Plaquemines Parish v. BP America Prod
U.S. Court of Appeals for the Fifth Circuit
Plaquemines Parish v. BP America Prod, 103 F.4th 324 (5th Cir. 2024)
Plaquemines Parish v. BP America Prod
Opinion
Case: 23-30294 Document: 192-1 Page: 1 Date Filed: 05/29/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
May 29, 2024
No. 23-30294
____________ Lyle W. Cayce
Clerk
Plaquemines Parish,
Plaintiff—Appellee,
Louisiana State; Louisiana Department of Natural
Resources, Office of Coastal Management, Thomas F. Harris, Secretary,
Intervenors—Appellees,
versus
BP America Production Company, As Successor in Interest to
Amoco Production Company; Burlington Resources Oil
& Gas Company, L.P.; Chevron USA, Incorporated, As
Successor in Interest to Chevron Oil Company, The California
Company and Gulf Oil Corporation; Exxon Mobil
Corporation, As Successor in Interest to The Superior Oil
Company; Shell Offshore, Incorporated; Shell Oil
Company; Chevron U.S.A. Holdings, Incorporated, As
Successor in Interest to Texaco E&P Incorporated. and Texaco
Incorporated; Texas Company; Chevron Pipe Line
Company, As Successor in Interest to Gulf Refining Company,
Defendants—Appellants,
consolidated with
_____________
No. 23-30422
_____________
Case: 23-30294 Document: 192-1 Page: 2 Date Filed: 05/29/2024
Parish of Cameron,
Plaintiff—Appellee,
State of Louisiana, ex rel, on behalf of Jeff Landry; State of
Louisiana, on behalf of Louisiana Department of Natural Resources, on
behalf of Office of Coastal Management, on behalf of Thomas F. Harris,
Intervenor Plaintiffs—Appellees,
versus
BP America Production Company; Chevron U.S.A.
Incorporated, own capacity & as successor in interest, on behalf of
California Company; Shell Oil Company; SWEPI, L.P.,
Defendants—Appellants.
______________________________
Appeals from the United States District Courts
for the Eastern and Western Districts of Louisiana
USDC Nos. 2:18-CV-5256, 2:18-CV-688
______________________________
Before Davis, Engelhardt, and Oldham, Circuit Judges.
W. Eugene Davis, Circuit Judge:
This consolidated appeal concerns whether lawsuits commenced in
state court by Louisiana parishes against various oil and gas companies for
their alleged state-law violations give rise to federal jurisdiction. The
companies removed these cases to federal court pursuant to the federal
officer removal statute, 28 U.S.C. § 1442(a)(1), asserting that they satisfy
each of the statute’s requirements in light of their refining contracts with the
government during World War II. The district courts granted the parishes’
motions to remand these cases to state court after concluding that the oil
companies did not meet their burden of establishing federal jurisdiction. The
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oil companies now appeal those decisions. Because we conclude these cases
were not properly removed under the federal officer removal statute, we
AFFIRM the district courts’ orders remanding these cases to state court.
I.
This litigation has a long procedural history, including two prior
appeals to this Court. It originated in 2013 when several Louisiana coastal
parishes, joined by the Louisiana Attorney General and the Louisiana
Secretary of Natural Resources, filed forty-two lawsuits against various oil
and gas companies in state court alleging violations of Louisiana’s State and
Local Coastal Resources Management Act of 1978 (“SLCRMA”).
SLCRMA took effect in 1980, and requires parties engaging in certain
“uses” within Louisiana’s “coastal zone” to comply with a permitting
scheme. 1 It defines “use” to include any “activity within the coastal zone
which has a direct and significant impact on coastal waters,” and defines
“Coastal Zone” to include “the coastal waters and adjacent shorelands,”
defined by Louisiana law, that “are strongly influenced by each other.” 2 As
relevant here, SLCRMA creates a cause of action against parties that violate
or fail to obtain the requisite coastal use permit. 3 However, there are several
exemptions to SLCRMA’s permitting requirement, including a “grandfather
clause,” which states that: “[i]ndividual specific uses legally commenced or
established prior to the effective date of the coastal use permit program shall
not require a coastal use permit.” 4
_____________________
1
La. Stat. Ann. § 49:214.30(A)(1).
2
Id. § 49:214.23(5), (13).
3
Id. § 214.36 (D)–(E).
4
Id. § 214.34(C)(2).
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In each lawsuit, the coastal parishes sued various oil companies for
their oil and gas exploration, production, and transportation operations in a
different “Operational Area” 5 of the Louisiana coast. The parishes’
“materially identical” petitions “allege that the companies violated
SLCRMA by failing to obtain necessary coastal use permits or by violating
the terms of the permits they did obtain.” 6 Additionally, the parishes
contend that the companies’ pre-SLCRMA activities were not “lawfully
commenced” and therefore do not fall within the grandfather clause
exemption which would excuse such noncompliance. 7 The parishes seek
damages under SLCRMA, including for “restoration and remediation costs;
actual restoration of disturbed areas to their original condition; costs
necessary to clear, revegetate, detoxify and otherwise restore the affected
portions of the . . . Coastal Zone as near as practicable to its original
condition.”
The oil companies have attempted to remove these cases to federal
court on three separate occasions. 8 First, in 2013, the companies removed
these cases on the grounds of federal question, general maritime law, the
Outer Continental Shelf Lands Act, and diversity jurisdiction. The federal
_____________________
5
“The term ‘Operational Area’ is used throughout the plaintiffs’ petition to
describe the geographic extent of the area within which the complained-of operations and
activities at issue in this action occurred.” Par. of Plaquemines v. Northcoast Oil Co., No.
18-5228, 2023 WL 2986371, at *1 (E.D. La. Apr. 18, 2023).
6
Par. of Plaquemines v. Chevron USA, Inc. (Plaquemines I), 7 F.4th 362, 366 (5th Cir.
2021).
7
Id.
8
“A defendant who fails in an attempt to remove on the initial pleadings can file a
second removal petition when subsequent pleadings or events reveal a new and different ground
for removal.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492–93 (5th Cir. 1996)
(emphasis in original) (internal quotation marks and citation omitted).
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district courts rejected all four jurisdictional bases and remanded the cases to
state court. 9
After returning to state court, the oil companies filed motions seeking
clarification about the specific state law violations underlying the parishes’
lawsuits. 10 In response, in April of 2018, Plaquemines Parish issued an expert
report—the Rozel report— in one of the pending cases, and certified that the
report “represented the position of the Louisiana Department of Natural
Resources in all forty-two cases.” 11 The Rozel report “triggered” the
potential application of SLCRMA’s grandfather clause by placing at issue the
companies’ pre-SLCRMA conduct, including conduct that occurred during
World War II. 12 Specifically, the Rozel report opined that the oil companies’
pre-1980 production activities were not “lawfully commenced or
established” for purposes of the grandfather clause because such activities
did not begin in “good faith” by departing from prudent industry practices. 13
According to the oil companies, the Rozel report “unveiled a new legal
theory,” which they relied on to remove these cases to the Eastern and
Western Districts of Louisiana, this time alleging federal question and federal
officer jurisdiction. 14 The parishes again moved to remand the cases to state
court. The Eastern District of Louisiana designated Plaquemines Parish v.
_____________________
9
See, e.g., Par. of Plaquemines v. Total Petrochemical & Refin. USA, Inc., 64 F. Supp.
3d 872, 906 (E.D. La. 2014).
10
Par. of Plaquemines v. Riverwood Prod. Co. (Riverwood I), No. 18-5217, 2019 WL
2271118, at *2 (E.D. La. May 28, 2018), aff’d in part, rev’d in part and remanded sub nom. Plaquemines I,7 F.4th 362
.
11
Plaquemines I, 7 F.4th at 366–67.
12
Northcoast, 2023 WL 2986371, at *1.
13
Plaquemines I, 7 F.4th at 367.
14
Id.
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Riverwood Production Co. as the lead case and stayed the other cases pending
a decision in Riverwood. The Western District of Louisiana adopted a similar
approach and designated Cameron Parish v. Auster Oil & Gas, Inc., as the lead
case in that district.15
The courts in both Riverwood I and Auster ultimately granted the
parishes’ remand motions after concluding that neither federal question nor
federal officer jurisdiction existed. 16 The oil companies appealed both
decisions, and we consolidated the cases on appeal. In Plaquemines I, this
Court affirmed the district court decisions on federal question jurisdiction,
but remanded with respect to federal officer jurisdiction in light of an
intervening en banc decision, Latiolais v. Huntington Ingalls, Inc., 17 which
altered our federal officer removal precedent. 18
On remand, the district court in Riverwood II, after considering the
impact of Latiolais, again held there was no federal officer jurisdiction. The
court first acknowledged that under Latiolais, the “new” federal officer
removal test requires a defendant to show: “(1) it has asserted a colorable
federal defense, (2) it is a ‘person’ within the meaning of the statute, (3) that
has acted pursuant to a federal officer’s directions, and (4) the charged
_____________________
15
Northcoast, 2023 WL 2986371, at *2.
16
Riverwood I, 2019 WL 2271118, at *8–22; Par. of Cameron v. Auster Oil & Gas Inc.,420 F. Supp. 3d 532
, 540-50 (W.D. La. 2019), aff’d in part, rev’d in part and remanded sub nom. Plaquemines I,7 F.4th 362
.
17
951 F.3d 286(5th Cir. 2020) (en banc). As explained in greater detail below, in Latiolais, we expanded the scope of the fourth prong of the federal officer removal test. Specifically, we replaced the “causal nexus” test with the broader “connected or associated with” test. Under the revised fourth element, a removing defendant must show that the conduct challenged in a plaintiff’s complaint is “connected or associated with” acts the defendant has taken under color of federal office.Id.
at 292–96.
18
Plaquemines I, 7 F.4th at 373–75.
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conduct is connected or associated with an act pursuant to a federal officer’s
directions.” 19 The court then proceeded to analyze whether the oil
companies had met these four prongs, ultimately concluding they could
establish all but the third “acting under” prong, which was unaltered by
Latiolais. 20
The oil companies again appealed, and this Court affirmed. 21 In
Plaquemines II, we held that the companies had failed to satisfy the “acting
under” prong of federal officer removal because their “compli[ance] with
federal regulations or cooperat[ion] with federal agencies” was insufficient
to bring a private action within § 1442(a)(1). 22 The Plaquemines II opinion
concluded by stating: “As the district court noted, the ‘refineries, who had
federal contracts and acted pursuant to those contracts, can likely remove
[under § 1442], but that does not extend to [parties] not under that
contractual direction.” 23 The Supreme Court denied certiorari in
Plaquemines II on February 27, 2023. 24
Following Plaquemines II, the district court in Auster again remanded
that case to state court because the oil companies satisfied neither the “acting
_____________________
19
Par. of Plaquemines v. Riverwood Prod. Co. (Riverwood II), No. 18-5217, 2022 WL
101401, at *4 (E.D. La. Jan. 11, 2022) (quoting Latiolais, 951 F.3d at 296).
20
Id. at *6–10.
21
Plaquemines Par. v. Chevron USA, Inc. (Plaquemines II), No. 22-30055, 2022 WL
9914869, at *4 (5th Cir. Oct. 17, 2022) (per curiam) (unpublished).
22
Id. at *3.
23
Id.at *4 (quoting Riverwood II,2022 WL 101401
, at *7).
24
Chevron USA, Inc. v. Plaquemines Par., La., 143 S. Ct. 991 (2023) (mem.).
