Petition for Writ of Certiorari — Chevron Corporation, et al., Petitioners v. San Mateo County, California, et al.

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE OF NINTH CIRCUIT

COUNTY OF SAN MATEO,

individually and on behalf of

the People of the State of

California,

Plaintiff-Appellee,

v.

CHEVRON CORPORATION;

CHEVRON U.S.A. INC.;

EXXONMOBIL CORPORATION; BP

PLC; BP AMERICA, INC.; ROYAL

DUTCH SHELL PLC; SHELL OIL

PRODUCTS COMPANY LLC;

CITGO PETROLEUM

CORPORATION;

CONOCOPHILLIPS;

CONOCOPHILLIPS COMPANY;

PHILLIPS 66 COMPANY;

PEABODY ENERGY

CORPORATION; TOTAL E&P

USA, INC.; TOTAL SPECIALTIES

USA, INC.; ARCH COAL INC.;

ENI OIL & GAS, INC.; RIO TINTO

ENERGY AMERICA, INC.; RIO

TINTO MINERALS, INC.; RIO

TINTO SERVICES, INC.;

ANADARKO PETROLEUM

No. 18-15499

D.C. No.

3:17-cv-04929-VC

2a

CORPORATION; OCCIDENTAL

PETROLEUM CORPORATION;

OCCIDENTAL CHEMICAL

CORPORATION; REPSOL ENERGY

NORTH AMERICA CORP.;

REPSOL TRADING USA CORP.;

MARATHON OIL COMPANY;

MARATHON OIL CORPORATION;

MARATHON PETROLEUM CORP.;

HESS CORP.; DEVON ENERGY

CORP.; DEVON ENERGY

PRODUCTION COMPANY, LP;

ENCANA CORPORATION;

APACHE CORP.,

Defendants-Appellants.

CITY OF IMPERIAL BEACH,

individually and on behalf of

the People of the State of

California,

Plaintiff-Appellee,

v.

CHEVRON CORPORATION;

CHEVRON U.S.A. INC.;

EXXONMOBIL CORPORATION;

BP PLC; BP AMERICA, INC.;

ROYAL DUTCH SHELL PLC;

SHELL OIL PRODUCTS

COMPANY LLC; CITGO

PETROLEUM CORPORATION;

CONOCOPHILLIPS;

CONOCOPHILLIPS COMPANY;

No. 18-15502

D.C. No.

3:17-cv-04934-VC

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PHILLIPS 66 COMPANY;

PEABODY ENERGY

CORPORATION; TOTAL E&P

USA, INC.; TOTAL

SPECIALTIES USA, INC.; ARCH

COAL INC.; ENI OIL & GAS,

INC.; RIO TINTO ENERGY

AMERICA, INC.; RIO TINTO

MINERALS, INC.; RIO TINTO

SERVICES, INC.; ANADARKO

PETROLEUM CORPORATION;

OCCIDENTAL PETROLEUM

CORPORATION; OCCIDENTAL

CHEMICAL CORPORATION;

REPSOL ENERGY NORTH

AMERICA CORP.; REPSOL

TRADING USA CORP.;

MARATHON OIL COMPANY;

MARATHON OIL

CORPORATION; MARATHON

PETROLEUM CORP.; HESS

CORP.; DEVON ENERGY CORP.;

DEVON ENERGY PRODUCTION

COMPANY, LP; ENCANA

CORPORATION; APACHE CORP.,

Defendants- Appellants.

COUNTY OF MARIN,

individually and on behalf of

the People of the State of California,

Plaintiff-Appellee,

No. 18-15503

D.C. No.

3:17-cv-04935-VC

4a

v.

CHEVRON CORPORATION;

CHEVRON U.S.A. INC.;

EXXONMOBIL CORPORATION;

BP PLC; BP AMERICA, INC.;

ROYAL DUTCH SHELL PLC;

SHELL OIL PRODUCTS

COMPANY LLC; CITGO

PETROLEUM CORPORATION;

CONOCOPHILLIPS;

CONOCOPHILLIPS COMPANY;

PHILLIPS 66 COMPANY;

PEABODY ENERGY

CORPORATION; TOTAL E&P

USA, INC.; TOTAL

SPECIALTIES USA, INC.; ARCH

COAL INC.; ENI OIL & GAS,

INC.; RIO TINTO ENERGY

AMERICA, INC.; RIO TINTO

MINERALS, INC.; RIO TINTO

SERVICES, INC.; ANADARKO

PETROLEUM CORPORATION;

OCCIDENTAL PETROLEUM

CORPORATION; OCCIDENTAL

CHEMICAL CORPORATION;

REPSOL ENERGY NORTH

AMERICA CORP.; REPSOL

TRADING USA CORP.;

MARATHON OIL COMPANY;

MARATHON OIL

CORPORATION; MARATHON

PETROLEUM CORP.; HESS

CORP.; DEVON ENERGY CORP.;

DEVON ENERGY PRODUCTION

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COMPANY, LP; ENCANA

CORPORATION; APACHE CORP.,

Defendants-Appellants.

COUNTY OF SANTA CRUZ,

individually and on behalf of

The People of the State of

California; CITY OF SANTA

CRUZ, a municipal corporation, individually and on behalf of The People of the State

of California; CITY OF

RICHMOND, individually and

on behalf of The People of the

State of California,

Plaintiffs-Appellees,

v.

CHEVRON CORPORATION;

CHEVRON USA INC.; ROYAL

DUTCH SHELL PLC; BP PLC;

SHELL OIL PRODUCTS

COMPANY LLC; BP AMERICA,

INC.; EXXON MOBIL

CORPORATION;

CONOCOPHILLIPS;

CONOCOPHILLIPS COMPANY;

ANADARKO PETROLEUM

CORPORATION; APACHE

CORPORATION; DEVON

ENERGY CORPORATION;

DEVON ENERGY PRODUCTION

COMPANY, LP; TOTAL E&P

No. 18-16376

D.C. Nos.

3:18-cv-00450-VC

3:18-cv-00458-VC

3:18-cv-00732-VC

OPINION

6a

USA, INC.; TOTAL

SPECIALTIES USA, INC.;

ENCANA CORPORATION;

CITGO PETROLEUM

CORPORATION; HESS

CORPORATION; MARATHON

OIL COMPANY; MARATHON OIL

CORPORATION; REPSOL

ENERGY NORTH AMERICA

CORPORATION; REPSOL

TRADING USA CORPORATION;

PHILLIPS 66 COMPANY;

OCCIDENTAL PETROLEUM

CORPORATION; OCCIDENTAL

CHEMICAL CORPORATION; ENI

OIL & GAS, INC.; MARATHON

PETROLEUM CORPORATION,

Defendants-Appellants

Appeal from the United States District Court

for the Northern District of California

Vince Chhabria, District Judge, Presiding

Argued and Submitted February 5, 2020

Pasadena, California

Filed May 26, 2020

Before: Sandra S. Ikuta, Morgan Christen, and

Kenneth K. Lee, Circuit Judges.

Opinion by Judge Ikuta

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_____________________________________________

SUMMARY∗

_____________________________________________

Removal/Subject-Matter

Jurisdiction/Appellate Jurisdiction

On appeal from the district court’s order remanding complaints to the state court from which they had

been removed, the panel dismissed the appeal in part

for lack of jurisdiction and affirmed in part, holding

that defendants did not carry their burden of establishing the criteria for federal-officer removal under

28 U.S.C. § 1442(a)(1).

The County of San Mateo and other cities and

counties filed six complaints in California state court

against more than thirty energy companies, alleging

nuisance and other causes of action arising from the

role of fossil fuel products in global warming. The energy companies removed the cases to federal court.

The district court granted plaintiffs’ motions to remand, rejecting all eight of the grounds on which the

energy companies relied for subject-matter jurisdiction.

Dismissing in part, the panel held that under 28

U.S.C. § 1447(d), it had jurisdiction to review the removal order only to the extent the order addressed

whether removal was proper under § 1442(a)(1). The

panel concluded that the non-reviewability clause of

§ 1447(d) applied because the district court remanded

based on a lack of subject-matter jurisdiction. Declining to follow the Seventh Circuit, the panel held that

∗ This summary constitutes no part of the opinion of the court.

