Opposition Brief — American Petroleum Institute, et al., Petitioners v. Minnesota

Supreme Court briefOct 23, 2023

Ask Donna

What actually matters in this document.

Text

No. 23-168

In The

Supreme Court of the United States

American Petroleum Institute, et al.,

Petitioners,

State of Minnesota,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit

RESPONDENT STATE OF MINNESOTA’S

OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

Keith Ellison

Attorney General,

State of Minnesota

Liz Kramer

Solicitor General

Oliver Larson

Peter Surdo

Assistant Attorneys General

State of Minnesota

445 Minnesota St., Ste. 1400

St. Paul, MN 55101

(651) 757-1291

oliver.larson@ag.state.mn.us

peter.surdo@ag.state.mn.us

Victor M. Sher

Counsel of Record

Matthew K. Edling

Martin D. Quiñones

Quentin C. Karpilow

Gretel Lee

Sher Edling LLP

100 Montgomery St., Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

marty@sheredling.com

quentin@sheredling.com

gretel@sheredling.com

Counsel for Respondent – State of Minnesota

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

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTION PRESENTED

Should this Court create a novel exception to the

well-pleaded complaint rule for claims “governed by

federal common law” that would purportedly confer

federal-question jurisdiction over respondent’s statelaw complaint, where: (1) seven circuit courts have

unanimously declined to recognize that exception in

cases materially similar to this one; and (2) removal

would not be proper in this case under any theory because (a) the common law on which petitioners rely

here has been displaced by a federal statute; (b) the

displacing statute does not completely preempt state

law; and (c) respondent’s state-law claims do not satisfy Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing, 545 U.S. 308 (2005), because they do not necessarily present a substantial

federal question that could be adjudicated in federal

court without upsetting the federal-state division of

judicial responsibility.

iii

TABLE OF CONTENTS

Page

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

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

FACTS AND PROCEDURAL HISTORY............

REASONS THE PETITION SHOULD

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

I. There is no circuit conflict..........................

A. The decision below does not conflict

with the pre-Grable cases petitioners

cite. ........................................................

B. In Connecticut v. Exxon Mobil Corp.,

the Second Circuit confirmed that

claims like Minnesota’s are not

removable, as every circuit to

consider the question has held.............

II. The decision below is correct......................

III. The Question Presented is neither

recurring nor important.............................

IV. This case is a poor vehicle..........................

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

TABLE OF AUTHORITIES

Page

Cases

Am. Elec. Power Co. v. Connecticut,

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

5, 13, 16, 20-22

Bd. of Cnty. Comm’rs of Boulder Cnty. v.

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

25 F.4th 1238 (10th Cir. 2022)...............

2, 5, 8, 19

Beneficial Nat’l Bank v. Anderson,

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

Bernhard v. Whitney Nat’l Bank,

523 F.3d 546 (5th Cir. 2008)............................

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

141 S. Ct. 1532 (2021)......................................

2, 7

California v. ARC Am. Corp.,

490 U.S. 93 (1989)............................................

Caterpillar Inc. v. Williams,

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

City & Cnty. of Honolulu v. Sunoco LP,

39 F.4th 1101 (9th Cir. 2022)..........................

City of Hoboken v. Chevron Corp.,

45 F.4th 699 (3d Cir. 2022).................... 1, 4, 15, 19

City of Milwaukee v. Illinois,

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

City of New York v. Chevron Corp.,

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

2, 3

City of Oakland v. BP PLC,

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

2, 5

Connecticut v. Exxon Mobil Corp.,

__ F.4th __, No. 21-cv-1446, 2023 WL 6279941

(2d Cir. Sept. 27, 2023).............. 1, 3, 12, 14-19, 25

TABLE OF AUTHORITIES—Continued

Page

Cnty. of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022)............................ 2, 5

Edenfield v. Fane,

507 U.S. 761 (1993)..........................................

Empire Healthchoice Assurance, Inc. v. McVeigh,

547 U.S. 677 (2006).......................................... 11, 24

Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394 (1981)..........................................

Fla. Lime & Avocado Growers, Inc. v. Paul,

373 U.S. 132 (1963)..........................................

Franchise Tax Bd. of State of Cal. v.

Constr. Laborers Vacation Tr. for S. Cal.,

463 U.S. 1 (1983)..................................... 10, 12, 15

Georgia v. Tenn. Copper Co.,

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

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

Eng’g & Mfg.,

545 U.S. 308 (2005)............................... i, 4, 11, 15

Gully v. First Nat’l Bank,

299 U.S. 109 (1936).......................................... 11, 23

Gunn v. Minton,

568 U.S. 251 (2013)................................

4, 9, 15-17

Hertz Corp. v. Friend,

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

Illinois v. City of Milwaukee,

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

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987)..........................................

vii

TABLE OF AUTHORITIES—Continued

Page

Jennings v. Rodriguez,

583 U.S. __, 138 S. Ct. 830 (2018)...................

Joseph v. United States,

574 U.S. 1038, 135 S. Ct. 705 (2014)...............

Lorillard Tobacco Co. v. Reilly,

533 U.S. 525 (2001)..........................................

Louisville & Nashville R. Co. v. Mottley,

211 U.S. 149 (1908)......................................... 23, 27

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

31 F.4th 178 (4th Cir. 2022).................. 1, 5, 19, 21

McKesson v. Doe,

592 U.S. __, 141 S. Ct. 48 (2020).....................

Merrell Dow Pharms. Inc. v. Thompson,

478 U.S. 804 (1986).......................................... 10, 23

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

Manning,

578 U.S. 374 (2016)............................... 4, 16, 29-31

Mesa v. California,

489 U.S. 121 (1989)..........................................

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987)...............................

4, 10, 11, 24

Missouri v. Illinois,

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

New Jersey v. City of New York,

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

Newton v. Cap. Assurance Co.,

245 F.3d 1306 (11th Cir. 2001)........................

R.R. Co. v. Mississippi,

102 U.S. 135 (1880)..........................................

viii

TABLE OF AUTHORITIES—Continued

Page

Republic of Philippines v. Marcos,

806 F.2d 344 (2d Cir. 1986).............................

Rhode Island v. Shell Oil Prods. Co.,

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

1, 5, 19

Rivet v. Regions Bank of La.,

522 U.S. 4705 (1998)........................................

Rodriguez v. FDIC,

140 S. Ct. 713 (2020)........................................

Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922 (5th Cir. 1997).......................... 15, 16

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

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

The Fair v. Kohler Die & Specialty Co.,

228 U.S. 22 (1913)............................................

Third St. & Suburban Ry. Co v. Lewis,

173 U.S. 457 (1899)..........................................

Torres v. S. Peru Copper Co.,

113 F.3d 540 (5th Cir. 1997)............................

Vaden v. Discover Bank,

556 U.S. 49 (2009).......................................... 10, 23

Statutes

15 U.S.C. § 78aa(a)..............................................

28 U.S.C. § 1331....................................... 9, 10, 19, 28

28 U.S.C. § 1334 ..................................................

28 U.S.C. § 1441....................................... 9, 10, 27, 28

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

28 U.S.C. § 1452...................................................

TABLE OF AUTHORITIES—Continued

Page

42 U.S.C. § 2014(hh)............................................

42 U.S.C. § 7401...................................................

Rules

Fed. R. Civ. P. 12(b)(6).........................................

