USCA1 Opinion

March 10, 1993

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
_________________________

No. 92-1949
AMERICAN POLICYHOLDERS INSURANCE COMPANY,
Plaintiff, Appellant,
v.
NYACOL PRODUCTS, INC., ET AL.,
Defendants, Appellees.
_________________________
ERRATA SHEET
ERRATA SHEET
The opinion of the Court
corrected as follows:

issued on February

24, 1993,

On page 16, line 25

insert semicolon after "579"

On page 18, line 15

change "support" to "supports"

is

February 24, 1993 UNITED STATES COURT OF APPEALS

For The First Circuit
_________________________
No. 92-1949
AMERICAN POLICYHOLDERS INSURANCE COMPANY,
Plaintiff, Appellant,
v.
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,

_____________
Coffin, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
_________________________

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.
_________________________
February 24, 1993
_________________________

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

This appeal, which arises out of

an insurance company's efforts to secure a binding declaration of

its

rights

poses

an

and responsibilities
intriguing

statute, 28 U.S.C.
only

in her

question:

under

an

does

the

1442(a)(1), permit a

representative

federal district court?

insurance contract,
"officer

removal"

federal official, sued

capacity, to

remove

an action

Because we think that the

to

statute does

not confer such a right, and because there is no other cognizable

basis

for

federal

jurisdiction,

district court with instructions

we return

the

case

to

that it be remitted to

the

a state

forum.
I
I
From
occupied
During

until

a thirty-five
these six

Eventually,

the

(EPA)

the

and

Protection (DEP)
source

1917

1977,

acre

decades,

plot

United States

discovered

of

dye-houses

Massachusetts.

impregnated the

Department

site.

Protection Agency
of

and

processes.

In

Environmental
documented

its

early 1982, EPA

(Nyacol), a producer of colloidal

of the site,

responsible

Ashland,

the pollution

notified Nyacol Products, Inc.

potentially

in

Environmental

Massachusetts

a portion

succession

toxic wastes

in the dye manufacturing

silicas at

party

that it considered

(PRP)

under

the

Nyacol a

Comprehensive

Environmental Response, Compensation, and Liability Act (CERCLA),

42 U.S.C.

9601-9626, 9651-9662, 9671-9675.1

____________________

1EPA also branded two of Nyacol's officers, Robert Lurie and

Thomas L. O'Connor, as PRPs.
Lurie and O'Connor are named as
defendants in the instant suit. For ease in reference, we refer
3

Pursuant to Massachusetts law,

equivalent
insurer's

to

law

suits

for

duty to defend, see

___

the

which deems PRP notices

purpose

of

Hazen Paper Co.

_______________

triggering

an

v. United States
_____________

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

its

insurance

Policyholders

carrier,

American

Insurance Company (American), to defend it against

EPA's claims and

to indemnify

it for loss,

other expense related thereto.

the company's

plaintiff-appellant

defense under

costs, damages,

American provisionally undertook

its general

liability policy.

December of 1991, American brought suit in a Massachusetts

court seeking a declaration

that it had no obligation

or recompense its insureds.

as parties

defendant,

Julie Belaga,

in her

DEP.

Invoking

the

In addition to naming

American

joined

capacity as EPA'S

and Daniel S. Greenbaum,

two

removal

In

state

to defend

the insureds

other

defendants:

Regional Administrator,

in his capacity as Commissioner

officer

or

statute,

28

of the

U.S.C.

1442(a)(1),Belaga transferredthe actionto federaldistrict court.2

____________________

to the company 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 expenses or otherwise to
enforce its claimed rights.
2The 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:
4

On
declaration

February
of

20, 1992,

rights

in

DEP agreed

American's lawsuit

judgment resolves insurance coverage

against Belaga and the

insureds.

court granted Belaga's motion to

against
EPA

be bound
insofar

as

by a

the

issues.

The case proceeded

On May 12,

1992, the district

dismiss, reasoning that a

suit

her, in her official capacity, was really a suit against

and that,

since EPA

enforcement proceeding
justiciable

had never

sued

Nyacol or

against it, American could

controversy

judgment for Belaga,

other

to

with

EPA.

