Table Of Contents

INTRODUCTION

If this Court chooses to exercise “federal agency” jurisdiction over the claims of the non-OF/RFG plaintiffs in this case, this dramatic, unprecedented, and imaginative expansion of the scope of 28 U.S.C. § 1442(a) would render such a decision an ideal candidate for certification of an interlocutory appeal under 28 U.S.C. § 1292(b).[1] The independent issue raised by these particular plaintiffs cries out for an interlocutory appeal, regardless of this Court’s view of the propriety of 1292(b) certification of issues already raised by other plaintiffs.[2]

For the reasons previously described in the motion to remand denied by this Court in its memorandum decision of March 16, 2004, the non-OF/RFG Plaintiffs are united with other plaintiffs in their disagreement with this Court’s assertion of jurisdiction under section 1442(a) with respect to any of the water provider plaintiffs in this case. They also agree that certification of an interlocutory appeal is appropriate with respect to those issues raised by the original remand motion, and the non-OF/RFG Plaintiffs thus join in the motion for 1292(b) certification filed by the California plaintiffs and incorporate by reference the substantive arguments made in the supporting memorandum.[3] Nonetheless, the non-OF/RFG Plaintiffs underscore that the additional jurisdictional issue as to their specific claims is a bird of a different feather. Because there is an even more substantial ground for difference of opinion as to application of 28 U.S.C. § 1442(a) with specific respect to the non-OF/RFG Plaintiffs’ claims, if this Court denies the motion to clarify, it should certify the following issue for interlocutory appeal even if it declines to certify the two issues already identified[4] by the California plaintiffs:

Issue3.Whether voluntary conduct by a private entity that is not under contract with the federal government, is not acting pursuant to specific instructions from an officer or agency of the United States, and is not controlled by an officer of the United States, can still be “acting under [an officer of the United States or any agency thereof]” within the meaning of 28 U.S.C. § 1442(a) because a federal agency has merely granted permission for the private entity to engage in the relevant conduct.


As to these non-OF/RFG Plaintiffs, Defendants cannot point to any regulation that even arguably requires them to deliver MTBE-containing gasoline to the non-OF/RFG jurisdictions. Instead, Defendants have argued that their voluntary, economic decisions to deliver MTBE-containing gasoline to non-OF/RFG jurisdictions in the form of “interface” and “spillover” constitute acts taken under the direction of a federal agency for purposes of 28 U.S.C. § 1442(a) merely because the United States Environmental Protection Agency (EPA) granted them permission to make such sales.

At best, Defendants have established that the existence of the RFG and OF programs is one of several factors that led to their decision to sell small quantities of RFG gasoline in non-OF/RFG jurisdictions, in the form of “interface” and “spillover.” But Defendants have wholly failed to demonstrate that these “interface” and “spillover” sales were required by the federal government, either as a matter of law or as a matter of practical effect. To the contrary, Defendants have shown only that, in certain limited circumstances, they would have been required to spend more money to deliver MTBE-free gasoline to non-OF/RFG jurisdictions, and that federal regulations anticipated this choice and permitted the cheaper option. This does not equate with a credible claim that the federal government forced Defendants to commit the culpable acts of which the non-OF/RFG Plaintiffs complain. Indeed, Defendants do not even contest the fact that, for reasons having nothing to do with federal regulations, they have added substantial quantities of MTBE as an octane enhancer to gasoline sold in both non-OF/RFG and OF/RFG jurisdictions.

Because “federal agency” jurisdiction has never encompassed claims based on voluntary decisions by private actors that have not even contracted with the federal government, this Court should certify for immediate interlocutory appeal any decision to deny remand of the claims of the non-RFG Plaintiffs here. Additionally, in the event that the Court decides that no “federal officer” jurisdiction exists but rules that one of Defendants’ other stated grounds for removal — “complete preemption,” “substantial federal question,” or the Texaco bankruptcy — supports federal subject matter jurisdiction, the Court should also certify that ruling for interlocutory appeal to allow for resolution of all issues related to subject matter jurisdiction.

THE JURISDICTIONAL ISSUE PRESENTED HERE IS IDEALLY SUITED FOR CERTIFICATION OF AN INTERLOCUTORY APPEAL.