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under” nor the “connected or associated with” requirements for federal
officer removal. 25
This background brings us to the present consolidated appeal which
involves two cases that were stayed during the pendency of the above
litigation. In the appeal from the Eastern District of Louisiana—Plaquemines
Parish v. BP—the district court reopened the case in January 2023. The next
day, Plaintiffs, Plaquemines Parish and the State of Louisiana, filed a motion
to remand, arguing that the case was “indistinguishable from the relevant
jurisdictional[,] factual[,] and legal issues in Riverwood.”
Defendants, Chevron U.S.A., Inc. (“Chevron”) et al., opposed the
motion, arguing that the case was distinguishable from Riverwood II because
two predecessors to Chevron—The Texas Company and Gulf Oil Company
(“Gulf”)—were vertically integrated oil companies that produced crude oil
in the Operational Areas and used some of that crude at their refineries to
comply with their World War II-era contracts with the government. Thus,
unlike in Riverwood II, Plaquemines II, and Auster, where the oil companies
could not show they were “acting under” a federal officer, Defendants here
were federal contractors. In support of their new removal theory, Defendants
relied on the language in Plaquemines II that “refineries, who had federal
contracts and acted pursuant to those contracts, can likely remove [under
§ 1442].” 26
The district court granted Plaintiffs’ motion and remanded the case
to state court for the same reasons it gave in Parish of Plaquemines v.
Northcoast Oil Co. In Northcoast, the district court held that Defendants’
_____________________
25
Par. of Cameron v. Auster Oil & Gas Inc., No. 18-677, 2022 WL 17852581, at *3–
10 (W.D. La. Dec. 22, 2022).
26
2022 WL 9914869, at *4 (quoting Riverwood II,2022 WL 101401
, at *7).
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“refinery-contract-based theory” satisfied neither the “acting under” nor
the “connected or associated with” requirements for federal officer
removal. 27 Specifically, the court emphasized that although Defendants may
have been “acting under” a federal officer in the refinery context, the
relevant refinery contracts “lack[ed] any connection” to the oil production
activities at issue in the lawsuit. 28 The court stayed its remand order pending
the resolution of this appeal.
The second case in this consolidated appeal—Parish of Cameron v.
BP—is from the Western District of Louisiana. In that case, the district court
granted Plaintiff Parish of Cameron’s motion to remand for the same reasons
the court gave in Auster. Defendants, Shell USA, Inc. (“Shell”) et al., filed
a motion for reconsideration, raising the same refinery-contract-based theory
for removal. In that case, Defendant Shell had refinery contracts with the
government during World War II, and its refineries used some of the crude
oil Shell produced from the Black Bayou Field in Cameron Parish to fulfill
those contracts. The district court denied Defendants’ motion for
reconsideration, concluding that Shell was unable to show it was “acting
under” a federal officer, and that the oil production activities at issue in the
lawsuit were not related to any refinery activities taken pursuant to Shell’s
federal contracts. The court also stayed its remand order pending the
resolution of this appeal.
Defendants timely appealed both remand orders. We designated
Plaquemines Parish v. BP as the lead case among the related “refinery cases”
pending before us from the Eastern District. And we consolidated
_____________________
27
2023 WL 2986371, at *4, 9–11.
28
Id. at *9–10.
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Plaquemines Parish v. BP with Parish of Cameron v. BP, 29 the only refinery case
appealed from the Western District.
II.
“An order remanding a case to state court is ‘not generally
reviewable.’” 30 However, an order remanding a case under the federal
officer removal statute is “reviewable by appeal or otherwise.” 31 We review
a district court’s remand order de novo. 32 But we review the “district court’s
factual determinations made in the process of determining jurisdiction . . . for
clear error.” 33
_____________________
29
After oral argument, Defendants, BP American Production Company (“BP”)
and Shell, informed the Court that they have reached a settlement with Cameron Parish
and therefore withdraw their appeal in Parish of Cameron v. BP, No. 23-30422. BP
additionally noted that it remained a party in the appeal from the Eastern District of
Louisiana, Plaquemines Parish v. BP, No. 23-30294. Defendant Chevron also notified the
Court that it has not settled nor intends to settle either appeal. Although Defendants’
federal officer removal theory in the Parish of Cameron appeal is based on Shell’s federal
contracts, Shell’s withdrawal from the appeal does not deprive this Court of jurisdiction.
See Manguno v. Prudential Prop. & Cas. Ins. Co., 276 F.3d 720, 723(5th Cir. 2002) (“To determine whether jurisdiction is present for removal, we consider the claims in the state court petition as they existed at the time of removal.” (citation omitted)). Thus, “[o]ur analysis proceeds as if the Federal Officer Defendants had not been dismissed.” Bartel v. Alcoa S.S. Co.,805 F.3d 169
, 172 n.2 (5th Cir. 2015), overruled on other grounds by Latiolais,951 F.3d 286
(“These Federal Officer Defendants have since been dismissed from the
action . . . [and although] the claims against them gave rise to potential removability we now
consider, our analysis is unaffected by the dismissals.”).
30
Plaquemines I, 7 F.4th at 367 (quoting Latiolais, 951 F.3d at 290).
31
28 U.S.C. § 1447(d).
32
Latiolais, 951 F.3d at 290 (citation omitted).
33
U.S. Fire Ins. Co. v. Villegas, 242 F.3d 279, 283 (5th Cir. 2001) (citation omitted).
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Unlike other removal doctrines, “federal officer removal is not narrow
or limited.” 34 However, it remains the removing party’s burden to establish
federal jurisdiction exists. 35 And if the removing party establishes that one
claim satisfies the requirements under § 1442(a)(1), the entire case is deemed
removable. 36
III.
Defendants removed these cases under § 1442(a)(1), which provides
federal jurisdiction over state court actions filed against “any officer (or any
person acting under that officer) of the United States or of an agency thereof,
in an official or individual capacity, for or relating to any act under color of
such office.” 37 The statute’s “basic purpose” is to protect the federal
government from interference with its operations that would ensue if a state
were able to arrest federal officers or agents acting within the scope of their
authority and bring them to trial in state court on state-law charges. 38
_____________________
34
Butler v. Coast Elec. Power Ass’n, 926 F.3d 190, 195(5th Cir. 2019) (internal quotation marks and citation omitted); see also Williams v. Lockheed Martin Corp.,990 F.3d 852
, 859 (5th Cir. 2021) (“[T]he federal officer removal statute is to be broadly construed
in favor of a federal forum.” (internal quotation marks and citation omitted)).
35
Butler, 926 F.3d at 195.
36
Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 606 (5th Cir. 2018).
37
28 U.S.C. § 1442(a)(1).
38
Watson v. Philip Morris Cos., 551 U.S. 142, 150(2007) (internal quotation marks and citation omitted); see also Glenn v. Tyson Foods, Inc.,40 F.4th 230
, 232 (5th Cir. 2022) (“While the scope of federal officer removal has broadened, its purpose remains the same: to give those who carry out federal policy a more favorable forum than they might find in state court.” (citation omitted)); Elizabeth M. Johnson, Removal of Suits Against Federal Officers: Does the Malfeasant Mailman Merit a Federal Forum?,88 Colum. L. Rev. 1098
,
1098–99 (1988) (“Congress enacted these statutes in response to conflicts between states
and the federal government to protect officers carrying out controversial federal
policies.”).
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In order to remove a case under § 1442(a)(1), a private defendant must
show that: “(1) it has asserted a colorable federal defense, (2) it is a ‘person’
within the meaning of the statute, (3) that has acted pursuant to a federal
officer’s directions, and (4) the charged conduct is connected or associated
with an act pursuant to a federal officer’s directions.” 39 Here, Plaintiffs do
not dispute that Defendants are “person[s]” within the meaning of
§ 1442(a)(1) and therefore satisfy the second requirement for removal.40
Instead, Plaintiffs argue that Defendants are unable to meet the remaining
three elements. Because the district courts held that Defendants failed to
establish the third and fourth elements, we begin our analysis with these two
elements.
A.
Private persons, including corporations, may invoke the federal officer
removal statute only if they were “acting under” a federal officer or agency.
The phrase “acting under” describes “the triggering relationship between a
private entity and a federal officer.” 41 In describing the “acting under”
inquiry, the Supreme Court in Watson acknowledged that it is a “broad”
phrase that must be “liberally construed,” but is “not limitless.” 42
In cases involving a private party, the “acting under” relationship
“must involve an effort to assist, or to help carry out, the duties or tasks of the
federal superior.” 43 And although a removing defendant “need not show that
_____________________
39
Latiolais, 951 F.3d at 296.
40
See Butler, 926 F.3d at 201 (acknowledging that “the removal statute applies to
private persons and corporate entities” (citations omitted)).
41
Watson, 551 U.S. at 149.
42
Id. at 147 (internal quotation marks and citations omitted).
43
Id. at 152 (emphasis in original) (citation omitted).
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its alleged conduct was precisely dictated by a federal officer’s directive,” it
must show that a federal officer exerted “a sufficient level of subjection,
guidance, or control over the private actor.” 44 However, “the help or
assistance necessary to bring a private person within the scope of the statute
does not include simply complying with the law.” 45 This is true “even if the
regulation is highly detailed and even if the private firm’s activities are highly
supervised and monitored.” 46
Here, the district courts held that Defendants could not satisfy the
“acting under” requirement. Both courts concluded that although
Defendants may have acted under a federal officer in refining petroleum
products, they were unable to show they acted under a federal officer in
producing crude oil. 47 We disagree.
A private party “working under a federal contract to produce an item
the government needed” is the “archetypal case” of a defendant “acting
under” a federal officer. 48 For example, in Watson, the Supreme Court cited
_____________________
44
St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. & Indem. Co. (St. Charles
II), 990 F.3d 447, 454–55 (5th Cir. 2021) (internal quotation marks and citations omitted).
45
Watson, 551 U.S. at 152 (emphasis in original).
46
Id. at 153.
47
Northcoast, 2023 WL 2986371, at *8–10 (holding that Defendants failed to satisfy
the “acting under” prong “by relying on federal directives governing conduct (refining)
that is not implicated by the plaintiffs’ lawsuit”).
48
Williams, 990F.3d at 859; see, e.g., Latiolais, 951 F.3d at 296 (holding that the removing defendant “performed the refurbishment and, allegedly, the installation of asbestos pursuant to directions of the U.S. Navy” and therefore “act[ed] under color of federal office”); St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. & Indem. Co. (St. Charles I),935 F.3d 352, 356
(5th Cir. 2019) (analyzing the terms of the defendant’s contract with the Office of Personnel Management to conclude that the federal agency “enjoys a strong level of guidance and control over” the defendant); Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc.,25 F.4th 1238
, 1253 (10th Cir. 2022)
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with approval this Court’s decision in Winters v. Diamond Shamrock Chemical
Co., 49 wherein we held that Dow Chemical, a federal contractor, was “acting
under” a federal officer when it manufactured Agent Orange, a product the
government used during the Vietnam War. 50 Like Dow Chemical,
Defendants here were federal contractors that refined a product—100-
octane aviation gasoline (“avgas”)—that the government needed to fight in
World War II. And like Dow Chemical’s contract with the Department of
Defense, the terms of Defendants’ federal contracts vested the government
with control over the size and manufacturing capacity of their refineries. 51
Accordingly, Defendants have shown that they had the necessary
relationship with the government to satisfy the “acting under” requirement.
