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HARLEM RIVER PRODUCE CO. v. AETNA CAS. & SUR. CO.

June 28, 1965

HARLEM RIVER PRODUCE CO., Inc., Plaintiff,
v.
AETNA CASUALTY AND SURETY COMPANY, Export-Import Bank of Washington et al., Defendants



The opinion of the court was delivered by: TENNEY

MEMORANDUM

 TENNEY, District Judge.

 Plaintiff moves herein, pursuant to Section 1447(c) of Title 28 of the United States Code, to remand the above-entitled action to the Civil Court of The City of New York, County of New York, on the ground that the action was improperly removed and is not within the jurisdiction of this Court. It is plaintiff's position that petitioner, (defendant, Export-Import Bank of Washington, hereinafter referred to as "Eximbank") relied solely upon Section 1442 of Title 28 of the United States Code as the basis for removal, and that said section of the Code is inapplicable to the within action.

 Plaintiff, on or about February 11, 1965, commenced an action in the Civil Court of The City of New York against several insurance companies and the petitioner, Eximbank, to recover the total sum of $8,431.41, alleging in the complaint that said defendants, through the agency of the Foreign Credit Insurance Association, issued policies of insurance to the plaintiff and had failed and refused to pay claims of the plaintiff arising under said policies.

 On or about February 24, 1965, the defendant, Eximbank, filed a petition *fn1" to remove said action to this Court, wherein it alleged:

 
"1. Petitioner is an agency and instrumentality of the United States of America, having been created and deriving its powers and authority pursuant to the laws of the United States of America.
 
2. On or about February 11, 1965, the above-entitled civil action was commenced in the Civil Court of the City of New York, County of New York, against petitioner and various other persons to recover sums totalling $8,431.41 plus interest and costs.
 
3. Petitioner is being sued in the said action solely and exclusively for alleged acts committed by it as an agency of the United States, pursuant to rights, title and authority conferred by Act of Congress.
 
* * *
 
WHEREFORE, petitioner prays that the said action may be removed from said Civil Court into this Court for trial and determination as provided for by Title 28, Section 1442 of the United States Code."

 Plaintiff contends that Eximbank has relied solely on Section 1442 of Title 28 and that the interpretation and application of that section to the removal at bar is unwarranted and improper. Initially, plaintiff asserts that Section 1442 deals exclusively with civil or criminal actions against officers of the United States or officers of an agency of the United States for an act under color of said office, and that the section is not applicable to an action against a federal corporation organized under a statute of the United States which is sued for breach of contract.

 Plaintiff also contends that an action against a federal corporation is only removable if the prerequisite jurisdictional amount of $10,000 is present.

 Eximbank takes the position that the facts stated in its petition of removal establish removal jurisdiction both under Section 1442(a)(1) and under Section 1441 of Title 28. Defendant Eximbank further contends that the "wherefore" clause of the petition of removal which mentions only Section 1442 is surplusage and does not limit this Court's power to sustain the removal pursuant to Section 1441 or any other applicable statute.

 In support of its position that removal of an action against a federal agency is proper under Section 1442(a)(1), petitioner cites James River Apartments Inc. v. Federal Housing Administration, 136 F. Supp. 24 (D.Md.1955). The James River Apartments case involved a suit originally brought in the Circuit Court No. 2 of Baltimore City for a declaratory judgment, under the Maryland Code of Public General Laws, that the Federal Housing Administration was not entitled to inspect the books and records of the plaintiff corporation or, if the right existed, it was limited to determining whether or not plaintiff had complied with the terms of its Articles of Incorporation and any information obtained by said inspection could not be disclosed to others.

 The case was removed by the Federal Housing Administration to the United States District Court. The Court found that it had original jurisdiction under Title 28 of the United States Code, Section 1331, as the cause of action arose under the laws of the United States and the amount in controversy was in excess of the jurisdictional amount (then $3,000). Removal was also grounded on the fact that it was removable without regard to the citizenship or residence of the parties under Title 28 of the Code, Section 1441(a) & (b). The Court also found that it had original jurisdiction under Section 1332 of Title 28 as the requirements of jurisdictional amount and diversity of citizenship were met.

 The removal was sustained under Section 1442(a)(1) as well.

 While it may be argued that the James River Apartments case is authority for the proposition that an action against a federal agency may be removed to the United States District Court under Section 1442(a)(1) (as well as under Sections 1441, 1331 and 1332) a reading of the Reviser's Note to Section 1442, the Legislative History and ...


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