Petition for Writ of Certiorari — Keough v. American Policyholders Insurance

No

9 3 as 3 y, 0 AG 26 1993

In the Supreme Court of the United States

OCTOBER TERM, 1993

PAUL G. KEOUGH, ACTING REGIONAL ADMINISTRATOR O]

THE ENVIRONMENTAL PROTECTION AGENCY,

REGION I, PETITIONER

AMERICAN POLICYHOLDERS INSURANCE COMPANY

PETITION FOR A WRIT OF CERTIORARI

1O THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

DREW S. DAYS, IT]

Solicitor General

MYLES E. FLINT .

Acting Assistant Attorney General

LAWRENCE G. WALLACI

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

ANNE S. ALMY

CATHERINE M. SHEAFOR

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

" BEST AVAILABLE COPY

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QUESTION PRESENTED

Section 1442(a)(1) of Title 28, which is known as the

“federal officer removal statute,” Willingham v. Morgan,

395 U.S. 402, 406 (1969), authorizes the removal from

State court to federal court of a civil action against “[a]ny

officer of the United States or any agency thereof, or per-

son acting under him, for any act under color of such of-

fice.” The question presented is: May an officer of the

United States remove a civil action under Section

1442(a)(1) when he or she is sued exclusively in his or her

official capacity, or does Section 1442(a)(1) apply only

when an officer is sued in his or her individual capacity?

(1)

Hl

PARTIES TO THE PROCEEDING

Petitioner is Paul G. Keough, Acting Regional Admini-

strator of the United States Environmental Protection

Agency (EPA), Region I. He has been substituted for the

defendant below, Julie Belaga, who was named in her of-

ficial capacity as Regional Administrator of EPA, Region

I. Respondent, the plaintiff below, is American Policy-

holders Insurance Company. The other defendants below

were: Nyacol Products, Inc., Robert Lurie, Thomas L.

O’Connor, and Daniel S. Greenbaum, in his official

capacity as Commissioner of the Commonwealth of

Massachusetts Department of Environmental Protection.

Nyacol Products, Inc. was also a third-party plaintiff

below. The third-party defendants below were: Commer-

cial Union Insurance Company, National Union Fire In-

surance Company, and Utica Mutual Insurance Com-

pany.

TABLE OF CONTENTS

Page

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Statutory provision involved ....................... 2

ec 5G cia pik sp) ad ase+ a's v0 4 ous 4c 0le xs 2

Reasons for granting the petition ................... 7

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MS rife slo Aiie 4 cise 5 ¥4 4 ax oo hodes 6 donee ea’ 25a

TDS ee ade ocak uy hk 6 hein ocho uO Sk 29a

TABLE OF AUTHORITIES

Cases:

Brandon v. Holt, 469 U.S. 464 (1985) ........... 14

Cleveland, Columbus R.R. v. McClung, 119 U.S.

oe ae pete, Re ee 8

FHA v. Burr, 309 U.S. 242 (1940) ........0....... 15

inay ¥. may, 292 U.S. 25 (1934) ...... 2... we 8, 15

Gully v. First National Bank, 299 U.S. 109

eg od oe Oe tors 19

International Primate Protection League v. Ad-

ministrators of Tulane Educational Fund, 111

Se PE NOO ED oon cans a sc isaecken & 10 11.08

Kentucky v. Graham, 473 U.S. 159 (1985) ........ 14

Kozera v. Spirito, 723 F.2d 1003 (1st Cir. 1983) ... 13

Larson v. Domestic & Foreign Commerce Corp.,

URE ob) ee 10, 13

Cases — Continued: Page

Loeffler v. Frank, 486 U.S. 549 (1988) ........... 15

Maine v. Department of the Navy, 973 F.2d 1007

Se ee OR ne cGewee cna ehcuaeaeeee kee 20

Mesa v. California, 489 U.S. 121 (1989) .......... 8-9

Monell v. New York City Dep’t of Social Servs.,

eee ar I ce esa eee oe eras 14

Owen v. Owen, 111 S. Ct. 1833 (1991) ........... 12

Redland Soccer Club, Inc. v. Department of the

Army, 801 F. Supp. 1432 (M.D. Pa. 1992) ..... 20

Tennessee v. Davis, 100 U.S. 257 (1880) ......... 9, 10

United States v. Commonwealth of Puerto Rico,

Vee ee ee ee a Co ak eee he 19

United States Dep’t of Energy v. Ohio, 112 S. Ct.

SET Nr any Sea RK eds wD 18, 19, 20

Voluntary Purchasing Groups, Inc. v. Reilly,

oe Bk ee ene 17

Western Securities Co. v. Derwinski, 937 F.2d 1276

EP Ses WOE op obese Kas Sous bbe pawn ers 6, 7-8, 21

Willingham v. Morgan, 395 U.S. 402 (1969) ... 8,9, 10, 22

Constitution, statutes, and rule:

U.S. Constitution Amend. XI .................. 14

Civil Rights Act of 1964, Tit. VII, 42 U.S.C.

EE Cece aa ele ha dek ea rekawk 7 15

Clean Air Act, 42 U.S.C. 7418(a) ............... 18

Clean Water Act, 33 U.S.C. 1323(a) .......... 17, 18, 19

Comprehensive Environmental Response, Com-

pensation, and Liability Act, 42 U.S.C. 9601

OP eases RAs aon Ch eee eae kae ss 3

See. SE oi ee eck cei a ees 16

ee Ms EEE oc vs ska eke ceewaeuweves 16, 17

Oe Recs SUED os 6 wis eau eee occa nase 18

Resource Conservation and Recovery Act, 42

U.S.C. 6901 et seq.:

ie Et I hace ga de eee ees ees 17, 18

ae Meee s Es cee ccad Ceo aed ee 17

ee PE eae ain aee eee eee 18

Ve

V

Statutes and rules — Continued: Page

Safe Drinking Water Act, 42 U.S.C. 300j-6....... 17

' ik. ony. | ener rec es Ft Ke 5

a i eee. ireducste ee eee 19, 20

fe 8 ee | en kd de 4,6, 7, 16,19

se USL. MaMa) ......... Sears a ake e See ee 4 |

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28 USL MOIOMD |. ola nantcdere, 2,5, 8,9, 12 |

be Wc M,, BORD on oho ica dees. ee 5

£0 USA. MOONE) oo exact Javelin. 22

OP ea WU i ok ee eee 5

Bip. e ee, | nN Etats Aron s So. 14

Mass. Gen. L. ch. 231A (1986) ................. 3

red. R. Civ. P.:

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Ae SE ss Saoas? Oe a ee 5

Miscellaneous:

P. Bator, D. Meltzer, P. Mishkin & D. Shapiro,

Hart and Wechsler’s The Federal Courts and

the Federal System (3d ed. 1988) .............. a

Davis, Suing the Government by Falsely Pretend-

ing to Sue an Officer, 29 U. Chi. L. Rev. 435

(SSP ir npr GN ne i 13

In the Supreme Court of the United States

OCTOBER TERM, 1993

No.

PAUL G. KEOUGH, ACTING REGIONAI ADMINISTRATOR OF

THE ENVIRONMENTAL PROTECTION AGENCY,

REGION I, PETITIONER

Vv,

AMERICAN POLICYHOLDERS INSURANCE COMPANY

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

The Solicitor General, on behalf of the Acting Regional

Administrator of the United States Environmental Protec-

tion Agency, Region I, respectfully petitions for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the First Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra,

la-17a) is reported at 989 F.2d 1256.

JURISDICTION

The judgment of the court of appeals was entered on

February 24, 1993. A petition for rehearing was denied on

April 28, 1993. App., infra, 29a. On July 19, 1993, Justice

Souter extended the time for filing a petition for a writ of

(1)

2

certiorari to and including August 26, 1993. The jurisdic-

tion of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

28 U.S.C. 1442(a)(1) provides:

(a) A civil action or criminal prosecution com-

menced in a State court against any of the following

persons may be removed by them to the district court

of the United States for the district and division em-

bracing the place wherein it is pending:

(1) Any officer of the United States or any agency

thereof, or person acting under him, for any act

under color of such office or on account of any right,

title or authority claimed under any Act of Congress

for the apprehension or punishment of criminals or

the collection of the revenue.

* * * * *

STATEMENT

This case concerns the proper interpretation of the

federal officer removal statute, 28 U.S.C. 1442(a)(1), in

light of this Court’s recent decision in J/nternational

Primate Protection League \. Administrators of Tulane

Educational Fund, 111 S. Ct. 1700 (1991). Pursuant to

that statute, the Regional Administrator of EPA, Region I

(Regional Administrator), removed to federal district

court an action brought against her in state court by the

respondent, American Policyholders Insurance Company

(API). The district court dismissed the Regional Admini-

strator from the action and remanded the case to the state

court. The First Circuit vacated the order dismissing the

Regional Administrator. Relying principally upon Primate

Protection League, the First Circuit held that the Regional

3

Administrator lacked authority to remove the action pur-

suant to the federal officer removal statute, because she

had been sued exclusively in her official capacity, rather

than in her individual capacity.

1. API filed its complaint in this case in the Superior

Court for Middlesex County, Massachusetts, on Decem-

ber 20, 1991. The complaint named three of API’s policy-

holders —i.e., Nyacol Products, Inc. (Nyacol) and two

former officers of Nyacol (collectively, the insureds) —as

well as Daniel S. Greenbaum, in his capacity as the Com-

missioner of the Massachusetts Department of Environ-

mental Protection (DEP), and Julie Belaga, in her capaci-

ty as the Regional Administrator of EPA Region I. C.A.

App. 9-86 (Complaint); see also id. at 13 (€€ 21 and 22),

87 (notice of removal § 1), and 95 (Answer of Nyacol

Products, Inc. 4€ 21 and 22). The complaint alleged that

DEP and EPA had notified the insureds that they were

potentially responsible under the Comprehensive Environ-

mental Response, Compensation, and Liability Act

(CERCLA), 42 U.S.C. 9601 et seg., and state law for

hazardous waste contamination at a site in Ashland,

Massachusetts, where textile dyes had been manufactured.

