Lowe v. Norfolk & W. Ry. Co.

• Decision Date: 08 January 1982
• Docket Number: Civ. No. 81-3387.
• Citation: 529 F. Supp. 491
• Parties: Richard G. LOWE, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, et al., Defendants. MONSANTO, Defendant/Third Party Plaintiff, v. WILLAMETTE-WESTERN CORPORATION, et al., Third Party Defendants.
• Court: U.S. District Court — Southern District of Illinois

529 F. Supp. 491

Richard G. LOWE, et al., Plaintiffs, v. NORFOLK AND WESTERN RAILWAY COMPANY, et al., Defendants.

MONSANTO, Defendant/Third Party Plaintiff, v. WILLAMETTE-WESTERN CORPORATION, et al., Third Party Defendants.

Civ. No. 81-3387.

United States District Court, S. D. Illinois.

January 8, 1982.

Paul L. Pratt, P. C., E. Alton, Ill., for plaintiffs.

Robert D. Tucker, St. Louis, Mo., for Norfolk & Western.

Robert W. Wilson, Edwardsville, Ill., for Gatx.

W. Monroe Roberts, Jr., St. Louis, Mo., for Dresser Industries.

ORDER

FOREMAN, Chief Judge:

Before the Court are the following motions: (1) Motion to Sever Claims and Causes of Action and Remand, filed by plaintiffs on November 12, 1981; (2) Motion to Dismiss or in the Alternative for Summary Judgment, filed by third-party defendant United States on November 27, 1981; and (3) Motion to Dismiss the Petition for Remand of third-party defendant Willamette-Western Corporation, d/b/a Western Environmental Service (WES), filed by plaintiffs on November 20, 1981.

The action arose out of a chemical spill which occurred as a result of a train car derailment. On January 10, 1979, sometime around 11:00 P.M., a Norfolk and Western Railroad tank car travelling through Sturgeon, Missouri, derailed and lost most or all of its contents of 10,000 gallons to the ground. Although first reported to the National Response Center as carbolic acid, the spilled chemical was in fact crude orthochlorophenol, a substance found later to contain a trace quantity of dioxin. Dioxin is a highly toxic chemical. Because of the potential danger and a noxious odor engulfing the town, the authorities evacuated the population. In response to a report of the derailment received from the National Response Center, third-party defendant United States, through the United States Environmental Protection Agency (EPA), located in Kansas City, dispatched a three person team to the site to evaluate the situation. The role and responsibility assumed by the EPA upon arrival at the site are subjects of dispute. However, it is clear that the EPA remained at the site throughout the two month cleanup operation and played at least a significant role in cleanup activities. The other third-party defendant, WES, was hired by defendant Norfolk and Western (N&W) to clean up and dispose of the spilled chemical.

On June 1, 1980, the separately filed claims of forty-seven plaintiffs were consolidated into one case in the Circuit Court for the Third Judicial Circuit, Madison County, Illinois. Each plaintiff asserted as one of his claims a count under the Federal Employers' Liability Act (FELA), 45 U.S.C. § 51, et seq., against Norfolk and Western Railway Company, one of the original defendants in the consolidated action. On September 24, 1981, plaintiffs filed against Monsanto an Amended Count V and Amended Count VI in state court, alleging various acts of negligence with respect to the manufacture and testing of the chemical and reckless conduct with respect to the same in the respective counts. On November 2, 1981, defendant Monsanto filed a third-party action against the EPA and WES. The third-party complaint seeks in four counts indemnity from WES for their negligent and reckless conduct and from the EPA for the same.

The EPA filed its Petition for Removal in federal court on November 6, 1981. The petition referred only to 28 U.S.C. § 1446(a) as authority for removability. On November 16, 1981, WES filed its own petition for removal, specifically citing 28 U.S.C. § 1442(a)(1), as authority for removal.

I. EPA

In their Motion to Sever Claims and Causes of Action and Remand, plaintiffs argue that the federal statute prohibiting the removal of FELA cases once they are filed in state court, 28 U.S.C. § 1445(a), mandates that this Court sever the main suit which contains the FELA claim from the third-party action and remand the former to state court. Monsanto contends that removal under § 1442(a)(1) removes the entire lawsuit, and that remand of the FELA claim would be inappropriate since (1) unlike the situation existing between §§ 1441(a) and (c), there is no provision under § 1442(a) allowing for severance and remand and (2) judicial economy would be disserved by a remand of a portion of the case. WES is in agreement with Monsanto.

