Amicus Curiae Brief — Sunoco LP, et al., Petitioners v. City and County of Honolulu, Hawaii, et al.

No. 22-523

IN THE

Supreme Court of the United States

SUNOCO LP, ET AL.,

Petitioners,

v.

CITY AND COUNTY OF HONOLULU, ET AL.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA

AS AMICUS CURIAE

SUPPORTING PETITIONERS

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

(Additional counsel listed on

signature page)

January 5, 2023

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

BRIANA ADAMS-SEATON

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000

TABLE OF CONTENTS

PAGE

INTEREST OF THE AMICUS CURIAE.................... 1

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 4

I.

II.

The question presented is important

because it implicates whether federal

courts may remand a suit against a

federal officer (or a party working under

a federal officer), relating to the

defendant’s official functions, even

when a colorable federal defense is

presented........................................................... 4

A.

The question presented can affect

any federal-officer removal case. ........... 5

B.

The availability of federal-officer

removal is a significant question

for the wide variety of businesses

that can act under federal

officers. ................................................... 6

The court of appeals’ holding departs

from this Court’s precedent, creates a

circuit split, misreads the statute, and

creates uncertainty for federal officers

and private parties. ........................................ 14

A.

The proposition that colorable

federal defenses must “flow from

official duties” is incorrect as a

matter of precedent, text, and

constitutional structure. ...................... 15

i

B.

The Ninth Circuit’s holding

leaves private businesses

uncertain about whether they can

invoke federal-officer removal if

they work for the federal

government. ......................................... 18

CONCLUSION .......................................................... 21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

In re “Agent Orange” Prod. Liab. Litig.,

304 F. Supp. 2d 442 (E.D.N.Y. 2004) ......... 13, 20

Akin v. Big Three Indus., Inc.,

851 F. Supp. 819 (E.D. Tex. 1994) ...................... 9

Anesthesiology Assocs. of Tallahassee, Fla.,

P.A. v. Blue Cross Blue Shield of Fla., Inc.,

No. 03-15664, 2005 WL 6717869 (11th Cir.

Mar. 18, 2005) ................................................... 10

Arizona v. Manypenny,

451 U.S. 232 (1981) ........................................... 15

Baker v. Atl. Richfield Co.,

962 F.3d 937 (7th Cir. 2020) ......................... 9, 16

Bell v. Thornburg,

743 F.3d 84 (5th Cir. 2014) ......................... 11, 19

Bennett v. MIS Corp.,

607 F.3d 1076 (6th Cir. 2010) ........................... 11

Camacho v. Autoridad de Telefonos de

Puerto Rico,

868 F.2d 482 (1st Cir. 1989) ............................. 11

Colorado v. Symes,

286 U.S. 510 (1932) ............................................. 8

iii

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Def. Ass’n

of Phila.,

790 F.3d 457 (3d Cir. 2015) ............ 11, 12, 15, 17

Davis v. South Carolina,

107 U.S. 597 (1883) ......................................... 7, 8

Dudek v. Prudential Sec., Inc.,

295 F.3d 875 (8th Cir. 2002) ............................. 18

Einhorn v. CarePlus Health Plans, Inc.,

43 F. Supp. 3d 1268 (S.D. Fla. 2014) ................ 10

Texas ex rel. Falkner v. Nat’l Bank of Com.

of San Antonio,

290 F.2d 229 (5th Cir. 1961) ............................. 10

First Nat’l Bank of Bellevue v. Bank of

Bellevue,

341 F. Supp. 960 (D. Neb. 1972) ....................... 10

Freeze v. Coastal Bend Foot Specialist,

No. C-06-481, 2006 WL 3487405 (S.D.

Tex. Dec. 1, 2006) .............................................. 10

Fung v. Abex Corp.,

816 F. Supp. 569 (N.D. Cal. 1992) ...................... 9

Genereux v. Am. Beryllia Corp.,

577 F.3d 350 (1st Cir. 2009) ............................... 9

Goncalves ex rel. Goncalves v. Rady

Children’s Hosp. San Diego,

865 F.3d 1237 (9th Cir. 2017) ........................... 10

iv

Gordon v. Air & Liquid Sys. Corp.,

990 F. Supp. 2d 311 (E.D.N.Y. 2014) ................. 9

Grp. Health Inc. v. Blue Cross Ass’n,

587 F. Supp. 887 (S.D.N.Y. 1984) ..................... 10

Gurda Farms, Inc. v. Monroe Cnty. Legal

Assistance Corp.,

358 F. Supp. 841 (S.D.N.Y. 1973) ..................... 11

Hagen v. Benjamin Foster Co.,

739 F. Supp. 2d 770 (E.D. Pa. 2010) .................. 9

Holton v. Blue Cross & Blue Shield of S.C.,

56 F. Supp. 2d 1347 (M.D. Ala. 1999) ................ 9

Isaacson v. Dow Chem. Co.,

517 F.3d 129 (2d Cir. 2008) .......................... 9, 12

Jacks v. Meridian Res. Co., LLC,

701 F.3d 1224 (8th Cir. 2012) ........................... 10

Jefferson Cnty. v. Acker,

527 U.S. 423 (1999) ....................................... 5, 15

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) ......................... 9, 16

Malsch v. Vertex Aerospace, LLC,

361 F. Supp. 2d 583 (S.D. Miss. 2005) ............... 9

Mansfield v. Fed. Land Bank of Omaha,

No. 4:14-CV-3232, 2015 WL 4546610 (D.