The district courts came to the opposite conclusion by requiring
Defendants to show not only that they “act[ed] under” a federal officer, but
also that they acted pursuant to federal directives when they engaged in the
conduct giving rise to Plaintiffs’ suits. But such a requirement impermissibly
conflates the “distinct” “acting under” and “connected or associated with”
elements of the federal officer removal test. 52 Specifically, it is inconsistent
_____________________
(emphasizing that a contract for “[w]artime production is the paradigmatic example for
this special [acting under] relationship”).
49
149 F.3d 387(5th Cir. 1998), overruled on other grounds by Latiolais,951 F.3d 286
.
50
Watson, 551 U.S. at 153–54 (citing Winters, 149 F.3d at 398-99).
51
See infra Part III.B.2; Winters, 149 F.3d at 398–99 (detailing the government’s
control over Dow Chemical’s production of Agent Orange).
52
See St. Charles II, 990 F.3d at 454 (emphasizing that although “the ‘acting under’
and ‘connection’ elements may often ride in tandem toward the same result, they are
distinct”); see also Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir. 2018) (explaining that
the “acting under color of federal authority requirement . . . is distinct from the acting
under requirement in the same way a bona fide federal officer could not remove a trespass
suit that occurred while he was taking out the garbage” (internal quotation marks and
citation omitted)).
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with the fact that “a defendant might be ‘acting under’ a federal officer, while
at the same time the specific conduct at issue may not be ‘connected or
associated with an act pursuant to the federal officer’s directions.’” 53 Thus,
the district courts erred in holding that Defendants did not satisfy the “acting
under” element because their federal contracts did not pertain to the oil
production activities challenged by Plaintiffs’ lawsuits.
B.
Under the fourth element of the federal officer removal test,
“[s]ubject to the other requirements of section 1442(a), any civil action that
is connected or associated with an act under color of federal office may be
removed.” 54 In other words, it is not enough for Defendants to have “act[ed]
under” a federal officer if those acts were unrelated to the activities
challenged in Plaintiffs’ complaints.
In 2011, Congress amended the federal officer removal statute to
expand the types of cases that can be removed from just cases “for” an act
under color of federal office to include cases “for or relating to” such
actions. 55 Despite the 2011 amendment, this Court continued to require
removing defendants to show “that a causal nexus exists between the
defendants’ actions under color of federal office and the plaintiff’s claims.” 56
In 2020, the Court’s en banc decision in Latiolais brought our case law into
compliance with the amended statute by abandoning the “causal nexus” test
and replacing it with the “connected or associated with” test, which requires
_____________________
53
St. Charles II, 990 F.3d at 454.
54
Latiolais, 951 F.3d at 296.
55
Id. at 291-92 (emphasis added) (quoting 28 U.S.C. § 1442(a)); Removal Clarification Act of 2011,Pub. L. No. 112-51, § 2
(b)(1)(A),125 Stat. 545
.
56
Latiolais, 951 F.3d at 291 (quoting Winters, 149 F.3d at 398).
15
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a defendant to show that “the charged conduct is connected or associated
with an act pursuant to a federal officer’s directions.” 57 In adopting this new
test, we noted that Congress broadened the scope of actions removable under
§ 1442(a)(1) given that the ordinary meaning of the phrase “relating to” is
“a broad one” that normally means “to stand in some relation; to have
bearing or concern; to pertain; refer; to bring into association with or
connection with.” 58
Our application of the “connected or associated with” element in
Latiolais demonstrates the expanded scope of this new test. In Latiolais, the
plaintiff sued Avondale in state court alleging Avondale had negligently failed
to warn him about the hazards of asbestos or provide him with adequate
safety equipment during the refurbishment of a naval vessel. 59 Avondale
removed the suit to federal court under § 1442(a)(1), asserting that its
contracts with the Navy to build and refurbish naval vessels required
Avondale to use asbestos for thermal insulation. 60 The district court
remanded the case after finding the old “causal nexus” test was not satisfied
because there was no evidence that federal officers controlled Avondale’s
safety practices. After taking the case en banc, we reversed, holding that
under the revised fourth element, removal was proper because Latiolais’s
negligence claims were “connected with” Avondale’s “installation of
asbestos pursuant to directions of the U.S. Navy.” 61
_____________________
57
See id. at 296 (overruling cases that “erroneously relied on a ‘causal nexus’ test
after Congress amended section 1442(a) to add ‘relating to’”).
58
Id. at 292 (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383
(1992)).
59
Id. at 289–90.
60
Id.
61
Id. at 296.
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In this appeal, in order to determine whether Defendants have
satisfied the fourth element of federal officer removal under Latiolais, we
must first identify the conduct challenged in Plaintiffs’ complaints and the
relevant federal directives in Defendants’ refinery contracts. We then turn
to the question of whether the relationship between the two is sufficient to
meet the “connected or associated with” test.
1.
The parties dispute which production activities Plaintiffs challenge in
their complaints. As explained above, Plaintiffs assert that SLCRMA’s
grandfather clause does not excuse Defendants’ noncompliance with the
state-law permitting scheme because Defendants’ oil production activities
were not “lawfully commenced or established.” In Plaquemines I, we
identified the following ways in which Plaintiffs’ Rozel report alleged that
Defendants departed from prudent industry practices before 1980: “by
dredging canals (instead of building overland roads), by using vertical drilling
(instead of directional drilling), by using earthen pits at well heads (instead of
steel tanks), by extracting too much oil, and by not building saltwater
reinjection wells.” 62
In defining the specific challenged conduct here, Defendants rely on
Plaquemines I’s summary of the Rozel report and, in particular, the statement
that they “extracted too much oil.” Based on this language, Defendants
assert that the gravamen of Plaintiffs’ complaints is that they extracted too
much oil too quickly during World War II. Plaintiffs take issue with
Defendants’ (and by extension Plaquemines I’s) characterization of the
challenged conduct, asserting that neither their complaints nor the Rozel
_____________________
62
Plaquemines I, 7 F.4th at 367.
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report say that Defendants extracted crude oil at overly high production
rates.
As identified by the district courts, Plaintiffs’ complaints, read in
conjunction with the Rozel report, target Defendants’ oil production and
exploration practices. Plaintiffs do not simply challenge the rate at which
Defendants extracted oil from the Operational Areas. To be sure,
Defendants have presented evidence, which we credit at this stage, 63 that
adopting one of Plaintiffs’ preferred production methods—the use of
directional drilling instead of vertical drilling—would have slowed their
production rates during World War II. But Defendants sole focus on the use
of vertical drilling and related rate-of-production argument leads them to
define the challenged conduct too narrowly by ignoring the other production
and exploration practices challenged by Plaintiffs, such as the use of dredged
canals and earthen pits, the spacing of wells, and the lack of saltwater
reinjection wells. Thus, as properly defined, the challenged conduct here
pertains to Defendants’ exploration and production activities, which
indirectly include the rate at which they extracted crude oil.
2.
In identifying the relevant federal directives, Defendants have
produced several contracts that Shell and two predecessors of Chevron
entered into with the Defense Supplies Corporation (“DSC”), a federal
agency. As it pertains to Chevron’s predecessors, both The Texas Company
and Gulf contracted with DSC in 1942 to manufacture 100-octane avgas at
_____________________
63
Louisiana v. Sparks, 978 F.2d 226, 232(5th Cir. 1992); see also Cnty. Board of Arlington Cnty., Va. v. Express Scripts Pharmacy, Inc.,996 F.3d 243
, 256 (4th Cir. 2021)
(“Generally, ‘[w]e credit Defendants’ theory of the case when determining whether’ there
is such a connection or association . . . ‘between the act in question and the federal office.’”
(citations omitted)).
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their Port Arthur, Texas, refineries. The Texas Company’s 1942 contract
indicated that its Port Arthur refinery could produce 2,940 barrels of 100-
octane avgas per day, but that it was “willing to expand its facilities” to
enable production of 6,750 barrels of 100-octane avgas per day. The DSC
agreed to loan The Texas Company $5.5 million to finance the expansion of
the Port Arthur refinery.
Once the Port Arthur refinery expansion was complete, DSC
contracted to “buy and receive” 5,900 barrels per day of 100-octane avgas
for one year “in accordance with” the specifications attached to the contract
and “any other specifications which by mutual agreement shall be attached
as an addendum.” DSC also had the option to purchase additional quantities
of avgas that The Texas Company had not contracted to sell to other parties.
The Texas Company and DSC signed two subsequent contracts modifying
the terms of the original contract to account for further expansions to the Port
Arthur refinery and its increased refinery capacity.
Similarly, Gulf’s 1942 contract acknowledged that its Port Arthur
refinery was “currently expanding its facilities,” which would increase
production to 4,836 or 5,667 barrels per day, depending on the specifications.
The contract called for Gulf to further expand its refinery to increase
production to 8,739 or 9,969 barrels per day, depending on the specifications.
DSC agreed to make advance payments to Gulf, up to $9.825 million, to help
finance this expansion. Throughout Gulf’s expansion, the contract specified
that DSC would purchase increasing “minimum quantit[ies]” of avgas. The
contract also set forth the relevant prices, specifications, and minimum
quantities for these purchases.
Lastly, Defendant Shell asserts that it entered into at least 120
contracts with the government during World War II. In particular, Shell
contracted with DSC in October 1942 to produce 100-octane avgas at its
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Houston and Norco refineries “in accordance with” the specifications
attached to the contract. The contract indicated that production at Shell’s
“Norco, Louisiana refinery comprises aviation alkylate and cumene only,
which are normally transported to the Houston, Texas refinery and are
blended there with other aviation gasoline components produced at Houston
to make said aggregate production of” 9,000 barrels of 100-octane avgas.
The contract required Shell to provide DSC with its “pro rata share
of the entire requirements of the United States Government,” a term defined
in further detail elsewhere in the contract. DSC also contracted for “the
option from time to time” to purchase avgas that Shell had not contracted to
sell to other parties. In addition to buying the 100-octane avgas “in its
finished form,” DSC also had the option to take alkylate and/or cumene
directly from Shell’s Norco refinery. In July 1944, Shell and DSC amended
their 1942 contract in light of the Houston and Norco refineries’ increase in
production capacity to 12,000 barrels per day of avgas.
At oral argument, Defendants asserted that we are not limited to the
above refinery contracts in identifying the relevant federal directives for
purposes of determining whether they were “connected or associated with”
the challenged conduct. Oral Arg. at 14:00-15:40. Instead, they contend that
in cases involving federal contractors, courts should consider whether the
charged conduct is related to actions the contractor took not only pursuant
to its federal contract, but also actions taken pursuant to relevant federal
regulations or directives. In light of this theory, and in recognition that their
refinery contracts are silent as to oil production, Defendants point to various
federal regulations, designations, and reports involving oil production in the
Operational Areas during World War II. 64 Defendants contend that these
_____________________
64
For example, Defendants emphasize the fact that the government designated the
three fields at issue here as “Critical Fields Essential to the War Program,” in part because
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extra-contractual government documents provide relevant federal directives
in analyzing the “connected or associated with” element and demonstrate
that the government was involved in regulating both crude oil production and
refinement.
