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January 8, 1982


The opinion of the court was delivered by: 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-part 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.


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
    (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.

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, person acting under them, employees of the United
  States and any agency thereof, whereas the comparable provision
  in former § 76 was limited to revenue officers ...

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