Neb. July 28, 2015) ........................................... 11

v

Maryland v. Soper,

270 U.S. 9 (1926) ................................................. 8

Mayor & Aldermen of City of Nashville v.

Cooper,

73 U.S. (6 Wall.) 247 (1867) .............................. 17

McMahon v. Presidential Airways, Inc.,

410 F. Supp. 2d 1189 (M.D. Fla. 2006) .............. 9

Mesa v. California,

489 U.S. 121 (1989) ........................... 4, 15, 17, 20

Moore v. Elec. Boat Corp.,

25 F.4th 30 (1st Cir. 2022) ............................ 9, 16

Nat’l Review, Inc. v. Mann,

140 S. Ct. 344 (2019) ......................................... 12

In re Nat’l Sec. Agency Telecomms. Recs.

Litig.,

483 F. Supp. 2d 934 (N.D. Cal. 2007) ......... 11, 12

Osborn v. Haley,

549 U.S. 225 (2007) ........................................... 18

Pani v. Empire Blue Cross Blue Shield,

No. 93 Civ. 8215 (SHS), 1996 WL 734889

(S.D.N.Y. Dec. 23, 1996) ................................... 10

Papp v. Fore-Kast Sales Co.,

842 F.3d 805 (3d Cir. 2016) ................................ 9

Peterson v. Blue Cross/Blue Shield of Tex.,

508 F.2d 55 (5th Cir. 1975) ............................... 10

vi

Ruppel v. CBS Corp.,

701 F.3d 1176 (7th Cir. 2012) ............................. 9

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017) ......................... 9, 16

Tennessee v. Davis,

100 U.S. 257 (1880) ................................... 6, 7, 17

Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480 (1983) ........................................... 18

Vietnam Ass’n for Victims of Agent Orange

v. Dow Chem. Co.,

517 F.3d 104 (2d Cir. 2008) .............................. 12

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ................................... 7, 8, 16

Willingham v. Morgan,

395 U.S. 402 (1969) ....................... 6, 7, 13, 15, 16

Statutes

28 U.S.C. § 1331 ....................................................... 2

28 U.S.C. § 1442 .................... 1, 4, 5, 6, 8, 11, 12, 13,

14, 15, 16, 17, 19, 20

Removal Clarification Act of 2011, Pub. L.

No. 112-51, 125 Stat. 545.............................. 7, 16

Other Authorities

Wright & Miller, 14C Fed. Prac. & Proc.

Juris. § 3726 (4th ed. 2022) ................................ 8

vii

INTEREST OF THE AMICUS CURIAE1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than 3

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members in

matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the nation’s business community.

The Chamber has a strong interest in both

questions presented, each of which warrants certiorari

review. The first question presented concerns the test

for federal-officer removal under 28 U.S.C. § 1442.

Many of the Chamber’s members serve as federal

contractors or otherwise work closely with federal

agencies and officials—particularly during times of

national emergency, such as the COVID-19 pandemic.

Indeed, private industry is often the most efficient way

for the federal government to obtain important goods

and services, including goods and services the

government would otherwise have to produce itself. In

many instances, private businesses make products

designed to meet government specifications, such as

the specialized fuels that petitioners in this case

produced for the military. When companies are sued in

state court for these activities, they frequently remove

1 Amicus curiae timely provided notice of intent to file this brief to

all parties. No counsel for any party authored this brief in whole

or in part, and no entity or person, aside from amicus curiae, its

members, or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

1

2

the litigation to federal court and assert federal-law

defenses, including defenses such as preemption that

may or may not be specific to their governmental

responsibilities. The Chamber has an interest in

ensuring that such lawsuits proceed in federal court, so

that private parties working for the federal

government are not subject to the vagaries of state

procedure and potentially inhospitable state courts.

The Chamber also has an interest in the second

question presented, which concerns the availability of

federal-question jurisdiction under 28 U.S.C. § 1331

over claims related to the effect of transboundary

greenhouse gas emissions on the global climate. The

Chamber believes that the Court should review that

question as well, as the Chamber has already

explained in supporting another petition for certiorari

currently pending before the Court, Suncor Energy

(U.S.A.) Inc. v. Board of County Commissioners of

Boulder County, No. 21-1550. This amicus brief,

however, discusses only the first question presented by

petitioners here, which is not presented in Suncor.