Monsanto and WES, and to some measure, plaintiffs, seem convinced that resolution of the question involves interpretation of the "interplay" between § 1442(a)(1) and § 1445(a). The question so framed is whether the right of removal granted in § 1442(a)(1) to certain governmental defendants supersedes and displaces the right given by § 1445(a) to a FELA plaintiff who has sued in state court to stay there. The Court is of the opinion that no such statutory exegesis is warranted in this case, for the matter is resolved by a reading of the plain language of the removal statutes themselves.

First, § 1442(a)(1) is by its language unavailable to the EPA as authority for removal, since the EPA has been sued only as an agency and no recovery is sought from individual employees. The statute provides:

(a) 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 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.

28 U.S.C. § 1442(a)(1) (1980). The plain wording of subsection one makes it clear that removal is available to any officer of the United States or any officer of any agency of the United States. Although Monsanto and WES would not agree to this construction and would instead allow removal to any agency of the United States, the very next phrase dispels this alternative construction. The next phrase reads "or person acting under him." (Emphasis supplied) "Him" obviously refers directly to the officer of the United States or of the United States agency. It is highly unlikely that Congress would refer to a federal agency, in this case the EPA, as "him." Moreover, subsection (a) provides that any civil action or criminal prosecution commenced against certain following persons, enumerated in sub-subsections (1) through (4) may be removed by them. Thus, the words of the statute demonstrate that it provides protection for persons, not agencies. This makes sense, since Congress has already provided ample protection against tort suits for its agencies and the entire government in the Federal Tort Claims Act, and any other claims which could be brought in state court are barred by sovereign immunity.

Scholarly support also exists for this position. In reviewing the statute, Professor Moore states:

Subsection (a) of § 1442, which deals with federal officers, is based on former 28 U.S.C. § 76 (1940), § 33 of the Judicial Code of 1911, as amended. Paragraph (1) thereof applies to all officers, persons acting under them, employees of the United States and any agency thereof, whereas the comparable provision in former § 76 was limited to revenue officers engaged in the enforcement of the criminal or revenue laws, and those acting under their authority.

But in extending the application of paragraph (1) to federal officials and employees generally, the revision made no change in the theory or basis for removal that the civil suit or criminal prosecution must be against the officer or employee and based upon an act or acts done under color of office, etc.

J. Moore, 1A Moore's Federal Practice 298-302, Par. 0.1641 (1981) (citations omitted).

Furthermore, other decisions support this conclusion. In KCPO Employees Credit Union v. Mitchell, 421 F.Supp. 1327 (W.D. Mo.1976), the district court held that it had no jurisdiction under 28 U.S.C. § 1442(a)(1) of removed garnishment actions since the named garnishee, the United States Post Office, was not an "officer" of the United States or an agency. One passage from Judge Oliver's opinion summarizes the position well:

The government has cited no authority which suggests that "any agency" of the United States, as distinguished from an individual officer of such an agency, has a right of removal under § 1442(a)(1). It is our view that § 1442(a)(1) simply cannot be given such a tortured reading. Willingham v. Morgan, supra, traces the ancient history of § 1442(a)(1). The Supreme Court concluded in that case that the federal officer removal statute "is an incident of federal supremacy, and that one of its purposes was to provide a federal forum for cases where federal officials must raise defenses arising from their official duties." 395 U.S. at 405, 89 S.Ct. at 1815 (emphasis ours). That case requires that § 1442(a)(1) must be read in a manner sufficiently broad "to cover all cases where federal officers can raise a colorable defense arising out of their duty to enforce federal law." 395 U.S. at 406-407, 89 S.Ct. at 1816 (emphasis ours).

421 F.Supp. at 1330.¹ See, accord, Brewer v. Department of HUD, 508 F.Supp. 72, 74 (W.D. Ohio 1980); West v. West, 402 F.Supp. 1189 (N.D.Ga.1975).

The cases cited by Monsanto as contra authority are unavailing. First, Westgard v. Blue Cross, 418 F.Supp. 327 (D.N.D.1976) does not even discuss the issue, although § 1442(a)(1) is cited along with §§ 1441(a) and 1346(a)(2) as bases of jurisdiction. Second, with cases such as Williams v. Williams, 427 F.Supp. 557 (D.Md.1976), the Court simply disagrees. The Williams court did not analyze the statutory language at all but jumped to a conclusion based on a litany of language from Willingham v. Morgan, 395 U.S. 402, 89 S.Ct. 1813, 23 L.Ed.2d 396 (1969), which might be thought to have led to the opposite conclusion.

It is significant that the EPA did not...