Application — Louisiana, ex rel. Jeff Landry, et al., Applicants v. BP America Production Company, et al.

Supreme Court briefJan 22, 2020

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No. 19A___

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In the Supreme Court of the United States

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STATE OF LOUISIANA, EX REL., 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; PARISH OF CAMERON,

Applicants,

BP AMERICA PRODUCTION COMPANY; CHEVRON PIPE LINE COMPANY; CHEVRON USA

HOLDINGS, INCORPORATED; CHEVRON USA, INCORPORATED; EXXON MOBIL

CORPORATION; KERR-MCGEE OIL & GAS ONSHORE, L.P.; SHELL OFFSHORE,

INCORPORATED; SHELL OIL COMPANY; SWEPI, L.P.; TEXAS COMPANY,

Respondents.

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On Application to Stay or Vacate Orders

of the United States Court of Appeals for the Fifth Circuit

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APPLICATION TO STAY OR VACATE

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Thomas C. Goldstein

Kevin K. Russell

Counsel of Record

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

kr@goldsteinrussell.com

Victor L. Marcello

TALBOT, CARMOUCHE & MARCELLO

17405 Perkins Rd.

Baton Rouge, LA 70810

Counsel for Cameron Parish

Ryan M. Seideman

Wilbur L. Stiles, III

Assistant Attorneys General

LOUISIANA DEPARTMENT OF JUSTICE

1185 North 3rd Street

Baton Rouge, LA 70802

Counsel for State of Louisiana

Donald W. Price, # 19452

Special Counsel

LOUISIANA DEPARTMENT OF NATURAL

RESOURCES

Post Office Box 94396

Baton Rouge, LA 70804

Counsel for Louisiana Department of

Natural Resources

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

STATEMENT ................................................................................................................. 3

REASONS TO STAY OR VACATE THE FIFTH CIRCUIT’S ORDERS ..................... 6

The Fifth Circuit’s Orders Demonstrably Violate The Anti-Injunction

Act And The Federal Removal Statute ............................................................ 9

II. The Underlying Appeal Is Likely To Be Reviewed And Reversed By

This Court If The Fifth Circuit Reverses The District Court’s Remand

Order ............................................................................................................... 16

III. The State Will Suffer Serious And Irreparable Harm If The Fifth

Circuit’s Rulings Stand ................................................................................... 23

IV. The Balance Of Equities Favors The State ................................................... 24

CONCLUSION............................................................................................................. 26

ATTACHMENT A: Remand Decision, Doc. 147 (W.D. La. Sept. 26, 2019)

ATTACHMENT B: Letter from District Court Clerk of Court to State Court Clerk

of Court, Doc. 149 (W.D. La. Sept. 26, 2019)

ATTACHMENT C: Fifth Circuit Stay Order (5th Cir. Nov. 4, 2019)

ATTACHMENT D: Fifth Circuit Injunction Order (5th Cir. Nov. 26, 2019)

TABLE OF AUTHORITIES

Cases

Abney v. United States,

431 U.S. 651 (1977) .................................................................................................. 19

Alabama v. Conley,

245 F.3d 1292 (11th Cir. 2001) ................................................................................ 17

Amalgamated Clothing Workers of Am. v. Richman Bros.,

348 U.S. 511 (1955) .............................................................................................. 9, 14

Atl. Coast Line R.R. v. Bhd. of Locomotive Eng’rs,

398 U.S. 281 (1970) .................................................................................... 6, 9, 10, 14

Betzner v. Boeing Co.,

910 F.3d 1010 (7th Cir. 2018) .................................................................................. 21

Cabalce v. Thomas E. Blanchard & Assocs., Inc.,

797 F.3d 720 (9th Cir. 2015) .................................................................................... 21

Cheney v. U.S. Dist. Court,

542 U.S. 367 (2004) .................................................................................................. 23

Coleman v. Paccar Inc.,

424 U.S. 1301 (1976) .................................................................................................. 7

In re Commonwealth’s Motion to Appoint Counsel Against or Directed to

Defender Ass’n of Phila.,

790 F.3d 457 (3d Cir. 2015)...................................................................................... 21

Davis v. Glanton,

107 F.3d 1044 (3d Cir. 1997).................................................................................... 17

Doe v. Gonzales,

546 U.S. 1301 (2005) .................................................................................................. 7

Garrison v. Hudson,

468 U.S. 1301 (1984) ................................................................................................ 24

Georgia v. Rachel,

384 U.S. 780 (1966) .................................................................................................. 13

Graddick v. Newman,

453 U.S. 928 (1981) .................................................................................................. 12

Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, Local

No. 70 of Alameda Cty.,

415 U.S. 423 (1974) .............................................................................................. 5, 15

Gregory v. Ashcroft,

501 U.S. 452 (1991) .................................................................................................. 22

Harmston v. City & County of San Francisco,

627 F.3d 1273 (9th Cir. 2010) .................................................................................. 18

Hollingsworth v. Perry,

558 U.S. 183 (2010) .............................................................................................. 8, 16

Jacks v. Meridian Res. Co.,

701 F.3d 1224 (8th Cir. 2012) .................................................................................. 17

Jefferson County v. Acker,

527 U.S. 423 (1999) .................................................................................................. 21

Johnson v. Jones,

515 U.S. 304 (1995) .................................................................................................. 19

Latiolais v. Huntington Ingalls, Inc.,

918 F.3d 406 (5th Cir. 2019) .............................................................................. 21, 22

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) .............................................................................. 17, 20

Maryland v. Soper (No. 1),

270 U.S. 9 (1926) .......................................................................................... 21, 22, 24

Mesa v. California,

489 U.S. 121 (1989) .................................................................................................. 19

Mitchell v. Forsyth,

472 U.S. 511 (1985) .................................................................................................. 19

Mitchum v. Foster,

407 U.S. 225 (1972) .................................................................................................. 11

Nat’l Socialist Party of Am. v. Village of Skokie,

432 U.S. 43 (1977) ...................................................................................................... 8

New York v. Kleppe,

429 U.S. 1307 (1976) ................................................................................................ 24

Nken v. Holder,

556 U.S. 418 (2009) .............................................................................................. 8, 16

Parish of Cameron v. Auster Oil & Gas, Inc.,

2018 WL 2144281 (W.D. La. May 9, 2018)................................................................ 3

Patel v. Del Taco, Inc.,

446 F.3d 996 (9th Cir. 2006) .................................................................................... 17

Purcell v. Gonzalez,

549 U.S. 1 (2006) .................................................................................................. 8, 16

San Deigans for the Mt. Soledad Nat’l War Mem’l v. Paulson,

548 U.S. 1301 (2006) .................................................................................................. 7

iii

Sanchez v. Onuska,

2 F.3d 1160, 1993 WL 307897 (10th Cir. 1993) ...................................................... 17

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017) .................................................................................... 21

Smith v. Bayer Corp.,

564 U.S. 299 (2011) .............................................................................................. 9, 10

State Farm Mut. Auto. Ins. Co. v. Baasch,

644 F.2d 94 (2d Cir. 1981)........................................................................................ 17

Swint v. Chambers Cty. Comm’n,

514 U.S. 35 (1995) .................................................................................................... 19

Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976) .............................................................................................. 5, 15

Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995) .................................................................................................. 17

United States v. Rice,

327 U.S. 742 (1946) .............................................................................................. 6, 13

Vendo Co. v. Lektro-Vend Corp.,

433 U.S. 623 (1977) .................................................................................................. 11

W. Airlines, Inc. v. Int’l Bhd. of Teamsters,

480 U.S. 1301 (1987) .................................................................................................. 8

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) .................................................................................................... 4

Will v. United States,

389 U.S. 90 (1967) .................................................................................................... 23

Willingham v. Morgan,

395 U.S. 402 (1969) .................................................................................................. 21

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996) .................................................................................................. 20

Statutes

Act of June 25, 1948, ch. 646, 62 Stat. 869 ................................................................. 13

Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 .......................................... 5

Louisiana Coastal Zone Management Act, La. Rev. Stat. § 49:214.21 et seq. ............. 3

Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545 ...... 5, 21, 22, 23

28 U.S.C. § 1291 ........................................................................................................... 18

28 U.S.C. § 1292(b) ...................................................................................................... 20

28 U.S.C. § 1441 ............................................................................................................. 3

28 U.S.C. § 1442 ................................................................................................. 4, 21, 23

28 U.S.C. § 1442(a)(1) .................................................................................................. 21

28 U.S.C. § 1442(a)(1) (2006) ....................................................................................... 21

28 U.S.C. § 1442(c) ....................................................................................................... 23

28 U.S.C. § 1446(d) ...................................................................................... 3, 10, 11, 13

28 U.S.C. § 1447(c) ............................................................................................... passim

28 U.S.C. § 1447(d) .............................................................................................. passim

28 U.S.C. § 1651 ......................................................................................................... 1, 7

28 U.S.C. § 2101(f) ......................................................................................................... 1

28 U.S.C. § 2283 ............................................................................................... 2, 6, 9, 10

42 U.S.C. § 1349(b)(1) .................................................................................................... 3

Rules

Sup. Ct. R. 22 ................................................................................................................. 1

Sup. Ct. R. 23 ............................................................................................................. 1, 7

Other Authorities

H.R. Rep. No. 112-17, pt. 1 (2011) ................................................................... 19, 22, 23

Stephen M. Shapiro et al., Supreme Court Practice (11th ed. 2019) ........................... 7

TO THE HONORABLE SAMUEL A. ALITO, ASSOCIATE JUSTICE OF THE

UNITED STATES AND CIRCUIT JUSTICE FOR THE FIFTH CIRCUIT:

Pursuant to this Court’s Rules 22 and 23, the All Writs Act, 28 U.S.C. § 1651,

and 28 U.S.C. § 2101(f), the State of Louisiana, ex rel. Attorney General Jeff Landry

and through its Department of Natural Resources, Office of Coastal Management,

and its Secretary, Thomas F. Harris, along with the Parish of Cameron (collectively,

“the State”), respectfully request that this Court vacate certain orders issued by the

United States Court of Appeals for the Fifth Circuit, or stay such orders pending

consideration and disposition of the appeal in this case in the Fifth Circuit and, if the

court of appeals reverses, pending the filing and disposition of a petition for a writ of

certiorari and any further proceedings in this Court in this case.

This application arises from a lawsuit filed by the State in state court to enforce

state law. Defendants removed the case to federal court, which determined that the

removal grounds asserted were unsupported. The court thus remanded the case to

state court and, as required by 28 U.S.C. § 1447(c), mailed a copy of the remand order

to the clerk of that court. Under this statute, upon mailing of the remand order, the

“State court may thereupon proceed with such case.” Ibid.

After the remand order was mailed and authority transferred back to the state

court, Defendants filed a notice of appeal and obtained a “stay” of the already

executed remand order from the Fifth Circuit. In a subsequent order, the Fifth

Circuit

enjoined

any

state

court

litigation

pending

the

federal

appeal,

notwithstanding the express terms of the Anti-Injunction Act (AIA), which provides

that “[a] court of the United States may not grant an injunction to stay proceedings

in a State court except as expressly authorized by Act of Congress, or where necessary

in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283.

Neither the stay nor the injunction was accompanied by an opinion or contained any

reasoning. The court thus did not identify which (if any) AIA exception it believed

applicable to this case and, as discussed below, none is.

The Fifth Circuit’s violation of the AIA, and unjustified interference with the

State’s statutory right to proceed with pretrial proceedings in state court pending

appeal of the remand order, warrants immediate review by this Court. Because the

injunction will expire when the Fifth Circuit resolves the appeal, the State will have

no opportunity to seek relief from this Court other than through this application.

Accordingly, the State requests that this Court either vacate the Fifth Circuit’s

unlawful orders or stay them pending the conclusion of the remand appeal and any

subsequent proceedings seeking review of that decision in this Court.

In the

alternative, the State requests that the Court treat this application as a petition for

a writ of certiorari and summarily reverse the Fifth Circuit’s injunction and stay

order.

STATEMENT

The State of Louisiana and Cameron Parish sued Defendants, a number of oil

producers, in state court.1 The suits alleged that Defendants had engaged in a variety

of activities resulting in the degradation of Louisiana’s costal lands in violation of the

Louisiana Coastal Zone Management Act, La. Rev. Stat. § 49:214.21 et seq.

Defendants removed the case to federal district court pursuant to 28 U.S.C.

§ 1441, asserting the case came within that court’s original jurisdiction under a

provision of the Outer Continental Shelf Lands Act, 42 U.S.C. § 1349(b)(1), and on

the basis of admiralty and federal question jurisdiction. See Attachment A, at 3. The

federal removal statute provides that once a notice of removal is filed, “the State court

shall proceed no further unless and until the case is remanded.” 28 U.S.C. § 1446(d).

In compliance with that requirement, the state court ended proceedings while the

case was removed to federal court.