If this court decides to exercise jurisdiction over the claims of the non-OF/RFG Plaintiffs, such decision would easily satisfy the three-part test for certification of interlocutory appeal under 28 U.S.C. § 1292(b):

a court, in its discretion, may certify an interlocutory order for appeal if the order “[1] involves a controlling question of law [2] as to which there is substantial ground for difference of opinion and [3] that an immediate appeal from the order may materially advance the ultimate termination of the litigation.”


In re Methyl Tertiary Butyl Ether (“MTBE”) Products Liability Litigation, 175 F. Supp.2d 4, 7 (S.D.N.Y. 2001) (emphasis in original) (citing 28 U.S.C. § 1292(b)). For the same reasons already identified and articulated by the California plaintiffs, the existence of subject matter jurisdiction is both a “controlling issue of law” for purposes of 1292(b), and appeal from denial of remand will “materially advance the ultimate termination of the litigation.” Rather than repeating those reasons here, the non-OF/RFG Plaintiffs expressly adopt and incorporate those sections of the California plaintiffs’ memorandum of law discussing these two prongs of the 1292(b) certification requirements. See Memo. of Law in Support of California Plaintiffs’ Motion for Remand or in the Alternative for Certification Pursuant to 28 U.S.C. § 1292(b) at 8-10; 22-23. Below, the non-OF/RFG Plaintiffs set out the “substantial ground for difference of opinion” as to the applicability of “federal agency” jurisdiction in this specific context.

No Court Has Previously Premised Federal Agency Jurisdiction on the Existence of Federal Regulations that Merely Permit the Conduct at Issue by a Private Actor That Has Not Contracted with the Federal Government.

As set forth extensively in the brief submitted by the California plaintiffs, other courts have exercised federal agency jurisdiction under 28 U.S.C. § 1442(a) only in the following limited circumstances, none of which apply here: 1) suits against federal employees; 2) suits against defendants who have a contractual relationship with the federal government; 3) suits in which the removing defendant has received express instructions from a federal official; or 4) suits involving some other form of direct and substantial control by a federal officer over the conduct of a removing defendant. See Memo. of Law in Support of California Plaintiffs’ Motion for Remand or in the Alternative for Certification Pursuant to 28 U.S.C. § 1292(b) at 11-15.[5] As described below, none of these circumstances exist in this case, because the conduct at issue in this case involves wholly voluntary economic decisions by Defendants, which have in no way been mandated by the federal government.

The simple truth is that no federal regulation requires that gasoline distributed to non-OF/RFG areas contain any oxygenate, much less MTBE. The OF and RFG programs establish geographic regions in which oxygenates must be used. Although oxygenates must be added to gasoline sold in those parts of the country, there is no requirement to use oxygenates in any other areas (the non-OF/RFG areas). See 40 C.F.R. §§ 80.70 (listing areas covered by RFG program); 81.305 (listing carbon monoxide nonattainment areas). In non-OF/RFG areas, any decision to add oxygenates is a voluntary choice. Although Defendants claim that this choice was somehow forced by the OF and RFG programs, their arguments point only to their own economic decisions to sell RFG gasoline (and mixtures containing RFG gasoline) in non-OF/RFG areas. While Defendants may have added MTBE to gasoline in non-OF/RFG areas for any number of reasons, it was not because federal regulations required them to do so, which is a mandatory prerequisite for federal agency jurisdiction.

The purported basis for federal agency jurisdiction as to the non-OF/RFG Plaintiffs is quite distinct – and even more radical – than the grounds for jurisdiction considered by the Court in its March 16, 2004 Order. In March, this Court determined that a fact question remains as to federal agency jurisdiction based on federal regulations requiring that oxygenates be added to gasoline in OF/RFG areas, coupled with Defendants’ factual allegation that MTBE was the only feasible oxygenate available. Thus, as discussed in the California plaintiffs’ memorandum of law, this Court’s analysis of federal agency jurisdiction under those circumstances creates a new legal standard of “regulation minus.” That is, under the Court’s analysis in the March 16 opinion, the federal direction necessary to support jurisdiction over the RFG plaintiffs under 28 U.S.C. § 1442(a) exists only through the combined effect of a discretionary regulation and market forces that allegedly eliminate the industry’s discretion in complying with the regulations.[6]

If this Court’s exercise of federal agency jurisdiction as to the RFG plaintiffs amounts to a legal standard of “regulation minus,” then as to the non-RFG plaintiffs, any exercise of federal agency jurisdiction would depend upon an even more radical legal standard of “no-regulation-minus.” Here, no federal regulations require that MTBE or any other oxygenate be added to gasoline sold in non-OF/RFG areas, and – as to these specific plaintiffs – Defendants’ factual allegations instead amount to no more than a claim that they sometimes make voluntary economic decisions to distribute RFG gas in non-OF/RFG areas. Thus, the basis for the alleged existence of federal agency jurisdiction as to the non-RFG plaintiffs stems entirely from market forces. The gossamer connection of the federal government to Defendants’ economic decisions to sell MTBE-containing gasoline in non-OF/RFG areas arises only because some, but clearly not all, of the relevant market forces that shape those voluntary decisions are created in the broad factual context of the RFG program, which does not even apply to non-OF/RFG areas.

