
USCA1 Opinion

	




          March 10, 1993    UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1949                      AMERICAN POLICYHOLDERS INSURANCE COMPANY,                                Plaintiff, Appellant,                                          v.                            NYACOL PRODUCTS, INC., ET AL.,                                Defendants, Appellees.                              _________________________                                     ERRATA SHEET                                     ERRATA SHEET               The opinion of  the Court  issued on February  24, 1993,  is          corrected as follows:               On page 16, line 25   insert semicolon after "579"               On page 18, line 15   change "support" to "supports"          February 24, 1993 UNITED STATES COURT OF APPEALS                                For The First Circuit                              _________________________          No. 92-1949                      AMERICAN POLICYHOLDERS INSURANCE COMPANY,                                Plaintiff, Appellant,                                          v.                            NYACOL PRODUCTS, INC., ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Jennifer  S.D.  Roberts,  with  whom  Rackemann,   Sawyer  &               _______________________               ______________________          Brewster, P.C. was on brief, for appellant.          ______________               Catherine  M. Flanagan,  Attorney,  Department  of  Justice,               ______________________          Environment  & Natural  Resources  Division, with  whom Vicki  A.                                                                  _________          O'Meara, Acting Assistant Attorney General, and David C. Shilton,          _______                                         ________________          Attorney,  Environment  &  Natural  Resources Division,  were  on          brief,   for   Julie   Belaga,   Regional   Administrator,   U.S.          Environmental Protection Agency, appellee.                              _________________________                                  February 24, 1993                              _________________________                    SELYA, Circuit Judge.  This appeal, which arises out of                    SELYA, Circuit Judge.                           _____________          an insurance company's efforts to secure a binding declaration of          its  rights  and responsibilities  under  an  insurance contract,          poses  an  intriguing  question:    does  the  "officer  removal"          statute, 28 U.S.C.   1442(a)(1), permit a  federal official, sued          only  in her  representative  capacity, to  remove  an action  to          federal district court?   Because we think that the  statute does          not confer such a right, and because there is no other cognizable          basis  for  federal  jurisdiction,  we return  the  case  to  the          district court with instructions  that it be remitted to  a state          forum.                                          I                                          I                    From  1917  until  1977,  a  succession  of  dye-houses          occupied  a thirty-five  acre  plot  in  Ashland,  Massachusetts.          During  these six  decades,  toxic wastes  impregnated the  site.          Eventually,  the  United States  Environmental  Protection Agency          (EPA)  and   the   Massachusetts  Department   of   Environmental          Protection (DEP)  discovered  the pollution  and  documented  its          source  in the dye manufacturing  processes.  In  early 1982, EPA          notified Nyacol Products, Inc.  (Nyacol), a producer of colloidal          silicas at  a portion  of the site,  that it considered  Nyacol a          potentially  responsible  party  (PRP)  under  the  Comprehensive          Environmental Response, Compensation, and Liability Act (CERCLA),          42 U.S.C.    9601-9626, 9651-9662, 9671-9675.1                                        ____________________               1EPA also branded two of Nyacol's officers, Robert Lurie and          Thomas L.  O'Connor, as PRPs.   Lurie and  O'Connor are named  as          defendants in the  instant suit.  For ease in reference, we refer                                          3                    Pursuant to Massachusetts law,  which deems PRP notices          equivalent  to  law  suits  for  the  purpose  of  triggering  an          insurer's  duty to defend, see  Hazen Paper Co.  v. United States                                     ___  _______________     _____________          Fid. & Guar. Co., 555 N.E.2d 576, 581 (Mass. 1990), Nyacol called          ________________          upon   its   insurance   carrier,  plaintiff-appellant   American          Policyholders  Insurance Company (American), to defend it against          EPA's claims and  to indemnify  it for loss,  costs, damages,  or          other expense related thereto.   American provisionally undertook          the company's  defense under  its general  liability policy.   In          December of 1991, American brought suit in a Massachusetts  state          court seeking a declaration  that it had no obligation  to defend          or recompense its insureds.   In addition to naming  the insureds          as parties  defendant,  American  joined  two  other  defendants:          Julie Belaga,  in her  capacity as EPA'S  Regional Administrator,          and Daniel S. Greenbaum,  in his capacity as Commissioner  of the          DEP.    Invoking  the  officer  removal   statute,  28  U.S.C.             1442(a)(1),Belaga transferredthe actionto federaldistrict court.2                                        ____________________          to the  company and  the individual defendants,  collectively, as          "Nyacol"  or "the  insureds."  