Other Authorities

Arthur R. Miller, Artful Pleading: A Doctrine in

Search of Definition,

76 Tex. L. Rev. 1781 (1998).............................

INTRODUCTION

Respondent, the State of Minnesota, brought statelaw statutory and common-law claims against petitioners for their alleged long-standing pattern of deceptive

marketing. The State alleges petitioners have known

for decades that their fossil-fuel products create greenhouse-gas pollution that increases global atmospheric,

surface, and ocean temperatures, and were aware of

the catastrophic consequences that would result. They

nevertheless misled consumers and the public about

the existence of climate change and their products’ role

in causing it. That alleged deception is the gravamen of

this action. Seeking redress for deceptive marketing

and failure to warn is a traditional method by which

state attorneys general exercise their states’ police authority to protect consumers and the public, and to that

end the State filed this action in Minnesota state court,

alleging causes of action under Minnesota law.

The Eighth Circuit affirmed the District of Minnesota’s order remanding this case to state court, noting

that this was not “the first time [petitioners], or their

oil producing peers, have made these jurisdictional arguments,” and that its “sister circuits rejected them in

each case.” Pet. App. 3a. No court has adopted petitioners’ positions—the opinion below adds to a chorus

of seven appellate decisions across six other circuits

affirming remand in materially similar cases, to which

many petitioners here have been parties.1

See Rhode Island v. Shell Oil Prods. Co., 35 F.4th 44 (1st

Cir. 2022), cert. denied, 143 S. Ct. 1796 (2023); Connecticut v.

Exxon Mobil Corp., __ F.4th __, No. 21-cv-1446, 2023 WL 6279941

(2d Cir. Sept. 27, 2023); City of Hoboken v. Chevron Corp., 45

F.4th 699 (3d Cir. 2022), cert. denied, 143 S. Ct. 2483 (2023);

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

(4th Cir. 2022), cert. denied, 143 S. Ct. 1795 (2023); Cnty. of San

This Court denied petitions for certiorari from six of

those opinions just last term, each of which raised the

same Question Presented as this petition and relied on

the same arguments and authorities. On this Court’s

invitation, the United States argued as amicus curiae

in the Suncor case that “the petition for a writ of certiorari should be denied.” Brief for the United States

as Amicus Curiae at 1, Suncor, No. 21-1550 (Mar. 16,

2023). The United States reasoned—as the Eighth Circuit did here—that the plaintiffs’ complaints could not

be “removed to federal court on the ground that [their]

state-law claims should be recharacterized as claims

arising under federal common law” and “no exception

to the well-pleaded complaint rule applies.” Id. Moreover, “the Clean Air Act has displaced any relevant

federal common law in this area.” Id. The landscape is

the same now as it was earlier this year when the

Court denied identical petitions in Suncor and five

other cases. The result should be the same as well.

SUMMARY OF ARGUMENT

1. There is no circuit conflict on the Question Presented. See S. Ct. R. 10(a). The seven circuits that

have considered the issue are in alignment.

The petition wrongly argues the decision below is in

conflict with Second Circuit’s opinion in City of New

York v. Chevron Corp., 993 F.3d 81 (2d Cir. 2021). But

Mateo v. Chevron Corp., 32 F.4th 733 (9th Cir. 2022), cert. denied, 143 S. Ct. 1797 (2023); City & Cnty. of Honolulu v. Sunoco

LP, 39 F.4th 1101 (9th Cir. 2022), cert. denied, 143 S. Ct. 1795

(2023); Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor Energy

(U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022), cert. denied, 143 S.

Ct. 1795 (2023); see also City of Oakland v. BP PLC, 969 F.3d 895

(9th Cir. 2020) (vacating order denying remand), cert. denied,

141 S. Ct. 2776 (2021).

recent developments confirm no conflict exists. After

this petition was filed, the Second Circuit issued a decision affirming remand in a case materially similar to

this one, and expressly rejecting the exact “freestanding federal-common-law exception from the wellpleaded complaint rule” that petitioners advance here.

See Connecticut, 2023 WL 6279941, at *7. The Connecticut opinion—authored by the same judge who

wrote City of New York—found that the defendant’s

grounds for removal were “well-trodden by our sister

circuits,” and “join[ed] them” in holding that the statelaw consumer-protection claims alleged there were

not removable. See id. at *15.

Further, the City of New York decision did not consider subject-matter jurisdiction at all. Instead, it affirmed dismissal for failure to state a claim in a diversity case originating in federal court. See 993 F.3d at

85–86, 88. The court expressly “reconcile[d]” its conclusions with the “parade of recent opinions” affirming remand in analogous cases like this one, because

“their reasoning does not conflict with [its] holding.”

Id. at 93–94. The subsequent Connecticut opinion

confirms that the circuits agree on the jurisdictional

question at issue here.

Petitioners cite a handful of additional outdated

cases that likewise do not demonstrate any conflict.

See Pet. 12–14. None address whether congressionally

displaced federal common law could convert state-law

claims into federal ones for jurisdictional purposes,

which is what petitioners argue for here. Plus, they all

predate this Court’s efforts to circumscribe the removability of state-law claims in the Grable line of cases,

discussed further below. Those earlier decisions are

“not good law” to the extent they purport to recognize

additional exceptions to the well-pleaded complaint

rule, Hoboken, 45 F.4th at 708, and are otherwise consistent with the decision below.

Petitioners’ authorities did not demonstrate the existence of a circuit split six months ago. They still do not.

2. The circuits are aligned in their analysis and results because they apply this Court’s precedents correctly, as did the decision below.

This Court has acknowledged its prior caselaw construing the federal-question jurisdiction statute “was

for many decades . . . highly ‘unruly.’ ” Merrill Lynch,

Pierce, Fenner & Smith Inc. v. Manning, 578 U.S. 374,

385 (2016) (quoting Gunn v. Minton, 568 U.S. 251, 258

(2013)). But it has since worked to synthesize “that

muddled backdrop” into “what we now understand as

the ‘arising under’ standard.” Id. Beginning with Grable & Sons Metal Products, Inc. v. Darue Engineering

& Manufacturing, 545 U.S. 308 (2005) (“Grable”), the

Court “condensed [its] prior cases” into a straightforward test. Gunn, 568 U.S. at 258. A claim arises under

federal law for statutory purposes where “federal law

creates the cause of action asserted,” or where 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.” Id. Rarely, a state cause of action may

also arise under federal law where Congress has “so

completely pre-empt[ed] 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.