C.A. App. 13-17. The complaint sought a declaratory

judgment relieving API from defending or indemnifying

the insureds for any claims that EPA or DEP might make

against them in connection with the contamination at the

site. /d. at 21-27; see also Mass. Gen. L. ch. 231A (1986)

(declaratory judgment statute). The complaint stated that

the Regional Administrator and the Commissioner of

DEP were “named as parties solely to fulfill the require-

ments of Massachusetts common law that the underlying

claimants be bound by any declaration entered between an

insurer and its insured.” C.A. App. 10.

2. In January 1992, the Regional Administrator re-

moved the action to the United States District Court for

— .

4

the District of Massachusetts pursuant to 28 U.S.C. 1441]

and 1442.' The removal petition stated that the Regional

Administrator was “an officer of the United States or any

agency thereof within the meaning of [28] U.S.C.

1442(a).” C.A. App. 88. After the case was removed, the

Regional Administrator moved to dismiss on the grounds

that API’s claim against her was barred by sovereign im-

munity and failed to state a claim for which relief could be

granted. Jd. at 180-185.

In May 1992, the district court granted the motion to

dismiss, holding that the complaint failed to state a claim

for relief against the Regional Administrator. C.A. App.

437-452 (transcript of hearing on motion to dismiss). At

the hearing on the motion, the court observed that no en-

forcement action in connection with the Ashland site had

been brought against either API or its insureds. Jd. at 442,

445-446. The court determined that it “would be complete-

ly contrary to the approach of CERCLA” to force EPA to

litigate issues concerning the site prior to the commence-

ment of enforcement proceedings. /d. at 445-446. The

court concluded, moreover, that in the absence of enforce-

ment proceedings, there was no ripe controversy between

API and EPA to support jurisdiction over API’s claim

against the Regional Administrator. /d. at 447. The court |

accordingly dismissed the Regional Administrator from

the case pursuant to Fed. R. Civ. P. 12(b)(6). C.A. App.

' The relevant portion of 28 U.S.C. 1442 is quoted at page 2, supra.

The other statute upon which removal was premised, 28 U.S.C.

1441(a), provides:

Except as otherwise expressly provided by Act of Congress,

any civil action brought in a State court of which the district

courts of the United States have original jurisdiction, may be re-

moved by the defendant or the defendants, to the district court of

the United States for the district and division embracing the place

where such action is pending.

ee

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449-450. The court found it unnecessary to decide whether

dismissal was also required on grounds of sovereign im-

munity. /d. at 450.

Subsequently, the district court entered a final judgment

pursuant to Fed. R. Civ. P. 54(b) dismissing API’s claim

against the Regional Administrator. C.A. App. 467-469.

API appealed from that judgment to the United States

Court of Appeals for the First Circuit under 28 U.S.C.

1291. C.A. App. 470-471. In the meantime, the district

court remanded the remaining claims to the state court.

Id. at 464; see also 28 U.S.C. 1447(c).

3. After an initial round of briefing, the First Circuit

requested supplemental briefing on the question whether,

in light of this Court’s decision in /nternational Primate

Protection League v. Administrators Of Tulane Educa-

tional Fund, 111 S. Ct. 1700 (1991), the action was prop-

erly removed. In their supplemental briefs, both API and

the Regional Administrator stated that removal was prop-

er under 28 U.S.C. 1442(a)(i) because the Regional Ad-

ministrator was a federal officer, not a federal agency.

Gov't Supp. C.A. Br. 2-4; API Supp. C.A. Br. 2; see also

App., infra, 4a.

The First Circuit nonetheless held that the Regional Ad-

ministrator could not remove the action under Section

1442(a)(1), because she was sued exclusively in her official

capacity. In the court’s view, Section 1442(a)(1), as inter-

preted in Primate Protection League, allows removal only

by federal officers sued in their individual capacity. The

court reasoned that official-capacity suits against federal

officers are equivalent to suits against agencies, which

Primate Protection League held cannot be removed under

the federal officer removal statute:

[API’s] suit, brought against Belaga in her official

capacity and seeking no relief against her personally,

is in reality a suit against the agency. It necessarily

6

follows that, because EPA itself could not have re-

moved this action under section 1442, see Primate

Protection League, 111 S. Ct. at 1708, Belaga’s at-

tempt tu remove under the same statutory provision

must fail.

App., infra, 10a. The court observed that its holding was

consistent with the Seventh Circuit’s decision in Western

Securities Co. v. Derwinski, 937 F.2d 1276 (1991). West-

ern Securities held that the Administrator of the Depart-

ment of Veterans Affairs could not remove a state court

action against him to federal court pursuant to the federal

officer removal statute, because the action was “against

him in his official capacity and such suits are considered to

be against the government itself.” /d. at 1279.

The First Circuit further held that removal was not

proper under the general removal statute, 28 U.S.C. 1441,

because API’s action could not have been brought

originally in federal court. App., infra, 10a-lla.? The

court vacated the district court’s order of dismissal and

directed the district court on remand to reinstate the

Regional Administrator as a defendant and to remand |

API’s claim against her to the state court. App., infra,

17a.

4. The Regional Administrator’s petition for rehearing

and suggestion of rehearing en banc were denied. App.,

infra, 25a-28a. In the order denying rehearing, the panel

criticized the government’s supplemental brief on the re-

moval issue as “perfunctory,” apparently because of the

government’s failure to anticipate and discuss the panel’s

“official capacity” restriction on the federal officer

removal statute. App., infra, 26a. The panel also rejected

the government’s argument that it was not consistent with

this Court’s reasoning in Primate Protection League to

> We do not seek review of that holding in this Court.

eerste eenenneneea tenet ae

treat suits against federal officers the same as suits against

federal agencies for purposes of the federal officer

removal statute. /bid.

REASONS FOR GRANTING THE PETITION

The First Circuit plainly erred in its reading of both the

federal officer removal statute and this Court’s analysis of

that statute in Primate Protection League. In Primate Pro-

fection League, this Court enforced the officer removal

Statute as written, by holding that the statute authorizes

removal by federal officers, and not by federal agencies.

In so holding, the Court reasoned that Congress could ra-

tionally have concluded that suits against federal officers

often raise difficult issues of immunity that should be

resolved in federal court, whereas the immunity of federal

agencies is sufficiently straightforward that suits against

them can be disposed of in the state courts. In this case,

the First Circuit purported to rely on Primate Protection

League to draw a different distinction —i.e., between “of-

ficial capacity” suits against federal officers and “indivi-

dual capacity” suits against them. That distinction, how-

ever, is nowhere to be found in the text of the Statute, and

Primate Protection League does not Support departing

from the statutory text to create such a distinction by im-

plication.

The court of appeals’ error is significant. The federal of-

ficer removal statute permits removal of many actions that

should be litigated in a federal forum but are not remov-

able under the general removal statute, 28 U.S.C. 144].

Removal of those actions is barred under the First

Circuit’s decision. The Seventh Circuit has interpreted the

officer removal statute in the same way as did the First

Circuit in this case, erroneously relying, as did the First

Circuit, on Primate Protection League. See Western

ee

8

Securities Co. v. Derwinski, 937 F.2d 1276 (1991). In those

two and in other circuits, district courts that are guided by

those two decisions will issue orders remanding the cases

to state courts, and such orders are generally not appeal-

able. Under these circumstances, this Court should grant

certiorari to clarify the effect of its decision in Primate

Protection League and thereby resolve the important ques-

tion of statutory interpretation presented here.

1. The First Circuit held that a federal officer may not

remove an action under Section 1442(a)(1) if the officer is

sued exclusively in his or her official capacity. That hold-

ing conflicts with the text of Section 1442(a)(1) and with

the Court’s analysis of that provision in Primate Protec-

tion League.

a. Section 1442(a)(1) does not distinguish between

official-capacity and individual-capacity suits against

federal officers. Section 1442(a)(1) imposes only two re-

quirements for removal: The action must be brought (1)

“against * * * a[n] officer of the United States or any

agency thereof,” or the officer’s subordinate (2) “for a[n]

act under color of such office.” The statute does not, on its

face, require that the suit be brought against the officer in

his or her individual capacity in order for the action to be

removable.

Nor can such a requirement be inferred from the

language of the statute. With respect to the first require-

ment prescribed in the statute, an action is “against” a

federa! officer if it names the officer as a defendant. See,

e.g., Willingham v. Morgan, 395 U.S. 402, 403-404 (1969)

(civil action against warden and chief medical officer of

federal prison); Gay v. Ruff, 292 U.S. 25 (1934) (civil ac-

tion against receiver of railroad appointed by federal

district court); Cleveland, Columbus R.R. v. McClung,

119 U.S. 454 (1886) (civil action against federal customs

collector); see also Mesa v. California, 489 U.S. 121, 125

Dic aaa acl

9

(1989) (criminal prosecutions against two employees of

U.S. Postal Service). As for the second requirement, a suit

is for an act “under color of * * * office” if the defendant

alleges a colorable federal defense. See Mesa, 489 U.S. at

139. Neither requirement can be construed to limit the

scope of Section 1442(a)(1) to personal-capacity suits

against federal officers. On the contrary, the statute “[a]t

the very least * * * is broad enough to cover all” cases

where federal officers can raise a colorable defense arising

out of their duty to enforce federal law.” Willingham v.

Morgan, 395 U.S. 402, 406-407 (1969).

Moreover, the “under color of office” requirement of

the statute strongly suggests that it permits removal of

official-capacity suits. Many, if not most, suits against

federal officers for acts under color of their office will be

official-capacity suits. Indeed, a primary purpose of the

removal statute was to allow such suits to be litigated in a

federal forum. As the Court explained in Tennessee v.

Davis, 100 U.S. 257, 263 (1880), the federal government

can act only through its officers and agents, and they

must act within the State. If, when thus acting, and

within the scope of their authority, those officers can

be arrested and brought to trial in a State court, for

an alleged offence against the law of the State, yet

warranted by the Federal authority they possess, and

if the general government is powerless to interfere at

once for their protection, —if their protection must be

left to the action of the State court, —the operations

of the general government may at any time be ar-

rested at the will of one of its members.