The

court

brought an

articulate no
entered

final

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

___

parties and claims to

from the dismissal order.

the state court.

American appeals

II
II
While
company's

the

ability,

parties

vigorously

consistent

with

debate

Article

an

insurance

III's

case

or

controversy requirement, to join EPA in a coverage dispute before

EPA has brought

an enforcement action against the

insureds, our

discussion seeps into vastly different legal ground.

behind this

diversion lies

in

the Supreme

International Primate Protection League

__________________________________________
Tulane Educ. Fund, 111 S. Ct.
_________________
implications

of

1700 (1991).

Primate Protection League

__________________________

The impetus

Court's opinion
v.

in

Administrators of
_________________

Concerned about
for

federal

the

court

____________________
(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).
5

jurisdiction, we requested supplemental

action

was

properly

removed

briefing on whether this

to federal

court.

Both

sides

responded 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.

______________________

694,

702

v. Compagnie des Bauxites, 456 U.S.

_______________________

(1982); California
__________

(1972).

v. LaRue,
_____

Because a federal court is

409

U.S. 109,

113 n.3

under an unflagging duty to

ensure

that it has jurisdiction

over the subject

matter of the

cases

it proposes to adjudicate,

we are obliged

to address the

threshold matter even

though neither

propriety of
party

has

removal as a
raised a

question in

that

Coldwater & Lake Michigan Ry. Co.

___________________________________
(1884)
motion,
its

(stating

a federal

v. Swan,
____

See Mansfield,
___ __________

111 U.S.

appellate

court,

379, 382

on

its own

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

appellate

States,

that

regard.

in

power, that
all

cases

of all
where

other
such

courts of

the United

jurisdiction

does

not

affirmatively appear in the record").

A
A
The officer
quoted supra note
_____
remove

actions

unremovable.
(1969)

removal statute, 28 U.S.C.

2, is
to

designed to allow

federal

See Willingham
___ __________

(stating

federal officers,

that

court

v. Morgan,
______

the section

sued in

that

federal officers

to

would

be

395

covers

state court, "can

1442 (a)(1),

otherwise

U.S. 402,

all

cases in

raise a

406-07

which

colorable

defense arising out of their duty to enforce federal law").3

Primate Protection League,
___________________________
reference to "any agency"

the

Supreme Court

held

that

of the United States contained

In

the

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

second

appeared

"of"

disjunctive "or."
an "officer

in

the text

immediately

Hence, section 1442(a)(1)

of . .

. any agency

if a

following

the

permits removal by

[of the United

States]," and,

conversely, does not permit removal by the federal agency itself.

See id. at 1709.
___ ___
Although
clear

that EPA, as a federal agency,

federal
presents
the

Primate Protection League

__________________________

court

color

a variation on the

closely

whether,

under

related,

for purposes

makes it

crystal

cannot remove an action to

of section

1442(a)(1),

theme:

requires that we decide

it

this

but nonetheless

different,

of the

removal statute,

officer

case

question

of

a suit

brought against

an executive

of an

executive's official capacity,

______________________________
"officer,"

thereby permitting

agency, exclusively in the

___________________

constitutes

a suit

removal under

against

the statute,

suit against an "agency," thereby precluding such removal.

an

or a

It is

____________________
3This

is not

to say

that every case in which a federal

_____
officer is a defendant 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).
__________
7

to this inquiry that we now turn.4

B
B
Generally, a

suit against an officer

official capacity

constitutes

entity

officer heads.

which the

Graham, 473 U.S. 159

a suit
For

in the officer's

against the
example, in

(1985), the Court dwelt on

governmental

Kentucky v.
________

the distinction

______
between

suits against a person

official, capacity.
capacity

actions

in an individual,

The Court explained

"seek

to

as opposed to

that while individual-

impose personal
________

liability

upon

government official," id. at 165 (emphasis supplied), payable out

___
of personal assets,

see id. at 166,

___ ___

is, "in

all respects other

against

the

entity."