Petitioners seek to avoid both Grable and complete

preemption by invoking and then misapplying the

“artful pleading principle.” Pet. 28. They assert that

some state-law causes of action “inherently are federal claims, arising under federal law” regardless how

they are pleaded, because they involve subjects that

are “necessarily and exclusively governed by federal

common law.” Id. But the court below noted that it

had never treated “artful pleading” as a “standalone

exception” to the well-pleaded complaint rule independent of complete preemption, and held that federal

common law cannot completely preempt state law because, by definition, it “does not express congressional

intent of any kind.” See Pet. App. 5a n.4 & 7a. The

court of appeals correctly held that petitioners’ attempts to broaden the “artful pleading principle”

would contravene this Court’s careful progress settling the boundaries for arising-under jurisdiction.

Even if petitioners’ artful pleading theory had precedential support, it could not apply in this case. This

Court held twelve years ago that the federal common

law of air pollution nuisance, on which petitioners

rely, 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. Every court to consider the question has

concluded that a defendant “cannot premise removal

on a federal common law that no longer exists.” Rhode

Island, 35 F.4th at 53–54; see also Baltimore, 31 F.4th

at 204–07; San Mateo, 32 F.4th at 747; Oakland, 969

F.3d at 906; Suncor, 25 F.4th at 1260.

3. The petition should also be denied because the

Question Presented is neither important nor frequently recurring. See S. Ct. R. 10(c). 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 in jurisdictional analysis the

Court could relieve by hearing this case.

Petitioners argue this petition presents “enormous

stakes as it relates to the national-security, economic,

and energy policy of the United States.” Pet. 31. Tellingly, however, the United States did not address either military readiness or civilian energy resources in

its amicus brief in Suncor. And as the United States

explained in that same brief, “all five courts of appeals

that have considered the issue have rejected the position that the government took” in support of the petitioners in the Baltimore case. Suncor, U.S. Br. at 7.

The Second and Eighth Circuits have since joined the

consensus. The fact that the United States “reexamined its position” on the certworthiness of the Question Presented in light of that unanimous authority

does not show the question is important. See id.

4. Finally, this petition is not a viable vehicle to resolve the Question Presented. As petitioners concede,

the Eighth Circuit did not consider or resolve whether

federal common does or could “govern” the State’s

claims. This Court would therefore be required to resolve the issue in petitioners’ favor in the first instance

to reverse.

The petition should be denied.

FACTS AND PROCEDURAL HISTORY

The State brought this matter in Minnesota state

court. Like plaintiffs in other analogous circuit decisions affirming remand, the State “sued various energy companies for promoting fossil fuels while allegedly concealing their environmental impacts,”

asserting state law claims “centered on the defendants’ alleged failure to warn about the dangers of

their products—and the injuries the [State] says it

suffered as a result.” BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1535–36 (2021) (addressing scope of appellate jurisdiction over order

granting remand). The complaint “alleges that [petitioners] developed a widespread campaign to deceive

the public about the dangers of fossil fuels and to undermine the scientific consensus linking fossil fuel

emissions to climate change.” Pet. App. 29a.

Petitioners removed, asserting seven different theories of federal jurisdiction, among them federal-question jurisdiction premised on federal common law and

federal-question jurisdiction premised on Grable. See

id. 33a. The district court remanded, rejecting each

basis for removal. The court found that “the State’s

action here is far more modest than the caricature defendants present,” holding that “[s]tates have both the

clear authority and primary competence to adjudicate

alleged violations of state common law and consumer

protection statutes, and a complex injury does not a

federal action make.” Id. 57a.

As relevant to the Question Presented, the district

court held that the State’s claims do not arise under

federal law. The court held that petitioners’ federalcommon-law theories “lack[ed] a substantial relationship to the actual claims alleged and would require

the Court to invent a separate cause of action” not

pleaded in the complaint. Id. 41a. The court declined

to hold that “implied federal common law claims establish a separate and independent exception to the

well-pleaded complaint rule,” which would be “contrary to Supreme Court precedent establishing the

specific and defined parameters for federal jurisdic-

tion over exclusively state law claims.” Id. Adopting

petitioners’ reasoning would “not [be] a sound foundation for asserting federal jurisdiction.” Id. 41a–42a.

The Eighth Circuit affirmed. The court stated that

“[t]here are two important exceptions to the wellpleaded complaint rule,” namely complete preemption

and Grable. Pet. App. 5a. It reasoned that the complete preemption doctrine “ask[s] whether Congress

intended a federal statute to provide ‘the exclusive

cause of action for the claim asserted and also set forth

procedures and remedies governing that cause of action.’ ” Pet. App. 6a (quoting Beneficial Nat’l Bank v.

Anderson, 539 U.S. 1, 8 (2003)). Federal common law

thus could not completely preempt the State’s claims

because it provides “no substitute federal cause of action for the state-law causes of action Minnesota

brings,” and “more importantly” because federal common law “does not express Congressional intent of any

kind—much less intent to completely displace any

particular state-law claim.” Id. 7a.

With respect to Grable, the court of appeals stated

that while petitioners “list[ed] a variety of federal interests potentially impacted should a court hold them liable,” they did not identify any “specific elements of Minnesota’s claims” that would “require the court to

interpret and apply federal common law or second-guess

Congress’s cost-benefit rationales” in regulating fossil

fuels. Id. 9a–10a. The court held to the contrary that

“none of Minnesota’s claims try to hold [petitioners] liable for production activities—only marketing.” Id. 17a.

As such, “any implied conflict between the . . . state-law

claims and federal cost-benefit determinations speaks

to a potential defense on the merits of those claims, specifically a preemption defense, rather than to the jurisdictional issue.” Id. 10a (quoting Suncor, 25 F.4th at

1266). Because no federal issue is necessarily raised in

the State’s complaint, “the Grable exception to the wellpleaded complaint rule does not apply.” Id.

Concurring, Judge Stras “agree[d] with the court

that, as the law stands now, the suit does not ‘aris[e]

under’ federal law.” Id. 20a. Judge Stras nonetheless

wrote that because this case involves the “global issue”

of climate change, on which states have “strong views,”

it is “in effect, an interstate dispute,” in the sense of

being a “disput[e] between states.” Id. 21a. He continued that “somehow, when interstate disputes are litigated through the surrogate of a private party as the

defendant, fifty state courts get to handle them.” Id.