We  note, moreover,  that although          EPA,  invoking a  theory of  successor liability,  notified these          three defendants  that they  might be  liable for  EPA's response          costs  (past and future), as  well as for  cleanup costs, EPA has          not yet sued  to compel payment of these expenses or otherwise to          enforce its claimed rights.               2The officer removal statute provides in pertinent part:                         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:                                          4                    On  February  20, 1992,  DEP agreed  to  be bound  by a          declaration  of  rights  in  American's lawsuit  insofar  as  the          judgment resolves insurance coverage  issues.  The case proceeded          against Belaga and the  insureds.  On May 12,  1992, the district          court granted Belaga's motion to  dismiss, reasoning that a  suit          against  her, in her official capacity, was really a suit against          EPA  and that,  since EPA  had never  sued  Nyacol or  brought an          enforcement proceeding  against it, American could  articulate no          justiciable  controversy  with  EPA.   The  court  entered  final          judgment for Belaga,  see Fed. R. Civ. P. 54(b), and remanded all                                ___          other  parties and claims to  the state court.   American appeals          from the dismissal order.                                          II                                          II                    While  the  parties  vigorously  debate   an  insurance          company's  ability,   consistent  with  Article  III's   case  or          controversy requirement, to join EPA in a coverage dispute before          EPA has brought  an enforcement action against the  insureds, our          discussion seeps into vastly different legal ground.  The impetus          behind this  diversion lies  in  the Supreme  Court's opinion  in          International  Primate  Protection  League  v.  Administrators of          __________________________________________      _________________          Tulane Educ. Fund, 111 S. Ct.  1700 (1991).  Concerned about  the          _________________          implications  of  Primate  Protection League  for  federal  court                            __________________________                                        ____________________                           (1) Any  officer of the  United States                    or any agency thereof, or person acting under                    him, for any act under color of such office .                    . . .          28 U.S.C.   1442(a)(1) (1988).                                          5          jurisdiction, we requested supplemental  briefing on whether this          action  was  properly  removed  to federal  court.    Both  sides          responded that  removal was valid  under 28  U.S.C.    1442(a)(1)          because of Belaga's status as a federal officer.                    Notwithstanding this accord, we must pursue the matter.          Litigants cannot confer subject matter jurisdiction by agreement.          See  Insurance Corp. of Ir.  v. Compagnie des  Bauxites, 456 U.S.          ___  ______________________     _______________________          694,  702  (1982); California  v. LaRue,  409  U.S. 109,  113 n.3                             __________     _____          (1972).   Because a federal court is  under an unflagging duty to          ensure  that it has jurisdiction  over the subject  matter of the          cases  it proposes to adjudicate,  we are obliged  to address the          propriety of  removal as a  threshold matter even  though neither          party  has  raised a  question in  that  regard.   See Mansfield,                                                             ___ __________          Coldwater  & Lake Michigan  Ry. Co.  v. Swan,  111 U.S.  379, 382          ___________________________________     ____          (1884)  (stating  that  a federal  appellate  court,  on  its own          motion,  must "deny its own jurisdiction, and, in the exercise of          its  appellate  power, that  of all  other  courts of  the United          States,   in  all   cases  where   such  jurisdiction   does  not          affirmatively appear in the record").                                          A                                          A                    The officer  removal statute, 28 U.S.C.    1442 (a)(1),          quoted supra note  2, is  designed to allow  federal officers  to                 _____          remove  actions   to  federal  court  that   would  otherwise  be          unremovable.   See Willingham  v. Morgan,  395  U.S. 402,  406-07                         ___ __________     ______          (1969)  (stating  that  the section  covers  all  cases in  which          federal officers,  sued in  state court, "can  raise a  colorable                                          6          defense arising out of their duty to enforce federal law").3   In          Primate  Protection  League,  the  Supreme Court  held  that  the          ___________________________          reference to "any agency"  of the United States contained  in the          officer removal statute did not stand alone, but constituted part          of a possessive phrase modifying the  noun "officer."  See 111 S.                                                                 ___          Ct. at 1705.  Put another way, the statute is to be read as  if a          second  "of"  appeared  in  the text  immediately  following  the          disjunctive "or."   