Amicus Curiae Brief — Chevron USA, Inc., et al., Petitioners v. Plaquemines Parish, Louisiana, et al.

No. 22-715

In the

Supreme Court of the United States

CHEVRON USA, INC., et al.,

Petitioners,

v.

PLAQUEMINES PARISH, LOUISIANA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court Of A ppeals for the Fifth Circuit

AMICI CURIAE BRIEF OF GENERAL

(RETIRED) RICHARD B. MYERS and

ADMIRAL (RETIRED) MICHAEL G.

MULLEN IN SUPPORT OF PETITIONERS

Daniel B. Rogers

Shook, Hardy & Bacon LLP

201 South Biscayne Boulevard,

Suite 3200

Miami, FL 33131

Tristan L. Duncan

Counsel of Record

Shook, Hardy & Bacon LLP

2555 Grand Boulevard

Kansas City, MO 64108

(816) 474-6550

tlduncan@shb.com

Attorneys for Amici Curiae

318974

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

INTEREST OF AMICI CURIAE . . . . . . . . . . . . . . . . 1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

I.

During WWII, the Federal Government

controlled oil and gas production in the manner

it believed would best protect national security

and win the war by directing Petitioners

to produce more fuel using less steel . . . . . . . . . 12

II. The oil and gas produced from Louisiana’s

coastal zone under the direction and

super v ision of federa l of f icers,

including specialized avgas for fighter

planes, was essential to the Nation’s

military and its wartime efforts . . . . . . . . . . . . . 16

III. Depriving Petitioners of the federal forum

the Federal Officer Removal Statute was

designed to provide presents national security

risks by inviting parochial second-guessing

of federal officers and deterring private

parties from acting under federal officers . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ii

TABLE OF CITED AUTHORITIES

Page

Cases

Agyin v. Razmzam,

986 F.3d 168 (2d Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 11

Baker v. Atl. Richfield Co.,

962 F.3d 937 (7th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 11

Exxon Mobil Corp. v. United States,

2020 WL 5573048 (S.D. Tex. Sept. 16, 2020) . . . . . . . 6

Jefferson Cnty. v. Acker,

527 U.S. 423 (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Shell Oil Co. v. United States,

751 F.3d 1282 (Fed. Cir. 2014) . . . . . . . . . . . . 13, 14, 15

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) . . . . . . . . . . . . . . 4, 8, 11, 15, 19, 20

Willingham v. Morgan,

395 U.S. 402 (1969) . . . . . . . . . . . . . . . . . . . . . . 4, 19, 20

Statutes

28 U.S.C. § 1442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Second War Powers Act . . . . . . . . . . . . . . . . . . . . . . . . . . 13

iii

Cited Authorities

Page

Other Authorities

9 Cong. Deb. 461 (1833) . . . . . . . . . . . . . . . . . . . . . . . . 4, 19

Department of Energy, “Energy for the Warfighter:

The Department of Defense Operational Energy

Strategy,” 14 June 2011, https://www.energy.

gov/articles/energy-war-fighter-departmentdefense-operational-energy-strategy . . . . . . . . . . . . . 7

Energy Security Forum, Washington, D.C.,

13 October 2010, https://www.dvidshub.net/

news/58040/mullen-military-has-strategicimperative-save-resources . . . . . . . . . . . . . . . . . . . . . . 5

National Petroleum Council, A National Oil Policy

for the United States (1949) . . . . . . . . . . . . . . . . . . . . 12

Navy Supply Corps Newsletter, NAVSUP Fuels:

What the Fleet Runs On, Spring 2020, Available

at: https://ufdcimages.uflib.ufl.edu/A A /00/

04/80/19/00052/Spring-2020.pdf . . . . . . . . . . . . . . . . 10

Statement of George A. Wilson, Director of

S upply a nd T r a n sp or t at ion D i v i s ion ,

Wa r t i m e Pe t r o l e u m S u p p l y a n d

Transportation, Petroleum Administration

for War, Special Committee Investigating

Petroleum Resources, S. Res. 36 (Nov. 28, 1945) . . 14

iv

Cited Authorities

Page

Statement of Ralph K. Davies, Deputy Petroleum

Administrator of War, Special Committee

Investigating Petroleum Resources, S. Res. 36

(Nov. 28, 1945) 2-ER-0271 . . . . . . . . . . . . . . . . . . . . . 12

Statement of Senator O’Mahoney, Chairman, Special

Committee Investigating Petroleum Resources,

S. Res. 36 (Nov. 28, 1945) . . . . . . . . . . . . . . . . . . . . . . 15

1

INTEREST OF AMICI CURIAE1

United States Air Force General (Retired) Richard B.