After a delay of nearly two years, the federal district court rejected Defendants’

removal claims and remanded the case to state court. See Parish of Cameron v. Auster

Oil & Gas, Inc., 2018 WL 2144281, at *3-4 (W.D. La. May 9, 2018). Two weeks later,

Defendants removed the case again, raising a new theory about why the State’s

exclusively state law claims purportedly supported federal question jurisdiction. See

Attachment A, at 3, 20-26. They also claimed removal was permitted under the

The suit was initially filed by the Parish of Cameron. The Louisiana Attorney

General and the Louisiana Department of Natural Resources subsequently

intervened as plaintiffs.

federal officer removal provision because a portion of the activity relevant to the

State’s claims took place during World War II, when the federal government had

allegedly regulated oil production extensively in support of the war effort. See id. at

3, 9-20; 28 U.S.C. § 1442 (authorizing removal of suits against defendants “acting

under” federal officers “for or relating to any act under color of such office”).

After a further delay of sixteen months, the federal district court again

remanded. See Attachment A. The district court found that “Defendants have not

demonstrated the ‘subjection, guidance, or control’ required to show that they were

acting under a federal office or officer.” Id. at 16 (citing Watson v. Philip Morris Cos.,

551 U.S. 142 (2007)). In particular, “Defendants have not shown that their World

War II era activities were mandated by [the federal Petroleum Administration for

War] or any other federal agency.” Ibid. Instead, “the record demonstrates little

more than a regulated industry complying with the requirements of a federal

regulatory regime,” ibid., which this Court has held insufficient to support federal

officer removal, see Watson, 551 U.S. at 153. The court further rejected Defendants’

claim that the complaint’s state law claims gave rise to federal question jurisdiction.

Attachment A, at 20-26. The court therefore granted the motion for remand, id. at

26, and mailed a copy of the order to the state court, see Attachment B.

The federal removal statute provides that once the district court decides to

remand a case, “[a] certified copy of the order of remand shall be mailed by the clerk

to the clerk of the State court. The State court may thereupon proceed with such case.”

28 U.S.C. § 1447(c) (emphasis added). This is consistent with Congress’s general

design of the federal removal statute, which is intended to “prevent delay in the trial

of remanded cases by protracted litigation of jurisdictional issues.”

Thermtron

Prods., Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976). To that end, for most of the

history of federal removal, Congress generally prohibited any appeal of remand

decisions. Ibid. Congress has in more recent times created limited exceptions to that

rule, including for cases removed under the federal officer removal provision. See

Removal Clarification Act of 2011, Pub. L. No. 112-51, 125 Stat. 545 (allowing appeals

of remands in federal officer cases); Civil Rights Act of 1964, Pub. L. No. 88-352, § 901,

78 Stat. 241, 266 (same for civil rights cases). But Congress has not changed Section

1447(c)’s explicit conferral of authority upon state courts to proceed with the case

immediately upon mailing of the remand order. As a result, while a defendant is

entitled to appeal a denial of federal officer removal, pretrial preparations may

continue in state court. Any request to stay those state court proceedings pending

the federal appeal must be directed to the state court, subject to review in the state

court system and, eventually, by this Court. If the remand is reversed, the case will

return to federal court, whereupon the federal district court may decide de novo

whether to adopt or reject any orders issued by the state court in the interim. See,

e.g., Granny Goose Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers, Local No.

70 of Alameda Cty., 415 U.S. 423, 437 (1974).

The authority of state courts to proceed with the case once the remand order is

mailed is further protected by the Anti-Injunction Act, which broadly prohibits

federal courts from enjoining state court proceedings, with only three narrow

exceptions. See 28 U.S.C. § 2283.

In this case, the district court mailed its remand order to the state court on

September 26, 2019. See Attachment B. More than a week later, Defendants asked

the Fifth Circuit to stay the already executed remand order. See Def. C.A. Stay Mot.

In summary orders containing no reasoning, the Fifth Circuit granted the stay, see

Attachment C, and after proceedings were reinstituted in state court, issued an

injunction enjoining the State from further proceeding on its strictly state law claim

in its own court, see Attachment D.2 The Fifth Circuit’s clerk’s office subsequently

informed the State that no petition for rehearing en banc of those orders would be

accepted.

REASONS TO STAY OR VACATE THE FIFTH CIRCUIT’S ORDERS

The State filed this action in state court, to enforce state law, in 2016. Despite

Congress’s “established . . . policy of not permitting interruption of the litigation of

the merits of a removed cause by prolonged litigation of questions of jurisdiction of

the district court to which the cause is removed,” United States v. Rice, 327 U.S. 742,

751 (1946), the case has spent nearly 90% of the last three and a half years in federal

court on the basis of removal claims the district court has twice determined to lack

any merit. The Fifth Circuit’s injunction against further state court proceedings not

The injunction is technically directed against the Plaintiffs, but that makes no

difference under the AIA. See Atl. Coast Line R.R. v. Bhd. of Locomotive Eng’rs, 398

U.S. 281, 287 (1970).

only extends this intolerable delay but also violates the unambiguous terms of the

Anti-Injunction Act and the federal removal statute. Such a disregard for the limits

of the court’s authority, and interference with the lawful functioning of the state

courts, warrants correction by this Court. Moreover, because the error is effectively

unreviewable by this Court upon final judgment from the court of appeals—by that

point, the injunction will have expired and any challenge to it will be moot—it is

imperative that the Court correct the Fifth Circuit’s decision now by staying or

vacating its injunction and stay of the district court’s remand order.

The Court has a variety of mechanisms for providing that relief. Under this

Court’s Rule 23 and the All Writs Act, 28 U.S.C. § 1651, a single Justice or the Court

has authority to stay a lower court order pending appeal to a court of appeals or to

vacate a stay issued by a lower court pending that appeal.3 Here, the Fifth Circuit

stayed the district court’s remand order and, through an injunction, effectively stayed

the state court proceedings. The Court will vacate a court of appeals’ interlocutory

stay order “where it appears that the rights of the parties to a case pending in the

court of appeals, which case could and very likely would be reviewed here upon final

disposition in the court of appeals, may be seriously and irreparably injured by the

stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably

wrong in its application of accepted standards in deciding to issue the stay.” Coleman

See, e.g., San Deigans for the Mt. Soledad Nat’l War Mem’l v. Paulson, 548 U.S.

1301 (2006) (Kennedy, J., in chambers); Doe v. Gonzales, 546 U.S. 1301 (2005)

(Ginsburg, J., in chambers); Stephen M. Shapiro et al., Supreme Court Practice 17-6,

17-18 (11th ed. 2019).

v. Paccar Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist., J., in chambers); see also, e.g.,

W. Airlines, Inc. v. Int’l Bhd. of Teamsters, 480 U.S. 1301, 1305 (1987) (O’Connor, J.,

in chambers) (same standard).4

The Court may also treat an application for a stay of a court of appeals’ order

as a petition for a writ of certiorari. See, e.g., Nken v. Holder, 556 U.S. 418, 423 (2009);

Purcell v. Gonzalez, 549 U.S. 1, 2 (2006) (per curiam); Nat’l Socialist Party of Am. v.

Village of Skokie, 432 U.S. 43, 44 (1977) (per curiam). The Court may elect to do so

when, for example, it determines that the court of appeals’ interlocutory order itself

warrants review, even if the court of appeals’ eventual decision on the merits of the

appeal may not. See, e.g., Nken, 556 U.S. at 423 (construing application for stay of

deportation as petition for certiorari to address standard for issuing such stays);

Purcell, 549 U.S. at 2 (construing Arizona’s application for relief from court of appeals’

interlocutory injunction as petition for certiorari, granting petition, and summarily

vacating).

The State is entitled to relief under any of these standards.

In the more common case in which a party seeks a stay of a preliminary or final

judgment of a lower court on the merits of the lawsuit, the Court considers similar

factors, including whether there is “(1) a reasonable probability that four Justices will

consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that

a majority of the Court will vote to reverse the judgment below; and (3) a likelihood

that irreparable harm will result from the denial of a stay.” Hollingsworth v. Perry,

558 U.S. 183, 190 (2010) (per curiam). “In close cases the Circuit Justice or the Court

will balance the equities and weigh the relative harms to the applicant and to the

respondent.” Ibid. Relief would be warranted here under that standard as well.

The Fifth Circuit’s Orders Demonstrably Violate The Anti-Injunction

Act And The Federal Removal Statute.

The Anti-Injunction Act forbids a federal court from issuing any “injunction to

stay proceedings in a State court” except in three narrowly defined circumstances. 28

U.S.C. § 2283. The AIA’s “core message is one of respect for state courts.” Smith v.

Bayer Corp., 564 U.S. 299, 306 (2011).

“The Act broadly commands that those

tribunals ‘shall remain free from interference by federal courts.’” Ibid. (quoting Atl.

Coast Line R.R. v. Bhd. of Locomotive Eng’rs, 398 U.S. 281, 282 (1970)). Congress

has “made clear beyond cavil that the prohibition is not to be whittled away by judicial

improvisation.” Amalgamated Clothing Workers of Am. v. Richman Bros., 348 U.S.

511, 514-16 (1955).

Accordingly, any “doubts as to the propriety of a federal

injunction against state court proceedings should be resolved in favor of permitting

the state courts to proceed in an orderly fashion to finally determine the controversy.”

Atl. Coast Line, 398 U.S. at 297.

Although the State raised the AIA in its opposition to Defendants’ request for

an injunction, the Fifth Circuit declined to explain why it believed its injunction was

consistent with the AIA. It plainly does not fall within the exception for injunctions

“necessary in aid of [the court’s] jurisdiction.” 28 U.S.C. § 2283. This Court has held

for decades that the mere existence of concurrent state and federal litigation on the

same matter does not amount to interference with federal jurisdiction sufficient to

invoke this exception. See Atl. Coast Line, 398 U.S. at 295-96. Instead, the exception

allows an injunction only to “prevent a state court from so interfering with a federal

court’s consideration or disposition of a case as to seriously impair the federal court’s

flexibility and authority to decide that case.” Id. at 295. Here, allowing pretrial

proceedings to continue in state court pending the federal appeal of the remand order

in no way impairs the Fifth Circuit’s ability to decide whether the remand was in

error.

The exception for injunctions to “protect or effectuate [the federal court’s]

judgments” is obviously inapplicable as well. 28 U.S.C. § 2283. This “relitigation

exception” is “designed to implement ‘well-recognized concepts’ of claim and issue

preclusion.” Smith, 564 U.S. at 306 (citation omitted). Here, because the Fifth

Circuit has yet to issue any judgment, it could not have justified its injunction as

necessary to protect or effectuate the preclusive effect of its not-yet-issued judgment.5

Instead, Defendants principally argued below that the injunction fell within a

recognized exception for removed cases, which is ultimately founded in the “expressly

authorized by Act of Congress” exception. The removal statute expressly provides

that upon removal, “the State court shall proceed no further unless and until the case

is remanded.”

28 U.S.C. § 1446(d).

This Court has treated that provision as

satisfying the AIA’s “expressly authorized” exception, thereby allowing federal courts

Before the Fifth Circuit, Defendants briefly argued that because they had first

obtained a stay before seeking an injunction, the injunction could be justified as

necessary to prevent the state court from relitigating the propriety of the stay. But,

the Fifth Circuit did not simply enjoin the state court from relitigating the propriety

of the stay—it barred any further state court proceedings at all. Such an injunction

could only be justified under the relitigation exception if the purpose of the stay order

was to preclude any further state court litigation in the case pending appeal. And if

that was the purpose of the stay order, it was unlawful under the AIA as well for the

reasons discussed herein. (Defendants do not claim that the stay order fell within the

relitigation exception.)

to enjoin state courts in removed cases from proceeding further unless and until the

cases are remanded. See Mitchum v. Foster, 407 U.S. 225, 234 & n.12 (1972) (citing

what is now Section 1446(d)); see also Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623,

640 (1977) (plurality opinion) (citing same provision as justifying exception). Under

this line of cases, then, federal courts may issue injunctions to enforce compliance

with the removal statute’s express restriction on state courts’ authority to litigate

removed cases.

That line of authority is inapplicable to this case, however, because the state

court faithfully complied with the removal statute.

Upon removal, the court

proceeded no further “until the case [was] remanded.” 28 U.S.C. § 1446(d). And if

there were any question about the state court’s authority to proceed immediately

upon remand, it is eliminated by Section 1447(c)’s declaration that once a certified

copy of the remand order is mailed to the clerk of the state court, the “State court may

thereupon proceed with such case.” Id. § 1447(c).

Defendants argued, and the Fifth Circuit seemingly accepted, that the federal

courts have the power to override the statutory text by issuing a “stay” of the remand

order even after it has been mailed, which purportedly has the effect of returning the

case to the status it had before the mailing of the remand order—i.e., removed and

not yet remanded. And on the basis of that fiction, Defendants argued that the case

fell within the rule allowing injunctions against state courts that are violating the

statutory command against proceeding with a removed case unless and until it has

been remanded.