SUMMARY OF ARGUMENT

I. The question presented is important, because it

can affect any federal-officer removal case. The Ninth

Circuit held that even where a defendant qualifies as a

federal officer, or as a person acting under a federal

officer, and even where the suit relates to the

defendant’s work for the federal government, and even

where the defendant has a colorable federal defense,

the defendant will not be able to remove to federal

court unless that defense also “flows from” the

defendant’s official duties. That counterintuitive

holding materially weakens the protection that

Congress provided.

3

The import of the court of appeals’ holding is no

small matter. The question presented affects a broad

and diverse array of private businesses that perform

duties that the federal government cannot perform for

itself.

Congress accorded such businesses the

protection of federal-officer removal, as the lower

courts have recognized in a wide variety of contexts,

because their work can and often does provoke

litigation. Performing work for the federal government

can paint a target on a contractor’s back. Weakening

the protection of federal-officer removal will make

businesses less willing to take on those tasks.

II. Splitting with other circuits, the Ninth Circuit’s

decision misapplies the plain statutory text, this

Court’s cases construing it, and the background

principles of Article III jurisdiction. The statute

requires that the action “relate to” the defendant’s

federal duties; that is the only germaneness

requirement. There is no requirement that a colorable

federal defense “flow from” the defendant’s official

duties, and this Court has upheld officer removal (in a

case involving officers of the judicial branch) even

where the federal defense is a general one rather than

one arising from the officers’ specific duties.

Rather, this Court has always recognized that a

colorable federal defense ensures that there will be at

least some federal question raised in the federal courts

after removal. That Article III requirement is satisfied

if there is a colorable federal defense. Nothing in the

Constitution, the statute, or the Court’s cases requires

remanding a federal officer’s colorable federal defenses

to be adjudicated by a potentially hostile state court, as

the Ninth Circuit insisted.

4

ARGUMENT

I. The question presented is important because it implicates whether federal courts

may remand a suit against a federal officer

(or a party working under a federal officer),

relating to the defendant’s official functions,

even when a colorable federal defense is

presented.

By design, the federal-officer removal statute, 28

U.S.C. § 1442, provides federal officers, and private

parties working under federal officers, with an important protection: a federal forum for litigation relating to their federal work. And although this Court has

held that the statute does not authorize removal of

cases that involve “absolutely no federal question,” Mesa v. California, 489 U.S. 121, 138 (1989), the circuits

are now split on whether only certain kinds of federal

questions will do.

That question is important, because the effect of the

court of appeals’ interpretation can be felt in any federal-officer case. In other words, the court of appeals’

rule will send cases back to state court even when the

suit undisputedly is against a federal officer or a person acting under a federal officer.

This case does not ask the Court to decide who is a

federal officer; the court of appeals assumed petitioners

could satisfy that requirement. But in assessing the

importance of the question presented, this Court

should take into account the wide variety of private

businesses that the lower courts have held to satisfy

the statutory requirements for federal-officer removal.

The question presented therefore is one that affects a

wide range of business defendants that are named in

5

lawsuits related to their work under the supervision of

federal officers. Narrowing their ability to remove to

federal court—or allowing removal to depend on where

suit is filed—would undermine one of the important

reassurances that the government provides to private

businesses considering whether to take on government

assignments.

A. The question presented can affect any

federal-officer removal case.

This Court has consistently read § 1442 to allow

removal when a defendant can satisfy three requirements. First, the defendant must be a federal agency

or officer, including an officer of the federal courts or of

either house of Congress, or a person acting under a

federal officer. 28 U.S.C. § 1442(a)(1), (3), (4). Second,

the suit must be “for or relating to” actions taken in

that capacity. Id. And third, the defendant must raise

a “colorable federal defense.” E.g., Jefferson Cnty. v.

Acker, 527 U.S. 423, 431 (1999). The question presented here affects only the third requirement.

In this case, the court of appeals assumed that petitioners could show that they “were ‘acting under’ federal officers.” Pet. App. 9a, 11a-12a. It did not definitively resolve that question. Rather, the court of appeals concluded that petitioners could not avail themselves of § 1442 removal, because they had failed to establish a “colorable federal defense” that “stem[s] from

official duties.” Id. at 16a-17a.2 That was the only ba2 Although the court of appeals did reach and reject some of petitioners’ arguments that they were “acting under” federal officers,

Pet. App. 11a-16a, the court did not dispose of the entire case on

that ground and moved on to the “colorable federal defense” prong.

Id. at 9a, 11a-12a, 16a-18a.

6

sis on which it rejected removal under § 1442 and affirmed the remand. Id. at 9a.

