Opposition Brief — Chevron Corporation, et al., Petitioners v. City of Hoboken, New Jersey, et al.
Supreme Court briefMar 31, 2023
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No. 22-821
In The
Supreme Court of the United States
BP America Inc., et al., Petitioners,
v.
State of Delaware, Respondent.
Chevron Corporation., et al., Petitioners,
v.
City of Hoboken, Respondent.
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Third Circuit
RESPONDENT STATE OF DELAWARE’S
OPPOSITION TO PETITION FOR A
WRIT OF CERTIORARI
Christian Douglas Wright
Director of Impact Litigation
Jameson A.L. Tweedie
Ralph K. Durstein III
Sawyer M. Traver
Deputy Attorneys General
Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801
(302) 577-8600
christian.wright@delaware.gov
jameson.tweedie@delaware.gov
ralph.durstein@delaware.gov
sawyer.traver@delaware.gov
Victor M. Sher
Counsel of Record
Matthew K. Edling
Stephanie D. Biehl
Martin D. Quiñones
Sher Edling LLP
100 Montgomery St.,
Suite 1410
San Francisco, CA 94104
(628) 231-2500
vic@sheredling.com
matt@sheredling.com
stephanie@sheredling.com
marty@sheredling.com
Counsel for Respondent—State of Delaware
Mosaic - (301) 927-3800 - Cheverly, MD
49261_Ltrhd.indd
1
6/11/08
12:44:0
i
QUESTION PRESENTED
Should this Court create a new exception to the
well-pleaded complaint rule that confers federal-question jurisdiction over respondent’s state-law complaint
based on petitioners’ assertion that respondent’s
claims are “governed by” federal common law when:
(1) the federal common law which petitioners assert
governs respondent’s state-law claims has been displaced by a federal statute and would not apply to respondent’s claims even if it remained operative; (2)
the statute that displaced that common law does not
completely preempt state law; and (3) petitioners cannot show that respondent’s 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
STATEMENT.......................................................
1
Background.....................................................
7
Facts and Procedural History........................
9
REASONS THE PETITION
SHOULD BE DENIED....................................
12
There is no circuit conflict concerning the
application of the well-pleaded complaint
rule and its narrow exceptions..................
12
The court of appeals’ decision here does not
conflict with City of New York v.
Chevron Corp..............................................
17
The decision below was correct......................
22
The Question Presented is minimally
important and this case is a poor vehicle
for addressing it..........................................
26
CONCLUSION.....................................................
30
v
TABLE OF AUTHORITIES
Cases
Page
Am. Airlines, Inc. v. Wolens,
513 U.S. 219 (1995)..........................................
14
Am. Elec. Power Co. v. Connecticut,
564 U.S. 410 (2011)..........................................
5
Bd. of Cnty. Comm’rs of Boulder Cnty. v.
Suncor Energy (U.S.A.) Inc.,
25 F.4th 1238 (10th Cir. 2022)............... 1, 3, 19, 24
Beneficial Nat’l Bank v. Anderson,
539 U.S. 1 (2003)......................................... 8, 17, 22
Bernhard v. Whitney Nat’l Bank,
523 F.3d 546 (5th Cir. 2008)............................
14
Caterpillar Inc. v. Williams,
482 U.S. 386 (1987).................................. 5, 7, 8, 18
City of Milwaukee v. Illinois,
451 U.S. 304 (1981)..........................................
5
City of New York v. Chevron Corp.,
993 F.3d 81 (2d Cir. 2021).......................... 3, 18-21
City of Oakland v. BP PLC,
969 F.3d 895 (9th Cir. 2020).................. 1, 3, 24, 25
Cnty. of San Mateo v. Chevron Corp.,
32 F.4th 733 (9th Cir. 2022)........................ 1, 3, 24
DeRoy v. Carnival Corp.,
963 F.3d 1302 (11th Cir. 2020)........................
17
Empire Healthchoice Assurance, Inc. v. McVeigh,
547 U.S. 677 (2006)......................... 8, 9, 14, 24, 25
vi
TABLE OF AUTHORITIES—Continued
Franchise Tax Bd. of State of Cal. v. Constr.
Laborers Vacation Tr. for S. Cal.,
463 U.S. 1 (1983).........................................
Page
7, 8, 24
Goepel v. Nat’l Postal Mail Handlers Union,
36 F.3d 306 (3d Cir. 1994)...............................
23
Grable & Sons Metal Prods., Inc. v. Darue
En’g & Mfg.,
545 U.S. 308 (2005)..........................................
2, 9
Gully v. First Nat’l Bank,
299 U.S. 109 (1936).......................................... 9, 23
Gunn v. Minton,
568 U.S. 251 (2013)................................ 4, 7, 13, 25
Hertz Corp. v. Friend,
559 U.S. 77 (2010)............................................
27
In re Otter Tail Power Co.,
116 F.3d 1207 (8th Cir. 1997)..........................
15
Mayor & City Council of Balt. v. BP P.L.C.,
31 F.4th 178 (4th Cir. 2022)........................ 1, 3, 19
Merrell Dow Pharms. Inc. v. Thompson,
478 U.S. 804 (1986).......................................... 8, 22
Merrill Lynch, Pierce, Fenner & Smith Inc. v.
Manning,
578 U.S. 374 (2016).................................... 4, 13, 27
Metro. Life Ins. Co. v. Taylor,
481 U.S. 58 (1987).................................... 4, 7, 8, 23
Mitchell v. Advanced HCS, L.L.C.,
28 F.4th 580 (5th Cir. 2022)............................
13
vii
TABLE OF AUTHORITIES—Continued
Page
Minnesota ex rel. Ellison v. Am. Petroleum Inst.,
No. 21-1752, 2023 WL 2607545
(8th Cir. Mar. 23, 2023)......................... 1, 3, 15, 17
Mobil Oil Corp. v. FPC,
417 U.S. 283 (1974)..........................................
28
Morgan Cnty. War Mem’l Hosp. ex rel.
Bd. of Dirs. of War Mem’l Hosp. v. Baker,
314 F. App’x 529 (4th Cir. 2008).....................
13
Newton v. Capital Assurance Co.,
245 F.3d 1306 (11th Cir. 2001)........................
16
Nicodemus v. Union Pac. Corp.,
440 F.3d 1227 (10th Cir. 2006)........................
13
Republic of Philippines v. Marcos,
806 F.2d 344 (2d Cir. 1986).............................
16
Rhode Island v. Shell Oil Prods. Co.,
35 F.4th 44 (1st Cir. 2022)..................... 1, 3, 19, 24
Rodriguez v. F.D.I.C.,
140 S. Ct. 713 (2020)........................................
6
Romano v. Kazacos,
609 F.3d 512 (2d Cir. 2010).............................
17
Russell v. Legal Aid Soc’y of N.Y.,
200 F. App’x 37 (2d Cir. 2006).........................
17
Sam L. Majors Jewelers v. ABX, Inc.