capacity suits
an action

an official-capacity action

than name, to

Id.
___

Phrased

be treated as

differently,

generally represent only another

against an entity

of which an

a suit

"official-

way of pleading

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
personally.
469

or other governmental

officer

See, e.g., Graham, 473 U.S. at 166; Brandon v. Holt,

___ ____ ______
_______
____

U.S. 464,

471

Commerce Corp.,
______________
deciding

entity, not the

whether

official-capacity

(1985); cf.
___

337 U.S.
a
or

suit

Larson
______

682, 687
against a

v. Domestic & Foreign

____________________

(1949) (explaining that,

government

individual-capacity

suit,

officer
"the

in

is an

crucial

____________________

4The 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.
8

question is whether the relief sought . . . is relief against the

sovereign").
The

character

of

an

official-capacity suit

transformed simply because jurisdiction is in issue.

is

not

In Loeffler
________

v. Frank, 486 U.S. 549 (1988), a case in which the plaintiff sued
_____
the Postmaster General in
that acts of a

government officer in his official

always chargeable" as
and-be-sued clause.
U.S. 242, 249-50
an agency in

his official capacity, the Court

n.8; see also FHA

___ ____ ___

and

his official capacity was

that a

waiver of

v. Burr, 309
____

indistinguishable from a

immunity

necessarily waived the agency's

pondering

of a sue-

(1940) (holding that a suit against the head of

suit against the agency itself for purposes of

clause

capacity "are

acts of the agency for purposes

Id. at 563
___

held

jurisdictional

as to

immunity).

a sue-and-be-sued
the

agency head

Similarly, even when

and quasi-jurisdictional

issues, this

court has consistently accepted and applied the principle that an

official-capacity

suit

against a

equivalent

to a suit against

Fed. Credit

Union v. Neves,

government

the agency.
837 F.2d

officer

is fully

See, e.g., Northeast

___ ____ _________

531, 533 (1st

Cir. 1988)

__________________
("Where

. .

_____

claims are

made

against a

government official

acting purely in a representative role, the suit must be regarded

as one against the sovereign."); Culebras Enters. Corp. v. Rivera

______________________
______
Rios,
____

813 F.2d

Eleventh

506, 516

Amendment

(1st Cir.

purposes,

an

1987) (observing
official-capacity

that, for
suit

is

"tantamount 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

suit

against

appropriateness of

the

agency

removal under 28

when
U.S.C.

considering

the

1442(a)(1).

The

theme of Primate Protection League, logically extended, serves an

_________________________
esemplastic purpose,
rational whole.

In

shaping the officer removal

statute into a

that case, 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, 111 S.

Ct.

___ _________________________
at 1708.

By contrast, agencies do

not need the prophylaxis

federal removal because determining an agency's immunity,

determining

an

individual's

immunity,

straightforward"

proposition.

Id.
___

favors

treatment

removal in

of

That

unlike

"sufficiently

rationale

official-capacity suits

the same manner as

all, because a suit

is

for

strongly

purposes

suits against the agency.

against an officer in her

cannot bind the officer personally,

of

of

After

official capacity

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
interpretation.

is

judgment

of

statutory

Primate Protection League demands,

_________________________

go on to hold that a

administrator

touchstone

If we were to hold that a suit nominally against

EPA is not removable, as

then

the

in her

suit nominally against EPA's regional

official capacity

binding on the EPA

but

suit that

seeks a

is nonetheless removable, we would

10

spawn a

glaring interpretive inconsistency and,

in the bargain,

impugn

the Primate
_______

juridical interest

Court's reasoning.
that exists

Given

the identity

of

between a government

agency and

its executive officer when the latter is sued only in

his or her

official capacity, the

action under
that

fact that

the officer removal statute

an official-capacity

initiating

the agency may

removal

defendant is

thereunder.5

not remove

an

compels the conclusion

likewise
See
___

disabled from

generally
_________

Primate
_______

Protection League, 111 S. Ct. at 1708 (explaining that access to

__________________
removal

under

section

1442(a)(1)

does

not

turn

on

a "mere

technicality").
C
C
Our conclusion is

fortified by Judge

Posner's opinion

in Western Secs. Co. v. Derwinski, 937 F.2d 1276 (7th Cir. 1991).
_________________
_________
____________________

5Ordinarily, 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, reasonably believing himself or
herself to be sued individually, attempts 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 underlying 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 section 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").
11