As a result, the court of appeals’ holding will be

binding in future federal-officer cases in the Ninth Circuit—even cases in which it is clear or undisputed that

the removing defendant either was a federal officer or

acted under one. Under that holding, such a defendant

will not be able to remove a lawsuit directly targeting

her performance of federal duties, even if she has a robust federal defense, unless the defense specifically

stems from the federal duties as well.

B. The availability of federal-officer

removal is a significant question for the

wide variety of businesses that can act

under federal officers.

The availability of removal to federal officers and

those acting under them is an issue with broad nationwide significance. As this Court has long recognized, the removal statute protects persons working for

the federal government from state courts that may be

hostile to the work they are doing. The federal government “can act only through its officers and agents,

and they must act within the States.” Willingham v.

Morgan, 395 U.S. 402, 406 (1969) (quoting Tennessee v.

Davis, 100 U.S. 257, 263 (1880)). The question presented—what kind of federal defense is enough to justify removal?—is one that arises in a wide variety of contexts, because persons acting under federal officers

regularly are targets of litigation.

1. “The federal officer removal statute has had a

long history.” Willingham, 395 U.S. at 405. The statute’s earliest predecessor was a customs law enacted

during the War of 1812, when several New England

7

states opposed efforts to embargo trade with England.

Id. The statute included a removal provision designed

“to protect federal officers from interference by hostile

state courts,” permitting customs officers “to remove to

the federal courts any suit or prosecution commenced

because of any act done ‘under colour’ of the statute.”

Id. Similar statutes protecting customs and revenue

officers were passed in the 1833 (in the face of state

nullification efforts) and again during the Civil War.

Id. at 405-06. The current statute was enacted in

1948, see id. at 406, and was amended as recently as

2011 to broaden its scope, see Removal Clarification

Act of 2011, Pub. L. No. 112-51, 125 Stat. 545.

“The purpose of all these enactments is not hard to

discern”: to ensure robust access to federal court for the

“officers and agents” through whom the federal government must act. Willingham, 395 U.S. at 406. In

cases where those officers and agents stand charged

with liability for acts undertaken “within the scope of

their authority,” “if their protection must be left to the

action of the State court,” then “the operations of the

general government may at any time be arrested at the

will of one of its members.” Id. (quoting Davis, 100

U.S. at 263).

Historically, all of these statutes provided a federal

forum not just to federal officers themselves, but also

to private parties assisting them. See Watson v. Philip

Morris Cos., 551 U.S. 142, 147-49 (2007) (discussing

history of current statute and its predecessors). Well

over a century ago, this Court recognized that “the protection which the law thus furnishes to the marshal

and his deputy, also shields all who lawfully assist him

in the performance of his official duty.” Davis v. South

Carolina, 107 U.S. 597, 600 (1883); see also Maryland

8

v. Soper, 270 U.S. 9, 30 (1926) (citing Davis for the

proposition that a private individual “acting as a chauffeur and helper to [federal] officers under their orders”

had “the same right to the benefit of [the removal statute]” as the officers themselves).

Today’s statute extends to “any officer (or any person acting under that officer) of the United States or of

any agency thereof.” 28 U.S.C. § 1442(a)(1) (emphasis

added). “The words ‘acting under’ are broad” on their

face, and this Court has made clear that they must be

“‘liberally construed.’” Watson, 551 U.S. at 147 (quoting Colorado v. Symes, 286 U.S. 510, 517 (1932)). As a

result, its protection extends to many different types of

persons working for the federal government.

2. Private businesses working with the government

have long relied on the federal-officer removal statute’s

protections in a remarkable variety of different contexts. See generally Wright & Miller, 14C Fed. Prac. &

Proc. Juris. § 3726 (4th ed. 2022) (“[T]he statute has

been applied in cases involving a wide spectrum of civil

and criminal substantive contexts, and the right to remove has been invoked by a tremendous variety of federal officers and persons acting under the direction of

federal officers.”) (footnotes omitted).

Federal contractors of various stripes frequently

remove lawsuits relating to their work for government

under § 1442. As this Court acknowledged in Watson,

“lower courts have held that Government contractors

fall within the terms of the federal officer removal

statute, at least when the relationship between the

contractor and the Government is an unusually close

one involving detailed regulation, monitoring, or

supervision.” 551 U.S. at 153.

9

Military contractors in particular have invoked the

federal-officer removal statute in numerous cases (for

example, asbestos and other toxic tort litigation). Such

contractors include manufacturers of military

hardware such as helicopters, submarines, and

warships;3 manufacturers of chemicals and chemical

components of other supplies;4 administrators of

military health care programs;5 and other providers of

services to the military,6 including banks that operate

3 See Moore v. Elec. Boat Corp., 25 F.4th 30, 32 (1st Cir. 2022)

(submarines); Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286,

289 (5th Cir. 2020) (naval vessels); Sawyer v. Foster Wheeler LLC,

860 F.3d 249, 252 (4th Cir. 2017) (boilers for naval vessels); Papp

v. Fore-Kast Sales Co., 842 F.3d 805, 809 (3d Cir. 2016) (aircraft);

Ruppel v. CBS Corp., 701 F.3d 1176, 1178 (7th Cir. 2012) (turbines for naval vessels); Gordon v. Air & Liquid Sys. Corp., 990 F.

