example, “[t]he causal connection between Plaintiffs’ alleged

injuries and Chemguard’s actions under color of federal office is clear.” The non-

conclusory allegations— for example, “[t]he public water supply in the City of

Goodyear contains or contained [carcinogens] that likely originated in part from

AFFF used at Luke Air Force Base”—propose an alternative theory of causation

that the Youngs have expressly disavowed. Thus, the Youngs will have to prove

that Mr. Young’s direct exposure to commercial AFFFs as a firefighter caused his

4 cancer; this claim has no causal nexus to contamination of Goodyear’s

groundwater by MilSpec AFFFs.

The evidence Chemguard submitted does not cure this deficiency, nor do

Chemguard’s other arguments alter this conclusion. Chemguard has not identified

any caselaw that sufficiently supports its contentions about the 2011 amendment to

the federal officer removal statute. And as Chemguard conceded at oral argument,

the other AAAF-related cases Chemguard relies on involve complaints where the

plaintiff explicitly alleged groundwater contamination as a source of injury.

Because Chemguard’s failure to show a plausible causal nexus between its

government-directed actions and the Youngs’ claims is fatal to its appeal, we need

not address whether Chemguard has satisfied the other requirements of the federal

officer removal statute.

AFFIRMED.