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Baker v. Atl. Richfield Co.

United States Court of Appeals for the Seventh Circuit

June 2, 2020, Argued; June 18, 2020, Decided

Nos. 19-3159 & 19-3160


 [*939]  Flaum, Circuit Judge. Former residents of the West Calumet Housing Complex sued nine industrial [**2]  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 and around the site of their later-built residence. Specifically, the residents claim that the companies' operations at these facilities contaminated the property with "lead, arsenic and likely other substances."

Several companies removed the case to federal court under 28 U.S.C. § 1442(a)(1), asserting their right to a federal forum because the case relates to their acts under color of federal 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  [*940]  controlled their ultimate usage. The residents disagreed 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-appellants Atlantic Richfield Company, BP West Coast Products LLC, E. I. du Pont [**3]  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 Refinery, 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 Smelting and Refining Company (ISR), Anaconda Lead Products Company, International Lead Refining Company, International 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 Richfield 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.

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962 F.3d 937 *; 2020 U.S. App. LEXIS 19097 **; 2020 WL 3287024

SHERRIE BAKER, et al., Plaintiffs-Appellees, v. ATLANTIC RICHFIELD COMPANY, E. I. DU PONT DE NEMOURS AND COMPANY, et al., Defendants-Appellants.

Prior History:  [**1] 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.

Baker v. Atl. Richfield Co., 421 F. Supp. 3d 634, 2019 U.S. Dist. LEXIS 169164 (N.D. Ind., Sept. 30, 2019)


color, manufacture, contractor, wartime, zinc, military, causal, fuel, site, pollution, oxide, predecessor, civilian, entities

Civil Procedure, Appeals, Standards of Review, De Novo Review, Evidence, Burdens of Proof, Allocation, Preliminary Considerations, Removal, Jurisdiction, Subject Matter Jurisdiction, Removal, Specific Cases Removed, Cases Involving Federal Officers, Elements for Removal, Removability, Environmental Law, Administrative Proceedings & Litigation, Defenses