United States District Court, E.D. California
PEOPLE OF THE STATE OF CALIFORNIA ex rel. MIRIAM BARCELLONA INGENITO, ACTING DIRECTOR, CALIFORNIA DEPARTMENT OF TOXIC SUBSTANCES CONTROL, Plaintiff,
UNITED STATES ARMY and DOES 1 to 20, Defendants
For Miriam Barcellona Ingenito, Acting Director, California Department of Toxic Substances Control, Plaintiff: Rose B. Fua, LEAD ATTORNEY, California Department Of Justice, Oakland, CA.
For United States Army, Defendant: Lewis Marshal Barr, United States, Department Of Justice, Environment and Natural Resources, Washington, DC.
MEMORANDUM AND ORDER RE: MOTION TO REMAND
WILLIAM B. SHUBB, UNITED STATES DISTRICT JUDGE.
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. (Compl. ¶ 1 (Docket No. 1-1).)
Congress invited states to administer their own hazardous waste programs in lieu of the federal program prescribed by the Resource Conservation and Recovery Act (" RCRA" ). See 42 U.S.C. § 6926. California enacted the HWCL as the analogue to RCRA, finding it was in the best interest of Californians for the state to administer its own program. See Cal. Health & Safety § 25101(d).
Defendant removed the action to federal court, pursuant to 28 U.S.C. § 1442(a)(1), which permits federal officers or agencies named as federal defendants to remove an action relating to acts under the color of federal office that is commenced in state court. 28 U.S.C. § 1442(a)(1). Plaintiffs now move to remand the action to state
court on the basis that defendant has not met the requirements imposed by § 1442.
Section 1442(a)(1) permits a federal agency or its officers sued in state court to remove an action to district court that " relat[es] to 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 revenue." Id. § 1442(a)(1). The Supreme Court has held that removal under § 1442(a)(1) " must be predicated on the allegation of a colorable federal defense." Mesa v. California, 489 U.S. 121, 129, 109 S.Ct. 959, 103 L.Ed.2d 99 (1989). Whereas for removal based on federal-question jurisdiction,
the federal question ordinarily must appear on the 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, 119 S.Ct. 2069, 144 L.Ed.2d 408 (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 ...