117 F.3d 922 (5th Cir. 1997)............................
14
Scimone v. Carnival Corp.,
720 F.3d 876 (11th Cir. 2013)..........................
17
viii
TABLE OF AUTHORITIES—Continued
Page
Torres v. S. Peru Copper Co.,
113 F.3d 540 (5th Cir. 1997)............................
16
Vaden v. Discover Bank,
556 U.S. 49 (2009)............................................ 8, 22
Waste Control Specialists, LLC v. Envirocare
of Texas, Inc.,
199 F.3d 781 (5th Cir. 2000)............................
17
Statutes
28 U.S.C. § 1442...................................................
10
28 U.S.C. § 1453...................................................
10
28 U.S.C. § 1331......................................... 4, 7, 13, 19
42 U.S.C. § 7401...................................................
5
43 U.S.C. § 1331...................................................
10
49 U.S.C. § 40120(c).............................................
14
Del. Code Ann. tit. 6, § 2511................................
10
Rules
Fed. R. Civ. P. 12(b)(6).........................................
18
1
STATEMENT
Respondent, the State of Delaware, brought this action in its own courts, under its own consumer protection statutes and common law, alleging that petitioners misled consumers and the public about their
products within and outside Delaware, and that those
misrepresentations will have severe consequences to
the State and its citizens. The Third Circuit below
noted that it was “in good company” affirming remand
of Delaware’s case to state court, because “so far, four
other circuits have refused to allow the oil companies
to remove similar state tort suits to federal court”
without dissent. Pet. App. 21a. The Eighth Circuit
recently affirmed remand in a case presenting exactly
the same issues, and joined the First, Third, Fourth,
Ninth, and Tenth Circuits in rejecting the arguments
petitioners advance yet again here.1 No court anywhere has accepted petitioners’ arguments in support
of federal subject-matter jurisdiction.
The Court called for the views of the United States
on the materially similar petition pending in Suncor
Energy (U.S.A.) Inc. v. Board of County Commissioners of Boulder County, No. 21-1550 (“Suncor”), which
petitioners agree “presents the same issues” as this
petition, Pet. 4. The United States has responded,
stating that “[i]n the view of the United States, the
petition for a writ of certiorari should be denied.” See
City of Oakland v. BP PLC, 969 F.3d 895 (9th Cir. 2020), cert.
denied, 141 S. Ct. 2776 (2021); Bd. of Cnty. Comm’rs of Boulder
Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir.
2022); Mayor & City Council of Balt. v. BP P.L.C., 31 F.4th 178
(4th Cir. 2022); Cnty. of San Mateo v. Chevron Corp., 32 F.4th 733
(9th Cir. 2022); Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44
(1st Cir. 2022); Minnesota ex rel. Ellison v. Am. Petroleum Inst., __
F.4th __, No. 21-1752, 2023 WL 2607545 (8th Cir. Mar. 23, 2023).
1
2
Brief for the United States as Amicus Curiae at 1,
Suncor, No. 21-1550 (Mar. 16, 2023). The United
States’ brief explains that the Suncor plaintiffs’ claims
cannot be “removed to federal court on the ground
that [their] state-law claims should be recharacterized as claims arising under federal common law,” because “the Clean Air Act has displaced any relevant
federal common law in this area, and no exception to
the well-pleaded complaint rule applies.” Id. at 6.
That is in accord with the unanimous case authority,
including the Third Circuit’s opinion here, and applies
equally to this petition.
There is no division among the circuits on the sole
issue squarely raised in the petition. Six circuit courts
have held that state law claims like Delaware’s—that
allege “oil companies knew how dangerous fossil fuels
were for the environment” for years, but “said nothing
about [those] dangers” and instead “labored to convince the public” falsely that fossil fuels do not contribute to climate change, Pet. App. 20a—are not removable to federal court on any basis. Petitioners’
broad contention that “federal courts have [federal
question] jurisdiction under [28 U.S.C. §] 1331 over
claims artfully pleaded under state law but necessarily governed by federal law—specifically, federal common law,” Pet. 12, is not the law in any circuit. The
courts are unanimous that state-law causes of action
only “arise under” federal law for purposes of statutory subject-matter jurisdiction when those claims either 1) are completely preempted by a federal statute,
or 2) satisfy the four-part test this Court elucidated in
Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005). No
court recognizes the unguided analysis petitioners advocate, whereby a district judge may squint at a statecourt plaintiff ’s state-law claims, determine they are
3
“inherently and necessarily federal” based vaguely on
“our constitutional structure,” Pet. 3, and rest its own
jurisdiction on that finding. There is no split on this
issue, let alone an “entrenched” one requiring this
Court’s intervention. Pet. 17.
The Third Circuit’s decision below is not in conflict
with the Second Circuit’s decision in City of New York
v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021). Multiple
circuits have held that opinion is “completely different” from the Third Circuit’s decision below and the
unanimous cases like it, both legally and factually.
See Baltimore, 31 F.4th at 203. Legally, the cases are
not in conflict because they resolved different questions in different postures. City of New York considered an appeal from an order dismissing a case initiated in federal district court for failure to state a claim.
993 F.3d at 88–89. The decisions of the First, Fourth,
Eighth, Ninth, and Tenth Circuits, by contrast, and of
the Third Circuit here, affirmed orders granting remand for lack of federal subject-matter jurisdiction, in
cases originally filed in state court. See Rhode Island,
35 F.4th at 50–51; Baltimore, 31 F.4th at 195–96, 238;
Minnesota, 2023 WL 2607545, at *1; San Mateo, 32
F.4th at 744; Suncor, 25 F.4th at 1246; see also Oakland, 969 F.3d at 902–03, 912 (vacating denial of remand).
The Second Circuit itself expressly
“reconcile[d]” its conclusions with the “parade of recent opinions” affirming remand in analogous cases
concerning injuries from climate change, stating “their
reasoning does not conflict with our holding.” 993
F.3d at 93–94. Factually, City of New York is distinguishable because the complaint there would “effectively impose strict liability” on fossil fuel companies
for injuries from climate change, id. at 93, while Delaware’s case and those like it allege that petitioners
wrongfully misled consumers and the public for mul-
4
tiple decades, and target that alleged deceptive conduct as the basis for liability. Thus even if City of New
York had conducted the same analysis as the court of
appeals here, it would not be instructive.
The reason no disjunction has developed between
the circuits is that, ultimately, the consensus is correct and correctly applies this Court’s precedent. This
Court has acknowledged that its “caselaw construing
§ 1331 was for many decades . . . highly ‘unruly,’ ” and
has worked steadily for nearly two decades to synthesize “that muddled backdrop” into “what we now understand as the ‘arising under’ standard.” Merrill
Lynch, Pierce, Fenner & Smith Inc. v. Manning, 578
U.S. 374, 385 (2016) (quoting Gunn v. Minton, 568
U.S. 251, 258 (2013)). Beginning with Grable, the
Court “condensed [its] prior cases” into a straightforward test: a claim arises under federal law for statutory purposes where “federal law creates the cause of
action asserted,” or where a state law creates the
cause of action, but a federal question is “(1) necessarily raised, (2) actually disputed, (3) substantial, and
(4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 U.S. at 257–58. A narrow “corollary” is that “Congress may so completely pre-empt a
particular area that any civil complaint raising this
select group of claims is necessarily federal in character.” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63–64
(1987). As the United States explained in Suncor,
“[c]omplete preemption is ultimately a matter of congressional intent” to federalize an area of law. Suncor, U.S. Br. at 15. The court of appeals here, consistent with every other court to consider the issue, thus
correctly declined to adopt the “new form of complete
preemption” petitioners advocate, which “relies not on
statutes but federal common law.” See Pet. App. 24a.