It has been prepared by court staff for the convenience of the

reader.

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under the “exception clause” of § 1447(d), authorizing

review of removal pursuant to 28 U.S.C. §§ 1442 and

1443, it had jurisdiction to review whether removal

was proper under § 1442(a)(1), but the exception

clause did not subject the district court’s entire remand order to plenary review. The panel followed Patel v. Del Taco, Inc., 446 F.3d 996 (9th Cir. 2006), concluding that Patel was not abrogated either by intervening judicial authority or by Congress’s 2011

amendment of § 1447(d) to insert § 1442.

Affirming in part, the panel held that the district

court did not err in holding that there was no subjectmatter jurisdiction under the federal-officer removal

statute. The panel concluded that the energy companies failed to establish that they were “acting under”

a federal officer’s directions based on three agreements with the government: CITGO’s fuel supply

agreements with the Navy Exchange Service Command, a unit agreement for the petroleum reserves at

Elk Hills between Standard Oil Company of California and the U.S. Navy, and the energy companies’ Oil

and Gas Leases of Submerged Lands Under the Outer

Continental Shelf Lands Act.

_________________________________________________

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COUNSEL

Theodore J. Boutrous, Jr. (argued), Andrea E. Neuman, William E. Thomson, and Joshua S. Lipshutz,

Gibson Dunn & Crutcher LLP, Los Angeles, California; Herbert J. Stern and Joel M. Silverstein, Stern &

Kilcullen LLC, Florham Park, New Jersey; Neal S.

Manne, Johnny W. Carter, Erica Harris, and Steven

Shepard, Susman Godfrey LLP, Houston, Texas; for

Defendants-Appellants Chevron Corporation and

Chevron U.S.A. Inc.

Jonathan W. Hughes, Arnold & Porter Kaye Scholer

LLP, San Francisco, California; Matthew T. Heartney

and John D. Lombardo, Arnold & Porter Kaye Scholer

LLP, Los Angeles, California; Philip H. Curtis and

Nancy Milburn, Arnold & Porter Kaye Scholer LLP,

New York, New York; for Defendants-Appellants BP

PLC and BP America, Inc.

Sean C. Grimsley and Jameson R. Jones, Bartlit Beck

LLP, Denver, Colorado; Megan R. Nishikawa and

Nicholas A. Miller-Stratton, King & Spalding LLP,

San Francisco, California; Tracie J. Renfroe and Carol

M. Wood, King & Spalding LLP, Houston, Texas; for

Defendants-Appellants ConocoPhillips and ConocoPhillips Company.

M. Randall Oppenheimer and Dawn Sestito, O’Melveny & Myers LLP, Los Angeles, California; Theodore

V. Wells, Jr., Daniel J. Toal, and Jaren E. Janghorbani, Paul Weiss Rifkind Wharton & Garrison LLP,

New York, New York; for Defendant-Appellant Exxon

Mobil Corporation.

Daniel B. Levin, Munger Tolles & Olson LLP, Los Angeles, California; Jerome C. Roth and Elizabeth A.

Kim, Munger Tolles & Olson LLP, San Francisco, California; David C. Frederick and Brendan J. Crimmins,

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Kellogg Hansen Todd Figel & Frederick P.L.L.C.,

Washington, D.C.; for Defendants-Appellants Royal

Dutch Shell PLC and Shell Oil Products Company

LLC.

Bryan M. Killian, Morgan Lewis & Bockius LLP,

Washington, D.C.; James J. Dragna and Yardena R.

Zwang-Weissman, Morgan Lewis & Bockius LLP, Los

Angeles, California; for Defendant-Appellant Anadarko Petroleum Corporation.

Thomas F. Koegel, Crowell & Moring LLP, San Francisco, California; Kathleen Taylor Sooy and Tracy A.

Roman, Crowell & Moring LLP, Washington, D.C.; for

Defendant-Appellant Arch Coal Inc.

Mortimer Hartwell, Vinson & Elkins LLP, San Francisco, California; Patrick W. Mizell and Deborah C.

Milner, Vinson & Elkins LLP, Houston, Texas; for Defendant-Appellant Apache Corp.

William M. Sloan and Jessica L. Grant, Venable LLP,

San Francisco, California; for Defendant-Appellant

Peabody Energy Corporation.

Mark McKane P.C., Kirkland & Ellis LLP, San Francisco, California; Andrew A. Kassof, P.C., and Brenton

Rogers, Kirkland & Ellis LLP, Chicago, Illinois; for

Defendants-Appellants Rio Tinto Energy America,

Inc.; Rio Tinto Minerals, Inc.; and Rio Tinto Services,

Inc.

Gregory Evans, McGuireWoods LLP, Los Angeles,

California; Steven R. Williams, Joy C. Fuhr, and

Brian D. Schmalzbach, McGuireWoods LLP, Richmond, Virginia; for Defendants-Appellants Devon Energy Corp. and Devon Energy Production Company,

LP.

11a

Christopher W. Keegan, Kirkland & Ellis LLP, San

Francisco, California; Andrew R. McGaan, P.C., Kirkland & Ellis LLP, Chicago, Illinois; Anna G. Rotman,

P.C., Kirkland & Ellis LLP, Houston, Texas; Bryan D.

Rohm, Total E&P USA, Inc., Houston, Texas; for Defendants-Appellants Total E&P USA, Inc.; and Total

Specialties USA, Inc.

Michael F. Healy, Shook Hardy & Bacon LLP, San

Francisco, California; Michael L. Fox, Duane Morris

LLP, San Francisco, California; for Defendant-Appellant Encana Corporation.

Craig A. Moyer and Peter Duchesneau, Manatt

Phelps & Phillips LLP, Los Angeles, California;

Stephanie A. Roeser, Manatt Phelps & Phillips LLP,

San Francisco, California; Nathan P. Eimer, Lisa S.

Meyer, Pamela R. Hanebutt, and Raphael Janove,

Eimer Stahl LLP, Chicago, Illinois; for Defendant-Appellant CITGO Petroleum Corporation.

Christopher J. Carr and Jonathan A. Shapiro, Baker

Botts L.L.P., San Francisco, California; Scott Janoe,

Baker Botts L.L.P., Houston, Texas; Evan Young,

Baker Botts L.L.P., Austin, Texas; Megan Berge,

Baker Botts L.L.P., Washington, D.C.; for Defendants-Appellants Hess Corp., Marathon Oil Company,

Marathon Oil Corporation, Repsol Energy North

America Corp., and Repsol Trading USA Corp.

Steven M. Bauer and Margaret A. Tough, Latham &

Watkins LLP, San Francisco, California; for Defendant-Appellant Phillips 66 Company.

David E. Cranston, Greenberg Glusker Fields Claman

& Machtinger LLP, Los Angeles, California; for Defendant-Appellant Eni Oil & Gas, Inc.

12a

Marc A. Fuller and Matthew R. Stammel, Vinson &

Elkins L.L.P., Dallas, Texas; Stephen C. Lewis and R.

Morgan Gilhuly, Barg Coffin Lewis & Trapp LLP, San

Francisco, California; for Defendants-Appellants Occidental Petroleum Corporation and Occidental

Chemical Corporation.

Shannon S. Broome and Ann Marie Mortimer,

Hunton Andrews Kurth LLP, San Francisco, California; Shawn Patrick Regan, Hunton Andrews Kurth

LLP, New York, New York; for Defendant-Appellant

Marathon Petroleum Corp.

Victor M. Sher (argued), Matthew K. Edling, Katie H.

Jones, and Martin D. Quiñones, Sher Edling LLP, San

Francisco, California; Kevin K. Russell, Sarah E. Harrington, and Charles H. Davis, Goldstein & Russell

P.C., Bethesda, Maryland; for Plaintiffs-Appellees.

John C. Beiers, Paul A. Okada, David A. Silberman,

Margaret V. Tides, and Matthew J. Sanders, Office of

the County Counsel, Redwood City, California; for

Plaintiff-Appellee County of San Mateo.

