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

Supreme Court briefFeb 6, 2023

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No. 22-523

In The

Supreme Court of the United States

Sunoco LP, et al.,

Petitioners,

City and County of Honolulu, et al.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR RESPONDENTS

CITY AND COUNTY OF HONOLULU, ET AL.

Victor M. Sher

Counsel of Record

Matthew K. Edling

Martin D. Quiñones

Quentin C. Karpilow

Sher Edling LLP

100 Montgomery St.,

Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

marty@sheredling.com

quentin@sheredling.com

Counsel for Respondents

Victoria J. Takayesu

Acting Corporation Counsel

200 South High Street,

Third Floor

Wailuku, HI 96793

(808) 270-7740

Counsel for Respondent

the County of Maui

Dana M.O. Viola

Corporation Counsel

530 South King St.,

Room 110

Honolulu, HI 96813

(808) 768-5129

Counsel for Respondents

City & County of Honolulu,

and Honolulu Board of

Water Supply

(Additional counsel listed on signature page)

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTIONS PRESENTED

Whether respondents can satisfy the “colorable

federal defense” requirement of the federal-officerremoval statute, 28 U.S.C. § 1442, by asserting a

defense that is unrelated to any actions that respondents purportedly took under the direction or

control of a federal officer.

2. Whether the Court create a new exception to the

well-pleaded complaint rule that confers federal

question jurisdiction over respondents’ state-law

complaints based on petitioners’ assertion that respondents’ claims are “governed by” federal common law where the common law on which petitioners purport to rely has been displaced by a federal

statute and petitioners cannot show that respondents’ state-law claims necessarily present a substantial federal question that could be adjudicated

in federal court without upsetting the federal-state

division of judicial responsibility, as required by

Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005).

iii

TABLE OF CONTENTS

Page

INTRODUCTION...............................................

STATEMENT.......................................................

I. Legal Background........................................

II. Facts and Procedural History.....................

REASONS THE PETITION SHOULD

BE DENIED.....................................................

I. The Ninth Circuit’s Rejection of

Federal-Officer Jurisdiction Does Not

Warrant Certiorari Review.........................

A. There Is No Circuit Split.......................

B. The Decision Below Is Correct..............

C. The First Question Presented Is

Neither Important Nor Cleanly

Raised.....................................................

II. Petitioners’ Theory of

Federal-Common-Law Removal Does

Not Warrant Certiorari Review..................

CONCLUSION....................................................

TABLE OF AUTHORITIES

Cases

Am. Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011)..........................................

Page

Arizona v. Manypenny,

451 U.S. 232 (1981)................................... 2, 3, 6, 20

Bd. of Cnty. Commissioners of Boulder Cnty.

v. Suncor Energy (U.S.A.) Inc.,

25 F.4th 1238 (10th Cir. 2022)........ 2, 5, 27, 29, 30

Bell v. Thornburg,

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

Beneficial Nat. Bank v. Anderson,

539 U.S. 1 (2003)..............................................

Bennett v. MIS Corp.,

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

Black v. Cutter Labs.,

351 U.S. 292 (1956)..........................................

Butler v. Coast Elec. Power Ass’n,

926 F.3d 190 (5th Cir. 2019)............................

California v. Rooney,

483 U.S. 307 (1987).................................. 13, 16, 26

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987)..........................................

Caver v. Cent. Alabama Elec. Coop.,

845 F.3d 1135 (11th Cir. 2017)........................

Chevron Corp. v. City of Oakland,

141 S. Ct. 2776 (2021)...................................... 5, 26

City of Cookeville, Tenn. v. Upper Cumberland

Elec. Membership Corp.,

484 F.3d 380 (6th Cir. 2007)............................

TABLE OF AUTHORITIES—Continued

Page

City of Hoboken v. Chevron Corp.,

45 F.4th 699 (3d Cir. 2022)...... 1, 2, 5, 13, 25, 27, 30

City of Milwaukee v. Illinois,

451 U.S. 304 (1981)..........................................

City of New York v. Chevron Corp.,

993 F.3d 81 (2d Cir. 2021)...............................

City of Oakland v. BP PLC,

969 F.3d 895 (9th Cir. 2020)............................

Coregis Ins. Co. v. Am. Health Found., Inc.,

241 F.3d 123 (2d Cir. 2001).............................

County of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022)........... 1, 5, 7, 9, 27, 30

Georgia v. Tenn. Copper Co.,

240 U.S. 650 (1916)..........................................

Goncalves v. Rady Children’s Hosp. San Diego,

865 F.3d 1237 (9th Cir. 2017).......................... 3, 11

Grable & Sons Metal Prods., Inc. v. Darue

Engineering & Mfg.,

545 U.S. 308 (2005)..........................................

i, 28

Gunn v. Minton,

568 U.S. 251 (2013).......................................... 5, 28

Herb v. Pitcairn,

324 U.S. 117 (1945)..........................................

Hertz Corp. v. Friend,

559 U.S. 77 (2010)............................................

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Def. Ass’n

of Philadelphia,

790 F.3d 457 (3d Cir. 2015)................ 12, 13, 17, 19

vii

TABLE OF AUTHORITIES—Continued

Page

Illinois v. City of Milwaukee,

406 U.S. 91 (1972)............................................

Jefferson Cnty., Ala. v. Acker,

527 U.S. 423 (1999)..................................... 7, 22, 23

John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp.,

119 F.3d 1070 (3d Cir. 1997)...........................

Joseph v. United States,

135 S. Ct. 705 (2014)........................................

Lovell Mfg., a Div. of Patterson-Erie Corp.

v. Exp.-Imp. Bank of the U.S.,

843 F.2d 725 (3d Cir. 1988).............................

Magnin v. Teledyne Cont’l Motors,

91 F.3d 1424 (11th Cir. 1996)..........................

Mayor & City Council of Baltimore v. BP P.L.C.,

31 F.4th 178 (4th Cir. 2022)......... 1, 5, 9, 27, 29, 30

McKesson v. Doe,

141 S. Ct. 48 (2020)..........................................

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning,

578 U.S. 374 (2016)..........................................

Mesa v. California,

489 U.S. 121 (1989)................ 3, 5, 7, 18, 20, 21, 23

Missouri v. Illinois,

180 U.S. 208 (1901)..........................................

New Jersey v. City of New York,

283 U.S. 473 (1931)..........................................

People of State of Cal. v. H & H Ship Serv. Co.,

68 F.3d 481 (9th Cir. 1995)..............................

viii

TABLE OF AUTHORITIES—Continued

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022).............

Page

1, 5, 27, 29, 30

Salem & L R Co. v. Bos. & L R Co.,

21 F. Cas. 229 (C.C.D. Mass. 1857).................

St. Charles Surgical Hosp., L.L.C. v.

Louisiana Health Serv. & Indem. Co.,

935 F.3d 352 (5th Cir. 2019)............................

Stirling v. Minasian,

955 F.3d 795 (9th Cir. 2020)............................ 3, 10

Tennessee v. Davis,

100 U.S. 257 (1879)..........................................

Texas Indus., Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981)..........................................