Quoted in Mesa, 489 U.S. at 126. In short, the officer

removal statute protects the authority of the federal

government by protecting federal officers sued for actions

10

taken within the scope of their authority, /.e., in their of-

ficial capacity. See Willingham, 395 U.S. at 407.

The First Circuit’s decision thwarts Congress’s intent to

provide the protection of a federal forum for officers sued

in state court for official conduct. By holding that official-

capacity suits cannot be removed under the officer

removal statute, the First Circuit has limited removal

under that statute to cases in which it is alleged that an of-

ficer has acted u/tra vires or pursuant to an unconstitu-

tional statute. See Larson v. Domestic & Foreign Com-

merce Corp., 337 U.S. 682, 701-702 (1949) (“the action of

an officer of the sovereign * * * can be regarded as so ‘il-

legal’ as to permit a suit for specific relief against the of-

ficer as an individual only if it is not within the officer’s

statutory powers or, if within those powers, only if the

powers, or their exercise in the particular case, are consti-

tutionally void”). The First Circuit’s interpretation thus

withholds the “protection of a federal forum” (Willing-

ham, 395 U.S. at 407) from officers who are acting pur-

suant to valid federal authority. That is precisely one of

the situations, however, in which Congress intended the

removal statute to apply. Tennessee v. Davis, supra.

b. The First Circuit relied primarily on this Court’s

decision in Primate Protection League. The court of ap-

peals’ reasoning, however, runs directly counter to that of

Primate Protection League.

In Primate Protection League, the Court rejected the

government’s argument that it would produce “absurd re-

sults” to interpret the officer removal statute, in accord-

ance with its plain terms, to permit removal by federal of-

ficers, but not by federal agencies. The Court determined

that “Congress could rationally have made * * * a distinc-

tion” between suits against agencies and suits against of-

ficers. 111 S. Ct. at 1708. The Court explained that, when

1]

Congress enacted the statute, it was so well settled that

agencies had sovereign immunity that

State courts could be trusted to dismiss the agency as

defendant. The determination of an agency’s immuni-

ty, in other words, was sufficiently straightforward

that a state court, even if hostile to the federal in-

terest, would be unlikely to disregard the law. Thus,

agencies would not need the protection of federal

removal.

Ibid. In contrast, the Court stated, “the question of the

immunity of federal officers who were named as defend-

ants was much more complicated.” /bid. That question,

the Court explained, often hinged on examining whether

the officer was acting outside his or her delegated authori-

ty, an inquiry that “was fraught with difficulty and subject

to considerable manipulation.” Jd. at 1709. The Court

concluded that “[g]iven these complexities, we think Con-

gress could rationally decide that individual officers, but

not agencies, needed the protection of a federal forum in

which to raise their federal defenses.” /bid.

Although Primate Protection League distinguished suits

against federal officers from suits against federal agencies,

the First Circuit read Primate Protection League to justify

drawing a different distinction—/.e., between official-

capacity suits against federal officers, which the court of

appeals held are not removable, and individual-capacity

suits against them, which the court of appeals held are re-

movable:

In [Primate Protection League], the Supreme Court

explained that when a suit for monetary damages is

brought against an officer in his or her individual

capacity, the complicated questions that arise as to

that officer’s immunity support a protective grant of

removal jurisdiction. See Primate Protection League,

12

111 S. Ct. at 1708. By contrast, agencies do not need

the prophylaxis of federal removal because determin-

ing an agency’s immunity, unlike determining an indi-

vidual’s immunity, is a “sufficiently straightforward”

proposition. [/bid.] That rationale strongly favors

treatment of official-capacity suits for purposes of re-

moval in the same manner as Suits against the agency.

After all, because a suit against an officer in her of-

ficial capacity cannot bind the officer personally,

* * * no issues Of immunity can possibly arise that

differ from those arising in a suit directly against the

agency.

App., infra, 8a. This reascning turns Primate Protection

League on its head.

First, Primate Protection League stands primarily for

the proposition that Section 1442(a)(1) must be applied as

written. As explained above, the Court in Primate Protec-

tion League posited a distinction between suits against of-

ficers and suits against agencies in order to show why it is

not absurd to enforce the statute as written. Here, in con-

trast, the First Circuit posited a rationale for a different

distinction—between official-capacity and _ individual-

capacity suits—that the language of the statute does not

contain. Primate Protection League condemns such an ap-

proach. See also Owen v. Owen, 111 S. Ct. 1833, 1838

(1991) (rejecting interpretation of a statute that “create[s]

a distinction that the words of the statute do not contain”).

Second, Primate Protection League makes clear that, in

accordance with the plain language of Section 1442(a)(1),

Suits against federal officers cannot be treated as equiva-

lent to suits against federal agencies. Yet the court of ap-

peals based its holding on the proposition that certain suits

against .ederal officers—i.e., official-capacity suits —

should be treated the same as suits against federal agen-

i

13

cies. Even if, as the court of appeals asserted, there is a

“general rule * * * that a suit against a government of-

| ficer in his or her official capacity is a suit against the

agency,” App., infra, 7a, Primate Protection League

establishes that such a rule does not justify ignoring the

text of the federal officer removal statute.

Third, the Court in Primate Protection League did not

distinguish between individual-capacity and _ official-

capacity suits, as the First Circuit believed. On the con-

trary, the Court indicated that the entire category of suits

against federal officers raised complicated issues of im-

munity. Indeed, one of the complicated issues to which the

Court in Primate Protection League referred was the ques-

tion whether an officer was being sued for individual acts

or for acts of the sovereign. 111 S. Ct. at 1708 (an officer’s

immunity “hinged on ‘the crucial question . . . whether the

relief sought in a suit nominally addressed to the officer

[was] relief against the sovereign’ ”), quoting Larson, 337

U.S. at 687; see also Kozera v. Spirito, 723 F.2d 1003,

1007 n.3 (Ist €ir. 1983).> Thus, Primate Protection League

strongly suggests that the immunity of a federal officer

sued in his or her official capacity is not so “sufficiently

straightforward” that Congress could rationally have left

official-capacity suits for the state courts to resolve, while

* The court of appeals stated that the question whether a federal of-

ficer is being sued in his or her official capacity or individual capacity

“requires little more than a glance at the pleadings.” App., infra, 8a

n.5. As this Court recognized in Primate Protection League, however,

the question can often be much more difficult than the court of ap-

peals suggested. See 111 S. Ct. at 1708; see also Davis, Suing the

Government by Falsely Pretending to Sue an Officer, 29 U. Chi. L.

Rev. 435, 453 (1962) (“In some cases that are against the Government

in reality the suits are called suits against officers in their official

capacity, and in some they are called suits against officers as in-

dividuals or in their personal capacity.”).

14

permitting individual-capacity suits to be removed to

federal courts.

c. As noted above, the court of appeals purported to

discern a “general rule * * * that a suit against a govern-

ment officer in his or her official capacity is a suit against

the agency.” App., infra, 7a. The decisions of this Court

cited by the First Circuit as enunciating such a rule are in-

apposite.

Three of the decisions discussed the distinction between

official-capacity and personal-capacity suits for purposes

of 42 U.S.C. 1983. App., infra, 6a (citing Kentucky v.

Graham, 473 U.S. 159 (1985); Brandon v. Holt, 469 U.S.

464 (1985); and Monell v. New York City Dep’t of Social

Servs., 436 U.S. 658 (1978)). Those decisions, however,

have little bearing in the present context. As the decisions

themselves indicate, they are based on Eleventh Amend-

ment principles, which do not apply to suits against

federal entities. For example, in Kentucky v. Graham, the

Court held that Kentucky’s Police Commissioner was be-

ing sued exclusively in his individual capacity, even though

the complaint named him in both his individual and of-

ficial capacities, because “given Eleventh Amendment

doctrine, there can be no doubt that this damages action

did not seek to impose monetary liability on the Com-

monwealth.” 473 U.S. at 169 (emphasis added).

‘ See also Brandon v. Holt, 469 U.S. at 472 (emphasis added):

In Monell, the City of New York was not itself expressly named

as a defendant. The suit was nominally against the city’s Depart-

ment of Social Services, but that Department had no greater

separate identity from the city than did the Director of the

Department when he was acting in his official capacity. For the

purpose of evaluating the city’s potential liability under § 1983,

our Opinion clearly equated the actions of the Director of the

Department in his official capacity with the actions of the city

itself.

15

The other two decisions of this Court cited by the First

Circuit likewise do not support equating a suit against a

federal officer to a suit against a federal agency for pur-

poses of the officer removal statute. The First Circuit cited

Loeffler v. Frank, 486 U.S. 549 (1988), and FHA v. Burr,

309 U.S. 242 (1940). App., infra, 7a. To be sure, Loeffler

and Burr do indicate that the head of a federal agency may

be treated the same as the agency itself for certain pur-

poses.° For that reason, the United States argued in its

brief to this Court in Primate Protection League that

Loeffler and Burr supported treating suits against federal

agencies the same as suits against federal officers for pur-

poses of the officer removal statute. U.S. Br. in Primate

Protection League, O.T. 1990, No. 90-89, at 32-34. The

Court in Primate Protection League implicitly rejected the

government’s argument when it hewed closely to the lang-

uage of the statute, which it read to refer only to federal

‘In Loeffler, the Court held that “prejudgment interest may be

awarded in a suit against the Uniied States Postal Service brought

under Title VII.” 486 U.S. at $51. The Court based that holding on the

provision that permits the Postal Service to sue and be sued “in its of

ficial name,” 39 U.S.C. 401(1). Loeffler, 486 U.S. at 554-558. The

Court rejected the argument that this sue-and-be-sued clause did not

apply in Title VII suits, in which Congress required “the head of the

department, agency, or unit * * * [to] be the defendant,” 42 U.S.C.

2000e-16(c) (emphasis added). 486 U.S. at 562 n.8. The Court refused

to draw a distinction between the head of the Postal Service (named in

Title VII) and the Postal Service itself (named in the sue-and-be-sued

clause). Loeffler relied on FHA vy. Burr, in which the Court inter

preted the sue-and-be-sued clause applicable to the Administrator of

the FHA to authorize garnishment of the assets of the agency.