24a. Citing precedent predating the 1887 and 1888

statutes that have carried forward into 28 U.S.C.

§§ 1331 and 1441, Judge Stras offered that “perhaps

for a ‘uniquely federal interest’ like interstate pollution,

it should still be” possible to exercise federal-question

jurisdiction based on an anticipated federal defense,

“even if ‘the claim . . . might[ ] possibly be determined

by reference alone to state enactments.’ ” Id. 25a (quoting R.R. Co. v. Mississippi, 102 U.S. 135, 140 (1880)).

Judge Stras concluded, however, that “even the strongest arguments for removal don’t work here,” and concurred with the majority in full. Id. 26a, 27a.

REASONS THE PETITION

SHOULD BE DENIED

The basic principles governing federal-question jurisdiction are well understood. “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

district courts original subject-matter jurisdiction

over “all civil actions arising under the Constitution,

laws, or treaties of the United States,” and such ac-

tions “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,

which requires that jurisdiction under Sections 1331

and 1441 “must be determined from what necessarily

appears in the plaintiff’s statement of his own claim.”

Franchise Tax Bd. of State of Cal. v. Constr. Laborers

Vacation Tr. for S. Cal., 463 U.S. 1, 9–10 (1983) (quotation omitted). For more than 120 years, the wellpleaded complaint rule has been “the basic principle

marking the boundaries of the federal question jurisdiction of the federal district courts.” Metro. Life Ins.,

481 U.S. at 63; see also, e.g., Third St. & Suburban Ry.

Co v. Lewis, 173 U.S. 457, 460 (1899) (describing wellpleaded complaint rule as “thoroughly settled”). 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 Inc. v. Williams, 482 U.S. 386, 392 (1987). “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), “including the defense of

preemption,” Franchise Tax Bd., 463 U.S. at 14.

The well-pleaded complaint rule has two recognized

exceptions. The first is the complete preemption doctrine, which applies when “the pre-emptive 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 well-pleaded complaint

rule.’ ” Caterpillar, 482 U.S. at 393 (quoting Metro. Life

Ins., 481 U.S. at 65). A statute can completely preempt

state law “[o]nly if Congress intended [it] to provide the

exclusive cause of action” for claims within its scope.

Beneficial Nat’l Bank, 539 U.S. at 9. “If Congress intends a preemption instruction completely to displace

ordinarily applicable state law,” moreover, “and to confer federal jurisdiction thereby, it may be expected to

make that atypical intention clear” because doing so

necessarily impinges on state sovereignty. Empire

Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677,

698 (2006). This Court has thus been “reluctant to find

that extraordinary pre-emptive power,” Metro. Life

Ins., 481 U.S. at 65, and has identified only three statutes that wield it, see Beneficial Nat’l Bank, 539 U.S. at

2, none of which are at issue here.

The second recognized exception is Grable jurisdiction, which this Court developed to resolve lower

courts’ longstanding difficulty applying the wellpleaded complaint rule in cases where “a question of

federal law is lurking in the background” of an entirely state-law complaint. See Gully v. First Nat’l

Bank, 299 U.S. 109, 117 (1936). The Grable doctrine

applies to a “special and small category” of cases

pleaded under state law in which “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).

I. There is no circuit conflict.

There is no division among the circuits on the Question Presented, let alone an “entrenched” one requiring this Court’s intervention. Pet. 23. Every court confronting the issue has held that state-law claims like

the State’s—which allege petitioners “mounted an aggressive campaign” to “mislead consumers and the

general public about the scientific consensus around

climate change, the relationship between climate

change and their fossil-fuel products, and the urgency

of the dangers of climate change,” Pet. App. 31a–32a—

are not removable from state court.

Petitioners’ broad contention that “federal common

law provides a basis for removal of claims artfully pleaded under state law,” Pet. 16, 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 federal-question jurisdiction when they either (1) are completely preempted by a federal statute, or (2) satisfy the

four-part Grable test. No court recognizes the unguided

analysis petitioners advocate here, whereby a district

judge may squint at a state-law cause of action, determine it is “inherently federal in nature,” Pet. 21, then

“transform [the] state-law claim into a federal one”

based vaguely on “the structure of the constitution” and

rest its own jurisdiction on that finding. Pet. 29.

The decision below also does not conflict with City of

New York, because that case did not address subjectmatter jurisdiction. The Connecticut opinion, which did

consider removal jurisdiction, affirmed remand of materially similar state-law consumer protection claims.

The court rejected the defendant’s invitation to recognize new exceptions to the well-pleaded complaint rule

by “cast[ing] the artful-pleading doctrine in looser,

more conceptually capacious terms,” 2023 WL 6279941,

at *5, which was “really an invitation to find federalquestion jurisdiction on the basis of ordinary preemption,” id. at *6. Petitioners make the same invitation

here, and the circuits are unanimous that “[t]hat proposition . . . is contrary to ‘settled law’ dating back ‘since

1887.’ ” Id. (quoting Franchise Tax Bd., 463 U.S. at 14).2

Petitioners also argue that the Question Presented has “di-

A. The decision below does not conflict with

the pre-Grable cases petitioners cite.

Petitioners do not contend in this Court that the

State’s claims are completely preempted or that Grable is satisfied. The petition instead asks the Court to

grant review and carve out a novel exception to the

well-pleaded complaint rule applicable only to “claims

seeking redress for injuries allegedly caused by the effect of interstate greenhouse-gas emissions on the

global climate.” Pet. 3. Petitioners try to manufacture

a circuit conflict on that question, relying on the same

outdated cases this Court already considered when it

recently denied six petitions presenting the same issue. See Pet. 12–17. Their efforts fail for at least three

independent reasons.

1. None of petitioners’ pre-Grable decisions involved congressionally displaced federal common

law. Petitioners do not dispute that the Clean Air Act

displaced the federal common law of interstate air

pollution—the same body of judge-made law on which

they predicate removal. See Pet. 30. 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 by the courts. AEP, 564 U.S. at 423 (quoting City of Milwaukee v. Illinois, 451 U.S. 304, 314

(1981) (“Milwaukee II”)). As the United States explained in Suncor with respect to the Clean Air Act,

“far from expressing an intent that federal common

law be given complete-preemptive force with respect

vided two consecutive presidential administrations.” Pet. 21. Because that has nothing to do with whether “a United States court

of appeals has entered a decision in conflict with the decision of

another United States court of appeals,” S. Ct. R. 10(a), respondents discuss the United States’ position in Part III, infra.

to the sorts of claims that respondent[] allege[s],

Congress displaced any federal-common-law remedy

that respondent[] might otherwise have invoked.”

Suncor, U.S. Br. at 15.