Brian E. Washington, Brian C. Case, and Brandon

Halter, Office of the County Counsel, San Rafael, California, for Plaintiff-Appellee County of Marin.

Jennifer Lyon and Steven E. Boehmer, McDougal

Love Boehmer Foley Lyon & Canlas, Office of the City

Attorney, La Mesa, California, for Plaintiff-Appellee

City of Imperial Beach.

Dana McRae and Jordan Sheinbaum, Office of the

County Counsel, Santa Cruz, California, for PlaintiffAppellee County of Santa Cruz.

Anthony P. Condotti, City Attorney, Santa Cruz, California, for Plaintiff-Appellee City of Santa Cruz.

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Bruce Reed Goodmiller and Rachel H. Sommovilla,

City Attorney’s Office, Richmond, California, for

Plaintiff-Appellee City of Richmond.

Steven P. Lehotsky, Michael B. Schon, and Jonathan

D. Urick, U.S. Chamber Litigation Center, Washington, D.C.; Peter D. Keisler, C. Frederick Beckner III,

Ryan C. Morris, and Tobias S. Loss-Eaton, Sidley Austin LLP, Washington, D.C.; for Amicus Curiae Chamber of Commerce of the United States of America.

Gerson H. Smoger, Smoger & Associates P.C., Dallas,

Texas; Robert S. Peck, Center for Constitutional Litigation P.C., Washington, D.C.; for Amicus Curiae

Senator Sheldon Whitehouse.

Scott L. Nelson and Allison M. Zieve, Public Citizen

Litigation Group, Washington, D.C., for Amicus Curiae Public Citizen, Inc.

James R. Williams, County Counsel; Greta S. Hansen,

Chief Assistant County Counsel; Laura S. Trice, Lead

Deputy County Counsel; Tony LoPresti, Deputy

County Counsel; Office of the County Counsel, County

of Santa Clara, San José, California; for Amicus Curiae California State Association of Counties.

Ian Fein, Natural Resources Defense Council, San

Francisco, California; Peter Huffman, Natural Resources Defense Council, Washington, D.C.; for Amicus Curiae Natural Resources Defense Council.

14a

OPINION

IKUTA, Circuit Judge:

In this appeal, we consider a district court’s order

remanding complaints to state court after the defendants had removed the complaints to federal court on

eight separate grounds. Under 28 U.S.C. § 1447(d),

we have jurisdiction to review the remand order only

to the extent it addresses whether removal was proper

under § 1442(a)(1), see Patel v. Del Taco, Inc., 446 F.3d

996, 998 (9th Cir. 2006), which authorizes removal by

“any person acting under” a federal officer, 28 U.S.C.

§ 1442(a)(1). We conclude that the defendants did not

carry their burden of establishing this criteria for removal. Because we lack jurisdiction to review other

aspects of the remand order, we dismiss the remainder of the appeal.

I

The County of San Mateo, the County of Marin,

and the City of Imperial Beach filed three materially

similar complaints in California state court against

more than 30 energy companies in July 2017. 1 The

complaints allege that the Energy Companies’ “extraction, refining, and/or formulation of fossil fuel

products; their introduction of fossil fuel products into

the stream of commerce; their wrongful promotion of

their fossil fuel products and concealment of known

hazards associated with use of those products; and

their failure to pursue less hazardous alternatives

available to them; is a substantial factor in causing

the increase in global mean temperature and consequent increase in global mean sea surface height.”

We refer to the plaintiffs collectively as the “Counties” and to

the defendants collectively as the “Energy Companies.”

1

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Based on these allegations, the complaints assert

causes of action for public and private nuisance, strict

liability for failure to warn, strict liability for design

defect, negligence, negligent failure to warn, and trespass.

The Energy Companies removed the three complaints to federal court, asserting seven bases for subject-matter jurisdiction, including jurisdiction under

the federal-officer removal statute, 28 U.S.C.

§ 1442(a)(1). The three cases were assigned to Judge

Vince G. Chhabria.

Shortly thereafter, the County of Santa Cruz, the

City of Santa Cruz, and the City of Richmond filed materially similar complaints in California state court.

The Energy Companies removed these cases to federal

court as well, asserting the same seven bases for subject-matter jurisdiction, 2 and they were also assigned

to Judge Chhabria. 3

The Counties, in all six cases, moved to remand to

state court based on a lack of subject-matter jurisdiction. In a reasoned opinion, the district court rejected

Marathon Petroleum Corporation raised an eighth ground

for removal: that the complaints raised issues concerning maritime activities, giving rise to admiralty jurisdiction. See 28

U.S.C. § 1333.

2

The city attorneys of Oakland and San Francisco filed similar actions in California state court. Those cases were removed

and assigned to Judge William H. Alsup, who subsequently dismissed the action for failure to state a claim and for lack of personal jurisdiction. See City of Oakland v. BP p.l.c., 325 F. Supp.

3d 1017 (N.D. Cal. 2018); City of Oakland v. BP p.l.c., 2018 WL

3609055 (N.D. Cal. July 27, 2018). In a concurrently filed opinion, we resolve the appeal from those cases. See City of Oakland

v. BP p.l.c., — F.3d — (9th Cir. 2020).

3

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all eight of the grounds on which the Energy Companies relied for subject-matter jurisdiction, but the district court stayed its remand orders to give the Energy

Companies an opportunity to appeal. “[W]e have jurisdiction to determine whether we have jurisdiction

to hear [a] case.” Atl. Nat’l Tr. LLC v. Mt. Hawley Ins.

Co., 621 F.3d 931, 933 (9th Cir. 2010) (citation omitted).

II

Our authority to review an order remanding a

case to state court is limited. Under 28 U.S.C.

§ 1447(d), “[1] [a]n order remanding a case to the State

court from which it was removed is not reviewable on

appeal or otherwise, [2] except 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.” We consider the Energy Companies’ arguments that we may

conduct a plenary review of the district court’s remand

order under both of these clauses.

A

Although the first clause in § 1447(d) (the “nonreviewability clause”) broadly prohibits review of “[a]n

order remanding a case to the State court from which

it was removed,” the Supreme Court has interpreted

this language narrowly as prohibiting review only if a

remand order was issued based on a ground enumerated in § 1447(c). 4 Atl. Nat’l Tr., 621 F.3d at 934 (citing Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.

4

Section 1447(c) states, in pertinent part:

A motion to remand the case on the basis of any defect

other than lack of subject matter jurisdiction must be

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336, 343 (1976)). When a district court bases its remand order on one of the grounds in § 1447(c)—i.e.,

the district court “remands based on subject matter

jurisdiction [or] nonjurisdictional defects”—as opposed to, for example, based on a merits determination or concerns about a heavy docket, id. at 934–35,

“review is unavailable no matter how plain the legal

error in ordering the remand,” Briscoe v. Bell, 432 U.S.

404, 413 n.13 (1977). “[R]eview of the District Court’s

characterization of its remand as resting upon lack of

subject-matter jurisdiction, to the extent it is permissible at all, should be limited to confirming that that

characterization was colorable.” Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 234 (2007).

The Energy Companies argue that the district

court’s order remanded the complaints on a ground

that cannot be “colorably characterized as subjectmatter jurisdiction.” Id. Specifically, the Energy

Companies contend that the district court remanded

the complaints based on a merits determination when

it held that “federal common law d[id] not govern the

[Counties’] claims” and therefore “d[id] not preclude

[the Counties] from asserting . . . state law claims.”

We reject this argument. The district court ordered remand based on its view that the cases were

“improperly removed to federal court” because the Energy Companies failed to show that “the case[s] . . .

fit[] within one of a small handful of small boxes”

providing for subject-matter jurisdiction. Put simply,

made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final

judgment it appears that the district court lacks subject

matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c).