Watson v. Philip Morris Companies, Inc.,

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

Willingham v. Morgan,

395 U.S. 402 (1969)........................... 4-6, 20, 22, 24

Wood v. Matthews,

23 Vt. 735 (C.C.D. Vt. 1852)............................

Yee v. City of Escondido,

503 U.S. 519 (1992)..........................................

Statutes

28 U.S.C. § 1331....................................... 5, 26, 28, 30

28 U.S.C. § 1441................................................... 5, 26

28 U.S.C. § 1442.............. i, 1-4, 6-9, 15, 16, 18, 20-23

INTRODUCTION

Respondents filed these two consolidated cases in

state court under Hawai‘i common law, alleging that

petitioners for many years tortiously misled consumers and the public about the threats of climate change

and their products’ relationship to it, substantially

worsening climatic injuries respondents have suffered

and will continue to suffer. Applying settled legal

principles, a unanimous panel of the Ninth Circuit

(Nelson, J.) held that petitioners improperly removed

the cases to federal court, because the district court

lacked subject-matter jurisdiction under any of the

eight removal theories petitioners asserted, including

the federal officer removal statute, 28 U.S.C. § 1442(a)

(1). Removal under Section 1442 requires petitioners

to (1) show that they acted under federal officers; (2)

raise a colorable federal defense that arises out of

their official duties; and (3) demonstrate a nexus between their government-directed acts and respondents’ claims. See, e.g., Pet App. 9a. After carefully

reviewing the “six ways” petitioners purportedly acted

under federal officers, the panel concluded that none

supported removal because two were foreclosed by recent circuit precedent, two did not satisfy the statute’s

“acting under” requirement, and two failed the “colorable federal defense” element. Id. 11a.

The decision below joins four other circuit courts and

another Ninth Circuit panel that affirmed remand in

closely analogous cases removed on identical grounds,

including Section 1442.1 Petitioners nonetheless conSee Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st Cir.

2022), cert. petition filed, No. 22-524; County of San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022), cert. petition filed, No. 22495; City of Hoboken v. Chevron Corp., 45 F.4th 699 (3d Cir. 2022);

Mayor & City Council of Baltimore v. BP P.L.C., 31 F.4th 178 (4th

tend that the Ninth Circuit created a conflict with the

Third Circuit by ruling that Petitioners had not presented a colorable federal defense with respect to two of

their six federal officer theories, whereas the Third Circuit affirmed remand in a materially similar case because those same theories did not “relat[e] to” the plaintiffs’ state law claims. Hoboken, 45 F.4th at 712–13. As

petitioners see it, by stating that a colorable federal

defense under Section 1442 “must ‘aris[e] out of [defendant’s] official duties,” Pet. App. 16a (quoting Arizona

v. Manypenny, 451 U.S. 232, 241 (1981)), the Ninth Circuit below “functionally barred federal officer removal

based on most constitutional or statutory preemption

defenses,” Pet. 10. If the Third Circuit had reached the

colorable defense element in Hoboken, petitioners insist, it would have applied a different standard.

Petitioners’ asserted conflict is illusory. The decision

below did not explicitly or implicitly hold that a defendant can only present a colorable federal defense if it

alleges it was “duty-bound” to act. Pet. 18. The court

instead applied the statute’s long-accepted construction requiring a defense that “arises out of” the federal

authority under which the defendant purportedly acted, in the ordinary dictionary sense—that is, a defense

that stems from, originates from, or results from that

federal authority.2 Contrary to petitioners’ assertions,

Cir. 2022), cert. petition filed, No. 22-361; Bd. of Cnty. Commissioners of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238

(10th Cir. 2022), cert. petition filed, No. 21-1550.

See ARISE, Black’s Law Dictionary (11th ed. 2019); Cf. Coregis Ins. Co. v. Am. Health Found., Inc., 241 F.3d 123, 128 (2d Cir.

2001) (Sotomayor, J.) (“To ‘arise’ out of means ‘to originate from a

specified source.’ . . . The phrase ‘arising out of ’ is usually interpreted as ‘indicat[ing] a causal connection.’ ”); John Wyeth & Bro.

Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070, 1074 (3d Cir. 1997) (Alito,

J.) (equating term “arising under or out of” with “growing out of”).

the Ninth Circuit has unsurprisingly approved federal-officer removal based on a colorable preemption defense, where that defense was available by virtue of

the defendant’s acting under a federal superior. See,

e.g., Stirling v. Minasian, 955 F.3d 795, 801 (9th Cir.

2020); Goncalves v. Rady Children’s Hosp. San Diego,

865 F.3d 1237, 1249 (9th Cir. 2017); People of State of

Cal. v. H & H Ship Serv. Co., 68 F.3d 481 (9th Cir.

1995) (unpublished). It has rejected federal-officer jurisdiction where, as here, the asserted preemption or

constitutional defenses have nothing to do with the

government-directed conduct on which the defendant

premises removal. See Pet. App. 17a. The Ninth Circuit’s decisions are fully consistent with the precedent

petitioners cite from the Third, Fifth, Sixth, and Eleventh Circuits, all of which involved defenses that arose

out of a defendant’s government-directed conduct.

The Ninth Circuit’s application of the colorable-defense element is faithful to the statute’s text, history,

and purposes. The Court has explained that in 1866

Congress included the phrase “under color of office” in

what later became Section 1442 to codify “the pre-existing requirement of a federal defense,” as articulated in

cases construing predecessor acts. See Mesa v. California, 489 U.S. 121, 134–35 (1989). That earlier case law

recognized federal-officer jurisdiction only where the

asserted defense stemmed from the defendant’s official

actions or duties. Petitioners identify no decision where

this Court has held a colorable defense entirely unrelated to government-directed conduct nonetheless supports removal under Section 1442. The Court has instead repeatedly stated that “removal under § 1442(a)

(1) and its predecessor statutes was meant to ensure a

federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties.”

Manypenny, 451 U.S. at 241 (emphasis added). See also

Mesa, 489 at 133 (section 1442 “cover[s] all cases where

federal officers can raise a colorable defense arising out

of their duty to enforce federal law” (quoting Willingham v. Morgan, 395 U.S. 402, 407 (1969)). The court

below correctly applied the standard and arrived at the

same result reached by every court that has considered

federal officer removal in analogous cases.

Review is also unwarranted for two additional reasons. First, few cases if any will likely turn on the narrow question whether a colorable defense far removed

from government-directed activity can satisfy the

statute. Where a removing defendant can assert no

defense connected to official authority, other elements

necessary for federal officer removal will likely also be

absent. This case illustrates the point—the four other

circuits that have entertained petitioners’ jurisdictional theories in analogous cases all found that petitioners failed to satisfy another of the statute’s three

requirements. Second and for related reasons, this petition is a poor vehicle for determining the categories

of federal defenses that within the scope of the statute, because the question is likely not outcome dispositive, as to removal jurisdiction or any other issue.

As noted, multiple other courts have held that nearly

identical arguments from many of the same petitioners did not support federal-officer removal for reasons

that are all apply here: (1) petitioners’ asserted defenses are not colorable, (2) petitioners did not act under a federal officer, (3) petitioners’ purported government-directed conduct is expressly disclaimed in

respondents’ complaints, or (4) respondents’ claims

are not “for or relating to” any official acts.

Petitioners’ second Question Presented is equally unworthy of this Court’s attention. Petitioners ask for a

new exception to the well-pleaded complaint rule, for

state-law claims that are purportedly “governed by”

federal common law that has been displaced by statute.

