Ingenito v. United States Army

Filing 17

ORDER signed by Senior Judge William B. Shubb on 2/11/2015 GRANTING 8 Plaintiff's Motion to Remand, CASE REMANDED to Superior Court of California, County of Stanislaus. Copy of remand order sent. CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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PEOPLE OF THE STATE OF
CALIFORNIA ex rel. MIRIAM
BARCELLONA INGENITO, ACTING
DIRECTOR, CALIFORNIA
DEPARTMENT OF TOXIC
SUBSTANCES CONTROL,

CIV. NO. 1:14-01782 WBS SKO
MEMORANDUM AND ORDER RE: MOTION
TO REMAND

Plaintiff,

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v.

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UNITED STATES ARMY and DOES 1
to 20,

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Defendants.

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----oo0oo---I.

Procedural Background
Plaintiff originally filed this action in state court

against defendant the United States Army for violations of the
Hazardous Waste Control Law (“HWCL”), Cal. Health & Safety Code §
25100 et seq.

Plaintiff’s allegations relate to hazardous waste

management activities at the Riverbank Army Ammunition Plant.

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(Compl. ¶ 1 (Docket No. 1-1).)

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Congress invited states to administer their own

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hazardous waste programs in lieu of the federal program

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prescribed by the Resource Conservation and Recovery Act

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(“RCRA”).

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the analogue to RCRA, finding it was in the best interest of

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Californians for the state to administer its own program.

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Cal. Health & Safety § 25101(d).

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See 42 U.S.C. § 6926.

California enacted the HWCL as

See

Defendant removed the action to federal court, pursuant

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to 28 U.S.C. § 1442(a)(1), which permits federal officers or

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agencies named as federal defendants to remove an action relating

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to acts under the color of federal office that is commenced in

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state court.

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remand the action to state court on the basis that defendant has

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not met the requirements imposed by § 1442.

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II.

28 U.S.C. § 1442(a)(1).

Plaintiffs now move to

Analysis

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Section 1442(a)(1) permits a federal agency or its

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officers sued in state court to remove an action to district

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court that “relat[es] to any act under color of such office or on

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account of any right, title or authority claimed under any Act of

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Congress for the apprehension or punishment of criminals or the

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collection of revenue.”

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held that removal under § 1442(a)(1) “must be predicated on the

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allegation of a colorable federal defense.”

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489 U.S. 121, 129 (1989).

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question jurisdiction,

Id. § 1442(a)(1).

The Supreme Court has

Mesa v. California,

Whereas for removal based on federal-

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the

federal

question

ordinarily
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must

appear

on

the

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face of a properly pleaded complaint; an anticipated
or actual federal defense generally does not qualify a
case for removal. Suits against federal officers are
exceptional in this regard. Under the federal officer
removal statute, suits against federal officers may be
removed despite the nonfederal cast of the complaint;
the federal-question element is met if the defense
depends on federal law.
Jefferson Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999). “In
construing the colorable federal defense requirement, [the Court
has] rejected a ‘narrow, grudging interpretation’ of the statute,
recognizing that ‘one of the most important reasons for removal
is to have the validity of the defense of official immunity tried
in a federal court.’”

Id.

Recently the Ninth Circuit held that courts should
apply the Federal Rule of Civil Procedure 12(b)(1) framework to
challenges to § 1442(a)(1) removal.1

See Leite v. Crane Co., 749

F.3d 1117, 1122 (9th Cir. 2014) (concluding that “applying the
Rule 12(b)(1) framework to resolve jurisdictional challenges in
this context will not unduly burden the unique rights § 1442
affords removing defendants”).

“Like plaintiffs pleading

subject-matter jurisdiction under Rule 8(a)(1), a defendant
seeking to remove an action may not offer mere legal conclusions;
it must allege the underlying facts supporting each of the
requirements for removal jurisdiction.”

Id.

Plaintiff may file

a motion to remand which, “[a]s under Rule 12(b)(1) . . . may
raise either a facial attack or a factual attack on the
defendant’s jurisdictional allegations. . . .”

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Id.

So while it

Rule 12(b)(1) permits a party to move for dismissal on
the basis that the court lacks subject-matter jurisdiction.
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remains the rule that a court should not evaluate the merits of

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the federal defense, see Jefferson Cnty., 527 U.S. at 432 (“We []

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do not require the officer virtually to ‘win his case before he

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can have it removed.” (internal quotation marks and citation

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omitted)), the defendant invoking § 1442(a)(1) removal who faces

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a facial attack must state allegations that are “sufficient as a

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legal matter to invoke the court’s jurisdiction.”

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F.3d at 1121.

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Leite, 749

Plaintiff brings a facial attack on defendant’s removal

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under § 1442(a)(1).

(See Pl.’s Mot. to Remand at 4 (Docket No.

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8).)

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sufficiently allege a colorable federal defense.

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Defendant argues that it can raise a colorable federal defense of

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sovereign immunity where the state’s allegations exceed the scope

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of the federal waiver of sovereign immunity in RCRA.

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Opp’n at 4 (Docket No. 14).)

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are several federal defenses available to the unnamed Doe

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defendants: immunity to personal liability for civil penalties

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under RCRA and the federal contractor defense.

