Behre v. US

• Decision Date: 01 May 1987
• Docket Number: Civ. No. 86-547-D.
• Citation: Behre v. US, 659 F. Supp. 747 (D. N.H. 1987)
• Parties: Joseph BEHRE, et al., v. UNITED STATES of America, et al.
• Court: U.S. District Court — District of New Hampshire

659 F. Supp. 747

Joseph BEHRE, et al., v. UNITED STATES of America, et al.

Civ. No. 86-547-D.

United States District Court, D. New Hampshire.

May 1, 1987.

Cullen & Wall by John Wall, Boston, Mass., Shaheen, Cappiello, Stein & Gordon by Steven Gordon, Concord, N.H., for plaintiffs.

United States of America by Ralph H. Johnson, Elaine Marzetta Lacy, Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., Posternak, Blankstein & Lund by David J. Hatem, Boston, Mass., Dufresne-Henry, Inc. by Richard K. Allen, Manchester, N.H., Upton, Sanders & Smith by John F. Teague, State Atty. General's Office, by Robert P. Cheney, Jr., Michael J. Walls and Geoffrey M. Huntington, Concord, N.H., for defendants.

ORDER

DEVINE, Chief Judge.

In this action, plaintiffs Joseph Behre, Emmett Ronayne, Robert Gustafson, and K.W. Thompson Tool Company, Inc. ("KWT"), bring suit against the United States of America; the United States Environmental Protection Agency ("EPA"); six present and/or former employees of EPA;¹ the State of New Hampshire; the New Hampshire Department of Transportation ("NHDOT"); the New Hampshire Water Supply and Pollution Control Commission ("NHWSPCC"); four present and/or former employees of NHWSPCC,; Dufresne-Henry, Inc.; Edward Rushbrook, Jr., an employee of Dufresne-Henry; Eastern Analytical, Inc.; William Brunkhorst, an employee of Eastern Analytical; John Doe; and Jane Doe. All of the individuals named as defendants are sued in both their individual and their representative capacities. Plaintiffs seek ten million dollars in compensatory damages on twenty-four counts which allege violations of 42 U.S.C. §§ 1983 and 1985, as well as state statutory and common-law violations. This action originated in Strafford County (New Hampshire) Superior Court and was removed here by the individual federal defendants pursuant to 28 U.S.C. § 1442(a)(1). The Court now considers plaintiffs' motion to remand this matter to the state court and the federal defendants' objection thereto.²

This Court is by now quite familiar with these parties and the background to this litigation. Plaintiffs³ were the subjects of a criminal prosecution for violations of various federal environmental laws docketed in this court as Cr. Nos. 85-00008-01, -02, -03, and -04-L (indictment filed March 18, 1985). On July 1, 1985, pursuant to a plea agreement, KWT pled guilty to certain counts in exchange for the dismissal with prejudice of the remaining counts against KWT and all of the counts with respect to the corporate officers. KWT then filed an action in this court against all of the same defendants named herein based on their allegedly wrongful actions surrounding the criminal prosecution, docketed as Civ. No. 86-111-D (complaint filed March 10, 1985). However, all of the claims against the non-federal defendants were voluntarily dismissed from Civ. No. 86-111-D, and that case proceeded solely as a claim against the federal defendants pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, et seq. By Order dated March 25, 1987, the Court granted the defendants' motion to dismiss, 656 F.Supp. 1077, and Civ. No. 86-111-D was closed.⁴ However, in the meantime, KWT and its three officers had filed the instant action in Strafford County Superior Court on December 5, 1986, and it was removed to this court on December 31, 1986.⁵

Plaintiffs have moved to remand this matter, arguing that the Eleventh Amendment bars this Court from exercising jurisdiction over the state defendants and that reasons of judicial economy, comity, and respect for civil rights plaintiffs' choice-of-law forums militate in favor of remanding the entire action. Only the federal defendants responded to the remand motion; they object to it on the basis that the individual federal defendants have an absolute right to have this matter heard in federal court and that it is thus proper for this Court to retain the entire matter even though some of plaintiffs' claims could not have been independently removed.

This action was removed pursuant to 28 U.S.C. § 1442(a), which 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....

Furthermore, pursuant to 28 U.S.C. § 1441(c):

Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

However, after removal of a suit to federal court, "if at any time before the final judgment it appears that the case was removed improvidently and without jurisdiction, the district court shall remand the case, and may order the payment of just costs." 28 U.S.C. § 1447(c).