Pet. 24–26. Five circuits have considered and rejected

petitioners’ “perplexing” jurisdictional theory, and none

have embraced it. See Baltimore, 31 F.4th at 204.3 That

is for good reason. Adopting petitioners’ theory would

undermine this Court’s efforts to bring “order to [the]

unruly doctrine” that previously defined when a state

law cause of action presents a federal question for purposes of federal subject-matter jurisdiction. See Gunn

v. Minton, 568 U.S. 251, 258 (2013); 28 U.S.C. §§ 1331

& 1441. It would also represent a breathtaking expansion of federal common lawmaking power, with enormous substantive and jurisdictional consequences. The

Court denied a request to consider an identical theory

of federal-common-law removal two years ago, from

many of the same petitioners. See Chevron Corp. v. City

of Oakland, No. 20-1089, 141 S. Ct. 2776 (2021). It

should do so again here. Nothing has changed in that

time, except that four courts of appeal have now joined

the Ninth Circuit in rejecting the same theory.

STATEMENT

I. Legal Background

“[T]he ‘long history’ of the federal officer removal

statute,” Mesa, 489 U.S. at 125, begins with a provision

included in a customs act passed in the aftermath of

the War of 1812 that “allowed federal officials involved

in the enforcement of the customs statute to remove to

the federal courts any suit or prosecution commenced

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

Willingham, 395 U.S. at 405. Similar provisions arose

See Rhode Island, 35 F.4th at 54–55; Hoboken, 45 F.4th at

707–08; Baltimore, 31 F.4th at 199–208; San Mateo, 32 F.4th at

746–48; Boulder, 25 F.4th at 1257–62.

and expanded in other statutes over time, until in 1948

Congress extended a right of removal to all federal officers and persons acting thereunder. Id. at 405–06. Today, the statute states in relevant part that a defendant may remove to federal district court any civil

action “against or directed to . . . any officer (or any

person acting under that officer) of the United States or

of any agency thereof, . . . for or relating to any act under color of such office.” 28 U.S.C. § 1442(a)(1).

“The purpose of all these enactments,” the Court has

said, “is not hard to discern.” Willingham, 395 U.S. at

406. “Federal jurisdiction rests on” the United States’

“very basic interest in the enforcement of federal law

through federal officials.” Id.; Watson v. Philip Morris

Companies, Inc., 551 U.S. 142, 150 (2007) (“[T]he removal statute’s ‘basic’ purpose is to protect the Federal

Government from the interference with its ‘operations.’ ”). Federal officer removal “ensure[s] a federal

forum in any case where a federal official is entitled to

raise a defense arising out of his official duties,” to allow adjudication of state law claims “free from local interests or prejudice,” and “enable[e] the defendant to

have the validity of his immunity defense adjudicated,

in a federal forum.” Manypenny, 451 U.S. at 241. “[T]he

policy favoring removal ‘should not be frustrated by a

narrow, grudging interpretation of § 1442(a)(1),’ ” id. at

242 (citation omitted), but the statute’s “broad language is not limitless,” and “a liberal construction nonetheless can find limits in [the] text’s language, context,

history, and purposes,” Watson, 551 U.S. at 147.

When a private defendant takes advantage of Section 1442, the “statute permits removal only if” the

defendant, “in carrying out the ‘act[s]’ that are the

subject of the [plaintiff ’s] complaint, was ‘acting under’ any ‘agency’ or ‘officer’ of ‘the United States.’ ” Id.

The defendant is also required to “raise a colorable

federal defense.” Jefferson Cnty., Ala. v. Acker, 527

U.S. 423, 431 (1999). Because Section 1442 “is a pure

jurisdictional statute,” it “cannot independently support Art. III ‘arising under’ jurisdiction.” Mesa, 489

U.S. at 136. Therefore “the raising of a federal question” by way of defense “constitutes the federal law

under which the action against the federal officer arises for Art. III purposes.” Ibid. Congress expressed that

constitutional underpinning by requiring that the removed action must be for, or relate to, an “act under

color of” federal authority. See id. at 136–37.

II. Facts and Procedural History

Respondents brought these two cases in Hawai‘i

state court, alleging that petitioners concealed and

misrepresented the climate impacts of their fossil-fuel products, and misleadingly cast doubt on the science, causes, and effects of global warming. Petitioners removed both cases to federal court, asserting

eight statutory bases for jurisdiction ranging from

the Outer Continental Shelf Lands Act to bankruptcy

jurisdiction. As relevant here, petitioners also removed under the federal officer removal statute, relying on six categories of relationships that one or more

petitioner had with the federal government dating to

the Second World War. The district court found none

of those arguments meritorious, and granted respondents’ motions to remand.

On appeal, the Ninth Circuit addressed each of petitioners’ six federal officer removal theories. Two of

those theories—based on mineral rights leased on the

outer Continental Shelf and one petitioner’s operation

of the Elk Hills petroleum reserve in California—were

foreclosed by the court’s recent opinion in County of

San Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir.

2022). See Pet. App. 13a–16a. The court held that two

of petitioners’ other theories—based on production of

oil and gas pursuant to directives under the Defense

Production Act and conduct related to the Strategic

Petroleum Reserve—did not satisfy the statute’s “acting under” requirement. Id. at 12a–13a.

Finally, as relevant here, the court held that petitioners had not presented a colorable federal defense

related to the two theories not disposed of on “arising

under” grounds, which concern production of fossil fuels during World War II and sales of “specialized fuels” to the military. The court held that most of petitioners’ asserted defenses, sounding in the First

Amendment, “due process, [the] Interstate and Foreign Commerce Clauses, [the] foreign affairs doctrine,

and preemption,” did not “arise from official duties”

and therefore could not support jurisdiction under

Section 1442. Pet. App. 17a. The court then held that

the two remaining defenses petitioners press here—

the government contractor defense and another form

of immunity—fell below colorability because they

rested solely on “conclusory statements and general

propositions of law.” Id. Petitioners did not seek panel

rehearing or rehearing en banc, and the Ninth Circuit’s mandate issued July 29, 2022.

REASONS THE PETITION

SHOULD BE DENIED

I. The Ninth Circuit’s Rejection of

Federal-Officer Jurisdiction Does Not

Warrant Certiorari Review.

There is no reason for this Court to review the Ninth

Circuit’s fact-specific analysis of the colorable-defense

element. The results of that analysis are fully consistent with the decisions of other circuits, the precedent

of this Court, and the text, history, and purposes of

Section 1442. Petitioners’ first Question Presented is

exceedingly narrow, moreover, implicating only cases

where a defendant has raised federal defenses that

are entirely unrelated to its purported federal duties.

The question is not even outcome determinative here,

because there remain multiple additional grounds for

the Ninth Circuit to reject petitioners’ theory of federal-officer removal. If history is any guide, petitioners’

chances of overcoming those hurdles are close to

zero—more than a dozen courts have held that materially similar cases are not removable.

A. There Is No Circuit Split.

Courts of appeals in five circuits have now considered and uniformly rejected attempts to remove closely analogous cases from state courts on the basis of

federal-officer jurisdiction, without dissent. Some of

these courts found the “acting-under” element not satisfied, reasoning that petitioners’ arms-length business transactions with the federal government do not

create the “unusually close” relationship that Section

1442 demands. E.g., San Mateo, 32 F.4th at 757–60.

Some found the nexus element not satisfied, because

there was no evidence of federal government involvement in any aspect of petitioners’ climate-deception

campaigns. E.g., Baltimore, at 31 F.4th at 233–34.

And some ruled based on the colorable-defense element, explaining that petitioners must do more than

“simply assert a defense and the word ‘colorable’ in

the same sentence.” Pet. App. 17a. All of these courts,

however, reached the same result: federal-officer jurisdiction is lacking over state-law claims like those at

issue here, seeking to hold private fossil-fuel companies liable for deceiving consumers and the public

about the climate impacts of their products.