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the district court concluded that it “lack[ed] subject

matter jurisdiction.” 28 U.S.C. § 1447(c). Even if the

district court erred in reaching this conclusion, “review is unavailable no matter how plain the legal error in ordering the remand.” Kircher v. Putnam

Funds Tr., 547 U.S. 633, 642 (2006) (citing Briscoe,

432 U.S. at 413 n.13). To the extent Powerex requires

that we determine whether the district court’s conclusion that “federal common law [d]id not govern the

[Counties’] claims” was “at least arguable,”

Townsquare Media, Inc. v. Brill, 652 F.3d 767, 775

(7th Cir. 2011) (citing Atl. Nat’l Tr., 621 F.3d at 937–

38, 940), we hold that it was, see City of Oakland v. BP

p.l.c., — F.3d — (9th Cir. 2020) (holding that the district court erred in concluding that there was subjectmatter jurisdiction on the ground that the plaintiffs’

state-law nuisance claims were “necessarily governed

by federal common law”).

B

We next consider the Energy Companies’ argument that the second clause of § 1447(d) (the “exception clause”) requires us to conduct plenary review of

the district court’s remand order. We have interpreted the exception clause as giving us the authority

to review the district court’s remand order only to the

extent that the order addresses the statutory sections

listed in the clause. See Patel v. Del Taco, Inc., 446

F.3d 996, 998 (9th Cir. 2006). In Patel, the defendants

removed a state-court complaint to federal court under § 1443(1), which provides for removal of civilrights cases. Id. The district court granted the plaintiff’s motion for remand on the ground that removal

was not proper under either § 1441 or § 1443(1). Id.

We held that, under § 1447(d), we lacked jurisdiction

“to review the remand order based on § 1441” and

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thus dismissed the defendants’ appeal to the extent it

was based on that section. Id. 5 At the same time, we

held that we had jurisdiction “to review the remand

order based on . . . § 1443(1).” Id. The reasoning in

Patel applies directly to our case. Under § 1447(d), as

interpreted in Patel, we have jurisdiction to review the

Energy Companies’ appeal to the extent the remand

order addresses § 1442(a)(1), but we lack jurisdiction

to review their appeal from the portions of the remand

order considering the seven other bases for subjectmatter jurisdiction.

Arguing against this conclusion, the Energy Companies contend that when a suit is “removed pursuant

to section 1442,” 28 U.S.C. § 1447(d), the district

court’s entire remand order is subject to plenary review. The Energy Companies base this argument on

a Seventh Circuit case, Lu Junhong v. Boeing Co.,

which concluded that because § 1447(d) authorizes

appellate review of “an order,” it authorizes review of

“the order itself,” not just “particular reasons for an

order.” 792 F.3d 805, 812 (7th Cir. 2015). In reaching

this conclusion, the Seventh Circuit relied on Yamaha

Motor Corp., U.S.A. v. Calhoun, which construed a

statute (28 U.S.C. § 1292(b)) giving appellate courts

jurisdiction to review interlocutory orders that a district court certifies for immediate appeal. 516 U.S.

199 (1996). 6 Yamaha concluded that § 1292(b) gives

Patel considered an earlier version of § 1447(d), which did not

include § 1442 in the exception clause. See Removal Clarification

Act of 2011, Pub. L. No. 112-51, § 2, 125 Stat. 545, 546 (2011).

5

Section 1292(b) provides that “[w]hen a district judge, in

making . . . an order not otherwise appealable” determines that

the order meets certain criteria and that “an immediate appeal

from the order may materially advance the ultimate termination

of the litigation, he shall so state in writing in such order,” and

6

20a

an appellate court jurisdiction over “any issue fairly

included within the certified order because ‘it is the

order that is appealable, and not the controlling question identified by the district court.’” Id. at 205 (citation omitted).

The Energy Companies urge us to follow Lu Junhong notwithstanding our decision in Patel for two

reasons. First, they argue that Patel has been abrogated by an act of Congress. After Patel was decided,

Congress enacted the Removal Clarification Act of

2011, which amended § 1447(d) to allow for review of

remand orders in cases removed pursuant to § 1442.

See Removal Clarification Act of 2011, Pub. L. No.

112-51, § 2, 125 Stat. 545, 546 (2011). According to

the Energy Companies, Congress’s failure to amend

the reference in § 1447(d) to orders “reviewable by appeal,” means that Congress intended to adopt

Yamaha’s interpretive approach and therefore authorized plenary review of remand orders for cases removed pursuant to § 1442. 7 Second, the Energy Companies argue that we are not bound by Patel because

it was not well reasoned: it did not provide any

grounds for its conclusion that we lacked jurisdiction

to conduct a plenary review of the remand order.

Both of these arguments implicate our doctrine of

stare decisis. We have long held that “one three-judge

panel . . . cannot reconsider or overrule the decision of

a prior panel,” United States v. Gay, 967 F.2d 322, 327

“[t]he Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order.” 28 U.S.C. § 1292(b).

The Energy Companies do not argue that Yamaha abrogated

Patel, nor could they, given that Yamaha was decided in 1996—

a decade before Patel—and thus is not “intervening higher authority.” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir. 2003) (en

banc).

7

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(9th Cir. 1992), unless “our prior circuit authority is

clearly irreconcilable with the reasoning or theory of

intervening higher authority,” Miller v. Gammie, 335

F.3d 889, 893 (9th Cir. 2003) (en banc).

There is no intervening judicial authority that

would abrogate Patel. Neither the Supreme Court nor

an en banc panel of this court has issued a decision

after Patel was decided in 2006 that is clearly irreconcilable with Patel’s conclusion that § 1447(d) limits

our review to the grounds for removal covered by the

exception clause. Therefore, we consider only the effect of Congress’s amendment of § 1447(d) in 2011.

Before Congress’s amendment of § 1447(d), every

circuit court that had addressed this issue agreed with

our reading of § 1447(d). 8 Although Yamaha was decided in 1996 (ten years before we decided Patel), no

circuit court had applied Yamaha to § 1447(d) or discussed its applicability in that context. Therefore,

when Congress amended § 1447(d) to insert “1442 or”

before “1443,” Removal Clarification Act of 2011 § 2,

it was against a backdrop of unanimous judicial interpretation of § 1447(d) as permitting review of only the

grounds for removal identified in the exception clause.

Congress did not give any indication that it intended

to overrule the then-unanimous interpretation of

§ 1447(d) as limiting judicial review of a remand order

See Alabama v. Conley, 245 F.3d 1292, 1293 n.1 (11th Cir.

2001); Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir. 1997);

Thornton v. Holloway, 70 F.3d 522, 524 (8th Cir. 1995); State

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

1981); Detroit Police Lieutenants & Sergeants Ass’n v. City of Detroit, 597 F.2d 566, 567 (6th Cir. 1979); Robertson v. Ball, 534

F.2d 63, 66 & n.5 (5th Cir. 1976); Noel v. McCain, 538 F.2d 633,

635 (4th Cir. 1976).

8

22a

to the grounds listed in the exception clause. We “presume that Congress acts ‘with awareness of relevant

judicial decisions.’” United States v. Alvarez-Hernandez, 478 F.3d 1060, 1065 (9th Cir. 2007) (quoting

United States v. Male Juvenile, 280 F.3d 1008, 1016

(9th Cir. 2002)). And “when ‘judicial interpretations

have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate [the statute’s] . . . judicial interpretations as

well.” Id. (quoting Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Dabit, 547 U.S. 71, 85 (2006)). Accordingly, we conclude that Congress did not abrogate Patel sub silentio but rather “inten[ded] to incorporate”

Patel’s (and six other circuits’) interpretation of

§ 1447(d). Id. (citation omitted). The Fourth Circuit

has reached the same conclusion. See Mayor & City

Council of Baltimore v. BP P.L.C., 952 F.3d 452, 461

(4th Cir. 2020) (“[T]he fact that Congress later added

§ 1442 as an exception to § 1447(d)’s no-appeal rule for

remand orders does not undermine our holding . . .

that appellate courts only have jurisdiction to review

those grounds for removal that are specifically enumerated in § 1447(d).”). We therefore conclude that

Congress’s amendment of § 1447(d) did not abrogate

our interpretation in Patel.

