F I L E D United States Court of Appeals Tenth Circuit
MAY 19 2000 UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER Clerk
S. GREENE, and the class of plaintiffs which she represents,
Plaintiff - Appellant, No. 99-1030 v. (D. Colorado) CITIGROUP, INC., a Delaware (D.C. No. 98-D-2332) corporation; S. W. SHATTUCK CHEMICAL COMPANY, INC., a Colorado corporation; SALOMON, INC., a Delaware corporation; COLORADO, STATE OF; DENVER, CITY AND COUNTY OF; BILL OWENS, Governor of the State of Colorado,
Defendants - Appellees, ____________________________
ROCKY MOUNTAIN LOW-LEVEL RADIOACTIVE WASTE BOARD,
Intervenor - Appellee.
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.
Plaintiff S. Greene, suing on behalf of herself as a Denver, Colorado,
taxpayer and other similarly situated Denver taxpayers, appeals the dismissal of
her complaint, which sought injunctive and declarative relief regarding a low-
level radioactive waste site located in Denver. We affirm.
BACKGROUND
Ms. Greene initially filed this action in Colorado state court, alleging that
defendant The S.W. Shattuck Chemical Company, Inc., had violated the Rocky
Mountain Low-Level Radioactive Waste Compact (the “Compact”) by
implementing a remedy for clean-up of the Unit 8 Denver Radium site, which the
Environmental Protection Agency had ordered pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended,
42 U.S.C. §§ 9601-9675 (“CERCLA”). Other parties named as defendants were
The Citigroup, Inc. and Salomon, Inc., corporations apparently related to
Shattuck, Roy Romer, then the Governor of Colorado, the State of Colorado, and
the City and County of Denver.
Shattuck removed Ms. Greene’s action to federal court. In its removal
petition, Shattuck alleged that its remediation action was conducted pursuant to
-2- the directive of a federal officer (an EPA official), and that removal was therefor
appropriate under 28 U.S.C. § 1442(a), the federal officer removal statute. 1
Shattuck then filed a motion to dismiss, arguing that Ms. Greene has no
private cause of action to enforce the Compact and that she lacks standing to
maintain the cause of action in federal court. The State defendants also filed
motions to dismiss, alleging failure to state a claim and Eleventh Amendment
immunity. The Rocky Mountain Low-Level Radioactive Waste Board (the
“Board”) filed a motion to intervene as of right, as well as a motion to dismiss,
arguing that Ms. Greene has no private cause of action. Ms. Greene filed a
motion to remand the matter to the state court, arguing that removal was
improper, and filed a motion to strike the Board’s motion to dismiss.
The district court: (1) denied Ms. Greene’s motion to remand; (2) granted
the Board’s motion to intervene; (3) granted Shattuck’s motion to dismiss;
(4) granted the Board’s motion to dismiss; (5) denied Ms. Greene’s motion to
1 28 U.S.C. § 1442(a) provides in pertinent part:
A civil action . . . 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 . . . .
-3- strike the Board’s motion to dismiss; and (6) held the State defendants’ motion to
dismiss is moot.
Ms. Greene appeals, arguing (1) the district court lacked subject matter
jurisdiction over this action, and the court accordingly erred in denying her
motion to remand the action; (2) the Compact creates a private cause of action;
(3) the district court erred in removing the action pursuant to 28 U.S.C. § 1442(a);
and (4) because the district court lacked subject matter jurisdiction, it lacked
jurisdiction to grant the Board’s motion to intervene, enter judgment on the
Board’s behalf, and award the Board costs.
DISCUSSION
I. Removal
The removal of this case to federal court was proper under 28 U.S.C.
§ 1442(a)(1). That section allows removal of any civil action against “[a]ny
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). The right of
removal “is made absolute whenever a suit in a state court is for any act ‘under
color’ of federal office, regardless of whether the suit could originally have been
brought in a federal court.” Willingham v. Morgan, 395 U.S. 402, 406 (1969);
see also Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1427 (11th Cir.
-4- 1996) (“If the statutory prerequisites are satisfied, section 1442(a)(1) provides an
independent federal jurisdictional basis.”).