Ignoring this judicial unanimity, petitioners insist

that the court below departed from its sister circuits

when it rejected federal-officer jurisdiction for petitioners’ failure to satisfy the colorable-defense element. In their view, the Ninth Circuit’s analysis “functionally bar[s] federal officer removal based on most

constitutional or statutory preemption defenses.” Pet.

10. And that functional bar, petitioners assert, conflicts with decisions from the Third, Fifth, Sixth, and

Eleventh Circuits, which have held that preemption

defenses can satisfy the colorable-defense element in

certain cases. See Pet. 11–16. That purported conflict

is illusory, however, for three main reasons.

1. The Ninth Circuit has never explicitly or implicitly prohibited a defendant from relying on preemption defenses to satisfy the colorable-defense element.

In fact, the circuit court has repeatedly upheld federal-officer removal based on such defenses. The decision below did not overrule this past precedent sub

silentio. The court merely held that the asserted defenses “must arise out of [a] defendant’s official duties,” Pet. App. 16a (cleaned up), in the sense that the

defenses originate, stem, or result from the existence

of the defendant’s relationship to a federal superior.

Accordingly, the Ninth Circuit has found the colorable-defense element satisfied in cases where a defendant asserted a preemption defense that arose out of

the defendant’s government-directed conduct. In Stirling, for example, the court sustained federal-officer jurisdiction in a suit charging a National Guard JAG attorney with the unauthorized practice of law because

the attorney was not barred in California. 955 F.3d at

797. The defendant offered evidence he was practicing

law in a limited capacity permitted by federal regulation, “pursuant to his orders from federal superiors.”

Id. at 801. He did not assert a federal duty to practice

law as his defense in support of removal, however, but

rather argued the “federal regulatory scheme preempts

a claim by a private individual” to enforce an inconsistent state licensing requirement. Id. Because that preemption defense would not have existed but for the defendant’s

JAG

position,

arose

out

government-directed conduct. The same is true of the

preemption defense in Goncalves; the plaintiff there

challenged a subrogation clause in a Federal Employee

Health Benefit Act (“FEHBA”) health insurance plan,

and the defendant insurer alleged it had acted under

the federal government in enforcing the subrogation

clause and that FEHBA preempted the plaintiff ’s statelaw claims. 865 F.3d at 1242, 1249. As in Stirling, the

asserted defense arose out the defendant’s official acts

and duties: if the defendant were not administering a

FEHBA plan on behalf of the government, it could not

have asserted its FEHBA preemption defense.

Here, by contrast, the Ninth Circuit found that

“[m]ost [of petitioners’] defenses” lack any connection

to government-directed conduct. “For instance,” the

court explained, petitioners “argue that they cannot be

held liable consistent with the First Amendment for

alleged roles in denialist campaigns to misinform and

confuse the public.” Pet. App. 17a (cleaned up). But because petitioners do not contend that the federal government was involved in any aspect of those deception

campaigns, their purported First Amendment defense

does not arise out of, stem from, or even relate to any

government-directed conduct. The same is true of petitioners’ “due process, Interstate and Foreign Commerce Clause, foreign affairs doctrine, and preemption

defenses.” Pet. App. 17a. All these defenses would be

equally available to petitioners even if none of them

ever had business ties to the federal government.

As these decisions demonstrate, the Ninth Circuit

has not “functionally barred” defendants from relying on preemption defenses to satisfy the colorabledefense element. Pet. 10. Instead, it has permitted

such reliance when the asserted defense originates

from or flows from the defendant’s acting-under relationship with the federal government. The decision

below is consistent with this rule, and if petitioners

thought otherwise, they should have requested a rehearing en banc before seeking certiorari review,

which they did not. This Court is not in the business

of “clean[ing] up intra-circuit divisions.” Joseph v.

United States, 135 S. Ct. 705, 707 (2014) (Kagan, J.,

respecting denial of certiorari).

2. Because the Ninth Circuit has never imposed a

functional bar on preemption defenses, its precedent

is fully consistent with petitioners’ cited cases from

the Third, Fifth, Sixth, and Eleventh Circuits. Those

decisions found federal-officer jurisdiction in cases

where—as in Stirling and Goncalves—asserted preemption defenses plainly arose out of a defendants’

government-directed conduct. None hold that federalofficer removal may rest on a federal defense with no

relationship whatsoever to the federal government.

Petitioners lean most heavily on the Third Circuit’s

decision in In re Commonwealth’s Motion to Appoint

Couns. Against or Directed to Def. Ass’n of Philadelphia, 790 F.3d 457, 473 (3d Cir. 2015) (“Defender Association”). They neglect to mention, however, that

within the last year the Third Circuit rejected an attempt to remove to materially similar cases to federal

court on federal-officer grounds in an appeal involving

many petitioners here. In Hoboken, the Third Circuit

(Bibas, J.) considered the same six theories of federalofficer removal that petitioners advance in respon-

dents’ cases. Compare Pet. 15, with Hoboken, 45 F.4th

at 712–13. The panel unanimously reached the same

conclusion as the Ninth Circuit: no federal-officer jurisdiction exists. See Hoboken, 45 F.4th at 713. The

two courts used different reasoning to arrive at the

same outcome, but this Court grants certiorari to resolve conflicts in the “results” of appellate decisions,

not to reconcile differences in analysis. Yee v. City of

Escondido, 503 U.S. 519, 537–38 (1992); California v.

Rooney, 483 U.S. 307, 311 (1987) (“This Court reviews

judgments, not statements in opinions.” (cleaned up)).

In any event, there is no true conflict in the courts’

rationale. The Third Circuit disposed of petitioners’

theories of federal-officer jurisdiction based on the

acting-under element and a disclaimer of certain liability, similar to disclaimers present in respondents’

complaints. See Hoboken, 45 F.4th at 712–13.

But even if Hoboken were not on the books, Defender

Association would not present a certworthy conflict because all the federal defenses asserted there arose out

of government-directed conduct. In Defender Association, Pennsylvania and some of its counties sued a

nonprofit Community Defender Organization for allegedly “misus[ing] federal grant funds to appear in state

proceedings.” 790 F.3d at 461. Under the Criminal

Justice Act (“CJA”), the Defender was granted authority and funding to represent certain indigent defendants, subject to the supervision of the Administrative

Office of the United States Courts (the “AO”). Id. at

469. In support of federal-officer removal, the Defender argued it acted under the AO when spending the

contested grant money, and alleged three federal defenses that plainly arose out of the Defender’s duty “to

provide representation under the CJA.” See id. at 469–

70, 472–74. First, the Defender argued its use of federal funds did not violate any CJA provisions or any

terms of “its contract with the AO.” Id. at 473–74. Second, the Defender asserted Pennsylvania’s claims were

preempted because they impermissibly “interfere[d] in

the relationship between the [Defender] and the AO.”

Id. at 474. Finally, the Defender maintained that

Pennsylvania lacked “a private right of action to enforce [the CJA] and the terms of the [Defender’s] grant

with the AO.” Id. On their face, all three defenses

flowed from, and were only available because of, the

Defender’s actions under federal authority. Indeed,

none of those defenses would have existed but for the

relationship between the Defenders and the AO. If Defender Association came before the Ninth Circuit, the

court would have reached the same conclusion as the

Third Circuit, namely that the asserted defenses arose

out of the defendant’s federal duties.

For similar reasons, there is no conflict between the

decision below and the decisions in Butler v. Coast

Electric Power Association, 926 F.3d 190 (5th Cir.