There, the Seventh Circuit, acting sua sponte, refused to allow a

___ ______
federal administrator sued in his
action to federal court
that,

in

against

the

under section 1442(a)(1).

aftermath

federal

Acknowledging

of Primate Protection League,

___________________________

agencies

1442(a)(1), see id. at

___ ___

official capacity to remove an

cannot

be

removed

under

1278, Judge Posner wrote that

is nominally against the Administrator,

against

his

considered
Thus, the

in

official

to be against the

capacity

dismissal for want

would be required.
We

agree

such

government itself."

court concluded that, absent an

jurisdiction,

and

section

"while the

suit in this case

him

suits

it is

suits

are

Id. at 1279.
___

alternative basis for

of subject matter jurisdiction

See id.6
___ ___
with

the

Seventh

Circuit

that

Primate
_______

Protection League,
_________________
officer

sued

solely in

remove a suit
1442(a)(1).
from

logically extended,
his or

to federal court
In the case

the tree:

official capacity

American's

her

mandates that a

federal

official capacity

may not

under the aegis

of 28 U.S.C.

before us, this holding

draws the sap

suit, brought against

Belaga in her

and seeking no relief

is in reality a suit against the agency.

against her personally,

It

necessarily follows

that, because EPA itself could not have removed this action under
section

1442, see Primate Protection League, 111 S. Ct. at 1708,

___ _________________________

Belaga's

attempt to

remove under

the same

statutory provision

must fail.
____________________

6In 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).
___ ____
12

III
III
Notwithstanding

that

this

action was

infelicitously

removed

under

steadfastly

28

U.S.C.

disclaim

jurisdiction,7 we
court

1442(a)(1)

any

and

independent

basis

inquire whether any other

jurisdiction

mention 28 U.S.C.

exists.
1441

suit that originally

that the
for

parties

federal

toehold for federal

Belaga's notice

of

removal

did

a statute which permits removal of any

could have been brought in

federal court.8

See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.

___ ____ ________________________________
________
804, 808 (1986).
compel us
action

to

falls

jurisdiction.

Thus, principles of equity, as well as the law,

explore whether
within

the

American's

federal

declaratory

district

court's

judgment

original

We proceed to run that gauntlet.

A
A

____________________

7The 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, removed 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 appeal, has effectively
consented to the appropriateness of a state forum.
8The 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).
13

In this instance, the presence of original jurisdiction

hinges
is,

upon the existence vel

___

non of a
___

the existence of an action

laws,

or treaties

(1988).
meaning

of

"arising under the Constitution,

the United

of section 1331 if a

28

U.S.C.

1331

federal cause of action appears on

complaint.

Bank in Meridian,
__________________

299

Nashville R.R.
_______________

Mottley, 211
_______

of

jurisdiction

v.

U.S.

determining
in

the

109,

and focuses

See Gully v.
___ _____
113

U.S.

(1936);
149,

existence

declaratory

Supreme Court directs

complaint

States."

Ordinarily, a claim arises under federal law within the

the face of a well-pleaded

purposes

federal question,9 that

judgment

our attention
it instead

of

152

Louisville &
_____________
(1908).

federal

law that

For

question

action, however,

away from the

on the

First Nat'l
___________

face of

the

the

creates the

underlying cause of action:

Where
the complaint
in an
action for
declaratory judgment seeks in essence to
assert
a
defense to
an
impending 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.

______________________
___________
see
___

also Franchise Tax Bd. v.

____ ___________________

237, 248 (1952);

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

____________________

9The 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.
14

an attempt to preempt impending actions by the insureds (seeking,

presumably, to secure a
harm

and to secure indemnification with

damages, and
attempt

expense associated

to foreclose

reach insurance
under CERCLA.

Thus,

contract, the
various

respect to loss, costs,

therewith), but

governmental

proceeds to satisfy

visualized, are in the

of

defense against charges of environmental

it is also

authorities from

to

as-yet-unrealized judgments

the underlying causes of

action, howsoever

nature of claims to enforce

adjudication of which will

policy provisions

trying

an

an insurance

require interpretation

and contract

terms.

suit is

customarily deemed to arise under the law that gives birth to the
cause of action.