Hence, section 1442(a)(1)  permits removal by          an "officer  of . .  . any agency  [of the United  States]," and,          conversely, does not permit removal by the federal agency itself.          See id. at 1709.          ___ ___                    Although  Primate Protection  League  makes it  crystal                              __________________________          clear  that EPA, as a federal agency,  cannot remove an action to          federal  court  under  color  of section  1442(a)(1),  this  case          presents  a variation on the  theme:  it  requires that we decide          the  closely  related,  but nonetheless  different,  question  of          whether,  for purposes  of the  officer  removal statute,  a suit          brought against  an executive  of an  agency, exclusively  in the                                                        ___________________          executive's  official capacity,  constitutes  a suit  against  an          ______________________________          "officer,"  thereby permitting  removal under  the statute,  or a          suit against an "agency," thereby precluding such removal.  It is                                        ____________________               3This  is not  to say  that every  case in  which a  federal                                           _____          officer  is a defendant is removable.  Rather, removal is limited          to   situations  in   which   the   officer's  removal   petition          demonstrates the existence  of a  federal defense.   See Mesa  v.                                                               ___ ____          California, 489 U.S. 121, 136 (1989).          __________                                          7          to this inquiry that we now turn.4                                          B                                          B                    Generally, a  suit against an officer  in the officer's          official capacity  constitutes  a suit  against the  governmental          entity  which the  officer heads.   For  example, in  Kentucky v.                                                                ________          Graham, 473 U.S. 159  (1985), the Court dwelt on  the distinction          ______          between  suits against a person  in an individual,  as opposed to          official, capacity.   The Court explained  that while individual-          capacity  actions  "seek  to  impose personal  liability  upon  a                                               ________          government official," id. at 165 (emphasis supplied), payable out                                ___          of personal assets,  see id. at 166,  an official-capacity action                               ___ ___          is, "in  all respects other  than name, to  be treated as  a suit          against  the  entity."    Id.   Phrased  differently,  "official-                                    ___          capacity suits  generally represent only another  way of pleading          an action  against an entity  of which an  officer is an  agent."          Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 690          ______    ____________________________________          n.55 (1978).   Thus, a string of Supreme Court cases holds that a          suit against a government officer in his or her official capacity          binds the agency  or other governmental  entity, not the  officer          personally.  See, e.g., Graham, 473 U.S. at 166; Brandon v. Holt,                       ___  ____  ______                   _______    ____          469  U.S. 464,  471  (1985); cf.  Larson  v. Domestic  &  Foreign                                       ___  ______     ____________________          Commerce Corp.,  337 U.S.  682, 687  (1949) (explaining that,  in          ______________          deciding  whether  a  suit  against a  government  officer  is an          official-capacity  or  individual-capacity  suit,   "the  crucial                                        ____________________               4The  officer  removal  statute  was first  enacted  in  its          present  form  in  1948.    Its  legislative  history  is  of  no          significant assistance in respect to the inquiry at hand.                                          8          question is whether the relief sought . . . is relief against the          sovereign").                    The  character  of  an  official-capacity suit  is  not          transformed simply because jurisdiction is in issue.  In Loeffler                                                                   ________          v. Frank, 486 U.S. 549 (1988), a case in which the plaintiff sued             _____          the Postmaster General in  his official capacity, the Court  held          that acts of a  government officer in his official  capacity "are          always chargeable" as  acts of the agency for purposes  of a sue-          and-be-sued clause.   Id. at 563  n.8; see also FHA  v. Burr, 309                                ___              ___ ____ ___     ____          U.S. 242, 249-50  (1940) (holding that a suit against the head of          an agency in  his official capacity was  indistinguishable from a          suit against the agency itself for purposes of  a sue-and-be-sued          clause  and  that a  waiver of  immunity  as to  the  agency head          necessarily waived the agency's  immunity).  Similarly, even when          pondering  jurisdictional  and quasi-jurisdictional  issues, this          court has consistently accepted and applied the principle that an          official-capacity  suit  against a  government  officer  is fully          equivalent  to a suit against  the agency.   