2019), and Caver v. Cent. Alabama Elec. Coop., 845

F.3d 1135 (11th Cir. 2017). In both, the plaintiffs sued

electric power cooperatives, alleging that the cooperatives violated state law by failing to pay out excess

revenues to their members. See Butler, 926 F.3d at

192; Caver, 845 F.3d at 1137–38. Both defendants removed on federal-officer grounds, arguing that such

payouts were prohibited by their loan agreements

with the Rural Utilities Service (the “RUS”)—a federal agency created by the Rural Electrification Act of

1936. See Butler, 926 F.3d at 194; Caver, 845 F.3d at

1139–40. As with Defender Association, the defenses

asserted in Butler and Caver would not have existed

but for the defendants’ “unusually close and detailed

regulatory and contractual relationship with [a federal agency].” Caver, 845 F.3d at 1146. Neither decision holds that defenses entirely unrelated to acts

taken at the direction of a federal officer will always

support removal under Section 1442.

Nor did the Sixth Circuit in City of Cookeville, Tenn.

v. Upper Cumberland Elec. Membership Corp., 484

F.3d 380 (6th Cir. 2007), another case involving an

electric power cooperative. There, a municipal agency

sought to condemn property owned by a cooperative,

and it added RUS as a defendant in the eminent domain proceeding because RUS held mortgages on the

condemned property. The Sixth Circuit concluded

that, as a federal agency, RUS could invoke federalofficer removal without asserting a colorable defense.

See id. at 389. But “even if a colorable federal defense

were required,” the court continued, RUS satisfied

that requirement by arguing that the plaintiff ’s claims

were preempted because “the condemnation frustrated the purposes of the Rural Electrification Act of

1936.” Id. at 391. In other words, the RUS’s preemption defense rested on the same statute that empowered RUS to enter mortgages at the subject property.

As a result, its preemption defense clearly arose out of

the agency’s official acts.

That leaves St. Charles Surgical Hosp., L.L.C. v.

Louisiana Health Serv. & Indem. Co., 935 F.3d 352,

355 (5th Cir. 2019), another FEHBA case in which the

defendant insurance company allegedly violated state

law by “paying benefits directly to patients rather than

to [the plaintiff hospital].” The defendant insurer argued its contract with the federal government prevented it from paying the hospital directly, and it premised

federal-officer removal on a provision of FEHBA that

expressly preempts any state law “relat[ing] to [FEHBA]

health insurance or plans.” Id. at 357 (cleaned up). As

in Goncalves, then, the defendant’s preemption defense

in St. Charles arose from acts taken under color of fed-

eral office. The outcome in St. Charles is fully consistent with Ninth Circuit precedent, as the Fifth Circuit

itself recognized. See id. at 355–56 ( “We join our sister

circuits in allowing Blue Cross to remove,” including

the Ninth Circuit’s decision in Goncalves).

3. Petitioners’ purported split boils down to minor

phrasing differences in circuit’s articulations of the

colorable-defense element, but this Court does not

take certiorari to line edit the lower court opinion. See

Rooney, 483 U.S. at 311 (“The fact that the Court of

Appeal reached its decision through analysis different

than this Court might have used does not make it appropriate for this Court to rewrite the California

court’s decision . . . .”).

In any event, the Ninth Circuit’s articulation of the

colorable-defense element is entirely consistent with

the wording used by the Third, Fifth, Sixth, and Eleventh Circuits. All those circuit courts have recognized

that the purpose of the “colorability requirement” is

“to ensure a federal forum in any case where a federal

official is entitled to raise a defense arising out of his

official duties.” Bennett v. MIS Corp., 607 F.3d 1076,

1090 (6th Cir. 2010) (cleaned up) (emphasis added);

Lovell Mfg., a Div. of Patterson-Erie Corp. v. Exp.-Imp.

Bank of the U.S., 843 F.2d 725, 734 n.13 (3d Cir. 1988)

(“[T]he purpose of § 1442 removal is to protect federal

officials from unfriendly state forums, to allow the official to raise defenses (such as immunity) arising out

of his official duties, and to insure an impartial setting

‘free from local interests or prejudice.’ ” (emphasis

added)); Bell v. Thornburg, 743 F.3d 84, 90 (5th Cir.

2014) (A “primary purpos[e] of the removal statute

was to have colorable defenses arising out of federal

officers’ duty to enforce federal law litigated in the federal courts.” (cleaned up) (emphasis added)); Magnin

v. Teledyne Cont’l Motors, 91 F.3d 1424, 1427 (11th

Cir. 1996) (“the defendant must advance a colorable

defense arising out of his duty to enforce federal law”

(cleaned up) (emphasis added)). None of them have

said—much less held—that federal-officer jurisdiction

may rest on a colorable defense that has no connection

whatsoever to a defendant’s official duties.

In arguing otherwise, petitioners misconstrue the

Third Circuit’s analysis in Defender Association.

There, Pennsylvania sought to cabin federal-officer

removal to cases where the federal duty is the federal

defense—i.e., defenses that claim immunity on the

grounds that the government made the defendant do

the harmful conduct. See, e.g., First Step Brief for Appellant, Defender Association, Case No. 13-3817, 2014

WL 785410, at 28–29 (3d Cir. Feb. 18, 2014) (“The removing party must clearly plead that his defense was

that in doing the acts charged he was doing no more

than his duty under federal law.” (cleaned up)). The

Third Circuit rejected that proposed limitation, explaining that a defendant’s federal duty need not “coincide with” or “form[]” the federal defense. 790 F.3d

at 473. That rejection does not conflict with anything

the Ninth Circuit has said. After all, “the government

made me do it” defenses are not the only defenses that

can arise out of the discharge of federal duties, as

Goncalves and Stirling demonstrate. And contrary to

petitioners’ suggestions, Defender Association did not

go so far as to say that any colorable federal defense

can support federal-officer removal. That decision and

the decision below coexist easily in their results, their

reasoning, and their choice of words.

B. The Decision Below Is Correct.

The circuit court’s decision below is consistent with

the language of the statute and this Court’s precedent

interpreting it. The Court has never held that Section 1442 allows private defendants to assert a federal

defense totally unrelated to the federal authority under which the defendant purportedly acted. The Court

has held, to the contrary, that when Congress introduced the phrase “under color of” to the statute more

than 150 years ago, it incorporated established jurisprudence permitting removal where the defendant

raised a federal defense that flowed directly or indirectly from an asserted federal duty.

1. As the Court explained in Mesa, the colorable-defense element derives from “[t]he critical phrase ‘under color of office,’ ” which first appeared in the federalofficer-removal statute in 1866 and has remained

since. 489 U.S. at 134. Congress included that phrase

to codify “the pre-existing requirement of a federal defense,” articulated in cases construing earlier temporary statutes permitting removal by certain classes of

federal officers. Id. That prior case law recognized federal-officer jurisdiction only in cases where a defendant could assert a federal defense that arose out of

the government-directed conduct at issue in the suit.

In Salem & L R Co v. Bos. & L R Co, for example, Justice Curtis riding circuit wrote that an 1833 manifestation of the federal-officer-removal statute “granted the

right of removal in a case where the act complained of

was done under or by color of the revenue laws of the

United States, in other words, wherein there is a question to be tried whether a justification or excuse can be

made out under those laws.” 21 F. Cas. 229, 229 (C.C.D.

Mass. 1857) (emphasis added); see also, e.g., Wood v.