But Defendants were unable to cite any case holding that a court of appeals

can countermand the statutory grant of permission for the state court to proceed by

issuing a stay of the remand order after the remand order was mailed and authority

already conferred on the state court. The State is aware of no such precedent. Which

is unsurprising. To start, “[o]rdinary linguistic usage suggests that an order, once

executed, cannot be ‘stayed.’ Affirmative action then becomes necessary to restore

the status quo.” Graddick v. Newman, 453 U.S. 928, 936 (1981).6 And the propriety

of that affirmative action must be “considered under different standards governing

affirmative relief.” Ibid. Here, at the time the Fifth Circuit purported to issue its

“stay,” the remand had already been effectuated by mailing the order to the state

court. Undoing the legal effect of the remand required “[a]ffirmative action” (an order

enjoining the state court litigation) which had to be “considered under different

standards governing affirmative relief,” ibid., standards that included the limitations

imposed by the AIA. The court of appeals thus could not avoid the AIA’s limitations

by simply denominating its order a “stay” rather than an injunction.

In addition, whatever power courts might otherwise have to issue “stays” with

retroactive effect, the removal act precludes any such power over executed remand

orders. The statute does not say that the state court may proceed with a case after

remand “unless and until the remand order is stayed.” Quite to the contrary, it says

that the state court can proceed upon mailing of the remand order, full stop. Congress

See 453 U.S. at 936-37 (Court could not “stay” an order for release of inmates

that had already been carried out).

knew how to include further qualifications. In fact, it did so in the parallel provision

prohibiting a state court from proceeding with a removed case “unless and until the

case is remanded.” 28 U.S.C. § 1446(d).

There is every reason to believe Congress meant what it said. When Congress

added the language allowing a court to proceed upon the mailing of a remand order,

appeals of remand orders were generally forbidden.7

Congress could not have

contemplated an exception for remand orders that had been stayed by an appellate

court, because no such stay (or appeal) would have been proper. When Congress later

created two limited exceptions to the ban on remand appeals, it elected not to amend

Section 1447(c) to create an exception for appealable remand orders. Perhaps the

Fifth Circuit thinks that was a mistake. But it lacked the power to rewrite the statute

to conform to what it believes to be the better policy. Cf. Rice, 327 U.S. at 751-52

(refusing to read new statute authorizing removal by the United States to impliedly

create an exception for such cases to general statutory bar on appeal of remand

orders, even though “[i]t may be arguable, as a matter of policy, that in giving the

Government the right to intervene and remove a cause from a state court, [Congress]

should also have been given the right, not allowed to private litigants, to have orders

of remand reviewed in the appellate courts”).

That language was added in 1948. See Act of June 25, 1948, ch. 646, 62 Stat.

869, 939. In 1887, Congress had prohibited appellate review of remand orders, with

the first exception added only in 1964 (for civil rights cases). See Georgia v. Rachel,

384 U.S. 780, 786-87 (1966).

Under the statute as written, the Defendants are still entitled to pursue their

federal appeal which, if successful, will result in the case returning to federal court.

There is nothing incongruous about allowing trial preparations to proceed while a

jurisdictional question is appealed—it happens all the time in the federal system,

whenever a stay pending an interlocutory appeal is denied. Nor does the fact that

those trial preparations will occur in state court make any difference. It is not

uncommon for state and federal courts to exercise concurrent jurisdiction over the

same controversy, and this Court has made clear that the prospect of such parallel

litigation is no basis for enjoining the state court proceedings. See, e.g., Atl. Coast

Line, 398 U.S. at 295. Indeed, the AIA prohibits injunctions against state court

litigation even when federal law clearly gives federal courts exclusive jurisdiction over

the subject matter. See Amalgamated Clothing Workers, 348 U.S. at 514-16.

Consistent with that tradition, the federal circuits have long heard appeals

from remand orders while the cases were being litigated on remand in the state

courts. That is, in fact, happening right now in a series of similar cases in the First,

Fourth, and Tenth Circuits, with this Court’s recent approval.8 In each case, a State,

county, or municipality brought state law environmental claims against private

defendants in state court. In each, the defendants removed the cases to federal court,

asserting federal officer removal theories. The district courts rejected those removal

See Rhode Island v. Shell Oil Prods. Co., No. 19-1818 (1st Cir. Oct. 7, 2019);

Mayor & City Council of Balt. v. BP P.L.C., No. 19-1644 (4th Cir. Oct. 1, 2019); Bd. of

Cty. Comm’rs of Boulder Cty. v. Suncor Energy (U.S.A.) Inc., No. 19-1330 (10th Cir.

Oct. 17, 2019).

claims, but delayed mailing the remand orders to the state court in order to allow the

defendants to seek a stay from the court of appeals.9 When those courts all denied

stays, the defendants sought stays directly from this Court. In October, the Court

denied one application that had been referred to the full Court without dissent (with

Justice Alito recused).10

The others were then denied by the relevant Circuit

Justice.11 As a result, the cases have returned to state court for further proceedings

pending appeal of the remand orders.

The benefit of this system is that if the defendant’s appeal is denied, the appeal

will not have delayed the state court litigation. And even if the appeal is successful,

the state court proceedings may materially advance the litigation upon its return to

federal court. See, e.g., Granny Goose Foods, 415 U.S. at 437 (federal district court

may elect to adopt rulings from state court prior to removal).

To the extent there is an inevitable trade-off between the costs and benefits of

allowing the state court litigation to proceed while the federal appeal is resolved,

Congress has repeatedly resolved such trade-offs in favor of protecting against the

prospect that the federal removal statute will delay the resolution of cases that

rightfully belong in state court. See Thermtron, 423 U.S. at 351.

Because the district court delayed mailing the remand order, the provision of

Section 1447(c) authorizing state courts to continue proceedings upon such mailing

was not triggered.

See BP P.L.C. v. Mayor & City Council of Balt., No. 19A368.

See BP P.L.C. v. Rhode Island, No. 19A391; Suncor Energy (USA) v. Bd. of Cty.

Comm’rs of Boulder Cty., No. 19A428.

Accordingly, relief from the Fifth Circuit’s injunction and stay is warranted

here “[g]iven the importance of the issues at stake” and the fact that the Fifth

Circuit’s orders “likely violated a federal statute.” Hollingsworth v. Perry, 558 U.S.

183, 190-91 (2010) (per curiam).

II.

The Underlying Appeal Is Likely To Be Reviewed And Reversed By

This Court If The Fifth Circuit Reverses The District Court’s Remand

Order.

For the reasons just discussed, if given the opportunity, it is likely that this

Court would grant review of the Fifth Circuit’s injunction and reverse it. Unlike the

typical case, however, the Court will never get that chance other than through ruling

on this application—once the appeal is concluded, the injunction will expire of its own

force and any challenge to it will become moot. Accordingly, the Court should grant

this application even if it believed the underlying appeal was unlikely to warrant

review in its own right (if necessary, by treating the application as a petition for a

writ of certiorari, see, e.g., Nken, 556 U.S. at 423; Purcell, 549 U.S. at 2).

But even if it were necessary for the State to also show that the underlying

appeal is also worthy of the Court’s review, the State can make that showing, too.

1. As noted, under 28 U.S.C. § 1447(d), an “order remanding a case to the State

court from which it was removed is not reviewable on appeal or otherwise, except that

an order remanding a case to the State court from which it was removed pursuant to

section 1442 [federal officer removal] or 1443 [civil rights removal] of this title shall

be reviewable by appeal or otherwise.” Defendants invoked the exception for federal

officer removal claims to take an appeal in this case. They have insisted, however,

that having done so, they are entitled to review of the district court’s rejection of all

of their removal theories, including those that would ordinarily be barred from appeal

by Section 1447(d). See Defs. C.A. Br. 2-3, 55. Accordingly, they have urged the Fifth

Circuit to reverse on the ground that the district court erroneously concluded it lacked

federal question jurisdiction, id. 55-69, even though Section 1447(d) would forbid an

appeal raising that question alone. See Things Remembered, Inc. v. Petrarca, 516

U.S. 124, 127-28 (1995).

If the Fifth Circuit accepts Defendants’ jurisdictional argument in this case, it

will align itself with the rule in the Seventh Circuit,12 but put itself in conflict with

the law of at least five other courts of appeal.13

There is a reasonable probability that this Court would grant review of such a

decision and reverse it. Importantly, Defendants’ proposed rule comes into play only

if the court of appeals finds the federal officer removal claims meritless—if the Court

accepts the federal officer claim, it will reverse the remand and the federal question

jurisdiction claim will be moot. Accordingly, in application, the rule Defendants

advance is that a party may evade the jurisdictional limits of Section 1447(d) by

See Lu Junhong v. Boeing Co., 792 F.3d 805, 811 (7th Cir. 2015).

See State Farm Mut. Auto. Ins. Co. v. Baasch, 644 F.2d 94, 97 (2d Cir. 1981)

(per curiam); Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997); Jacks v. Meridian

Res. Co., 701 F.3d 1224, 1229 (8th Cir. 2012); Patel v. Del Taco, Inc., 446 F.3d 996,

998 (9th Cir. 2006); Alabama v. Conley, 245 F.3d 1292, 1293 (11th Cir. 2001) (per

curiam); see also Sanchez v. Onuska, 2 F.3d 1160, 1993 WL 307897, at *1 (10th Cir.

1993) (per curiam).

appending a meritless federal officer removal claim to an otherwise unreviewable

assertion of federal question jurisdiction. That cannot be, and is not, right.

Defendants’ only basis for this untenable result is that Section 1447(d)’s

exception for federal officer removal claims provides that “an order remanding a case

to the State court from which it was removed pursuant to section 1442 or 1443 of this

title shall be reviewable by appeal or otherwise.” 28 U.S.C. § 1447(d) (emphasis

added). They say that the word “order” authorizes review of the district court’s

rejection of both their federal officer claims and any other removal theory rejected in

the same order. Defs. C.A. Br. 55-56.

That argument puts far more weight on the word “order” than it can bear. The

function of the cited language is not to authorize broad review of the entirety of the

remand order. Indeed, the language does not authorize review at all—it simply

removes the complete bar to appellate review otherwise established by the rest of the

provision.

Thus, the proviso states that the order is “reviewable,” leaving the

question of how it is to be reviewed (“by appeal or otherwise”) and the scope of that

review to be determined by other sources of law. See, e.g., Harmston v. City & County

of San Francisco, 627 F.3d 1273, 1278 (9th Cir. 2010) (considering whether denial of

federal officer removal is reviewable by appeal or mandamus). To say that an order

is reviewable is not to say that every issue decided in the order is subject to challenge.

For example, 28 U.S.C. § 1291 provides that a “final decision[]” is appealable. But

that does not mean that every aspect of that decision is subject to appellate review.

This Court has held, for example, that a denial of qualified immunity is a “final

decision,” under the collateral order doctrine and is therefore immediately reviewable

on appeal. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). But the Court has also

held that the scope of the review is limited by the rationale for permitting an

immediate appeal in derogation of the usual bar against appeal of interlocutory

orders. See Johnson v. Jones, 515 U.S. 304, 313 (1995) (only aspect of order subject

to appellate review is question whether defendant’s alleged conduct violated clearly

established law); Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 43-51 (1995)

(rejecting claims of “pendent party” or “pendent appellate jurisdiction” to expand

scope of qualified immunity appeal); Abney v. United States, 431 U.S. 651, 662-63

(1977) (interlocutory appeal permitted to challenge denial of double jeopardy defense

does not authorize review of court’s denial, in the same order, of defendants’ challenge

to the sufficiency of the indictment to charge an offense).

Nor can Defendants’ attempt to broaden their appeal right be reconciled with

the purposes of the federal officer exception in Section 1447(d). Congress created that

exception to “ensure that any individual drawn into a State legal proceeding based

on that individual’s status as a Federal officer has the right to remove the proceeding

to a U.S. district court for adjudication.” H.R. Rep. No. 112-17, pt. 1, at 1 (2011)

(House Report); see also, e.g., Mesa v. California, 489 U.S. 121, 137 (1989) (purpose

of federal officer removal is to “provide a federal forum for cases where federal officials

must raise defenses arising from their official duties”) (citation omitted). When a

court of appeals has determined that the defendant is not entitled to federal officer

removal, those purposes no longer support exceptional treatment.

This Court’s decision in Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199

(1996), does not support the contrary conclusion. Contra Lu Junhong v. Boeing Co.,

792 F.3d 805, 811-12 (7th Cir. 2015). There, this Court held that when a district court

certifies an “order” for interlocutory review under 28 U.S.C. § 1292(b) on the ground

that it “involves a controlling question of law as to which there is substantial ground

for difference of opinion,” ibid., appellate review is not restricted to that particular

legal issue, but extends to the correctness of the order in its entirety. See 516 U.S. at

205. But the language and purposes of that provision are markedly different. As

noted, Section 1447(d) merely makes the remand order “reviewable” without

addressing the scope of review. Section 1292(b), in contrast, directly authorizes “an

appeal to be taken from such order.” Moreover, the considerations informing the

scope of review are dramatically different. Section 1292(b) permits review only upon

the concurrence of both the district court and the court of appeals. Defendants’

interpretation of Section 1447(d), by contrast, entitles defendants to an appeal as of

right, with no gatekeeping by any court. Moreover, while Section 1292(b) permits the

acceleration of an appeal that would otherwise be permitted at the end of the case,

Defendants’ theory entitles them to immediate appellate review of a question that

would otherwise be completely unreviewable if unaccompanied by a (meritless) federal

officer removal claim.

