author: WEXLER, District Judge.

text:
    Gerard EHRET and Veronica Donovan, individually and on behalf of their minor child, Margo Ehret, an infant, Plaintiffs, v. NEW YORK CITY DEPARTMENT OF SOCIAL SERVICES, et al., Defendants.
    No. CV 81-2042.
    United States District Court, E.D. New York.
    April 19, 1985.
    See also 102 F.R.D. 90.
    Louise Gruner Gans, Community Action for Legal Services, Inc.
    Norman Siegel, MFY Legal Services, New York City, Mark Spires, Queens Legal Services, Long Island City, N.Y., for plaintiffs; Edward N. Simon, New York City, Barbara Finkelstein, Long Island City, N.Y., of counsel.
    Frederick A.O. Schwarz, Jr., Corp. Counsel by Louise S. Horowitz and Isaac Klepfish, New York City, for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

WEXLER, District Judge.

FINDINGS OF FACT

Gerard Ehret, Veronica Donovan and their daughter Margo Ehret, who was born on February 4, 1979, lived in the downstairs apartment at 39-60 45th Street, Long Island City, New York, on or about March 25, 1980. The apartment they lived in was part of a two story semi-detached home owned jointly by Gerard Ehret and his mother, Noreen Ehret, who lived in the upstairs apartment.

The New York City Department of Social Services (DSS), the defendant, is an agency of the New York City Government. In 1980, the Department of Social Services was empowered to carry out child protective functions in accordance with applicable law. The Department carried out these functions through its division known as Special Services for Children (SCC), which was formerly the Bureau of Child Welfare (BCW). In 1980, the SSC maintained a Field Office at 165-15 Archy Avenue, Jamaica, New York, which handled child protective cases in the borough of Queens.

The defendant Charles Burgess was a Supervisor I of a child protective unit in the Queens Field Office of the SSC, at all relevant times in 1980. He supervised the defendant Addie Grizzel, who was a case worker in the Queens Field Office. She was responsible for carrying out child protective investigations at all relevant times in 1980.

The defendant Joseph Grossman was a Sergeant in the New York City Police Department and was assigned to the 108th Precinct at all relevant times in 1980.

The defendant Police Officers William Seyfried and Georgia Nurse were police officers assigned to the 108th Precinct at all relevant times in 1980.

On the afternoon of March 23, 1980, the Queens Field Office of the SSC received a telecopy from the New York State Central Registry of an anonymous telephone complaint alleging child abuse at the Ehret residence.

The taker of the call recorded the complaint on a DSS-2221 form. The form stated that the “Father becomes extremely agitated frequently due to pill addiction. He slaps infant daughter around and constantly screams and hollers threats to do additional bodily harm to infant by hanging her, throwing her out of the window, etc. Caller stated further that she has summoned police to premises but they fail to respond. It sounds as though this caller may actually be the mother trying to secure help.” The DSS-2221 form was marked “third complaint”. The DSS-2221 form was then referred to the child protective unit supervised by Charles Burgess at the Queens Field Office. On March 24, 1980, he assigned the case to Addie Grizzel. He instructed her to give the case first priority because it was the third complaint on the family and because the child was very young. The other complaints had been previously deemed “unfounded.”

Ms. Grizzel investigated the complaint at her earliest opportunity on the afternoon of March 25, after completing a morning assignment at Family Court. Ms. Grizzel went to the Ehret home arriving at 39-60 45th Street, Sunnyside, Queens at approximately 2:30 p.m. She carried an identification card indicating that she was an employee of DSS. Ms. Grizzel knocked on the door of the Ehret residence and identified herself to the plaintiff Gerard Ehret, who answered the door, as being from the Bureau of Child Welfare. She asked to speak to Veronica Donovan. Before she finished speaking, Mr. Ehret began shouting racial and obscene epithets and warned Ms. Grizzel, a Black social worker, to get away from the house and not to come back.

At approximately 3:00 p.m. Ms. Grizzel telephoned her Supervisor, Charles Burgess, from a phone booth outside a superette. She told Mr. Burgess how Mr. Ehret violently refused to let her speak to Veronica Donovan. She also reported that Mr. Ehret’s physical appearance indicated to her that he was high on drugs, intoxicated or at least in an irrational state. She told Mr. Burgess that she was concerned for the immediate safety of the child and in fear of her own safety.

The New York City Family Court has no mechanism or procedure by which BCW workers can telephone the Court in order to obtain an ex parte order of removal pursuant to § 1022 of the Family Court Act. Therefore, Mr. Burgess, with approval of his supervisor, John Schurin, directed Ms. Grizzel to remain on the scene and call for police assistance. They directed her to remove the child from the home unless, upon gaining entry to the home, the circumstances showed that the child was not in fact in imminent danger of serious injury. Mr. Burgess also advised Ms. Grizzel that he was sending two additional workers, Henry Gilchrist and Cynthia Graham, to insure her safety and to assist her in completing her assignment. He told her to wait in the superette until they arrived.

At approximately 4:00 p.m. Mr. Gilchrist and Ms. Graham arrived at the superette where Ms. Grizzel was waiting. After they arrived Ms. Grizzel telephoned 911 and requested police assistance. The 911 operator recorded the following: “4:06 p.m. Child abuse complaint. See female complainant Grizzel in front of location. Male at location intox threaten her. She is trying to cheek on a baby at the location.” Police Officers Seyfried and Georgianni were dispatched in a patrol car to the Ehret residence and arrived there shortly after 4:36 p.m. Ms. Grizzel, who was waiting there for the police, informed the officers that she needed assistance to remove the child inside.

The police officers spoke to Mr. Ehret and asked him to allow Ms. Grizzel to come in the house. Mr. Ehret refused to allow anyone to see the baby or speak to the mother. He continued to shout, using violent language and racial epithets. The police officers at the scene radioed for other back-up units because of Mr. Ehret’s irrational conduct and his persistent refusal to permit Ms. Grizzel to see the baby.

Several additional police cars responded to the scene, including a police car operated by Police Officers Georgia Nurse and George Schultz. Officer Schultz recognized the Ehret residence because he was there before when he responded to a family dispute involving violence between the plaintiffs Ehret and Donovan. Officer Schultz also knew of the reputation of Mr. Ehret in the community as being an alcoholic, violent person and a cop fighter. He told the other officers at the scene about Mr. Ehret’s reputation.

At approximately 4:54 p.m. the police officers radioed for a sergeant to be dispatched to the location. According to Patrol Guide 106-15, when a situation involves the emergency removal of a child due to imminent danger, a sergeant must be present on the scene. The radio dispatcher also recorded at that time that there was possibly an emotionally disturbed person at the location.

Sergeant Joseph Grossman, responding to the call, arrived at the Ehret home sometime after 5:00 p.m. He also knew of Mr. Ehret’s reputation as being a drunk, a cop fighter and a violent person. Ms. Grizzel explained the situation to the sergeant upon his arrival. She told him of the anonymous complaint and of Mr. Ehret’s bizarre behavior, and that she was in fear for the child’s safety.

Sergeant Grossman’s role at this point was to keep the peace and to assist BCW in effectuating its decision to remove the baby. Accordingly, he knocked on the door and tried to persuade Mr. Ehret to admit Ms. Grizzel to see the baby. Mr. Ehret opened the door and admitted Sergeant Grossman, but persisted in his refusal to permit his child to be seen by Ms. Grizzel. He continued to shout and curse. Mr. Ehret declared that he would allow no Blacks in his house.

The police at the scene radioed for an Emergencies Services Unit at 5:24 p.m. The Emergencies Services Unit assist police in dealing with emotionally disturbed persons. Because of Mr. Ehret’s conduct, the police at the scene reasonably believed that the assistance of this specialized unit was necessary.