Myers was appointed Vice Chairman of the Joint Chiefs

of Staff by President Clinton in 2000 and appointed the

15th Chairman of the Joint Chiefs of Staff by President

George W. Bush in 2001. In that capacity, he served as

the principal military advisor to the President, Secretary

of Defense, and the National Security Council. He served

in that role until 2005.

General Myers joined the Air Force in 1965 through

the ROTC program at Kansas State University. He

served in the Vietnam War, where he flew over 600 combat

hours in the F4 fighter jet, which used a specialized jet

fuel produced by the private sector that allowed General

Myers to accomplish his missions safely and effectively.

He has held several commands, served in significant staff

positions in the Air Force, and received numerous awards

and decorations for his service, including the Legion of

Merit, the French Legion of Honor, and the Presidential

Medal of Freedom. He received his fourth star in 1997

and retired from active duty in 2005, after more than

40 years of active service. General Myers most-recently

served as the President of Kansas State University from

2016 to 2021.

1. Pursuant to Rule 37.6, counsel for amici curiae certifies that

this brief was not authored in whole or in part by counsel for any party

and that no person or entity, other than amici curiae or their counsel,

made a monetary contribution to the preparation or submission of

the brief. Amici curiae and their counsel have accepted no payment

for submission of this brief and, instead, have been involved in the

preparation and filing of this brief on a pro bono basis. The parties

received timely notice of the intent of amici curiae to file this brief.

2

United States Navy Admiral (Retired) Michael G.

Mullen served as the 17th Chairman of the Joint Chiefs

of Staff from 2007-2011 under both President George W.

Bush and President Obama. A graduate of the United

States Naval Academy in 1968, Admiral Mullen served

in the Vietnam War and commanded his first ship, the

gasoline tanker USS Noxubee, from 1973-1975. The

Noxubee carried a split cargo of aviation gasoline, motor

gasoline, diesel fuel, jet fuel, and Navy special fuel. In

its final deployment to the Sixth Fleet under Admiral

Mullen’s command, the Noxubee delivered over five million

gallons of fuel vital to the Fleet’s and forward bases’

mission, operations, and readiness.

Admiral Mullen earned a Master’s Degree in

Operations Research in 1985 and, later that year,

took command of the guided-missile destroyer USS

Goldsborough. Admiral Mullen participated in Harvard

University’s Advanced Executive Management graduate

program in 1991. He was promoted to Rear Admiral in

1997 and, in 1998, was named Director of Surface Warfare

in the office of the Chief of Naval Operations.

Admiral Mullen is one of only four naval officers who

has received four 4-Star assignments. In 2003, Admiral

Mullen was named Vice Chief of Naval Operations and was

tapped to head the United States Naval Forces in Europe

and NATO’s Joint Force Command in Naples. He then

was appointed Chief of Naval Operations in 2005, and, in

2007, was nominated to be Chairman of the Joint Chiefs

of Staff. Admiral Mullen retired from this position in 2011

after serving for four years under both a Republican and

a Democratic President.

3

This brief does not focus on the merits of the litigation

but, instead, on the appropriate venue for it. We take no

position on the policy questions arising from land losses

in Louisiana’s coastal zone. We file this brief because the

activities of Petitioners that allegedly caused those land

losses were undertaken at the direction and under the

control of the Federal Government to meet criticallyimportant military and national-security objectives during

World War II. The military believed the best way to win

WWII was to maximize fuel production and minimize use

of precious resources, like steel. The resulting directive to

Petitioners and others in the industry was clear: discover,

develop, and produce more petroleum products, but use

the least amount of material possible in doing so.

The claims in this case arise directly from Petitioners’

actions implementing those federal officers’ prioritization

directives. Petitioners’ ramped-up production on the

Louisiana coast during WWII, about which Respondents

(hereinafter “the Local Governments”) now complain, was

done pursuant to orders from the Federal Government

and the special federal agencies created to manage our

Nation’s petroleum resources for the war. In addition,

the federal directives that Petitioners use less steel

functionally prohibited use of steel well casings, which the

Local Governments now claim (nearly eight decades later)

should have been used to better protect the environment.

Indeed, the upshot of the Local Governments’ claims seems

to be that WWII should have been prosecuted differently:

federal officers should have prioritized local environmental

interests more and national-security interests less, and

Petitioners should have disobeyed federal directives and

elevated local environmental protection concerns over

national security.

4

We strongly believe that whether Petitioners should

be held responsible for such federally-directed and

-controlled activities should be addressed in federal—

not state—courts, as prescribed by the Federal Officer

Removal Statute, which provides for litigating claims

against a “person acting under” a federal officer in federal

courts. By enacting that statute, Congress expressed its

judgment that such claims may not fairly get resolved

in state court with local interests hostile to the broader

national common good. Instead, an unbiased federal forum

is the more fair and just venue for judging actions taken

at the direction of federal officers. 2

Here, removal ensures that a Louisiana state court

cannot second-guess decisions made by federal officers

almost 80 years ago that were designed to maximize

the use of our Nation’s natural resources to win WWII.