Petitioners argue that federal common law might

provide a separate basis for federal-question jurisdiction, in derogation of the well-pleaded complaint rule,

even after Congress displaces that common law and

extinguishes the judiciary’s limited lawmaking authority. E.g., Pet. 12. But the circuits are not divided

on that issue. Petitioners do not identify any appellate

decision upholding jurisdiction on that basis, and the

State is aware of none.

2. Even if Congress had not displaced the federal

common law petitioners invoke, the decision below

would remain fully consistent with the results of petitioners’ pre-Grable cases. See Pet. 13–14.

In all but one of petitioners’ cases, the appellate

courts applied a precursor of the Grable test, holding

that federal-question jurisdiction existed because

the plaintiffs’ state-law claims necessarily raised “a

substantial question of federal law.”3 This Court

clarified that analysis in Grable: “claims recognized

under state law that nonetheless turn on substantial

questions of federal law” will “arise under” federal

law for purposes of federal subject-matter jurisdiction only when they (1) necessarily raise federal issues that are (2) substantial, (3) actually disputed,

Newton v. Cap. 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); compare Connecticut, 2023 WL 6279941,

at *7 (“We said nothing [in Marcos] to suggest the existence of a

freestanding ‘federal-common-law exception’ from the wellpleaded complaint rule.”).

and (4) capable of resolution in federal court without

disrupting the federal-state balance approved by

Congress. Grable, 545 U.S. at 312, 314; Gunn, 568

U.S. at 258. The Eighth Circuit applied Grable’s controlling analysis below, and concluded that “the complaint doesn’t ‘necessarily raise’ a federal issue” because “[a] federal issue is necessarily raised when it

‘is a necessary element of one of the well-pleaded

state claims’ in the plaintiff’s complaint” and “federal

law is not a necessary element to any of Minnesota’s

claims.” Pet. App. 9a–10a (quoting Franchise Tax

Bd., 463 U.S. at 13). Had the panel applied a less

precise articulation of the substantial-question standard drawn from earlier cases, it would have reached

the same conclusion.

That leaves Sam L. Majors Jewelers v. ABX, Inc.,

117 F.3d 922 (5th Cir. 1997); see Pet. 13. But as “most

courts recognize,” that decision is “not good law” to the

extent it endorsed an alternative exception to the

well-pleaded complaint rule for state-law claims “governed by” federal common law. Hoboken, 45 F.4th at

708. The Fifth Circuit itself appears to have abandoned any such endorsement, holding instead that

arising-under jurisdiction will lie over a state-law

claim “only if” the claim satisfies Grable or is completely preempted. Bernhard v. Whitney Nat’l Bank,

523 F.3d 546, 551 (5th Cir. 2008). Post-Grable, the

Fifth Circuit has never cited Sam L. Majors for any

jurisdictional holding, and has never suggested federal common law can provide an independent basis to

circumvent the well-pleaded complaint rule.

In any event, the “narrow holding” in Sam L. Majors is “necessarily limited” by two conditions not

present here. 117 F.3d at 929 nn. 15 & 16; see also

Connecticut, 2023 WL 6279941, at *8 (“[N]ot even

the Fifth Circuit panel that decided Sam L. Majors

Jewelers took its own holding at face value.”). First,

the plaintiff there alleged that an airline mishandled its jewelry, and the court identified a “clearly

established federal common law cause of action

against air carriers for lost shipments.” Sam L. Majors, 117 F.3d at 928. Second, Congress affirmatively

“preserv[ed]” that federal-common-law cause of action in the Airline Deregulation Act of 1978. Id.

Here, by contrast, petitioners identify no federalcommon-law cause of action that gives the State a

right to sue petitioners for the deceptive and wrongful promotion of their products, and Congress displaced the one body of federal common law petitioners say “governs.” See AEP, 564 U.S. at 423. There is

no reason to believe this materially different case

would be decided differently under whatever former

Fifth Circuit jurisprudence Sam L. Majors may represent.

3. Finally, even if there were some tension between

the decision below and petitioners’ pre-Grable cases,

that tension would only illustrate the previously

“muddled backdrop” of arising-under jurisprudence

that lower courts struggled to apply and this Court

has endeavored to clean up. Manning, 578 U.S. at 385.

“[F]or many decades” before Grable, there was no

“well-defined test” to determine whether federal-question jurisdiction existed over state-law causes of action. Id. The “canvas” of opinions on the subject looked

instead “like one that Jackson Pollock got to first.”

Gunn, 568 U.S. at 258. “It should [therefore] come as

no surprise that different circuits” attempting to apply the well-pleaded complaint rule have, over time,

“defined and classified [its] exceptions using slightly

different labels and subgroupings.” Connecticut, 2023

WL 6279941, at *6 n.1.

Beginning with Grable, this Court has sought to

“bring some order to this unruly doctrine.” Gunn, 568

U.S. at 258. It has succeeded. Today, courts in every

circuit use Grable to determine whether, absent complete preemption, a state-law claim arises under federal law for jurisdictional purposes. Grable and its

progeny successfully ended any disunity that existed

among the circuits.

B. In Connecticut v. Exxon Mobil Corp., the

Second Circuit confirmed that claims like

Minnesota’s are not removable, as every

circuit to consider the question has held.

Petitioners attempt to engineer a circuit split, relying on the Second Circuit’s decision in City of New

York. See Pet. 17–21. This Court denied certiorari petitions in six cases raising the same purported conflict

last term, see supra n.1, and there is no basis for the

Court to revisit those denials here. To the contrary,

the Second Circuit has since affirmed remand in the

materially similar Connecticut case, and rejected the

exact arguments petitioners advance.

1. The complaint in Connecticut brought claims under that state’s consumer protection statute, alleging

“that Exxon Mobil had engaged in a decades-long

‘campaign of deception’ to knowingly mislead and deceive Connecticut consumers about the negative climatological effects” of its fossil fuel. 2023 WL 6279941,

at *1. Exxon removed, asserting as petitioners do here

“that ‘the artful-pleading doctrine’ provides a broad,

flexible exception from the well-pleaded complaint

rule,” separate from the Grable and complete-preemption analyses. Id. at *5.

The court examined its precedent discussing the

doctrine, and held that “the ‘artful-pleading doctrine’

is simply a label for” the exercise of removal jurisdiction over a state-law claim that is completely preempted, or is expressly made removable by statute.

Id. at *6. The court rejected “Exxon Mobil’s argument

for a ‘federal-common-law exception’ [that] would appear to hinge on the proposition that the well-pleaded

complaint rule must yield not only in situations of

complete preemption, but also in certain situations of

ordinary preemption.” Id. at *6 (cleaned up). The court

was “wholly unpersuaded by Exxon Mobil’s efforts to

push the boundaries of the exceptions” to the wellpleaded complaint rule, id. at *8, and held that Connecticut’s claims did not arise under federal law and

were not removable on any basis, id. at *9–16. In both

reasoning and results, the Second Circuit aligns with

the decision below.4

2. The City of New York decision addressed an entirely different issue. There, the Second Circuit held

that certain state-law claims brought against oil-andgas companies were preempted, and affirmed dismissal under Fed. R. Civ. P. 12(b)(6). 993 F.3d at 88–89.