In their arguments in support of their respective positions, both the plaintiffs and the federal defendants focus on the interplay between the above-quoted removal/remand statutes and the Eleventh Amendment bar to this Court's hearing the claims against the state defendants. However, before reaching the merits of this issue, the Court notes that there is a basic jurisdictional flaw that requires dismissal of certain of the federal defendants.

Removal of an action from state court gives the federal court only derivative jurisdiction. It is well established that "where the state court lacks jurisdiction of the subject matter or of the parties, the federal court acquires none." Minnesota v. United States, 305 U.S. 382, 389, 59 S.Ct. 292, 295, 83 L.Ed. 235 (1939); see also Daley v. Town of New Durham, 733 F.2d 4, 6 (1st Cir.1984); Crowel v. Administrator of Veterans' Affairs, 699 F.2d 347, 350 (7th Cir.1983). Stated otherwise, federal jurisdiction is no better than that possessed by the state court in which the action was begun. Should it appear after removal that the state court did not have jurisdiction, the federal court should dismiss rather than remand the matter. Daley v. Town of New Durham, supra, 733 F.2d at 7.

In the instant action, several of the federal defendants must be dismissed because neither the state court nor this Court may assert jurisdiction over them.

It is elementary that `the United States, as sovereign, is immune from suit save as it consents to be sued ..., and the terms of its consent to be sued in any court define that court's jurisdiction to entertain this suit.' United States v. Sherwood, 312 U.S. 584, 586 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941). A waiver of sovereign immunity `cannot be implied but must be unequivocally expressed.' United States v. King, 395 U.S. 1, 4 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969). In the absence of clear congressional consent, then, `there is no jurisdiction ... in any ... court to entertain suits against the United States.' United States v. Sherwood, supra, at 587-588 61 S.Ct. at 770.

United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980). Moreover, a suit against a federal agency is a suit against the United States, Clegg v. United States Treasury Dept., 70 F.R.D. 486, 488 (D.Mass.1976), as are damage suits against individual federal employees sued in their official capacities, Kozera v. Spirito, 723 F.2d 1003, 1007 (1st Cir. 1983) (citing Burgos v. Milton, 709 F.2d 1, 2-3 (1st Cir.1983)). Thus, the issue becomes whether the United States has consented to be sued in the instant action. The Court finds that it has not.

The federal defendants are named in only three of the twenty-four counts of plaintiffs' original complaint:⁶ Count One, which alleges violation of 42 U.S.C. § 1983; Count Two, which alleges violation of 42 U.S.C. § 1985; and Count Six, a claim pursuant to New Hampshire Revised Statutes Annotated ("RSA") 541-B (Supp.1986).⁷ This Court's research reveals that every court which has considered the issue has held that the United States has not waived its sovereign immunity under the provisions of the civil rights statutes. See, e.g., Hohri v. United States, 782 F.2d 227, 245 n. 43 (D.C.Cir.), cert. granted on other grounds, ___ U.S. ___, 107 S.Ct. 454, 93 L.Ed.2d 401 (1986); United States v. Timmons, 672 F.2d 1373, 1380 (11th Cir.1982); Unimex, Inc. v. United States Dept. of Housing, 594 F.2d 1060, 1061 (5th Cir. 1979); Community Bhd. of Lynn, Inc. v. Lynn Redevelopment Auth. 523 F.Supp. 779, 782-83 (D.Mass.1981); Monarch Ins. Co. v. District of Columbia, 353 F.Supp. 1249, 1252 (D.D.C.1973), aff'd 497 F.2d 684 (D.C.Cir.), cert. denied, 419 U.S. 1021, 95 S.Ct. 497, 42 L.Ed.2d 295 (1974). "The civil rights statutes create causes of action only against individuals and municipalities and do not themselves contain a waiver of sovereign immunity." Hohri v. United States, 586 F.Supp. 769, 794 (D.D.C.1984), aff'd in part, rev'd on other grounds, Hohri v. United States, supra, 782 F.2d at 245 n. 43. There is no express waiver of the federal government's sovereign immunity so as to permit these claims to be maintained.⁸ Moreover, it is clear beyond doubt that the provisions of RSA 541-B do not and cannot waive the sovereign immunity of the United States. Thus, the Court finds that the following defendants must be dismissed from this action: the United States of America; EPA; and, to the extent they are sued in their official or representative capacities, the individual federal defendants (Lee Thomas, Michael Deland, Philip Andrew, William Ruckelshaus, Lester Sutton, and Alvin Alm). Sovereign immunity does not bar suit against these latter defendants in their individual capacities. See Burgos v. Milton, supra, 709 F.2d at 2.

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