Conversely, remanding sends the message to private

parties that the direction they take from federal officers

in support of national-security priorities may not be

fairly judged and that they may be held liable years later

for their actions under federal officers. That creates a

serious risk that those private parties will not answer

federal officers’ call to action, which could have disastrous

implications for our Nation.

2. See Watson v. Philip Morris Cos., 551 U.S. 142, 147-48

(2007) (explaining that the statute was enacted to “protect federal

officers” and those aiding and assisting them “from interference

by hostile state courts,” which may not agree with federal law and

decisions, and thereby allow federal officers and those acting under

them to mount a defense in a venue “where the authority of the law

was recognized”) (quoting Willingham v. Morgan, 395 U.S. 402, 405

(1969), and 9 Cong. Deb. 461 (1833)) (emphasis added).

5

The crude oil Petitioners produced under federal

officers’ direction and control, and which the Federal

Government would have otherwise had to make itself, is

a quintessential example. The availability of Petitioners’

products has been crucial to the success of our armed

forces throughout our history, including when we served

as Chairmen of the Joint Chiefs of Staff. Energy security

is critical to our national security, particularly during

wartime, including WWII. As Admiral Mullen once put

it, “[e]nergy security needs to be one of the first things

we think about, before we deploy another soldier, before

we build another ship or plane, and before we buy or

fill another rucksack.” 3 We believe that it is critically

important to send the right message to and foster the

cooperation of key members of the private sector, like

Petitioners, whose help is crucial for our national security.

This Court should therefore step in and prevent the

second-guessing of federal decisions in potentially-hostile

state courts and avoid the corollary “chilling effect” on

private parties’ willingness to undertake the activities

essential to our energy and national security by granting

certiorari, quashing the Fifth Circuit’s decision, and

holding that the Local Governments’ claims should be

litigated in federal court pursuant to federal officer

removal jurisdiction.4

3. Energy Security Forum, Washington, D.C., 13 October 2010,

https://www.dvidshub.net/news/58040/mullen-military-has-strategicimperative-save-resources.

4. Of course, the Local Governments may ultimately prove

their claims and prevail in federal court. We express no opinion on

the merits of their claims. We just want to ensure that the merits

are judged in a fair forum, where there is no potential bias against

private parties because local interests diverge from the interests

6

INTRODUCTION AND SUMMARY

OF THE ARGUMENT

To assist the Court in understanding the importance

of granting review and why affirming remand implicates

significant national-security concerns, this brief first

discusses the Federal Government’s—particularly, the

United States military’s—historical control and direction

of Petitioners’ production and sale of petroleum products

that were essential for fueling the military during WWII.

A substantial portion of Petitioners’ federally-directed

activities to ensure the military had sufficient war-time

fuel occurred on the Louisiana coast.

The crude oil that Petitioners produced for the Federal

Government, as well as the specialized products made

from that crude, have been—and continue to be—“crucial

to the national defense,” including but by no means limited

to “fuel and diesel oil used in the Navy’s ships; and

lubricating oils used for various military machines.”5 As

former Chairmen of the Joint Chiefs of Staff serving under

both Democratic and Republican administrations and

with over 80 years of combined service in the military, we

can personally attest that petroleum products produced

by companies like Petitioners, including those produced

from activities in the Louisiana coastal zone, have been

critical to national security, military preparedness, and

of the federal officers directing the conduct of the private parties in

furtherance of national-security and military objectives.

5. Exxon Mobil Corp. v. United States, 2020 WL 5573048, at

*31 (S.D. Tex. Sept. 16, 2020) (emphasis added); see also id. at *47

(noting the “value of [the] petroleum industry’s contribution to the

nation’s military success”).

7

combat missions. We are not alone in this belief. Military

commanders, like General David Petraeus, universally

emphasize that “[e]nergy is the lifeblood of our warfighting

capabilities.”6

To ensure the military has a dependable, abundant

supply of the energy indispensable to our Nation’s

warfighting capacity, the Federal Government has

directed, guided, and controlled Petitioners, through

contracts and otherwise, to obtain oil and gas products,

including specialized aviation fuels, sourced from the

Louisiana coastal zone. But for Petitioners’ production and

supply of these fuels pursuant to the military’s specialized

requirements during WWII, the Federal Government

would have had to manufacture them itself. Our national

security depends on encouraging—not discouraging—

such private sector assistance.

This brief explains why, in our view, the Local

Governments’ efforts to impose liability on Petitioners

for those activities must be litigated in federal courts and

not potentially-prejudiced state courts that may not give

due weight to federal and national-security priorities.