Meanwhile, Sergeant Grossman, failing at his attempts to persuade Mr. Ehret to admit Ms. Grizzel, advised Mr. Ehret that the police were going to enter his home. As the police entered the home, Mr. Ehret sat down on the staircase inside the house and began to cry. Veronica Donovan ran up the staircase into the upstairs apartment with the baby in her arms and slammed the door. Sergeant Grossman ran up the stairs after Ms. Donovan and kicked the door below the handle causing the door to open. Ms. Grizzel and Officer Nurse followed him up the stairs and into the upstairs apartment, while Officer Georgianni remained outside the Ehret home and Officer Schultz stood downstairs watching Mr. Ehret. While in the room Sergeant Grossman directed Officer Nurse to speak to Ms. Donovan. Both Officer Nurse and Ms. Grizzel tried to persuade Ms. Donovan to relinquish the baby. Ultimately, Ms. Donovan gave the baby to Officer Nurse and asked her to escort her and the baby from the Ehret residence. Ms. Donovan also made a telephone call to her aunt, to whom Ms. Grizzel spoke and explained the situation.

During that time, Mr. Ehret ran upstairs and tried to enter the upstairs apartment. He was cursing and shouting racial slurs. Sergeant Grossman prevented Mr. Ehret from entering the apartment by placing his nightstick in front of Mr. Ehret. Apparently, Mr. Ehret was particularly upset by the fact that Officer Nurse, who was holding the baby, was Black.

Officer Nurse, carrying the baby, Ms. Grizzel and Ms. Donovan left the upstairs apartment and went down the stairs into the Donovan/Ehret apartment to obtain clothing and other items for the baby. They then proceeded to a police car and drove to the precinct station house. No one attempted to prevent Ms. Donovan from entering the police car. At 5:45 p.m. the police at the scene radioed that one female would be transported to the precinct house.

Mr. Ehret ran from the house shouting and cursing, then stood in front of the police car to stop it from leaving. Mr. Ehret spoke to the police officers and told them he wanted to go to the precinct house. He got into another police car and proceeded to the station. At approximately 5:45 p.m., the police radioed that they were transporting someone to the station house. The police officers did not attempt to run over Mr. Ehret with the police car.

Meanwhile, Officer Nurse, who was still carrying the baby, Ms. Donovan and Ms. Grizzel arrived at the precinct station house. As the three began to talk Mr. Ehret arrived and caused a commotion. Ms. Grizzel and Officer Nurse, who still carried the baby, began to leave the building. Before leaving Ms. Grizzel advised Ms. Donovan that she and Mr. Ehret should be in Family Court in Queens the next day. Ms. Grizzel wrote the address of the Queens Family Court on a piece of paper and gave it to Ms. Donovan.

The baby was taken to a hospital and examined by a resident doctor who found no physical injuries or other outward evidence of abuse or neglect on the baby. However, the resident doctor held the baby at the hospital overnight for observation. The police radio dispatcher recorded “condition corrected” on the incident as of 6:16 p.m.

On the morning of March 26, 1980, Ms. Grizzel went to Family Court in Queens and requested that the Department of Social Services’ attorney, Peter Porcasi, draw up a petition for an order remanding the baby to the custody of the Commissioner of Social Services. Peter Porcasi declined to draw up a petition because he believed the Court would not grant a remand order without evidence of physical injury or eyewitness testimony of maltreatment.

That same day before noon Ms. Donovan and Mr. Ehret arrived in Family Court. They were informed that Mr. Porcasi made the decision not to petition for remand. Because of the attorney’s decision, Mr. Burgess gave Ms. Donovan authorization to pick up the child at the hospital. Ms. Donovan picked up the child that afternoon at the hospital and took her home.

The Family Court does not now and did not in 1980 have any procedure or make any provision for court orders of removal pursuant to § 1022 of the Family Court Act to be obtained after 5:00 p.m. or by telephone at any time.

Gerard Ehret had a well-established pre1980 history of treatment for paranoid schizophrenia, and a history of chronic antisocial behavior, of hostility to authority figures, and of alcoholism.

A 1983 psychiatric examination of Gerard Ehret yielded a diagnosis of paranoid personality disorder with sociopathic trends, but no evidence of the post-traumatic stress disorder alleged by plaintiff. Mr. Ehret’s psychological condition after March 25 and 26, 1980 did not differ from his earlier condition.

Plaintiff Veronica Donovan has not shown any evidence of psychological injury arising from the events of March 25 to 26, 1980. Nor is there any evidence that the infant Margo Ehret has suffered any psychological injury from the acts of the defendants.

CONCLUSIONS OF LAW

1. This Court has jurisdiction over this action pursuant to Title 42 U.S.C. § 1983.

2. All the defendants acted under color of state law.

3. The plaintiffs’ right to the privacy and security of their home are guaranteed under the United States Constitution and the New York Constitution.

4. The defendants, acting under color of state law, had no authorization to forcibly enter into a private home without a warrant or court order and the burden of showing that the entry was required and supported by exigent or emergency circumstances is on the individual and municipal defendants.

5. It is well established that the guarantees of the Fourth Amendment against unreasonable search and seizure are not violated when peace officers acting under color of law take action otherwise prohibited in circumstances where it is reasonable to believe that a situation posing imminent harm to persons or property exists. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). Therefore, the constitutionality of the actions of the individual defendants must be determined by the reasonableness of their actions.

6. The actions of plaintiff Gerard Ehret and the active or passive cooperation and assent to those actions of plaintiff Veronica Donovan were unreasonable, irrational and precipitated the ensuing events. If not for the irrational actions of plaintiff Gerard Ehret, the forcible entry of the Ehret home would never have taken place and it would not have been necessary to remove the child Margo in order to examine her.

7. The actions of the plaintiffs created an emergency as contemplated by Social Services Law § 417 and Family Court Act § 1024.

8. This Court finds that the defendants acted reasonably under the emergency situation created by the plaintiffs, which caused defendant Addie Grizzel to reasonably believe that the infant child Margo Ehret was in imminent danger. The Court further finds that there was not sufficient time to obtain a court order.

9. The entry of the police with the DSS social workers were justifiable actions as they had reasonable grounds to believe that the infant was in imminent danger and were further justified in removing the child to another place for an examination to reasonably determine the condition and safety of the child. Mr. Ehret’s threatening behavior and harrassment of the defendants necessitated removal of the child.

10. This Court finds that if there was any wrongdoing it was done by the plaintiffs in their unreasonable and irrational behavior from the first time Ms. Grizzel came to the door until the close of the entire episode. Mr. Ehret was irrational, intoxicated, menacing, and likely to act violently.

11. The Court finds the plaintiff have failed to prove any psychological injury to themselves arising from the defendants’ actions.

12. The Court finds that the policies, procedures, and training methods of the municipality have not been brought into question in this case, as the individual defendants acted reasonably and did not violate the constitutional rights of the plaintiffs.

13. This Court commends the defendants in their professional handling of the entire case and is shocked by the plaintiffs’ attorneys’ unjustifiable pursuit of a case that presented no legitimate issues.

14. This Court finds the actions of the plaintiffs violated the rights of the Black defendants. No person in our society whether civil servant or private citizen must endure racial slurs. This Court is further shocked that the plaintiffs’ attorneys, after knowledge of all the facts from discovery, continued to pursue the baseless claims of a racially prejudiced white who violated the rights of minorities and then asserted his rights under the Constitution.

15. Approximately two years of active and exhaustive discovery was had in this case. There were thorough depositions of parties, witnesses, and experts, in addition to interrogatories and document production. By the close of pre-trial discovery it must have been pellucidly clear to a reasonable and objective mind that the plaintiffs’ case lacked practical and substantive merit, and that they had little probability of prevailing at trial. While it is true that the state should not use undue force in investigating child abuse allegations, this case presents no factual context for this principle.

16. Gerard Ehret behaved in a way that defendants’ response was reasonable, rational, and perhaps commendable. There is no factual support for the claimed violation of the plaintiffs’ constitutional rights. The feebleness of plaintiffs’ case was apparent once all the facts were discovered. The matter should not have been taken to trial. Accordingly, an award of costs and disbursements to the defendants is appropriate. Lane v. Southeby Parke Bemet, Inc., 758 F.2d 71 (2d Cir.1985).

This Court finds judgment for the defendants with costs. Defendants will submit affidavits and supporting documentation for the assessment of costs and disbursements against plaintiffs. The Clerk of the Court is hereby directed to enter judgment in favor of defendants. Plaintiffs shall take nothing from defendants.