As explained above, case law is clear that a private party does not
“act[] under” a federal officer by complying with federal regulations,
guidance, or expectations. 65 And the problem with Defendants’ extra-
contractual argument is that they cite no authority for the proposition that
simply being a federal contractor transforms a private party’s actions in
compliance with federal regulations or expectations into action taken under
color of federal office for purposes of analyzing the “connected or associated
with” element. To the contrary, in cases involving private federal
contractors, courts look to the contents of the relevant federal contracts in
determining whether the challenged conduct was “connected or associated
with” acts taken under color of federal office. 66 Moreover, even if we
_____________________
they produced crude oil that was particularly suited for making avgas and other products of
high value to the war. Defendants rely on these designations as evidence that the
government recognized that oil production in these fields were “connected or associated
with” the refinement of avgas for the government and show that the government knew
Defendants would use the crude produced in these fields at their refineries.
65
See Watson, 551 U.S. at 153(“The upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation alone . . . [because] [a] private firm’s compliance (or noncompliance) with federal laws, rules, and regulations does not by itself fall within the scope of the statutory phrase ‘acting under’ a federal ‘official.’”); Plaquemines II,2022 WL 9914869
, at *3 ([M]erely being subject to federal regulations is not enough to bring a private action within § 1442(a)(1).”); see also Mohr v. Trustees of Univ. of Pa.,93 F.4th 100
, 105 (3d Cir. 2024) (“Advancing governmental policy
while operating one’s own business is not the same as executing a delegated governmental
duty.”).
66
See, e.g., Latiolais, 951 F.3d at 296 (concluding that the plaintiff’s failure-to-warn
claims were “connected or associated with” the defendant’s installation of asbestos, which
was required under the terms of its contract with the U.S. Navy); Cnty. Board of Arlington
Cnty., 996 F.3d at 256–57 (holding that the plaintiff’s claim that pharmacies caused a public
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considered Defendants’ extra-contractual sources, Defendants are unable to
connect the government’s minimal regulation of crude oil production during
World War II to their federal contracts for increased quantities of refined
avgas.67 We therefore limit our analysis under the “connected or associated
with” element to directives in Defendants’ federal refining contracts.
3.
Having identified the relevant challenged conduct and federal
directives, we now evaluate whether the relationship between the two is
sufficient for purposes of the “connected or associated with” element of the
federal officer removal test. The district courts held that Defendants were
_____________________
nuisance by filling certain opioid prescriptions was “connected or associated with” the
pharmacies’ contracts with the Department of Defense (“DOD”) because the pharmacies
“were required to fill those prescriptions to comply with their duties under the DOD
contract”).
67
To the extent Defendants point to certain government designations or reports as
evidence that the government “recognized” that Defendants would use the crude
produced in the Operational Areas at their refineries, such documents, without any federal
mandate, are insufficient to show that Defendants’ production practices were connected
to a government directive. See Mitchell v. Advanced HCS, L.L.C., 28 F.4th 580, 590 (5th Cir. 2022) (holding that agency documents consisting of the government’s “aspirations and expectations,” or “permissive guidance,” without any mandates, are “insufficient to establish the kind of relationship necessary to invoke the [federal officer removal] statute”); In re Methyl Tertiary Butyl Ether (“MTBE”) Prod. Liab. Litig.,488 F.3d 112
, 129– 30 (2d Cir. 2007) (holding that even if Congress and the Environmental Protection Agency expected defendants to use MTBE, defendants were unable to show they were “acting under federal officers when they added MTBE, and not some approved alternative, to their reformulated gasoline”); Riverwood I,2019 WL 2271118
, at *17 n.44 (“The defendants
point to no mandate that the federal government ordered the oil and gas companies to drill
and produce these operational areas that would otherwise not have been developed but for
the wartime directives.”).
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unable to satisfy this element given the lack of connection between their oil
production and refining activities. In Northcoast, the court explained that:
[T]he Removing Defendants fail to point to a single directive
in the Gulf contract that touched upon its upstream oil produc-
tion activities in Louisiana or anywhere else for that matter. No
directive in the contract has anything to do with upstream oil
production. In fact, the contract does not mention where the
Port Arthur refinery was to get the large amounts of crude oil
that would be necessary to feed the refinery although part (d)
of the Price Escalation section does allude to the possibility that
Gulf may at times purchase refining components from other
suppliers . . . . The contract is simply not concerned with where
or how Gulf would obtain the crude oil necessary to produce
the fuel that was to be sold to the government at the Port Ar-
thur refinery. While anyone can infer that performance under
the contract would require a lot of crude, the contract is utterly
silent as [to] where the crude oil was to come from. The con-
tract did not direct, require, or even suggest that Gulf produce
its own crude in order to meet its contractual obligations. 68
The district court in Parish of Cameron adopted this analysis from
Northcoast. 69
_____________________
68
Northcoast, 2023 WL 2986371, *10.
69
In addition to Northcoast and Parish of Cameron, at least three additional district
court judges have ruled the same way in related refinery cases. Notably, in these additional
rulings, the courts assumed without deciding that defendants could satisfy the “acting
under” prong in light of their federal contracts, but concluded that the defendants’
production activities were not sufficiently “connected or associated with” the federal
directives in their refinery contracts for purposes of the fourth prong. See, e.g., Par. of
Jefferson v. Destin Operating Co., No. 18-5206, 2023 WL 2772023, at *2 (E.D. La. Apr. 4, 2023) (Fallon, J.) (“Accordingly, the Court will proceed to examine prong four, since this prong presents the highest hurdle considering the facts in this case: is the conduct charged here connected or associated with an act pursuant to those directions?”); Par. of Plaquemines v. Rozel Operating Co., No. 18-5189,2023 WL 3336640
, at *4 n.48 (E.D. La.
May 10, 2023) (Morgan, J.) (“Because the Court finds the removing Defendants have
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On appeal, Defendants contend the district courts’ holdings are
inconsistent with Latiolais’s expanded “connected or associated with” test,
and that they easily satisfy this fourth element. Defendants’ overarching
argument is that as vertically-integrated companies they produced crude oil
in the relevant Operational Areas—Black Bayou Field in Cameron Parish and
Duck Club Field and Grand Bay Field in Plaquemines Parish—and used
some of that crude at their refineries to manufacture petroleum products in
fulfillment of their federal contracts. They additionally contend that if they
had adopted Plaintiffs’ preferred practice of directional drilling, it would
have slowed their production rates, which in turn, would have hampered
their ability to fulfill their refinery contracts which called for ever-increasing
amounts of avgas. Defendants thus conclude that there is a “close and direct
link . . . between the federal contracts for massively increased quantities of
refined petroleum war products and the production of correspondingly
enormous quantities of crude oil.”
Defendants’ federal contracts clearly pertain to their refinement of
avgas and other petroleum products. But that is not to say that these refinery
activities do not have some relation to oil production. This is of course
because crude oil is a necessary component of avgas, and one way of obtaining
_____________________
failed to establish the [fourth] element, the Court need not address the other elements.
However, for the sake of argument, . . . the Court will assume, without holding, that the
Removing Defendants established the [third] element—that they acted under a federal
officer’s directive because they contracted with the government to refine crude oil.”);
Jefferson Par. v. Chevron U.S.A. Holdings, Inc., Nos. 18-5224, 18-5213, 18-5218, 18-5220,
18-5230, 18-5252, 18-5260, 2023 WL 8622173, at *6 (E.D. La. Dec. 13, 2023) (Lemelle, J.)
(“However, even assuming arguendo that the acting-under prong can be established,
removing defendants fail to show their complained-of conduct in oil production has
anything more than an attenuated connection to their actions under the direction of a
federal officer.”).
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crude oil is to produce it. 70 However, we agree with the district courts that
in these cases the relationship between Defendants’ oil production and
refinement activities was insufficient to satisfy the fourth element of federal
officer removal.
Although Defendants need not show that a federal officer directed the
specific oil production activities being challenged, 71 they still must show
these activities had a sufficient connection with directives in their federal
refinery contracts. Defendants fall short of meeting this requirement
because, as emphasized by the district court, the contracts gave Defendants
“complete latitude . . . to forego producing any crude and instead to buy it on
the open market.” 72
The lack of any contractual provision pertaining to oil production or
directing Defendants to use only oil they produced is what distinguishes
_____________________
70
The dissent relies on the fact that crude oil is a necessary component of avgas to
support its contention that increased crude oil production is “connected or associated
with” Defendants’ contractual obligations to produce large quantities of avgas. To drive
home this point, the dissent posits that even though Defendants’ contracts did not include
provisions regarding human labor to run their refineries, the hypothetical necessity of 250
additional laborers in the refinery to produce avgas would clearly be “connected or
associated with” Defendants’ refinery contracts. Post, at 39 (Oldham, J., dissenting). We
agree. Hiring sufficient refinery employees to work at federally contracted refineries is
clearly “connected or associated with” Defendants’ contractual obligations to refine avgas.
But would the same be true as to Defendants’ decisions to hire employees to search for new
oil reserves? Or employees to extract crude oil? (Assuming, of course, that these
employees find or extract crude oil that is ultimately refined into avgas by Defendants’
federally contracted refineries). These are more analogous examples to the question
presented in the instant cases and are illustrative of the reach of an unduly expansive
reading of the “connected or associated with” element.
71
See St. Charles II, 990 F.3d at 454 (“[A] removing defendant need not show that
its alleged conduct was precisely dictated by a federal officer’s directive.”).
72
Northcoast, 2023 WL 2986371, at *10.
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these cases from Latiolais. 73 In Latiolais, there was a direct connection
between Avondale’s lack of safety practices for asbestos installation and the
requirement in its federal contract to use asbestos. 74 The same is not true
here. Under Defendants’ theory, their alleged failure to use prudent industry
practices in extracting crude oil is connected to their increased need for crude
oil, which in turn is connected to their contractual obligations to furnish the
government with large amounts of 100-octane avgas because crude oil is a
necessary component of avgas. But, as explained below, even that attenuated
connection was severed by Defendants’ lack of control over where their
crude oil was refined and by their use of crude oil purchased on the open
market from other producers to comply with their contractual obligations.
Thus, unlike Latiolais, or even Morales, 75 the instant cases require various
intermediary (and ultimately severed) links to connect the federal directives
and challenged conduct.
The dissent arrives at the opposite conclusion—that this case “fits
neatly” within Latiolais’s holding. 76 In support of this conclusion, the
dissent suggests that the omission of safety instructions for handling asbestos
in Latiolais’s contract is equivalent to the omission of instructions for
gathering crude oil in the contracts at issue here. But, as discussed above,
_____________________
73
See Rozel Operating Co., 2023 WL 3336640, at *5 (“Clearly at odds with
Defendants’ interpretation of Latiolais is the fact that, in Latiolais, the charged conduct was
still related to a federal officer’s directive to use asbestos . . . ,[whereas] [n]owhere in any
contract pointed to by the removing Defendants did a federal officer direct the oil
production activities of Defendants.”).
74
Latiolais, 951 F.3d at 289, 297 (recognizing that “the Navy required installation
of asbestos on the Tappahannock”).
75
Morales, 504 U.S. at 388 (holding that guidelines on airfare advertising were
“related to” the rates, routes, or services of an air carrier given that every guideline makes
“express reference to [air]fares”).
76
Post, at 42 (Oldham, J., dissenting).
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such a comparison overlooks the fact that Avondale’s federal contract
required the use of asbestos, whereas the federal contracts here did not
address crude oil production at all, let alone require Defendants to produce
their own crude oil. Thus, the connection between Avondale’s alleged lack
of safety instructions regarding the installation of asbestos and the
requirement in its federal contract to install asbestos is much closer than the
tenuous connection between the oil production and exploration practices
challenged here and Defendants’ refinery contracts. These refinery cases
would be more analogous to Latiolais if, for example, Defendants’ federal
contracts required them to produce their own crude oil but were silent as to
the production practices challenged by Plaintiffs. Alternatively, Latiolais
would be closer to these cases if Avondale’s federal contract required it to
refurbish ships with thermal insulation but did not specify what type of
material should be used for insulation.