A private corporation may remove a case under § 1442(a)(1) if it can show:
(1) that it acted under the direction of a federal officer; (2) that there is a causal
nexus between the plaintiff’s claims and the acts the private corporation
performed under the federal officer’s direction; and (3) that there is a colorable
federal defense to the plaintiff’s claims. See Winters v. Diamond Shamrock
Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998). Those requirements are
clearly met in this case. Shattuck implemented a remedy selected by the EPA, a
federal agency, pursuant to CERCLA, and it was subject to civil penalties for
failure to comply with that directive. Shattuck has raised colorable federal
defenses, including the interpretation of the Compact and the interplay between
CERCLA and the Compact. 2 Finally, there is a clear nexus between Ms. Greene’s
claims and Shattuck’s remedial actions taken pursuant to the EPA’s orders.
We therefore affirm the district court’s conclusion that removal under the
federal officer removal provisions of § 1442(a)(1) was proper and the federal
2 The Compact is an interstate compact which was adopted as part of the law of Colorado in 1983 and codified at Colo. Rev. Stat. §§ 24-60-2201 et. seq. Congress ratified the Compact in 1985 and President Reagan signed it into law in 1986. “[T]he construction of an interstate agreement sanctioned by Congress under the Compact Clause presents a federal question.” Cuyler v. Adams, 449 U.S. 433, 438 (1981).
Free access — add to your briefcase to read the full text and ask questions with AI
F I L E D United States Court of Appeals Tenth Circuit
MAY 19 2000 UNITED STATES COURT OF APPEALS
TENTH CIRCUIT PATRICK FISHER Clerk
S. GREENE, and the class of plaintiffs which she represents,
Plaintiff - Appellant, No. 99-1030 v. (D. Colorado) CITIGROUP, INC., a Delaware (D.C. No. 98-D-2332) corporation; S. W. SHATTUCK CHEMICAL COMPANY, INC., a Colorado corporation; SALOMON, INC., a Delaware corporation; COLORADO, STATE OF; DENVER, CITY AND COUNTY OF; BILL OWENS, Governor of the State of Colorado,
Defendants - Appellees, ____________________________
ROCKY MOUNTAIN LOW-LEVEL RADIOACTIVE WASTE BOARD,
Intervenor - Appellee.
ORDER AND JUDGMENT *
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Before BRISCOE, ANDERSON, and LUCERO, Circuit Judges.
Plaintiff S. Greene, suing on behalf of herself as a Denver, Colorado,
taxpayer and other similarly situated Denver taxpayers, appeals the dismissal of
her complaint, which sought injunctive and declarative relief regarding a low-
level radioactive waste site located in Denver. We affirm.
BACKGROUND
Ms. Greene initially filed this action in Colorado state court, alleging that
defendant The S.W. Shattuck Chemical Company, Inc., had violated the Rocky
Mountain Low-Level Radioactive Waste Compact (the “Compact”) by
implementing a remedy for clean-up of the Unit 8 Denver Radium site, which the
Environmental Protection Agency had ordered pursuant to the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980, as amended,
42 U.S.C. §§ 9601-9675 (“CERCLA”). Other parties named as defendants were
The Citigroup, Inc. and Salomon, Inc., corporations apparently related to
Shattuck, Roy Romer, then the Governor of Colorado, the State of Colorado, and
the City and County of Denver.
Shattuck removed Ms. Greene’s action to federal court. In its removal
petition, Shattuck alleged that its remediation action was conducted pursuant to
-2- the directive of a federal officer (an EPA official), and that removal was therefor
appropriate under 28 U.S.C. § 1442(a), the federal officer removal statute. 1
Shattuck then filed a motion to dismiss, arguing that Ms. Greene has no
private cause of action to enforce the Compact and that she lacks standing to
maintain the cause of action in federal court. The State defendants also filed
motions to dismiss, alleging failure to state a claim and Eleventh Amendment
immunity. The Rocky Mountain Low-Level Radioactive Waste Board (the
“Board”) filed a motion to intervene as of right, as well as a motion to dismiss,
arguing that Ms. Greene has no private cause of action. Ms. Greene filed a
motion to remand the matter to the state court, arguing that removal was
improper, and filed a motion to strike the Board’s motion to dismiss.
The district court: (1) denied Ms. Greene’s motion to remand; (2) granted
the Board’s motion to intervene; (3) granted Shattuck’s motion to dismiss;
(4) granted the Board’s motion to dismiss; (5) denied Ms. Greene’s motion to
1 28 U.S.C. § 1442(a) provides in pertinent part:
A civil action . . . 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 . . . .
-3- strike the Board’s motion to dismiss; and (6) held the State defendants’ motion to
dismiss is moot.