5
Allowing federal judges to craft common law rules
with “pre-emptive force . . . so extraordinary that it
converts an ordinary state common-law complaint
into one stating a federal claim” would introduce grave
federalism and separation of powers problems. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987)
(cleaned up).
Petitioners say that notwithstanding the limits of
complete preemption, state law claims pertaining to
certain subjects simply are claims under federal common law “as a matter of constitutional structure,” e.g.
Pet. 23, although they never explain which provision
of the Constitution makes that so. Even if the broad
consensus rejecting that position were ill-founded and
there were good reason to expand this Court’s “arising
under” jurisprudence, Petitioners’ theory could not apply in this case because the federal common law of pollution nuisance on which they rely no longer exists.
This Court held twelve years ago that any federal common law that might once have been applicable here
has been “displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions,” namely
the Clean Air Act. Am. Elec. Power Co. v. Connecticut,
564 U.S. 410, 423 (2011) (“AEP”); see 42 U.S.C. § 7401
et seq. When Congress displaces federal common law
by statute, “the need for such an unusual exercise of
law-making by federal courts disappears,” and with it
any substantive law crafted in that area by the courts.
AEP, 564 U.S. at 423 (quoting City of Milwaukee v.
Illinois, 451 U.S. 304, 314 (1981)). “[F]ar from expressing an intent that federal common law be given complete-preemptive force with respect to the sorts of
claims that respondents allege, Congress displaced any
federal-common-law remedy that respondents might
otherwise have invoked,” and the judiciary’s limited
lawmaking authority has been extinguished. Suncor,
6
U.S. Br. at 15. “[B]efore federal judges may claim a
new area for common lawmaking,” moreover, “strict
conditions must be satisfied,” Rodriguez v. F.D.I.C.,
140 S. Ct. 713, 717 (2020) (emphasis added), and petitioners do not argue any of them are satisfied here.
Petitioners also assert that the Third Circuit “erred
in rejecting petitioners’ Grable argument” because it
“misapprehended” petitioners’ arguments. Pet. 26–
27. But every court to consider the question has held
that Petitioners’ assertion of Grable jurisdiction is
without merit because federal common law at most
provides petitioners a federal preemption defense they
may assert in state court. It does not form an affirmative element of any of Delaware’s claims here. Even if
the Third Circuit’s holding were in doubt, petitioners’
“asserted error” is the court of appeals’ alleged “misapplication of a properly stated rule of law,” which is
“rarely” a basis for granting certiorari and does not
merit the Court’s attention here. See S. Ct. R. 10.
Finally, the petition should be denied because the
Question Presented is neither important nor frequently recurring. Petitioners do not identify any class of
cases impacted by the issues here other than ones to
which they themselves are parties, and there is no
confusion or ambiguity in jurisdictional analysis that
could be relieved by the Court hearing this case. Petitioners argue that their own “vital role in ensuring a
steady supply of oil and gas for domestic use and in
support of the U.S. military” renders the jurisdictional question here important, Pet. 30; but petitioners’
position as dominant competitors in the fossil fuel
market does not manifest an important federal question. The United States did not address military readiness or civilian energy resources in its amicus brief in
Suncor, moreover, tending to indicate that these con-
7
siderations are not meaningfully implicated by the
Question Presented.
The petition should be denied. If the Court denies
the petition in Suncor, which it should, it should do
the same here. If the Court grants the petition in
Suncor, Delaware respectfully requests that this petition also be granted and the cases be consolidated for
argument so that the State may adequately present
its position on the merits.
Background
“Federal courts are courts of limited jurisdiction,
possessing only that power authorized by Constitution and statute.” Gunn, 568 U.S. at 256 (cleaned up).
Congress has granted federal district courts original
subject-matter jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the
United States,” and such actions “may be removed by
the defendant” from state to federal court. 28 U.S.C.
§§ 1331, 1441(a).
“[U]nder the present statutory scheme as it has existed since 1887,” the Court has applied a “powerful
doctrine,” known as the well-pleaded complaint rule,
requiring that jurisdiction under sections 1331 and
1441 “be determined from what necessarily appears in
the plaintiff ’s statement of his own claim in the bill or
declaration.” Franchise Tax Bd. of State of Cal. v. Constr. Laborers Vacation Tr. for S. Cal., 463 U.S. 1, 9–10
(1983) (citation omitted). For more than a century,
that rule has been “the basic principle marking the
boundaries of the federal question jurisdiction of the
federal district courts.” Metro. Life, 481 U.S. at 63.
The rule “makes the plaintiff the master of the claim”
such that “he or she may avoid federal jurisdiction by
exclusive reliance on state law.” Caterpillar, 482 U.S.
8
at 392. “Jurisdiction may not be sustained on a theory
that the plaintiff has not advanced,” Merrell Dow
Pharms. Inc. v. Thompson, 478 U.S. 804, 809 n.6
(1986), and cannot be “predicated on an actual or anticipated defense,” Vaden v. Discover Bank, 556 U.S.
49, 60 (2009) (citation omitted), “including the defense
of pre-emption,” Franchise Tax Bd., 463 U.S. at 14.
There are only two recognized exceptions to the wellpleaded complaint rule. The first is the doctrine of complete preemption, which applies only when “the preemptive force of a statute is so ‘extraordinary’ that it
‘converts an ordinary state common-law complaint into
one stating a federal claim for purposes of the wellpleaded complaint rule.’ ” Caterpillar, 482 U.S. at 393
(quoting Metro. Life, 481 U.S. at 65). The “proper inquiry focuses on whether Congress intended the federal
cause of action to be exclusive rather than on whether
Congress intended that the cause of action be removable,” Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 9
n.5 (2003), and “[i]f Congress intends a preemption instruction completely to displace ordinarily applicable
state law, and to confer federal jurisdiction thereby, it
may be expected to make that atypical intention clear,”
Empire Healthchoice Assurance, Inc. v. McVeigh, 547
U.S. 677, 698 (2006). The Court has been “reluctant to
find that extraordinary pre-emptive power” because it
necessarily impinges on the states’ sovereign lawmaking powers, Metro. Life, 481 U.S. at 65, and has identified only three statutes that exert the “complete preemption” effect, none of which are at issue here. See
Beneficial Nat’l Bank, 539 U.S. at 2.