The EPA permits “spillover” and “interface” sales of RFG gas in non-OF/RFG areas as an economic accommodation to industry, because such sales do not conflict with the OF/RFG programs. Second Decl. of Graboski at ¶6(7). This is a far cry from any legal requirement that such sales take place. Moreover, Defendants have never contested that the bulk of their sales of MTBE-containing gasoline in non-OF/RFG areas stem from their decision to use MTBE as an octane-enhancer, which is in no way related to any federal regulation.

Defendants’ decisions to avail themselves of federally-permitted economic opportunities may be understandable and foreseeable, but such voluntary decisions do not create “federal agent” jurisdiction any more than the equally understandable and foreseeable decisions by drug companies to market FDA-approved drugs or medical devices. See, e.g., Little v. Purdue Pharma, L.P., 227 F. Supp.2d 838 (S.D. Ohio 2002). In both the drug company cases and here, the federal government has granted express permission for an activity that has become the subject of a lawsuit, but in neither circumstance has the government required or directed that the activity take place.

Invocation of Federal Agency Jurisdiction in this Case Will Open Federal Courthouses to a Wide Variety of State Law Tort Claims That Have Historically Proceeded in State Courts.

Substantial ground for difference of opinion will exist with respect to any decision to invoke federal agency jurisdiction here, in part because this decision will open the floodgates to assertion of federal agency jurisdiction in any tort lawsuit against a defendant that participates in a regulated industry. In this Court’s memorandum decision of March 16, 2004, the Court rejected a similar contention by the RFG water provider plaintiffs on the basis that “[d]efendants do not seek removal merely because gasoline is subject to regulation. Instead, Defendants argue that the federal government required them to add MTBE to gasoline, the conduct upon which Plaintiffs’ claims are based.” Opinion at 21 (emphasis in original). By contrast to the allegations with respect to the RFG Plaintiffs, however, as shown above, Defendants here cannot demonstrate that the federal government required them to add MTBE to gasoline sold in non-RFG areas. Again, as detailed above, Defendants have at best shown that the federal government anticipated their economic concerns and permitted them, by regulation, to sell MTBE-containing gasoline in non-RFG jurisdictions.

To the extent the existence of such permissive federal regulations suffices to invoke federal agency jurisdiction, then federal courts would be forced to exercise jurisdiction over garden-variety state tort law claims against defendants in virtually every regulated industry. At minimum, this would require assertion of federal agency jurisdiction in all pharmaceutical litigation, all pesticide/herbicide litigation, virtually any lawsuit involving allegations of environmental contamination, and many other areas as well. Congress did not intend this result, and other courts have certainly not adopted this approach. See, e.g., Kennedy v. Health Options, Inc., 2004 WL 1772364 (S.D.Fla. 2004) (granting motion to remand case involving claims relating to Medicare benefits, because “[w]hile there are federal regulations involved in providing Medicare benefits, the presence of federal regulations does not satisfy the requirements to assert federal jurisdiction pursuant to 28 U.S.C. § 1442(a)(1)”); Paldrmic v. Altria Corporate Services, Inc., 2004 WL 1716059 (E.D.Wis. 2004) (granting motion to remand case against cigarette manufacturers, despite defendants’ allegations that the Federal Trade Commission directed their marketing activities at issue in the suit, because “[r]emoval under § 1442(a)(1) will not be permitted if the defendant cannot establish direct and detailed control but only that the relevant acts occurred under the general auspices of a federal officer, as would be the case, for example, if the defendant were simply a participant in a regulated industry”); In re Wireless Telephone Radio Frequency Emissions Products Liability Litigation, 2004 WL 1634969 (D.Md. 2004) (“To support removal jurisdiction as to these allegations, the defendants must show not only that the phones were manufactured according to FCC specifications, but also that the FCC restricted or prohibited them from providing additional safeguards or information to consumers”); Tellez v. Dole Food Co., Inc., No. CV 04-03216 PA (CTx) (C.D.Cal. June 18, 2004) (finding Dow to be a federal officer based on its mere compliance with FIFRA pesticide labeling requirements would impermissibly extend § 1442 jurisdiction); Little, 227 F.Supp.2d at 860 (expressly rejecting contention that federal agency jurisdiction existed because pharmaceutical defendants were part of a heavily regulated industry).