Although FHA v. Burr presented the “inverse situation” of that pre-

sented in Loeffler —i.e., in Burr, the agency was the named defendant,

and the statute at issue referred to the agency head—the Court in

Loeffler concluded “the same logic applies. * * * [T]he acts of the

named defendant are always chargeable as acts of the person or

entity” subject to the statute. Loeffler, 486 U.S. at 563 n.8.

16

officers, and not to federal agencies. The First Circuit’s

similar reliance on Loeffler and Burr is therefore likewise

unpersuasive.

2. This Court should correct the First Circuit’s error.

The First Circuit’s decision precludes removal of state

court actions that Congress intended to be litigated in a

federal forum but that often will not be removable under

the general removal statute, 28 U.S.C. 1441. Two cate-

gories of cases are of particular importance.

a. The present case exemplifies one significant cate-

gory of cases in which removal would be barred by the

court of appeals’ decision: pre-enforcement actions

against federal officials. As discussed above, this is an

insurance-coverage case in which API seeks to avoid de-

fending or indemnifying three insureds that EPA has iden-

tified as potentially responsible under CERCLA for a con-

taminated site but has not yet proceeded against in an en-

forcement action. API named the EPA Regional Admini-

strator in the suit so that the state court proceeding would

bind EPA. C.A. App. 10.

API presumably believed that state-court litigation of

API’s obligations to its insureds could yield findings and

legal rulings that would bind EPA to its detriment in

future enforcement proceedings against API or the in-

sureds. For example, in its complaint API alleged that it

had no duty to defend or indemnify the insureds because

the releases of hazardous waste at the Ashland site oc-

curred outside the policy periods. C.A. App. 22-26. The

timing of the releases could also be relevant to the in-

sureds’ liability under CERCLA. See 42 U.S.C. 9607(a).

In sum, as the district court observed, “the very fact of the

[hazardous waste] spills may be litigated” in this coverage

dispute. C.A. App. 448.

Section 113(h) of CERCLA, 42 U.S.C. 9613(h), how-

ever, generally bars pre-enforcement actions in federal

17

court. In particular, Section 113(h) has been interpreted to

bar potentially responsible parties under CERCLA from

obtaining federal-court adjudications of their liability be-

fore EPA has brought an enforcement action. See Vo/un-

tary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380,

1386-1390 (Sth Cir. 1989). The purpose of Section 113(h)

is to spare EPA from having to (1) expend its resources on

litigating issues of liability instead of responding to haz-

ardous waste problems; and (2) litigate issues of liability

piecemeal. See Voluntary Purchasing Groups, 889 F.2d at

1387-1390.

The same considerations apply to state-court actions.

As the district court correctly recognized, “it turns the

whole scheme of CERCLA on its head” to force EPA in

this case “first to litigate rather than do [its] enforcement

business.” C.A. App. 446, 448. Nonetheless, state-court

declaratory judgment actions by insurance companies

could become commonplace if the insurance companies

and their insureds perceive the court of appeals’ decision

as creating a way to avoid the bar on pre-enforcement ac-

tions in Section 113(h) of CERCLA.®

b. A second category of cases affected by the court of

appeals’ decision comprises state-court actions against the

federal government based on state environmental laws.

Those actions are made possible by “federal facility” pro-

visions in the major federal environmental statutcs that

waive the federal government’s sovereign immunity from

state law. See Clean Water Act (CWA), 33 U:S.C.

1323(a); Safe Drinking Water Act, 42 U.S.C. 300j-6; Re-

source Conservation and Recovery Act (RCRA), 42

U.S.C. 6961 (solid and hazardous wastes), 6991f (under-

* Although the bar of Section 113(h) of CERCLA in terms applies

to federai-court actions, it arguably — but less clearly — bars analogous

State-court actions as well.

18

ground storage tanks) and 6992e (medical wastes); Clean

Air Act, 42 U.S.C. 7418(a); and CERCLA, 42 U.S.C.

9620(a)(4).

The operation of the federal-facility provisions is illus-

trated by this Court’s recent decision in United States

Dep’t of Energy v. Ohio, 112 S. Ct. 1627 (1992). In that

case, the State of Ohio sued the Department of Energy

(DOE) for asserted violations of state and federal law at a

DOE uranium-processing plant. /d. at 1631-1632. The

relevant provisions of the CWA and RCRA subjected the

United States to “all Federal, State, interstate, and local

requirements, both substantive and procedural” concerned

with the “control and abatement” of, respectively, “water

pollution” and “solid waste or hazardous waste disposal.”

33 U.S.C. 1323(a); 42 U.S.C. 6961. The CWA provides

that it applies “notwithstanding any immunity of [govern-

ment] agencies, officers, agents, or employees.” 33 U.S.C.

1323(a). RCRA similarly provides that “[nJeither the

United States, nor any agent, employee, or officer thereof,

shall be immune or exempt from any process or sanction

of any State or Federal Court with respect to the enforce-

ment of any * * * injunctive relief [under the provision].”

42 U.S.C. 6961. The Court in DOE v. Ohio held that these

provisions did not waive the federal government’s sov-

ereign immunity from civil penalties based on past viola-

tions. 112 S. Ct. at 1633-1640. The United States con-

ceded, however, and the Court confirmed, that the provi-

sions did waive sovereign immunity from injunctions and

contempt sanctions entered under state law. Jd. at 1635 &

n.15.

Generally, the federal environmental statutes do not

contain provisions authorizing removal of actions brought

in state courts. A sole exception can be found in the CWA,

which plainly contemplates removal in the limited circum-

stances of federal-facility actions under the CWA. See

19

United States v. Commonwealth of Puerto Rico, 721 F.2d

832, 838 (Ist Cir. 1983).? However, actions under the

other federal-facility provisions will be removable, if at all,

only under the general removal statute, 28 U.S.C. 1441, or

the federal officer removal statute, 28 U.S.C. 1442.

Moreover, the general removal statute will often be un-

availing in suits against federal facilities based solely on

state law. In DOE v. Ohio, the Court held that penalties

authorized by state water-pollution laws do not “arise

under Federal law” as that phrase is used in the federal-

facility provision of the CWA—which makes the United

States liable for “civil penalties arising under Federal law,”

33 U.S.C. 1323(a)—even though the state penalty provi-

sions must comply with federal guidelines and receive

EPA approval before taking effect. 112 S. Ct. at

1637-1639; see also id. at 1631. In so holding, the Court

determined that the “arising under” phrase in the federal-

facility provision of the CWA should be interpreted in the

same way as the “arising under” phrase in 28 U.S.C. 1331.

Accordingly, the Court in DOE v. Ohio relied, inter alia,

on Gully v. First National Bank, 299 U.S. 109, 114-118

(1936), which held that the well-pleaded complaint rule

barred removal of an action based on state law against a

national bank under the general removal statute, even

though the bank raised a federal defense. The Court’s

’ 33 U.S.C. 1323(a) provides:

Nothing in this section [33 U.S.C. 1323] shall be construed to pre-

vent any department, agency, or instrumentality of the Federal

Government, or any officer, agent, or employee thereof in the

performance of his official duties, from removing to the appro-

priate Federal district court any proceeding to which the depart-

ment, agency, or instrumentality or officer, agent or employee

thereof is subject pursuant to this section, and any such pro-

ceeding may be removed in accordance with section 1441 ef seq.

of title 26.° * *

20

reasoning in DOE vy. Ohio strongly suggests that suits

based solely on the state laws to which the federal govern-

ment is subject under federal-facility provisions do not

“arise under federal law” within the meaning of 28 U.S.C.

1331. Such suits therefore would not be within the federal-

question jurisdiction of the federal district courts, and

could not be removed under the general removal statute.

Federal-facility suits often raise complicated and sensi-

tive questions that should be litigated in federal, rather

than state, court. For example, because such suits are

often brought by state entities, they often raise important

issues Of federalism with which federal courts are more

familiar. Moreover, federal-facility suits often raise diffi-

cult questions of the extent of the waiver of sovereign im-

munity, as DOE v. Ohio shows. See also, e.g., Maine v.

Department of the Navy, 973 F.2d 1007, 1010 (Ist Cir.

1992); Redland Soccer Club, Inc. v. Department of the

Army, 801 F. Supp. 1432, 1436 (M.D. Pa. 1992). The

federal officer removal statute demonstrates Congress’s

intent that, when such suits are brought against federal of-

ficers, the suits should be litigated in a federal forum.*

3. We recognize that this Court normally does not

grant certiorari to review a question of federal statutory

interpretation in the absence of a conflict among the cir-

cuits. Nonetheless, we believe that further review is war-

ranted in this case. Unless corrected, the First Circuit’s

* It is true that a federal-facility action in state court is not remov-

able under 28 U.S.C. 1442(a) unless a federal officer is named as a de-

fendant. That does not mean, however, that plaintiffs in those actions

will invariably avoid naming a federal officer as a defendant in order

to prevent removal. Plaintiffs may have good reasons to name a

federal officer as a defendant — for example, to ensure that all neces-

sary parties are named in the suit or to be able to pursue contempt

sanctions against the responsible individual federal officials for any

violations of an injunction.

21

erroneous interpretation of the federal! officer removal

statute is likely to take root among the district courts. If

that happens, the question presented here, though import-

ant, will tend to evade review by this Court.

The only other court of appeals that has addressed the

question presented here is the Seventh Circuit. As dis-

cussed earlier, at pages 6-8, supra, the Seventh Circuit

stated in Western Securities Co. v. Derwinski, 937 F.2d

1276, 1278-1279 (1991), that the Administrator of the De-

partment of Veterans Affairs could not remove a state

court action against him to federal court pursuant to the

federal officer removal statute, because the action was

“against him in his official capacity and such suits are con-

sidered to be against the government itself.” /d. at 1279.

That statement was followed by the First Circuit in this

case. App., infra, 9a.

The Department of Justice did not seek further review

in Western Securities by the full Seventh Circuit or this

Court. In our view, further review would not have been

warranted at that point. For one thing, the Seventh Circuit

in Western Securities sustained federal court jurisdiction

on alternative (federal question) grounds. 937 F.2d at

1279-1280. Its discussion of the officer removal statute

was therefore arguably dictum. Moreover, it was not clear

that other courts of appeals would follow the Seventh Cir-

cuit’s interpretation.