Were the Fifth Circuit to avoid ruling on the scope of its appellate

jurisdiction by reversing the district court’s federal officer removal holding alone, the

case would still warrant this Court’s review.

As the district court noted, the Fifth Circuit recently granted rehearing en banc

to resolve what nexus Section 1442 requires between a federal officer and the

plaintiff’s alleged injury. See Attachment A, at 19 (explaining rehearing granted in

Latiolais v. Huntington Ingalls, Inc., 918 F.3d 406 (5th Cir. 2019)). Before the

Removal Clarification Act of 2011, Section 1442 authorized removal of a suit against

person acting under a federal officer only when the suit was “for any act under color

of such office.” 28 U.S.C. § 1442(a)(1) (2006). This Court repeatedly construed that

language to require “a nexus, a “‘causal connection” between the charged conduct and

asserted official authority.’” Jefferson County v. Acker, 527 U.S. 423, 431 (1999)

(quoting Willingham v. Morgan, 395 U.S. 402, 409 (1969), in turn quoting Maryland

v. Soper (No. 1), 270 U.S. 9, 33 (1926)).

In 2011, Congress amended Section 1442 to allow removal of suits against

those acting under federal officers “for or relating to any act under color of such office.”

28 U.S.C. § 1442(a)(1) (emphasis added). Two circuits have since construed the

revision to effectively overrule this Court’s prior decisions requiring a causal nexus

in cases such as this. See Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 257-58 (4th

Cir. 2017); In re Commonwealth’s Motion to Appoint Counsel Against or Directed to

Defender Ass’n of Phila., 790 F.3d 457, 470-72 (3d Cir. 2015). Others, however, have

continued to apply the causal nexus test. See Betzner v. Boeing Co., 910 F.3d 1010,

1015 (7th Cir. 2018); Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720,

727 (9th Cir. 2015).

The district court concluded that Defendants could not meet any nexus

requirement. See Attachment A, at 19. But if the Fifth Circuit disagrees and reverses

the district court’s remand order under a standard requiring no causal nexus

(presumably dictated by the forthcoming en banc decision in Latiolais, which was

argued last September), that decision would warrant this Court’s review in light of

the circuit conflict. The Court also would likely reverse. The causal connection

requirement has been an established element of federal officer removal for nearly a

century. See, e.g., Soper (No. 1), 270 U.S. at 33 (applying requirement in 1926). The

Court should not lightly assume Congress intended to eliminate it, and massively

expand the scope of federal officer removal, through the insertion of the simple phrase

“or relating to.”

If “Congress intends to alter the usual constitutional balance between the

States and the Federal Government, it must make its intention to do so unmistakably

clear in the language of the statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)

(internal quotation marks omitted). The addition of the “relating to” language does

not meet that standard. Instead, the phrase performs a far more limited function.

Congress enacted the Removal Clarification Act of 2011 in response to a circuit

conflict that had arisen over when a federal officer may remove a case in which the

officer is not a party, but is subject to a court order in the litigation (e.g., a subpoena,

discovery order, or other judicial order). See House Report 2 (“Th[is] bill responds to

recent Federal court cases that reflect an inter- and intra-circuit split as to whether

State ‘pre-suit discovery’ laws qualify as civil actions or criminal prosecutions that

are removable under § 1442.”). It thus added what is now subsection (c) of Section

1442, declaring that the term “civil action” includes “any proceeding (whether or not

ancillary to another proceeding) to the extent that in such proceeding a judicial order,

including a subpoena for testimony or documents, is sought or issued. If removal is

sought for a proceeding described in the previous sentence, and there is no other basis

for removal, only that proceeding may be removed to the district court.” Removal

Clarification Act of 2011, § 2(a)(2), 125 Stat. at 545. The statute then added the

“relating to” language in the next subsection of the bill, entitled “Conforming

Amendments.” See § 2(b)(1)(A), 125 Stat. at 545.

The “relating to” language thus simply confirms that federal officers may

remove cases not only when they are sued in federal court “for” something they did

in their official capacities, but also when their activities “relat[e] to” litigation

between other parties in a way that prompts the kind of pre-suit discovery described

in Section 1442(c). Outside of that context, the House Report expressly reaffirms that

the removing party “must demonstrate a causal connection between the charged

conduct and asserted official authority.” House Report 3.

III.

The State Will Suffer Serious And Irreparable Harm If The Fifth

Circuit’s Rulings Stand.

The Fifth Circuit’s injunction imposes a serious sovereign injury of the kind

this Court has previously determined warrants extraordinary relief under the All

Writs Act. See Cheney v. U.S. Dist. Court, 542 U.S. 367, 381 (2004) (explaining

mandamus appropriate to avoid “intrusion by the federal judiciary on a delicate area

of federal-state relations”) (quoting Will v. United States, 389 U.S. 90, 95 (1967), in

turn citing Soper (No. 1), 270 U.S. 9 (issuing writ of mandamus to require remand of

case improperly removed under meritless federal officer removal claim)).

That serious injury is doubly irreparable.

First, by its nature, prolonged

federal interference with a State’s use of its own courts to enforce its own laws

imposes an injury to State sovereignty and dignity that cannot be remedied after the

fact.

Second, the injury caused by the Fifth Circuit’s injunction is literally

irreparable because absent a stay, the order will evade this Court’s review. See supra

p. 16. Such foreclosure of any remedy in this Court itself constitutes irreparable

injury. See Garrison v. Hudson, 468 U.S. 1301, 1302 (1984) (Burger, J., in chambers);

cf. also New York v. Kleppe, 429 U.S. 1307, 1310 (1976) (Marshall, J., in chambers)

(“Perhaps the most compelling justification for a Circuit Justice to upset an interim

decision by a court of appeals [is] to protect this Court's power to entertain a petition

for certiorari before or after the final judgment of the Court of Appeals.”).

IV.

The Balance Of Equities Favors The State.

The balance of equities also favors the State. As noted, Defendants have

already delayed proceedings in this case by more than three years by twice removing

it to federal court. After full and fair hearings, the district court determined that

Defendants had no right under federal law to divert the State’s suit under state law

to federal court, most recently finding that the factual assertions underpinning

Defendants’ federal officer removal claims were not substantiated. See Attachment

A, at 16-18. In those circumstances, the equities and the public interest strongly

favor an immediate end to the federal courts’ interference with the State’s use of its

own courts, unless and until the remand order is reversed.

There is nothing inequitable or unusual about that result. As discussed, it is

common for trial preparations to proceed in state court while a remand order is

appealed in federal court. Defendants have not identified anything special about this

case that makes adherence to the normal rule inequitable or unusually burdensome.

Instead, they have argued that absent a stay they will be temporarily forced to litigate

in a forum they contend they have a right to avoid, and that those efforts will be

wasted if they prevail in their appeal. See Def. C.A. Stay Mot. 21-24.

Neither contention carried the day when similar defendants recently sought a

stay of similar remand orders from this Court. See Application to Stay Remand Order

at 30-33, Mayor & City Council of Balt., No. 19A368, supra (asserting same harms;

Court denied stay application on Oct. 22, 2019).14 There is even less reason to accept

them here. As discussed, by specifically authorizing state courts to proceed with trial

preparations immediately upon mailing of a remand order, and by prohibiting federal

courts from enjoining those proceedings through the AIA, Congress had determined

that the burdens Defendants of which complain are insufficient reason to continue

the federal interference with state court jurisdiction. That congressional weighing of

the equities is not subject to second-guessing by Defendants or the courts.

Defendants also exaggerate the potential for wasted effort in state court. Any

pretrial discovery will advance the federal litigation, as will any work spent briefing

any preliminary issues that would also arise in federal court if the remand order is

reversed. See supra p. 5.

CONCLUSION

The Fifth Circuit’s injunction and stay should be vacated or stayed pending the

disposition of the appeal in the Fifth Circuit and, if that court affirms, pending the

filing and disposition of a petition for a writ of certiorari and any further proceedings

in this Court.

Respectfully submitted,

Thomas C. Goldstein

Kevin K. Russell

Counsel of Record

GOLDSTEIN & RUSSELL, P.C.

7475 Wisconsin Ave.

Suite 850

Bethesda, MD 20814

(202) 362-0636

kr@goldsteinrussell.com

Victor L. Marcello

TALBOT, CARMOUCHE & MARCELLO

17405 Perkins Rd.

Baton Rouge, LA 70810

Counsel for Cameron Parish

Ryan M. Seideman

Wilbur L. Stiles, III

Assistant Attorneys General

LOUISIANA DEPARTMENT OF JUSTICE

1185 North 3rd Street

Baton Rouge, LA 70802

Counsel for State of Louisiana

Donald W. Price, # 19452

Special Counsel

LOUISIANA DEPARTMENT OF NATURAL

RESOURCES

Post Office Box 94396

Baton Rouge, LA 70804

Counsel for Louisiana Department of

Natural Resources

January 22, 2020

ATTACHMENT A

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 1 of 26 PagelD #: 8360

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

LAKE CHARLES DIVISION

PARISH OF CAMERON ET AL

CASE NO. 2:18-CV-00677

VERSUS

JUDGE SUMMERHAYS

AUSTER OIL & GAS INC ET AL

MAGISTRATE JUDGE KAY

REASONS FOR DECISION

Presently before the court is the Report and Recommendation [doc. 103] issued by the

Magistrate Judge regarding the Motion to Remand [doc. 67] filed by the Parish of Cameron and a

Motion to Remand [doc. 71] filed by intervenor-plaintiffs, the State of Louisiana ex rel., the

Louisiana Attorney General, and the Louisiana Department of Natural Resources (hereafter, state

and parish parties referred to collectively as "Plaintiffs"). In her Report and Recommendation, the

Magistrate Judge recommends that the Motion to Remand be granted on the grounds that removal

was untimely. While the Court concludes that removal here was timely, the Court agrees with the

Magistrate Judge that the Motion to Remand should be granted as explained below. Accordingly,

the motions [doc. 67 and 71] are GRANTED.

BACKGROUND

Several Louisiana parishes filed forty-two lawsuits against vanous oilfield-related

defendants 1 (hereafter, all defendants in these matters will collectively be referred to as

Alpine Exploration Companies, Inc., Anadarko E&P Onshore, LLC, Anderson Exploration Company, Incorporated,

Apache Corporation (Of Delaware), Apache Oil Corporation, Atlantic Richfield Company, Auster Oil and Gas, Inc.,

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 2 of 26 PagelD #: 8361

"Defendants") in state court alleging violations of permits issued under the State and Local Coastal

Resources Management Act of 1978 ("SLCRMA") also known as the Coastal Zone Management

Act, La. Rev. Stat. § 49:214.21 et seq., and associated regulations, rules, and ordinances ("CZM

laws") based upon the defendants' dredging, drilling, and waste disposal in coastal parishes. See,

e.g. , doc . 1, att. 59, pp. 3-26.