The extensive Federal Government involvement in—and

direction and control of—Petitioners’ activities in the

Louisiana coastal zone during wartime directly implicates

the Federal Officer Removal Statute and its underlying

policy that litigation of claims relating to such federallydirected and -controlled activities must occur in federal

courts.

6. Quoted in Department of Energ y, “Energ y for the

Warfighter: The Department of Defense Operational Energy Strategy,” June 14, 2011, https://www.energy.gov/articles/energy-warfighter-department-defense-operational-energy-strategy.

8

The Fifth Circuit failed to recognize that the Local

Governments’ claims implicate significant federal

interests because those claims conflict directly with

Petitioners’ obligations to the Federal Government during

WWII. The circuit court wrongly found Petitioners’

actions under the direction of these federal officers to be

the type of mere regulatory oversight and complying with

the law typically seen in the consumer product space. It

equated the Food and Drug Administration’s regulatory

oversight of cigarette manufacturers at issue in Watson

with the specially-created federal agencies’ particularized

directives to Petitioners in order to win the war against

the Nazis.

The truth is that these federal agencies created during

WWII directed and controlled Petitioners’ activities

to such an extent that they were essentially “one giant

organization, under government direction and mobilized

for war.” 7 Petitioners were not merely complying with

regulations to market a commercial product to consumers;

rather, their activities were being orchestrated by federal

officers to deliver specialized wartime products to the

military—products the Federal Government would have

otherwise needed to make itself to win the war.

The circuit court concluded that Petitioners were

not acting under federal officers because there was

purportedly “insufficient evidence of any contract, any

payment, any employer/employee relationship, or any

principal/agent arrangement.” 8 That test makes little

sense. The reality is that functional federal officer control

7. Record on Appeal (“ROA”) 16062.

8. Petition at 5a (internal quotation marks omitted).

9

and direction many times occurs by necessity without such

formalities. Those historical realities are consistent with

what we understand this Court and other circuit courts

had concluded is determinative—that liability for conduct

undertaken at the direction of federal officers must be

litigated in federal courts regardless of whether that

direction and control is evidenced by an express contract,

payment, employer/employee relationship, or principal/

agent arrangement.9 Instead, “special relationships,” like

we have here, are what matter.

This inconsistent authority across the country creates

real-world problems. A citizen that is undisputedly taking

direction from and being controlled by federal officers,

but may lack the specific types of evidentiary support

required by the Fifth Circuit, can have claims regarding

those activities litigated in federal courts in some parts

of the country, but not others. This seems contrary to

what Congress intended when it created the Federal

Officer Removal Statute and, from our perspective, is both

unworkable and ultimately damaging to national security.

We believe that allowing state-court actions seeking

to vindicate particular local interests—without providing

adequate protections for those acting under federal

officers—will undermine Congress’s judgment that it is

in the national interest to litigate such claims in federal

court. Forcing Petitioners to face liability in state court for

actions under federal officers sends the wrong message,

discouraging private parties from taking needed federal

direction. Allowing such actions to proceed in state court

will also impede the ability to fashion the necessary

9. See Petition at 15–24 (explaining conflict between circuit

decisions).

10

national, uniform rules and policies that, in our military

experience, will best protect our vital national interests

and best ensure our military is deployment-ready.

We hope this practical, historical, and informed

perspective will be helpful to the Court in deciding that

federal officer removal is appropriate here.

ARGUMENT

For more than a century—and to this day—the

Federal Government has incentivized, directed, and

controlled aspects of United States oil production and

has reserved rights to take additional control of such

operations for the benefit of the Nation’s defense and

security. As United States Navy Captain Matthew D.

Holman explained:

Fuel is truly the lifeblood of the full range of

Department of Defense (DoD) capabilities, and,

as such, must be available on specification, on

demand, on time, every time. In meeting this

highest of standards, we work hand-in-hand

with a dedicated team of Sailors, civil servants,

and contractors [i.e., companies like Petitioners]

to deliver fuel to every corner of the world,

ashore and afloat.10

To ensure it has the fuels necessary for our Nation’s

security, the Federal Government has required and

otherwise been inextricably involved in oil and gas

companies’ development of the Nation’s domestic oil

10. Navy Supply Corps Newsletter, NAVSUP Fuels: What the

Fleet Runs On, Spring 2020 at p. 10 (emphasis added), available at:

https://ufdcimages.uflib.ufl.edu/AA/00/04/80/19/00052/Spring-2020.pdf.

11

resources for military use. Any claims arising from

the historic production and sale of domestic oil and gas,

including such activities occurring in the Louisiana coastal

zone, necessarily implicate the Federal Government’s

historical and current role in this industry, including the

extensive history of federal laws, contracts, and leases

that supported and controlled significant portions of our

Nation’s fuel supply.