Supp. 2d 311, 314 (E.D.N.Y. 2014) (turbines and steam generators

for warships); Malsch v. Vertex Aerospace, LLC, 361 F. Supp. 2d

583, 584 (S.D. Miss. 2005) (helicopters); Akin v. Big Three Indus.,

Inc., 851 F. Supp. 819, 823-24 (E.D. Tex. 1994) (jet engines); Fung

v. Abex Corp., 816 F. Supp. 569, 573 (N.D. Cal. 1992)

(submarines).

4 See, e.g., Baker v. Atl. Richfield Co., 962 F.3d 937, 939-41, 942,

946-47 (7th Cir. 2020) (various “critical wartime commodities”

during World War II, including zinc oxide and lead carbonate);

Genereux v. Am. Beryllia Corp., 577 F.3d 350, 353-54, 357 & n.9

(1st Cir. 2009) (beryllium oxide ceramics used in nuclear weapons,

radar tubes, jet brake pads, and jet engine blades); Isaacson v.

Dow Chem. Co., 517 F.3d 129, 138-39 (2d Cir. 2008) (Agent

Orange).

5 Holton v. Blue Cross & Blue Shield of S.C., 56 F. Supp. 2d 1347,

1350-52 & n.3 (M.D. Ala. 1999) (administrator of medical program

for dependents of military personnel).

6 See Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 773

(E.D. Pa. 2010) (civilian contractor that employed machinist who

worked on Navy vessel); McMahon v. Presidential Airways, Inc.,

410 F. Supp. 2d 1189, 1192 (M.D. Fla. 2006) (contractor that flew

planes for Department of Defense in Afghanistan).

10

on military bases.7

Another notable category of cases concerns private

businesses working with federal health care programs

outside the military context. In a number of cases,

courts have found private companies that contract to

administer Medicare benefits to be “acting under”

federal officers. See, e.g., Peterson v. Blue Cross/Blue

Shield of Tex., 508 F.2d 55, 57 (5th Cir. 1975); Einhorn

v. CarePlus Health Plans, Inc., 43 F. Supp. 3d 1268,

1270 (S.D. Fla. 2014); Freeze v. Coastal Bend Foot

Specialist, No. C-06-481, 2006 WL 3487405, at *3 (S.D.

Tex. Dec. 1, 2006); Pani v. Empire Blue Cross Blue

Shield, No. 93 Civ. 8215 (SHS), 1996 WL 734889, at *1

(S.D.N.Y. Dec. 23, 1996), aff’d, 152 F.3d 67 (2d Cir.

1998); Grp. Health Inc. v. Blue Cross Ass’n, 587 F.

Supp. 887, 891 (S.D.N.Y. 1984). The same has been

held of companies administering health benefits for

federal employees. See Goncalves ex rel. Goncalves v.

Rady Children’s Hosp. San Diego, 865 F.3d 1237, 124351 (9th Cir. 2017); Jacks v. Meridian Res. Co., LLC,

701 F.3d 1224, 1232-35 (8th Cir. 2012), abrogated in

part on other grounds by BP p.l.c. v. Mayor & City

Council of Balt., 141 S. Ct. 1532 (2021); Anesthesiology

Assocs. of Tallahassee, Fla., P.A. v. Blue Cross Blue

Shield of Fla., Inc., No. 03-15664, 2005 WL 6717869, at

*2 (11th Cir. Mar. 18, 2005).

Other contractors have also availed themselves of

the protections of the federal-officer removal statute.

For example, a business hired to eliminate toxic mold

from an air-traffic control tower was held to be “acting

under” the Federal Aviation Administration and, on

7 Texas ex rel. Falkner v. Nat’l Bank of Com. of San Antonio, 290

F.2d 229, 231 (5th Cir. 1961); First Nat’l Bank of Bellevue v. Bank

of Bellevue, 341 F. Supp. 960, 961-62 (D. Neb. 1972).

11

that basis, successfully removed a negligence lawsuit.

Bennett v. MIS Corp., 607 F.3d 1076, 1088, 1091 (6th

Cir. 2010). Businesses relying on § 1442 have also

included federal land banks operating under the Farm

Credit Administration, which exist only to “further a

government interest”;8 and telecommunications

companies that provide information to federal lawenforcement or national-security authorities.9

Contractors are not always for-profit businesses:

nonprofits and individuals also benefit from the

protection of § 1442. Of particular note, as one of the

cases forming the circuit split demonstrates (see Pet.