Consequently, and contrary to the dissent’s position, permitting
removal here would expand the current limits of the “connected or
associated with” element as applied in Latiolais and its progeny. 77 And
_____________________
77
See, e.g., Williams, 990 F.3d at 859–60 (relying on Third Circuit caselaw
consistent with Latiolais to hold that the plaintiff’s asbestos-related claims for strict liability
and failure to warn were “direct[ly] connect[ed]” to the government’s “detailed material,
design, and performance specifications for the fuel tanks” and the government’s
“controlled written materials and markings accompanying the fuel tanks, including all
warnings and health-related safeguards associated with them”); Cloyd v. KBR, Inc., No. 21-
20676, 2022 WL 4104029, at *1–3 (5th Cir. Sept. 8, 2022) (per curiam) (unpublished) (holding that the military contractors’ claims that the defendant failed to implement adequate security measures and provide a safe place to work were connected with the defendant’s actions under color of federal office in light of the evidence that the United States military directed and controlled the base and “retained authority over all force protection measures for individuals on base, decided what security protocols to implement, [and] dictated when contractors should take shelter”); Trinity Home Dialysis, Inc. v. WellMed Networks, Inc., No. 22-10414,2023 WL 2573914
, at *4 (5th Cir. Mar. 20, 2023)
(per curiam) (unpublished) (concluding that the conduct challenged by the plaintiff was
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although we are mindful of the broad nature of the statute’s “relating to”
language, as the Supreme Court has cautioned, even “broad language is not
limitless.” 78 We acknowledge that reasonable minds can differ on where to
draw the line between related and unrelated conduct under governing circuit
precedent. 79 However, we ultimately conclude that these cases fall on the
unrelated side of the line given the lack of any reference, let alone direction,
pertaining to crude oil production in Defendants’ federal contracts. To hold
otherwise would permit a federal contractor with a non-frivolous federal
defense to invoke federal jurisdiction under § 1442(a)(1) for conduct only
“remote[ly]” or “tenuous[ly]” 80 related to its federal contracts and thereby
impermissibly expand the scope of federal officer removal under our existing
precedent.
Perhaps recognizing that removal here would be an expansion of
existing precedent, Defendants assert, citing to Latiolais, that the colorable
federal defense requirement will have a narrowing effect and weed out cases
that would otherwise pass their near limitless interpretation of the
“connected or associated with” element. 81 Oral Arg. at 11:30-12:04.
_____________________
“directly tied” to actions the defendants took under color of federal office because
defendant “made this decision based on its determination that [plaintiff’s] claims were not
eligible for full reimbursement under the Medicare Act”).
78
See Watson, 551 U.S. at 147, 153 (cautioning against a “determination [that]
would expand the scope of the [federal officer removal] statute considerably, potentially
bringing within its scope state-court actions filed against private firms in many highly
regulated industries”).
79
See Plaquemines Par. v. Chevron USA, Inc., 84 F.4th 362, 366 (5th Cir. 2023)
(acknowledging that “Latiolais left unclear where to draw the line between related and
unrelated activities”).
80
Morales, 504 U.S. at 390(quoting Shaw v. Delta Air Lines, Inc.,463 U.S. 85
, 100
n.21 (1983)).
81
See Latiolais, 951 F.3d at 296 (explaining that although the 2011 amendment
expanded the fourth element of federal officer removal, “the statute’s requirement that a
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Although Latiolais acknowledged that the colorable federal defense
requirement may prevent the removal of cases that would otherwise satisfy
the expanded “relating to” language, this Court nonetheless still required a
removing defendant to show that the charged conduct was “connected or
associated with an act pursuant to a federal officer’s directions.” 82 Thus, we
do not read Latiolais as permitting courts to stretch the “relating to”
requirement to permit the removal of cases where the defendant engaged in
the challenged conduct on its own initiative in fulfillment of a tangentially
related federal directive. 83 To do so would be to ignore the statute’s
“language, context, history, and purposes.” 84 Specifically, it would read out
of the statute the requirement that only civil actions “for or relating to” acts
taken under color of federal office are removable. 85 This is particularly true
given that Defendants contend that the colorable federal defense
requirement is “not limited to defenses premised on the asserted federal
direction” and can include defenses that do “not relate to the official acts
that gave rise to ‘acting under’ status.”
_____________________
removing party assert a colorable federal defense remains a constitutional, viable, and
significant limitation on removability” (citations omitted)).
82
Id.
83
See Engelhoff v. Engelhoff ex rel. Breiner, 532 U.S. 141, 146–47 (2001) (noting in
the context of ERISA pre-emption the phrases “relate to” and “connection with” are
“clearly expansive,” but should not be applied with “uncritical literalism” that would
“turn on ‘infinite connections.’” (citations omitted)); Glenn, 40 F.4th at 232 (recognizing
that the basic purpose of the federal officer removal statute is “to give those who carry out
federal policy a more favorable forum” (emphasis added) (citation omitted)).
84
Watson, 551 U.S. at 147, 151–53. Although Watson addressed the limits of the
“acting under” element, we find its method of analysis—looking to § 1442(a)(1)’s
“language, context, history, and purpose”—to be just as relevant to analyzing the limits of
the “connected or associated with” element. Id. at 147–53.
85
28 U.S.C. § 1442(a)(1).
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* * *
Despite the lack of direction in their refinery contracts, Defendants
contend that their ability to satisfy their federal refinery obligations was
nonetheless related to their oil production practices because they were
“vertically integrated” companies that both produced and refined crude oil.
Specifically, Defendants assert that “when the government contracts with a
vertically integrated refiner/producer, like [Defendants], the crude
production used to fulfill the contract for refined avgas plainly relates to that
contract.”
We find Defendants’ reliance on their statuses as vertically-integrated
companies to be misplaced. As noted by one district court, Defendants’ oil
production and refining sectors were “two entirely separate operations
requiring different skills, and different operations at different locations.” 86
Moreover, the record here shows that a federal agency, the Petroleum
Administration for War (“PAW”), established a crude allocation program
that controlled the distribution and transportation of produced crude oil from
the fields to specific refineries based on various factors that would maximize
the output of war products. In allocating the crude oil, the PAW considered
neither the practices of the producer nor whether the company that produced
the crude had an affiliated refinery.
The PAW’s allocation program severed any connection between
Defendants’ production and refinement activities because Defendants could
not control whether they refined their own crude. Instead, they were in the
same position as companies that did not produce crude oil but had refineries
_____________________
86
Par. of Jefferson v. Destin Operating Co., 2023 WL 2772023, at *3; Northcoast,2023 WL 2986371
, at *7 (“The separate functions [of upstream oil production and
downstream refining operations] may be performed by different companies or a larger
company may do both, as Gulf Oil was doing during World War II.”).
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with federal contracts. At base, whether or not Defendants happened to
refine their own crude oil in fulfilling their federal contracts had nothing to
do with any actions they took pursuant to a federal directive. Instead, it
depended on “happenstance or logistical preference.” 87 Particularly
illustrative of this point is the outcome in Plaquemines II, in which one
defendant, Humble Oil, was a vertically-integrated oil company that
produced oil in the Operational Area and had a refinery under federal
contract to refine avgas. 88 However, Humble Oil did not rely on its federal
refinery contract in seeking removal due to the fact that none of the crude oil
it produced in the relevant Operational Area was sent to its refinery. 89
Crucially, this means that the only difference between Humble Oil and
Defendants here is that the PAW allocated to Defendants’ refineries some of
the crude oil they produced in the Operational Areas. 90 To permit removal
here, but not in Plaquemines II, would lead to illogical and disparate results
inconsistent with the overall purpose of the federal officer removal statute. 91
_____________________
87
Jefferson Par. v. Chevron, 2023 WL 8622173, at *6.
88
Riverwood II, 2022 WL 101401, at *7 & n.14.
89
Northcoast, 2023 WL 2986371, at *6.
90
Id. at *7. The dissent’s assertion that the relevant difference is instead that
Defendants here relied on their own refining contracts for removal overlooks the fact that
Humble Oil could not rely on its own contracts because it did not refine the crude oil it
produced in the Operational Area. Post, at 47 n.4 (Oldham, J., dissenting). Put differently,
Humble Oil could not rely on its contracts to satisfy the “connected or associated with”
test because none of the crude oil it produced in the relevant field, which was the basis of
the plaintiffs’ challenged conduct, was allocated to its federally contracted refinery by the
PAW. Defendants here acknowledge this is the relevant difference, explaining that “[i]n
contrast to the removing defendants in Plaquemines II, Defendants here did have
government contracts under which they produced avgas and other war products using the
oil they produced in the field at issue during WWII.”
91
See Watson, 551 U.S. at 152 (“When a company subject to a regulatory order
(even a highly complex order) complies with the order, it does not ordinarily create a
significant risk of state-court ‘prejudice’ . . . . Nor is a state-court lawsuit brought against
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Finally, Defendants make the conclusory assertion that had they
adopted Plaintiffs’ preferred extraction practices, it would have “hampered”
their ability to fulfill their federal contracts. But Defendants point to no
evidence, aside from their statuses as vertically-integrated companies that
needed to refine increased quantities of avgas, to support this assertion.
Although Defendants’ conclusory assertion might be enough on its own if the
only crude oil they refined was their own, the record does not support such a
finding. Instead, the evidence makes clear that not only did Defendants lack
control over whether they refined their own crude oil, but that their refineries
regularly relied on crude oil produced by other companies to fulfill their
federal avgas contracts. 92 In sum, although Defendants’ refining contracts
indirectly required increased amounts of crude oil, that fact alone, absent
some federal directive pertaining to Defendants’ oil production activities, is
insufficient to satisfy the “connected or associated with” element of federal
officer removal.
Because Defendants do not satisfy the “connected or associated
with” element of federal officer removal, we do not address whether they
have asserted a colorable federal defense. Accordingly, we affirm the district
courts’ holdings that Defendants have not established federal officer removal
_____________________
such a company likely to disable federal officials from taking necessary action designed to
enforce federal law.” (internal citations omitted)).
92
For example, the record shows that the PAW sent crude produced by Defendants
in the Operational Areas to other companies’ refineries. Moreover, it also shows that
Defendants during this time period purchased crude oil on the open market from other oil
producers for use in their own refineries. As indicative of this fact, Plaintiffs emphasize
that in only four of the thirteen SLCRMA cases pending against Defendant Shell did Shell
refine its own crude oil produced in the relevant Operational Area in fulfillment of its
federal contracts. In the other nine cases, Shell—the same vertically-integrated company
that had federal contracts that required it to produce increased quantities of refined avgas—
was able to satisfy its federal contracts without using its own crude produced in the
Operational Areas.
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jurisdiction on the grounds that they are unable to show that Plaintiffs’ claims
against them are “connected or associated with” actions they carried out
pursuant to a federal directive.
IV.
For the foregoing reasons, we AFFIRM the district courts’ orders
remanding these cases to state court.
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Andrew S. Oldham, Circuit Judge, dissenting.
I agree with the majority that the defendants “acted under” a federal
officer in both producing and refining petroleum during WWII.