SLCRMA provides a cause of action against companies that either violate a state-issued

coastal use permit or fail to properly obtain a coastal use permit when required. The act also

contains certain exemptions from the coastal use permitting requirements, namely, uses which do

not have a significant impact on coastal waters 2 and activities which were "lawfully commenced"

Badger Oil Corporation, Ballard Exploration Company, Inc., Bay Coquille, Inc., Bepco, L.P., Bopco, L.P., BP

America Production Company, Brammer Engineering, Inc., Burlington Resources Oil & Gas Company, LP, Cedyco

Corporation, Central Resources, Inc., Centurion Exploration Company, Chevron Pipe Line Company, Chevron

U.S.A. Holdings, Inc., Chevron U.S .A. , Inc., Condor Petroleum Corporation, ConocoPhillips Company,

Covey Energy, Inc., Crimson Exploration Operating, Inc., Cypress E&P Corporation, Darsey Operating Corporation,

Davis Oil Company, Davis Petroleum Corporation, Denbury Onshore, LLC, Denovo Oil & Gas, Inc., Devon Energy

Production Company, L.P., Diasu Oil & Gas Company, Dominion Oklahoma Texas Exploration & Production, Inc.,

Endeavor Energy Resources, L.P., Energen Resources Corporation, Energy Properties, Inc., Energyquest II, LLC,

Enervest Operating, L.L.C., Estate of William G. Helis, Exchange Oil & Gas Corporation, Exco Resources, Inc.,

Exxon Mobil Corporation, Fieldwood Sd Offshore LLC, Freeport Sulphur Company, Freeport-Mcmoran Oil & Gas

L.L.C., Gas Transportation Corporation, Graham Royalty, Ltd., Great Southern Oil & Gas Company, Inc., Gulfport

Energy Corporation, Helis Oil & Gas Company, L.L.C., Henry Production Company, Inc., Hess Corporation, Hilcorp

Energy Company, Hilliard Petroleum Inc., Linder Oil Company, A Partnership, Honeywell International, Inc., HRC

Energy Holdings (La), Inc. , Hunt Oil Company, Iberia Operating Corporation, Indian Exploration, Inc., Inexco Oil

Company, Jones Co., Ltd., Kerr-Mcgee Oil And Gas Onshore LP, Kilroy Company Of Texas, Inc., La Mesa

Production Inc., Latex-Star, Inc., Leads Resources L.L.C., Linder Oil Company, A Partnership, LLOG Exploration &

Production Company, L.L.C., LLOG Exploration Company, L.L.C., Lopco, Inc., Louisiana Energy Production LLC,

Lyons Petroleum, Inc., Mar-Low Corporation, Marsh Engineering, Inc., Mccormick Operating Company, Merit

Energy Company, LLC, Mobil Oil Exploration & Producing, Mobil Oil Exploration & Producing Southeast Inc.,

Mosaic Global Holdings, Inc., Northwest Oil Company, Oleum Operating Company, L.C., Omni Operating Co., Oxy

USA Inc., Palace Operating Company, Petroquest Energy, L.L.C., Resource Securities Corporation, Resources

Investment Corporation, Rogers Oil Co., Sable Minerals, Inc., Samuel Gary Jr. & Associates, Inc., Shell Offshore,

Inc., Shell Oil Company, Shocker Energy Of Louisiana, Inc., Shoreline Southeast LLC, SM Energy Company,

Southeast Inc., Southport Exploration, Inc., Star Energy, Inc., Swepi LP, SWN Production Company, LLC, Taylor

Energy Company, LLC, Texas Pacific Oil Company, Inc., Texas Petroleum Investment Company, The Louisiana

Land And Exploration Company, LLC, The Meridian Resource & Exploration LLC, The Texas Company, Toce

Energy, L.L.C., Total Petrochemicals & Refining USA, Inc., Transco Exploration Company, Transcontinental Oil

Corporation, Union Oil Company of California, Vernon E. Faulconer, Inc., Vintage Petroleum, L.L.C., Wagner Oil

Company, Walter Oil & Gas Corporation, WEC Onshore, LLC, White Oak Operating Company, LLC., Whiting

Petroleum Corporation, Williams Exploration Company, Xplor Energy Operating Company, Xto Energy Inc. , Zadeck

Energy Group, Inc., Zenergy, Inc.

La. R.S . § 49:214.34(A)(10)

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 3 of 26 PagelD #: 8362

prior to the enactment of SLCRMA -- the so-called "historical use" or "lawfully commenced"

exemption.3 Plaintiffs assert that the pre-SLCRMA activities by defendants were not lawfully

commenced and therefore do not fall within the exemption.

The cases were previously removed to this Court on the basis of admiralty jurisdiction,

federal jurisdiction under the Outer Continental Shelf Lands Act ("OCSLA"), 43 U.S.C. §

1349(b)(l), and federal question jurisdiction under 28 U.S.C. § 1331. Those cases were remanded

when the Court rejected these grounds for removal. As for OCSLA, the Court found that the

activities involved did not take place on the Outer Continental Shelf. The Court also found that

admiralty claims brought at law in state court pursuant to the Saving to Suitors' Clause are not

removable in the absence of an independent jurisdictional basis. Finally, the Court held that the

defendants could establish no federal question jurisdiction because the remedies sought were

specifically limited to those arising under state law. 4

Defendants have now removed this case along with eleven others again. The current Notice

of Removal, filed on May 23, 2018, asserts federal officer jurisdiction under 28 U.S.C § 1442 and

federal question jurisdiction under 28 U.S.C. § 1331. 5 Defendants claim that they first became

aware of these removal grounds when they received an expert report in a related case on April 30,

2018. 6 Defendants argue that this expert report reveals for the first time that Plaintiffs' claims

primarily attack activities undertaken before SLCRMA's effective date (1980), including activities

that were subject to extensive and exclusive federal direction, control, and regulation during World

Warll.

La. R.S. § 49:214.34(C)(2)

See Cameron Parish v. Auster Oil & Gas, Inc., W.D. La. 2:16-cv-530, Doc. 89, 101 and 102.

Doc. 1.

Expert report issued by Plaintiffs in the case of Parish of Plaquemines v. Rozel Operating Co. (the "Rozel Report").

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Plaintiffs have filed motions to remand, arguing that (1) the claim of federal officer

jurisdiction is without merit; (2) the claim of federal question jurisdiction is without merit and is

also precluded from re-litigation; and (3) removal was untimely because the expert report was

received months, if not years, after the removing defendants knew or should have known of the

nature of the claims asserted by Plaintiffs. Defendants opposed the Motions to Remand.

On November 20, 2018, the Magistrate Judge issued a Report and Recommendation,

recommending that the Motions to Remand be granted because removal was untimely. The

recommendation that the removal was untimely was based upon the fact that the Plaintiffs' original

petition makes numerous references to Defendants' activities which took place prior to the

enactment of SLCRMA and that Defendants were put on notice that pre-SLCRMA activities were

at issue. Defendants timely objected to the Report and Recommendation.

II.

LAW AND ANALYSIS

A. Timeliness of Removal.

A notice of removal must be filed within 30 days of receipt of the initial pleading in the

case by the defendant. 28 U.S.C. § 1446(b). However, if the initial pleading does not set forth

grounds for removal, "a notice of removal may be filed within 30 days after receipt by the

defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other

paper from which it may first be ascertained that the case is one which is or has become

removable." 7 The Fifth Circuit has held that "the information supporting removal in a copy of an

amended pleading, motion, order or other paper must be 'unequivocally clear and certain' to start

the time limit running for a notice ofremoval." Bosky v. Kroger Texas, LP, 288 F.3d 208 (5 th Cir.

28 U.S.C. 1446(b)(3).

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2002). The document need not be a filing to qualify as an "other paper." 8 Under some

circumstances, a paper filed in another case may also qualify. Id. However, if the removal is based

on an "other paper," that paper must still result from a voluntary act by the plaintiff. Addo v. Globe

Life and Acc. Ins. Co. , 230 F.3d 759, 761-62 (5th Cir. 2000). Generally, when courts are looking

to an "other paper" to determine removability, they are addressing the question in the context of a

diversity jurisdiction case.9 "The presence or absence of federal-question jurisdiction is governed

by the well-pleaded complaint rule, under which federal jurisdiction exists only when a federal

question is presented on the face of the plaintiffs properly pleaded complaint." Rivet v. Regions

Bank of La.,522 U.S. 470, 475 , 118 S.Ct. 921 , 139 L.Ed.2d 912 (1998). However, under some

limited circumstances, courts do look to an "other paper" to establish federal question jurisdiction.

For example, a court may look to an "other paper" to determine whether a plaintiffs state law

claim may be one that is preempted by federal law. 10

The requirement that the grounds for removal be "unequivocally clear and certain" creates

a bright line rule requiring that the document itself reveal the grounds for removal before a party's

removal rights are subject to the 30-day cutoff. 11 A party's subjective knowledge is not sufficient

to trigger the removal deadline. 12 Similarly, the Fifth Circuit does not impose a due diligence

requirement on the defendant to uncover the grounds for removal based on an ambiguous

pleading. 13

In the instant case, the "other paper" on which defendants base their theory of removability

is an expert report filed in a related case in state court by Plaintiffs, called the Rozel Report. The

Brunet v. Butler, 2012 WL 2338740, at *3 (E.D. La. Jun. 19, 2012).

Eggert v. Britton, 223 Fed. App 'x 394 (5 th Cir. 2007).

10 Peters v. Lincoln Elec. Co., 285 F.3d 456 (6 th Cir. 2002).

Bosley v. Kroger Texas, LP, 288 F. 3d 208, 209 (5th Cir. 2002).

Idat210.

Chapman v. Powermatic, Inc., 969 F.2d 160 (5 th Cir. 1992).

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Rozel Report details the precise activities which Plaintiffs allege caused damage and also specifies

preferred methods which would have prevented the damage. Defendants assert that this report

revealed for the first time that Plaintiffs were attacking activities which were subject to extensive

federal direction, control and regulation. Plaintiffs maintain that they have repeatedly referenced

pre-SLCRMA activities dating back to the original complaint. Defendants contend, however, that

while the prior filings may have referenced pre-SLCRMA activities, they did not reveal that

Plaintiffs were challenging specific activities which were heavily regulated by the federal

government during World War IL The Rozel Report offers the opinion that there are three types of

activities which occurred which violated SLCRMA, namely:

First, there were certain uses that were legally commenced before 1980 but whose

impacts changed post-1980, triggering the requirement for a permit that was never

obtained. Second, there were certain uses that were illegally commenced at their

beginning and therefore did not qualify for the exemption from coastal permitting

or review. And third, there were certain uses that were commenced after 1980 that

did not receive appropriate permits under SLCRMA.

The Rozel Report also relies on language from a 1980 federal Final Environment Impact Statement

("FEIS"), which was submitted for proposed federal approval of Louisiana's Coastal Resources

Program:

Any use or activity which, prior to the initiation of the coastal use permit program,

has been lawfully commenced in good faith and for which all required permits have

been obtained is consistent with the Coastal Management Program and no coastal

use permit is required for it. ... Moreover, such use or activity shall thereafter be

consistent with the program even if renewals of previously issued permits become

necessary or if new permits are required by other governmental bodies provided

that there is no significant change in the nature, size, shape, location or impacts of

the use or activity.

The authors of the FEIS offered this language to provide guidance regarding the types of activities

that would be exempt with regard to the so-called "historical use" exemption. Under Louisiana

Administrative Code§ 43:I.723.B.8, Louisiana law provides a "[b]lanket exemption" under which

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a use or activity shall not require a coastal use permit if (1) the use or activity was lawfully

commenced or established prior to the implementation of the coastal use permit process, (2) the

secretary determines that it does not have a direct or significant impact on coastal waters, or (3)

the secretary does not determine that a permit is required under§ 723.G.

Defendants argue that Plaintiffs' adoption of this construction of the exemption necessarily

injects a substantial federal question into the case to the extent that Plaintiffs are challenging

activities regulated by the federal government during World War II. Defendants argue that their

activities were exempt, while Plaintiffs claim they were not. The expert report provides opinions

regarding whether the activities were legally commenced and whether they had an impact on

coastal waters. Defendants assert the expert report is the first time that the pleadings or "other

papers" clearly disclose the specific activities that plaintiffs claim were not exempt and why. They

also contend that this report was the first time that the pleadings clearly and unambiguously

disclose specific practices challenged by Plaintiffs that were heavily regulated during World War

II.

The Magistrate Judge concluded that the Notice of Removal was untimely because the

involvement of pre-SLCRMA activities - i.e., activities occurring before 1980 - was apparent in

the original complaint filed by Plaintiffs. The Court disagrees. Based on the original complaint

and subsequent pleadings, Defendants were on notice that some activities occurring during the

broad time period before 1980 may be at issue in this case. However, the complaint and pleadings

do not reveal that Plaintiffs would be challenging specific activities that took place from 1941 to

1945 when the federal government's World War II regulatory regime was in place. The basis for

jurisdiction under the federal officer removal statute - whether a defendant was "acting under" a

federal officer - requires scrutiny of the specific activities of the defendant and the relationship

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between those activities and the federal government. 14 Federal court jurisdiction under Grable

similarly requires some "assessment of litigation reality" to assess the substantiality of a federal

issue; in other words, the role of each legal issue in the context of the facts that have to be

established. 15 Here, allegations that merely point to pre-1980 activities do not trigger the removal

deadline based on federal officer removal or federal question jurisdiction with respect to specific

activities occurring during the World War II era. These allegations may put Defendants on notice

that these activities could potentially become relevant, and Defendants could have investigated

their pre-1980 activities and "connected the dots" to reveal grounds for federal court jurisdiction.

However, the trigger for starting the removal clock requires a higher burden: the allegations must

be in the complaint or "other paper" and must be "unequivocally clear and certain." 16 A

defendant's subjective knowledge is irrelevant in determining removability, and there is no duty

on the part of the defendant to investigate and "connect the dots" outside the pleadings. 17

The case of Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006), illustrates

this point. 18 The plaintiff had alleged asbestos exposure based on his work as an electrician at

various Air Force facilities. He sued Lockheed. The complaint, however, did not identify which

specific Lockheed products resulted in his exposure. At the time, Lockheed provided aircraft to

the government under government contracts, and commercial aircraft to non-government buyers.

A subsequent discovery response identified the specific Lockheed products at issue. 19 Once those

products were identified, Lockheed removed the case on the basis that Lockheed manufactured the

aircraft for the government under a government contract. 20 The court in Durham emphasized that

See, e.g., MTBE Prod. Liability, 480 F.3d 112 (2d Cir. 2007).