The Energy Companies also argue that we are not

bound by Patel because it was not well reasoned and

failed to analyze Yamaha or the statutory interpretation arguments discussed in Lu Junhong. Were we

writing on a clean slate, we might conclude that Lu

Junhong provides a more persuasive interpretation of

§ 1447(d) than Patel. But see Baltimore, 952 F.3d at

459–60. Precedents, however, do not cease to be au-

23a

thoritative merely because counsel in a later case advances new arguments. See United States v. RamosMedina, 706 F.3d 932, 939 (9th Cir. 2013) (“This panel

is not free to disregard the decision of another panel

of our court simply because we think the arguments

have been characterized differently or more persuasively.”). Therefore, we remain bound by Patel until

abrogated by an intervening higher authority.

Applying Patel’s reading of § 1447(d), we may review the district court’s remand order only to the extent it addresses § 1442(a)(1). 446 F.3d at 998; accord

Baltimore, 952 F.3d at 461. Accordingly, we dismiss

the Energy Companies’ appeals for lack of jurisdiction

to the extent the Energy Companies seek review of the

district court’s ruling as to other bases for subjectmatter jurisdiction. See Patel, 446 F.3d at 1000.

III

We now turn to the single ground of removal that

we have jurisdiction to review: the question whether

the district court erred in holding that there was no

subject-matter jurisdiction under the federal-officer

removal statute, 28 U.S.C. § 1442(a)(1). We review

questions of statutory construction and subject-matter jurisdiction de novo. Ritchey v. Upjohn Drug Co.,

139 F.3d 1313, 1315 (9th Cir. 1998). The defendant

has the burden of proving by a preponderance of the

evidence that the requirements for removal jurisdiction have been met. Leite v. Crane Co., 749 F.3d 1117,

1122 (9th Cir. 2014).

As currently drafted, § 1442(a)(1) provides for removal of:

A civil action . . . that is against or directed to

. . . [t]he United States or any agency thereof

or any officer (or any person acting under that

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officer) of the United States or of any agency

thereof, in an official or individual capacity,

for or relating to any act under color of such

office or on account of any right, title or authority claimed under any Act of Congress for

the apprehension or punishment of criminals

or the collection of the revenue.

28 U.S.C. § 1442(a)(1) (emphasis added).

In order to invoke § 1442(a)(1), a private person

must establish: “(a) it is a person within the meaning

of the statute; (b) there is a causal nexus between its

actions, taken pursuant to a federal officer’s directions, and [the] plaintiff’s claims; and (c) it can assert

a colorable federal defense.” Riggs v. Airbus Helicopters, Inc., 939 F.3d 981, 986–87 (9th Cir. 2019) (quoting Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095, 1099

(9th Cir. 2018)). To demonstrate a causal nexus, the

private person must show: (1) that the person was

“acting under” a federal officer in performing some

“act under color of federal office,” and (2) that such action is causally connected with the plaintiffs’ claims.

See Goncalves ex rel. Goncalves v. Rady Children’s

Hosp. San Diego, 865 F.3d 1237, 1244 (9th Cir. 2017).

The parties focus on the first prong: whether the

Energy Companies were “acting under” a federal officer’s directions. We begin by providing some background. The federal officer removal statute has existed in some version since 1815. Willingham v. Morgan, 395 U.S. 402, 405 (1969). Although Congress has

amended the statute on a number of occasions, see

Watson v. Philip Morris Cos., 551 U.S. 142, 147–49

(2007), most recently in 2011, see Removal Clarification Act of 2011 § 2, the purpose of the statute has remained essentially the same: “The statute’s history

25a

and th[e] Court’s cases demonstrate that its basic purpose is to protect the Federal Government from the

interference with its operations that would ensue

were a State able, for example, to arrest and bring to

trial in a State court for an alleged offense against the

law of the State, officers and agents of the Government acting . . . within the scope of their authority.”

Watson, 551 U.S. at 150 (cleaned up) (quoting Willingham, 395 U.S. at 406). Congress thought that allowing a federal officer to remove a state action was necessary because “[s]tate-court proceedings may reflect

‘local prejudice’ against unpopular federal laws or federal officials” and “deprive federal officials of a federal

forum in which to assert federal immunity defenses.”

Id. (citation omitted). Moreover, state-court proceedings may have the effect of impeding or delaying the

enforcement of federal law. Id. The federal officer removal statute should be “liberally construed” to fulfill

its purpose of allowing federal officials and agents

who are being prosecuted in state court for acts taken

in their federal authority to remove the case to federal

court. Id. at 147 (citation omitted).

When Congress first enacted § 1442(a)(1), the

phrase “officer of the United States” was generally understood as a term of art that referred to federal officers who “exercis[ed] significant authority.” Int’l Primate Prot. League v. Adm’rs of Tulane Educ. Fund,

500 U.S. 72, 81 (1991) (quoting Buckley v. Valeo, 424

U.S. 1, 126 (1976)). In 1948, Congress amended the

statute to include the language “person[s] acting under” any officer of the United States. Act of June 25,

1948, ch. 646, § 1442, 62 Stat. 869, 938 (codified at 28

U.S.C. § 1442). At the time, this change was understood as extending the section to apply to employees,

26a

as well as officers. Int’l Primate Prot. League, 500 U.S.

at 84 (quoting H.R. Rep. No. 80-308, at A134 (1947)).

The Supreme Court subsequently interpreted the

term “person acting under that officer” as extending

to a “private person” who has certain types of close relationships with the federal government. See Watson,

551 U.S. at 152–53. The Supreme Court has identified a number of factors courts should consider in determining whether a private person is “acting under”

a federal officer for purposes of § 1442(a)(1). Among

other things, the Court considers whether the person

is acting on behalf of the officer in a manner akin to

an agency relationship. See id. at 151 (private person

must be authorized to act “with or for federal officers”); see also Goncalves, 865 F.3d at 1246 (holding

that a private person qualified as “acting under” a federal officer when it was “serving as the government’s

agent”); Cabalce v. Thomas E. Blanchard & Assocs.,

Inc., 797 F.3d 720, 729 (9th Cir. 2015) (noting that a

company’s independent-contractor status supported

the conclusion that it was not acting under a federal

officer). The Court also considers whether the person

is subject to the officer’s close direction, such as acting

under the “subjection, guidance, or control” of the officer, or in a relationship which “is an unusually close

one involving detailed regulation, monitoring, or supervision.” Watson, 551 U.S. at 151, 153 (citation

omitted); see also Leite, 749 F.3d at 1120, 1124 (holding that a defense contractor properly removed a case

under § 1442(a)(1) based, in part, on “the Navy’s detailed specifications regulating the warnings that

equipment manufacturers were required to provide”).

Third, the Court considers whether the private person

is assisting the federal officer in fulfilling “basic governmental tasks” that “the Government itself would

27a

have had to perform” if it had not contracted with a

private firm. Watson, 551 U.S. at 153–54; see also

Goncalves, 865 F.3d at 1246–47 (holding that private

person fulfilled a basic governmental task by pursuing

subrogation claims on behalf of a government agency).

Finally, taking into account the purpose of

§ 1442(a)(1), the Court has considered whether the

private person’s activity is so closely related to the

government’s implementation of its federal duties

that the private person faces “a significant risk of

state-court ‘prejudice,’” just as a government employee would in similar circumstances, and may have

difficulty in raising an immunity defense in state

court. Watson, 551 U.S. at 152 (citation omitted).

As the Supreme Court has indicated, and circuit

courts have held, a government contractor may meet

the criteria for “acting under” an officer under certain

circumstances. See id. at 153–54. Watson cited with

approval a Fifth Circuit case, Winters v. Diamond

Shamrock Chemical Co., which held that a government contractor could remove a state action under

§ 1442(a) because the contractor was acting on behalf

of the government to produce Agent Orange, a carcinogenic herbicide used as part of the war strategy in

Vietnam, and was acting under the close direction of

the federal government which had provided “detailed

specifications concerning the make-up, packaging,

and delivery of Agent Orange,” as well as “on-going

supervision . . . over the formulation, packaging, and

delivery of Agent Orange.” 149 F.3d 387, 399–400

(5th Cir. 1998). Further, the contractor provided a

product that was “used to help conduct a war” and at

least arguably “performed a job that, in the absence of

a contract with a private firm, the Government itself

would have had to perform.” Watson, 551 U.S. at 153–

28a

54; see also Goncalves, 865 F.3d at 1246–47 (holding

that a private contractor was “acting under” a federal

officer when it was serving as an agent for the government and assisting the government in fulfilling basic

duties).