The Fifth Circuit’s narrow focus for certain, specific

evidence to show a person is “acting under” a federal

officer failed to take into proper account the unique and

special relationship Petitioners had with federal officers

and agencies during WWII. The direction and control

Petitioners received from the federal agency created

specifically to administer petroleum production during

WWII, as well as their subcontractor status in relation to

the refineries, created the kind of subjection that plainly

qualify as “acting under.”

Instead of looking at all the facts from a practical and

functional perspective, the circuit court added additional

hurdles, construing narrowly the circumstances for when

a person is “acting under” a federal officer to those with

a specific type of evidentiary support. Not only does the

Fifth Circuit’s test violate the rule that courts addressing

federal officer removals must construe the facts liberally

in support of removal,11 the test requires ignoring the

11. See Watson, 551 U.S. at 147 (noting the Federal Officer

Removal Statute must be “liberally construed”); Agyin v. Razmzam,

986 F.3d 168, 175 (2d Cir. 2021) (stating courts must “credit [the

d]efendants’ theory of the case when evaluating the relationship

between the defendants’ actions and the federal officer”); Baker v.

Atl. Richfield Co., 962 F.3d 937, 945 (7th Cir. 2020) (stating courts

should give the removing party “the benefit of all reasonable

inferences from the facts alleged” in support of removal).

12

evidence demonstrating the monumental level of direction

and control federal officers exercised over Petitioners’

activities in supplying the energy products the military

needed to win the war. Such an ill-conceived and narrow

rule for when federal-officer removal is appropriate makes

no sense in the face of existential conflicts, like WWII,

and erroneously exalts form over substance.

I.

During WWII, the Federal Government controlled

oil and gas production in the manner it believed

would best protect national security and win the

war by directing Petitioners to produce more fuel

using less steel.

WWII confirmed petroleum’s role as a key American

resource and underscored the government’s interest in

maintaining and managing it.

Our overseas forces required nearly twice

as many tons of oil as arms and armament,

ammunition, transportation and construction

equipment, food, clothing, shelter, medical

supplies, and all other materials together. In

both essentiality and quantity, oil has become

the greatest of all munitions.12

Petroleum products have accordingly been described as

“[a] prime weapon of victory in two world wars” and as “a

bulwark of our national security.”13

12. Statement of Ralph K. Davies, Deputy Petroleum Administrator of War, Special Committee Investigating Petroleum

Resources, S. Res. 36, at 4 (Nov. 28, 1945)

13. National Petroleum Council, A National Oil Policy for the

United States at 1 (1949)

13

In 1941, as the Nation prepared to enter WWII, its

need for large quantities of oil and gas to produce highoctane fuel for planes (“avgas”), oil for ships, lubricants,

and synthetic rubber far outstripped our capacity at the

time. Avgas, in particular, was considered “the most

critically needed refinery product during World War

II and was essential to the United States’ war effort.”14

Pursuant to authority provided by the Second War

Powers Act and related statutes, the Federal Government

created agencies to which it delegated the power to

control petroleum production and distribution, direct the

production of certain petroleum products, and manage

resources.15 This was specifically true with respect

to Petitioners’ petroleum-production activities on the

Louisiana coast.

In the early 1940s, President Roosevelt established

several agencies to oversee wartime petroleum production,

including the War Production Board (“WPB”) and the

Petroleum Administration for War (“PAW”). The purpose

of these federal agencies was to coordinate and maximize

the resources our Nation could muster to protect

ourselves and destroy our enemies’ military power.16

PAW centralized the government’s petroleum-related

activities for the war effort in a way never possible by

industry action alone, strictly directing and controlling

every phase of the industry, including crude oil production,

14. Shell Oil Co. v. United States, 751 F.3d 1282, 1285 (Fed.

Cir. 2014).

15. ROA.13919-22, 13959-61, 14216-19, 14267-74, 14275-82,

14525, 14755, 14785, 14787, 14853-912.

16. ROA.10866, 13959-60.

14

refining, manufacturing, transporting, and distribution.17

In this way, PAW’s direction and control of the oil and gas

industry during WWII was unique and went well beyond

the regulatory and monitoring activities of modern federal

agencies as well as the level of direction and control seen

in typical government contracts.18

“PAW was further expected to designate for the

military forces the companies in a given area from which

the product could be secured, as well as the amount

to be produced by each company and the time when

the product would be available.” 19 The Office of the

Petroleum Coordinator for National Defense (“OPC”),

PAW’s predecessor, stated that “[i]t is essential, in the

national interest that the supplies of all grades of aviation

gasoline for military, defense and essential civilian uses

be increased immediately to the maximum.” 20 OPC

also required that production levels be “fixed” in order

to “efficiently,” and to “the full[est] extent” possible,

provide the grade of crude needed for avgas production for

the military. 21 Thus, the Federal Government, including

through PAW, took charge and provided the strategic

direction and control needed to ensure the country had

sufficient fuel for the war, including specialized avgas.