The second recognized exception is Grable jurisdiction, a doctrine this Court developed to resolve lower
courts’ longstanding difficulty applying the wellpleaded complaint rule in cases where “a question of
9
federal law is lurking in the background” of a complaint pleaded under state law. See Gully v. First
Nat’l Bank, 299 U.S. 109, 117 (1936). The Grable doctrine is applicable only to a “special and small category” of cases in which “federal jurisdiction over a state
law claim will lie if a federal issue is: (1) necessarily
raised, (2) actually disputed, (3) substantial, and
(4) capable of resolution in federal court without disrupting the federal-state balance approved by Congress.” Gunn, 568 at 258 (citing Empire Healthchoice,
547 U.S. at 699; Grable, 545 U.S. at 314).
Petitioners do not contend in this Court that Delaware’s claims are completely preempted. Their petition instead asks the Court to grant review either to
carve out a new, third exception to the well-pleaded
complaint rule applicable only to cases “seeking redress for injuries allegedly caused by the effects of interstate and international greenhouse gas emissions,”
Pet. 10; or to relitigate whether they have satisfied
Grable jurisdiction on the merits, Pet. 26–28.
Facts and Procedural History
Delaware alleges petitioners have known for decades that their oil, gas, and coal products create
greenhouse gas pollution, which in turn changes
Earth’s climate, warms the oceans, and causes sea levels to rise. Ct. App. JA0316–50. Starting as early as
the 1950s, petitioners researched the link between fossil fuel consumption and global warming, and over
time amassed a nuanced, comprehensive understanding of the adverse climate impacts their fossil fuel
products cause. Id. Beginning in the 1980s, however,
petitioners embarked on a strategy of misrepresenting
their own understanding of climate change and their
products’ relationship to it, and misleadingly advertising and promoting those products. Id. JA0350–78.
10
Delaware brought this case in Delaware Superior
Court, asserting state-law claims for (1) negligent failure to warn, (2) trespass, (3) nuisance, and (4) violations of the Delaware Consumer Fraud Act, Del. Code
Ann. tit. 6, § 2511, et seq. Ct. App. JA0444–62. Petitioners removed on seven theories of federal jurisdiction, namely (1) federal common law, (2) Grable jurisdiction, (3) complete preemption by the Clean Air Act,
(4) federal enclave jurisdiction, (5) the federal officer
removal statute, 28 U.S.C. § 1442, (6) the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331, et seq., and
(7) the Class Action Fairness Act, 28 U.S.C. § 1453, all
but the first two of which have since been abandoned.
See Pet. App. 77a.
The district court granted Delaware’s motion to remand. The court first held in relevant part that Delaware’s claims “are not completely preempted by federal common law” because the complaint “only asserts
state-law causes of action” and there is not “any indication that Congress has intended for federal common
law to provide the exclusive cause of action for the
claims asserted in the complaint.” Pet. App. 81a. The
court further held that petitioners’ “repeated refrains
that federal common law ‘governs’ or ‘exclusively governs’ the issues underlying [Delaware]’s state-law
claims are simply veiled—and non-meritorious, for
purposes of removal—preemption arguments,” which
“d[o] not provide a basis for establishing federal jurisdiction.” Id. 82a. And in turn, the court found no support for petitioners’ proposition “that a complaint expressly asserting state-law claims that happen to
implicate federal common law can create an additional exception to the well-pleaded complaint rule and
confer removal jurisdiction on federal courts.” Id. As
to Grable, the court found that the petitioners’ arguments sounding in foreign affairs, federal greenhouse
11
gas regulation, and the First Amendment were not
necessarily presented in Delaware’s complaint and
thus could not support removal. See id. 86a–92a.
The Third Circuit affirmed. It first noted that because Delaware’s claims were pleaded “all under state
law,” the well-pleaded complaint rule would permit
removal on federal question grounds only if petitioners could “show either that these state claims are completely preempted by federal law or that some substantial federal issue must be resolved” within the
meaning of Grable. Id. 22a–23a. The court explained
that while “[o]rdinary preemption is a defense” that
can “defeat the plaintiff ’s state-law claims” when “incompatible federal and state laws regulate the same
actions,” the separate doctrine of “[c]omplete pre-emption is a potent jurisdictional fiction” that “lets courts
recast a state-law claim as a federal one” for purposes
of federal question jurisdiction. Id. 23a. “Ordinary
preemption defenses cannot work this alchemy.” Id.
The court held petitioners’ reliance on federal common law was “fatal[ly] flaw[ed],” because the precedent they cited came from “garden-variety preemption” decisions determining the validity of an ordinary
pre-emption defense, “not the complete preemption
they need” to establish jurisdiction. Id. 24a. The court
expressly declined to recognize a “new form of complete preemption, one that relies not on statutes but
federal common law,” because “complete preemption
is rare” and can apply only when Congress clearly so
intends. See id. 23a–24a.
Considering petitioners’ Grable arguments, the court
held that “neither of the federal issues” petitioners
maintained on appeal could justify removal. Id. 26a.
Petitioners argued that “emissions claims arise in an
area governed exclusively by federal law,” such that
12
“every element of [Delaware’s] claims is necessarily
federal.” Id. The Third Circuit held that this contention simply “rehash[ed] [petitioners’] common-law preemption argument” and was “the same wolf in a different sheep’s clothing,” because “whether federal common
law governs these claims” is at most an ordinary preemption defense on the merits. Id. The court also rejected petitioners’ contention that the First Amendment infused affirmative federal elements into Delaware’s state-law claims; “[s]tate courts routinely hear
libel, slander, and misrepresentation cases involving
matters of public concern,” the court reasoned, and the
limitations placed on certain speech-related causes of
action by the Constitution “do not extend federal jurisdiction to every such claim.” Id. 27a.
Petitioners requested rehearing en banc, which the
Third Circuit denied. Id. 111a. This petition followed.
REASONS THE PETITION
SHOULD BE DENIED
The petition should be denied because the court of
appeals’ decision does not conflict with any circuit concerning the removability of state-law claims on federal
question grounds or any other issue; the Second Circuit’s decision in City of New York is legally and factually inapposite; the judicial consensus reflected in the
opinion below is correct; and the issues here are neither important nor frequently recurring.
There is no circuit conflict concerning the
application of the well-pleaded complaint rule
and its narrow exceptions.
1. Petitioners’ lead contention, that the circuits are
divided in answering whether “federal courts have jurisdiction under Section 1331 over claims artfully
13
pleaded under state law but necessarily governed by
federal law,” Pet. 12, is not accurate. Starting with
Grable in 2005, this Court has simplified and clarified
the principles governing the removability of state-law
claims for relief under 28 U.S.C. §§ 1331 & 1441. The
lower courts have uniformly applied those standards,
and petitioners have neither identified any circuit
conflict nor articulated any pressing need for the Court
to revisit its previous decisions.
Before Grable, no “well-defined test” existed to guide
lower courts in determining when a district court may
exercise federal question jurisdiction over a case
pleading only state-law claims for relief. Manning,
578 U.S. at 385. The “canvas” of opinions across the
judiciary addressing the question in fact “look[ed] like
one that Jackson Pollock got to first.” Gunn, 568 U.S.
at 258. Grable established a straightforward, fourpart test to resolve the lower courts’ confusion. See id.
at 258. The courts of appeals have consistently and
effectively applied that test in a broad range of cases,
including those in which the plaintiff ’s state-law
claims purportedly implicated federal common law.