Apart from the already substantial grounds for difference of opinion that exist with respect to issues relating to this Court’s exercise of federal agency jurisdiction over any of the cases currently pending in this multidistrict litigation, application of 28 U.S.C. § 1442(a) in the specific context of the non-OF/RFG Plaintiffs’ claims raises even more serious concerns. Defendants cannot assert, even as a matter of the practical effect of regulatory requirements, that the federal government has forced them to sell MTBE-containing gasoline in non-OF/RFG areas. This Court has expanded the scope of 28 U.S.C. § 1442(a) to include circumstances in which the only basis for “federal direction” is a set of permissive federal regulations that do not require Defendants to take the actions complained of in the lawsuit. Application of this rule of law would require assertion of federal agency jurisdiction in every tort case in which regulated conduct was at issue, resulting in federal adjudication of thousands of claims that have long been properly resolved by our state court systems. Under these circumstances, immediate appellate review is both appropriate and necessary.

DEFENDANTS’ OTHER ASSERTED GROUNDS FOR REMOVAL ALSO WARRANT CERTIFICATION.

If the Court determines that no “federal officer” jurisdiction exists over cases arising in areas outside OF/RFG covered areas, but rules nonetheless that one (or more) of Defendants’ other asserted grounds for removal — i.e. “complete preemption,” “substantial federal question” or the Texaco bankruptcy — constitutes a basis for exercising federal subject matter jurisdiction over these cases, the Court should certify any such ruling for interlocutory appeal as well. A ruling upholding any of these additional grounds, like a ruling upholding “federal officer” jurisdiction, would constitute a determination of federal subject matter jurisdiction, and a reversal of such determination by the Court of Appeals would terminate this litigation in the federal courts. Thus, for the same reasons discussed in the memorandum in support of the California plaintiffs’ motion and incorporated in Part I, supra, any such ruling will involve a “controlling question of law” with respect to which an immediate appeal would “materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b).

A ruling upholding any of defendants’ additional grounds for removal would also constitute a ruling as to which there are substantial grounds for difference of opinion. With all due respect, defendants’ complete preemption, substantial federal question and bankruptcy arguments at best lie at the extreme margins of these respective jurisdictional doctrines. Indeed, in its March 16, 2004 Opinion and Order, the Court (without ruling) observed that defendants’ substantial federal question argument is “troubling” and indicated a hesitancy “to exercise jurisdiction over dozens of defendants in a multi-district litigation merely because a single defendant filed for bankruptcy and reorganized under Chapter 11 more than fifteen years ago.” Mar. 16, 2004 Opinion and Order at 26-27. If the Court ultimately reverses course, its initial skepticism regarding these issues certainly demonstrates that there are substantial grounds for difference of opinion.

The Clean Air Act Does Not Completely Preempt Plaintiffs’ State-law Claims.

Defendants’ various “complete preemption” arguments fall far outside of the established parameters of the complete preemption doctrine. Complete preemption – a very narrow exception to the well-pleaded complaint rule – permits removal of a state-law cause of action only “when the federal statute[] at issue provide[s] the exclusive cause of action for the claim asserted and also set[s] forth procedures and remedies governing that cause of action.” Beneficial National Bank v. Anderson, 539 U.S. 1, 8 (2003).

Here, far from providing “the exclusive cause of action” for claims against refiners of MTBE gasoline for water pollution, the Clean Air Act provides no cause of action whatsoever for damages to public drinking water supplies. To the contrary, the Clean Air Act specifically preserves state common law claims, expressly stating: “Nothing in this section shall restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any emission standard or limitation or to seek any other relief.” 42 U.S.C. § 7604(e); see also In re MTBE Litig., 175 F. Supp. 2d 593, 613, n.35 (S.D.N.Y. 2001) (“Congress’ intent to allow some state causes of action is also evidenced by the CAA’s citizen suit savings provision, codified at 42 U.S.C. § 7604(e)”); Int’l Paper Co. v. Ouellette, 479 U.S. 481, 492, (1987) (identical savings language in the Clean Water Act “negates the inference that Congress ‘left no room’ for state causes of action”).