11-13), attorneys providing legal services to

disadvantaged individuals have availed themselves of

the removal statute. See In re Commonwealth’s Motion

to Appoint Counsel Against or Directed to Def. Ass’n of

Phila., 790 F.3d 457, 462-63, 468, 472 (3d Cir. 2015)

(the Federal Community Defender Organization for the

Eastern District of Pennsylvania, which provided legal

services pursuant to the Criminal Justice Act, was

“acting under” the Administrative Office of the U.S.

Courts); Gurda Farms, Inc. v. Monroe Cnty. Legal

Assistance Corp., 358 F. Supp. 841, 842-47 (S.D.N.Y.

1973) (nonprofit providing legal advice to migrant

workers was “acting under” the Office of Economic

Opportunity); see also Bell v. Thornburg, 743 F.3d 84,

89 (5th Cir. 2014) (permitting “private citizen[]”

serving as Chapter 13 standing trustee under the

Bankruptcy Code to remove under § 1442).

8 Mansfield v. Fed. Land Bank of Omaha, No. 4:14-CV-3232, 2015

WL 4546610, at *5 (D. Neb. July 28, 2015).

9 Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482,

486-87 (1st Cir. 1989); In re Nat’l Sec. Agency Telecomms. Recs.

Litig., 483 F. Supp. 2d 934, 943 (N.D. Cal. 2007).

12

3. Removal under § 1442 is important to these

persons working for the federal government—

individuals, nonprofits, and for-profit business alike.

That is especially so when the work is risky or

politically controversial.

One prominent example, the Agent Orange litigation, see Isaacson, 517 F.3d at 138-39, took place

against the backdrop of the government’s controversial

decision to use herbicides in the Vietnam War. And

the conflict itself was the subject of considerable debate, to say the least. See, e.g., Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104,

119 (2d Cir. 2008).

Similar examples abound. One involved a challenge

to a controversial practice of sharing customer phone

records with the National Security Agency—a case in

which the United States was prepared to intervene to

ensure its interests were adequately protected. See

Nat’l Sec. Agency Telecomms. Recs. Litig., 483 F. Supp.

2d at 945. In yet another case, Pennsylvania state

courts sought a blanket disqualification of federallyfunded lawyers from state habeas proceedings, animated by what one circuit judge concluded was “simple animosity or a difference in opinion regarding how capital

cases should be litigated.” In re Commonwealth’s Motion, 790 F.3d at 486 (McKee, J., concurring). And this

petition involves climate change, a topic that has become the subject of significant political disagreement.

See Nat’l Review, Inc. v. Mann, 140 S. Ct. 344, 346

(2019) (Alito, J., dissenting from denial of certiorari)

(“[T]he controversial nature of the whole subject of climate change exacerbates the risk that the jurors’ determination will be colored by their preconceptions on

the matter.”).

13

In such politically charged cases, there is a significant risk that state officials will disagree with the decisions of the federal government. Such political disagreements (over the War of 1812 and the federal trade

embargo of England) are, in fact, what prompted the

earliest predecessor of § 1442 in 1815. See Willingham,

395 U.S. at 405.

The value of the protection afforded by § 1442 to

private businesses—and the drawbacks of narrowly

construing the statute to preclude removal—have not

escaped judicial attention. One district judge, who

presided for decades over multi-district litigation

concerning Agent Orange, made the following

observation:

If cases such as those in this present

wave of Agent Orange claims were scattered throughout state courts, manufacturers would have to seriously consider

whether they would serve as procurement

agents to the federal government. Since

the advent of the Agent Orange litigation

in 1979, mass tort law has become more

hazardous for defendants. While on balance state tort law does more good than

harm, its vagaries and hazards would

provide a significant deterrent to necessary military procurement.

In re “Agent Orange” Prod. Liab. Litig., 304 F. Supp. 2d

442, 451 (E.D.N.Y. 2004) (Weinstein, J.), aff’d sub nom.

Isaacson v. Dow Chem. Co., 517 F.3d 129 (2d Cir.

2008).

For private businesses “acting under” federal officials, the importance of a federal forum is particularly

14

strong in such cases. Given that their activities were

conducted under federal supervision, they should not

be the ones to bear the brunt of political disagreements

over federal policy choices. And so it is hardly surprising that, as is set forth above, a variety of different

businesses have availed themselves of removal under

§ 1442. The Ninth Circuit’s holding threatens to send

some indeterminate share of those cases back to state

court, based on a requirement that (as discussed below)

appears nowhere in the statute or this Court’s decisions. That holding is critically important and warrants this Court’s review.

II. The court of appeals’ holding departs from

this Court’s precedent, creates a circuit

split, misreads the statute, and creates uncertainty for federal officers and private

parties.