17. ROA.10866-68, 16085.

18. ROA.10868-69.

19. Statement of George A. Wilson, Director of Supply and

Transportation Division, Wartime Petroleum Supply and Transportation, Petroleum Administration for War, Special Committee

Investigating Petroleum Resources, S. Res. 36 at 212 (Nov. 28, 1945).

20. Shell Oil, 751 F.3d at 1286 (quoting OPC Recommendation

No. 16) (emphasis added).

21. ROA.15299.

15

At the direction of the Federal Government, the oil

companies increased avgas production “over twelve-fold

from approximately 40,000 barrels per day in December

1941 to 514,000 barrels per day in 1945, [which] was

crucial to Allied success in the war.” 22 In this way, federal

officers’ direction and control of Petitioners’ activities was

much more extensive than the type of modern regulatory

authority exercised over companies to ensure the safety

of products for consumers, which this Court found

insufficient to justify federal officer removal in Watson. It

is also well beyond the type of direction and control seen

in the federal contracts that other courts regularly find

sufficient for federal-officer removal.

Rather, federal officers’ direction and control over

petroleum production during W WII rose to such a

level that the industry was basically part of the Federal

Government itself. “No one who knows even the slightest

bit about what the petroleum industry contributed … can

fail to understand that it was, without the slightest doubt,

one of the most effective arms of this Government” in

fulfilling the government’s core defense functions. 23 The

industry provided, under Federal Government control,

products that were essential for the government to carry

out its duty to defend the Nation.

22. Shell Oil, 751 F.3d at 1285.

23. Statement of Senator O’Mahoney, Chairman, Special Committee Investigating Petroleum Resources, S. Res. 36, at 1 (Nov. 28,

1945) (emphasis added).

16

II. The oil and gas produced from Louisiana’s coastal

zone under the direction and supervision of federal

officers, including specialized avgas for fighter

planes, was essential to the Nation’s military and

its wartime efforts.

A prime example of how the Federal Government took

charge of the Nation’s petroleum exploration, development,

and production activities for the war effort during WWII

involved activities in Louisiana’s coastal zone. To meet

increasing wartime demand for petroleum products, in

1942, PAW established allowable production levels in

Louisiana and designated certain Louisiana coastal fields

as “critical fields essential to the war program.” 24 This

federally-directed ramped-up production from Louisiana

coastal fields during WWII made the State the third

largest oil producer in the country. 25 The WPB imposed

similar orders and directives, including uniform well

spacing patterns, with exceptions granted only if PAW

determined it was needed to promote the war effort, such

as producing needed avgas components. 26 As wartime

petroleum demands increased, the Federal Government,

through WPB and PAW, made materials available to the

industry and relaxed well-spacing requirements to allow

increased production. 27

24. ROA.13909, 13938-39, 13966-68, 15321-40.

25. ROA.10874-75.

26. ROA.13928-36, 14247, 14279-80, 15084-87, 15089-92, 1509497, 15099, 15101, 15103, 15111, 15113-125, 15135-49, 15151, 15153-60,

15162-65, 15167-68, 15170, 15617-744.

27. ROA.13933-36, 14247, 14279-80, 15153-60, 15162-65, 1516768, 15170, 15172-82, 15184-223.

17

The Federal Government also directed and controlled

the transport of crude from the fields to refineries,

including the construction of pipelines, in order to

manufacture petroleum products for the war and ensure

the utmost efficiency in doing so. 28 In particular, PAW

directed the allocation of specific volumes of crude

produced from Louisiana coastal fields to specific

refineries in order to maximize the production of critical

war products for Federal Government contracts, while

using the least amount of crude. 29

The avgas these refineries were coordinated and

directed by the Federal Government to produce in vast

quantities—and for which the Federal Government was

the sole purchaser—was perhaps the most critical product

to fuel the war efforts and the Allies’ aerial supremacy. 30

Crude producers, like Petitioners, faced both PAW

direction of production practices and amounts as well as

subcontractor obligations that could be enforced by the

Federal Government. 31

Equally important, the Federal Government, through

PAW and WPB, directed and controlled the allocation of

28. ROA.13909, 13939-43, 13959-61, 14225-41, 14283-84, 14562,

15342-43, 15354, 15363.

29. ROA.13910, 13938, 13944-55, 13948, 13972-80, 13981-14006,

14008-36, 14038-59, 14061-78, 14080-159, 14161-90, 14192-208, 14210284, 15306-07, 15309-19, 15402, 15420, 15441, 15447-52, 15454-56,

15482-515, 15517-63, 15565-67, 15569-73, 15575-77, 15746-68, 1577073, 15779, 15796-16027, 16104-107, 16289-310, 16320-21, 16381-84.