See, e.g., Northeast                                                       ___  ____  _________          Fed. Credit  Union v. Neves,  837 F.2d  531, 533 (1st  Cir. 1988)          __________________    _____          ("Where  .  . .  claims are  made  against a  government official          acting purely in a representative role, the suit must be regarded          as one against the sovereign."); Culebras Enters. Corp. v. Rivera                                           ______________________    ______          Rios,  813 F.2d  506, 516  (1st Cir.  1987) (observing  that, for          ____          Eleventh  Amendment   purposes,  an  official-capacity   suit  is          "tantamount to a suit against the [governmental entity]").                    We see no reason  to forsake the general rule    that a                                          9          suit against a government officer in his or her official capacity          is   a  suit   against  the   agency      when  considering   the          appropriateness of  removal under 28  U.S.C.    1442(a)(1).   The          theme of Primate Protection League, logically extended, serves an                   _________________________          esemplastic purpose,  shaping the officer removal  statute into a          rational whole.  In  that case, the Supreme Court  explained that          when a suit for monetary damages is brought against an officer in          his or  her individual  capacity, the complicated  questions that          arise as to that officer's immunity support a protective grant of          removal jurisdiction.  See Primate Protection League, 111 S.  Ct.                                 ___ _________________________          at 1708.   By contrast, agencies do  not need the prophylaxis  of          federal removal because determining an agency's immunity,  unlike          determining   an  individual's   immunity,  is   a  "sufficiently          straightforward"  proposition.   Id.    That  rationale  strongly                                           ___          favors  treatment  of  official-capacity suits  for  purposes  of          removal in  the same manner as  suits against the agency.   After          all, because a suit  against an officer in her  official capacity          cannot bind the officer personally,  see, e.g., Brandon, 469 U.S.                                               ___  ____  _______          at 471, no issues of immunity can possibly arise that differ from          those arising in a suit directly against the agency.                    Consistency    is    the   touchstone    of   statutory          interpretation.  If we were to hold that a suit nominally against          EPA is not removable, as  Primate Protection League demands,  but                                    _________________________          then  go on to hold that a  suit nominally against EPA's regional          administrator  in her  official capacity    a  suit that  seeks a          judgment  binding on the EPA   is nonetheless removable, we would                                          10          spawn a  glaring interpretive inconsistency and,  in the bargain,          impugn  the Primate  Court's reasoning.   Given  the identity  of                      _______          juridical interest  that exists  between a government  agency and          its executive officer when the latter is sued only in  his or her          official capacity, the  fact that  the agency may  not remove  an          action under  the officer removal statute  compels the conclusion          that  an official-capacity  defendant is  likewise  disabled from          initiating   removal   thereunder.5      See   generally  Primate                                                   ___   _________  _______          Protection  League, 111 S. Ct. at 1708 (explaining that access to          __________________          removal  under  section  1442(a)(1)  does  not  turn  on  a "mere          technicality").                                          C                                          C                    Our conclusion is  fortified by Judge  Posner's opinion          in Western Secs. Co. v. Derwinski, 937 F.2d 1276 (7th Cir. 1991).             _________________    _________                                        ____________________               5Ordinarily, the  question of  whether a complaint  names an          officer  in  a  personal, as  opposed  to  an official,  capacity          requires  little  more  than a  glance  at  the  pleadings.   If,          however,  a  federal official,  reasonably  believing  himself or          herself to be sued individually, attempts to remove under section          1442(a)(1),  any   dispute  as  to  the   officer's  status  will          necessarily  be resolved  by a  federal court  in the  context of          assaying its own  jurisdiction.   See 14A Charles  A. Wright  et.                                            ___          al.,  Federal   Practice  and   Procedure     3730,   at  499-500                ___________________________________          (explaining that a defendant  wishing to remove need only  file a          notice of removal, with the result that the propriety of removal,          if challenged at  all, will "be tested later in the federal court          by a  motion to remand").  Thus, our holding that an officer sued          in an official  capacity may not  remove the  action in order  to          obtain a  federal forum for  resolution of the  underlying merits          will in no way deprive  the officer of access to a  federal forum          for  determination of  whether  the suit  is  in fact  an  action          against him or her personally.   By the same token, if an officer          is sued in both individual and official capacities, we see no bar          to  removal under  section 1442(a)(1).   