Ms. Greene appeals, arguing (1) the district court lacked subject matter
jurisdiction over this action, and the court accordingly erred in denying her
motion to remand the action; (2) the Compact creates a private cause of action;
(3) the district court erred in removing the action pursuant to 28 U.S.C. § 1442(a);
and (4) because the district court lacked subject matter jurisdiction, it lacked
jurisdiction to grant the Board’s motion to intervene, enter judgment on the
Board’s behalf, and award the Board costs.
DISCUSSION
I. Removal
The removal of this case to federal court was proper under 28 U.S.C.
§ 1442(a)(1). That section allows removal of any civil action against “[a]ny
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). The right of
removal “is made absolute whenever a suit in a state court is for any act ‘under
color’ of federal office, regardless of whether the suit could originally have been
brought in a federal court.” Willingham v. Morgan, 395 U.S. 402, 406 (1969);
see also Magnin v. Teledyne Continental Motors, 91 F.3d 1424, 1427 (11th Cir.
-4- 1996) (“If the statutory prerequisites are satisfied, section 1442(a)(1) provides an
independent federal jurisdictional basis.”).
A private corporation may remove a case under § 1442(a)(1) if it can show:
(1) that it acted under the direction of a federal officer; (2) that there is a causal
nexus between the plaintiff’s claims and the acts the private corporation
performed under the federal officer’s direction; and (3) that there is a colorable
federal defense to the plaintiff’s claims. See Winters v. Diamond Shamrock
Chem. Co., 149 F.3d 387, 398-400 (5th Cir. 1998). Those requirements are
clearly met in this case. Shattuck implemented a remedy selected by the EPA, a
federal agency, pursuant to CERCLA, and it was subject to civil penalties for
failure to comply with that directive. Shattuck has raised colorable federal
defenses, including the interpretation of the Compact and the interplay between
CERCLA and the Compact. 2 Finally, there is a clear nexus between Ms. Greene’s
claims and Shattuck’s remedial actions taken pursuant to the EPA’s orders.
We therefore affirm the district court’s conclusion that removal under the
federal officer removal provisions of § 1442(a)(1) was proper and the federal
2 The Compact is an interstate compact which was adopted as part of the law of Colorado in 1983 and codified at Colo. Rev. Stat. §§ 24-60-2201 et. seq. Congress ratified the Compact in 1985 and President Reagan signed it into law in 1986. “[T]he construction of an interstate agreement sanctioned by Congress under the Compact Clause presents a federal question.” Cuyler v. Adams, 449 U.S. 433, 438 (1981).
-5- district court had subject matter jurisdiction over this action. Ms. Greene’s
argument that she lacks standing in federal court does not alter that conclusion.
Since the district court had jurisdiction over this matter, it properly ruled upon the
various motions pending before it.
II. Motion to Intervene
The district court granted the Board’s motion to intervene as of right,
granted the Board’s motion to dismiss, and awarded it costs. Ms. Greene’s only
challenge on appeal to the court’s grant of the motion to intervene rests upon her
assertion that the court lacked subject matter jurisdiction over the removed action
and therefore lacked the authority to rule on any motions before it. We have
rejected that argument. Our rejection controls the resolution of this issue.
III. Dismissal
Ms. Greene argues the court should have remanded the matter to the state
court, rather than dismiss her complaint. We disagree. As we concluded above,
the district court had jurisdiction over the case because the case had properly been
removed to federal court. However, Ms. Greene admits, as she has throughout
this litigation, that she lacks standing in federal court to bring this action. In such
circumstances, dismissal is proper. See M.A.I.N. v. Commissioner, 876 F.2d
-6- 1051, 1055 (1st Cir. 1989); Beckman v. Battin, 926 F. Supp. 971, 978-79 (D.
Mont. 1995); International Primate Protection League v. Administrator, No. 91-
2966, 1992 WL 329555 at *2-3 (E.D. La., Nov. 2, 1992), aff’d, 22 F.3d 1094 (5th
Cir. 1994); M.A.I.N. v. Petit, 644 F. Supp. 81, 85 (D. Me. 1986). We affirm the
district court’s grant of Shattuck’s and the Board’s motions to dismiss. That
obviates the need to address any other issues, or the propriety of the court’s ruling
on any other motions, in this case.
For the foregoing reasons, we AFFIRM the district court’s dismissal of this
case with prejudice.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge
-7-