Clarifying the application of a doctrine called “federal officer jurisdiction,” a federal judge in Washington held that the federal government’s actions involving procurement of polychlorinated biphenyls (PCBs) from Monsanto were not enough to show that Monsanto was supervised or influenced by the government. See Washington v. Monsanto Co., No C17-53RSL (W.D. Wash. July 28, 2018). Washington originally brought suit against Monsanto in December 2016 alleging statewide PCB contamination under state product liability theories. Monsanto removed the suit to federal court asserting federal question jurisdiction and federal officer jurisdiction, which can be invoked by a private party if it is “sued for acts performed while acting under a federal agency or officer.”

From 1935 to 1979 Monsanto was the only company manufacturing PCBs in the United States. Monsanto argued that several actions by the federal government during these years showed that Monsanto was operating under the government’s direction, indicating that the suit should proceed in federal court under federal officer jurisdiction. First, in 1941 when Monsanto was unable to produce enough PCBs to support war requirements, the government approved Necessity Certificates for the construction of additional manufacturing facilities. Second, Monsanto’s PCBs were mentioned by name in numerous military specifications. Third, in the 1970s when Monsanto was contemplating ending the manufacture of PCBs, the government invoked Section 101 of the Defense Production Act of 1950, directing Monsanto to fulfill third-party PCB orders.

The court disagreed that these actions rose to the level that would support federal officer jurisdiction. First, the court rejected Monsanto’s argument that Necessity Certificates demonstrated that their “facilities were ‘essentially nationalized.’” Second, the court distinguished that PCBs were “mentioned in a government specification, not produced to government specification.” Third, although the government directed Monsanto to deliver PCBs, Monsanto was not directed “to produce PCBs that it had not already, or would not have otherwise, produced.” Although the court annunciated a three-part test for whether federal officer jurisdiction existed, it focused solely on the second prong, finding that no causal nexus existed between the claims brought by Washington and any actions “Monsanto took pursuant to a federal officer’s direction.” The court also rejected Monsanto’s assertion of federal question jurisdiction, finding that CERCLA does not preempt state law claims.