SO ORDERED.


source: Caselaw Access Project

author: GONZALEZ, District Judge.

license: Public Domain

text:
    Glenda STROUD, Plaintiff, v. SEMINOLE TRIBE OF FLORIDA, Defendant.
    No. 82-8395-CIV.
    United States District Court, S.D. Florida, N.D.
    April 22, 1985.

      William Hutchinson, Ft. Lauderdale, Fla., Ralph Flowers, Ft. Pierce, Fla., for plaintiff.
    Jack O’Donnell, Ft. Lauderdale, Fla., for defendant.
   ORDER OF DISMISSAL

GONZALEZ, District Judge.

THIS CAUSE has come before the court upon the defendant’s motion for summary judgment.

Plaintiff Glenda Stroud alleges that defendant Seminole Tribe of Florida terminated her position as Education Director for the Tribal Education Department solely because she was white. In support of her claim, plaintiff would show that after her discharge the Tribe hired an Indian to fill the vacant position, and that tribal members were retained in other positions that presumably were subject to the same budget constraints that affected plaintiff’s employment status.

Plaintiff’s amended complaint originally charged defendant with violating 42 U.S.C. § 1981, 42 U.S.C. § 2000d, and the Indian Civil Rights Act (“ICRA”), 25 U.S.C. § 1302(8), (9). This court has jurisdiction over the matter because of the federal questions presented.

By previous orders, the court already has ruled that (1) plaintiff may not maintain the instant suit as a class action, Order at 2 (Nov. 28, 1983) 574 F.Supp. 1043; (2) the doctrine of sovereign immunity bars plaintiff’s claims brought under the ICRA, id.; and (3) plaintiff fails to state a claim for relief under section 2000d. Thus, plaintiff’s case is now one for damages, declaratory and injunctive relief under section 1981. Order (Sept. 11, 1984).

The sole issue presented by defendant’s motion is whether the doctrine of sovereign immunity precludes plaintiff’s claim for relief under 42 U.S.C. § 1981?

The United States Court of Appeals for the Tenth Circuit addressed that very question in Wardle v. Ute Indian Tribe, 623 F.2d 670 (10th Cir.1980). Ray Wardle, plaintiff in that case, was discharged as a policeman because the Indian Tribe wanted to replace him with a tribal member. Mr. Wardle sued the Tribe in federal court, seeking damages for its alleged violation of the ICRA, the Fifth Amendment to the United States Constitution, and various civil rights provisions including 42 U.S.C. §§ 1981, 1983, 1988 and 2000d. The appellate court affirmed the district court’s dismissal of the case, reasoning that the Tribe had not violated any federally protected rights by discharging the plaintiff.

Controlling in Wardle, as here, is the fact that the Constitutional or statutory guarantees are not applicable to the exercise of governmental powers by an Indian tribe except to the extent that they are made explicitly binding by the Constitution or an Act of Congress. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed.2d 106 (1978); Taiton v. Mayes, 163 U.S. 376, 16 S.Ct. 986, 41 L.Ed. 196 (1896); Janis v. Wilson, 521 F.2d 724 (8th Cir.1975); Twin Cities Chippewa Tribal Council v. Minnesota Chippewa Tribe, 370 F.2d 529 (8th Cir.1967). Both the Constitution and the Congress have recognized the sovereignty of the Indian tribes, and thus they are subject to federal laws only when Congress expressly so declares. Such a declaration can be found in Title VII, which permits the Tribes to prefer tribal members over non-members in their employment practices, see 42 U.S.C. § 2000e; or in section 1303 of the ICRA, which provides that the writ of habeas corpus is the only remedy available for those tribal members who wish to contest the legitimacy of their confinement by a tribal court. See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 69-70, 98 S.Ct. 1670, 1682-83, 56 L.Ed.2d 106 (1978); see 25 U.S.C. §§ 1302, 1303.

Congress has not, however, expressly or impliedly extended section 1981 to the employment practices of the Indian tribes. The Wardle court explained:

The statutory provisions under which plaintiff relies [including 42 U.S.C. § 1981] do not provide him a cause of action, even assuming that these provisions would otherwise apply to Indian tribes and that the discharge in this case was racially discriminatory. Cf Morton v. Mancari, 417 U.S. [535] at 551-55, 94 S.Ct. [2474] at 2483-85 [41 L.Ed.2d 290 (1974) ]. Each of the statutes invoked by plaintiff is a broad, general provision guaranteeing equal rights and equal protection or prohibiting racial discrimination. These broad civil rights provisions do not specifically prohibit preferential employment of tribal members by Indian tribes. On the other hand, 42 U.S.C. § 2000e specifically exempts Indian tribes from compliance with the prohibition against discriminatory discharge from employment. Under such circumstances, the specific provisions control over the more general ones.

623 F.2d at 673 (emphasis added).

Based on the aforesaid law and policy, the inescapable conclusion is that defendant’s motion for summary judgment must be granted. Accordingly, this case shall stand dismissed without prejudice.


author: EDELSTEIN, District Judge.

text:
    Roy BABITT, Plaintiff, v. Ronald FRUM, Defendant.
    84 Civ. 3120 (DNE).
    United States District Court, S.D. New York.
    April 22, 1985.
    Booth, Marcus & Pierce, New York City, Philip Pierce & Robin S. Weinstein, New York City, of counsel, for. plaintiff.

      Bloom & Eilen, New York City, Howard S. Eilen, New York City, of counsel, for defendant.
   OPINION AND ORDER

EDELSTEIN, District Judge.

This civil action was commenced in Supreme Court of the State of New York to recover damages for breach of certain contracts between the defendant, Ronald Frum (“Frum”), and Elms Capital Management, Inc. (“ECM”) and Elms Government Securities (“EGS”). The plaintiff, Roy Babitt, is the assignee for the benefit of creditors of ECM and EGS. Plaintiff seeks to recover $83,089.23 plus interest for losses allegedly sustained in Frum’s accounts with plaintiff’s assignors.

Defendant moved this court to dismiss the complaint pursuant to Rule 12(d) of the Federal Rules of Civil Procedure on the ground that this court lacks personal jurisdiction over the defendant. The defendant’s motion is hereby granted.

DISCUSSION

Defendant moves to dismiss based on a lack of personal jurisdiction. Defendant asserts that his sole residence and domicile is in California, that he did not “maintain a residence, office or telephone listing in the State of New York,” and that he did not designate an agent to receive service of process in New York. Defendant’s Memorandum of Law at 3. Further, defendant contends that all negotiations preceding the execution of the contracts occurred in California, that he never visited the offices of plaintiff’s assignors in New York and did not make any telephone calls to New York in connection with his accounts. Plaintiff does not dispute these facts.

Plaintiff bases jurisdiction on two grounds: first, that defendant has waived the defense of lack of personal jurisdiction; and second, that defendant has consented to jurisdiction in this district by consenting to arbitrate disputes under the contracts in New York. Both of these arguments are rejected.

A. Defendant’s Waiver of Defense.

Plaintiff asserts that “Defendant’s conduct in this action, thus far, has clearly been so dilatory and inconsistent with such an assertion, as to constitute a waiver of [the] defense” of lack of personal jurisdiction. Plaintiff’s Memorandum in Opposition at 7. Plaintiff points to a number of actions that the defendant has taken with regard to this suit, for example, serving an answer, filing a petition for removal, participating in discovery, and attending at least two pre-trial conferences before this court. While it is true that actions by a defendant may constitute a waiver of the defense, e.g. Bouas v. Sociedad Maritima San Nicholas, S.A., 252 F.Supp. 286 (S.D.N.Y.1965), under the circumstances of this case, defendant’s acts are not sufficient to constitute a waiver of the defense which was asserted in the answer.