The court must therefore evaluate whether defendants
See id.

(Def.’s

Defendant also argues that there

(Id.)

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A. Sovereign Immunity for Non-RCRA Hazardous Wastes

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RCRA expressly waives the federal government’s

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sovereign immunity with respect to past and current violations of

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state hazardous waste regulatory programs.

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6961(a) (“The United States hereby expressly waives any immunity

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otherwise applicable to the United States with respect to any

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such substantive or procedural requirement (including, but not

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limited to, any injunctive relief, administrative order or civil

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administrative penalty or fine . . . or reasonable service
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See 42 U.S.C. §

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charge).”); U.S. v. Manning, 527 F.3d 828, 832 (9th Cir. 2008)

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(“Congress enacted the Federal Facilities Compliance Act (‘FFCA’)

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to make it ‘as clear as humanly possible’ that Congress was

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waiving federal sovereign immunity and making federal facilities

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subject to state laws.”).

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of law to use sovereign immunity as a defense against plaintiff’s

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claims that it violated the HWCA.

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Defendant is thus unable as a matter

Defendant nevertheless argues that because HWCA’s
definition of hazardous waste is more inclusive than RCRA’s, then

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to the extent plaintiff’s allegations pertain to non-RCRA

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hazardous wastes, those allegations would exceed the scope of

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RCRA’s waiver of sovereign immunity.

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Notably, defendant does not indicate, and the court is unaware

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of, any allegations of non-RCRA hazardous waste violations in the

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Complaint.

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hazardous waste control laws can be more stringent than federal

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law.

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construed to prohibit any state or political subdivision thereof

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from imposing any requirements . . . which are more stringent

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than those imposed by such regulations.”)

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sovereign immunity for any state substantive and procedural

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requirements relating to the disposal or management of hazardous

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waste.

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arises from plaintiff’s allegations.

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B. Doe Defedants

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Plaintiff names as defendants Does 1 through 20 and

(Def.’s Opp’n at 6.)

In any case, RCRA expressly provides that state

See 42 U.S.C. § 6929 (“Nothing in this chapter shall be

Id. § 6961.

Congress waived

No sovereign immunity defense therefore

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describes them as “officers, agents, employees, servants, or

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others acting in interest or concert with the Army,” which it
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will name once those defendants have been ascertained.

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10.)

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fictitious defendants, Does 1 through 20, could raise two federal

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defenses: (1) the federal defense of RCRA immunity for personal

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liability for certain individuals2 and (2) the government

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contractor defense.3

(Compl. ¶

Defendant also argues that removal is proper because the

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The parties have provided no authority, and the court

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could find none, on the issue of whether a case is removable

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under § 1442(a) where, although the named defendant does not have

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a colorable federal defense, a Doe defendant hypothetically

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could.

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for the purpose of determining whether there is a colorable

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Three considerations counsel against considering the Does

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RCRA’s express waiver of sovereign further provides
that “[n]o agent, employee, or officer of the United States shall
be personally liable for any civil penalty under any Federal,
State, interstate, or local solid or hazardous waste law with
respect to any act or omission within the scope of the official
duties of the agent, employee, or officer.” 42 U.S.C. § 6961.
This provision would not protect an agency such as defendant from
civil penalties, as it is not an “agent, employee, or officer.”
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“The [government contractor] defense protects
government contractors from tort liability that arises as a
result of the contractor’s compliance with the specifications of
a federal government contract.” Getz v. Boeing Co., 654 F.3d
852, 860 (9th Cir. 2011).
The court is unaware of any instance where courts have
extended this defense to claims against contractors under state
programs enacted pursuant to authorization from RCRA. See also
In re Hanford Nuclear Reservation Litig., 534 F.3d 986, 1000 (9th
Cir. 2007) (“The defense is intended to implement and protect the
discretionary function exception of the Federal Tort Claims Act .
. . .”). Moreover, “[t]he defense allows a contractor-defendant
to receive the benefits of sovereign immunity when a contractor
complies with the specifications of a federal government
contract.” Even if the government contractor defense applied
beyond tort, Does 1 to 20 would be unable to benefit derivatively
from the federal government’s immunity, because RCRA expressly
waived it. See 42 U.S.C. § 6961(a).
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federal defense.

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recognized that generally, Doe pleading is improper in federal

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court and is disfavored.”

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1213 (D. Haw. 2012) (citing cases) (internal quotation marks

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omitted).

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for the purpose of determining whether diversity jurisdiction

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exists, “the citizenship of defendants sued under fictitious

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names shall be disregarded.”

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plaintiff’s counsel stated at oral argument that if the court

First, “[c]ourts in the Ninth Circuit have

Fisher v. Kealoha, 869 F.Supp.2d 1203,

Second, elsewhere the removal statutes provide that

28 U.S.C. § 1441.

Third,

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remanded the action to state court, she would not seek to name

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any additional defendants.

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defenses that could be raised by Does 1 through 20 for the

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purposes of this motion to remand.

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The court will therefore not consider

IT IS THEREFORE ORDERED that plaintiff’s motion for
remand be, and the same hereby is, GRANTED.

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This matter is hereby REMANDED to the Superior Court of

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California, County of Stanislaus.

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Dated:

February 11, 2015

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