Wright & Miller, 13D Fed. Prac. & Proc. Juris. § 3562 (3d ed.).

Bosky, 288 F.3d at 209 (emphasis added).

Id. at210.

445 F.3d at 1249.

19 Id.

Id. at 1249-50.

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the specific facts supporting federal officer removal must be disclosed in the pleadings or an "other

paper" before the time period to remove commences. 21 According to the court, until the specific

Lockheed aircraft was identified, the grounds for removal had not been disclosed. It was irrelevant

that Lockheed could, through investigation and due diligence, have uncovered the grounds for

removal based on allegations identifying where the plaintiff worked. The Durham court also noted

that the "liberal" interpretation of the federal officer removal provisions in 28 U.S.C. § 1442

extends to the deadline for removal. 22

The Court finds the same reasoning applies in the instant case. Until the point when

Plaintiffs revealed the specific activities mentioned in the Rozel Report, Defendants had no basis

to assert the grounds for removal which they now assert. That report was filed in the related matter

on April 30, 2018. As the Notice of Removal was filed on May 23, 2018, the Court finds that the

removal was timely. As the removal was timely, the court will address the grounds for removal

raised in the current Notice of Removal: "federal officer" removal under 28 U.S.C. § 1442(a) and

federal question jurisdiction under 28 U.S.C. § 1331.

B. Federal Officer Removal.

A defendant may remove any action against "[t]he 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." 28 U.S.C. §

1442(a). "[F]ederal officer removal under§ 1442 is unlike other removal doctrines: it is not narrow

or limited." State v. Kleinert, 855 F.3d 305, 311 (5th Cir. 2017). The Supreme Court requires "a

liberal interpretation of§ 1442(a) in view of its chief purpose-to prevent federal officers who

Id. at 1253. According to the court, this rule "protects the government's right ofremoval and encourages plaintiffs

to disclose the facts underlying their claims early on. We note that an opposite result would encourage gamesmanship

and defeat the policies underlying sections 1442 and 1446." Id.

Id.; see also Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, at fn 10 citing Durham for this proposition.

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 10 of 26 PagelD #: 8369

simply comply with a federal duty from being punished by a state court for doing so." State v.

Sparks, 978 F.2d 226, 232 (5th Cir. 1992). Section 1442 applies to any "private persons 'who

lawfully assist' the federal officer 'in the performance of his official duty."' Watson v. Philip

Morris, 551 U.S. 142, 151 (2007). Section 1442(a) creates an exception to the "well-pleaded

complaint" rule in that "the raising of a federal question in the officer's removal petition...

constitutes the federal law under which the action against the federal officer arises for Article

III purposes." Mesa v. California, 489 U.S. 121, 136 (1989). A defendant may remove a case under

§ 1442(a) by showing "(1) that it is a person within the meaning of the statute, (2) that it has a

colorable federal defense, (3) that it acted pursuant to a federal officer's directions, and (4) that a

causal nexus exists between [its] actions under color of federal office and the plaintiffs claims."

Legendre v. Huntington Ingalls, 885 F.3d 398, 400 (5th Cir. 2018). There is no dispute that

Defendants qualify as "persons" under the first requirement. Accordingly, the Court starts with the

second requirement that Defendants "acted under" a federal officer' s direction.

"Acting Under" a Federal Officer.

To satisfy§ 1442(a)'s "acting under" prong, a defendant must show "an effort to assist, or

to help carry out, the duties or tasks of the federal superior." Watson, 551 U.S. at 152. The Watson

Court distinguished a party's compliance with federal regulations from actions "helping the

Government to produce an item that it needs."23 Assistance that "goes beyond simple compliance

with the law and helps officers fulfill other basic governmental tasks" meets § 1442(a)'s "acting

under" requirement. 24 To establish that a person is "acting under" a federal official, a removing

party must show a "substantial degree of direct and detailed federal control over the defendant's

Id. at 153 .

24 Id.

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work. ... " 25 This relationship between the defendant and the federal office or official must involve

"subjection, guidance, or control." 26 It is not sufficient to merely show that "the relevant acts

occurred under the general auspices of a federal office or officer." 27

The cases applying this "acting under" requirement provide useful guidance as to how to

draw the line between "direct control" and mere regulation. Many cases where courts have found

sufficient control and direction to satisfy the "acting under" requirement involve government

contractors who manufacture products according to detailed specifications and oversight by an

agency or officer of the federal government. 28 For example, in Winters, the plaintiff sued for

personal injuries received as a result of exposure to Agent Orange while working as a civilian

nurse for the United States Agency for International Development in Vietnam. 29

Diamond

Shamrock was a government contractor that supplied the mix of herbicides known as Agent

Orange to the United States Defense Department. 30 The Fifth Circuit affirmed the District Court' s

conclusion that Diamond Shamrock was "acting under" a federal office or office in supplying this

mix of herbicides. The court observed that the Defense Department mandated a specific mixture

of herbicides making up Agent Orange and that "the defendants were compelled to deliver Agent

Orange to the government under threat of criminal sanctions." 31 The court concluded that the

In re "Agent Orange" Prod. Liab. Litig., 304 F. Supp. 2d 442, 447 (E.D. N.Y. 2004).

Zeringue v. Crane Co., 846, F.3d 785, 793 (5th Cir. 2017) (citing Watson v. Philip Morris Cos., Inc., 551 U.S. 142

(2007))."

Ry an v. Dow Chem. Co. , 781 F. Supp. 934, 947 (E.D. N.Y. 1992)

See, e.g., Zeringue, 846 F.3d 785 (5th Cir. 2017) (government directives to use asbestos); Savoie v. Huntington

Ingalls, Inc., 817 F.3d 457, 460, 465 (5th Cir. 2016) (government requirement that contractor use asbestos in the

thermal installation of Navy ships); In re Asbestos Products Liab. Litig. (No. VJ.) , 7 F. Supp. 2d 736 (E.D. Pa. 2011)

("acting under" requirement satisfied where government contractor established that the government had approved

reasonably precise specifications that called for the use of asbestos and that the contractor's products conformed to

those specifications); Winters v. Diamond Shamrock Ch em. Co., 149 F.3d 387, 399 (5th Cir. 1998) (government

contracted with the defendants for a specific mixture of herbicides known as Agent Orange); Holdren v. Buffalo

Comps, Inc., 614 F. Supp. 2d 129 (D. Mass. 2009) (contractor complied with precise design specifications).

149 F.3d at 390.

30 Id.

3 1 Id.

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federal government exercised direct control over the composition and production of Agent

Orange.32 In other words, the plaintiffs injuries resulted from an aspect of the product that was

mandated and controlled by the federal government under the terms of a contract with Diamond

Shamrock.

Similarly, in Zeringue, the plaintiff sued multiple defendants for damages caused by

asbestos exposure.33 He claimed exposure while deployed with the U.S. Navy as well as exposure

when he worked in the Avondale Shipyard near Navy ships that contained asbestos.34 The court

found that the defendants had "acted under" a federal office or officer with respect to these asbestos

exposure claims because the Navy had mandated the use of asbestos insulation in its contract

specifications and the defendants complied with those requirements. 35 According to the court,

"equipment could not have been installed aboard Navy vessels unless it was first determined by

the Navy to be in conformity with all applicable Navy specifications." 36 The court further noted

that had the defendant not complied with the specifications and provided these products to the

government, "the Navy would have had to build those parts instead." 37 In all of these cases, the

plaintiffs' claims arose out of conduct mandated by the government.

On the other hand, two cases where the courts concluded that the "acting under"

requirement was not satisfied illustrate the limits of federal officer removal: Watson, 120 S. Ct.

2301, and In re Methyl Tertiary Butyl Ether ("MTBE'') Prod Liab. Litig., 480 F.3d 112 (2d Cir.

2007). In Watson, the plaintiffs alleged that Phillip Morris manipulated the design of its "light"

cigarettes so that they tested for lower levels of tar and nicotine. The industry's testing process for

32 Id.

846 F.3d 785 .

Id. at 788.

3s Id.

Id. at 792.

37 Id.

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measuring tar and nicotine was operated under the regulatory supervision of the Federal Trade

Commission (FTC). The Supreme Court concluded that Phillip Morris was not "acting under" the

FTC even though the testing process for tar and nicotine was heavily regulated. The Court noted

that a private party' s compliance with federal law or acquiescence to a federal agency' s order does

not satisfy the "acting under" requirement of the federal officer removal statute, "even if the

regulation is highly detailed and even if the private firm's activities are highly supervised and

monitored." 38 In other words, differences in the degree of regulatory oversight alone cannot bring

a regulated party within the contours of section 1442(a):

As we have pointed out, however, differences in the degree of regulatory detail or

supervision cannot by themselves transform Philip Morris' regulatory compliance

into the kind of assistance that might bring the FTC within the scope of the statutory

phrase "acting under" a federal "officer." And, though we find considerable

regulatory detail and supervision, we can find nothing that warrants treating the

FTC/Philip Morris relationship as distinct from the usual regulator/regulated

relationship. This relationship, as we have explained, cannot be construed as

bringing Philip Morris within the terms of the statute. 39

The Court also distinguished the government contractor line of cases, such as the Agent Orange

and asbestos cases, by reasoning that the defendants in those cases were assisting the federal

government by producing an item that the government needed pursuant to a contract. Id. No such

contractual relationship existed in the Watson case.

In MTBE Prod. Liab. Litig., the plaintiffs brought claims against private companies that

"manufactured, refined, marketed, or distributed gasoline containing MTBE" on the grounds that

this additive contaminated water supplies.40 The defendants attempted to remove the case under

the federal officer removal statute on the grounds that the federal Clean Air Act and regulations

promulgated by the Environmental Protection Agency (EPA) required them to reformulate their

120 S. Ct. at 2308 (internal cites omitted).

39 Id.

480 F.3d at 114.

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gas with additives such as MTBE to "oxygenate" the gas and therefore reduce emissions in certain

metropolitan areas.41 The District Court concluded that the defendants had satisfied the "acting

under" requirement for removal on the grounds that the defendants used MTBE because EPA

regulations required them to oxygenate their product for certain metropolitan areas. Even though

other additives had been approved to oxygenate gasoline, the District Court noted that "both

Congress and the EPA were aware that the defendants would have to use MTBE in order to comply

with the Clean Air Act's requirements. "42 The District Court further noted that MTBE was the only

approved additive available in a quantity sufficient to comply with the EP A's regulations. Id. The

Second Circuit reversed. According to the court, there was no evidence of "an explicit directive in

either the Clean Air Act or its implementing regulations" that required the use of MTBE. Id. In

other words, while the statute and implementing regulations required defendants to oxygenate their

gas, the regulations did not mandate that this be done by the addition of a specific additive, namely

MTBE. 43 Nor did the court find evidence that these regulations were implemented with the

knowledge that the use of MTBE was the only way that the defendants could comply with the

directives of the EP A's regulations. 44

In the present case, Defendants contend that Plaintiffs' claims challenge the following

aspects of their pre-SLCRMA activities that were allegedly governed by federal regulations and

directives during World War II:

•

how Defendants spaced wells;

•

Defendants' use of dredged canals instead of roads;

Id.

Id. at 126.

43 Id.

44 Id.

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•

Defendants' use of vertically drilled wells;

•

Defendant's use of earthen pits and centralized tank batteries;

•

Defendants' practices involving water discharged from drilling sites and the failure

to re-inject saltwater; and

•

Defendants' use of inadequate tubing.45

Defendants characterize the U.S. oil and gas industry as essentially an agent of the federal

government during World War II, and that the industry's activities were tightly controlled to

support the country's war efforts. 46 They contend that federal regulations and directives issued

during the war mandated the activities challenged by Plaintiffs. Specifically, in 1941, President

Franklin Roosevelt created the Office of Petroleum Coordinator, 47 which subsequently was

renamed the Petroleum Administration for War ("PAW"). 48 PAW issued directives to the oil

industry to manage the allocation of material for necessary operations and to maximize oil and gas

production needed for the war. One example offered by Defendants is PAW-issued directives

mandating the spacing of oil wells in order to preserve materials. 49 Defendants argue that since

PAW controlled the materials necessary for drilling activities, oil companies were required to

comply with PAW mandates in order to function. They also argue that the government set

production quotas. Plaintiffs, however, argue that PAW did not "order" oil and gas companies to

meet quotas, but rather imposed conservation measures known as "allowables," or ceilings on the

amounts that producers were allowed to produce so that reservoirs were preserved. 50

Defendants' Mem. at 24-31 [doc. 97]. The Court notes that Plaintiffs challenge how Defendants have characterized

their allegations but the court need not resolve that dispute in addressing the elements of§ 1442(a).

Defendants' Mem. At 13-15 [doc. 97].

See Exhibit X-10 at 353-54, 359; X-11 at 703 to Doc. 97.