The length of time between the removal of this case to federal court and the motion can be attributed to a number of factors, none of which can be considered dilatory. First, the court scheduled the first pre-trial conference on July 30, 1984 at which a discovery deadline was set. This court has a general policy of requiring a defendant to serve an answer and of commencing discovery even when a motion to dismiss is contemplated because discovery will often aid in framing the motion. Thus, these actions certainly cannot be found to constitute a waiver because the defendant was following the court’s instructions. Second, the parties were attempting to settle this action and sought the court’s assistance in this regard at a conference on February 28, 1985. The court will not penalize a party by stripping them of a defense because of delay brought about by settlement discussions. Finally, this motion was discussed at a pre-trial conference on November 20, 1984, at which time the court established a schedule to file the motion. Thus, this conference and the events since the conference cannot be construed as a waiver of the defense. The court finds that defendant’s actions do not constitute a waiver of the defense.

B. Consent to Arbitration.

Defendant and plaintiffs assignors entered into agreements which contained arbitration clauses. Plaintiff asserts that the consent to arbitrate disputes in New York establishes personal jurisdiction over the defendant in New York. As a general proposition this is true. Merrill Lynch, Pierce, Fenner & Smith v. Lecopulcos, 553 F.2d 842 (2d Cir.1977). Thus, “it is clear that if [the defendant] did agree to arbitrate this dispute in New York, and if [the plaintiff] did not waive its right to demand arbitration,” this court would have jurisdiction over the person of the defendant. Intermeat, Inc. v. American Poultry, Inc., 575 F.2d 1017, 1023 (2d Cir.1978); see Philipp Bros. Div. of Engelhard Minerals & Chemicals Corp. v. El Salto, S.A., 487 F.Supp. 91, 93 n. 2 (S.D.N.Y.1980). Because the defendant has undeniably entered into such an arbitration agreement, the question is whether the plaintiff has waived his right to arbitrate under the contract. If plaintiff has waived this right, the court’s jurisdiction conferred by the arbitration clause will no longer exist.

The actions of a party may result in a waiver of the right to arbitrate. A party may be found to have waived the right to arbitrate when he actively participates in litigation or otherwise acts inconsistently with its right to arbitrate. Lubrizol Int’l, S.A. v. M/V Stolt Argobay, 562 F.Supp. 565, 573 (S.D.N.Y.1982). The filing of an action is not a waiver of the right to arbitrate, at least not before the defendant has answered on the merits. Lecopulos, supra, 553 F.2d at 845; Chatham Shipping Co. v. Fertex Steamship Corp., 352 F.2d 291, 293 (2d Cir.1965). Defendant, however, has answered on the merits so that the pendency of this action may constitute a waiver.

The nature of this lawsuit also points to a waiver by the plaintiff. This suit was commenced to resolve the dispute on the merits, which is inconsistent with an intention to arbitrate. This type of proceeding is distinguished from other actions that are not inconsistent with an intention to arbitrate and therefore would not constitute a waiver. See, e.g., Weight Watchers of Quebec Ltd. v. Weight Watchers Int’l, Inc., 398 F.Supp. 1057 (E.D.N.Y.1975) (action to compel arbitration); The Anoconda v. American Sugar Co., 322 U.S. 42, 44-45, 64 S.Ct. 863, 865, 88 L.Ed. 1117 (1944) (use of attachment procedure which was procedural device not available at arbitration); Philipp Bros., supra, 487 F.Supp. at 93 (same). Plaintiff has sought a judicial resolution of this dispute and has done nothing to indicate a desire to go to arbitration. The plaintiff may be considered to have waived the right to proceed to arbitration.

As a result of this waiver, the court does not have personal jurisdiction over the defendant and this action must be dismissed.

CONCLUSION

Defendant’s motion to dismiss for lack of personal jurisdiction is granted.

SO ORDERED.

      . The ECM agreement states:
      Any matter in question arising out of this Agreement shall be determined by arbitration in accordance with the rules of the American Arbitration Association in New York City.
      This Agreement has been duly authorized by the Client and is made and shall be a contract construed in accordance with the laws of the State of New York.
      The EGS agreement states:
      Any controversy between you and the undersigned arising out of or relating to this contract or the breach thereof, shall be settled by arbitration, in accordance with the rules, then obtaining, of the American Arbitration Association in New York.
      This agreement and its enforcement shall be governed by the laws of the State of New York.

      . Filing of an answer precludes the plaintiff from dismissing the suit without the consent of the party or a court order. Fed.R.Civ.P. 41(a).

      . Plaintiff has demonstrated that he has no intention to arbitrate his claim or any other claims relating to the contract. Plaintiff responded to defendant’s counterclaim and has not raised arbitration as an affirmative defense. Compare Home Life Insurance Co. v. Kaufman, 547 F.Supp. 833, 835 (S.D.N.Y.1982) (including arbitration as affirmative defense considered in finding of no waiver).


author: GESELL, District Judge.

text:
    INVESTMENT COMPANY INSTITUTE, et al., Plaintiffs, v. FEDERAL DEPOSIT INSURANCE CORPORATION, et al., Defendants.
    Civ. A. No. 84-3875.
    United States District Court, District of Columbia.
    April 23, 1985.
    Harvey L. Pitt, Henry A. Hubschman, David M. Miles, Washington, D.C., for plaintiffs.
    Sandra M. Schraibman, Theodore C. Hirt, Keith Fischler, Attys., Civ. Div., Dept, of Justice, Washington, D.C., for defendants.
   MEMORANDUM

GESELL, District Judge.

This case concerns an interpretation of the Glass-Steagall Act that the Federal Deposit Insurance Corporation (FDIC) has implemented through regulations permitting state banks insured by the FDIC that are not members of the Federal Reserve System to own affiliated subsidiaries engaged in the securities business. Plaintiffs are trade associations representing mutual fund companies and investment bankers that would compete with the security affiliates of such banks. To test the legality of the FDIC’s actions, the parties have filed cross-motions for summary judgment, which have been fully briefed and argued.

The regulations issued by the FDIC are designed to govern the manner in which insured non-member state banks can arrange to own subsidiaries and affiliates engaged in aspects of the securities business, particularly underwriting various types of securities. The regulations announce and assume that the Glass-Steagall Act does not bar such a relationship between an insured non-member bank and its security subsidiary or affiliate but proceed to control aspects of that relationship. The regulations rely on the FDIC’s power, granted by the Federal Deposit Insurance Act, to prohibit unsafe and unsound banking practices. 12 U.S.C. § 1818(a). Plaintiffs do not seriously challenge the detailed terms of these regulations. Rather, they simply maintain that the regulations as a whole are illegal because the Glass-Steagall Act prohibits any securities activity by state insured non-member banks, whether directly or through subsidiaries and affiliates.

Since defendants have moved alternatively to dismiss the complaint on the ground that plaintiffs lack standing, that threshold issue must be resolved before considering the merits.

Plaintiffs’ claim of injury is straightforward: they claim their members will be hurt competitively if the FDIC allows insured non-member state banks to set up subsidiaries and affiliates to compete with plaintiffs’ members. Because in their view such competition is illegal and barred by Section 21 of the Glass-Steagall Act, 12 U.S.C. § 378(a)(1), they assert they are within the “zone of interests” protected by the Act. In another case where plaintiffs’ members challenged a banking regulator’s interpretation of the Glass-Steagall Act to their disadvantage, the Supreme Court found plaintiffs’ members within the Act’s zone of interests. Investment Co. Institute v. Camp, 401 U.S. 617, 620-21, 91 S.Ct. 1091, 1093-94, 28 L.Ed.2d 367 (1971).

The FDIC’s argument against standing seeks to parse plaintiffs’ alleged competitive injury into two parts and then separately to defeat each.

First, the FDIC argues that plaintiffs are only challenging the FDIC’s interpretation of the Glass-Steagall Act, which merely states the agency’s opinion that insured non-member state banks are not barred by the Act from establishing subsidiaries and affiliates to engage in securities underwriting and other transactions. The agency thus claims plaintiffs are seeking merely an advisory opinion from the Court on the correctness of the agency’s view. Second, the FDIC asserts plaintiffs suffer no economic injury from the regulations themselves because those regulations do not open the door to competition with plaintiffs’ members but merely partially close a door already open.