See  El Gran  Video Club                                                   ___  ___________________          Corp. v. E.T.D., Inc., 757 F.  Supp. 151, 155 & n.3 (D.P.R. 1991)          _____    ____________          (observing that federal courts have removal jurisdiction over all          pendent claims that are not "separate and independent").                                             11          There, the Seventh Circuit, acting sua sponte, refused to allow a                                             ___ ______          federal administrator sued in his  official capacity to remove an          action to federal court  under section 1442(a)(1).  Acknowledging          that,  in  the  aftermath  of Primate  Protection  League,  suits                                        ___________________________          against  federal   agencies  cannot  be   removed  under  section          1442(a)(1), see id. at  1278, Judge Posner wrote that  "while the                      ___ ___          suit in this case  is nominally against the Administrator,  it is          against   him  in  his  official  capacity  and  such  suits  are          considered  to be against the  government itself."   Id. at 1279.                                                               ___          Thus, the  court concluded that, absent an  alternative basis for          jurisdiction,  dismissal for want  of subject matter jurisdiction          would be required.  See id.6                              ___ ___                    We  agree  with   the  Seventh  Circuit   that  Primate                                                                    _______          Protection League,  logically extended,  mandates that a  federal          _________________          officer  sued  solely in  his or  her  official capacity  may not          remove a suit  to federal court  under the aegis  of 28 U.S.C.             1442(a)(1).   In the case  before us, this holding  draws the sap          from  the tree:  American's  suit, brought against  Belaga in her          official capacity  and seeking no relief  against her personally,          is in reality a suit against the agency.  It  necessarily follows          that, because EPA itself could not have removed this action under          section  1442, see Primate Protection League, 111 S. Ct. at 1708,                         ___ _________________________          Belaga's  attempt to  remove under  the same  statutory provision          must fail.                                        ____________________               6In Derwinski  the court  retained jurisdiction  because the                   _________          plaintiff's action arose  under federal law.  See  Derwinski, 937                                                        ___  _________          F.2d at 1280; see also 28 U.S.C.    1331, 1441 (1988).                        ___ ____                                          12                                         III                                         III                    Notwithstanding  that  this  action was  infelicitously          removed  under  28  U.S.C.     1442(a)(1)  and  that the  parties          steadfastly   disclaim  any   independent   basis   for   federal          jurisdiction,7 we  inquire whether any other  toehold for federal          court  jurisdiction  exists.    Belaga's notice  of  removal  did          mention 28 U.S.C.   1441   a statute which permits removal of any          suit that originally  could have been brought in  federal court.8          See, e.g., Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.          ___  ____  ________________________________    ________          804, 808 (1986).  Thus, principles of equity, as well as the law,          compel us  to  explore whether  American's  declaratory  judgment          action  falls  within  the  federal  district  court's   original          jurisdiction.  We proceed to run that gauntlet.                                          A                                          A                                        ____________________               7The parties' appellate filings ground  removal jurisdiction          solely in the officer removal statute.   In answer to our express          inquiry  anent  jurisdiction,  Belaga  replied  that  the  United          States, on her behalf, removed the action pursuant to 28 U.S.C.            1442(a)(1) and contended  that such removal was proper.  American          averred that, apart from the officer removal statute, it was "not          aware of any other  basis for federal jurisdiction."   Nyacol, by          electing  not  to participate  in  this  appeal, has  effectively          consented to the appropriateness of a state forum.               8The statute provides in pertinent part:                    Except as otherwise expressly provided by Act                    of Congress,  any civil  action brought  in a                    State court  of which the  district courts of                    the United States have original jurisdiction,                    may  be  removed  by  the  defendant  or  the                    defendants,  to  the  district court  of  the                    United  States for the  district and division                    embracing  the place  where  such  action  is                    pending.          28 U.S.C.   1441(a) (1988).                                          13                    In this instance, the presence of original jurisdiction          hinges  upon the existence vel  non of a  federal question,9 that                                     ___  ___          is,  the existence of an action  "arising under the Constitution,          laws,  or treaties  of  the United  States."   