See Exhibit X-9 at 141 to Doc. 97; see also X-47; X-11 at 738 to Doc. 97.

See Exhibit X-29 to Doc. 97.

See Exhibit 33 to Doc. 97.

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Applying the reasoning of Watson and MTBE Prod. Liab. Litig. to the facts of this case,

Defendants have not demonstrated the "subjection, guidance, or control" required to show that

they were acting under a federal office or officer. 51 First, unlike Winters and Zeringue, Defendants

have not shown that their World War II era activities were mandated by PAW or any other federal

agency. For example, Defendants point to no actual federal directive governing well spacing. 52

Nor have they shown that PAW or any other federal agency mandated vertically drilled wells. 53

Defendants have referred to three specific instances of federal involvement with operations in the

East and West Hackberry fields, where this particular case is located. 54 Each of the three instances

involved applications for exceptions to Order M-68, which is the PAW order issued regarding

conservation of materials. 55 Each of the three applications were approved and the companies

seeking permission were allowed to obtain materials under less stringent requirements. Critically,

Defendants have not offered any instances where PAW prohibited any of their activities in these

areas. As in MTBE Prod. Liab. Litig., there is no evidence that PAW and other federal agencies

directed Defendants' activities or that they mandated how Defendants were to comply with federal

regulations and directives. In sum, the record demonstrates little more than a regulated industry

complying with the requirements of a federal regulatory regime. But as Watson emphasized,

Zeringue v. Crane Co., 846, F.3d 785,793 (5th Cir. 2017) (citing Watson v. Philip Morris Cos., Inc., 551 US 142

(2007))."

Plaintiffs' Mem. at 12 [doc.67-1].

Id. While Defendants cite specific federal directives, as Plaintiffs point out, these directives do not mandate or

otherwise direct and control the activities challenged by Plaintiffs. Id. For example, Defendants cite Petroleum

Administrative Order (PAO) 11 as an example of a directive banning directional drilling and a PAW letter interpreting

PAO 11 to require an exception for directional drilling. Defendants' Mem. at 11. At most, this PAO and PAW letter

show that the federal government required an exception for directional drilling. This requirement, however, was

eliminated eight months after the issuance of PAO 11. Id. Moreover, directional drilling was never "banned."

See Exhibit 122 to Doc. 97 (approved application for an exception to Order M-68 in order to obtain material for 4

wells The Texas Company proposed to drill on less stringent spacing requirements); Exhibit 123 to Doc. 97 (approved

application for an exception to Order M-68 to obtain materials for 12 wells Stanolind Oil and Gas proposed to drill on

less stringent spacing requirements); and Exhibit 124 to Doc. 97 (approved application for an exception to Order M68 to obtain materials to replace flowlines from above mentioned Stanolind wells).

Exhibit 30 to Doc. 97.

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compliance with a regulatory regime standing alone does not amount to the control and direction

required as grounds for federal officer removal. 56

Second, the record does not reflect the government contractor relationship that existed in

Winters and Zeringue. In those cases, the courts highlighted the fact that the defendants were

supplying products needed by the federal government pursuant to contracts, and that without these

contracts the government would have to produce the products themselves. In this context, a state

court lawsuit that targeted a contractor's activities under a government contract would threaten the

government's ability to procure the goods that it needs. On the other hand, mere compliance with

federal regulations does not raise the same policy concern. As explained by the Watson Court:

Without evidence of some such special relationship, Philip Morris' analogy to

Government contracting breaks down. We are left with the FTC's detailed rules

about advertising, specifications for testing, requirements about reporting results,

and the like. This sounds to us like regulation, not delegation. If there is a difference

between this kind of regulation and, say, that of Food and Drug Administration

regulation of prescription drug marketing and advertising (which also involve

testing requirements), see Serano Labs., Inc. v. Shalala, 158 F.3d 1313, 1316

(C.A.D.C.1998), that difference is one of degree, not kind. 57

Here, federal agencies likely entered into contracts for the sale of oil, gas, and other petroleum

products during World War II to support the war effort. But as noted by Plaintiffs, the oil and gas

industry includes "upstream" activities - exploration and production of oil and gas - and

"downstream" activities - the actual refinement of crude oil into usable petroleum products.

Although Defendants gloss over this distinction, any World War II contracts would have generally

involved "downstream" refined petroleum products, while the federal regulation at issue here

involved "upstream" exploration and production activities. Thus, unlike Winters and Zeringue,

120 S. Ct. at 2308.

57 Id.

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the Plaintiffs' claims are not grounded in activities mandated by government contracts but are

based on Defendants' compliance with a federal war-time regulatory regime.

Finally, Defendants' argument fails to account for the significant role of the state's

regulation of Defendants during this same time period. Defendants contend that World War II era

federal regulations "sidelined" state regulators. 58 The facts in the record do not support this

characterization. As Plaintiffs note in their Memoranda in Support of their Motions to Remand,

World War II era federal regulation did not displace regulation by the State of Louisiana. Indeed,

the record reflects that from 1941 through 1945, the Louisiana Office of Conservation issued 397

field orders directed toward specific fields, and 11 state-wide directories. 59 Plaintiffs point to 101

regulatory hearings held by the Louisiana Department of Conservation in 1943 without any

evidence of interference by PAW. 60 Moreover, individual oilfield "allowables" - i.e., the amount

that a field could produce over a period of time - were set by the Louisiana Department of

Conservation. 61 In light of the extensive, parallel state regulation of the oil and gas industry during

this period, the federal government's World War II era regulation of the industry cannot be

characterized as so pervasive that it resulted in "subjection, guidance, or control" by the federal

government required to remove under§ 1442(a).

Causal Nexus.

The third requirement for removal under § 1442(a) requires a causal nexus between the

actions taken under federal control and the charged conduct; this element is not met when a

defendant's challenged actions are "free of federal interference." See Savoie v. Huntington Ingalls,

Defendants' Mem. at 16 [doc. 97].

Exhibit 1 at 3 [doc. 67-3].

Exhibit 6 [doc. 67-3].

Exhibits 27 -31 [doc. 67-3]. PAW exercised its authority over statewide production by setting statewide allowables.

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 19 of 26 PagelD #: 8378

Inc., 817 F.3d 457, 463 (5th Cir. 2016). To satisfy this requirement, a defendant must show that

the actions it took under the "subjection, guidance, or control" of the federal government caused

the plaintiffs specific injuries. 62

Some courts have observed that the 2011 amendment to the federal officer removal statute

appears to replace the causal nexus test with a less restrictive test. Prior to 2011, § 1442(a)

permitted removal by a federal officer who is sued "for any act under color of such office." That

statute was amended by Congress in 2011 to allow removal by a federal officer in suits "for or

relating to any act under color of such office. " 63 The Fifth Circuit has continued to apply the causal

nexus test as it existed prior the 2011 amendment and this test is still binding precedent. 64 In

Latiolais, the court acknowledged the apparent disconnect between the 2011 amendment to the

statute and the application of the pre-amendment causal nexus test, but concluded that:

All of these cases post-date the 2011 amendment to Section 1442(a)(l), and all

continue to cite Bartel, while drawing a distinction for removal purposes between

claims for negligence (not removable) and strict liability (removable) pursuant to

the causal nexus test. We are bound by this series of cases.

In May 2019, however, the Fifth Circuit granted Huntington Ingalls' petition for rehearing en bane

specifically to address whether the causal nexus analysis must be modified to address the 2011

amendment. 65 Until this issue is ultimately decided, the Court must apply the existing causal nexus

test as set forth in Bartel. Nevertheless, regardless of which causal nexus test is applied, the

Defendants have failed to satisfy the "acting under" requirement for federal officer jurisdiction

and accordingly, the ruling in Latiolais will not change this Court's ruling on the Motions to

Remand. Courts have noted that the "acting under" and "causal nexus" requirements for federal

62 Id.

28 U.S.C. §1442(a)(l) (emphasis added).

See Bartel v. Alcoa S.S. Co., Inc., 805 F.3d 169 (5th Cir 2015); Legendre v. Huntington Ingalls, Inc., 885 F.3d 398

(5th Cir. 2018).

Latiolais v. Huntington Ingalls, Inc. will be reheard by the full Fifth Circuit in September 2019 .

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 20 of 26 PagelD #: 8379

officer removal tend to "collapse" into a single inquiry: were the actions that form the basis for

the plaintiff's claims carried out under the "subjection, guidance, or control" ofp the federal

government? 66 The Court answers this question in the negative because, at most, Defendants have

shown activities undertaken in compliance with federal regulations, which is not sufficient to

remove under §1442(a). Accordingly, the Court need not separately address causation or the

requirement that Defendants have a colorable federal defense.

C. Federal Question Jurisdiction.

Defendants alternatively argue that this Court has "federal question" jurisdiction over this

case under 28 U.S.C. § 1331. This Court has "original jurisdiction of all civil actions arising under

the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331. Cases "arise under"

federal law in two ways: (1) "federal law creates the cause of action"; or (2) "the plaintiff's right

to relief [under state law] necessarily depends on resolution of a substantial question of federal

law." 67 Federal question jurisdiction turns on allegations contained in a "well-pleaded"

complaint. 68 Under the "well pleaded complaint" rule -- which applies to the Court's original and

removal jurisdiction -- "federal question jurisdiction exists only when a federal question is

presented on the face of the plaintiff's properly pleaded complaint." 69 This rule "makes the

plaintiff the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on

state law." 70

The typical case for "arising under" jurisdiction is where federal law creates the plaintiff's

cause of action. Here, Defendants' argument addresses a question that has long vexed federal

MTBE Prod. Liab. Litig., 488 F.3d at 125.

Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677, 689-90 (2006) (internal quotation marks omitted)

(citing Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27-28

(1983)).

See Franchise Tax Board of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1 (1983).

Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987).

10 Id.

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 21 of 26 PagelD #: 8380

courts: when does a state law claim that includes a question of federal law satisfy the "arising

under" prong of federal jurisdiction? With respect to this question, the Supreme Court recently

observed that in "outlining the contours of this slim category, we do not paint on a blank canvas."

Gunn v. Minton, 568 U.S. 251, 133 S. Ct. 1059, 1065 (2013). Rather, "[u]nfortunately, the canvas

looks like one that Jackson Pollock got to first." Id. In Merrill Dow Pharm. Inc. v. Thompson, 478

U.S. 804 (1986), the Supreme Court adopted a restrictive view of "arising under" jurisdiction over

a state law claim that included a federal law issue. In so doing, the Merrill Dow Court seemed to

embrace the view that the federal statute at issue had to create a cause of action; if not, there was

no basis for federal court jurisdiction. Id.

Defendants rely on a more recent effort by the Court to address this question, Grable &

Sons Metal Products v. Darue Eng 'g & Mfg., 545 U.S. 308 (2005). In Grable, the Court concluded

that "a federal court ought to be able to hear claims recognized under state law that nonetheless

tum on substantial questions of federal law, and thus justify resort to the experience, solicitude,

and hope of uniformity that a federal forum offers on federal issues." 7 1 Later, in Gunn, the court

explained that Grable creates a four part test for determining whether a state law claim that

contains a federal issue gives rise to federal court jurisdiction:

•

First, the federal issue is "necessarily raised" in the context of the plaintiffs claim;

•

second, the federal issue is "actually disputed;"

•

third, the federal issue "substantial;" and

•

fourth, the federal issue is "capable of resolution in federal court without disrupting the

federal-state balance approved by Congress." 72

Id. at 312.

1d. at 258.

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 22 of 26 PagelD #: 8381

The Court assumes without deciding that Defendants can show the first Grable

requirement. With respect to the second Grable factor, however, Defendants have not shown that

the federal issue in this case is a legal issue that is "actually disputed." Defendants assert that in

order to establish "bad faith" practices occurring prior to SLCRMA, Plaintiffs will have to rely on

conduct and practices conducted under the supervision and direction of pre-1980 federal regulatory

regimes, including World War II era regulation by PAW. The questions raised by the impact of

this regulatory scheme, however, are grounded primarily on factual inquiries into a historical

regulatory regime and how that regime affected Defendants' operations. These factual inquiries

do not involve substantive legal disputes over the meaning of federal law. In Empire Healthchoice

Assurance, Inc. v. Mc Veigh, 73 the Supreme Court stressed that federal question jurisdiction under

Grable was appropriate when a case presented a "nearly pure issue of law," rather than a "fact-

bound and situation specific" issue. As the Court held in Empire Healthchoice Assurance, "Grable

emphasized that it takes more than a federal element "to open the ' arising under' door." 545 U.S.,

at 313, 125 S.Ct. 2363. This case cannot be squeezed into the slim category Grable exemplifies."74

With respect to the third Grable requirement, Defendants have not shown any issues of

federal law arising out of the World War II federal regulation of the oil and gas industry that are

"substantial" in the context of the Plaintiffs' claims. These purported federal law issues relate to

the "historical use" or "legally commenced" exemption to the permitting requirements of the

SLCRMA. This exemption is a matter of state law that turns on whether Defendants' preSLCRMA activities or "uses" were "legally commenced or established prior to the effective date"

of the SLCRMA in 1980. Whether these activities were "legally commenced or established"

requires consideration of the entire period before 1980, including Defendants' activities during

547 U.S. 677, 701 (2006).

Id.