See American Well Works Co.

___ _______________________

v. Layne & Bowler

______________

Co., 241 U.S. 257, 260 (1916).

___

Applying that approach, this case

is

therefore,

based

law.10
Co.,
___

solely

upon,

and,

arises

under,

state

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

___ ________________
_________________________________
962

state law

F.2d 77,
to

97-98 (1st

interpret

Cir. 1992)

pollution

(divining applicable

exclusion

clause

in

an

insurance policy); A. Johnson & Co. v. Aetna Cas. & Sur. Co., 933
________________
_____________________
F.2d 66,

70-74 (1st Cir. 1991)

(same); Ryan v. Royal Ins. Co.,

____
_______________

____________________

10We 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 (1st
____________________
________________
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, discussed infra p.
_____
15-16, where federal law so completely displaces state causes of
action in a particular area that all such claims are "necessarily
federal in character." Metropolitan Life Ins. Co. v. Taylor, 481
__________________________
______
U.S. 58, 63-64 (1987).
15

916

F.2d 731, 734-35 (1st

Cir. 1990) (similar);

In re Acushnet
______________

River & New Bedford Harbor, 725 F. Supp. 1264, 1278-81 (D. Mass.
___________________________
1989)

(certifying various

interpretation

of

an

questions

insurance

regarding the

policy

to

the

substantive

Massachusetts

Supreme Judicial Court in order to determine an insurer's duty to

cover cleanup

costs), aff'd in
_____ __

part and rev'd in

____ ___ _____ __

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

_______ ___ ____ _________________________

part on other
____ __ _____

Belleville Indus.,
__________________

Inc., 938 F.2d 1423 (1st Cir. 1991), cert. denied, 112 S. Ct. 969
____
_____ ______
(1992); see also
___ ____
F.2d 826, 828

Hudson Ins. Co. v. American Elec. Corp.,

________________
_____________________

(11th Cir.) (holding

that an insured's

957

potential

suit to recover insurance proceeds for its liability under CERCLA

arises

under

"the

applicable

state

law

governing

the

interpretation of insurance contracts"), cert. denied, 113 S. Ct.

_____ ______
411 (1992).

Federal

jurisdiction cannot take root in

this arid

soil.11
B
B
In
step.

an abundance

There may

of

exist unusual

caution, we

take one

circumstances wherein

additional

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

____________________

11We note that CERCLA itself does not provide a direct cause
action against a responsible party's liability insurer. See
___
Port Allen Marine Servs., 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 coercive actions that not
only will be entirely governed by state law, but also will be
initiated only through state-created mechanisms.
of

16

"necessarily depends
federal

law,"

on resolution of a

Franchise Tax Bd., 463

__________________

parallel "federal

cause of

substantial question of
U.S.

at 28,

or

action completely pre-empts

when a

a state

cause of action," id. at 24, the suit is considered a creature of

___
federal law.
The

We test these waters.

latter proposition

summarily dismissed.
federal

(complete preemption)

can be

Structurally, CERCLA provides "no parallel

cause of action

for the recovery

___ ___ ________

for CERCLA-created liability."

of insurance proceeds
__ _________ ________

Hudson, 957 F.2d at 830.

Rather,

___ ______________ _________

its

provisions,

______

read objectively,

wherein CERCLA-driven suits to

be brought under state

law.

choreograph

pas de
___ __

deux
____

collect insurance proceeds are to

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 dependence on a federal-law question).

Conceivably, American might argue that a suit to compel

it

to defend and/or indemnify

created by

its insureds is

state law, necessarily

However, such an argument

one that, though

turns on federal

amounts to a call for

common law.

the application

of a uniform federal rule of decision to govern interpretation of

an

insurance

liability.

We

policy's

of

decline to heed

precedent

pointing

authority

for

in

the

coverage

that call in

opposite

treating insurance

cases as peculiarly
appeals.

scope

17

CERCLA

the face of

direction.

coverage questions

matters of state law

See, e.g., Northbrook,

___ ____ __________

vis-a-vis

The

solid

massed

in CERCLA

pervades the courts of

962 F.2d at

79; Northern Ins.