Now that the First Circuit has joined the Seventh Cir-

cuit, however, the likelihood that a circuit conflict will

develop has greatly diminished. District courts, even in

other circuits, may well be reluctant to part company with

the unanimous panel decisions of the First and Seventh

Circuits. Those courts may consequently remand “official

capacity” suits against federal officers that have been re-

moved under the officer removal statute (in the absence of

an alternative basis for jurisdiction). In that situation, the

22

government will not be able to obtain review by the courts

of appeals. That is because, with the exception of certain

civil rights cases, “[a]n order remanding a case to the State

court from which it was removed is not reviewable on ap-

peal or otherwise.” 28 U.S.C. 1447(d). Thus, the question

of statutory interpretation presented here, despite its con-

tinuing importance, is much less likely than other such

questions to be further litigated in the courts of appeals.°

The tendency of the question to evade appellate review,

however, does not diminish its significance. To the con-

trary, the “long history” of the federal officer removal

Statute, the development of which has corresponded to

“periods of national stress,” attests to the importance of

“the power of federal officials to have actions brought

against them removed to the federal courts.” Willingham,

395 U.S. at 403, 405; see also P. Bator, D. Meltzer, P.

Mishkin & D. Shapiro, Hart and Wechsler’s The Federal

Courts and the Federal System 1057-1059 (3d ed. 1988).

* As we have noted, page 5, supra, the question arose in this case

only because it was raised sua sponte by the court of appeals and re-

solved against removal despite the parties’ agreement that removal was

proper. As also noted earlier, in its order denying rehearing, the panel

criticized the government for a supposedly “perfunctory” treatment of

the removal issue in its supplemental brief. App., infra, 26a. That

criticism is not well founded. The government’s supplemental brief

fully explained the relevance of this Court’s decision in Primate Pro-

tection League to the removal issue in this case. Gov’t Supp. C.A. Br.

i-4. Although the panel chided the government for raising “new and

additional matters” in its petition for rehearing, App., infra, 25a, the

only new material in the petition responded to points that arose for the

first time in the panel’s opinion (since the government had not thereto-

fore had an opposing argument to which to respond). See Gov’t Peti-

tion for Rehearing with Suggestion for Rehearing En Banc 6-14.

23

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

DREW S. DAYS, IIl

Solicitor General

Mytts E. FLINI

Acting Assistant Attorney General

LAWRENCE G. WALLACE!

Deputy Solicitor General

RICHARD H. SEAMON

Assistant to the Solicitor General

ANNE S. ALMY

CATHERINE M. SHEAEFOR

Attorneys

AL GUST 1993

——

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 92-1949

AMERICAN POLICYHOLDERS INSURANCE COMPANY.

PLAINTIFF, APPELLANT,

ie

NYACOL PRODUCTS, INC., ET AL.. DEFENDANTS. APPELLEES.

APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. WILLIAM G. YouNG, U.S. District Judge]

Before

SELYA, Circuit Judge, Corrin, Senior Circuit Judge,

and STAHL, Circuit Judge.

February 24, 1993

Jennifer S.D. Roberts, with whom Rackemann, Sawyer

& Brewster, P.C. was on brief, for appellant.

Catherine M. Flanagan, Attorney, Department of

Justice, Environment & Natural Resources Division, with

whom Vicki A. O’Meara, Acting Assistant. Attorney

General, and David C. Shilton, Attorney, Environment &

Natural Resources Division, were on brief, for Julie

Belaga, Regional Administrator, U.S. Environmental

Protection Agency, appellee.

(la)

2a

SELYA, Circuit Judge. This appeal, which arises out of

an insurance company’s efforts to secure a_ binding

declaration of its rights and responsibilities under an in-

surance contract, poses an intriguing question: does the

“officer removal” statute, 28 U.S.C. § 1442(a)(1), permit a

federal official, sued only in her representative capacity,

to remove an action to federal district court? Because we

think that the statute does not confer such a right, and

because there is no other cognizable basis for federal juris-

diction, we return the case to the district court with in-

structions that it be remitted to a state forum.

From 1917 until 1977, a succession of dye-houses occu-

pied a thirty-five acre plot in Ashland, Massachusetts.

During these six decades, toxic wastes impregnated the

site. Eventually, the United States Environmental Protec-

tion Agency (EPA) and the Massachusetts Department of

Environmental Protection (DEP) discovered the pollution

and documented its source in the dye manufacturing proc-

esses. In early 1982, EPA notified Nyacol Products, Inc.

(Nyacol), a producer of colloidal silicas at a portion of the

site, that it considered Nyacol a potentially responsible

party (PRP) under the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA),

42 U.S.C. §§ 9601-9626, 9651-9662, 9671-9675.' Pursuant

' EPA also branded two of Nyacol’s officers, Robert Lurie and

Thomas L. O’Connor, as PRPs. Lurie and O’Connor are named as de-

fendants in the instant suit. For ease in reference, we refer to the com-

pany and the individual defendants, collectively, as “Nyacol” or “the

insureds.” We note, moreover, that although EPA, invoking a theory

of successor liability, notified these three defendants that they might

be liable for EPA’s response costs (past and future), as well as for

cleanup costs, EPA has not yet sued to compel payment of these ex-

penses or otherwise to enforce its claimed rights.

3a

to Massachusetts law, which deems PRP notices equiva-

lent to law suits for the purpose of triggering an insurer’s

duty to defend, see Hazen Paper Co. v. United States Fid.

& Guar. Co., 555 N.E.2d 576, 581 (Mass. 1990), Nyacol

called upon its insurance carrier, plaintiff-appellant

American Policyholders Insurance Company (American),

to defend it against EPA’s claims and to indemnify it for

loss, costs, damages, or other expense related thereto.

American provisionally undertook the company’s defense

under its general liability policy. In December of 1991,

American brought suit in a Massachusetts state court seek-

ing a declaration that it had no obligation to defend or re-

compense its insureds. In addition to naming the insureds

as parties defendant, American joined two other defend-

ants: Julie Belaga, in her capacity as EPA’s Regional Ad-

ministrator, and Daniel S. Greenbaum, in his capacity as

Commissioner of the DEP. Invoking the officer removal

statute, 28 U.S.C. § 1442(a)(1), Belaga transferred the ac-

tion to federal district court.

On February 20, 1992, DEP agreed to be bound by a

declaration of rights in American’s lawsuit insofar as the

judgment resolves insurance coverage issues. The case pro-

ceeded against Belaga and the insureds. On May 12, 1992,

the district court granted Belaga’s motion to dismiss, rea-

soning that a suit against her, in her official capacity, was

really a suit against EPA and that, since EPA had never

? The officer removal statute provides in pertinent part:

A civil action or criminal prosecution commenced in a State

court against any of the following persons may be removed by

them to the district court of the United States for the district and

division embracing the place wherein it is pending:

(1) Any officer of the United States or any agency thereof, or

person acting under him, for any act under color of such office.

28 U.S.C. § 1442(a){1) (1988).

4a

sued Nyacol or brought an enforcement proceeding

against it, American could articulate no justiciable contro-

versy with EPA. The court entered final judgment for

Belaga, see Fed. R. Civ. P. 54(b), and remanded all other

parties and claims to the state court. American appeals

from the dismissal order.

While the parties vigorously debate an insurance com-

pany’s ability, consistent with Article III’s case or contro-

versy requirement, to join EPA in a coverage dispute

before EPA has brought an enforcement action against

the insured, our discussion seeps into vastly different legal

ground. The impetus behind this diversion lies in the

Supreme Court’s opinion in /nternational Primate Protec-

tion League v. Administrators of Tulane Educ. Fund, 111

S. Ct. 1700 (1991). Concerned about the implication of

Primate Protection League for federal court jurisdiction,

we requested supplemental briefing on whether this action

was properly removed to federal court. Both sides re-

sponded that removal was valid under 28 U.S.C.

§ 1442(a)(1) because of Belaga’s status as a federal officer.

Notwithstanding this accord, we must pursue the matter.

Litigants cannot confer subject matter jurisdiction by

agreement. See Insurance Corp. of Ir. v. Compagnie des

Bauxites, 456 U.S. 694, 702 (1982); California v. LaRue,

409 U.S. 109, 113 n.3 (1972). Because a federal court is

under an unflagging duty to ensure that it has jurisdiction

over the subject matter of the cases it proposes to adjudi-

cate, we are obliged to address the propriety of removal as

a threshold matter even though neither party has raised a

question in that regard. See Mansfield, Coldwater & Lake

Michigan Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)

(stating that a federal appellate court, on its own motion,

Dicer

Sa

must “deny its own jurisdiction, and, in the exercise of its

appellate power, that of all other courts of the United

States, in all cases where such jurisdiction does not af-

firmative appear in the record”).

A

The officer removal statute, 28 U.S.C. § 1442(a)(1),

quoted supra note 2, is designed to allow federal officers

to remove actions to federal court that would otherwise be

unremovable. See Willingham v. Morgan, 395 U.S. 402,

406-07 (1969) (stating that the section covers all cases in

which federal officers, sued in state court, “can raise a col-

orable defense arising out of their duty to enforce federal

law”).* In Primate Protection League, the Supreme Court

held that the reference to “any agency” of the United

States contained in the officer removal statute did not

stand alone, but constituted part of a possessive phrase

modifying the noun “officer.” See 111 S. Ct. at 1705. Put

another way, the statute is to be read as if a second “of”

appeared in the text immediately following the disjunctive

“or.” Hence, section 1442(a)(1) permits removal by an “of-

ficer of . . . any agency [of the United States],” and, con-

versely, does not permit removal by the federal agency

itself. See id. at 1709.

Although Primate Protection League makes it crystal

clear that EPA, as a federal agency, cannot remove an ac-

tion to federal court under color of section 1442(a)(1), this

case presents a variation on the theme: it requires that we

decide the closely related, but nonetheless different, ques-

tion of whether, for purposes of the officer removal

’ This is not to say that every case in which a federal officer is a de-

fendant is removable. Rather, removal is limited to situations in which

the officer’s removal petition demonstrates the existence of a federal

defense. See Mesa v. California, 489 U.S. 121, 136 (1989).