The court expressly “pause[d]” to “reconcile [its] conclusion” 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 (cleaned up). The Second Circuit acknowlPetitioners may reply that Connecticut illustrates a different

circuit split: the Second Circuit there declined to resolve whether

federal common law can ever “give rise to complete, jurisdictional preemption” while the Eighth Circuit here held that it cannot.

Compare 2023 WL 6279941, at *9 n.4, with Pet. App. 7a. But the

Second Circuit panel expressly stated that the issue would “have

to wait for another day,” because Exxon waived the argument.

2023 WL 6279941, at *9 n.4. The Second Circuit cannot conflict

with another court as to an issue it has declined to consider.

edged that, under the well-pleaded complaint rule,

“the fact that a defendant might ultimately prove that

a plaintiff’s claims are pre-empted 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). It thus concluded that

its holding did not conflict with the “fleet of [other]

cases” holding that “anticipated defenses”—including

defenses based on federal common law—cannot “singlehandedly create federal-question jurisdiction under 28 U.S.C. § 1331 in light of the well-pleaded complaint rule.” Id.

That conclusion has been reaffirmed by the First,

Third, Fourth, and Tenth Circuits, all of which addressed City of New York in affirming remand of analogous cases to state court. See Rhode Island, 35 F.4th

at 55; Hoboken, 45 F.4th at 708; Baltimore, 31 F.4th

at 203; Suncor, 25 F.4th at 1262. Even before the Connecticut ruling, those courts distinguished City of New

York based on its “completely different procedural

posture” and held that it shed no light on the removability of state-law claims. E.g., Baltimore, 31 F.4th at

203. And the Connecticut opinion affirmed remand,

expressly “declin[ing]” the defendant’s “invitation to

find federal-question jurisdiction on the basis of ordinary preemption.” 2023 WL 6279941, at *6; see also

id. at *9 n.4 (distinguishing City of New York).5

To the extent any tension might remain between Connecticut and City of New York, that tension does not “present a reviewable conflict, since such differences of view are deemed an

intramural matter to be resolved by the Court of Appeals itself.”

John Marshall Harlan, Manning the Dikes, 13 Rec. Ass’n B. N.Y.

City 541, 552 (1958); see also, e.g., Joseph v. United States, 574

U.S. 1038, 135 S. Ct. 705, 707 (2014) (Kagan, J., respecting denial of certiorari) (“[W]e usually allow the courts of appeals to

clean up intra-circuit divisions on their own.”).

II. The decision below is correct.

The decision below correctly follows this Court’s

precedent explaining how to determine whether a

state-law cause of action presents a federal question.

Petitioners’ contention that “[t]he artful-pleading

principle allows the removal of [Minnesota’s] claims”

notwithstanding the well-pleaded complaint rule because “claims alleging injury from interstate and international air pollution . . . inherently are federal

claims” governed by federal common law is wrong for

multiple reasons. Pet. 28. First, the State’s claims are

not within the scope of any body of federal common

law this Court has ever recognized. Second, the court

of appeals correctly held that jurisdiction could not be

sustained under the well-pleaded complaint rule or

its exceptions, because the State’s state-law claims

are not completely preempted and are not removable

under Grable.

1. Petitioners concede that “the Clean Air Act has

displaced the remedy for federal-common-law claims

involving interstate emissions,” Pet. 30, but nonetheless assert that federal common law still “governs”

and dramatically confines the lawmaking and law

enforcement authority of the states. That striking

proposition cannot be reconciled with this Court’s

analyses in AEP and Int’l Paper Co. v. Ouellette, 479

U.S. 481 (1987).

In Ouellette, the Court considered a preemption

challenge to state-law public nuisance claims that

were formerly governed by the federal common law of

interstate pollution. 479 U.S. at 484, 487. Because the

Clean Water Act had displaced that body of judgemade law, the Court framed the relevant inquiry as

whether the Act preempted state law—a question it

answered by conducting a traditional statutory preemption analysis. See id. at 491–500.

Twenty years later, this Court conducted the same

analysis when discussing the displacement of federal

common law as it related to greenhouse gas emissions—the same law petitioners invoke here. AEP,

564 U.S. at 429. After holding that the Clean Air Act

displaced the plaintiffs’ federal-common-law claims,

the Court remanded the plaintiffs’ state claims for further consideration by the lower courts, noting that

“the availability vel non of a state lawsuit depends,

inter alia, on the preemptive effect of the federal Act.”

Id. The Court did not directly or indirectly instruct

lower courts to borrow from the displaced federal common law to conduct that analysis. Id.6

These decisions make clear that “federal common

law ceases to exist” after it has been displaced by a

statute, leaving the statute as the sole basis for preempting or “control[ling]” a plaintiff’s state-law claims.

Baltimore, 31 F.4th at 204–05. To conclude otherwise

would be incompatible with this Court’s “commitment

to the separation of powers”—a commitment “too fundamental” to permit “rel[iance] on federal common

law” after Congress has spoken. Milwaukee II, 451

U.S. at 315 (quotations omitted).

In any event, the Eighth Circuit correctly held that

even assuming some federal common law of interstate

Petitioners read AEP as holding only that the CAA displaced

“the remedy for federal-common-law claims involving interstate

emissions,” Pet. 30 (emphasis added), but that misstates the decision. The Court held that Congress “displace[d] the claims the

plaintiffs s[ought] to pursue,” AEP, 564 U.S. at 415 (emphasis

added), because “[a]ny such claim would be displaced by the federal legislation authorizing EPA to regulate carbon-dioxide emissions,” id. at 423 (emphasis added).

pollution nuisance still exists, it “doesn’t occupy the

same substantive realm as [the] state-law fraud, negligence, products liability, or consumer protection

claims” the State brought here. Pet. App. 7a. This

Court has only ever applied the federal common law of

interstate pollution in nuisance cases where a sovereign State seeks to reduce or mitigate the amount of

pollution released from a specific out-of-state source.

See AEP, 564 U.S. at 421 (“Decisions of this Court . . .

have approved federal common-law suits brought by

one State to abate pollution emanating from another

State.”).7 Minnesota has not pleaded a nuisance claim.

There has never been a federal common law that

would apply to the State’s claims, precisely because

they vindicate the core state “interest in ensuring the

accuracy of commercial information in the marketplace,” Edenfield v. Fane, 507 U.S. 761, 769 (1993),

and target alleged misconduct the States have traditionally regulated, see, e.g., Lorillard Tobacco Co. v.