Thus, whether or not defendants may have a “colorable” federal preemption defense, there can be no “compete preemption” for jurisdictional purposes in this case. Beneficial National Bank, 539 U.S. at 7 (a defense to a state law claim that relies on the allegedly preemptive effect of a federal statute “will not provide a basis for removal”); Caterpillar, Inc. v. Williams, 482 U.S. 386, 398-399 (1987) (even a potentially valid federal preemption defense is not sufficient to establish removability under the complete preemption doctrine, because “a defendant cannot, merely by injecting a federal question into an action that asserts what is plainly a state-law claim, transform the action into one arising under federal law”). Indeed, in light of the Supreme Court’s unequivocal test for complete preemption as set forth in Beneficial National Bank and Congress’ clear intent to preserve, rather than subsume, state common law remedies in the Clean Air Act and other federal environmental statutes, there will undoubtedly be substantial grounds for disagreement if this Court ultimately exercises federal jurisdiction over this case on the basis of complete preemption.

For this reason, Plaintiffs ask this Court to certify for interlocutory appeal the following question:

  1. Whether the federal Clean Air Act, which provides no cause of action for damages to public water supplies and expressly preserves state-law claims, operates to completely preempt state claims for jurisdictional purposes.


Plaintiffs’ Products Liability Claims Involve No “Substantial Federal Question.”

To show the existence of a federal question where none is alleged, defendants are required to show that a “substantial, disputed question of federal law is a necessary element” of plaintiffs’ product liability claims. Rains v. Criterion Systems, Inc., 80 F.3d 339, 345 (9th Cir. 1996) (emphasis added). But this Court has rejected the Defendants’ “substantial federal question” argument — i.e., that the cost-benefit analysis required in order to resolve plaintiffs’ defective product claims will upset EPA’s own balancing of costs and benefits regarding MTBE — as a matter of law in In re MTBE:

Defendants argue that any risk-utility analysis would impermissibly permit a reexamination of the mandatory cost-benefit analysis delegated to and performed by the EPA pursuant to its obligations under the CAA. . . . However, as discussed earlier, Congress did not mandate the use of MTBE, nor did the EPA’s certification of gasoline containing MTBE require consideration of non air- quality factors. . . . Thus, while the EPA could consider the non air-quality impact of the use of MTBE, any such consideration was . . . not commensurate with a risk-utility analysis. . . . Accordingly, defendants’ motions to dismiss these [design defect] claims are denied.


175 F.Supp.2d at 623-24 (S.D.N.Y. 2001) (emphasis added). Thus, this argument supports the existence of neither a federal question nor of federal jurisdiction.

In their opposition to the Motion for Clarification (at p. 22), Defendants recast their argument slightly, pointing out that “a jury assessing plaintiffs’ claim[s] must receive an instruction that federal law requires that clean air benefits be weighed more heavily than other factors that might go into the cost/benefit analysis at the heart of plaintiffs’ tort claims.” Defendants cite no case holding that a jury’s risk/benefit analysis must defer to federal environmental regulations. Indeed, the sole case Defendants rely on for this argument is API v. EPA, 52 F.3d 1113 (D.C. Cir. 1995), which involves only the EPA’s obligation to give clean air benefits greater weight in its own rule-making proceedings and an industry challenge to EPA rules and has absolutely nothing to do with the elements or requirements of state tort law. Even if the law required such deference to a federal rule, it would not create a substantial federal question sufficient to overcome the well-pleaded complaint rule. See Merrell Dow Pharmaceuticals v. Thompson, 478 U.S. 804, 813-14 (1986) (“the presence of the federal issue as an element of the state tort is not the kind of adjudication for which jurisdiction would serve congressional purposes and the federal system”); Shadie v. Aventis Pasteur, 254 F. Supp. 2d 509, 518 (M.D. Pa. 2003) (where defendants, not plaintiffs, ask court to interpret federal law, “[t]he mere presence of a federal issue . . . does not create federal jurisdiction”).

In short, this Court expressly rejected the substance of defendants’ substantial federal question argument in the prior incarnation of MDL 1358, and has found their attempt to recycle that argument in the jurisdictional context “troubling.” If the Court were to rule nonetheless that defendants have identified a “substantial federal question” hidden within plaintiffs’ state-law product liability claims, such a change in course would implicitly, if not explicitly, reflect that there is room for disagreement on this question.