28  U.S.C.    1331          (1988).   Ordinarily, a claim arises under federal law within the          meaning  of section 1331 if a  federal cause of action appears on          the face of a well-pleaded  complaint.  See Gully v.  First Nat'l                                                  ___ _____     ___________          Bank  in  Meridian,  299  U.S.  109,  113  (1936);  Louisville  &          __________________                                  _____________          Nashville  R.R.  v.  Mottley, 211  U.S.  149,  152  (1908).   For          _______________      _______          purposes  of  determining  the  existence   of  federal  question          jurisdiction  in  a  declaratory  judgment  action, however,  the          Supreme Court directs  our attention  away from the  face of  the          complaint  and focuses  it instead  on the  law that  creates the          underlying cause of action:                    Where   the  complaint   in  an   action  for                    declaratory  judgment  seeks  in  essence  to                    assert   a   defense  to   an   impending  or                    threatened  state  court  action, it  is  the                    character  of the threatened  action, and not                    of  the defense, which will determine whether                    there is federal-question  jurisdiction . . .                    .          Public  Service Comm'n v. Wycoff  Co., 344 U.S.  237, 248 (1952);          ______________________    ___________          see  also Franchise  Tax  Bd. v.  Construction Laborers  Vacation          ___  ____ ___________________     _______________________________          Trust, 463 U.S. 1, 15-16 & n.14 (1983).          _____                    Here, American's declaratory judgment action represents          a mounted offensive on two related fronts:  the suit  is not only                                        ____________________               9The  parties  to the  lawsuit  are not  of  totally diverse          citizenship  and,  apart  from   the  possibility  of  a  federal          question,  there  is no  other  arguable  foundation for  federal          jurisdiction.                                          14          an attempt to preempt impending actions by the insureds (seeking,          presumably, to secure a  defense against charges of environmental          harm  and to secure indemnification with  respect to loss, costs,          damages, and  expense associated  therewith), but  it is also  an          attempt  to foreclose  governmental  authorities from  trying  to          reach insurance  proceeds to satisfy  as-yet-unrealized judgments          under CERCLA.  Thus,  the underlying causes of  action, howsoever          visualized, are in the  nature of claims to enforce  an insurance          contract, the  adjudication of which will  require interpretation          of  various  policy provisions  and contract  terms.   A  suit is          customarily deemed to arise under the law that gives birth to the          cause of action.   See American Well Works Co.  v. Layne & Bowler                             ___ _______________________     ______________          Co., 241 U.S. 257, 260 (1916).  Applying that approach, this case          ___          is  based  solely  upon,  and,  therefore,  arises  under,  state          law.10  See CPC  Int'l, Inc. v. Northbrook Excess  & Surplus Ins.                  ___ ________________    _________________________________          Co.,  962  F.2d 77,  97-98 (1st  Cir. 1992)  (divining applicable          ___          state law  to  interpret  a  pollution  exclusion  clause  in  an          insurance policy); A. Johnson & Co. v. Aetna Cas. & Sur. Co., 933                             ________________    _____________________          F.2d 66,  70-74 (1st Cir. 1991)  (same); Ryan v. Royal  Ins. Co.,                                                   ____    _______________                                        ____________________               10We  note  in passing  that, were  American to  assert that          CERCLA preempts state insurance actions, such an assertion, while          mentioning   federal  law,  would   be  insufficient   to  confer          jurisdiction because federal law  would come into play only  as a          defense.    See Franchise  Tax Bd.,  463  U.S. at  13-14; Nashoba                      ___ __________________                        _______          Communications, Inc. v. Town  of Danvers, 893 F.2d 435,  440 (1st          ____________________    ________________          Cir. 1990); see also Hudson Ins. Co. v. American Elec. Corp., 957                      ___ ____ _______________    ____________________          F.2d  826, 830  n.4 (11th  Cir.), cert.  denied, 113  S.  Ct. 411                                            _____  ______          (1992).  We except, of course,  the rare case, discussed infra p.                                                                   _____          15-16, where federal law so completely  displaces state causes of          action in a particular area that all such claims are "necessarily          federal in character."  Metropolitan Life Ins. Co. v. Taylor, 481                                  __________________________    ______          U.S. 58, 63-64 (1987).                                          15          916  F.2d 731, 734-35 (1st  Cir. 1990) (similar);  In re Acushnet                                                             ______________          River & New Bedford  Harbor, 725 F. Supp. 1264, 1278-81 (D. Mass.          ___________________________          1989)  (certifying various  questions  regarding the  substantive          interpretation  of  an  insurance  policy  to  the  Massachusetts          Supreme Judicial Court in order to determine an insurer's duty to          cover cleanup  costs), aff'd in  part and rev'd in  part on other                                 _____ __  ____ ___ _____ __  ____ __ _____          grounds sub nom. Lumbermens  Mut. Cas. Co. v.  Belleville Indus.,          _______ ___ ____ _________________________     __________________          Inc., 938 F.2d 1423 (1st Cir. 1991), cert. denied, 112 S. Ct. 969          ____                                 _____ ______          (1992); see also  Hudson Ins.  Co. v. American  Elec. Corp.,  957                  ___ ____  ________________    _____________________          F.2d 826, 828  (11th Cir.) (holding  that an insured's  potential          suit to recover insurance proceeds for its liability under CERCLA          arises   under   "the   applicable   state   law   governing  the          interpretation of insurance contracts"), cert. denied, 113 S. Ct.                                                   _____ ______          411 (1992).  Federal  jurisdiction cannot take root in  this arid          soil.11                                          B                                          B                    In  an abundance  of  caution, we  take one  additional          step.   There may  exist unusual  circumstances wherein  a state-          created cause of action can be deemed to arise under federal law.          For  example, when  a plaintiff's  state-created right  to relief                                        ____________________               11We note that CERCLA itself does not provide a direct cause          of  action against a responsible  party's liability insurer.  See                                                                        ___          Port  Allen Marine Servs., Inc. v.  Chotin, 765 F. Supp. 887, 889          _______________________________     ______          (M.D.  La.  1991)  (dismissing claims  brought  directly  against          carrier  because CERCLA "does not create a direct right of action          against  [PRP's] insurers");  cf. 42  U.S.C.    9608(c) (allowing                                        ___          direct action  against guarantors in limited  circumstances).  It          is,  therefore,  abundantly  clear  that  American's  declaratory          judgment complaint  anticipates future coercive actions  that not          only will  be entirely governed  by state law,  but also will  be          initiated only through state-created mechanisms.                                          16          "necessarily depends  on resolution of a  substantial question of          federal  law,"  Franchise Tax  Bd., 463  U.S.  at 28,  or  when a                          __________________          parallel "federal  cause of  action completely pre-empts  a state          cause of action," id. at 24, the suit is considered a creature of                            ___          federal law.  We test these waters.                     The  latter proposition  (complete preemption)  can be          summarily dismissed.   Structurally, CERCLA provides "no parallel          federal  cause of action  for the recovery  of insurance proceeds                                    ___ ___ ________  __ _________ ________          for CERCLA-created liability."  Hudson, 957 F.2d at 830.  Rather,          ___ ______________ _________    ______          its  provisions,  read objectively,  choreograph  a  pas de  deux                                                               ___ __  ____          wherein CERCLA-driven suits to  collect insurance proceeds are to          be brought under state  law.  See,  e.g., 42 U.S.C.    9607(e)(1)                                        ___   ____          (preserving "any agreement to insure, hold harmless, or indemnify          a  party" for CERCLA  liability).  We  turn, then,  to the former          proposition (necessary dependence on a federal-law question).                      Conceivably, American might argue that a suit to compel          it  to defend and/or indemnify  its insureds is  one that, though          created by  state law, necessarily  turns on federal  common law.          However, such an argument  amounts to a call for  the application          of a uniform federal rule of decision to govern interpretation of          an  insurance  policy's  scope   of  coverage  vis-a-vis   CERCLA          liability.  We  decline to heed  that call in  the face of  solid          precedent  pointing  in  the  opposite  direction.    The  massed          authority  for  treating insurance  coverage questions  in CERCLA          cases as peculiarly  matters of state law  pervades the courts of          appeals.   See, e.g., Northbrook,  962 F.2d at  79; Northern Ins.                     ___  ____  __________                    _____________                                          17          Co. v. Aardvark Assocs., Inc., 942 F.2d 189, 192 (3d Cir.  1991);          ___    ______________________          Liberty  Mut. Ins. Co. v.  Triangle Indus., Inc.,  957 F.2d 1153,          ______________________     _____________________          1157 (4th Cir.), cert. denied, 113 S. Ct. 78 (1992); FL Aerospace                           _____ ______                        ____________          v. Aetna Cas.  & Sur. Co.,  897 F.2d 214,  219 (6th Cir.),  cert.             ______________________                                   _____          denied, 111 S. Ct. 284  (1990); Aetna Cas. & Sur. Co.  v. General          ______                          _____________________     _______          Dynamics  Corp., 968  F.2d 707,  710 (8th Cir.  1992); Industrial          _______________                                        __________          Indemnity Ins. Co. v. Crown Auto Dealerships, Inc., 935 F.2d 240,          __________________    ____________________________          241 (11th  Cir. 1991).  