Matthews, 23 Vt. 735 (C.C.D. Vt. 1852) (trespass action removable where defendant’s asserted defense

was that the trespass occurred “in the exercise of his

functions and performance of his duty as an officer of

the customs under the revenue laws”).

The Court carried that interpretation forward after

the 1866 codification. In the seminal Tennessee v. Davis

case, the Court sustained federal-officer jurisdiction because the asserted defense would not have arisen but

for the defendant’s duties as a federal tax collector.

There, the defendant was indicted for murder in state

court and removed, asserting that the killing “was performed in his own necessary self-defence while engaged

in the discharge of his duties as deputy collector” of federal taxes. 100 U.S. 257, 258 (1879). Importantly, the

Court in Davis distinguished actions under color of federal office from the narrower set of actions affirmatively authorized or mandated by an officer’s duties. The

Court stated there was “no room for reasonable doubt”

removal was proper, because the defendant asserted he

killed his attacker “not merely under color of his office

as a revenue collector, . . . but that it was done under

and by right of his office,” while “attempting to discharge his official duty.” 100 U.S. at 261 (emphasis

added). The Davis defendant asserted that his federal

duty, to borrow the Third Circuit’s words, “coincide[d]

with” or “form[ed]” his asserted defense—i.e., the killing was by right of his office. See 790 F.3d at 473. It

would have been sufficient—and is sufficient today—to

make the lesser assertion of a defense that “ar[o]se out

of,” i.e. under color of his office. See Pet. 16a.

In Gay v. Ruff, by contrast, 292 U.S. 25, 27 (1934),

the Court observed that federal-officer jurisdiction

will not lie in cases where the asserted defense bears

no relationship to a federal duty. In that case, survivors of a child killed by the allegedly negligent operation of a train sued a receiver appointed over the railroad by the district court. The receiver removed, and

this Court held remand was necessary. While the receiver was “an officer of the court operating the railroad pursuant to the order appointing him” and “[t]he

operation of trains through his employees [was] a duty

imposed upon the receiver,” removal was improper because, tellingly, there was no “reason to assume that

he will in this case rest his defense on his duty to cause

the train to be operated.” Id. at 39. The Court in Mesa

discussed Gay approvingly, as “point[ing] more definitively to our continuing understanding that federalofficer removal must be predicated on a federal defense.” 489 U.S. at 130.

More recently, the Court has repeatedly reinforced

this interpretation of Section 1442 as requiring a federal defense that arises out of official conduct. “In Willingham, [the Court] recognized that Congress’ enactment of federal officer removal statutes since 1815

served ‘to provide a federal forum for cases where federal officials must raise defenses arising from their official duties.’ ” Mesa, 489 U.S. at 137 (quoting Willingham, 395 U.S. at 405) (emphasis added). In Manypenny,

the Court explained that “[h]istorically, removal under

§ 1442(a)(1) and its predecessor statutes was meant to

ensure a federal forum in any case where a federal official is entitled to raise a defense arising out of his official duties.” 451 U.S. at 241 (emphasis added). And in

Mesa, the Court “held that the removal statute ‘is

broad enough to cover all cases where federal officers

can raise a colorable defense arising out of their duty to

enforce federal law.’ ” 489 U.S. at 133 (quoting Willingham, 395 U.S. at 406–07) (emphasis).

The Ninth Circuit followed these settled articulations of the colorable-defense requirement. And consistent with the text, history, and longstanding interpretation of Section 1442, it properly concluded that

several of petitioners’ defenses did not support federal-officer removal because they did not arise out of

their asserted federal duties.

2. Petitioners offer several objections to the reasoning above, all of which fail. First, they claim “the statutory text says nothing about a colorable federal defense,” so any defense that arises under federal law

within the meaning of Article III will suffice. Pet. 20.

But as explained above, the Court in Mesa rejected

that very same argument, explaining the requirement

flows from the statutory text: “under color of office.”

489 U.S. at 133–34. The United States argued there

that “§ 1442(a)(1) permits removal without the assertion of a federal defense,” “based on the plain language

of the removal statute and on the substantial federal

interests” in allowing federal officers to litigate claims

arising from their official duties in federal court. Id.

The United States reasoned that because Section 1442(a)(3) permits removal of cases against officers of federal courts for or relating to “any act under

color of office or in the performance of his duties,” the

two halves of that disjunction must have different

meanings, and one must permit removal absent a federal defense. Id. at 134–35. The Court disagreed, holding that “ ‘in the performance of his duties’ meant no

more than ‘under color of office,’ and that Congress

meant by both expressions to preserve the pre-existing requirement of a federal defense for removal.” Id.

at 135. The colorable-defense requirement is not extra-textual; it was included in the statute because

“Congress would not have ‘expand[ed] the jurisdiction

of the federal courts beyond the bounds established by

the Constitution.’ ” Id. at 136 (citation omitted).

Second, petitioners contend that although “federal

officer removal is appropriate only when the dispute

concerns a defendant’s official duties,” the statute “already covers” that limitation by permitting removal

of cases “for or relating to any act under color of such

office,” so a federal defense arising from those duties

is “unnecessary.” Pet. 19–20; 28 U.S.C. § 1442(a)(1)

(emphasis added). That argument conflates two

phrases that perform different tasks. Acker explains

that in addition to presenting a colorable defense, the

removing defendant must “establish that the suit is

‘for a[n] act under color of office,’ ” meaning “the officer must show a nexus, a ‘causal connection’ between

the charged conduct and asserted official authority.’ ”

527 U.S. at 431 (emphasis in original). As currently

drafted, the statute’s words “for or relating to” thus

describe the necessary connection between the defendant’s allegedly wrongful conduct—i.e. the basis for

liability—and federal authority. The words that follow, “any act under color of such office,” describe the

necessary connection between the asserted defense

and federal authority, as the Court explained in Mesa.

It is consistent with the language of the statute and

with the case law it codified that both the plaintiff ’s

claims and the defendant’s asserted defense must

have some association with federal authority.

Petitioners also misinterpret this Court’s statement

from Willingham that Section 1442 is “at the very

least . . . broad enough to cover all cases where federal

officers can raise a colorable defense arising out of

their duty to enforce federal law.” 395 U.S. at 406–07.

The Court did not hold that a defense arising out of a

federal duty is “the floor” in some hierarchy of available defenses, see Pet. 19, but rather that the statute

permits removal where such a defense is “at the very

least . . . colorable,” 395 U.S. at 406–07 (emphasis

added). That is clear two sentences later, when the

Court critiques “[t]he position of the court below,”

which “would have the anomalous result of allowing

removal only when the officers had a clearly sustainable defense.” Id. at 407 (emphasis added). The Court

held that Congress could not have intended the plead-

ing standard for a removing federal officer’s defense to

be more demanding than proving the defense itself,

because “one of the most important reasons for removal is to have the validity of the defense of official immunity tried in a federal court.” Id. at 407; see also

Mesa, 489 U.S. at 133 (describing Willingham as “delimiting the pleading requirements for establishing a

colorable defense of that nature”).

Finally, Acker did not—as petitioners suggest—allow federal-officer removal based on “a defense not

related to . . . [official] duties.” Pet. 13. In that case,

an Alabama county sought to collect occupational

taxes from two federal judges. Acker, 527 U.S. at 427.