The court of appeals swiftly and summarily rejected

a number of petitioners’ federal defenses on the ground

that petitioners did “not contend that the government

ordered” the conduct at issue, and thus that the

defenses did “not flow from official duties.” Pet. App.

17a. If a federal defense did not flow from official

duties and government instructions, the court of

appeals held, a federal defense does not count as a

colorable federal defense.

Not only is that holding inconsistent with this

Court’s cases, sister-circuit precedent, the statute

itself, and Article III background principles, it creates

uncertainty for the many private parties that rely on

federal-officer removal when performing work for the

federal government. This Court should review it

without delay.

15

A. The proposition that colorable federal

defenses must “flow from official duties”

is incorrect as a matter of precedent,

text, and constitutional structure.

1. This Court has never adopted the requirement

imposed by the court of appeals here: that a party

seeking removal under § 1442 must assert a defense

that arises not just under federal law, but specifically

from official duties. Tellingly, the Court did not even

mention such a rule in its two most recent

pronouncements on the issue of a “colorable federal

defense.” In Mesa v. California, the Court addressed

whether the “colorable federal defense” requirement

remained viable at all. 489 U.S. at 134. The Court

concluded that it did, relying principally on the

statute’s history and on doubts about whether the

statute would exceed the bounds of Article III

jurisdiction without such a requirement. Id. at 125-39.

Then, in Jefferson County v. Acker, the Court easily

found

a

“colorable

federal

defense”

in

“intergovernmental tax immunity,” noting that “we

have rejected a ‘narrow, grudging interpretation’” of

that requirement.

527 U.S. at 431 (quoting

Willingham, 395 U.S. at 407). Jefferson County is

squarely inconsistent with any requirement that the

defense arise from official duties. See, e.g., In re

Commonwealth’s Motion, 790 F.3d at 473 (recognizing

that in Jefferson County, “the judges’ duties did not

require them to resist the tax”) (emphasis added).

To be sure, this Court has recognized that an

officer’s duties often do give rise to official immunity

and other defenses, and that the statute serves the

important purpose of providing a federal forum for

litigating those defenses. See, e.g., Mesa, 489 U.S. at

137; Arizona v. Manypenny, 451 U.S. 232, 241 (1981);

16

Willingham, 395 U.S. at 405. But the Court has never

limited the statute to such defenses. Quite the

opposite: in Willingham, the Court noted that “the test

for removal should be broader, not narrower, than the

test for official immunity.” 395 U.S. at 405. Nor is

providing a forum for such defenses the only purpose of

the statute. Rather, this Court has recognized that

another important purpose is to provide refuge from

state courts that may be hostile to the decisions of the

federal government. See Watson, 551 U.S. at 147-48;

supra at 6-8. That purpose would not be served by

limiting the statute to a subclass of federal defenses.

In sum, the requirement imposed by the court of

appeals here represents a departure from this Court’s

cases.

2. This requirement is also unwarranted as a

matter of statutory construction. On its face, the

statute does not say anything about a connection

between any federal defense and official duties. See 28

U.S.C. § 1442(a)(1). That alone is good reason not to

impose such a requirement.

What the statute does require is a connection—

though it can be an attenuated one—between the

plaintiff’s claims and official duties: the suit must be

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

28 U.S.C. § 1442(a)(1). The phrase “or relating to” was

added by a 2011 statutory amendment. Removal

Clarification Act of 2011, § 2(b)(2), 125 Stat. 545. As

multiple lower courts have recognized, the intent of

this change was to facilitate removal by loosening the

connection required between the plaintiff’s claims and

the official duties. See Moore, 25 F.4th at 35 & n.4;

Baker, 962 F.3d at 943-44; Latiolais, 951 F.3d at 292;

Sawyer, 860 F.3d at 258; In re Commonwealth’s

17

Motion, 790 F.3d at 470-71. Given that the statute

expressly requires a connection between the plaintiff’s

claims and the official duties—and Congress has

chosen to loosen that connection over time—it would be

anomalous to now impose a further requirement,

absent from the text, of a connection between a defense

and those duties.

Mesa reinforces this straightforward reading. The

Mesa Court located the “colorable federal defense”

requirement in the phrase “under color of office,” which

was intended “to preserve the pre-existing requirement

of a federal defense for removal” in the Court’s prior

cases. 489 U.S. at 134-35. The cases on which Mesa

relied made clear that any federal defense sufficed. See

id. at 125-29; Davis, 100 U.S. at 271 (“It ought,

therefore, to be considered as settled that the

constitutional powers of Congress to authorize the

removal of criminal cases for alleged offences against

State laws from State courts to the circuit courts of the

United States, when there arises a Federal question in

them, is as ample as its power to authorize the removal

of a civil case.”); Mayor & Aldermen of City of Nashville

v. Cooper, 73 U.S. (6 Wall.) 247, 252 (1867) (“Nor is it

any objection that questions are involved which are not

all of a Federal character. If one of the latter exist, if

there be a single such ingredient in the mass, it is

sufficient. That element is decisive upon the subject of

jurisdiction.”).

