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Macias v. Kerr-McGee Corp.

ELR Citation: 23 ELR 20226
Nos. No. 92 C 3389, (N.D. Ill., 08/19/1992)

The court holds that a lawsuit by individuals against a chemical company for damages based on injuries resulting from exposure to thorium-containing fill material was properly removed to federal court, because the chemical company brought a third-party complaint against officials of the U.S. Environmental Protection Agency (EPA) and the U.S. Nuclear Regulatory Commission (NRC), which allegedly prevented the company from storing the materials at its West Chicago, Illinois, facility. The court first holds that the fact that the plaintiffs'complaint raises no federal issues does not bar removal of the case to federal court, because the right of removal under 28 U.S.C. §1442 is not driven by the plaintiffs' complaint. Consistent with the policy aims of §1442, courts have allowed third-party federal defendants to remove on the basis of a federal defense to the third-party complaint. The court also rejects the plaintiffs' argument that it should remand the case to state court because EPA and the NRC are the real parties in interest. Relying on U.S. Supreme Court precedent, the court holds that nominal involvement of federal officials may confer jurisdiction that would otherwise be lacking. Addressing the plaintiffs' argument that the present case involves the adjudication of abstract rights and does not satisfy the requirements of §1442, the court holds that a significant federal interest is present in this case, because at issue is the authority of the federal officials and their agencies to decide the proper remedial action to be taken regarding the contaminated materials. Finally, the court holds that the case should not be remanded, even though the state did not have jurisdiction over the third-party complaint. In 1986, with the enactment of 28 U.S.C. §1441(e), Congress eliminated the derivative nature of removal jurisdiction with respect to all cases commenced on or after June 19, 1986. While Congress did not explicitly extend §1441(e) to federal official removal under §1442, the courts have interpreted it as a broad elimination of a judge-made doctrine, which applies to §1442 as well.

[Related decisions are published at 20 ELR 21339 and 21369.]

Counsel for Plaintiffs
Robert Osmundsen, Steven Lemon
Jeff Diver Group
45 S. Park Blvd., Ste. 270, Glen Ellyn IL 60137
(708) 790-0001

Counsel for Defendants-Counterdefendants
Peter Nickels
Covington & Burling
1201 Pennsylvania Ave. NW, Washington DC 20044
(202) 662-6000

Nordberg, J.