Invoking Section 1442, the judges removed the collection action to federal court, arguing that the county’s “tax f[ell] on the performance of federal judicial

duties in [the county] and risk[ed] interfering with

the operation of the federal judiciary in violation of

the intergovernmental tax immunity doctrine.” Id. at

431 (cleaned up). On its face, then, the asserted immunity defense was available only by virtue of the

judges’ “federal judicial duties.” Id. And so “even

though the judges were not duty-bound to oppose the

tax,” Pet. 18, their defense nonetheless arose out of

their federal office.

C. The First Question Presented Is Neither

Important Nor Cleanly Raised.

Denying review is also appropriate because petitioners’ first Question Presented is not recurring, not

important, and not well presented here.

1. Petitioners do not argue that the first Question

Presented is frequently recurring or broadly applicable. In fact, they argue the opposite, urging the Court

“to clarify a uniform removal right for energy compa-

nies sued on international emissions-related grounds.”

Pet. 23. Petitioners concede, moreover, that “the most

common defenses” raised in federal-officer removals

bear some causal or logical relationship to an asserted federal duty. Pet. 13. Indeed, besides a handful of

other climate-deception cases, petitioners identify no

case where a defendant premised federal-officer removal on a defense that was entirely unrelated to

government-directed conduct. And even the other climate-deception cases will not be affected by the first

Question Presented because the courts in those cases

have rejected federal-officer jurisdiction for failing to

satisfy the acting-under or nexus requirements, not

for failing to satisfy the colorable-defense requirement. In effect, then, petitioners present this Court

with a question that is custom-made for respondents’

cases—and those cases only.

2. That question does not become “important” or

otherwise certworthy simply because petitioners are

in the business of selling oil and gas. Pet. 22–23. Federal-officer jurisdiction “rests on a ‘federal interest in

the matter,’ ” Willingham, 395 U.S. at 406, and there

is de minimis federal interest in a private defendant’s

preemption or constitutional defense unrelated to

any government-directed conduct. In any event, denying certiorari will not—as petitioners vaguely

speculate—“undermin[e]” U.S. energy security. Pet.

23. The question raised in this Petition is whether

respondents’ cases should proceed in state court or

federal court. And as this Court has reaffirmed time

and again, state courts are perfectly capable of applying federal law and adjudicating federal defenses.

See, e.g., McKesson v. Doe, 141 S. Ct. 48, 51 (2020)

(“Our system of ‘cooperative judicial federalism’ presumes federal and state courts alike are competent

to apply federal and state law.”).

3. Even if the first Question Presented were certworthy, this Petition would be a poor vehicle to consider it because the Ninth Circuit could and likely

would avoid the colorable-defense element entirely on

remand, and affirm remand on different grounds—

just as the Third Circuit did in the Hoboken case.

Petitioners argue that this is “an excellent vehicle”

because “the resolution of the [colorable federal defense] issue could prove case-dispositive.” Pet. 24 (emphasis added). It is not necessarily case dispositive because, as petitioners acknowledge, the court of appeals

“did not consider” whether petitioners were “acting

under” a federal officer in their fuel sales to the military and war-time oil production, Pet. 15, or whether

respondents’ claims are “for or relating to” those activities. The district court below held that respondents’

claims “target [petitioners’] alleged failure to warn

and/or disseminate accurate information about the use

of fossil fuels,” and “have nothing to do with the supply

of specialized fuels to . . . the federal government during World War II, . . . or the supply of specialized jet

fuels for the Department of Defense.” Pet. App. 41a &

n.13. See also Hoboken 45 F.4th at 713 (plaintiffs’

claims did not relate to defendants’ World War II activities or military fuel sales). Worse still, the district

court here found that none of petitioners’ asserted defenses were colorable, because their removal notice

“never t[ook] the time to set forth the elements of any

of the cited defenses, let alone attempt to explain why

the defenses [were] colorable.” Pet. App. 42a. The

Ninth Circuit affirmed with respect to petitioners’

“government contractor and immunity defenses” on

that basis. Pet. App. 17a–18a. It is highly doubtful that

the result below would change on remand, and it is not

even guaranteed that the Ninth Circuit would apply

any new or clarified standard articulated by the Court.

4. Eliding all these complications, petitioners resort to the truism that jurisdictional rules should be

clear. It is, of course, true as a general maxim that

“administrative simplicity is a major virtue in a jurisdictional statute,” Hertz Corp. v. Friend, 559 U.S. 77,

94 (2010), and boundaries between state and federal

jurisdiction should be clear and predictable. Petitioners do not get beyond aphorisms in urging review,

however, because there is no “conflicting and uncertain jurisdictional rul[e]” troubling the lower courts.

Pet. 22. As discussed above, moreover, the Ninth Circuit and Third Circuit have at most described the

colorable-defense requirement using different words,

without reaching conflicting results. “This Court,

however, reviews judgments, not statements in opinions.” Black v. Cutter Labs., 351 U.S. 292, 297 (1956);

Rooney, 483 U.S. at 311 (same). And in turn, the

Court’s “power is to correct wrong judgments, not to

revise opinions.” Herb v. Pitcairn, 324 U.S. 117, 126

(1945). To the extent, then, that petitioners have

identified any minor difference in language, those differences do not present an important issue requiring

the Court’s attention.

II. Petitioners’ Theory of

Federal-Common-Law Removal Does Not

Warrant Certiorari Review.

In their second Question Presented, petitioners contend that a congressionally displaced body of federal

common law converts respondents’ state-law claims

into federal ones for purposes of federal-question jurisdiction. 28 U.S.C. §§ 1331, 1441(a). This Court has

already declined to review that novel theory of federal-common-law removal. See Chevron, 141 S. Ct. 2776.

It should do so again because petitioners’ theory has

been uniformly rejected by the circuit courts, finds no

support in this Court’s precedent, and does not raise

any important or recurring questions of law that warrant certiorari review.

1. Under the century-old well-pleaded complaint

rule, federal-question jurisdiction generally will not

attach to claims pleaded exclusively under state law,

even if all parties agree that a federal defense will be

at issue. See Caterpillar Inc. v. Williams, 482 U.S.

386, 392 (1987). This Court has only ever recognized

two narrow exceptions to the rule. The first is the Grable doctrine, which applies when a state-law claim

necessarily raises a federal issue that is actually disputed, substantial, and capable of resolution in federal court without disrupting the federal-state balance

approved by Congress. Gunn, 568 at 258. The second

is the complete-preemption doctrine, which applies

only to state-law claims that fall within the scope of a

federal statutory cause of action that “Congress intended . . . to be exclusive.” Beneficial Nat. Bank v.

Anderson, 539 U.S. 1, 9 & n.5 (2003).

2. Petitioners do not argue that respondents’ statelaw claims fall within either of these two exceptions to

the well-pleaded complaint rule. Instead, they insist

that these claims are removable to federal court because they are purportedly “governed” by a body of

federal common law concerning interstate pollution.

Pet. 26. All five circuits to consider that theory have

rejected it in analogous climate-deception cases—and

for good reasons. See Rhode Island, 35 F.4th at 54–55;

Hoboken, 45 F.4th at 707–08; Baltimore, 31 F.4th at

199–208; San Mateo, 32 F.4th at 746–48; Boulder, 25

F.4th at 1257–62.

Creating that third exception would undo the progress this Court achieved in clarifying the removability

of state-law claims through the Grable line of cases.

Before Grable, the test for arising-under jurisdiction

was “highly unruly,” Merrill Lynch, Pierce, Fenner &

Smith Inc. v. Manning, 578 U.S. 374, 385 (2016) (quotation omitted), and the “canvas” of opinions on this

subject “look[ed] like one that Jackson Pollock got to

first,” Gunn, 568 U.S. at 258. In Grable, this Court endeavored to “bring some order” to the doctrine. Ibid.