The validity of this argument, of course, is premised on the correctness of the FDIC’s view that the door is already in fact open. The FDIC cannot so easily divide and conquer plaintiffs’ standing. The FDIC’s challenged act must be examined as a whole, not in its pieces. As a whole, the agency action coupling its interpretation of the Glass-Steagall Act with regulations implementing that interpretation plainly threatens economic injury to securities firms and provides standing to plaintiffs. The Court thus must address the merits of the complaint.

Section 21 of the Glass-Steagall Act provides in pertinent part:

[I]t shall be unlawful — (1) For any person, firm, corporation, association, business trust, or other similar organization, engaged in the business of issuing, underwriting, selling or distributing, at wholesale or retail, or through syndicate participation, stocks, bonds debentures, notes, or other securities, to engage at the same time to any extent whatever in the business of receiving deposits subject to check or to repayment upon presentation of a passbook, certificate of deposit, or other evidence of debt, or upon request of the depositor: Provided, That the provisions of this paragraph shall not prohibit national banks or State banks or trust companies (whether or not members of the Federal Reserve System) or other financial institutions or private bankers from dealing in, underwriting, purchasing, and selling investment securities to the extent permitted to national banking associations by the provisions of section 24 of this title____

12 U.S.C. § 378(a)(1). Under section 24, national banks, with limited specific exceptions, are barred from engaging in securities transactions for their own account. 12 U.S.C. § 24 (Seventh). Neither section specifically mentions affiliates or subsidiaries. Section 20 of the Act bars affiliations between banks and securities firms but is expressly limited to banks that are members of the Federal Reserve system. 12 U.S.C. § 377. Similarly, section 32 of the Act — also limited to member banks — bars officers, directors or employees of security underwriting firms from being officers, directors or employees of banks at the same time, with certain exceptions. 12 U.S.C. § 78.

The parties agree that section 21 prohibits insured non-member state banks from engaging directly in the securities business. They disagree as to whether it also prohibits affiliates and subsidiaries of such banks from conducting a security business.

Section 21 is silent as to the activities of bank subsidiaries and affiliates. Plaintiffs argue that the bar in the section’s first clause prohibiting security companies from taking deposits “to any extent whatever” by implication prevents banks from having security subsidiaries and affiliates.

Section 21 is a criminal statute, 12 U.S.C. § 378(b). It must be strictly construed. E.g., Dunn v. United States, 442 U.S. 100, 112-13, 99 S.Ct. 2190, 2197, 60 L.Ed.2d 743 (1979). Plaintiffs’ reading of the section violates this rule of construction. Beyond this, another rule of construction requires courts to give meaning to every part of a statute and to reject interpretations that render related sections surplusage or contradictory. See In re Surface Mining Regulation Litigation, 627 F.2d 1346, 1362 (D.C.Cir.1980). Under plaintiffs’ interpretation of section 21, the prior section, section 20, becomes surplusage. That section forbids member banks from forming controlling affiliations with companies engaged in securities underwriting and similar activities. 12 U.S.C. § 377. Because plaintiffs read section 21 as forbidding any affiliations at all, controlling or not, between either member or non-member banks and securities firms, section 20 would become unnecessary and contradictory.

Plaintiffs try to avoid this awkward spot by reading section 20 as permissive rather than prohibitory. They contend that while section 21 has taken away any right of affiliation for both member and non-member banks, section 20 gives back some right of non-controlling affiliation to member banks.

There are two answers to this. First, the plain words of the statute are prohibitory, not permissive: “no member bank shall be affiliated____” 12 U.S.C. § 377. Second, legislative history squarely indicates that Congress intended to place controls on the affiliations only of banks belonging to the Federal Reserve System and did not intend to restrict affiliations of state non-member banks because at time of enactment 50 years ago it doubted Congress could exercise federal authority over state-chartered banks not within the Federal Reserve System. See 75 Cong.Ree. 9905 (May 10, 1932) (remarks of Sen. Walcott); id. at 9911, 9913-14 (remarks of Sen. Bulkley).

As the Supreme Court has recognized, other legislative history of the Glass-Steagall Act shows that Congress intended to treat banks separately from companies affiliated by ownership with banks. See Board of Governors of Federal Reserve System v. Investment Co. Institute, 450 U.S. 46, 58 n. 24, 60, 101 S.Ct. 973, 982 n. 24, 983, 67 L.Ed.2d 36 (1981). While neither the Supreme Court nor any other court has confronted the issue presented by this case, the legislative history, the statutory language and structure, and common sense all run counter to plaintiffs’ position.

The Court finds that section 21 was not intended to bar securities activities by subsidiaries or affiliates of insured nonmember state banks. While Congress recognized the possible evils involved in such affiliations, it expressly addressed them in other sections of the Act but deliberately chose not to intrude upon state non-member banks in this respect. 12 U.S.C. §§ 78, 377.

FDIC’s interpretation of section 21 is sustained. To the extent its regulations tend to keep state non-member insured banks and security affiliates apart, plaintiffs cannot complain. Any lessening of the effectiveness of legal competition gives these particular plaintiffs no ground to claim injury. Indeed, the complaint raises no substantial issue as to the validity of the FDIC’s regulation other than plaintiffs’ premise that insured non-member state banks cannot affiliate with security companies. Thus the plaintiffs’ motion for summary judgment is denied and the defendants’ motion for summary judgment is granted.

      . The regulations were finally adopted by the FDIC on November 19, 1984. See 49 Fed.Reg. 46,709 (Nov. 28, 1984), to be codified at 12 C.F.R. § 337.4.

      . There are approximately 9,000 state-chartered FDIC-insured banks that are not members of the Federal Reserve System.

      . Amicus briefs supporting the FDIC were filed by the Dealer Bank Association and the American Bankers Association.

      . Defendants criticize the Camp zone of interests rationale at great length but of course concede this Court must follow Camp, which has been repeatedly relied on by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court.

      . Because it is a prohibitory, not regulatory, statute, the FDIC has no authority to make exceptions to its ban by regulation. The FDIC contends it has not done so here but has only exercised its authority to control unsafe and unsound banking practices.

      . The dialogue between Senators Fess and Walcott on this issue is unequivocal:
      Mr. Fess. Earlier in the Senator’s presentation he mentioned the fact that whether it be a national bank or a State bank, the control of affiliates does not extend outside of the Federal reserve set-up; that is, an affiliate of a State bank that is not a member of the Federal reserve system is not covered, is it?
      Mr. Walcott. Mr. President, there are State banks which exist now- within the Federal reserve system, and they are member banks. Mr. Fess. Yes.
      Mr. Walcott. There are national banks within the Federal reserve system. Most of the national banks are under the Federal reserve system; so that, whether State or whether national, provided the bank is a member of the Federal Reserve system and has an affiliate, that affiliate must be divorced within three years.
      Mr. Fess. The provision does not attempt to go beyond the Federal reserve system?
      Mr. Walcott. It does not control State banking, and the reason for that is obvious: The Federal Government has no jurisdiction over State banks.
      75 Cong.Ree. 9905.

      . Plaintiffs' attempt to draw broad meaning from the Supreme Court's recent decision in Securities Industry Ass’n v. Board of Governors, — U.S. -, 104 S.Ct. 2979, 82 L.Ed.2d 107 (1984) (Becker), fails for this reason. Becker did not address the affiliate issue at all.


author: BEAM, District Judge.

text:
    CITY OF ALMA, Plaintiff, v. BELL, GALYARDT & WELLS, INC., a/k/a Bell, Galyardt & Associates, Inc., et al., Defendants. BELL, GALYARDT & ASSOCIATES, Defendant and Third-Party Plaintiff, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, et al., Third-Party Defendants.
    No. CV 83-0-568.
    United States District Court, D. Nebraska.
    April 24, 1985.