By contrast, a person is not “acting under” a federal officer when the person enters into an arm’slength business arrangement with the federal government or supplies it with widely available commercial

products or services. See Cabalce, 797 F.3d at 727–29;

Baltimore, 952 F.3d at 463–64; cf. Goncalves, 865 F.3d

at 1244–47; Winters, 149 F.3d at 398–400. Nor does a

person’s “compliance with the law (or acquiescence to

an order)” amount to “‘acting under,’ a federal officer

who is giving an order or enforcing the law.” Watson,

551 U.S. at 152. This is true “even if the regulation is

highly detailed and even if the private firm’s activities

are highly supervised and monitored.” Id. at 153. We

may not interpret § 1442(a) so as to “expand the scope

of the statute considerably, potentially bringing

within its scope state-court actions filed against private firms in many highly regulated industries.” Id.

The Energy Companies argue that they meet the

criteria under § 1442(a) to remove the Counties’ complaints because they were “persons acting under” a

federal officer based on three agreements with the

government. 9 They also argue that there is a causal

nexus between their actions under those agreements

and the Counties’ claims. We consider each of these

agreements in turn.

We have held that corporations are “person[s]” under

§ 1442(a)(1), Goncalves, 865 F.3d at 1244, so there is no dispute

that the Energy Companies meet this requirement.

9

29a

We first consider CITGO’s fuel supply agreements

with the Navy Exchange Service Command

(NEXCOM). Under these contracts, CITGO agreed to

supply gasoline and diesel fuel to NEXCOM for service stations on approximately forty U.S. Navy installations. The government resold the CITGO fuel at

NEXCOM facilities to individual service members.

The Energy Companies point to three sets of contractual requirements in the fuel supply agreements

which they claim establish the “subjection, guidance

or control” necessary to invoke federal jurisdiction,

namely: (1) “fuel specifications” that required compliance with specified American Society for Testing and

Material Standards and required that NEXCOM have

a qualified independent source analyze the products

for compliance with those specifications; (2) provisions

that give the Navy the right to inspect delivery, site,

and operations; and (3) branding and advertising requirements. 10

The Energy Companies cite the following sections in the fuel

supply agreements. First, the fuel specification provisions require CITGO to “provide high quality gasoline product identical

to or the same product as supplied [by] the contractor[‘]s commercially operated gasoline service station [e.g., regular leaded,

regular unleaded, and premium unleaded].” The “[m]otor fuel

products supplied” by CITGO were required to comply with the

generic standards promulgated by the American Society for Testing and Materials, and the Navy agreed to “have a qualified independent source analyze the products provided [by CITGO],” including any product that was “suspected of being faulty/inferior.”

Second, the inspection provisions gave the Navy the right to “visually check truck compartment(s) before and after deliveries” of

fuel and to conduct “general operational reviews,” which “might

also include inspections of . . . vehicles.” Third, the branding provisions require CITGO to “supply all necessary equipment, including signage, for each facility,” to “incorporate the Government logo on at least three . . . provided signage fixtures,” and to

10

30a

This argument fails. The provisions on which the

Energy Companies rely “seem typical of any commercial contract” and are “incidental to sale and sound in

quality assurance.” Baltimore, 952 F.3d at 464. The

contracts evince an arm’s-length business relationship to supply NEXCOM with generally available

commercial products. See id. Supplying gasoline to

the Navy for resale to its employees is not an activity

so closely related to the government’s implementation

of federal law that the person faces “a significant risk

of state-court prejudice.” Watson, 551 U.S. at 152. Accordingly, we hold that CITGO was not “acting under”

a federal officer by supplying gasoline and diesel fuel

to NEXCOM pursuant to fuel supply contracts.

Second, the Energy Companies point to the 1944

unit agreement 11 for the petroleum reserves at Elk

Hills between Standard Oil Company of California

(Chevron Corporation’s predecessor in interest) and

the U.S. Navy. We have detailed the history of this

unit agreement at length in our prior decisions. See

United States v. Standard Oil Co. of Cal., 545 F.2d

624, 626–28 (9th Cir. 1976). In brief, Standard owned

one-fifth and the Navy owned four-fifths of the ap-

supply “[a] standard service station rotating-fixed neon or incandescent street corner station identification sign . . . for each Government fueling station.” And CITGO could submit “proposals

on [CITGO] branded products,” but the government was not obligated to market “said product under [CITGO’s] brand or trade

name.”

“A unit agreement was at that time and still is a common

arrangement in the petroleum industry where two or more owners have interests in a common pool. Under such an arrangement, the pool is operated as a unit and the parties share production and costs in agreed-upon proportions.” United States v.

Standard Oil Co. of California, 545 F.2d 624, 627 (9th Cir. 1976).

11

31a

proximately 46,000 acres comprising the Elk Hills reserves. As is common in the oil exploration and production industry, the two landowners entered into a

unit agreement to coordinate operations in the oil field

and production of the oil. Because the Navy sought to

limit oil production in order to ensure the availability

of oil reserves in the event of a national emergency,

the unit agreement required that both Standard and

the Navy curtail their production and gave the Navy

“exclusive control over the exploration, prospecting,

development, and operation of the Reserve.” To compensate Standard for reducing production, the unit

agreement gave Standard the right to produce a specified amount of oil per day (an average of 15,000 barrels per day). Both parties could dispose of the oil they

extracted as they saw fit, and neither had a “preferential right to purchase any portion of the other’s share

of [the] production.”

Standard’s activities under the unit agreement

did not give rise to a relationship where Standard was

“acting under” a federal officer for purposes of § 1442.

Standard was not acting on behalf of the federal government in order to assist the government perform a

basic government function. Rather, Standard and the

government reached an agreement that allowed them

to coordinate their use of the oil reserve in a way that

would benefit both parties: the government maintained oil reserves for emergencies, and Standard ensured its ability to produce oil for sale. When Standard extracted oil from the reserve, Standard was acting independently, see Cabalce, 797 F.3d at 728–29,

not as the Navy’s “agent,” Goncalves, 865 F.3d at

1246; see also H.R. Rep. No. 112-17, pt. 1, at 3 (2011)

(“Removal is allowed only when the acts of Federal de-

32a

fendants are essentially ordered or demanded by Federal authority . . . .”). And Standard’s arm’s-length

business arrangement with the Navy does not involve

conduct so closely related to the government’s implementation of federal law that the Energy Companies

would face “a significant risk of state-court ‘prejudice.’” Watson, 551 U.S. at 152. 12

Finally, we consider the Energy Companies’ lease

agreements, entitled “Oil and Gas Leases of Submerged Lands Under the Outer Continental Shelf

Lands Act.” Under these standard-form leases, the

government grants the lessee the right to explore and

produce oil and gas resources in the submerged lands

of the outer Continental Shelf, and in exchange the

lessee agrees to pay the government rents and royalties. The Energy Companies argue that the lessee Energy Companies were “acting under” a federal officer

because the leases require that the lessees drill for oil

and gas pursuant to government-approved explora-

At oral argument, the Energy Companies argued for the first

time that Standard was “acting under” a federal officer pursuant

to the Naval Petroleum Reserves Production Act of 1976, Pub. L.

94-258, § 201, 90 Stat. 303 (1976), which directed the Secretary

of the Navy to “produce such reserves [including the Elk Hill reserve] at the maximum efficient rate consistent with sound engineering practices for a period not to exceed six years” and to “sell

or otherwise dispose of the United States share of such petroleum

produced from such reserves.” § 201, 90 Stat. at 308. Nothing in

the record indicates that the Secretary of the Navy “ordered or

demanded,” H.R. Rep. No. 112-17, pt. 1, at 3 (2011), reprinted in

2011 U.S.C.C.A.N. 420, 422, that Standard produce oil on behalf

of the Navy, see also Baltimore, 952 F.3d at 471 (“[W]e are left

wanting for pertinent details about Standard’s role in operating

the Elk Hills Reserve and producing oil therefrom on behalf of

the Navy.”). Therefore, the Energy Companies’ reliance on this

Act is misplaced.