Moreover, in affirming the “colorable federal

defense” requirement, the Mesa Court relied on

principles of constitutional avoidance, concluding that

at least some arguable federal defense was required to

ensure that § 1442 did not exceed Article III

jurisdiction. See 489 U.S. at 136-39. But Article III

allows for federal jurisdiction over any case “arising

18

under” under the Constitution, laws, or treaties of the

United States. And the term “arising under” in Article

III, this Court has repeatedly held, is considerably

broader than the similar term in the general federalquestion jurisdiction statute. A case arises under

federal law, in the constitutional sense, if it involves a

federal defense. E.g., Osborn v. Haley, 549 U.S. 225,

244-45 (2007); Verlinden B.V. v. Cent. Bank of Nigeria,

461 U.S. 480, 494-95 (1983). No particular kind of

federal defense is required; the same constitutional

principle extends to federal defenses that do not

resemble official immunity in any way, such as the

preemption of state-law class actions by the Securities

Litigation Uniform Standards Act of 1998. See, e.g.,

Dudek v. Prudential Sec., Inc., 295 F.3d 875, 879 n.3

(8th Cir. 2002) (SLUSA’s federal preemption defense

and special removal provision “are clearly sufficient to

confer Article III ‘arising under’ jurisdiction”) (citing

Verlinden, 461 U.S. at 494-97). In other words, once

there is a colorable federal defense, of any kind, there

is no room for constitutional doubt about the federal

courts’ jurisdiction. Article III therefore provides no

support for requiring anything more than a colorable

federal defense.

B. The Ninth Circuit’s holding leaves private businesses uncertain about whether

they can invoke federal-officer removal if

they work for the federal government.

By imposing this additional requirement—that the

“colorable federal defense” must “arise from” the

official duties at issue, Pet. App. 16a, 17a—the court of

appeals has created a significant impediment to the

availability of federal-officer removal. Under the court

of appeals’ holding, both federal officers themselves

and private parties that have already passed the

19

“acting under” test must satisfy yet another

requirement of uncertain application: the federal

defense must “arise from”—or alternatively, “stem

from” or “flow from”—the official duties at issue. Pet.

App. 16a, 17a. This unwarranted requirement will

likely prove uncertain in application and unsettle the

ability of private parties to rely on § 1442.

While the court of appeals here applied this novel

requirement in summary fashion, see id. at 17a, it will

likely become the subject of substantial litigation going

forward. It is unclear what it means for a legal defense

to “arise out of” a legal duty. Consider, for example,

Bell v. Thornburg. There, a private citizen serving as a

Chapter 13 standing trustee under the Bankruptcy

Code was sued for allegedly terminating an employee

on the basis of race. 743 F.3d at 85. The Fifth Circuit

found a colorable federal defense because the

employment action was taken “after input from [a]

peer review process, and involving communication with

and involvement of the United States Trustee and a

United States bankruptcy judge.” Id. at 90. But it was

not at all clear that the trustee’s federal duties

required him to undertake that peer review process or,

ultimately, to terminate the plaintiff. See id. at 86, 90.

Applying the court of appeals’ holding to the facts of

Bell would likely prove challenging—and the result

may well have been remand of a case where removal

was appropriate and consistent with the purpose of the

statute.

As a result, the court of appeals’ holding will weaken the protections of federal-officer removal for private

businesses as well as federal officers. Many cases will

be remanded to state court because a federal defense,

even though robust, does not pass the Ninth Circuit’s

“flow from” standard. And more generally, businesses

20

will have significantly less confidence in their ability to

avail themselves of a federal forum. Ultimately, businesses “would have to seriously consider whether they

would serve as . . . agents to the federal government,”

Agent Orange, 304 F. Supp. 2d at 451.

This uncertainty will persist as long as the circuit

split persists. Pet. 11-16. Any claim that can be

brought in one of the nine states of the Ninth Circuit

may not be removable—and plaintiffs have a powerful

incentive to bring their claims in one of those nine

states if they can.

The Court should take this opportunity to clarify

that all § 1442 requires, consistent with Mesa, is a colorable federal defense that provides jurisdiction under

Article III—not a federal defense that “arises out of”

official duties. Resolving the circuit split is necessary

in order for federal officers and those acting under

them to be able to count on the removal protection with

any certainty.

21

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

BRIANA ADAMS-SEATON

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000

JUSTIN D. WARD

GOODWIN PROCTER LLP

100 Northern Avenue

Boston, MA 02210

January 5, 2023