6a

Statute, a suit brought against an executive of an agency,

exclusively in the executive’s official capacity, constitutes a

Suit against an “officer,” thereby permitting removal

under the statute, or a suit against an “agency,” thereby

precluding such removal. It is to this inquiry that we now

turn.4

B

Generally, a suit against an officer in the officer’s of-

ficial capacity constitutes a suit against the governmental!

entity which the officer heads. For example, in Kentucky

v. Graham, 473 U.S. 159 (1985), the Court dwelt on the

distinction between suits against a person in an individual,

as opposed to official, capacity. The Court explained that

while individual-capacity actions “seek to impose personal

liability upon a government official,” id. at 165 (emphasis

supplied), payable out of personal assets, see id. at 166, an

official-capacity action is, “in all respects other than

name, to be treated as a suit against the entity.” /d.

Phrased differently, “official-capacity suits generally rep-

resent only another way of pleading an action against an

entity of which an officer is an agent.” Monell v. New

York City Dep’t of Social Servs., 436 U.S. 658, 690 n.55

(1978). Thus, a string of Supreme Court cases holds that a

Suit against a government officer in his or her official

capacity binds the agency or other governmental entity,

not the officer personally. See, e.g., Graham, 473 U.S. at

166; Brandon v. Holt, 469 U.S. 464, 471 (1985); cf. Lar-

son v. Domestic & Foreign Commerce Corp., 337 U.S.

682, 687 (1949) (explaining that, in deciding whether a suit

against a government officer is an official-capacity or

* The officer removal statute was first enacted in its present form in

1948. Its legislative history is of no significant assistance in respect to

the inquiry at hand.

Ta

individual-capacity suit, “the crucial question is whether

the relief sought . . . is relief against the sovereign”).

The character of an official-capacity suit is not trans-

formed simply because jurisdiction is in issue. In Loeffler

v. Frank, 486 U.S. 549 (1988), a case in which the plaintiff

sued the Postmaster General in his official capacity, the

Court held that acts of a government officer in his official

capacity “are always ciargeable” as acts of the agency for

purposes of a sue-and-be-sued clause. /d. at 563 n.8: see

also FHA v. Burr, 309 U.S. 242, 249-50 (1940) (holding

that a suit against the head of an agency in his official

capacity was indistinguishable from a suit against the

agency itself for purposes of a sue-and-be-sued clause and

that a waiver of immunity as to the agency head neces-

sarily waived the agency’s immunity). Similarly, even

when pondering jurisdictional and quasi-jurisdictional

issues, this court has consistently accepted and applied the

principle that an official-capacity suit against a govern-

ment officer is fully equivaient to a suit against the agency.

See, e.g., Northeast Fed. Credit Union v. Neves, 837 F.2d

531, 533 (Ist Cir. 1988) (“Where ... claims are made

against a government official acting purely in a representa-

tive role, the suit must be regarded as one against the

sovereign.”); Culebras Enters. Corp. v. Rivera Rios, 813

F.2d 506, 516 (1st Cir. 1987) (observing that, for Eleventh

Amendment purposes, an official-capacity suit is “tanta-

mount to a suit against the [governmental entity]’’).

We see no reason to forsake the general rule—that a

Suit against a government officer in his or her official

Capacity is a suit against the agency—when considering

the appropriateness of removal under 28 U.S.C.

§ 1442(a)(1). The theme of Primate Protection League,

logically extended, serves an esemplastic purpose, shaping

the officer removal statute into a rational whole. In that

case, the Supreme Court explained that when a suit for

8a

monetary damages is brought against an officer in his or

her individual capacity, the complicated questions that

arise as to that officer’s immunity support a protective

grant of removal jurisdiction. See Primate Protection

League, 111 S. Ct. at 1708. By contrast, agencies do not

need the prophylaxis of federal removal because determin-

ing an agency’s immunity, unlike determining an indivi-

dual’s immunity, is a “sufficiently straightforward” propo-

sition. /d. That rationale strongly favors treatment of

official-capacity suits for purposes of removai in the same

manner as suits against the agency. After all, because a

suit against an officer in her official capacity cannot bind

the officer personally, see, e.g., Brandon, 469 U.S. at 471,

no issues of immunity can possibly arise that differ from

those arising in a suit directly against the agency.

Consistency is the touchstone of statutory interpreta-

tion. If we were to hold that a suit nominally against EPA

is not removable, as Primate Protection League demands,

but then go on to hold that a suit nominally against EPA’s

regional administrator in her official capacity—a suit

that seeks a judgment binding on the EPA-—is nonethe-

less removable, we would spawn a glaring interpretive in-

consistency and, in the bargain, impugn the Primate

Court’s reasoning. Given the identity of juridical interest

that exists between a government agency and its executive

officer when the latter is sued only in his or her official

capacity, the fact that the agency may not remove an ac-

tion under the officer removal statute compels the conclu-

sion that an official-capacity defendant is likewise dis-

abled from initiating removal thereunder.*> See generally

* Ordinarily, the question of whether a complaint names an officer

in a personal, as opposed to an official, capacity requires little more

than a glance at the pleadings. If, however, a federal official, rea-

sonably believing himself or herself to be sued individually, attempts

9a

Primate Protection League, 111 S. Ct. at 1708 (explaining

that access to removal under section 144_(a)(1) does not

turn on a “mere technicality”).

C

Our conclusion is fortified by Judge Posner’s opinion in

Western Secs. Co. v. Derwinski, 937 F.2d 1276 (7th Cir.

1991). There, the Seventh Circuit, acting sua sponte,

refused to allow a federal administrator sued in his official

capacity to remove an action to federal court under section

1442(a)(1). Acknowledging that, in the aftermath of

Primate Protection League, suits against federal agencies

cannot be removed under section 1442(a)(1), see id. at

1278, Judge Posner wrote that “while the suit in this case is

nominally against the Administrator, it is against him in

his official capacity and such suits are considered to be

against the government itself.” /d. at 1279. Thus, the court

concluded that, absent an alternative basis for jurisdic-

to remove under section 1442(a)(1), any dispute as to the officer’s

Status will necessarily be resolved by a federal court in the context of

assaying its own jurisdiction. See 14A Charles A. Wright, et al.,

Federal Practice and Procedure § 3730, at 499-500 (explaining that a

defendant wishing to remove need only file a notice of removal, with

the result that the propriety of removal, if challenged at all, will “be

tested later in the federal court by a motion to remand”). Thus, our

holding that an officer sued in an official capacity may not remove the

action in order to obtain a federal forum for resolution of the under-

lying merits will in no way deprive the officer of access to a federal

forum for determination of whether the suit is in fact an action against

him or her personally. By the same token, if an officer is sued in both

individual and official capacities, we see no bar to removal under sec-

tion 1442(a)(1). See El Gran Video Club Corp. v. E.T.D., Inc., 757 F.

Supp. 151, 155 & n.3 (D.P.R. 1991) (observing that federal courts

have removal jurisdiction over all pendent claims that are not

“separate and independent”).

10a

tion, dismissal for want of subject matter jurisdiction

would be required. See id.°

We agree with the Seventh Circuit that Primate Protec-

tion League, logically extended, mandates that a federal

officer sued solely in his or her official capacity may not

remove a Suit to federal court under the aegis of 28 U.S.C.

§ 1442(a)(1). In the case before us, this holding draws the

sap from the tree: American’s suit, brought against Belaga

in her official capacity and seeking no relief against her

personally, is in reality a suit against the agency. It neces-

sarily follows that, because EPA itself could not have re-

moved this action under section 1442, see Primate Protec-

tion League, 111 S. Ct. at 1708, Belaga’s attempt to

remove under the same statutory provision must fail.

Notwithstanding that this action was infelicitously re-

moved under 28 U.S.C. § 1442(a)(1) and that the parties

steadfastly disclaim any independent basis for federal

jurisdiction,’ we inquire whether any other toehold for

federal court jurisdiction exists. Belaga’s notice of removal

did mention 28 U.S.C. § 1441—a statute which permits

removal of any suit that originally could have been

® In Derwinski the court retained jurisdiction because the plaintiff's

action arose under federal law. See Derwinski, 937 F.2d at 1280; see

also 28 U.S.C. §§ 1331, 1441 (1988).

’ The parties’ appellate filings ground removal jurisdiction solely in

~the-officer-removal statute. In answer to our express inquiry anent

jurisdiction, Belaga replied that the United States, on her behalf, re-

moved the action pursuant to 28 U.S.C. § 1442(a)(1) and contended

that such removal was proper. American averred that, apart from the

officer removal statute, it was “not aware of any other basis for

federal jurisdiction.” Nyacol, by electing not to participate in this ap-

peal, has effectively consented to the appropriateness of a state

forum.

lla

brought in federal court.® See, e.g., Merrell Dow Pharma-

ceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986).

Thus, principles of equity, as well as the law, compel us to

explore whether American’s declaratory judgment action

falls within the federal district court’s original jurisdiction.

We proceed to run that gauntlet.

A

In this instance, the presence of original jurisdiction

hings upon the existence ve/ non of a federal question,?

that is, the existence of an action “arising under the Con-

stitution, laws, or treaties of the United States.” 28 U.S.C.

§ 1331 (1988). Ordinarily, a claim arises under federal law

within the meaning of section 1331 if a federal cause of ac-

tion appears on the face of a well-pleaded complaint. See

Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 113

(1936); Louisville & Nashville R.R. v. Mottley, 211 U.S.

149, 152 (1908). For purposes of determining the existence

of federal question jurisdiction in a declaratory judgment

action, however, the Supreme Court directs our attention

away from the face of the complaint and focuses it instead

on the law that creates the underlying cause of action:

* The statute provides in pertinent part:

Except as otherwise expressly provided by Act of Congress, any

civil action brought in a State court of which the district courts of

the United States have original jurisdiction, may be removed by

the defendant or the defendants, to the district court of the

United States for the district and division embracing the place

where such action is pending.

28 U.S.C. § 1441(a) (1988).

* The parties to the lawsuit are not of totally diverse citizenship and,

apart from the possibility of a federal question, there is no other

arguable foundation for federal jurisdiction.