      McKelvie & McNally, Thomas P. McNally, Alma, Neb., and Tye, Worlock, Tye, Taylor & Hopkins, Joan Munn Hopkins, Kearney, Neb., and Stehlik, Smith, Trustin, Schweer & Ruder, Frederick D. Stehlik, Omaha, Neb., for plaintiff.
    Thomas J. Guilfoyle, Thomas J. Guilfoyle, P.C., Omaha, Neb., for Bell, Galyardt & Wells, Inc.
    Paul L. Douglas,. Atty. Gen., John Boehm, Asst., Lincoln, Neb., for Nebraska Dept, of Environmental Control.
    Jeffrey W. Meyers, Frost & Meyers, Omaha, Neb., for Nebraska Testing Laboratories, Inc.
    Douglas R. Semisch, Asst. U.S. Atty., and Joan M. Bernott, Spec. Litigation Counsel, Environmental Defense Section, Land and Natural Resources Div., U.S. Dept, of Justice, Washington, D.C., for third-party defendants.
   ORDER

BEAM, District Judge.

This matter is before the Court upon the second motion of the third-party defendant, the United States to dismiss (filing 58) for failure to state a claim; the motion for summary judgment (filing 50) of the defendant and third-party plaintiff Bell, Galyardt & Wells, Inc.; and the motion for summary judgment (filing 51) of defendant Nebraska Testing Laboratories, Inc. This Court, after a review of the files and briefs submitted, finds that this Court shall upon its own motion remand this case to state court for the reason that the matter was incorrectly removed and, as a result, this Court lacks subject matter jurisdiction over the primary case. In addition, the motion to dismiss of the United States should be granted, not because the third-party complaint fails to state a claim, but rather for the reason that this Court lacks jurisdiction.

Plaintiffs action was originally filed in state court. In the state court, the plaintiff sued the United States Environmental Protection Agency (EPA), the Nebraska Department of Environmental Control, Nebraska Testing Laboratories, Inc. (Nebraska Testing), and Bell, Galyardt & Wells, Inc. (Bell). The United States, pursuant to 28 U.S.C. §§ 1441 et seq., removed the action to United States District Court. The EPA was then dismissed because this Court lacked subject matter jurisdiction over it as a party. However, this Court retained jurisdiction based on 28 U.S.C. § 1442(a)(1) of the remainder of the case (filing 15). Bell impleaded as third-party defendant the United States. The United States filed two motions to dismiss for failure to state a claim. It was during examination of the second of these motions, that this Court had cause to again examine the issue of its subject matter jurisdiction and as a result found itself to be without jurisdiction of any part of the matter.

Since there exists neither diversity of parties nor a federal question to confer jurisdiction, the only basis this Court could have for jurisdiction is if the case was properly removed by a federal defendant pursuant to an applicable federal statute. Such is not the case.

Section 1447(c), Title 28, United States Code, imposes the duty on all district courts to remand any case “if at any time before final judgment it appears that the case was removed improvidently and without jurisdiction.” 28 U.S.C. § 1447(c). See KCPO Employees Credit Union v. Mitchell, 421 F.Supp. 1327, 1328 (D.Mo.1976). This case was not properly removed pursuant to either 28 U.S.C. §§ 1441(a) or 1442(a)(1).

I.

Removal under subsection 1441(a) was improper. The subsection provides:

(a) 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) (1980). This subsection is further complemented by subsection (c);

(c) Whenever a separate and independent claim or cause of action, which would be removable if sued upon alone, is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters not otherwise within its original jurisdiction.

28 U.S.C. § 1441(c). “As the statute indicates, to be removable a case must be within the original jurisdiction of the federal court.” Lowe v. Norfolk & W. Ry. Co., 529 F.Supp. 491, 496 (D.Ill.1982).

As the plaintiff has conceded, the claim against the EPA should have been brought directly against the United States, exclusively in a federal court. It should have been filed in either a federal district court as a tort claim under 28 U.S.C. § 2674, or in the Court of Claims as a contract claim under 28 U.S.C. § 1491. Compare 28 U.S.C. § 1346 with 28 U.S.C. § 1491.

Whether the plaintiff’s claim against the EPA sounds in tort or contract, exclusive jurisdiction is vested in the federal courts. 28 U.S.C. §§ 1346 and 1491. The District Court of Harlan County, Nebraska, had absolutely no subject matter jurisdiction over the suit against the EPA. As a result, since removal jurisdiction under section 1441(a) is derivative in character, this Court acquired no jurisdiction. As Justice Brandéis stated,

As the state court was without jurisdiction over either the subject-matter or the United States, the District Court could not acquire jurisdiction over them by the removal. The jurisdiction of the federal court on removal is, in a limited sense, a derivative jurisdiction. If the state court lacks jurisdiction of the subject-matter or of the parties, the federal court acquires none, although it might in a like suit originally brought there have had jurisdiction.

Lambert Run Coal Co. v. Baltimore & Ohio R.R. Co., 258 U.S. 377, 382, 42 S.Ct. 349, 351, 66 L.Ed. 671 (1922). See Gleason v. United States, 458 F.2d 171, 173-74 (3d Cir.1972); Martinez v. Seaton, 285 F.2d 587 (10th Cir.1961), cert. denied, 366 U.S. 946, 81 S.Ct. 1677, 6 L.Ed.2d 856 (1961); see also, Lowe, 529 F.Supp. at 497; Fruin-Colnon v. M. G. Transport Serv., 79 F.R.D. 674 (D.Ill.1978); Schultz v. Director, Fed. Emergency Management Agency, 477 F.Supp. 118 (D.Ill.1979).

II.

Defendants Bell and Nebraska Testing contend that removal was otherwise appropriate under 28 U.S.C. § 1442(a)(1). For support, the defendants rely on the case of IMFC Professional Services, etc. v. Latin Am. Home Health, Inc., 676 F.2d 152 (5th Cir.1982). However, a closer look at 28 U.S.C. § 1442(a)(1), the above case, and the posture of the case at bar, results in this Court holding that section 1442(a)(1) provides no jurisdiction for removal of this case.

Section 1442(a)(1), Title 28, United States Code, the federal officer removal statute provides that:

(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 pending:
(1) Any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office ...

The defendants’ argument that this case was properly removed is premised on the notion that “any agency” of the United States has a right under section 1442(a)(1) to remove a civil action pending in a state court any time it is sued in state court. However, this notion is not supported by the majority of the federal courts who have considered the question.

Here, if any cause of action exists, the United States, not the EPA, was the proper party to have been sued by the plaintiff. No officer of the United States or officer of a government agency was ever properly before the state court. The petition for removal shows on its face that removal was sought by the United States, not by a federal officer or any agency of the United States. Therefore, as a matter of fact, neither federal officer nor federal agency removed the case.

In addition, even if an agency of the United States had removed this case pursuant to section 1442(a)(1), this Court is in agreement with the courts that have found that section 1442(a)(1) cannot be read as conferring a right of removal on “any agency” of the United States. It has been usual to hold that the plain meaning of

[s]ection 1442(a)(1) confers the right of removal only upon officers of the United States and officers of any agency of the United States [and] that no “agency” of the United States has any right of removal under Section 1442(a)(1).

Brewer v. Department of Housing and Urban Dev., 508 F.Supp. 72, 74 (D.Ohio. 1980). See also, Lowe, 529 F.Supp. at 493-95, KCPO Employees Credit Union, 421 F.Supp. at 1330. See also, California v. Bozarth, 356 F.Supp. 667 (N.D.Cal.1973); Lance Int’l., Inc. v. Aetna Cas. & Sur. Co., 264 F.Supp. 349 (D.N.Y.1967). See generally, 1A Moore’s Federal Practice ¶ 0.164[1] at p. 301 n. 15 (1974 and 1980 Supp.) Section 1442(a)(1) is by its language unavailable to the EPA or the United States as authority for removal, since the EPA was sued only as an agency and no recovery is sought from individual officials. Lowe, 529 F.Supp. at 493.

The United States Supreme Court has discussed the reasons underlying the Court’s removal jurisdiction in actions involving officers of the United States or officers of agencies of the United States government. The Court stated:

Historically, removal under § 1442(a)(1) and its predecessor statutes was meant to ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties. The act of removal permits a trial upon the merits of the state-law question free from local interests or prejudice. It also enables the defendant to have the validity of his immunity defense adjudicated in a federal forum. For these reasons, this Court has held that the right of removal is absolute for conduct performed under color of federal office, and has insisted that the policy favoring removal “should not be frustrated by a narrow, grudging interpretation of § 1442(a)(1).” (Citation omitted).