See, e.g., Mitchell v. Advanced HCS, L.L.C., 28 F.4th
580, 588–89 (5th Cir. 2022); Morgan Cnty. War Mem’l
Hosp. ex rel. Bd. of Dirs. of War Mem’l Hosp. v. Baker,
314 F. App’x 529, 533–37 (4th Cir. 2008); Nicodemus
v. Union Pac. Corp., 440 F.3d 1227, 1234–37 (10th
Cir. 2006). Unsurprisingly, the cases petitioners cite
as evidence of a conflict all pre-date the Grable decision, and are either narrow outlier opinions or apply
an earlier formulation of the test this Court has since
“condensed” into Grable. See Gunn, 568 U.S. at 258.
2. The court of appeals below was correct that Sam
L. Majors Jewelers v. ABX, Inc., is “not good law” today to the extent it holds state law causes of action
14
can arise under federal law even if neither the Grable
nor complete preemption tests are satisfied. See Pet.
App. 25a. In Majors, the Fifth Circuit held that a negligence action against an air carrier over lost cargo
arose under federal common law, “rely[ing] upon the
historical availability of this common law remedy” for
lost or damaged goods, “and the statutory preservation of the remedy” through a savings clause in the
Airline Deregulation Act of 1978. 117 F.3d 922, 925,
928, 929 & n.16 (5th Cir. 1997); 49 U.S.C. § 40120(c).
The court went out of its way to clarify that its decision was “a difficult one,” “heavily influence[d] by the
policy consideration” to avoid circuit splits, and its
“narrow holding” was “necessarily limited.” 117 F.3d
at 929 nn.15–16. Even in that specific context, moreover, this Court held two years prior that it was not
“plausible that Congress meant to channel into federal courts . . . pursuant to judicially fashioned federal
common law, the range of contract claims relating to
airline rates, routes, or services.” Am. Airlines, Inc. v.
Wolens, 513 U.S. 219, 232 (1995). It is thus not clear
that Majors is correct on its own terms, because when
Congress intends a federal cause of action to be exclusive and to abrogate state law within its scope, “it may
be expected to make that atypical intention clear.”
Empire Healthchoice, 547 U.S. at 698.
The Fifth Circuit has in any event abandoned any
prior endorsement of a separate federal common law
path to removal, and has held instead that state-law
causes of action arise under federal law “only if: (1)
the state law claims necessarily raise a federal issue
or (2) the state law claims are completely preempted
by federal law.” Bernhard v. Whitney Nat’l Bank, 523
F.3d 546, 551 (5th Cir. 2008). Post-Grable, the Fifth
Circuit has never cited Majors for any jurisdictional
holdings, and it has never suggested federal common
15
law creates a third exception to the well-pleaded complaint rule. The United States is correct in its Suncor
brief that “there is no sound reason to believe [based
on Majors] that the Fifth Circuit would reach a different conclusion than the Tenth Circuit in the circumstances of that case,” Suncor, U.S. Br. at 22, and that
statement is equally applicable here.
3. The Eighth Circuit’s decision in In re Otter Tail
Power Co., 116 F.3d 1207 (8th Cir. 1997), likewise
does not stand for a separate shortcut around the wellpleaded complaint rule, and does not conflict with the
court of appeals’ decision below. See Pet. 12–13. The
Eighth Circuit said as much in its recent Minnesota
decision: “The Energy Companies argue that artful
pleading is a separate exception to the well-pleaded
complaint rule. We have never applied the doctrine as
a standalone exception, so we decline to do so here.”
2023 WL 2607545, at *2 n.4 (citing In re Otter Tail).
In any event, the court in In re Otter Tail court stated that federal question jurisdiction exists over cases
“in which a well-pleaded complaint establishes either
that federal law creates the cause of action or that the
plaintiff ’s right to relief necessarily depends on resolution of a substantial question of federal law.” 116
F.3d at 1213 (citation omitted). That is exactly the
rule this Court synthesized into Grable eight years
later: “For statutory purposes, a case can ‘aris[e] under’ federal law in two ways,” namely where “federal
law creates the cause of action asserted,” and in the
“ ‘special and small category’ of cases” that satisfy
Grable’s four-part test. Gunn, 568 at 257–58; see also
Suncor, U.S. Br. at 20 (Eighth Circuit in In re Otter
Tail applied a test “that this Court later clarified in
Grable”). As the United States explained in its brief
in Suncor, “the Eighth Circuit’s determination that
16
those particular allegations satisfied the pre-Grable
test does not conflict with the [Tenth Circuit’s] decision below,” and the same is true of the Third Circuit’s
decision here. Suncor, U.S. Br. at 20. The Eighth
Circuit today would resolve In re Otter Tail by applying Grable, and would likely reach the same result.
The other cases Petitioners cite as performing a
“Grable-type analysis,” Pet. 13, are in the same category as In re Otter Tail. Each asked whether the
plaintiff ’s complaint necessarily presented a substantial issue of federal law, and today each would be reThey do not stand for the
solved under Grable.2
vague, limitless, free-floating rule petitioners derive,
whereby state law claims “in an area governed exclusively by federal law arise under federal law . . . however they are pleaded, and whatever approach to federal jurisdiction applies.” Pet. 14. None of petitioners’
cases conflict with the court of appeals’ decision here.
4. Petitioners ultimately say the decision below
conflicts with decisions of the Second, Fifth, Eighth,
and Eleventh Circuits because it “skip[ped] the threshold question” of “whether respondents engaged in artful pleading by framing their claims in state-law
terms.” Pet. 15. That is wrong on its own terms.
The other courts, like the Third Circuit, have recognized that “artful pleading” is another name for complete preemption. The Second Circuit has held, for
example, that “[t]he artful pleading rule applies when
Congress has either (1) so completely preempted, or
entirely substituted, a federal law cause of action for a
Newton v. Capital Assurance Co., 245 F.3d 1306, 1308–09
(11th Cir. 2001); Torres v. S. Peru Copper Co., 113 F.3d 540, 542–
43 (5th Cir. 1997); Republic of Philippines v. Marcos, 806 F.2d
344, 352, 354 (2d Cir. 1986).
2
17
state one . . . or (2) expressly provided for the removal
of particular actions asserting state law claims in
state court.” Romano v. Kazacos, 609 F.3d 512, 519
(2d Cir. 2010) (citing Beneficial Nat’l Bank, 539 U.S.
at 6). “Bringing only a state law claim does not constitute artful pleading, as a plaintiff is free to ignore the
federal question and pitch his claim on the state
ground to defeat removal.” Russell v. Legal Aid Soc’y
of N.Y., 200 F. App’x 37, 38 (2d Cir. 2006) (cleaned up).