12a

Where the complaint in an action for declaratory

judgment seeks in essence to assert a defense to an im-

pending or threatened state court action, it is the

character of the threatened action, and not of the

defense, which will determine whether there is

federal-question jurisdiction. .. .

Public Service Comm’n v. Wycoff Co., 344 U.S. 237, 248

(1952); see also Franchise Tax Bd. v. Construction

Laborers Vacation Trust, 463 U.S. 1, 15-16 & n.14 (1983).

Here, American’s declaratory judgment action

represents a mounted offensive on two related fronts: the

Suit is not only an attempt to preempt impending actions

by the insureds (seeking, presumably, to secure a defense

against charges of environmental harm and to secure in-

demnification with respect to loss, costs, damages, and ex-

pense associated therewith), but it is also an attempt to

foreclose governmental authorities from trying to reach

insurance proceeds to satisfy as-yet-unrealized judgments

under CERCLA. Thus, the underlying causes of action,

howsoever visualized, are in the nature of claims to en-

force an insurance contract, the adjudication of which will

require interpretation of various policy provisions and

contract terms. A suit is customarily deemed to arise under

the law that gives birth to the cause of action. See Ameri-

can Well Works Co. v. Layne & Bowler Co., 241 U.S. 257,

260 (1916). Applying that approach, this case is based

solely upon, and, therefore, arises under, state law.'° See

'0 We note in passing that, were American to assert that CERCLA

preempts state insurance actions, such an assertion, while mentioning

federal law, would be insufficient to confer jurisdiction because

federal law would come into play only as a defense. See Franchise Tax

Bd., 463 U.S. at 13-14; Nashoba Communications, Inc. v. Town of

Danvers, 893 F.2d 435, 440 (ist Cir. 1990); see also Hudson Ins. Co.

v. American Elec. Corp., 957 F.2d 826, 830 n.4 (11th Cir.), cert.

denied, 113 S. Ct. 411 (1992). We except, of course, the rare case, dis-

l3a

CPC Int'l, Inc. v. Northbrook Excess & Surplus Ins. Co.,

962 F.2d 77, 97-98 (1st Cir. 1992) (divining applicable state

law to interpret a pollution exclusion clause in an in-

surance policy); A. Johnson & Co. v. Aetna Cas. & Sur.

Co., 933 F.2d 66, 70-74 (Ist Cir. 1991) (same); Ryan v.

Royal Ins. Co., 916 F.2d 731, 734-35 (Ist Cir. 1990)

(similar); Jn re Acushnet River & New Bedford Harbor,

725 F. Supp. 1264, 1278-81 (D. Mass. 1989) (certifying

various questions regarding the substantive interpretation

of an insurance policy to the Massachusetts Supreme

Judicial Court in order to determine an insurer’s duty to

cover cleanup costs), aff'd in part and rev’d in part on

other grounds sub nom. Lumbermens Mut. Cas. Co. v.

Belleville Indus., Inc., 938 F.2d 1423 (1st Cir. 1991), cert.

denied, 112 S. Ct. 969 (1992); see also Hudson Ins. Co. v.

American Elec. Corp., 957 F.2d 826, 828 (11th Cir.) (hold-

ing that an insured’s potential suit to recover insurance

proceeds for its liability under CERCLA arises under “the

applicable state law governing the interpretation of in-

surance contracts”), cert. denied, 113 S. Ct. 411 (1992).

Federal jurisdiction cannot take root in this arid soil.!'

cussed infra p. 15-16, where federal law so completely displaces state

causes of action in a particular area that all such claims are “neces-

sarily federal in character.” Metropolitan Life Ins. Co. v. T ‘lor, 481

U.S. 58, 63-64 (1987).

'! We note that CERCLA itself does not provide a direct cause of

action against a responsible party’s liability insurer. See Port Allen

Marine Serv., Inc. v. Chotin, 765 F. Supp. 887, 889 (M.D. La. 1991)

(dismissing claims brought directly against carrier because CERCLA

“does not create a direct right of action against [PRP’s] insurers”); cf.

42 U.S.C. § 9608(c) (allowing direct action against guarantors in

limited circumstances). It is, therefore, abundantly clear that

American’s declaratory judgment complaint anticipates future coer-

cive actions that not only will be entirely governed by state law, but

also will be initiated only through state-created mechanisms.

l4a

B

In an abundance of caution, we take one additional

step. There may exist unusual circumstances wherein a

State-created cause of action can be deemed to arise under

federal law. For example, when a plaintiff’s state-created

right to relief “necessarily depends on resolution of a sub-

Stantial question of federal law,” Franchise Tax Bd., 463

U.S. at 28, or when a parallel “federal cause of action

completely pre-empts a state cause of action,” id. at 24,

the suit is considered a creature of federal law. We test

these waters. The latter proposition (complete preemp-

tion) can be summarily dismissed. Structurally, CERCLA

provides “no parallel federal cause of action for the

recovery of insurance proceeds for CERCLA-created lia-

bility.” Hudson, 957 F.2d at 830. Rather, its provisions,

read objectively, choreograph a pas de deux wherein

CERCLA-driven suits to collect insurance proceeds are to

be brought under state law. See, e.g., 42 U.S.C.

§ 9607(e)(1) (preserving “any agreement to insure, hold

harmless, or indemnify a party” for CERCLA liability).

We turn, then, to the former proposition (necessary de-

pendence on a federal-law question).

Conceivably, American might argue that a suit to com-

pel it to defend and/or indemnify its insureds is one that,

though created by state law, necessarily turns on federal

common law. However, such an argument amounts to a

call for the application of a uniform federal rule of deci-

sion to govern interpretation of an insurance policy’s

scope of coverage vis-a-vis CERCLA liability. We decline

to heed that call in the face of solid precedent pointing in

the opposite direction. The massed authority for treating

insurance coverage questions in CERCLA cases as

peculiarly matters of state law pervades the courts of ap-

peals. See, e.g., Northbrook, 962 F.2d at 79; Northern

_ EEO

,

lSa

Ins. Co. v. Aardvark Assocs., Inc., 942 F.2d 189, 192 (3d

Cir. 1991); Liberty Mut. Ins. Co. v. Triangle Indus., Inc.,

957 F.2d 1153, 1157 (4th Cir.), cert. denied, 113 S. Ct. 78

(1992); FL Aerospace v. Aetna Cas. & Sur. Co., 897 F.2d

214, 219 (6th Cir.), cert. denied, 111 S. Ct. 284 (1990);

Aetna Cas. & Sur. Co. v. General Dynamics Corp., 968

F.2d 707, 710 (8th Cir. 1992); Industrial Indemnity Ins.

Co. v. Crown Auto Dealerships, Inc., 935 F.2d 240, 241

(llth Cir. 1991). State courts chime in tune. See, e.z.,

Hazen Paper, 555 N.E.2d at 579[;] Boeing Co. v. Aetna

Cas. & Sur. Co., 784 P.2d 507, 509 (Wash. 1990); Techni-

con Elecs. Corp. v. American Home Assurance Co., 542

N.E.2d 1048, 1050-51 (N.Y. 1989).

Case law aside, we doubt that Congress intended

CERCLA to be the springboard for catapulting federal

courts into what has historically been a state-law preserve.

Congress has made it plain that federal legislation should

rarely be interpreted to encroach on a state’s regulation of

insurance. See, e.g., McCarran-Ferguson Act, 15 U.S.C.

§ 1012(b) (1988). Nothing in CERCLA suggests that Con-

gress intended to deviate from this regimen. Indeed,

CERCLA’s text not only envisions the bringing of suits

under state law but specifically mandates their resolution

in accordance with that law. See 42 U.S.C. § 9672(a)

(stating that CERCLA’s insurance subchapter “shall [not]

be construed to affect . . . the law governing the interpre-

tation of insurance contracts of any State”). Thus,

CERCLA effectively rebuts the claim that its drafters in-

tended to transform state-law insurance actions into ac-

tions arising under federal law.

We think that the situation at hand is closely analogous

to that which confronted us in Royal v. Leading Edge

Prods., Inc., 833 F.2d 1 (1st Cir. 1987). There,-a plaintiff

sought to recover for breach of a royalty agreement re-

lated to a copyrighted work. In an effort to maintain

l6a

federal jurisidiction, he argued that his case arose under

the federal copyright laws. See id. at 2. We disagreed,

pointing out that when an action is brought to enforce a

royalty contract the action arises out of the contract and

not under the copyright statute, even though the contract

concerns a copyright. See id. at 4. By the same token, an

action brought to enforce the pollution-coverage provi-

sions of an insurance policy arises out of the policy and

not under federal environmental law, even though any

potential recovery under the policy will satisfy a

CERCLA-generated liability. Accord Hudson, 957 F.2d at

829-30. In this case, as in Royal, it would be wrong to ar-

rogate unto the federal courts “jurisdiction over what is

essentially a garden-variety contract dispute.” Royal, 833

F.2d at 5.

In fine, because the insurance dispute which American’s

declaratory judgment action anticipates is a creature of

state law and cannot be said to arise under federal law,

original federal question jurisdiction —and, by extension,

removal jurisdiction under 28 U.S.C. § 1441(a)—does not

lie.

IV

Since neither section 1442 nor section 1441 support[s] the

removal of American’s declaratory judgment action, there

is simply no serviceable hook on which federal jurisdiction

can be hung. We, therefore, go no further. Inasmuch as

the lower court lacked subject matter jurisdiction, its

order dismissing the action against EPA is null. See Jn-

surance Corp. of Ir., 456 U.S. at 701 (“The validity of an

order of a federal court depends upon that court’s having

jurisdiction over . . . the subject matter. . . .”). We vacate

the dismissal order and direct that the district court re-

instate Belaga, in her official capacity, as a party and

a

17a

thereafter return the improvidently removed action to the

court from whence it emanated. '!2

Vacated and remanded with directions. No costs.

'? We take no view of Belaga’s claims of sovereign immunity, non-

justiciability, unripeness and the like. We are similarly noncommittal

as to the effect, if any, of remand on the stipulation entered into bet-

ween American and DEP. Because the federal courts lack jurisdiction,

all such matters must be presented to, and resolved by, the state

courts.