Arizona v. Manypenny, 451 U.S. 232, 241-42, 101 S.Ct. 1657, 1664-65, 68 L.Ed.2d 58 (1981). The admonishment that the statute is not to be given a narrow interpretation is directed at construing what constitutes actions under the color of federal office, not directed at expanding the statute to allow removal by federal agencies. Lowe, 529 F.Supp. at 491.

“This makes sense, since Congress has already provided ample protection against tort suits [and contract suits] for its agencies and the entire government in the Federal Torts Claims Act, [the Tucker Act], and any other claims which could be brought in state court are barred by sovereign immunity.” Lowe, 529 F.Supp. at 494. On the other hand, without the 1442(a)(1) a federal officer acting under color of federal office might not be able to adjudicate his or her defenses in a federal court unless there existed other grounds for removal. Such is not the case with federal agencies. Other legislation aptly channels actions against agencies into federal forums.

The cases cited by the defendants Nebraska Testing and Bell in support of their contentions are distinguishable. The case of IMFC Professional, etc. was removed by Health and Human Services (HHS) after it intervened in the state court proceeding. HHS contractually stood in the shoes of a federal official [Aetna] who had been acting directly under the administrator of HHS. Id. at 155-56. That official could have removed the action under 28 U.S.C. § 1442. To the extent IMFC makes the bare statement, “the only prerequisite to removal of a civil action under § 1442 is that is be brought against a federal officer or agency,” if such language is construed to include the agency as an entity or as the alter ego of the United States, this Court simply disagrees. Id. at 156.

In the case of SS Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 31 (2nd Cir.1979), it was the Secretary of the United States Department of Housing and Urban Development that removed the action, not an agency. Likewise, Bushman v. Seiler, 755 F.2d 653 (8th Cir.1985), offers little support for the contention section 1442(a)(1) provides blanket removal for any federal agency sued in state court. From the brief facts recited, it appears that General American Life Insurance Company was allowed to remove the action to federal court pursuant to section 1442(a)(1) since it was a medicare carrier for the Department of Health and Human Services. 42 C.F.R. § 421.5(b) (1983) requires indemnification by the administrator of HHS. Bushman 655, n. 2. That action, again, was properly removed by an officer of an agency. Id. at 655. See also Group Health Inc. v. Blue Cross Ass’n, 587 F.Supp. 887, 891 (D.N.Y.1984) (HHS fiscal intermediary is a “federal officer” for removal under 28 U.S.C. § 1442(a)(1) (1982).

Granted, the IMFC case was cited by the Eighth Circuit in Bushman. However, it was cited for the proposition that retention of a case after the federal defendant was dismissed is proper in certain circumstances. Bushman at 655. It appears that the Eighth Circuit holds that jurisdiction can be retained if in fact federal removal was proper and federal law is determinative of the suit against the remaining defendants [emphasis added]. As already stated, because of special statutory provisions the administrator of HHS is the real party in interest in medicare carrier cases like IMFC and Bushman.

The cases certainly are distinguishable from the plaintiff, City of Alma, suing the EPA. The plaintiff sued the EPA, not some administrator or other official. Furthermore, and most importantly, in the case at bar the United States is the real party in interest if any federal party is a proper defendant. Additionally, once the EPA was dismissed, state law, not federal law, became determinative of the suit against defendants Bell and Nebraska Testing.

III.

In conclusion, removal under either 28 U.S.C. § 1442(a) or § 1442(a)(1) was inappropriate in this action. The jurisdiction of the federal district court is not perfected and the primary action must be remanded to the state court wherein it originated. 28 U.S.C. § 1447(c). Where, however, the state court has no jurisdiction over that part of the primary action involving the EPA, this Court has no power to remand but is obligated to dismiss the EPA outright. This the Court has already done (filing 10). Lowe, 529 F.Supp. at 497. See Areskog v. United States, 396 F.Supp. 834 (D.Conn.1975).

Furthermore, because this Court never had jurisdiction under a removal statute over the primary action, the United States was not properly impleaded under Fed.R. Civ.P. 14. Thus, the provision of 28 U.S.C. § 2675 that waives submitting claims against the United States for administrative consideration is inapplicable. No jurisdiction is conferred over the subject matter of the third-party complaint or defendant, the United States. Therefore, both the third-party complaint and the United States must be dismissed. For future reference, if defendants in the primary action wish to sue the United States such action must be brought exclusively in the proper federal court upon compliance with the requirements of the appropriate statutes waiving sovereign immunity and in compliance with administrative prerequisites to filing suit against the United States. See Kennelly, United States in Third-Party Actions in Certification Cases, 17 The Forum 556, 560-61 (1982). This Court is without jurisdiction to decide the motions for summary judgment of defendants Bell and Nebraska Testing (filings 50 and 51). Such motions must be resolved in the state court.

Accordingly,

IT IS ORDERED that the United States’ motion to dismiss (filing 58) the third-party complaint is granted for the reasons given above. The United States should be and hereby is dismissed from this lawsuit.

IT IS FURTHER ORDERED that this Court’s order (filing 15) finding this case was properly removed pursuant tp 28 U.S.C. § 1442(a)(1) should be and hereby is vacated.

IT IS FURTHER ORDERED that this Court’s order (filing 10) is reaffirmed. The defendant EPA was - properly dismissed from this lawsuit for want of subject matter jurisdiction.

IT IS FURTHER ORDERED that the entire remaining action should be and hereby is remanded to the District Court of Harlan County, Nebraska.

      . The third-party action may well be susceptible to a timely motion for summary judgment supported by the evidentiary matters permitted by Fed.R.Civ.P. 56. However, under the standards applicable in this Circuit, dismissal pursuant to Fed.R.Civ.P. 12(b)(6) is not appropriate. See, e.g., Jackson Sawmill Co. v. United States, 580 F.2d 302, 306 (8th Cir.1978), cert. denied, 439 U.S. 1070, 99 S.Ct. 839, 59 L.Ed.2d 35 (1979).

      . Jurisdiction over federal torts claims lies under 28 U.S.C. § 1346, which provides in relevant part:
      Subject to the provisions of Chapter 171 of this title, the district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to claimant in accordance with the law of the place where the act or omission occurred.
      28 U.S.C. § 1346(b) (emphasis supplied).

      . Jurisdiction over contract claims exceeding $10,000.00 lies exclusively in the Court of Claims under 28 U.S.C. § 1491 which provides in relevant part:
      The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States...
      28 U.S.C. § 1491.


author: EDWARD WEINFELD, District Judge.

text:
    SOUTHERN SEAS NAVIGATION LIMITED OF MONROVIA, as Owner of the MESSINIAKI FLOGA, Petitioner, v. PETROLEOS MEXICANOS OF MEXICO CITY as Charterer under a Texacotime 2 Charterparty dated June 6, 1981, Respondent.
    No. 84 Civ. 7195 (EW).
    United States District Court, S.D. New York.
    April 25, 1985.
    Walker & Corsa, New York City, for petitioner; Charles L. Trowbridge, Henry E. Billingsley, II, New York City, of counsel.
    Burlingham Underwood & Lord, New York City, for respondent; Terry L. Stoltz, Lance A. Warrick, New York City, of counsel.
   OPINION

EDWARD WEINFELD, District Judge.

Plaintiff, Southern Seas Navigation Limited of Monrovia (“Southern”), petitions this Court to confirm an arbitration award of equitable relief. Defendant, Petróleos Mexicanos of Mexico City (“Pemex”), opposes the motion on grounds that the arbitrators’ order was only an “interim” and not a “final” award; and, in addition, cross-moves to vacate the award as a product-of fraud.

On June 6, 1981, Southern chartered the vessel the Messiniaki Floga (“Floga”) to Pemex. Pemex claims it notified Southern of its intention to redeliver the Floga at the end of the contract period, but that Southern “began a series of machinations designed to postpone the redelivery of Floga as long as possible.” Based on claims arising from these delays, Pemex filed a Notice of Claim of Lien on Floga’s Liberian Registry in the amount of $2,000,000. Thereafter, various disputes arose between the parties, all of which were submitted to arbitration pursuant to the charter party entered into in 1981.