Reilly, 533 U.S. 525, 541–42 (2001) (identifying “advertising” as “a field of traditional state regulation”

(cleaned up)); California v. ARC Am. Corp., 490 U.S.

93, 101 (1989) (identifying “unfair business practices”

as “an area traditionally regulated by the States”);

Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S.

132, 150 (1963) (underscoring States’ “traditional

power to enforce otherwise valid regulations designed

See also Illinois v. City of Milwaukee, 406 U.S. 91, 107 (1972)

(“Milwaukee I”); New Jersey v. City of New York, 283 U.S. 473,

476–77, 481–483 (1931) (seeking “an injunction” that would “restrain[] the city from dumping garbage into the ocean or waters

of the United States off the coast of New Jersey and from otherwise polluting its waters and beaches”); Georgia v. Tenn. Copper

Co., 240 U.S. 650, 650–51 (1916) (seeking to enjoin copper smelters from discharging noxious gas); Missouri v. Illinois, 180 U.S.

208, 241–43, 248 (1901) (seeking to restrain sewage discharge).

for the protection of consumers.”). “There is no substitute federal cause of action for the state-law causes of

action Minnesota brings,” regardless whether some

vestigial common law survived displacement by the

Clean Air Act. Pet. App. 7a.

2. The Eighth Circuit’s determination that federal

common law cannot provide an independent short-cut

around the well-pleaded complaint rule—“[e]ven if

federal common law still exists in this space and provides a cause of action to govern transboundary pollution cases”—is also correct. See Pet. App. 7a. That conclusion flows from this Court’s clear guidance.

For more than a century, the Court has held 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

(quoting Louisville & Nashville R. Co. v. Mottley, 211

U.S. 149, 152 (1908)). “It does not suffice that the facts

alleged in support of an asserted state-law 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. Inc., 478 U.S. at 809 n.6). That is

true even if federal law preempts the state cause of

action. As early as 1936, the Court recognized that

“[b]y unimpeachable authority, 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.

The court of appeals observed that the well-pleaded

complaint rule has “two important exceptions,” name-

ly complete preemption and Grable. Pet. App. 5a. The

court then correctly reasoned that federal common law

could not completely preempt the State’s claims because “Congress has not acted,” so “[e]ven if federal

common law still exists in this space,” “the presence of

federal common law here does not express Congressional intent of any kind.” Pet. App. 7a. That holding correctly applies this Court’s precedent that 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

Ins., 481 U.S. at 63–64 (emphasis added), and “may be

expected to make that atypical intention clear” when it

is present, Empire Healthchoice, 547 U.S. at 698. This

Court has thus 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 Ins., 481 U.S. at 65.

Petitioners relatedly fault the court of appeals for

“treat[ing] the artful-pleading principle as synonymous with complete preemption,” Pet. 28, but that is

what this Court’s precedents hold. This Court recognizes, in petitioners’ words, “an ‘independent corollary’

of the well-pleaded complaint rule,” whereby “a plaintiff cannot ‘block removal’ by artfully pleading its

claims” to obscure their federal-law basis. Pet. 28

What the Court said in Caterpillar, however, is that

there “exist[s] . . . an ‘independent corollary’ to the

well-pleaded complaint rule, . . . known as the complete

pre-emption doctrine,” that operates 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

(cleaned up) (emphasis added). Citing the same authority relied on in Caterpillar, the Court reiterated a

decade later that “as an ‘independent corollary’ to the

well-pleaded complaint rule . . . [t]he artful pleading

doctrine allows removal where federal law completely

preempts a plaintiff’s state-law claim.” Rivet v. Regions

Bank of La., 522 U.S. 470, 475 (1998).8 The Court has

never held that federal common law may completely

preempt state law and has never applied the artful

pleading doctrine outside the context of complete preemption. The Court has certainly never suggested that

the constitution vests authority in federal judges to

craft common law rules with complete preemption’s

“extraordinary” preemptive power. See Caterpillar,

482 U.S. at 393 (cleaned up).

Still, 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. 29 (citation omitted). But the reasons

are obvious. Judge-made federal law “plays a necessarily modest role under a Constitution that vests the

Petitioners cite the second footnote in Federated Dep’t Stores,

Inc. v. Moitie, for its statement that a court should sometimes

“determine whether the real nature of the claim is federal, regardless of [the] plaintiff’s characterization.” 452 U.S. 394, 397

n.2 (1981). But the Court in Rivet expressly limited “Moitie’s

enigmatic footnote” to its “case-specific context,” because it

“caused considerable confusion in the circuit courts” and “will not

bear the heavy weight lower courts have placed on it.” 522 U.S.

at 477–78. See also Arthur R. Miller, Artful Pleading: A Doctrine

in Search of Definition, 76 Tex. L. Rev. 1781, 1781–82, 1800–18

(1998) (discussing “criticisms leveled against the artful-pleading

doctrine,” based in part on courts’ persistent “misreading of a

footnote” in Moitie, which Rivet “summarily rejects”). The Rivet

and Caterpillar opinions indicate that the “artful pleading” and

“complete preemption” doctrines are co-extensive. Cf. Connecticut, 2023 WL 6279941, at *6 (under circuit precedent, artful

pleading “is simply a label for” state-law claims that are either

completely preempted or expressly made removable by statute).

federal government’s ‘legislative Powers’ in Congress

and reserves most other regulatory authority to the

States,” see Rodriguez v. FDIC, 140 S. Ct. 713, 717

(2020), and petitioners’ theory would radically expand

federal courts’ substantive and jurisdictional lawmaking authority. In petitioners’ view, a district judge

presented with a complaint pleading only state-law

causes of action may (1) craft a new substantive rule

of federal common law, (2) hold that the newly minted

law replaces all state law within its field, including

the plaintiff’s claims, (3) hold that state causes of action within the new common law’s scope are thus actually federal claims, and then (4) bootstrap federalquestion jurisdiction over the complaint—all with no

guidance from Congress. Petitioners would not even

require the court to tether its decision to a specific federal statute or constitutional provision, if it finds “the

structure of the Constitution” supports “transform[ing]

a state-law claim into a federal one.” Pet. 29. Worse

still, petitioners say Congress would be powerless to

undo that ruling, even if it displaces the federal common law by statute—if a court determines federal

common law “governs” a certain subject, petitioners

say the states are forevermore constitutionally barred

from applying their laws to that subject, or even exercising jurisdiction over litigation pertaining to that

subject, even “after the statutory displacement” and

“even if federal law provides no remedy” for the plaintiff’s alleged injuries. See Pet. 30. The federalism and

separation of powers problems that follow from petitioners’ theory are self-evident and enormous. Understandably, no court has adopted that approach.