Unfortunately, our agreement ends there. In my view, the defendants’
actions also “relate to” instructions from federal officers. That means this
case is removable to federal court.
I.
“The ordinary meaning of [‘relating to’] is a broad one.” Morales v.
Trans World Airlines, Inc., 504 U.S. 374, 383 (1992). I first (A) discuss the
text and history of § 1442(a)(1). Then I (B) discuss the governing precedent.
Finally I (C) address the majority’s counterarguments, which do not displace
the meaning of the statute and our precedent.
A.
1.
Federal officer removal has a long and complicated history. In 1815,
Congress enacted the first ancestor of today’s federal officer removal statute.
In response to New England’s opposition to the War of 1812, Congress
protected federal interests in collecting customs duties by “insert[ing] into
[the relevant] act . . . a provision . . . authorizing removal of all suits . . . against
federal officers or other persons as a result of enforcement of the act.”
Richard H. Fallon, Jr., John F. Manning, Daniel J.
Meltzer & David L. Shapiro, Hart and Wechsler’s The
Federal Courts and The Federal System 853 n.6 (7th ed. 2015)
[hereinafter Hart & Wechsler] (citing Act of Feb. 4, 1815, § 8, 3 Stat.
195, 198–99). That act embodied a specialized, limited, and short-term
exercise of Congress’s power to remove cases arising under federal law to
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federal courts. See ibid.; see also Tennessee v. Davis, 100 U.S. 257, 267–68, 271
(1880) (discussing the same act and power of Congress to authorize removal).
But over time, Congress repeatedly enacted new federal officer
removal statutes, each time extending removal to new classes of defendants.
See Hart & Wechsler, supra, at 853–54 n.6 (listing statutory
developments of federal officer removal). In 1833, the “Force Bill”
responded to South Carolina’s tariff nullification threats in part by
broadening federal officer removal to provide federal courts with removal
jurisdiction over “any act done under the revenue laws of the United States,
or under colour thereof.” Act of Mar. 2, 1833, § 3, 4 Stat. 632, 633; see also Davis,100 U.S. at 268
(discussing history of this act). Then, during and immediately following the Civil War, Congress passed a series of removal acts (1) conferring federal jurisdiction over suits for actions authorized by the President or Congress during the War and (2) extending the Force Bill to include internal revenue actions. See Hart & Wechsler, supra, at 853– 54 n.6 (first discussing jurisdictional acts for war-time actions, Act of Mar. 3, 1863, § 5,12 Stat. 755
, 756–57, amended by Act of May 11, 1866, §§ 3–4,14 Stat. 46
, 46; Act of Feb. 5, 1867,14 Stat. 385
; Act of July 28, 1866, § 8,14 Stat. 328
, 329–30; Act of July 27, 1868, § 1,15 Stat. 243
, 243; then discussing Force Bill extension, Act of Mar. 7, 1864, § 9,13 Stat. 14
, 17; Act of June 30, 1864, § 50,13 Stat. 223
, 241 (cited as13 Stat. 218
); Act of July 13, 1866, §§ 67–68,14 Stat. 98
, 171–72).
Finally, in 1948, Congress amended the removal statute, “dropping
its limitation to the revenue context” and expanding its “coverage to include
all federal officers.” Watson v. Philip Morris Cos., Inc., 551 U.S. 142, 148–49 (2007); see also Act of June 25, 1948, ch. 89,Pub. L. No. 80-773,
ch. 646, § 1442,62 Stat. 869
, 938. Thus, “[s]ince 1948,28 U.S.C. § 1442
has
permitted removal of any civil or criminal action against any federal ‘officer’
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or ‘person acting under the officer’ for ‘any act under color of such office.’”
Hart & Wechsler, supra, at 426. That language stood until 2010, when
§ 1442(a)(1) read:
A civil action . . . commenced in a State court against any of the
following may be removed by them to the district court of the
United States . . . : The United States or any agency thereof or
any officer (or any person acting under that officer) of the
United States or of any agency thereof, sued in an official or
individual capacity for any act under color of such office . . . .
(emphasis added).
According to the Supreme Court, the repeated extension and
expansion of federal officer removal evinced a “very basic” congressional
desire to protect federal “interest[s] in the enforcement of federal law
through federal officials” from interference by state courts or officials.
Willingham v. Morgan, 395 U.S. 402, 406(1969); see also Davis,100 U.S. at 263
. And the Supreme Court held § 1442(a)(1)’s jurisdiction over suits for any act under “color of [federal] office” required “a ‘causal connection’ between the charged conduct and asserted official authority.” Willingham,395 U.S. at 409
(quoting Maryland v. Soper (No. 1),270 U.S. 9, 33
(1926)).
But in 2011, Congress passed the Removal Clarification Act, Pub. L.
No. 112-51, 125 Stat. 545 (2011). In that act, Congress added the phrase “or
relating to” to § 1442(a)(1)’s text—broadening § 1442(a)(1)’s coverage from
actions “for” an act under color of federal office to actions “for or relating
to” such acts. See id. at § 2(b), 545 (“Conforming Amendments”). The act
sought to clarify “that State courts lack the authority to hold Federal officers
criminally or civilly liable for acts performed in the execution of their duties”
and to avoid any statutory suggestion that “would potentially subject Federal
officers to harassment” by state courts. H.R. Rep. No. 112-17(I), at 1–2
(2011). In doing so, Congress explicitly recognized that the addition of
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“relating to” in § 1442(a)(1) was “intended to broaden the universe of acts
that enable Federal officers to remove to Federal court.” Id. at 6.
So today, 28 U.S.C. § 1442(a)(1) provides:
A civil action . . . that is commenced in a State court and that is
against or directed to any of the following may be removed by
them to the district court of the United States . . . : The United
States or any agency thereof or any officer (or any person acting
under that officer) of the United States or of any agency
thereof, in an official or individual capacity, for or relating to any
act under color of such office . . . .
(emphasis added).
The new language makes the federal officer removal statute
significantly broader than its pre-2011 counterpart. The key phrase, “relating
to,” ordinarily means “to stand in some relation; to have bearing or concern;
to pertain; refer; to bring into association with or connection with.” Morales,
504 U.S. at 383(quoting Black’s Law Dictionary 1158 (5th ed. 1979)). How are we supposed to understand a phrase that broad? By looking to the statutory “context” to understand its “broad and indeterminate” reach. Mellouli v. Lynch,575 U.S. 798
, 811–12 (2015) (quotations omitted).
And here, the statutory context is a story nearly as old as our Nation in which
Congress relaxed, relaxed, and relaxed again the limits on federal officer
removal.
2.
Enter this dispute. Defendants Shell and Chevron executed a series of
contracts with the federal Defense Supplies Corporation during World War
II. Through those contracts, defendants helped to supply unprecedented
volumes of high-octane aviation gasoline (“avgas”) to support our Nation’s
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war effort. See, e.g., ROA.23-30422.7868 (noting “a 1,185% increase in
domestic 100-octane avgas production”).
Those contracts were exceedingly broad and demanding. Some of
them provided for dramatic expansion of the companies’ refineries; some
required multiple expansions. And in some contracts, the Government
asserted the right to take not only the defendants’ finished avgas but also
their raw materials. Still more, and perhaps most importantly, some contracts
allowed the Government to unilaterally demand more avgas than originally
specified, even requiring the refineries operate at full capacity to meet the
new demand.
Here, the charged conduct 1—defendants’ petroleum exploration and
production activities—clearly “relat[ed] to” an “act under color of [federal]
office”—the contractually specified refining activities. The contracts
required defendants to produce certain amounts of avgas, which varied
across refinery, company, and contract. See ante, 18–20 (describing the
specific requirements of each contract). But defendants could not simply
snap their fingers and, voilà, make avgas. They had to make it out of
something, and that something was crude oil. (Even the majority concedes this
point, noting that “Defendants’ refining contracts indirectly required
increased amounts of crude oil . . . .” Ante, at 32.) So defendants satisfied
their contractual avgas obligations by increasing their own exploration and
production of crude. The exploration/production of crude was therefore
undeniably “related to” the avgas refining contracts.
_____________________
1
The majority notes that the parties dispute the exact parameters of the “charged
conduct.” See ante, at 17–18. But even accepting the majority’s characterization of the
conduct, all the conduct still clearly “relates to” the refining contracts.
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True, the contracts did not specify where or how defendants should
acquire the massive amounts of crude oil needed to fulfill their avgas
obligations. See ante, at 25–26. Nor, I suppose, did the contracts specify
where or how the defendants would acquire additional human labor to
increase output at their refineries. But there can be no doubt that human
labor, like crude oil, is an indispensable, necessary, and direct step to
producing avgas. If the defendants were contractually obligated to produce,
say, one million barrels of avgas, and to do that they needed 250 additional
human laborers to work in the refineries, we would obviously say the human
labor is “related to” the refining contracts. And defendants’ hiring practices
to acquire the necessary, additional labor would likewise be “related to” the
refining contracts. Without those practices, defendants could not meet their
contractual obligations—hence underscoring the connectedness of the labor
inputs and the avgas outputs. So too with crude oil, in my view.
To give a sense of scale, defendants point out that a combination of
federal regulation and end-product contracts required U.S. oil and gas
companies “to increase oil production by more than 44,000,000 gallons a
day.” Cameron (23-30422) Blue Br. at 11 (emphasis in original); Plaquemines
(23-30294) Blue Br. at 11; ROA.23-30422.8295–96. Without that increase, it
is unclear how defendants could have met their contractual obligations with
the federal Government. And given their contractual obligations to produce
avgas, defendants had to get the crude oil from somewhere, and someone had to
figure out how to get 44 million extra gallons of crude oil out of the ground
every day. Thus, defendants’ increased exploration and crude-production
efforts were “related to” their avgas contracts. In my view, that makes this
case removable under § 1442(a)(1).
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B.
If the plain language of § 1442 were not enough, our most recent en
banc decision on the question should be. See Latiolais v. Huntington Ingalls,
Inc., 951 F.3d 286 (5th Cir. 2020) (en banc).
1.
In Latiolais, this court gave “relating to” its “ordinary meaning” and
held civil actions “relat[e] to” acts under federal direction as long as “the
charged conduct is connected or associated with an act pursuant to a federal
officer’s directions.” 951 F.3d at 292, 296 (emphasis added); see also Morales,
504 U.S. at 383(defining “relating to” in part as “to bring into association with or connection with”). Like the phrase “relating to,” the phrase “connected or associated with” captures a broad range of conduct. See Maracich v. Spears,570 U.S. 48
, 59–60 (2013) (interpreting “in connection
with”). And for good reason: Latiolais adopted its connected-or-associated
test because Congress substantially broadened § 1442 in the 2011
amendment. See 951 F.3d at 290 (“Over time . . . Congress has broadened
the removal statute repeatedly until it reached the coverage [seen in § 1442
today].”).
Our pre-Latiolais test was narrower. Our old test was called the
“direct causal nexus” standard. Id. at 291–92. The old test required “a causal
nexus . . . between the defendants’ actions under color of federal office and
the plaintiff’s claims.” Winters v. Diamond Shamrock Chem. Co., 149 F.3d
387, 398(5th Cir. 1998). In other words, “mere federal involvement [did] not satisfy the causal nexus requirement; instead, the defendant [had to] show that its actions taken pursuant to the government’s direction or control caused the plaintiff’s specific injuries.” Savoie v. Huntington Ingalls, Inc.,817 F.3d 457, 462
(5th Cir. 2016) (emphasis added) (citing Bartel v. Alcoa S.S. Co.,805 F.3d 169
, 172–74 (5th Cir. 2015)). That test afforded the new § 1442 too little
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flexibility. Most importantly, it excluded claims related to actions under “the
government’s direction or control” from removal. Ibid.