Plaintiffs therefore ask this Court to certify the following issue for interlocutory appeal:

Issue5.Whether public water providers’ state law products liability claims involve a substantial federal question sufficient to invoke federal court jurisdiction.

The Bankruptcy of One Defendant’s Corporate Predecessor Does Not Support Federal Jurisdiction.

Finally, if the Court decides to predicate federal jurisdiction on a 1988 bankruptcy order involving the predecessor of a single defendant, that decision would also be subject to legitimate differences of opinion for at least two reasons: (1) federal jurisdiction is lacking in the first instance, as this case neither arises under Title 11, arises in a case under Title 11, nor is “related to” a case under Title 11; and (2) even if a basis for bankruptcy jurisdiction exists, remand is warranted in light of the overwhelming — indeed, exclusive — predominance of state-law issues on the one hand, and the extreme remoteness of any bankruptcy issues on the other.

First, by definitively discharging any and all claims or liabilities arising before its effective date, entry of the Texaco Confirmation Order fifteen years ago destroyed any possible relationship between the outcome of these cases and the administration of the Texaco Bankruptcy. See In re Feitz, 852 F.2d 455, 457 (9th Cir. 1988). As such, these cases are not “related to” the long-since-resolved Texaco Bankruptcy. See 28 U.S.C. § 28 U.S.C. §1334(b) (granting non-exclusive federal jurisdiction over cases arising in or related to cases under title 11); In re Chargit Inc., 81 B.R. 243, 246-247 (Bankr. S.D.N.Y. 1987) (whether a civil proceeding is “related to” bankruptcy depends on “whether the outcome of the proceeding could conceivably have any effect on the estate being administered;” “any practical definition of this term of art must be tempered by a measure of reasonableness”).

Second, even if the bankruptcy is “related to” the litigation, “that bankruptcy certainly does not divest the state court of jurisdiction.” March 16, 2004 Opinion and Order at 27; see also 28 U.S.C. § 1334(b); In re McGhan, 288 F.3d 1172, 1880 (9th Cir. 2002) (“a state court [has] jurisdiction to construe or determine the applicability of a discharge order when discharge in bankruptcy is raised as a defense to a state cause of action filed in state court”). Under 28 U.S.C. § 1452(b), “the court to which [a] claim or cause of action is removed [pursuant to § 1334 jurisdiction] may remand such claim or cause of action on any equitable ground.” This is precisely the type of case — where defendants are attempting to predicate federal jurisdiction over this exclusively state-law action on the toehold of a remote, 15-year-old bankruptcy order involving the predecessor of a single defendant — in which equitable remand is warranted. See, e.g., Rennaisance Cosmetics, Inc. v. Dev. Specialists Inc., 277 B.R. 5, 14 (S.D.N.Y. 2002) (setting forth factors generally considered by courts in apply section 1452(b)).

This Court has already recognized as much. See March 16, 2004 Opinion and Order (“I would be hesitant to exercise jurisdiction over dozens of defendants in a multi-district litigation merely because a single defendant filed for bankruptcy and reorganized under Chapter 11 more than fifteen years ago”). Accordingly, a decision to retain jurisdiction over these cases on the basis of the Texaco bankruptcy would furnish substantial grounds for differences of opinion.

Plaintiffs therefore ask that the Court also certify for appeal this issue:

Issue6.Whether federal jurisdiction may be properly based upon the bankruptcy filing of a defendant’s corporate predecessor when the claims at issue neither arise from nor relate to the bankruptcy proceedings

CONCLUSION

None of the bases identified by Defendants — federal agency, complete preemption, substantial federal question, or bankruptcy — properly supports federal jurisdiction in these cases. In the event that the Court denies the pending Motion for Clarification, Plaintiffs[7] ask the Court to certify for interlocutory appeal to the Court of Appeals for the Second Circuit whichever of the following questions that apply, in light of the grounds for the Court’s decision to exercise jurisdiction:

  1. Whether a private entity that is not under contract with the federal government, is not acting pursuant to specific instructions from an officer or agency of the United States, and is nto controlled by an officer of the United States, can still be “acting under [an officer of the Unitedd States of any agency thereof]” within the meaning of 28 U.S.C. § 1442(a) due to a combination of regulatory requirements and market forces;
  2. Whether defendants have a ‘colorable claim’ that the oxygenate provisions of the Clean Air Act and the EPA’s regulations implementing the Act effectively directed defendants to sell gasoline containing MTBE, and thereby made defendants “persons acting under an [officer of the United States]” within the meaning of 28 U.S.C. § 1442(a);
  3. Whether voluntary conduct by a private entity that is not under contract with the federal government, is not acting pursuant to specific instructions from an officer or agency of the United States, and is not controlled by an officer of the United States, can still be “acting under [an officer of the United States or any agency thereof]” within the meaning of 28 U.S.C. § 1442(a) because a federal agency has merely granted permission for the private entity to engage in the relevant conduct
  4. Whether the federal Clean Air Act provides the “exclusive cause of action for the claim asserted” and also sets forth” procedures and remedies governing that cause of action” sufficient to preempt state claims for jurisdictional purposes where the Act provides no cause of action for damages to public water supplies and expressly preserves state-law claims;
  5. Whether public water providers’ state law products liability claims involve a substantial federal question sufficient to invoke federal court jurisdiction; and
  6. Whether federal jurisdiction may be properly based upon the bankruptcy filing of a defendant’s corporate predecessor when the claims at issue neither arise from nor relate to the bankruptcy proceedings.

Dated: August ______, 2004


Respectfully submitted,


_________________________________

Carla M. Burke

Scott Summy

Celeste A. Evangelisti

BARON & BUDD, P.C.

3102 Oak Lawn Avenue, Suite 1100

Dallas, TX 75219-4281

Telephone: (214) 523-6267

Facsimile: (214) 520-1181


Robert J. Gordon (RG-3408)

Stanley N. Alpert (SA-4476)

WEITZ & LUXENBERG, P.C.

180 Maiden Lane, 17th Floor

New York, NY 10038-4925

Telephone: (212) 558-5505

Facsimile: (212) 558-5506


Victor M. Sher

Todd E. Robins

SHER LEFF, LLP

450 Mission Street, Suite 500

San Francisco, CA 94105

Telephone: (415) 348-8300

Facsimile: (415) 348-8333


Attorneys for Plaintiffs



  1. ↑ Plaintiffs file this “Alternative” Motion for Certification Pursuant to 28 U.S.C. § 1292(b) and Memorandum of Law in Support in the event that the Court denies Plaintiffs” Motion for Clarification, which is currently pending before the Court.
  2. ↑ This Motion is filed on behalf of all Plaintiffs who reside in non-OF/RFG areas and filed their pending Motion for Clarification and all newly transferred Plaintiffs who likewise reside in non-OF/RFG areas and joined in the Motion for Clarification: Quincy Community Services District, Plumas County, California; City of Dodge City, Kansas; Chisholm Creek Utility Authority, Kansas; City of Bel Aire, Kansas; City of Park City, Kansas; City of Sioux City, Iowa; City of Ida Grove, Iowa; City of Galva, Iowa; North Newton School Corp., Indiana; City of South Bend, Indiana; Town of Mishawaka, Indiana; City of Rockport, Indiana; Escambia County Utilities Authority, Florida; Patrick County School Board, Virginia; Town of Hartland, Vermont; Town of Campbellsburg, Washington County, Indiana; Town of Rayville, Richland Parish, Louisiana; City of Marksville, Avoyelles Parish, Louisiana; Craftsbury Fire District #2, Orleans County, Vermont; Buchanan County School Board, Buchanan County, Virginia; and Town of Matoaka, Mercer County, West Virginia.
  3. ↑ See Memorandum of Law in Support of California Plaintiffs’ Motion for Remand or in the Alternative for Certification Pursuant to 28 U.S.C. 1292(b) (July 15, 2004).
  4. ↑ Id.
  5. ↑ The non-OF/RFG Plaintiffs expressly adopt and incorporate from the brief of the California plaintiffs this discussion of case law invoking 28 U.S.C. § 1442(a).
  6. ↑ See Memo. of Law in Support of California Plaintiffs’ Motion for Remand or in the Alternative for Certification Pursuant to 28 U.S.C. § 1292(b) at 12.
  7. ↑ “Plaintiffs” includes both the non-OF/RFG Plaintiffs who filed the Motion for Clarification and the non-OF/RFG Plaintiffs who filed a Joinder to that Motion for Clarification.
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Category: Water Contamination

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