The Fifth Circuit has likewise held that “[w]ithout
complete preemption, the artful pleading doctrine does
not apply.” Waste Control Specialists, LLC v. Envirocare of Texas, Inc., 199 F.3d 781, 783 (5th Cir. 2000); see
also Bernhard, 523 at 551 (“[W]e have said that the
artful pleading doctrine applies only where state law is
subject to complete preemption.”). The Eleventh Circuit does not appear to have ever invoked the artful
pleading doctrine outside the context of complete preemption, and has at least twice declined to extend the
doctrine to other bases for jurisdiction. See DeRoy v.
Carnival Corp., 963 F.3d 1302, 1310 n.11 (11th Cir.
2020) (admiralty jurisdiction); Scimone v. Carnival
Corp., 720 F.3d 876, 885 (11th Cir. 2013) (diversity jurisdiction under the Class Action Fairness Act). Finally, as already stated, the Eighth Circuit has “never applied the doctrine as a standalone exception” to the
well-pleaded complaint rule, and expressly declined to
do so in Minnesota. 2023 WL 2607545, at *2 n.4. There
is simply no disagreement between any of these courts
on the well-pleaded complaint rule’s application.
The court of appeals’ decision here does not
conflict with City of New York v. Chevron Corp.
The decision below is also not in conflict with the
Second Circuit’s decision in City of New York for two
separate reasons, one procedural and one substantive.
18
First, the Second Circuit affirmed an order granting a
motion to dismiss for failure to state a claim based on
an ordinary preemption defense, in a case filed in federal court on diversity jurisdiction grounds. The court
of appeals below, as well as the Second Circuit itself in
City of New York, expressly acknowledged that the decisions addressed different issues and were not in conflict. Second, the complaints and theories of liability
under state law in the two cases are materially different, and City of New York’s analysis would not apply
to Delaware’s claims even if that case was correctly
decided, which Delaware does not concede.
1. The Second Circuit’s decision is, by its own reckoning, entirely consistent with the many decisions ordering remand in climate-related tort and consumer
protection cases. The plaintiff New York City there
brought state law tort claims against oil and gas companies in federal district court for allegedly contributing to client change, and the district court ruled those
claims were preempted. See 993 F.3d at 88–89. The
Second Circuit affirmed dismissal under Fed. R. Civ. P.
12(b)(6), but went out of its way to “reconcile [its] conclusion” with with “the parade of [other] recent opinions holding that state-law claims for public nuisance
brought against fossil fuel producers do not arise under
federal law” for purposes of removal jurisdiction. Id. at
93. The Second Circuit acknowledged that, under the
well-pleaded complaint rule, “the fact that a defendant
might ultimately prove that a plaintiff ’s claims are preempted under federal law does not establish that they
are removable to federal court.” Id. at 94 (quoting Caterpillar, 482 U.S. at 398, in parenthetical) (cleaned up).
Because New York City had “filed suit in federal court
in the first instance,” however, the court was “free to
consider the [defendants’] preemption defense on its
own terms, not under the heightened standard unique
19
to the removability inquiry.” Id. at 94. For that reason,
the Second Circuit concluded that its preemption finding did not conflict with “the fleet of [other] cases” holding that “anticipated defense[s]” cannot “singlehandedly create federal-question jurisdiction under 28
U.S.C. § 1331 and the well-pleaded complaint rule.” Id.
The Third Circuit took the City of New York opinion
at its word, holding that the decision “involved another ordinary-preemption defense to a case first filed in
federal court,” “did not even try to check the boxes
needed for complete preemption” that could have hypothetically rendered the case removable if it had
been initiated in state court, and did not “suggest another way to get there.” Pet. App. 24a. To the contrary, it “acknowledge[ed] that its preemption analysis might not satisfy the ‘heightened standard unique
to the removability inquiry,’ ” because that question
was not before it. See id. (quoting City of New York,
993 F.3d at 93–94). The First, Fourth, and Tenth Circuits also recently addressed City of New York in affirming orders granting remand in similar cases and
held that it was not in conflict. See Rhode Island, 35
F.4th at 55; Baltimore, 31 F.4th at 203; Suncor, 25
F.4th at 1262. Each of those courts held that City of
New York was in a “completely different procedural
posture” and not instructive on the jurisdictional
questions at issue in those appeals. Baltimore, 31
F.4th at 203; see also Rhode Island, 35 F.4th at 55
(finding City of New York “distinguishable” because
the plaintiff “filed suit in federal court in the first instance (relying on diversity jurisdiction)” (citation
omitted)); Suncor, 25 F.4th at 1262 (“Importantly,
[New York City] initiated the action in federal court,
and thus, the issues before the district court and the
circuit were not within the context of removal.”); Suncor, U.S. Br. at 17 (“nothing in the Second Circuit’s
20
decision conflicts with the court of appeals’ decision”
in that case). There is no conflict between the City of
New York opinion and the unanimous holdings of six
other circuits affirming remand.
2. Even if City of New York’s ordinary-preemption
analysis were relevant to the question of removal jurisdiction, petitioners are still wrong that the circuits
are divided over “whether claims seeking relief for
harms allegedly caused by transboundary emissions
are necessarily governed by federal law,” Pet. 17, as
the United States aptly explained in Suncor. See U.S.
Br. at 18.
Petitioners assert that the Second Circuit held any
claim “for injuries caused by the effects of interstate
greenhouse gas emissions on global climate change,”
“ ‘must be brought under federal common law.’ ” Pet.
18 (quoting City of New York, 993 F.3d at 95). But as
the United States correctly explains, “while that language viewed in isolation might suggest that federal
common law continues to govern in this area, the very
next sentence of the Second Circuit’s opinion recognized that ‘the Clean Air Act displaces federal common law claims concerned with domestic greenhouse
gas emissions.’ ” Suncor, U.S. Br. at 18 (quoting City
of New York, 993 F.3d at 95). The Second Circuit further stated that “resorting to state law on a question
previously governed by federal common law is permissible only to the extent ‘authorize[d]’ by federal statute,” and held that “the Clean Air Act does not authorize the type of state-law claims the City seeks to
prosecute.” City of New York, 993 F.3d at 98–99. The
court thus “recognized that claims premised on domestic emissions are no longer governed by federal
common law,” but nonetheless “viewed the prior applicability of federal common law as relevant in deter-
21
mining the post-Clean Air Act viability of state-law
claims.” Suncor, U.S. Br. at 19. It did not hold that
federal common law still “governs” all civil cases involving air pollution, but rather viewed the defunct
federal common law as informative to understanding
the Clean Air Act’s preemptive scope. “[N]othing in
the [Third] Circuit’s decision here conflicts with that
analysis, since the [Third] Circuit did not address
whether the Clean Air Act authorized or preempted
respondents’ claims.” Id. The courts reached different results because they answered different questions
to resolve different issues.
3. The City of New York decision also is not in conflict with the court of appeals’ rulings here because
Delaware’s claims target qualitatively different tortious conduct than those before the Second Circuit.