The petitioners in Grable (like petitioners here) asked

the Court to create different jurisdictional tests for different sources of federal law (e.g., Constitution, statute, common law), and the Court refused, seeing “no

reason in [the] text [of Section 1331] or otherwise to

draw such a rough line.” Grable, 545 U.S. at 320 n.7.

Instead, the Court developed a test that applies comfortably to any category of federal law, advancing the

stated goal of providing “jurisdictional tests [that] are

built for more than a single dispute.” Manning, 578

U.S. at 393. Because Grable already “provides ready

answers to jurisdictional questions” and already “gives

guidance whenever borderline cases crop up,” id. at

392, the lower courts have no need for petitioners’ oneoff test that applies only to judge-made federal law

that does not appear on the face of the complaint.

Even if this Court were inclined to create a third

exception to the well-pleaded complaint rule, petitioners’ theory of federal-common-law removal would fail

for two additional reasons. First, the Clean Air Act

displaced the federal common law of interstate pollution, making it—and its preemptive effects on state

law—disappear entirely. Am. Elec. Power Co. v. Connecticut, 564 U.S. 410, 429 (2011) (“AEP”) (observing

that “the availability vel non of a state lawsuit” for

climate-related harms depended “on the preemptive

effect of the federal Act”); see also id. at 423 (“When

Congress addresses a question previously governed by

a decision rested on federal common law, . . . the need

for such an unusual exercise of law-making by federal

courts disappears.” (cleaned up)). It would not only

“def[y] logic” to allow petitioners to remove respondents’ state-law claims based on a body of federal common law that no longer exists. Baltimore, 31 F.4th at

206. It would also contravene this Court’s strong “commitment to the separation of powers”—a commitment

that is “too fundamental” to permit “rel[iance] on federal common law” after Congress has spoken. City of

Milwaukee v. Illinois, 451 U.S. 304, 315 (1981).

Second, even if the federal common law of interstate

pollution still existed, it would not encompass respondents’ climate-deception claims for failure to warn

and tortious promotion. The Court has applied that

body of judge-made federal law only in cases where a

State brought a nuisance action to abate, restrict, or

otherwise regulate the amount of pollution discharged

from a specific out-of-state source.4 But here, as in

other climate-deception lawsuits, respondents’ statelaw claims do not seek to “regulate greenhouse-gas

emissions.” Rhode Island, 35 F.4th at 55 n.8. Nor

could they. Because these claims seek relief only for

harms “caused” by petitioners’ “deception,” Pet. App.

8a, petitioners can avoid ongoing liability merely by

warning of the risks of their products and stopping

their disinformation campaigns. They do not need to

limit or stop their production or sale of fossil fuels,

and this Court’s cases on the federal common law of

interstate pollution simply do “not address the type of

acts Rhode Island seeks judicial redress for.” Rhode

Island, 35 F.4th at 55; Boulder, 25 F.4th at 1261 n.5

See, e.g., Missouri v. Illinois, 180 U.S. 208 (1901); Georgia v.

Tenn. Copper Co., 240 U.S. 650 (1916); New Jersey v. City of New

York, 283 U.S. 473 (1931); Illinois v. City of Milwaukee, 406 U.S.

91 (1972).

(“It is also unsettled whether the federal common law

of interstate pollution covers suits brought against

product sellers rather than emitters—suits in which

out-of-state third-party emitters are only steps in the

causal chain.” (cleaned up)); City of Oakland v. BP

PLC, 969 F.3d 895, 906 (9th Cir. 2020) (expressing

doubt as to whether federal common law applied to

climate-deception claims).

None of petitioners’ cases support their theory of

federal-common-law removal. Petitioners rely heavily

on City of New York v. Chevron Corp., 993 F.3d 81 (2d

Cir. 2021), but that decision “was in a completely different procedural posture.” Baltimore, 31 F.4th at 203.

As the Second Circuit itself explained, City of New

York addressed an ordinary-preemption defense

raised on a Rule 12(b)(6) motion. 993 F.3d at 94. Because the plaintiff “filed suit in federal court in the

first instance,” the court did not address any questions

of subject-matter jurisdiction and was not bound by

the well-pleaded complaint rule—i.e., “the heightened

standard unique to the removability inquiry.” Ibid.

The panel was “free to consider the [defendants’] preemption defense on its own terms.” Ibid. For that reason, the Second Circuit concluded that its ordinarypreemption finding did not conflict with “the fleet of

[other] cases” holding that “anticipated defense[s],”

including defenses based on federal common law,

could not “singlehandedly create federal-question jurisdiction under 28 U.S.C. § 1331 and the well-pleaded

complaint rule.” Ibid; see also Rhode Island, 35 F.4th

at 54–55; Hoboken, 45 F.4th at 707–08; Baltimore,

31 F.4th at 199–208; San Mateo, 32 F.4th at 746–48;

Boulder, 25 F.4th at 1257–62.

No case petitioners cite from this Court recognizes a

third exception to the well-pleaded complaint rule for

state-law claims purportedly governed by congressionally displaced federal common law. In fact, most do

not even address subject-matter jurisdiction, and the

remainder concern jurisdictional disputes that have

nothing to do with the issues presented here. See Pet.

25–26. None address the removability of claims pleaded exclusively under state law.

3. Denying certiorari is also appropriate because petitioners’ theory of federal-common-law removal does

not raise any questions of recurring importance. The

cases that might be affected by this theory are necessarily few in number because federal common law applies in only a “few,” “restricted” “areas.” Texas Indus.,

Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640

(1981). Indeed, the only potentially affected cases that

petitioners identify are other lawsuits targeting the

fossil-fuel industry’s climate deception, a vanishingly

small fraction of the thousands of cases remanded each

year to state court. There is no need for the Court to

address petitioners’ exceedingly narrow and atypical

question of subject-matter jurisdiction.

4. Petitioners’ second Question Presented is nearly

identical to the questions presented in the certiorari

petition filed in the Boulder case. Accordingly, if the

Court grants review in Boulder, it should do the same

here and consolidate the petitions for argument to ensure all parties have adequate opportunity to present

their position to the Court. Conversely, if the Court

denies certiorari review of the Boulder petition, it

should also decline to review petitioners’ second Question Presented because it raises “[t]he same issue,” as

petitioners themselves acknowledge. Pet. 4.

CONCLUSION

For the reasons stated, the petition for writ of certiorari should be denied.

Respectfully Submitted,

dana M.o. VIoLa

Corporation Counsel

roberT M. Kohn

NIcoLeTTe wInTer

Jeff A. Lau

Deputies Corporation Counsel

530 South King St., Room 110

Honolulu, HI 96813

(808) 768-5129

Counsel for Respondents City

& County of Honolulu, and

Honolulu Board of Water Supply

VIcTor M. Sher,

Counsel of Record

MaTThew K. EdLIng

MarTIn d. QuIñoneS

QuenTIn C. KarPILow

Sher EdLIng LLP

100 Montgomery St.,

Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

Counsel for Respondents

VIcTorIa J. TakayeSu

Acting Corporation Counsel

KrISTIn K. TarnSTrom

MarIana Lowy-gerSTmar

Deputies Corporation Counsel

200 South High Street,

Third Floor

Wailuku, HI 96793

(808) 270-7740

Counsel for Respondent

the County of Maui

February 6, 2023

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.