The practical difference between “direct causal nexus” and
“connect[ion] or associat[ion]” is obvious from Latiolais itself. There, the
defendant contracted with the United States Navy “to build and refurbish
naval vessels.” Latiolais, 951 F.3d at 289. The contracts often required the
defendant to use asbestos for the ships’ thermal insulation. Ibid. The plaintiff,
a machinist on one of the refurbished ships, was exposed to asbestos and
diagnosed with mesothelioma many years later. Ibid. The plaintiff sued the
defendant contractor, claiming the contractor “negligently failed to warn him
about asbestos hazards and failed to provide adequate safety equipment.” Id.
at 290.
While the contracts required asbestos, they said nothing about whether
the defendants could or should furnish safety warnings or equipment. See
Latiolais v. Huntington Ingalls, Inc., 918 F.3d 406, 407(5th Cir. 2019), rev’d en banc,951 F.3d 286
. We emphasized “there [was] nothing to suggest that the Navy, in its official authority, issued any orders, specifications, or directives relating to safety procedures” at all—much less did the contracts say anything at all about safety.Id. at 410
(quotation omitted). And there was no evidence that the safety precautions—had the contractor employed them—would have impeded or even affected the contracts’ objectives. Seeid. at 411
(concluding that the “failing to warn, train, and adopt safety
procedures regarding asbestos . . . were private conduct that implicated no
federal interests.” (emphasis added) (quotation omitted)).
A panel of this court therefore initially found the plaintiff could not
satisfy the old, too-strict “causal nexus requirement.” Id. at 411. And I
suppose that makes sense in a world where § 1442 requires a direct causal
connection between the charged conduct and the Government’s contracts.
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After all, nothing in the contracts prohibited defendants from warning about
asbestos or providing safety equipment, and hence nothing in the contracts
caused the defendants’ tortiously negligent safety violations. The defendant
contractor alone made those tortious choices in deciding how to fulfill their
contractual obligations to furnish asbestos-insulated boats.
But our en banc court reversed and broadened the § 1442 standard to
match the statutory text. While the contracts did not prohibit providing, say,
safety gear to shipworkers, the defendants’ failures to provide safety gear was
certainly connected or associated with the asbestos contracts. Latiolais, 951
F.3d at 296. Obviously, the underlying facts and the nature of the challenged
conduct did not change between our panel decision and our en banc review.
But our new test swept more broadly, encompassed more actions, and more
appropriately recognized that safety measures for asbestos installation
“relate[d] to” the asbestos installation. Ibid.
Latiolais’s shift therefore highlights that our new test has very real
consequences, especially for federal contractors. Without Latiolais, those
contractors might otherwise face a Catch-22: limit their actions to the bare
words of a federal contract and insist that the Government control every
action related to that contract, or risk suit in a potentially hostile state court
for any associated acts taken to better fulfill that contract. For example, the
defendants in this case, I suppose, could have said their avgas contracts make
no provision for hiring human laborers, so it was simply impossible for the
defendants to meet the Government’s wartime demands. But after the 2011
amendment to § 1442 and after our decision in Latiolais, government
contractors do not face that absurd choice.
2.
This case fits neatly into the Latiolais holding. True, as the majority
highlights, the contracts here did not specify where and how the defendants
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should find the millions upon millions of gallons of crude oil they needed to
make avgas. At most, the contracts “allude to the possibility that
[defendants] may at times purchase refining components from other
suppliers” but “did not direct, require, or even suggest that [defendants]
produce [their] own crude in order to meet [their] contractual obligations.”
Parish of Plaquemines v. Northcoast Oil Co., 669 F. Supp. 3d 584, 597 (E.D. La.
2023); see also ante, at 23 (same). But “direct, require, or . . . suggest” is not
the § 1442 standard—as Latiolais itself proves. Instead, under Latiolais,
discretionary decisions need only be “connected or associated with” a
federal instruction to warrant removal.
So too here. The majority admits “crude oil is a necessary component
of avgas, and one way of obtaining crude oil is to produce it.” Ante, at 24–25.
But in the same way the Latiolais contracts were utterly silent as to safety
measures, the contracts here omitted instructions for gathering the required
component parts of avgas. And in the same way that the Latiolais defendants
made an independent decision to forgo safety measures to produce their final
product, defendants here decided to increase crude production to meet the
demand for their final product. That the defendants in either case had
“complete latitude” to take associated actions in the process of fulfilling their
federal directives in no way severs the connection between those actions and
that direction.
If anything, this case is easier than Latiolais. When it comes to
refurbishing ships with asbestos, you might reasonably imagine two different
arguments a contractor could make to justify removal. In the first, the
asbestos safety measures would have slowed down the contractor’s work on
the ships, created undue expense, or otherwise impeded the accomplishment
of the federal interest in getting the ships back at sea ASAP. In that
hypothetical situation, the decision to forgo safety measures would obviously
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relate to the federal directive—indeed, it might even be necessary.
Alternatively, the asbestos safety measures might have no bearing
whatsoever on the speed, cost, or feasibility of the federal refurbishment
directive. In that case, it is much less clear that the safety decisions would
properly fall within § 1442’s “relating to” prong—and they certainly were
not necessary to refurbish the ships and get them back in service.
Latiolais presented the second scenario. See 918 F.3d at 411 (panel
opinion). Nonetheless, our en banc court held the safety measures “relate[d]
to” the federal contracts. Latiolais, 951 F.3d at 296 (en banc). But in this case,
we have the first, much easier scenario. Forgoing the challenged crude
exploration and production practices would have hampered the federal
interest in refined avgas explicitly outlined in the contracts. So if the conduct
in Latiolais related to the federal directive, so too must the conduct here.
To hold otherwise is to find that discretion destroys the connection
between a federal directive and the challenged conduct—just as our old, now-
jettisoned causal-nexus test once did. Latiolais bars such an interpretation of
§ 1442 and requires us to find these defendants acted in “connection . . .
with” their federal directives.
C.
Finally, the majority makes several arguments suggesting the
connection between crude production and avgas refining is too attenuated to
satisfy § 1442(a)(1). With all respect to my learned and esteemed colleagues,
I think the majority’s arguments miss the mark.
1.
First, the majority contends the petroleum production practices
during WWII bore only an “attenuated connection” composed of “various
intermediary . . . links” to refining avgas. Ante, at 26. I do not understand
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how this helps the majority because it concedes crude and avgas were
“link[ed].” If defendants needed to increase avgas production, they
necessarily needed to find more crude. And how they chose to find more
crude is necessarily linked and hence necessarily “related to” increasing
their avgas production. The majority says, no, the supply chain had two
hermetically sealed links: Defendants used certain exploration and
production practices because of increased need for crude oil (link one), and
there was increased need because of the refining contracts (link two). But
even on the majority’s telling these supply-chain links are, well, linked. And
hence they are connected.
The majority next contends the appropriate single link—the one
purportedly more akin to Latiolais—would have been if the “federal
contracts required [defendants] to produce their own crude oil but were
silent as to the production practices challenged by Plaintiffs.” Ante, at 27. But
again, even if the facts did reveal “various” links, the majority would under-
read Latiolais. Requiring that the outcome of the challenged conduct be
contractually specified so that “relating to” only encompasses discretionary
choices about how to accomplish the expressly directed action walks back
Latiolais’s “connected or associated with” test. Even the facts in Latiolais
were not that closely “related”: The contract specified the use of asbestos,
not what safety protocols the contractor would employ. The challenged
conduct dealt with shortcomings in those protocols, not the defendant’s
choice of how to install the asbestos. See Latiolais, 918 F.3d at 407 (panel
opinion) (describing government contracts and oversight of safety
measures). To claim the case before us contains “various intermediary . . .
links” is to acknowledge that Latiolais itself contained at least two links—
apparently one too many in the majority’s own § 1442 framework.
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2.
Second, the majority contends that, even if there was an “attenuated
connection” between the production practices and refining contracts, ante,
at 26, the Petroleum Administration for War (“PAW”) “severed” the causal
chain necessary for § 1442 removal, ante, at 30–31. 2 But this contention
suffers from similar flaws. Requiring an unsevered causal chain takes us back
to the old, now-discarded, pre-Latiolais standard and ignores the
expansiveness of the new “relating to” language in § 1442. Moreover, there
is no reason to think that PAW’s control over crude shipments somehow
rendered irrelevant the production choices made by defendants and other oil
companies. Across all the contracts (Shell, as the majority points out, boasts
at least 120 government contracts, see ante, at 19), the companies needed a
gargantuan volume of crude oil. So, predictably, they engaged in expanded
production practices and produced massively increased volumes of crude oil,
which the PAW then distributed and directed—for the production of avgas
and other refined products. Such Government direction of raw materials
does not make the decision to produce those raw materials unrelated to the
back-end government contracts—contracts also heavily influenced by the
same government agency. 3 The direction simply inserts the Government into
_____________________
2
Relatedly, the majority finds defendants’ “oil production and refining sectors
were two entirely separate operations requiring different skills, and different operations at
different locations.” Ante, at 30 (quotation omitted). But even if the on-the-ground
execution of the production and refining sectors were “entirely separate,” that fact has
little bearing on the defendants’—vertically-integrated companies with coordinated
operations across many inter-related areas—decision-making process vis-à-vis their federal
contracts.
3
As defendants explain, “PAW also played an important role in negotiating the
contracts with the companies that produced 100-octane avgas. . . . PAW determined ‘the
price and technical details of avgas production and procurement.’” Plaquemines (23-30294)
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another layer of control to ensure oil companies met their production targets
(including for avgas). Such interconnectedness cannot possibly show that the
oil companies production practices were not “connected or associated with”
their refining duties. 4
3.
Finally, I respectfully disagree with the majority that my reading of
§ 1442 would “expand the current limits” of the Latiolais test. Ante, at 27.
As already discussed, the challenged actions here are akin to the actions in
Latiolais. And none of the cases the majority cites as Latiolais’s “progeny”
disprove this. See ante, at 27–28 n.77. Rather, each one simply reaffirms the
“connected or associated with” test.
The majority cites Cloyd v. KBR, Inc. for the principle that the federal
Government must have “retained authority” over the relevant decisions by
federal contractors. Ante, at 27 n.77 (citing No. 21-20676, 2022 WL 4104029,
at *1–3 (5th Cir. Sept. 8, 2022)). But Cloyd stands for no such proposition.
Instead, that case simply restated the Latiolais rule, confirming that
_____________________
Blue Br. at 13 (quoting Exxon Mobil Corp. v. United States, No. H-10-2386, 2020 WL
5573048, at *11 (S.D. Tex. Sept. 16, 2020)).
4
The majority also contends that this “severing” places defendants in the same
position as the oil producers in Plaquemines Parish v. Chevron USA, Inc. (Plaquemines II),
No. 22-30055, 2022 WL 9914869(5th Cir. Oct. 17, 2022) (per curiam) (unpublished), leaving the cases distinguishable only by the fact that the producers there did not receive any of their own crude from the PAW allocation, while our defendants did. Ante, at 30–31. But what distinguishes the Plaquemines II producers from our defendants is not primarily that ours received some of the crude oil they produced. Rather, the distinguishing feature is that the Plaquemines II producers failed to rely on their own refining contracts to remove the action against it to federal court. Plaquemines II,2022 WL 9914869
, at *4. They instead
removed as subcontractors and therefore failed § 1442’s “acting under” prong. Id. at *1, 4.