18a

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 92-1949

AMERICAN POLICYHOLDERS INSURANCE COMPANY,

PLAINTIFF, APPELLANT,

NyACOL PRODUCTS, INC., ET AL., DEFENDANTS, APPELLEES.

ERRATA SHEET

The opinion of the Court issued on February 24, 1993,

is corrected as follows:

On page 16, line 25—insert semicolon after “579”

On page 18, line 15—change “support” to “supports”

19a

APPENDIX B

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. 92-10118-Y

AMERICAN POLICYHOLDERS INSURANCE COMPANY,

PLAINTIFF,

NYACOL PRODUCTS, INC., ET AL., DEFENDANTS,

NYACOL PRODUCTS, INC., THIRD-PARTY PLAINTIFF,

COMMERCIAL UNION INSURANCE COMPANY,

ET AL.. THIRD-PARTY DEFENDANTS.

ORDER FOR JUDGMENT

This action came on for hearing on May 12, 1992, on

the motion to dismiss of Defendant Julie Belaga— named

as Defendant in her official capacity as Regional Admini-

strator of the United States Environmental Protection

Agency —all claims as against her pursuant to Rule 12,

Fed. R. Civ. P. This Court granted said motion from the

bench on May 12, 1992, and subsequently ruled that there

is no just reason for delay of entry of final judgment on

this Court’s May 12, 1992, ruling. Accordingly, this Court

directs entry of final judgment pursuant to Rule 54(b),

20a

Fed. R. Civ. P., on its May 12, 1992, dismissal of all

claims as against Defendant Belaga.

/s/ William G. Young_

WILLIAM G. YOUNG, District Judge

June 11, 1992

DATE

2la

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. 92-10118-Y

AMERICAN POLICYHOLDERS INSURANCE COMPANY,

PLAINTIFF,

vy,

NyACOL PROpDUCTS, INC., ET AL., DEFENDANTS,

NYACOL PRODUCTS, INC., THIRD-PARTY PLAINTIFF,

-;

COMMERCIAL UNION INSURANCE COMPANY,

ET AL., THIRD-PARTY DEFENDANTS.

[Filed June 5, 1992]

RULE 54(b) CERTIFICATE

With respect to the issue determined by motion, and a

hearing on May 12, 1992, on the sufficiency of the plead-

ings concerning defendant Julie Belaga, in her official

capacity as Regional Administrator of the United States

Environmental Protection Agency, Region I (hereafter

“United States”) and to which this certificate is in refer-

ence to, it is CERTIFIED, in accordance with Rule 54(b),

Fed. R. Civ. P.:

22a

(1) That the Court has directed the entry of final judg-

ment dismissing defendant United States on all Counts in

which named; and

(2) That the Court has determined that there is no just

reason for delay as the allowance of the United States’ mo-

tion to dismiss has little to do with the substance of the

case.

/s/ William G. Young

WILLIAM G. YOUNG,

District Judge

June 11, 1992

DATE

23a

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

Civil Action No. 92-10118-Y

AMERICAN POLICYHOLDERS INSURANCE COMPANY.

PLAINTIFF,

NYACOL PRODUCTS, INC., ET AL., DEFENDANTS.

NYACOL PRODUCTS, INC , THIRD-PARTY PLAINTIFF.

Vv.

COMMERCIAL UNION INSURANCE COMPANY,

ET AL., THIRD-PARTY DEFENDANTS.

JUDGMENT

This action came on for hearing before the Court, the

Honorable William G. Young, District Judge, presiding,

on the motion of Defendant Julie Belaga, in her official

capacity as Regional Administrator of the United States

Environmental Protection Agency, Region I, to dismiss all

claims as against her, and a decision having been duly

rendered from the bench on May 12, 1992, and the Court

having further expressly directed entry of final judgment:

EE

24a

It is Ordered and Adjudged that all claims against

Defendant Belaga in the above captioned action are

dismissed.

Dated at Boston, Massachusetts, this 12 day of June,

1992.

ROBERT J. SMITH, JR.

CLERK OF COURT

/s/ Elizabeth Smith

Deputy Clerk

———=<x

25a

APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 92-1949

AMERICAN POLICYHOLDERS INSURANCE COMPANY,

PLAINTIFF, APPELLANT,

i

NYACOL PRODUCTS, INC., ET AL.. DEFENDANTS. APPELLEES.

Before

SELYA, Circuit Judge, CoFFIN, Senior Circuit Judge,

and STAHL, Circuit Judge.

Entered: April 28, 1993

ORDER OF THE COURT

The petition for rehearing with suggestion for rehearing

en banc filed by appellee Belaga is, under this court’s inter-

nal operating procedures, considered both by the panel

and by the full court. Panel rehearing is hereby denied for

the following reasons.

First, a party may not raise new and additional matters

for the first time in a petition for rehearing. See Kale v.

Combined ins. Co., 924 F.2d 1161, 1169 (1st Cir.), cert.

denied, i112 S. Ct. 69 (1991); Anderson v. Beatrice Foods

26a

Co., 900 F.2d 388, 397 (Ist Cir.), 111 S. Ct. 233 (1990).

That rule has particular pertinence here because, following

oral argument, the panel invited supplemental briefing on

the specific question of federal court removal jurisdiction

in light of Jnternational Primate Protection League v. Ad-

ministrators of Tulane Educ. Fund, 111 S. Ct. 1700

(1991). Appellee’s response at the time was a perfunctory

one; none of the arguments raised in her rehearing petition

were alluded to in her supplemental brief, even in passing.

We will not revisit specific issues merely because an

adverse result has infused new vigor into a discontented

party’s advocacy.

Second, even if we were to consider them, appellee’s

substantive arguments in no way undermine the force of

the panel opinion. Only one such argument merits addi-

tional comment. The cynosure of Belaga’s petition is her

newly emergent contention that the panel’s treatment of

Primate Protection League is insupportable because, she

maintains, suits against officers in their official capacities

are not equivalent to suits against the agency. Relying pri-

marily on Kozera v. Spirito, 723 F.2d 1003 (Ist Cir. 1983),

a pre-Primate Protection League case discussing what is

loosely termed an “exception[ ] to the doctrine of sov-

ereign immunity . . . in injunctive suits against federal of-

ficials,” id. at 1008 (applying Larson v. Domestic &

Foreign Commerce Corp., 337 U.S. 682, 689-90 (1949)),

Belaga disputes the statement that “no issues of immunity

can possibly arise [in official-capacity suits] that differ

from those arising in a suit directly against the agency.”

Ante at __ [Panel Op. at 9]. Belaga’s reliance on Larson

and its progeny, such as Kozera, is misplaced.

Whatever consequences the Larson exception may por-

tend in a proper case, it has no applicability here. Larson

comes into play when either (1) a federal officer acts in ex-

cess Of his or her statutory authority, or (2) the statute

‘(ete

27a

conferring power upon the officer is unconstitutional, see

Kozera, 723 F.2d at 1008; see also Larson, 337 U.S. at

689-90. The basis for the exception is clear; where the Lar-

son criteria are met, “the conduct against which specific

relief is sought is beyond the officer’s powers and is, there-

fore, not the conduct of the sovereign.” Larson, 337 U.S.

at 690; where the criteria are not met, however, an official-

capacity “suit is barred, not because it is a suit against an

officer of the Government, but because it is, in substance,

a suit against the Government over which the court, in the

absence of consent, has no jurisdiction.” Jd. at 688. Clear- -

ly, then, the Larson exception concerns the doctrine of

governmental, not official, immunity. Where relief would

not be obtainable against the agency, as such, because of

sovereign immunity, the exception nevertheless enables 4

plaintiff to obtain specific relief when an officer is named

and the case’s underlying merits satisfy one of the two con-

ditions described above. See id. at 689-90. Viewed in this

manner—as a way around the sovereign immunity of

agencies— Larson erects no shield for protecting in-

dividual officers from the impact of lawsuits and, indeed,

enunciates no rule bearing thereon:

This is all distant from the jurisdictional issue on which

the instant case turns. The functional purpose of the of-

ficer removal statute, as expressed in Primate Protection

League, is to guarantee the availability of a federal forum

for the resolution of complicated questions of immunity,

see 111 S. Ct. at 1708, not to guarantee such a forum for

litigation of the underlying merits of every Suit against a

government actor. When a case, like this one, poses no

special questions of immunity as the federal officer/de-

fendant was sued purely in her representative capacity, the

defendant must be content with the plaintiff’s choice of a

state judicial forum to resolve a state-law claim. Belaga

points to nothing that can affect her, personally, in any

28a

way that would differ from how the agency would be af-

fected, and, as we have made clear, ante at __, __ [Panel

Op. at 4, 9], the complaint in this case seeks relief against

the sovereign, not against Belaga personally.

We add one final observation. To a large extent,

Belaga’s belated reference to Larson stirs a tempest in a

teapot. Whenever a complaint raises a federal question,

which will almost always be the case when Larson applies,

removal is allowed under 28 U.S.C. § 1331. Our decision

that official-capacity suits are not removable as such

under 28 U.S.C. § 1442(a)(1) will only affect those cases in

which an officer is sued in his or her official capacity by a

plaintiff whose complaint raises Only issues of state law.

This case is prototypical of that genre.

The petition for panel rehearing is denied.

—— ll

29a

APPENDIX F

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

No. 92-1949

AMERICAN POLICYHOLDERS INSURANCE COMPANY,

PLAINTIFF, APPELLANT,

¥.

NYACOL PRODUCTS, INC., ET AL.. DEFENDANTS, APPELLEES.

Before

BREYER, Chief Judge, TORRUELLA, SELYA, Cyr, BOUDIN

and STAHL, Circuit Judges,

Entered: April 28, 1993

ORDER OF THE COURT

The panel of judges that rendered the decision in this

case having voted to deny the petition for rehearing and

the suggestion for the holding of a rehearing en banc hav-

ing been carefully considered by the judges of the Court in

regular active service and a majority of said judges not

having voted to order that the appeal be heard or reheard

by the Court en banc,

It is ordered that the suggestion for rehearing en banc be

denied.

By the Court:

FRANCIS P. SCIGLIANO

Clerk

-° U.S. GOVERNMENT PRINTING OFFICE. 1993—342-479/86010