30. ROA.13953-55, 14211, 14248-49, 14259-60, 15579-80, 1609598, 16100-102, 16109-151.

31. See Petition at 2–3, 10–12, 16–18, 26–27.

18

materials, like the steel and copper used in oil exploration

and production machinery, because those materials were

also critical to competing wartime efforts, such as building

ships, planes, artillery, and munitions.32 As PAW’s Director

of Production put it, the 60-plus tons of steel needed for

a petroleum well casing could build two large fighting

tanks.33 PAW’s Administrator similarly asked with respect

to “[e]very proposal or application for materials … could

any less critical material be substituted?” 34 The Federal

Government used this power over allocations of materials

as leverage to control the industry and ensure it complied

with federal directives. 35

In short, the Federal Government determined

that the best means-and-methods to support the war

efforts required using the fewest precious resources to

discover, develop, and produce the most fuel possible—

and directed Petitioners and others in the industry to do

so. 36 Petitioners’ alleged misconduct—like extracting too

much oil and not using steel tanks and more steel in well

casings and saltwater reinjection wells—arises directly

from Petitioners following the decisions by federal officers

to ramp up production and prioritize the use of certain

materials to support the military and win the war. The

resolution of these conflicts between federal directives and

32. ROA. 10878-79, 13920, 13926, 14216-19, 14267-85, 15041-43.

33. ROA.13926, 15041-43.

34. ROA.13926-27, 15046-48, 15051-52.

35. ROA.10871-72.

36. ROA. 10878-80, 13927-29, 13936-37, 13944, 14271, 14923-25,

15069-70, 15074-75, 15077-82, 15084-87, 15105-09, 15262, 15290-95,

15378-81, 15617-744, 16069-73.

19

newly-minted state environmental requirements—and

whether Petitioners have any liability for following those

federal directives—belongs in federal court.

III. Depriving Petitioners of the federal forum the

Federal Officer Removal Statute was designed to

provide presents national security risks by inviting

parochial second-guessing of federal officers and

deterring private parties from acting under federal

officers.

We have ser ious concerns about the broader

implications of and message sent by requiring that

this case be litigated in state court. Our Nation needs

private parties, like Petitioners, to answer the call of

duty when asked by the Federal Government to use their

expertise to assist with our national defense. Our national

security depends, in many ways, on such public-private

partnerships, where our citizens step up to use their

skills to assist their country by taking direction from

the government. That must be encouraged, not deterred.

One of the key ways in which the Federal Government

has incentivized private parties to take its direction

is by ensuring that, if someone attempts to hold them

liable for such actions, the private parties have the right

to have those actions judged in a federal venue, “where

the authority of the law was recognized,” free “from

interference by hostile state courts” that may not agree

with federal law and decisions. 37 The Federal Officer

Removal Statute, 28 U.S.C. § 1442(a)(1), accordingly

37. Watson, 551 U.S. at 147-48 (quoting Willingham, 395 U.S.

at 405, and 9 Cong. Deb. 461).

20

authorizes removal to federal court of “[a] civil action ...

that is against or directed to ... any person acting under

[a federal] officer ... for or relating to any act under color

of such office.”

The “statute’s ‘basic’ purpose is to protect the Federal

Government from the interference with its ‘operations’

that would ensue were a State able, for example, to” apply

its laws and impose its judgment on “‘officers and agents’

of the Federal Government ‘acting ... within the scope of

their authority.’” 38 To achieve that purpose, this Court

has consistently eschewed a narrow interpretation of the

statute and, instead, required a “liberal construction”—

meaning all doubts are resolved in favor of removal, not

remand. 39 Courts considering federal officer removal

accordingly “credit” the defendant’s—not the plaintiff’s—

“theory of the case.”40

Petitioners correctly contend that the remand decision

here violates these established principles.41 Instead of

construing the facts in favor of Petitioners and crediting

their theory of the case, the courts below did the opposite

and imposed a stricter standard. Furthermore, the

lower courts imposed a requirement, found nowhere in

the statute or this Court’s precedents, that a person can

establish they were “acting under” a federal officer only

38. Watson, 551 U.S. at 150 (quoting Willingham, 395 U.S. at

406).

39. Id. at 147.

40. Jefferson Cnty. v. Acker, 527 U.S. 423, 432 (1999); see also

note 11, supra.

41. See Petition at 24–30.

21

with evidence of an express contract, payment, employment

relationship, or formal agency arrangement. That should

not be the controlling test, and as we understand it, is not

the controlling test.

As the history above indicates, the Federal Government

needed the entire industry to act as one and could not

accomplish that goal with individual contracts. As that

history also indicates, regardless of any particular

contracts or formalized employment/agency relationships,

Petitioners’ exploration-and-production activities in the

Louisiana coastal zone during WWII were unquestionably

taken under the subjection, direction, and guidance of

federal officers, including federal officers controlling

things like Petitioners’ production levels and material

usage, to produce a product for the Federal Government

that it would otherwise have had to produce itself.

