# Petition for Writ of Certiorari — Keough v. American Policyholders Insurance > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386004_0718%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1040 ## Text 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 ey nn ET Se ee ; : : : ee Ee ee me PARAS ee gee ee ee ey 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 I a 2 Ge gc ik GicreaaG a ve dav aes cpus } A Ne le ag kg ok wav ued us ea ka chan kon | 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 a a 23 NN ee ag sig i kb ea dvd & wick a dnb OS Oe la EN a oo i dos bb a4 ev ckck aca saawad. 19a RM Ls nA c bss bes bck rbd kAev cack pes 2la I id ogg ay oe gs herd oem oo wank 23a 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 | ee Wi RE aes e ee ee 4,19 ee Wie. SO eas ore een ieee 20 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.: ee Tee: ve ake ee eee 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 5 449-450. 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 ———=