Among the disputes submitted to the arbitrators was Southern’s claim for equitable relief. Southern sought an order removing the Notice of Claim of Lien on grounds it was preventing it from consummating a transfer of Floga and three other vessels in a transaction vital to its continued financial viability. In response to Southern’s request, the arbitrators considered their power to grant the type of relief sought. As the panel put it, Southern’s request presented a situation similar to that a court faces with a motion for a preliminary injunction. Reserving decision on the question of its power to grant such relief, the arbitrators ordered hearings to determine whether, as Southern contended, Pemex’s claims, on which the Notice of Claim of Lien was based, were meritless.

Thereafter, the panel issued an “interim” award granting Southern at least partial relief. In their order, the arbitrators concluded that they had the power to grant equitable relief, stating: “This panel has anguished over the wisdom of granting interim relief. Judicial tribunals are more accustomed to segmented proceedings and the creation of flexible remedies. Case law, however, supports our authority as arbitrators to engage in equitable type relief.” Based upon the evidence adduced at the hearings, the panel found that Pemex’s claims in excess of $350,000 were not “colorable,” and accordingly granted Southern the right to a reduction in the Notice of Claim to that amount. In granting the sought for relief, the arbitrators expressly disavowed that the award was a disposition on the ultimate merits of either Southern’s or Pemex’s claims:

This ruling is not a final disposition on the merits of either party’s claims. The panel does not wish to suggest [Pemex’s] claim for hire during the period when Owner withheld the vessel is correct, nor do we wish to suggest that [Pemex], by producing additional proof, could not establish its claims which thus far do not appear likely to succeed on their merits.

It is this award that Southern seeks to confirm.

Pemex urges the Court not to confirm the award on grounds it is not “final,” but rather, as its title “Interim Ruling” suggests, only an intermediary step in an ongoing arbitral process. Pemex relies upon a decision of our Court of Appeals holding that, in the absence of a “final” award, a district court is without power to review the validity of arbitrators’ rulings in ongoing proceedings, and that in order “to be ‘final,’ an arbitration award must be intended by the arbitrators to be their complete determination of all claims submitted to them.” Applying these standards, Pemex concludes that the arbitrators’ own statement that the award was not intended to be a final disposition of the merits precludes this Court from confirming it.

Given the equitable relief granted, this Court cannot accept Pemex’s argument. This award is not a partial resolution of the parties’ claims as an intermediate step in an ongoing arbitral process but, in effect, a grant of a preliminary injunction. As noted above, the arbitrators themselves perceived the request in such terms.

To accept Pemex's argument, and preclude Southern from enforcing the award, would render meaningless the arbitrators’ power to grant such equitable relief. Pemex does not dispute that the arbitrators had the authority to reduce the Notice of Claim or eliminate it altogether upon a finding of irreparable harm. As our Court of Appeals has expressly stated, not only do arbitrators have traditional powers of equity, “[ujnder New York law [they] have power to fashion relief that a court might not properly grant.”

Just as a district court’s grant of a preliminary injunction is reviewable as a discrete and separate ruling apart from any decision on the merits, so too is an arbitration award granting similar equitable relief. No undue intrusion upon the arbitral process results from a finding that such an award is ripe for confirmation. Although such relief is to some extent dependent upon an appraisal of, it is nevertheless distinct from a determination on, the merits. For example, the arbitrators here expressly held that Pemex was free to offer evidence of claims in excess of $350,-000 upon the arbitration proper; and indeed, they also made it clear that the $350,-000 “cap” was subject to reduction upon further consideration.

That the arbitrators labeled their decision an “interim” award cannot overcome the fact that if an arbitral award of equitable relief based upon a finding of irreparable harm is to have any meaning at all, the parties must be capable of enforcing or vacating it at the time it is made. Such an award is not “interim” in the sense of being an “intermediate” step toward a further end. Rather, it is an end in itself, for its very purpose is to clarify the parties’ rights in the “interim” period pending a final decision on the merits. The only meaningful point at which such an award may be enforced is when it is made, rather than after the arbitrators have completely concluded consideration of all the parties’ claims.

These same considerations supported a finding that an “interim” award of equitable relief was ripe for confirmation in Sperry International Trade, Inc. v. Government of Israel. There, the Court rejected arguments that an arbitrators’ order to place a disputed $15 million dollar letter of credit in escrow pending a decision on the merits of the parties’ claims was not final. Instead, it found that the award was severable from the merits and because, by its nature, it required “affirmative action,” the award would be rendered a meaningless exercise of the arbitrators’ powers if left unenforced.

Just as in Sperry, the very purpose of the arbitrators’ award here — reducing the Notice of Claim of Lien upon a showing of irreparable harm — would be frustrated if the parties’ ability to enforce it were left until after a complete resolution of the merits. Accordingly, the Court finds that the arbitrators’ “Interim Ruling” is ripe for confirmation.

Pemex argues that even if the award is final, it should be vacated pursuant to 9 U.S.C. § 10 as a product of fraud. It claims that Southern misrepresented the necessity of the award, because at the time the arbitrators issued their written decision, Southern had already transferred the vessel. Southern concedes that it transferred the Floga prior to the release of the arbitrators’ written decision, but claims it only did so upon oral notice of the arbitrators’ ruling communicated to it and Pemex by telephone two months prior to the issuance of the written decision.

Shortly before this motion was argued orally, Pemex presented the same claim of misrepresentation and fraud to the arbitrators who declined to vacate the award. Since Pemex’s argument hinges on the time when the arbitrators communicated their decision to the parties, the Court finds no basis to overturn the arbitrators’ denial of Pemex’s claim of fraud. Accordingly, the petition to confirm the arbitrators’ “Interim Ruling” is granted. Each party shall bear its own costs upon this petition.

So ordered.

      . Michaels v. Mariforum Shipping, S.A., 624 F.2d 411, 413, 414 (2d Cir.1980).

      . Cf. Michaels v. Mariforum Shipping, S.A, 624 F.2d 411 (2d Cir.1980) (decision by arbitrators on liability leaves some counterclaims and all claims undecided); Hunt v. Mobil Oil Corp., 557 F.Supp. 368, 374-75 (S.D.N.Y.) (action to vacate premature; not all claims or damages decided by arbitrators), aff’d without opinion, 742 F.2d 1438 (2d Cir.1983).

      . Sperry Int’l Trade, Inc. v. Government of Israel, 689 F.2d 301, 306 (2d Cir.1982).

      . See 28 U.S.C. § 1292(a)(1) (1982); see also lacobson & Co., Inc. v. Armstrong Cork Co., 416 F.Supp. 564, 570 (S.D.N.Y.1976), aff'd, 548 F.2d 438 (2d Cir.1977).

      . Our Court of Appeals has expressed disapproval of review by district courts of interlocutory orders involving only some of the claims submitted to arbitration even where those claims are "separate and distinct." Michaels v. Mariforum Shipping, S.A, 624 F.2d 411, 415 n. 5 (2d Cir.1980); see Hunt v. Mobil Oil Corp., 557 F.Supp. 368, 375 n. 22 (S.D.N.Y.), aff’d without opinion, 742 F.2d 1438 (2d Cir.1983). Faced with a case involving equitable relief pending arbitration, however, the Court did not find that the district court lacked power to confirm the award. Sperry Int'l Trade, Inc. v. Government of Israel, 689 F.2d 301, 304 n. 3 (2d Cir.1982).

      . 532 F.Supp. 901 (S.D.N.Y.), aff’d, 689 F.2d 301 (2d Cir.1982).

      . Id. at 909; see Island Creek Coal Sales Co. v. City of Gainesville, 729 F.2d 1046, 1049 (6th Cir.1984) (affirming confirmation of award requiring City to perform disputed contract during pendency of the arbitration proceedings); see also Puerto Rico Maritime Shipping Authority v. Star Lines Ltd., 454 F.Supp. 368, 375 (S.D.N.Y.1978) (confirming award requiring an accounting).