It is contrary to commonsense and the purpose of

the statute to only focus on the specific things noted

by the Fifth Circuit in deciding if a person is “acting

under” a federal officer. Again, we are not dealing with

companies that are simply complying with the law by

making products for consumers pursuant to long-standing

federal regulations designed to ensure commercial

products are safe for people and the environment. We are

instead dealing with companies that provided the crude

for the specialized products for our military pursuant

to directives from new federal agencies, which were

specifically created to help the Nation and its allies win

WWII. Whether those companies had the specific types of

evidence the Fifth Circuit said is needed to show “acting

under” is beside the point because the record abounds with

other evidence of “acting under” that has been deemed

22

sufficient by this Court and other circuits.42 At bottom, the

actions for which Petitioners are now being judged were

taken at the direction and under the control of federal

officers, and Petitioners are thus entitled to have those

activities judged in an unbiased federal forum.

Based on our military experience, we are concerned

that affirming the remand decision here could adversely

impact our national security. Subjecting private parties

to potential liability in state court for their actions taken

at the direction of federal officers could have a dangerous

deterrent “chilling effect.” Private actors, like Petitioners,

will be dis-incentivized to step up and take direction from

the Federal Government in service of our country for fear

of becoming liable after the fact—even more than threequarters of a century later, based upon new, subsequentlydevised state law rules. That has catastrophic implications

for our national defense. It severely inhibits our military’s

deployment and warfighting capabilities, which maintain

their superiority, in large part, through activities taken by

private parties at the direction of federal officers—e.g., the

companies that make our planes, tanks, and specialized

avgas (among other things).

Our concern about such a chilling effect is not an

abstract hypothetical. In the aftermath of 9-11, and in the

subsequent military actions in Afghanistan and Iraq, our

Nation needed certain specialized protective equipment

from the private sector, which the military did not have

at the time. And we needed this new equipment on short

notice. If private sector parties with the capability of

producing the equipment had said “no,” we would have

42. See Petition at 15–24.

23

been left in the lurch. Our troops would have been at a

far greater risk in seeking to accomplish our nationalsecurity objectives.

That is why it is so important not to dis-incentivize

the private sector’s contributions. While our military can

anticipate and plan for many things, it cannot anticipate

everything. In those instances, when national security

depends on immediate and decisive action, we need private

actors who will heed the call and assist federal officers in

executing strategic objectives. Accordingly, regardless of

the evidentiary test applied by the Fifth Circuit here, the

reality is the circumstances of this case fit squarely within

the Federal Officer Removal Statute’s “acting under” text

and the reasons for federal jurisdiction in the first place.

Conversely, refusing to construe the statute to cover

the type of activities Petitioners engaged in here will

discourage private parties from taking federal-officer

direction, which, in turn, will no doubt weaken our armed

forces while strengthening those of our enemies that have

appropriately treated, incentivized, and been supported

by their private sector. Absent such cooperation from

the private sector, the Federal Government would need

to produce these necessary items on its own, raising

the potential (as in other countries) of nationalization of

military production efforts. Reversing the remand order

to allow Petitioners’ conduct acting under federal officers

to be judged in a federal forum will send the right message

to private parties and make them more likely to accept the

federal direction that is essential to our national security.

24

Our constitutional oath is:

I [state your full name], having been appointed

a (rank) in the United States (Military Branch),

do solemnly swear (or affirm) that I will support

and defend the Constitution of the United States

against all enemies, foreign and domestic; that I

will bear true faith and allegiance to the same;

that I take this obligation freely, without any

mental reservation or purpose of evasion; and

that I will well and faithfully discharge the

duties of the office upon which I am about to

enter. So help me God (optional).

That oath necessarily includes a commitment to ensure

that the military has sufficient capabilities to accomplish

its missions based upon the specifications the military

requires, like particularized fuels to operate vehicles,

ships and planes. When the best, and sometimes only,

way to ensure the availability of those key resources is a

cooperative private sector, we must make certain these

actions taken under federal officers and critical to our

national security are fairly judged only in a federal forum.

That is where this case belongs.

25

CONCLUSION

For the foregoing reasons, amici curiae respectfully

request that the Court should grant the Petition and

vacate the order to remand this action to state court.

Respectfully submitted,

Tristan L. Duncan

Counsel of Record

Shook, Hardy & Bacon LLP

2555 Grand Boulevard

Kansas City, MO 64108

(816) 474-6550

tlduncan@shb.com

Daniel B. Rogers

Shook, Hardy & Bacon LLP

201 South Biscayne Boulevard,

Suite 3200

Miami, FL 33131

Attorneys for Amici Curiae