12

33a

tion plans and that the lessees sell some of their production to certain buyers; specifically, lessees must offer twenty percent of their production to “small or independent refiners” and must give the United States

the right of first refusal in time of war or “when the

President of the United States shall so prescribe.”

This argument also fails. The leases do not require that lessees act on behalf of the federal government, under its close direction, or to fulfill basic governmental duties. Nor are lessees engaged in an activity so closely related to the government’s function

that the lessee faces “a significant risk of state-court

‘prejudice.’” Id. In fact, the lease requirements

largely track legal requirements, for instance, that the

lessee offer 20 percent of the “crude oil, condensate,

and natural gas liquids produced on [the] lease . . . to

small or independent refiners,” 43 U.S.C. § 1337(b)(7),

and that “[i]n time of war, or when the President shall

so prescribe, the United States shall have the right of

first refusal to purchase at the market price all or any

portion of any mineral produced from the outer Continental Shelf,” 43 U.S.C. § 1341(b). Mere “compl[iance]

with the law, even if the laws are ‘highly detailed, and

thus leave [an] entity ‘highly regulated,’” does not

show that the entity is “acting under” a federal officer.

Goncalves, 865 F.3d at 1245 (quoting Watson, 551 U.S.

at 151–53). We agree with the Fourth Circuit that

“the willingness to lease federal property or mineral

rights to a private entity for the entity’s own commercial purposes, without more” cannot be “characterized

as the type of assistance that is required” to show that

the private entity is “acting under” a federal officer.

Baltimore, 952 F.3d at 465. Accordingly, the leases on

34a

which the defendants rely do not give rise to the “unusually close” relationship where the lessee was “acting under” a federal officer. Watson, 551 U.S. at 153.

Because we conclude that the Energy Companies

have not carried their burden of proving by a preponderance of the evidence that they were “acting under”

a federal officer, we do not reach the question whether

actions pursuant to the fuel supply agreement, unit

agreement, or lease agreement had a causal nexus

with the Counties’ complaints, or whether the Energy

Companies can assert a colorable federal defense. See

Fidelitad, 904 F.3d at 1099.

***

We affirm the district court to the extent it held

there was no subject-matter jurisdiction under 28

U.S.C. § 1442(a)(1), and we dismiss the remainder of

the appeals for lack of jurisdiction under § 1447(d).

AFFIRMED IN PART; DISMISSED IN PART. 13

The Counties’ Motion for Partial Dismissal (ECF No. 41) is

GRANTED. See Patel, 446 F.3d at 1000. Costs shall be taxed

against the Energy Companies.

13

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APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

March 16, 2018

COUNTY OF SAN

MATEO,

Case No.

17-cv-04929-VC

Plaintiff,

v.

CHEVRON CORP.,

et al.,

Re: Dkt. No. 144

Defendants.

COUNTY OF IMPERIAL Case No.

BEACH,

17-cv-04934-VC

Plaintiff,

v.

CHEVRON CORP.,

et al.,

Re: Dkt. No. 140

Defendants.

COUNTY OF MARIN,

Plaintiff,

v.

CHEVRON CORP.,

et al.,

Defendants.

Case No.

17-cv-04935-VC

ORDER GRANTING

MOTIONS TO

REMAND

Re: Dkt. No. 140

36a

The plaintiffs’ motions to remand are granted.

1. Removal based on federal common law was

not warranted. In American Electric Power Co., Inc.

v. Connecticut, the Supreme Court held that the Clean

Air Act displaces federal common law claims that seek

the abatement of greenhouse gas emissions. 564 U.S.

410, 424 (2011). Far from holding (as the defendants

bravely assert) that state law claims relating to global

warming are superseded by federal common law, the

Supreme Court noted that the question of whether

such state law claims survived would depend on

whether they are preempted by the federal statute

that had displaced federal common law (a question the

Court did not resolve). Id. at 429. This seems to reflect the Court’s view that once federal common law is

displaced by a federal statute, there is no longer a possibility that state law claims could be superseded by

the previously-operative federal common law.

Applying American Electric Power, the Ninth Circuit concluded in Native Village of Kivalina v. ExxonMobil Corp. that federal common law is displaced

by the Clean Air Act not only when plaintiffs seek injunctive relief to curb emissions but also when they

seek damages for a defendant’s contribution to global

warming. 696 F.3d 849, 857-58 (9th Cir. 2012). The

plaintiffs in the current cases are seeking similar relief based on similar conduct, which means that federal common law does not govern their claims. In this

respect, the Court disagrees with People of the State

of California v. BP P.L.C., Nos. C 17-06011 WHA, C

17-06012 WHA (N.D. Cal. Feb. 27, 2018), which concluded that San Francisco and Oakland’s current lawsuits are materially different from Kivalina such that

federal common law could play a role in the current

lawsuits brought by the localities even while it could

37a

not in Kivalina. Like the localities in the current

cases, the Kivalina plaintiffs sought damages resulting from rising sea levels and land erosion. Not coincidentally, there is significant overlap between the defendants in Kivalina and the defendants in the current cases. 696 F.3d at 853-54 & n.1. The description

of the claims asserted was also nearly identical in Kivalina and the current cases: that the defendants’

contributions to greenhouse gas emissions constituted

“a substantial and unreasonable interference with

public rights.” Id. at 854. Given these facts, Kivalina

stands for the proposition that federal common law is

not just displaced when it comes to claims against domestic sources of emissions but also when it comes to

claims against energy producers’ contributions to

global warming and rising sea levels. Id. at 854-58.

Put another way, American Electric Power did not

confine its holding about the displacement of federal

common law to particular sources of emissions, and

Kivalina did not apply American Electric Power in

such a limited way.

Because federal common law does not govern the

plaintiffs’ claims, it also does not preclude them from

asserting the state law claims in these lawsuits.

Simply put, these cases should not have been removed

to federal court on the basis of federal common law

that no longer exists.

2. Nor was removal warranted under the doctrine of complete preemption. State law claims are often preempted by federal law, but preemption alone

seldom justifies removing a case from state court to

federal court. Usually, state courts are left to decide

whether state law claims are preempted by federal

law under principles of “express preemption,” “conflict

preemption” or “field preemption.” And state courts

38a

are entirely capable of adjudicating that sort of question. See, e.g., Smith v. Wells Fargo Bank, N.A., 38

Cal. Rptr. 3d 653, 665-73 (Cal. Ct. App. 2005), as modified on denial of reh’g (Jan. 26, 2006); Carpenters

Health & Welfare Trust Fund for California v.

McCracken, 100 Cal. Rptr. 2d 473, 474-77 (Cal. Ct.

App. 2000). A defendant may only remove a case to

federal court in the rare circumstance where a state

law claim is “completely preempted” by a specific federal statute — for example, section 301 of the Labor

Management Relations Act, section 502 of the Employment Retirement Income Security Act, or sections

85 and 86 of the National Bank Act. See Sullivan v.

American Airlines, Inc., 424 F.3d 267, 271-73 (2d Cir.

2005). The defendants do not point to any applicable

statutory provision that involves complete preemption. To the contrary, the Clean Air Act and the Clean

Water Act both contain savings clauses that preserve

state causes of action and suggest that Congress did

not intend the federal causes of action under those

statutes “to be exclusive.” 42 U.S.C. §§ 7604(e), 7416;

33 U.S.C. §§ 1365(e), 1370; Beneficial National Bank

v. Anderson, 539 U.S. 1, 9 n.5 (2003); Bell v. Cheswick

Generating Station, 734 F.3d 188, 194-97 (3d Cir.

2013). There may be important questions of ordinary

preemption, but those are for the state courts to decide

upon remand.

