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
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"
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. This appeal, which arises out of SELYA, Circuit Judge.
an insurance company's efforts to secure a binding declaration of
its rights and responsibilities under an insurance 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 jurisdiction, we return the case to the
district court with instructions that it be remitted to a state
forum.
I
From 1917 until 1977, a succession of dye-houses
occupied a thirty-five acre plot in Ashland, Massachusetts.
During these six decades, toxic wastes impregnated the site.
Eventually, the United States Environmental Protection Agency
(EPA) and the Massachusetts Department of Environmental
Protection (DEP) discovered the pollution and documented its
source in the dye manufacturing processes. 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, 9671-9675.1
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
Pursuant to Massachusetts law, which deems PRP notices
equivalent 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 seeking a declaration that it had no obligation to defend
or recompense its insureds. In addition to naming the insureds
as parties defendant, American joined two other defendants:
Julie Belaga, in her capacity as EPA'S Regional Administrator,
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 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:
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 proceeded
against Belaga and the insureds. On May 12, 1992, the district
court granted Belaga's motion to dismiss, reasoning that a suit
against her, in her official capacity, was really a suit against
EPA and that, since EPA had never sued Nyacol or brought an
enforcement proceeding against it, American could articulate no
justiciable controversy 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.
II
While the parties vigorously debate an insurance
company's ability, consistent with Article 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. The impetus
behind this diversion lies in the Supreme Court's opinion in
International Primate Protection League v. Administrators of
Tulane Educ. Fund, 111 S. Ct. 1700 (1991). Concerned about the
implications of Primate Protection League for federal 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).
jurisdiction, we requested supplemental briefing on whether this
action was properly removed 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. 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 adjudicate, 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, 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
affirmatively 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 colorable
defense arising out of their duty to enforce federal law").3 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 "officer of . . . any agency [of the United States]," and,
conversely, 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 action 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, question of
whether, for purposes of the officer removal 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
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).
to this inquiry that we now turn.4
B
Generally, a suit against an officer in the officer's
official 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." Id. Phrased differently, "official-
capacity suits generally represent 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. Larson 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 individual-capacity suit, "the 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.
question is whether the relief sought . . . is relief against the
sovereign").
The character of an official-capacity suit is not
transformed 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 chargeable" as acts of the agency for purposes of a sue-
and-be-sued clause. Id. 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
necessarily 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 government officer is fully
equivalent to a suit against the agency. See, e.g., Northeast
Fed. Credit Union v. Neves, 837 F.2d 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 506, 516 (1st Cir. 1987) (observing that, for
Eleventh Amendment purposes, an official-capacity 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 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 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 determining an agency's immunity, unlike
determining an individual's immunity, is a "sufficiently
straightforward" proposition. Id. That rationale strongly
favors treatment of official-capacity suits for purposes of
removal 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
interpretation. 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 nonetheless removable, we would
spawn a glaring interpretive inconsistency 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
action under the officer removal statute compels the conclusion
that an official-capacity defendant is likewise disabled from
initiating removal thereunder.5 See 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
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").
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." Id. at 1279.
Thus, the court concluded that, absent an alternative basis for
jurisdiction, dismissal for want of subject matter jurisdiction
would be required. See id.6
We agree with the Seventh Circuit that Primate
Protection 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 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).
III
Notwithstanding that this action was infelicitously
removed under 28 U.S.C. 1442(a)(1) and that the parties
steadfastly disclaim any independent basis for federal
jurisdiction,7 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 brought in federal court.8
See, e.g., Merrell Dow Pharmaceuticals 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
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).
In this instance, the presence of original jurisdiction
hinges upon the existence vel non of a federal question,9 that
is, the existence of an action "arising under the Constitution,
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 action 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:
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. 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
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.
an attempt to preempt impending actions by the insureds (seeking,
presumably, to secure a defense against charges of environmental
harm and to secure indemnification with respect to loss, costs,
damages, and expense 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 enforce 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 American 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.10 See 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
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).
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 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.) (holding 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 insurance contracts"), cert. denied, 113 S. Ct.
411 (1992). Federal jurisdiction cannot take root in this arid
soil.11
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
11We note that CERCLA itself does not provide a direct cause of 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.
"necessarily depends on resolution of a substantial 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 preemption) can be
summarily dismissed. Structurally, CERCLA provides "no parallel
federal cause of action for the recovery of insurance proceeds
for CERCLA-created liability." 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 dependence on a federal-law question).
Conceivably, American might argue that a suit to compel
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 decision 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
appeals. See, e.g., Northbrook, 962 F.2d at 79; Northern 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 (11th Cir. 1991). State courts chime in tune. See, e.g.,
Hazen Paper, 555 N.E.2d at 579; Boeing Co. v. Aetna Cas. & Sur.
Co., 784 P.2d 507, 509 (Wash. 1990); Technicon 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 Congress 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 interpretation of
insurance contracts of any State"). Thus, CERCLA effectively
rebuts the claim that its drafters intended to transform state-
law insurance actions into actions 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 related to a
copyrighted work. In an effort to maintain federal jurisdiction,
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 provisions 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 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 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 supports
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 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 the dismissal order and direct that the
district court reinstate Belaga, in her official capacity, as a
party and thereafter return the improvidently removed action to
the court from whence it emanated.12
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.