The plaintiff in City of New York sought to hold fossilfuel companies “strict[ly] liab[le]” for climate impacts
caused by their “lawful commercial activity,” meaning
the defendants’ lawful production, promotion, and
sale of fossil fuels. 993 F.3d at 87, 93 (cleaned up). As
the Second Circuit observed, the complaint did not
“concern itself with aspects of fossil fuel production
and sale that [were] unrelated to emissions.” Id. at
97. Based on that understanding, the court concluded
that the plaintiff ’s “lawsuit would regulate cross-border emissions” because the defendants would need to
“cease global [fossil-fuel] production” if they “want[ed]
to avoid all liability.” Id. at 93.
Unlike the defendants in City of New York, under
Delaware’s complaint petitioners would not need to
“cease global [fossil-fuel] production” to avoid future
liability. City of New York, 993 F.3d at 93. If petitioners sold the same quantum of oil and gas without misleading the public and consumers, that conduct would
22
not give rise to liability on Delaware’s theory of the
case. There is no conflict between the court of appeals
opinion below and the Second Circuit’s decision in
City of New York, on any issue.
The decision below was correct.
The decision below correctly follows this Court’s
guidance on how to determine whether state-law
claims are removable based on federal question jurisdiction. The court of appeals in turn correctly held
that petitioners failed to satisfy any exception to the
well-pleaded complaint rule, because Delaware’s
claims are neither completely preempted by federal
statute nor removable under Grable.
1. The Third Circuit’s determination that federal
common law cannot provide a basis for overcoming
the well-pleaded complaint rule unless complete preemption or Grable is satisfied flows from this Court’s
instructions on the scope of arising-under jurisdiction.
It has been true for more than a century under the
well-pleaded complaint rule that a case arises under
federal law “only when the plaintiff ’s statement of his
own cause of action shows that it is based upon federal law.” Vaden, 556 U.S. at 60. “It does not suffice
that the facts alleged in support of an asserted statelaw claim would also support a federal claim.” Beneficial Nat’l Bank, 539 U.S. at 12 (Scalia, J., dissenting).
“Nor does it even suffice that the facts alleged in support of an asserted state-law claim do not support a
state-law claim and would only support a federal
claim,” because “[j]urisdiction may not be sustained
on a theory that the plaintiff has not advanced.’ ” Id.
(quoting Merrell Dow Pharms., 478 U.S. at 809 n.6).
That is true even if federal law expressly preempts
the asserted state law cause of action; as early as
1936, the Court found “[b]y unimpeachable authority”
23
that “a suit brought upon a state statute does not arise
under an act of Congress or the Constitution of the
United States because prohibited thereby.” Gully,
299 U.S. at 116.
Petitioners’ contention that Delaware’s claims “are
governed by federal law [and] could have been filed in
federal court in the first instance” because they are
“based on the alleged harms to respondents arising
from global climate change,” and are only “artful[ly]
plead[ed]” under state law, is wrong for multiple reasons. First, as the court below correctly observed,
courts may “ ‘recharacteriz[e] a state law claim as a
federal claim removable to [federal] court’ . . . only
when some federal statute completely preempts state
law.” Pet. App. 23a (emphasis added) (quoting Goepel
v. Nat’l Postal Mail Handlers Union, 36 F.3d 306, 312
(3d Cir. 1994)). That is so because only “Congress may
so completely pre-empt a particular area that any civil complaint raising” claims within that area “is necessarily federal in character.” Metro. Life, 481 U.S. at
63–64. This Court has held that “[i]f Congress intends
a preemption instruction completely to displace ordinarily applicable state law, and to confer federal jurisdiction thereby, it may be expected to make that atypical intention clear,” Empire Healthchoice, 547 U.S. at
698, and has been “reluctant to find that extraordinary pre-emptive power” even within federal statutory schemes that are expansive, detailed, and national
in scope, see Metro. Life, 481 U.S. at 65. Judge-made
law should not and cannot have the same force.
Petitioners say “[t]here is no plausible reason why”
only federal statutes and not federal common law
should be capable of carrying complete preemptive
force, Pet. 30 (citation omitted), but the reasons for
that limitation are obvious. Petitioners’ theory would
24
allow district judges to craft new substantive federal
law, then determine that the newly minted law preempts all state law within its field and that civil claims
within its scope are subject to exclusive federal jurisdiction, all with no guidance from Congress. The court
of appeals correctly declined to accept petitioners “new
form of complete preemption” that “relies not on statutes but federal common law.” Pet. App. 24a. The
problems that theory would engender as to both federal separation of powers and federalism principles
are self-evident and enormous.
2. The court of appeals also correctly rejected petitioners’ Grable arguments, because no element of Delaware’s state law claims turns on a question of federal
law. Petitioners do not identify, or even purport to
identify, any specific element of any of Delaware’s
causes of action that require proof on an issue of federal law, and did not do so below. The First, Fourth,
Ninth, and Tenth Circuits, in addition to the court of
appeals here, have all held that claims like Delaware’s
are not removable under Grable. See Suncor, 25 F.4th
at 1265–71; Rhode Island, 35 F.4th at 56–57; San Mateo, 32 F.4th at 746–48; Baltimore, at 208–15; Oakland, 969 F.3d at 906–07.
A federal issue is “necessarily raised” by a state
cause of action within the meaning of Grable only
when a “question of federal law is a necessary element
of one of the well-pleaded state claims.” Franchise
Tax Bd., 463 U.S. at 13. An “element” is a “constituent part of a claim that must be proved for the claim
to succeed.” Black’s Law Dictionary, Element (11th
ed. 2019). In Gunn, for example, the plaintiff brought
a legal malpractice claim under Texas law, for which
the plaintiff was required to “establish four elements”
time-honored at common law: duty, breach, causation,
25
and damages. 568 U.S. at 259. “[T]he causation element in turn required a ‘case within a case’ analysis of
whether, had [a certain] argument been made, the
outcome of the earlier litigation would have been different.” Id. (citation omitted). The underlying “earlier litigation” was a federal patent infringement case,
and thus the plaintiff had to prevail on specific issues
of federal patent law, and show that he would have
prevailed on them in the prior litigation, as a prima
facie element of his Texas malpractice claim. See id.
In Empire Healthchoice, by contrast, the Court acknowledged the United States’ “overwhelming interest in attracting able workers to the federal workforce,” but held that interest did not interpose a
federal law element in “state-court-initiated tort litigation” by a health insurer for reimbursement from
one if its insureds who was a federal employee. 547
U.S. at 701. Here, petitioners say this case broadly
implicates federal interests because it alleges widespread environmental harms, but they do not point to
a specific element of Delaware’s claims that require
proof on a federal issue, because none exists. See also
Oakland, 969 F.3d at 906 (no substantial federal issue
raised where “[r]ather than identify a legal issue, the
[defendants] suggest[ed] that the Cities’ state-law
claim implicates a variety of ‘federal interests’ ”).
The error petitioners purport to identify in the Third
Circuit’s Grable analysis is difficult to interpret, but it
appears circular. Instead of pinpointing a substantial
federal issue, they repeat their “central contention”
that Delaware’s “claims necessarily sound in, and
thus must proceed under, federal law.” Pet. 27. And
therefore, they say, presumably every element of Delaware’s “nominally state-law tort claims” requires “favorable resolution of a question of federal law.” Id. 28.