_____________

Co. v. Aardvark Assocs., Inc., 942 F.2d 189, 192 (3d Cir.
___
______________________
Liberty Mut. Ins. Co. v.
______________________

Triangle Indus., Inc.,

_____________________

1991);

957 F.2d 1153,

1157 (4th Cir.), cert. denied, 113 S. Ct. 78 (1992); FL Aerospace

_____ ______
____________
v. Aetna Cas. & Sur. Co.,
______________________
denied, 111 S. Ct. 284
______
Dynamics Corp., 968
_______________

897 F.2d 214,

219 (6th Cir.),

(1990); Aetna Cas. & Sur. Co.

_____________________
F.2d 707,

710 (8th Cir.

cert.
_____

v. General
_______

1992); Industrial
__________

Indemnity Ins. Co. v. Crown Auto Dealerships, Inc., 935 F.2d 240,
__________________
____________________________
241 (11th

Cir. 1991).

Hazen Paper, 555

___________
Co.,
___

State

courts chime in tune.

N.E.2d at 579; Boeing Co. v.

__________

784 P.2d 507, 509

See, e.g.,
___ ____

Aetna Cas. & Sur.

_________________

(Wash. 1990); Technicon Elecs. Corp. v.

_______________________

American Home Assurance Co.,

_____________________________

542

N.E.2d

1048, 1050-51

(N.Y.

1989).
Case law aside, we
to

be the springboard

doubt that Congress intended CERCLA

for catapulting federal

has historically been a state-law preserve.

plain that
encroach

federal legislation
on

a state's

McCarran-Ferguson Act,
CERCLA

suggests

regimen.
of

suits

Indeed,
under

15 U.S.C.

of

law

interpreted to

insurance.

1012(b) (1988).
intended

CERCLA's text not only

state

Congress has made it

should rarely be

regulation

that Congress

courts into what

but

to

See,
___

e.g.,
____

Nothing in

deviate from

this

envisions the bringing

specifically

mandates

their

resolution in accordance with that law.

(stating

that

CERCLA's

See 42 U.S.C.
___

insurance subchapter

"shall

9672(a)
[not]

be

construed to affect . . . the law governing the interpretation of

insurance

contracts of

rebuts the claim

any State").

Thus,

CERCLA effectively

that its drafters intended to

transform state-

18

law insurance actions into actions arising under federal law.

We
analogous

think

that

the

to that which confronted

Prods., Inc.,
____________

833 F.2d 1

copyrighted work.
he argued that his
See id. at 2.
___ ___

at

hand

us in Royal
_____

(1st Cir. 1987).

sought to recover for breach of

brought

situation

is

closely

v. Leading Edge
____________

There, a

plaintiff

a royalty agreement related to a

In an effort to maintain federal jurisdiction,

case arose under the federal

We disagreed, pointing out

to enforce a royalty

copyright laws.

that when an action is

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 provisions of

an

insurance policy

federal
under

arises

environmental law,
the

policy

out of

even though

will satisfy

Accord Hudson, 957 F.2d at 829-30.

______ ______
would

the

policy and
any

not

under

potential recovery

CERCLA-generated

liability.

In this case, as in Royal, it

_____

be wrong to arrogate 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
law

and

federal

cannot be
question

action anticipates
said to

arise

jurisdiction

jurisdiction under 28 U.S.C.

is a creature

under federal
and,

1441(a)

by

of state

law, original

extension,

removal

does not lie.

IV
IV
Since neither

section 1442 nor

section 1441

supports

19

the removal

of American's declaratory judgment

simply no serviceable
hung.

hook on which federal

We, therefore, go no further. Inasmuch

action, there is

jurisdiction can be

as the lower court

lacked subject

matter

jurisdiction, its

action against EPA is null.

order

dismissing

the

See Insurance 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

. .").

district court reinstate

party and

the dismissal order and

direct that the

Belaga, in her official

thereafter return the improvidently

capacity, as a

removed action to

the court from whence it emanated.12

Vacated and remanded with directions. No costs.

Vacated and remanded with directions. No costs.
_______________________________________________

____________________

12We 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 between American and DEP. Because the
federal courts lack jurisdiction, all such matters must be
presented to, and resolved by, the state courts.
20