State  courts chime in tune.   See, e.g.,                                                                 ___  ____          Hazen Paper, 555  N.E.2d at 579; Boeing Co. v.  Aetna Cas. & Sur.          ___________                      __________     _________________          Co.,  784 P.2d 507, 509  (Wash. 1990); Technicon  Elecs. Corp. v.          ___                                    _______________________          American  Home  Assurance Co.,  542  N.E.2d  1048, 1050-51  (N.Y.          _____________________________          1989).                    Case law aside, we  doubt that Congress intended CERCLA          to  be the springboard  for catapulting federal  courts into what          has historically been a state-law preserve.  Congress has made it          plain that  federal legislation  should rarely be  interpreted to          encroach  on  a state's  regulation  of  insurance.   See,  e.g.,                                                                ___   ____          McCarran-Ferguson Act,  15 U.S.C.    1012(b) (1988).   Nothing in          CERCLA  suggests  that Congress  intended  to  deviate from  this          regimen.  Indeed,  CERCLA's text not only  envisions the bringing          of  suits  under  state   law  but  specifically  mandates  their          resolution in accordance with that law.   See 42 U.S.C.   9672(a)                                                    ___          (stating  that  CERCLA's  insurance subchapter  "shall  [not]  be          construed to affect . . . the law governing the interpretation of          insurance  contracts of  any State").   Thus,  CERCLA effectively          rebuts the claim  that its drafters intended to  transform state-                                          18          law insurance actions into actions arising under federal law.                     We  think  that  the   situation  at  hand  is  closely          analogous  to that which confronted  us in Royal  v. Leading Edge                                                     _____     ____________          Prods., Inc.,  833 F.2d 1  (1st Cir. 1987).   There, a  plaintiff          ____________          sought to recover for breach of  a royalty agreement related to a          copyrighted work.  In an effort to maintain federal jurisdiction,          he argued that his  case arose under the federal  copyright laws.          See id. at 2.  We disagreed, pointing out  that when an action is          ___ ___          brought  to enforce a royalty  contract the action  arises out of          the contract and not under the copyright statute, even though the          contract concerns a copyright.  See id. at 4.  By the same token,                                          ___ ___          an action brought to enforce the pollution-coverage provisions of          an  insurance policy  arises  out of  the  policy and  not  under          federal  environmental law,  even though  any  potential recovery          under  the  policy  will satisfy  a  CERCLA-generated  liability.          Accord Hudson, 957 F.2d at 829-30.  In this case, as in Royal, it          ______ ______                                           _____          would  be wrong to arrogate unto the federal courts "jurisdiction          over what  is  essentially a  garden-variety  contract  dispute."          Royal, 833 F.2d at 5.          _____                    In fine, because the insurance dispute which American's          declaratory judgment  action anticipates  is a creature  of state          law  and  cannot be  said to  arise  under federal  law, original          federal  question  jurisdiction     and,  by  extension,  removal          jurisdiction under 28 U.S.C.   1441(a)   does not lie.                                          IV                                          IV                    Since neither  section 1442 nor  section 1441  supports                                          19          the removal  of American's declaratory judgment  action, there is          simply no serviceable  hook on which federal  jurisdiction can be          hung.  We, therefore, go no further. Inasmuch  as the lower court          lacked subject  matter  jurisdiction, its  order  dismissing  the          action against EPA is null.  See Insurance Corp. of Ir., 456 U.S.                                       ___ ______________________          at 701 ("The validity of an order of a federal court depends upon          that court's  having jurisdiction over . . . the subject matter .          .  . .").     We vacate  the dismissal order and  direct that the          district court reinstate  Belaga, in her official  capacity, as a          party and  thereafter return the improvidently  removed action to          the court from whence it emanated.12                    Vacated and remanded with directions.  No costs.                    Vacated and remanded with directions.  No costs.                    _______________________________________________                                        ____________________               12We take  no view of Belaga's claims of sovereign immunity,          non-justiciability, unripeness  and the  like.  We  are similarly          noncommittal  as  to  the  effect,  if  any,  of  remand  on  the          stipulation  entered into between American and  DEP.  Because the          federal  courts  lack  jurisdiction,  all such  matters  must  be          presented to, and resolved by, the state courts.                                          20