And therefore because elements of the claims are fed-
26
eral, Grable is satisfied and Delaware’s claims arise
under federal law. Id. Restated more straightforwardly, petitioners’ logic appears to be as follows: 1)
Delaware’s claims arise under federal law because
Grable is satisfied. 2) Grable is satisfied because each
element of Delaware’s claims is federal. 3) Each element of Delaware’s claims is federal because the
claims arise under, or “necessarily sound in,” federal
law. That chain of reasoning just begs the question of
whether the case is removable, and the Third Circuit
correctly rejected it.
The Question Presented is minimally important
and this case is a poor vehicle for addressing it.
The Question Presented has minimal importance
both practically and legally. The legal questions at
issue are extremely narrow and can arise only in a
tiny sliver of cases, and the limited jurisdictional issues that are raised are unlikely to have significant
impacts outside this case and those cases like it, discussed above. This petition is a poor vehicle to address many of the arguments petitioners press, moreover, because they were not decided by the Third
Circuit below and are not before the Court.
First, the questions decided below are not broadly
applicable or common, and petitioners do not seriously
contend otherwise. Petitioners essentially concede the
point, saying the Court should “clarify a uniform removal right for energy companies sued on interstateand international-emissions-related grounds,” and
“clarify the enduring role of federal [common] law as
the rule of decision for claims based on interstate and
international emissions.” Pet. 30. On its own terms,
those are questions specific to this case and materially
similar cases. Petitioners identify no other circumstances in which the Question Presented makes a dif-
27
ference; they do not point to decisions in which it has
arisen, or even generally describe how it might impact
defendants other than themselves. But the special
treatment they seek would disrupt an established and
indeed foundational rule of federal jurisdiction, to the
detriment of other litigants and the judicial system as
a whole. The Court should not grant the petition to
consider a tailor-made jurisdictional rule for a single
category of claims against a single category of defendants, at the expense of well-understood standards the
Court has taken pains to enunciate.
Petitioners are correct as a general policy principal
that “administrative simplicity is a major virtue in a
jurisdictional statute,” Hertz Corp. v. Friend, 559 U.S.
77, 94 (2010), and the boundaries between state and
federal jurisdiction should be clear. They identify no
specific “conflicting and uncertain jurisdictional rules”
plaguing litigants or the lower courts, however, see
Pet. 29, precisely because this Court has through the
Grable line of cases simplified and clarified the circumstances under which a state-law cause of action
arises under federal law for purposes of removal. The
Court’s precedent “provides ready answers to jurisdictional questions” and “gives guidance whenever borderline cases crop up,” Manning, 578 U.S. at 392, including in this case and cases like it. There is no
problem for the Court to resolve. Adopting the jurisdictional rule petitioners seek would complicate the
removal analysis, not simplify it.
Petitioners’ separate contention that the Third Circuit “misapprehended the point” of petitioners’ Grable
argument and erred in holding that the potential “applicability of federal common law merely gives rise to
an ‘ordinary preemption . . . defense,’ ” Pet. 27 (quoting
Pet. App. 26a), is both an incorrect assessment of the
28
Third Circuit’s analysis and plainly does not present an
important or frequently recurring question. This
Court’s rules make clear that “[a] petition for a writ of
certiorari is rarely granted when the asserted error
consists of . . . the misapplication of a properly stated
rule of law,” S. Ct. R. 10, and that is the most petitioners say about the Grable holding below. “This Court
will intervene only in what ought to be the rare instances where the standard appears to have been misapprehended or grossly misapplied,” and petitioners at
most find fault with the Third Circuit’s application of
the correctly stated Grable rule. See Mobil Oil Corp. v.
FPC, 417 U.S. 283, 310 (1974). Even if petitioners were
correct that the Third Circuit reached the wrong result,
and the unanimous weight of authority shows that it
did not, “[t]he Court does not sit simply to correct such
errors.” Shapiro, S. Ct. Practice, § 4 (2021 ed.).
Second, petitioners’ contention that this case is important “because of petitioners’ vital role in ensuring
a steady supply of oil and gas for domestic use and in
support of the U.S. military,” Pet. 30, is at best highly
generalized and is not supported by the United States’
brief in Suncor. Petitioners assert that “[t]he United
States has recently faced record high gas prices” and
that “the conflict in Ukraine” has made oil and gas
resources more important, both for civilians and for
the military. See id. But the United States as amicus
in Suncor did not discuss any of these concerns, did
not point to any other reasons the Question Presented
is nationally important, and recommended that the
petition should be denied. See, e.g., Suncor, U.S. Br.
at 1. The United States does not appear to believe the
Question Presented is important outside the confines
of this case. Moreover, petitioners have not shown
how liability for past deceptive marketing practices
would affect oil and gas supply and production going
29
forward. There is a disconnect between their request
for special treatment and Delaware’s asserted claims—
Petitioners may wish to litigate the “strict liability”
claims that the Second Circuit held were preempted
in City of New York, but those are not the claims Delaware brought.
Finally, this petition is a poor vehicle to consider
the keystone of petitioners’ arguments—that Delaware’s claims “are necessarily and exclusively governed by federal law as a matter of constitutional
structure,” Pet. 10—because that issue was not decided below. The Third Circuit did not hold, one way or
the other, whether federal common law “governs” Delaware’s claims. As discussed above, the Third Circuit
did not directly contradict City of New York’s holding
that a “climate-change suit had to be decided under
federal, not state, law,” but rather held that City of
New York was inapposite because it “involved another
ordinary-preemption defense to a case first filed in
federal court.” Pet. App. 24a. Just as in Suncor, the
Third Circuit “did not address whether the Clean Air
Act authorized or preempted respondents’ claims,”
and “it would have been inappropriate for the [Third]
Circuit to opine on the proper way of conducting that
merits inquiry in a case where that court held that the
district court lacked subject-matter jurisdiction.” See
Suncor, U.S. Br. at 19. The issue is not before the
Court on this petition.
30
CONCLUSION
For the reasons stated the petition for writ of certiorari should be denied.
Respectfully Submitted,
chrISTIAn DouglAS wrIghT
Director of Impact Litigation
JAmeSon A.L. TweedIe
RAlPh k. DurSTeIn III
SAwyer M. TrAver
Deputy Attorneys General
Delaware Department of Justice
820 N. French Street
Wilmington, DE 19801
(302) 577-8600
christian.wright@delaware.gov
jameson.tweedie@delaware.gov
ralph.durstein@delaware.gov
sawyer.traver@delaware.gov
VIcTor M. Sher
Counsel of Record
MATThew k. EdlIng
STePhAnIe D. BIehl
MArTIn D. QuIñoneS
Sher Edling LLP
100 Montgomery St.,
Suite 1410
San Francisco, CA 94104
(628) 231-2500
vic@sheredling.com
matt@sheredling.com
stephanie@sheredling.com
marty@sheredling.com
Counsel for Respondent—State of Delaware
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