3. Nor was removal warranted on the basis of

Grable jurisdiction. The defendants have not pointed

to a specific issue of federal law that must necessarily

be resolved to adjudicate the state law claims. Grable

& Sons Metal Products, Inc. v. Darue Engineering &

Manufacturing, 545 U.S. 308, 314 (2005); see also Empire Healthchoice Assurance, Inc. v. McVeigh, 547 U.S.

39a

677, 700 (2006). Instead, the defendants mostly gesture to federal law and federal concerns in a generalized way. The mere potential for foreign policy implications (resulting from the plaintiffs succeeding on

their claims at an unknown future date) does not raise

the kind of actually disputed, substantial federal issue

necessary for Grable jurisdiction. Nor does the mere

existence of a federal regulatory regime mean that

these cases fall under Grable.

See Empire

Healthchoice, 547 U.S. at 701 (“[I]t takes more than a

federal element ‘to open the “arising under” door.’”

(quoting Grable, 545 U.S. at 313)). Moreover, even if

deciding the nuisance claims were to involve a weighing of costs and benefits, and even if the weighing

were to implicate the defendants’ dual obligations under federal and state law, that would not be enough to

invoke Grable jurisdiction. On the defendants’ theory,

many (if not all) state tort claims that involve the balancing of interests and are brought against federally

regulated entities would be removable. Grable does

not sweep so broadly. See Empire Healthchoice, 547

U.S. at 701 (describing Grable as identifying no more

than a “slim category” of removable cases); Grable,

545 U.S. at 313-14, 319.

4. These cases were not removable under any of

the specialized statutory removal provisions cited by

the defendants. Removal under the Outer Continental Shelf Lands Act was not warranted because even

if some of the activities that caused the alleged injuries stemmed from operations on the Outer Continental Shelf, the defendants have not shown that the

plaintiffs’ causes of action would not have accrued but

for the defendants’ activities on the shelf. See In re

Deepwater Horizon, 745 F.3d 157, 163 (5th Cir. 2014).

Nor was federal enclave jurisdiction appropriate,

40a

since federal land was not the “locus in which the

claim arose.” In re High-Tech Employee Antitrust Litigation, 856 F. Supp. 2d 1103, 1125 (N.D. Cal. 2012)

(quoting Alvares v. Erickson, 514 F.2d 156, 160 (9th

Cir. 1975)); see also Ballard v. Ameron International

Corp., No. 16-CV-06074-JSC, 2016 WL 6216194, at *3

(N.D. Cal. Oct. 25, 2016); Klausner v. Lucas Film Entertainment Co, Ltd., No. 09-03502 CW, 2010 WL

1038228, at *4 (N.D. Cal. Mar. 19, 2010); Rosseter v.

Industrial Light & Magic, No. C 08-04545 WHA, 2009

WL 210452, at *2 (N.D. Cal. Jan. 27, 2009). Nor was

there a reasonable basis for federal officer removal,

because the defendants have not shown a “causal

nexus” between the work performed under federal direction and the plaintiffs’ claims, which are based on

a wider range of conduct. See Cabalce v. Thomas E.

Blanchard & Associates, Inc., 797 F.3d 720, 727 (9th

Cir. 2015); see also Watson v. Philip Morris Companies, Inc., 551 U.S. 142, 157 (2007). And bankruptcy

removal did not apply because these suits are aimed

at protecting the public safety and welfare and

brought on behalf of the public. See City & Cty. of San

Francisco v. PG & E Corp., 433 F.3d 1115, 1123-24

(9th Cir. 2006); Lockyer v. Mirant Corp., 398 F.3d

1098, 1108-09 (9th Cir. 2005). To the extent two defendants’ bankruptcy plans are relevant, there is no

sufficiently close nexus between the plaintiffs’ lawsuits and these defendants’ plans. See In re Wilshire

Courtyard, 729 F.3d 1279, 1287 (9th Cir. 2013).

* * *

As the defendants note, these state law claims

raise national and perhaps global questions. It may

even be that these local actions are federally

preempted. But to justify removal from state court to

federal court, a defendant must be able to show that

41a

the case being removed fits within one of a small

handful of small boxes. Because these lawsuits do not

fit within any of those boxes, they were properly filed

in state court and improperly removed to federal

court. Therefore, the motions to remand are granted.

The Court will issue a separate order in each case to

remand it to the state court that it came from.

At the hearing, the defendants requested a short

stay of the remand orders to sort out whether a longer

stay pending appeal is warranted. A short stay is appropriate to consider whether the matter should be

certified for interlocutory appeal, whether the defendants have the right to appeal based on their dubious

assertion of federal officer removal, or whether the remand orders should be stayed pending the appeal of

Judge Alsup’s ruling. Therefore, the remand orders

are stayed until 42 days of this ruling. Within 7 days

of this ruling, the parties must submit a stipulated

briefing schedule for addressing the propriety of a

stay pending appeal. The parties should assume that

any further stay request will be decided on the papers;

the Court will schedule a hearing if necessary.

IT IS SO ORDERED.

Dated: March 16, 2018

__/s/ Vince Chhabria

VINCE CHHABRIA

United States District Judge

42a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

July 10, 2018

COUNTY OF SANTA

CRUZ,

Case No.

18-cv-00450-VC

Plaintiff,

v.

CHEVRON CORP.,

et al.,

Re: Dkt. No. 68

Defendants.

CITY OF SANTA CRUZ,

Plaintiff,

Case No.

18-cv-00458-VC

v.

CHEVRON CORP.,

et al.,

Defendants.

Re: Dkt. No. 66

CITY OF RICHMOND,

Case No.

18-cv-00732-VC

Plaintiff,

v.

CHEVRON CORP.,

et al.,

Defendants.

ORDER GRANTING

MOTIONS TO

REMAND

Re: Dkt. No. 45

43a

For the reasons stated in this Court's prior order,

see Order Granting Motions to Remand, No. 3:17-cv04929-VC (Dkt. No. 223), as well as for the reasons

stated in Coronel v. AK Victory, 1 F. Supp. 3d 1175,

1178-89 (W.D. Wash. 2014), the motions to remand

filed by the County of Santa Cruz, City of Santa Cruz,

and City of Richmond are granted. However, the remand orders are stayed pending the outcome of the

appeals in the County of San Mateo, City of Imperial

Beach, and County of Marin cases.

IT IS SO ORDERED.

Dated: July 10, 2018

__/s/ Vince Chhabria

VINCE CHHABRIA

United States District Judge

44a

APPENDIX D

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

August 4, 2020

COUNTY OF SAN

MATEO, individually and

on behalf of the People of

the State of California,

Plaintiff-Appellee,

v.

CHEVRON

CORPORATION; et al.,

Defendants-Appellants.

CITY OF IMPERIAL

BEACH, individually and

on behalf of the People of

the State of California,

Plaintiff-Appellee,

v.

CHEVRON

CORPORATION; et al.,

Defendants-Appellants.

No. 18-15499

D.C. No. 3:17-cv04929-VC

Northern District of

California, San Francisco

ORDER

No. 18-15502

D.C. No. 3:17-cv04934-VC

Northern District of

California, San Francisco

45a

COUNTY OF MARIN, individually and on behalf of

No. 18-15503

the People of the State of

D.C. No. 3:17-cvCalifornia,

04935-VC

Plaintiff-Appellee,

Northern District of

v

California, San FranCHEVRON

cisco

CORPORATION; et al.,

Defendants-Appellants.

COUNTY OF SANTA

CRUZ, individually and on

behalf of The People of the

State of California; et al.,

Plaintiffs-Appellees,

v.

CHEVRON

CORPORATION; et al.,

Defendants-Appellants.

No. 18-16376

D.C. Nos.

3:18-cv-00450-VC

3:18-cv-00458-VC

3:18-cv-00732-VC

Northern District of

California, San Francisco

46a

Before: IKUTA, CHRISTEN, and LEE, Circuit

Judges.

The panel has unanimously voted to deny Appellants’ Petition for Rehearing En Banc (ECF No. 222).

The full court has been advised of the Petition for

Rehearing En Banc, and no Judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The Petition for Rehearing En Banc is DENIED.

Dated: August 4, 2020