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 23 of 26 PagelD #: 8382

this period and the regulatory regimes that were in place. Defendants' jurisdictional "hook,"

however, relies on a federal war-time regulatory scheme that existed over a relatively short period

from 1941 through 1945 and which expired over seventy years ago. This jurisdictional hook does

not present a substantial federal issue for at least three reasons.

First, the "substantiality" of a federal issue under Grable turns on "the importance of the

issue to the federal system as a whole. " 75 Defendants have not shown that the resolution of any

legal questions involving the federal government's World War II era regulations wo'uld have any

relevance to any current federal regulatory regime involving the oil and gas industry.

Second, any federal issue involving World War II era regulations will not be central to this

case. In judging substantiality, the Supreme Court has referred to "the centrality of the federal

issue." 76 As used by the Court, "centrality" does not mean the number of citations to federal law,

but the importance of federal law to resolving the case. 77 Here, the overwhelming focus of this

case will be substantial questions of state law: the application of Louisiana's SLCRMA and the

"legally commenced" exemption to the permitting requirements of that statute. World War II era

regulations will play only a small role in deciding these state law questions. 78 Put a different way,

the minor role of federal law does not 'justify resort to the experience, solicitude, and hope of

uniformity that a federal forum offers on federal issues. " 79

Third, the resolution of legal issues involving World War II era federal regulations has

little relevance today given the role of state regulation of the industry and the changes in the

regulatory landscape during the seventy-year period following the war. As Plaintiffs point out,

Gunn, 568 U.S.251, 133 S. Ct. at 1066.

Empire Healthchoice Assur. , Inc. v. McVeigh, 547 U.S. 677, 699 n. 5 (2006) (emphasis added).

New York ex rel. Cuomo v. Dell, Inc., 514 F. Supp. 2d 397, 399 (N.D. N.Y. 2007).

See

Merrill Dow, 545 U.S. at 312.

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 24 of 26 PagelD #: 8383

federal regulation of Defendants' activities never displaced the State of Louisiana's regulation of

the oil and gas industry. During that period, the two regulatory regimes operated within their own

spheres.

After World War II, the federal government ultimately shifted more regulatory

responsibility to the states. For example, Plaintiffs cite the passage in Title 1972 of the federal

Coastal Zone Management Act, which was intended in part to "enhance state authority by

encouraging and assisting states to assume planning and regulatory powers over their coastal

zones." 80 Moreover, Louisiana passed SLCRMA in 1980, which impacts the activities of oil and

gas exploration and production companies through the issuance of coastal use permits and other

regulations.

Accordingly, the resolution of any federal issues arising from the federal

government's World War II era regulation of the oil and gas industry now would be made in the

context of a much different regulatory environment in which Louisiana and other states play a

much larger role in regulating the oil and gas industry.

This change in the regulatory environment is also relevant to Grable 's fourth and final

factor. Specifically, the record does not reflect that a federal court resolution of any federal issues

arising from World War II era regulations is consistent with the "federal-state balance approved

by Congress" given the shift in regulatory responsibilities from the federal government to the

states. As a result, denying a federal forum for Plaintiffs' claims would not upset the allocation of

judicial power between federal and state courts. 81

Finally, Defendants assert that the Levee Boarcf2 decision dictates federal question

jurisdiction. In Levee Board, the Fifth Circuit found federal jurisdiction over state law tort claims.

Plaintiffs' Mem. at 22 [doc. 67-1] (citing S. Rep. No. 92-753 at 1, 1972 U.S.C.C.A.N. 4776).

Id. at 1067 (in a case involving attorney malpractice claims, observing that the state has a strong interest and role in

regulating lawyers).

Board ofComm'rs of the Se. Louisiana Flood Prat. Auth-E. v. Tennessee Gas Pipeline Co., LLC, 850 F.3d 714,

723-24 (5th Cir. 2017), cert. denied sub nom., _ U.S._ , 138 S. Ct. 420 (2017).

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 25 of 26 PagelD #: 8384

The Board of Commissioners of the Southeast Louisiana Flood Protection Authority-East sued oil

and gas companies involved in exploration and production activities off the southern coast,

alleging that the activities caused infrastructural and ecological damage to coastal lands overseen

by the Levee Board that increased the risk of flooding due to storm surges and required costly

flood protection measures.83 The Board asserted causes of action for negligence, strict liability,

natural servitude of drain, nuisance, and breach of contract as to third-party beneficiaries. The

Board sued in state court; the defendants removed, asserting the court's "arising under"

jurisdiction. The Board' s complaint specifically described "a longstanding and extensive

regulatory framework under both federal and state law" that protects against the effects of dredging

activities and establishes the legal duti.es by which defendants purportedly are bound.84 Although

none of the individual causes of action relied on federal law and the negligence, strict liability, and

natural servitude claims relied on state law, the complaint identified federal and state regulatory

sources bearing on oil and gas activities, including the Rivers and Harbors Act, the Clean Water

Act, and the Coastal Zone Management Act. The plaintiff itself in Levee Board specifically

invoked an extensive regulatory framework under both federal and state law aimed at protecting

against the effects of dredging activities. The Levee Board case is distinguishable from the instant

case. There, the plaintiffs alleged specific violations of federal laws and duties. Here,_Plaintiffs

here do not allege any federal law violations. Other courts have also held that this type of case

does not fall within the limited category of cases set forth in Grable and Levee Board. 85

83 Id.

Id.

See The Parish of Plaquemines v. Riverwood Production Co., et al, Civil Action No. 18-5217 (E.D. La. 5/28/1 9)

for an examination of cases arising under SLCRMA.

Case 2:18-cv-00677-RRS-KK Document 147 Filed 09/26/19 Page 26 of 26 PagelD #: 8385

As the court finds that Defendants have failed to establish grounds for either federal officer

jurisdiction or federal question jurisdiction, Plaintiffs' Motions to Remand are GRANTED.

D. Certificate of Appeal.

Defendants are entitled to an immediate appeal under 28 U.S.C. § 1447(d) as far as the Court' s

ruling on their entitlement to removal under the federal officer removal statute, and they have indicated

that they plan to do so. They therefore request that the Court certify for interlocutory appeal their

asserted federal question predicate for removal. The request is GRANTED. The Court finds that its

Order and Reasons addresses controlling issues of law as to which there might be substantial ground

for difference of opinion. 28 U.S .C. § 1292(b). So certified, the Fifth Circuit might in its discretion

permit an appeal of all issues contained in this Reasons for Decision.

The Court will issue a separate Order in conformity with these Reasons for Decision.

THUS DONE in Chambers on this 26th day of September, 2019.

United States Distric

ATTACHMENT B

Case 2:18-cv-00677-RRS-KK Document 149 Filed 09/26/19 Page 1 of 1 PagelD #: 8387

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

OFFICE OF THE CLERK

September 26, 2019

Susan Racca, Clerk of Court

38th Judicial District Court

Cameron Parish

PO Box 549

Cameron, LA 70631

In re: Civil Action No. 2:18- cv- 00677-RRS- KK

CAMERON ET AL V. AUSTER OIL & GAS INC ET AL

Your Case No. 10-19582

Dear Clerk:

Please be advised that the above captioned matter has been remanded to your Court. We enclose herewith

a certified copy of our docket sheet and the Judgment or Order to Remand.

The official court record for the Western District of Louisiana is the electronic case filing system,

CM/ECF. Our website is: http://ecf.lawd.uscourts.gov; counsel may access this database to obtain any

pleadings you require.

Please acknowledge receipt on the enclosed copy of this letter.

ATTORNEYS ARE ADVISED THAT ALL FUTURE FILINGS SHOULD BE DIRECTED TO THE

RECEIVING COURT NAMED ABOVE.

For questions regarding this document or transmission, please call our CM/ECF help desk at

1-866-323-1101.

THUS DONE September 26, 2019.

TONY R. MOORE

CLERK OF COURT

M Bunting

DEPUTY CLERK OF COURT

ATTACHMENT C

Case: 19-30829

Document: 00515185188

Page: 1

Date Filed: 11/04/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30829

PARISH OF CAMERON,

Plaintiff - Appellee

State of Louisiana, ex rel, 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,

Intervenors - Appellees

BP AMERICA PRODUCTION COMPANY; CHEVRON PIPE LINE

COMPANY; CHEVRON USA HOLDINGS, INCORPORATED; CHEVRON

USA, INCORPORATED; EXXON MOBIL CORPORATION; SHELL

OFFSHORE, INCORPORATED; SHELL OIL COMPANY; SWEPI, L.P.;

TEXAS COMPANY,

Defendants - Appellants

Appeal from the United States District Court

for the Western District of Louisiana

Before CLEMENT, SOUTHWICK, and HO, Circuit Judges.

PERCURIAM:

Case: 19-30829

Document: 00515185188

Page: 2

Date Filed: 11/04/2019

IT IS ORDERED that appellants' opposed motion to stay the order of the

United States District Court for the Western District of Louisiana dated

September 26, 2019, is GRANTED.

Case: 19-30829

Document: 00515185206

Page: 1

Date Filed: 11/04/2019

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

November 04, 2019

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 19-30829

Parish of Cameron, et al v. Auster Oil & Gas,

Incorporated, et al

USDC No. 2:18-CV-677

Enclosed is an order entered in this case.

Sincerely,

LYLE W. CAYCE, Clerk

(Yl~~~

By:

Mary C. Stewart, Deputy Clerk

504-310-7694

Mr. George Arceneaux III

Ms. Kelly Brechtel Becker

Mr. James B. Canfield

Mr. Donald T. Carmouche

Ms. Jennifer Jo Clark

Mr. Brendan Jeremiah Crimmins

Mr. David Charles Frederick

Mr. Matthew T. Heartney

Mr. Russell Keith Jarrett

Mr. Steven Beauregard Jones

Mr. Peter D. Keisler

Mrs. Deborah DeRoche Kuchler

Mr. Rocco F. Magni

Mr. Victor L. Marcello

Mr. Eric Julian Mayer

Mr. Robert Beattie McNeal

Ms. Nancy Gordon Milburn

Mr. Tony R. Moore

Mr. Ryan C. Morris

Mr. Chad Ellis Mudd

Mr. Michael Raudon Phillips

Mr. Martin A. Stern

Ms. Alexandra Giselle White

ATTACHMENT D

Case: 19-30829

Document: 00515215752

Page: 1

Date Filed: 11/26/2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-30829

PARISH OF CAMERON,

Plaintiff - Appellee

State of Louisiana, ex rel, 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,

Intervenors - Appellees

BP AMERICA PRODUCTION COMPANY; CHEVRON PIPE LINE

COMPANY; CHEVRON USA HOLDINGS, INCORPORATED; CHEVRON

USA, INCORPORATED; EXXON MOBIL CORPORATION; KERR-MCGEE

OIL & GAS ONSHORE, L.P.; SHELL OFFSHORE, INCORPORATED;

SHELL OIL COMPANY; SWEPI, L.P.; TEXAS COMPANY,

Defendants - Appellants

Appeals from the United States District Court

for the Western District of Louisiana

Before CLEMENT, SOUTHWICK, and HO, Circuit Judges.

PERCURIAM:

IT IS ORDERED that the appellants' opposed motion for injunction

pending appeal is GRANTED.

Case: 19-30829

Document: 00515215760

Page: 1

Date Filed: 11/26/2019

United States Court of Appeals

FIFTH CIRCUIT

OFFICE OF THE CLERK

LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

November 26, 2019

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

No. 19-30829

Parish of Cameron, et al v. Auster Oil & Gas,

Incorporated, et al

USDC No. 2:18-CV-677

Enclosed is an order entered in this case.

Sincerely,

LYLE W. CAYCE, Clerk

(Yl~~~

By:

Mary C. Stewart, Deputy Clerk

504-310-7694

Mr. George Arceneaux III

Ms. Kelly Brechtel Becker

Mr. James B. Canfield

Mr. Donald T. Carmouche

Ms. Jennifer Jo Clark

Mr. Brendan Jeremiah Crimmins

Mr. David Charles Frederick

Mr. Matthew T. Heartney

Mr. Russell Keith Jarrett

Mr. Steven Beauregard Jones

Mr. Peter D. Keisler

Mrs. Deborah DeRoche Kuchler

Mr. Rocco F. Magni

Mr. Victor L. Marcello

Mr. Eric Julian Mayer

Mr. Robert Beattie McNeal

Ms. Nancy Gordon Milburn

Mr. Tony R. Moore

Mr. Ryan C. Morris

Mr. Chad Ellis Mudd

Mr. Michael Raudon Phillips

Mr. Donald Wayne Price

Mr. Ryan Michael Seidemann

Mr. Martin A. Stern

Ms. Alexandra Giselle White

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.