Plaquemines II therefore tells us nothing about whether our defendants’ actions “related
to” their refining contracts.
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“causation” was no longer the § 1442(a)(1) test. Cloyd, 2022 WL 4104029, at *3. Although the facts in Cloyd did demonstrate causation between the federally controlled actions and the charged conduct, the panel nonetheless clearly understood that circumstance just made for an easy case.Id. at *3
.
That Cloyd’s facts satisfied Latiolais and § 1442 does not mean that only
Cloyd’s facts can satisfy Latiolais and § 1442.
The majority then cites Trinity Home Dialysis, Inc. v. WellMed
Networks, Inc. for the principle that challenged conduct must be “directly
tied” to actions under color of federal authority. Ante, at 27–28 n.77 (citing
No. 22-10414, 2023 WL 2573914, at *4 (5th Cir. Mar. 20, 2023)). But it isn’t clear that defendants’ crude production activities were not “directly tied” to their federal contracts. Indeed, one could consider those activities a direct result of the contractual obligations. And in any event, Trinity applied the Latiolais test and confirmed that defendants can have discretion or latitude in decision-making while also taking actions that “relate to” the overarching federal direction.2023 WL 2573914
, at *4. There, although WellMed exercised “discretion to determine whether a claim [was] covered,” that discretion “ar[ose] from the authority expressly delegated to [WellMed]” and therefore demonstrated only latitude in how the federal directive was carried out, not a lack of connection.Id. at *4
.
Finally, the majority cites Williams v. Lockheed Martin Corporation for
the principle that Latiolais requires a “direct connection” to Government-
controlled specifications. Ante, at 27 n.77 (citing 990 F.3d 852, 859–60 (5th
Cir. 2021)). But, as the majority correctly notes, Williams applied the Third
Circuit’s § 1442 precedent, not Latiolais. 990 F.3d at 858–60. Moreover, the
panel there highlighted that federal control over the details of the final
product at issue—such as the “material, design, and performance
specifications . . . [and] materials and markings accompanying the
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[products]”—“demonstrate[d] a direct connection” between the federal
direction and any claims related to the final product. Id. at 860. Similar here.
The federal contracts controlled all details of the final product, high-octane
avgas. So claims concerning the materials needed to manufacture that
product clearly relate to actions under color of federal authority. All told, the
majority could at best claim these were easier cases under the Latiolais test
than the case before us today. But none reduces Latiolais’s interpretation of
“relating to” in § 1442 to the cribbed one adopted by the majority.
II.
Today, the majority reinstates a version of the old, discarded, causal-
nexus test. That approach apparently is driven by the majority’s fear that
properly embracing the amended text of § 1442 and Latiolais would render
§ 1442 “limitless.” See ante, at 28. Again, with deepest respect for my
esteemed and learned colleagues, I think that fear is misplaced.
For one thing, the majority itself fully explains the limited nature of
the “acting under” prong of federal officer removal: § 1442 applies only to
defendants engaged in conduct “to assist, or to help carry out, the duties or
tasks of the federal superior,” not those merely subject to extensive federal
regulation, Watson, 551 U.S. at 152–53 (emphasis omitted), or those “simply
complying with the law,” see ante, at 13 (emphasis omitted) (quoting id. at
152); see also St. Charles Surgical Hosp., LLC v. La. Health Serv. & Indem. Co.
(St. Charles II), 990 F.3d 447, 455 (5th Cir. 2021) (“[T]he ‘acting under’
inquiry . . . requir[es] . . . the federal officer ‘exert[] a sufficient level of
subjection, guidance, or control’ over the private actor.” (citation omitted)).
But more importantly, the majority misunderstands the role of
§ 1442’s colorable federal defense prong. Focusing narrowly on the scope of
“relating to,” the majority instead worries that § 1442(a)(1) would be
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rendered “limitless” without today’s narrowing construction. Ante, at 28
(citing Watson, 551 U.S. at 147, 153). 5
I first (A) explain why the colorable federal defense prong of the
removal test serves to curb the test’s expansiveness. Then I (B) discuss one
of these defendants’ colorable defenses.
A.
As a preliminary matter, the colorable federal defense requirement
does not come from the text of § 1442. Instead, it derives from Article III as
a way of meeting “arising under” jurisdiction. See Mesa v. California, 489
U.S. 121, 136–37 (1989). Therefore, even if Congress had chosen not to limit
the removable conduct of federal officers to actions “relating to” official
directives, the statute would still be backstopped by Article III’s limits.
As a substantive matter, the federal defense requirement is admittedly
broad in its own right. But it simply ensures § 1442 “is broad enough to cover
all cases where federal officers can raise a colorable defense arising out of
their duty to enforce federal law.” Willingham, 395 U.S. at 406–07. It hinges
federal jurisdiction on federal defenses because “[o]ne of the primary
purposes of the removal statute . . . was to have such defenses litigated in the
federal courts.” Id. at 407; see also Mesa, 489 U.S. at 128(concluding Davis,100 U.S. 257
, “upheld the constitutionality of the federal officer removal
_____________________
5
Most of the concern about creating a “limitless” removal test seems to derive
from Watson. See ante, at 28 & n.78 (citing Watson, 551 U.S. at 147, 153). But Watson’s cautionary word about “expand[ing] the scope” of § 1442 predates the 2011 amendment and, as is discussed by the majority, that statement concerns the scope of § 1442’s “acting under” prong. See ante, at 12. Its relevance therefore pales in comparison to other cases’ reminders not to saddle § 1442 with “a narrow, grudging interpretation.” See Latiolais, 951 F.3d at 290 (citing Willingham,395 U.S. at 407
; Arizona v. Manypenny,451 U.S. 232, 242
(1981); and Jefferson Cnty. v. Acker,527 U.S. 423, 431
, (1999)).
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statute precisely because the statute predicated removal on the presence of a
federal defense”). And it would thwart that purpose to require “a clearly
sustainable defense[:] [t]he suit would be removed only to be dismissed.”
Willingham, 395 U.S. at 407. “Congress certainly meant more than th[at] when it chose the words ‘under color of . . . office.’ . . . The officer need not win his case before he can have it removed.”Ibid.
Following that logic, our court has confirmed “an asserted federal
defense is colorable unless it is ‘immaterial and made solely for the purpose
of obtaining jurisdiction’ or ‘wholly insubstantial and frivolous.’” Latiolais,
951 F.3d at 297 (quoting Zeringue v. Crane Co., 846 F.3d 785, 790(5th Cir. 2017) overruled in part by Latiolais,951 F.3d 286
). Because § 1442 “is a pure jurisdictional statute,” the removing defendant need only supply a defense that can “serve as the federal question that endues the court with jurisdiction.” Zeringue,846 F.3d at 789
(quotation omitted). Thus, in the
same way a complaint asserting a federal claim need not prove-up that claim
from the outset, so too a defendant asserting a colorable defense for the
purposes of § 1442 need not convince us of the merits of that defense. See id.
at 790.
Given that breadth, one might reasonably wonder whether the
colorable-defense requirement “remains a constitutional, viable, and
significant limitation on removability.” Latiolais, 951 F.3d at 296 (citing
Mesa, 489 U.S. at 136–37; Anthony J. Bellia, Jr., The Origins of Article III
“Arising Under” Jurisdiction, 57 Duke L.J. 263 (2007)). In my view, it
does.
Mesa proves it. There, two United States Postal Service mailtruck
drivers committed criminal traffic violations while on duty. Mesa, 489 U.S.
at 123. California charged one driver with “misdemeanor-manslaughter” after she struck and killed a cyclist.Ibid.
And the state charged the other
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driver with “speeding and failure to yield” after he “collided with a police
car.” Ibid.Both drivers were clearly acting in the scope of their federal duties. Both drivers removed to federal court, asserting only that “the state charges arose from an accident involving defendant which occurred while defendant was on duty and acting in the course and scope of her employment with the Postal Service.”Ibid.
(citation omitted). But the Supreme Court held both
drivers’ cases should be remanded for lack of federal jurisdiction under
§ 1442 because their petitions failed to raise any “colorable claim of federal
immunity or other federal defense.” Id. at 124. Simply acting as a federal
employee was not enough.
Mesa thus confirms that even where the other prongs of § 1442 are
indisputably met—there could be no serious argument that the mailtruck
drivers did not act under federal authority or that the challenged conduct was
not precisely the act authorized—the colorable federal defense element still
has teeth. Moreover, Mesa demonstrates there will be factual situations in
which a federal officer or someone acting under a federal officer could be
engaged in activities related to the federal authority, yet no federal defense
will apply. See Mesa, 489 U.S. at 136 (discussing the consequences of
eliminating the federal defense requirement). The colorable defense element
still bears these contours today, and so Latiolais’s new test—however
expansive it may be—did not render § 1442 “limitless.”
B.
Here, Shell and Chevron assert “immunity, preemption, and due
process” as their colorable federal defenses. Plaquemines (23-30294) Blue Br.
at 48; Cameron (23-30422) Blue Br. at 43. Because defendants need only
assert one such defense, I discuss only preemption. (This is not to say that
the other defenses might not also be colorable.)
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State laws are preempted “where compliance with both federal and
state regulations is a physical impossibility . . . .” Boggs v. Boggs, 520 U.S. 833,
844(1997) (citation omitted); see also Caleb Nelson, Preemption,86 Va. L. Rev. 225
, 228 (2000). The Supreme Court has also said preemption applies “where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Boggs,520 U.S. at 844
(citation omitted).
Defendants contend federal regulations preempt the parishes’ claims
in various ways. To consider just one example, they claim federal regulations
during WWII authorizing oil production activities conflict with the parishes’
assertion that those same production activities were unlawful. 6 The parishes’
claims contest wartime practices highly regulated by the PAW and
government contracts. If those practices violated Louisiana law, then it may
have been impossible to comply with both the federal directives and
Louisiana law. Defendants therefore suggest the state law “is inconsistent
with the federal scheme[, it] must give way.” Maryland v. Louisiana, 451 U.S.
725, 751(1981); ROA.23-30294.34357; see also Fla. Lime & Avocado Growers, Inc. v. Paul,373 U.S. 132
, 142–43 (1963) (“A holding of federal exclusion of
state law is inescapable and requires no inquiry into congressional design
where compliance with both federal and state regulations is a physical
impossibility for one engaged in interstate commerce.”). That is clearly
enough to raise a colorable federal defense.
_____________________
6
The majority contends that the federal regulations cannot support the “relating
to” analysis because regulations cannot satisfy the “acting under” prong of § 1442. Ante,
at 21–22 (citing Watson, 551 U.S. at 153). However, it does not follow from Watson that
regulations could not give rise to federal defenses under this separate § 1442 prong.
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* * *
During World War II, defendants were tasked with producing vast
amounts of avgas for our Nation’s war efforts. With our Greatest Generation
deployed in harm’s way on battlefields and airfields all around the world,
defendants increased their crude production so they could meet the Armed
Forces’ demands for avgas. The defendants’ decisions 80 years ago plainly
“related to” their avgas contracts and hence satisfy today’s federal officer
removal statute. With deepest admiration and respect for my colleagues who
reach a different conclusion, I would vacate the remand orders and allow this
case to proceed where it belongs: in federal court.
54
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