3. Petitioners’ separate insinuation that the court of

appeals was wrong to apply the well-pleaded complaint rule at all because “federal common law provides a basis for removal of claims artfully pleaded

under state law,” Pet. 16, is unsupportable and not a

basis for review. Relying on Judge Stras’s concurrence, Petitioners say “there are strong reasons to believe that claims such as respondent’s should proceed

in federal court,” Pet. 23, and “ ‘(p)erhaps for a uniquely federal interest like interstate pollution,’ removal of

a putative state-law claim ‘should’ be permissible,” irrespective of the well-pleaded complaint rule. Pet. 11

(quoting Pet. App. 25a). That position is irreconcilable

with the controlling statutes and a century of precedent interpreting them.

As noted above, Section 1441’s earliest ancestor was

enacted in 1887 as an amendment to the federal removal statute, and the Court has always “interpret[ed]

that amendment to authorize removal only where original federal jurisdiction exists.” Caterpillar, 482 U.S.

at 393. That is true, in turn, “when the plaintiff’s statement of his own cause of action shows that it is based

upon [federal] laws or th[e] Constitution.” Mottley, 211

U.S. at 152. The Court has repeatedly rejected “attempts to justify removal on the basis of facts not alleged in the complaint,” and repeatedly held that “[t]he

‘artful pleading’ doctrine cannot be invoked in such circumstances.” See Caterpillar, 482 U.S. at 397.

Judge Stras’s concurrence opines that removal jurisdiction sometimes “operate[s] in . . . confounding

way[s],” Pet. 25a, because “the complaint usually does

not say whether a federal defense is available and, if

so, whether anyone will raise it,” or “whether the federal issue, if raised, will play a ‘substantial’ role in the

litigation.” Pet. App. 25a. When “[n]one of those mysteries exist,” in Judge Stras’s view, and “no one doubts”

that a defendant will “raise a federal-preemption defense,” the case should come within the district courts’

federal-question jurisdiction. See id. But this Court

has time and again gauged the limits of federal-question jurisdiction conferred by Congress, and has time

and again held that “the party who brings a suit is

master to decide what law he will rely upon, and

therefore does determine whether he will bring a ‘suit

arising under’ ” the laws of the United States. See The

Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25

(1913). “[A]nd accordingly[,] jurisdiction cannot be

conferred by the defense, even when anticipated and

replied to” in the complaint. Id. The Court has repeated that construction of the federal-question and removal jurisdiction statutes countless times, and Congress has never changed the substance of either

Section 1331 or Section 1441.

When Congress determines federal jurisdiction is

necessary for a certain class of cases, it can enact jurisdictional statutes specific to that class, and has

done so many times. Officers of the United States may

remove state-law civil and criminal proceedings for or

relating to acts under color of office, for example, so

long as they present a colorable federal defense. See,

e.g., Mesa v. California, 489 U.S. 121, 139 (1989); 28

U.S.C. § 1442; see also, e.g., 28 U.S.C. §§ 1334, 1452

(providing original and removal jurisdiction over any

claim “arising in or related to” a bankruptcy proceeding); 42 U.S.C. § 2014(hh) (providing original and removal jurisdiction over any claim involving a nuclear

power accident). There is no reason to reconsider this

Court’s longstanding decisions construing the general

federal question and general removal statutes, which

Congress has left undisturbed.

Existing precedent is more than capable, moreover,

of predictably and fairly resolving jurisdictional disputes. The Grable analysis, which this Court has taken pains to develop, “provides ready answers to juris-

dictional questions” and “gives guidance whenever

borderline cases crop up.” Manning, 578 U.S. at 392.

The Court applied exactly that “guidance” in Manning, when it held that Grable provides the appropriate analytical framework for determining whether a

state-law cause of action arises under the Securities

Exchange Act and is thus within the exclusive jurisdiction of the district courts. See id. at 383–84; 15

U.S.C. § 78aa(a). The petitioner there urged that “a

judge should go behind the face of a complaint to determine whether it is the product of ‘artful pleading.’ ”

Id. at 392. The Court disagreed: “[w]e have no idea

how a court would make that judgment,” and “a tortuous inquiry into artful pleading” would be “excruciating for courts to police.” Id. at 392, 393. The Court

declined to adopt that “untested approach” because

“[j]urisdictional tests are built for more than a single

dispute” and “forcing courts to toggle back and forth

between [an ‘artful pleading’ analysis] and the ‘arising under’ standard, would undermine consistency

and predictability in litigation.” Id. at 392, 393; see

also Hertz Corp. v. Friend, 559 U.S. 77, 79 (2010)

(“[A]dministrative simplicity is a major virtue in a jurisdictional statute.”).

III. The Question Presented is neither

recurring nor important.

Denying certiorari is also appropriate because the

petition does not present any questions of recurring

importance. Urging otherwise, petitioners rehash the

same flawed arguments they unsuccessfully advanced

in past petitions.

1. Petitioners present an exceedingly narrow, atypical question: whether defendants can remove statelaw claims to federal court based on congressionally

displaced federal common law, even though they fail

to satisfy the requirements of Grable and complete

preemption. The cases affected by the Question Presented are necessarily few, because federal common

law applies only in “limited areas” that are “few and

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

Inc., 451 U.S. 630, 640 (1981) (quotations omitted).

The only potentially affected cases petitioners identify

are other lawsuits concerning fossil-fuel companies’

allegedly deceptive conduct related to climate change,

a vanishingly small fraction of the thousands of cases

remanded to state court each year.

2. Denying certiorari would not upset federal policies relating to “global warming, . . . energy production, economic growth, foreign policy, [or] national security.” See Pet. 32. Again, the only question raised in

this Petition is whether the State’s lawsuit should

proceed in state or federal court. Petitioners cannot

seriously argue that their vaguely defined federal interests would be jeopardized by a state court entertaining the merits rather than a federal court. Pet. 33.

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

apply federal and state law,” McKesson v. Doe, 592

U.S. __, 141 S. Ct. 48, 51 (2020), and this Court has

already said “it is less troubling for a state court to

consider such an issue than to lose all ability to adjudicate a suit raising only state-law causes of action,”

Manning, 578 U.S. at 392.

3. Petitioners invoke the United States’ amicus brief

in Suncor, which recommended denying that petition,

as a reason for granting review here. But far from confirming that the Question Presented “involves significant, consequential issues that require resolution,”

Pet. 23, the government cogently explained why petitioners’ novel theory of federal-common-law removal

does not warrant this Court’s time and resources. See

generally Suncor, U.S. Br.

To the extent, moreover, that the amicus brief conflicts with past positions taken by the United States,

the government had good reason to “reexamin[e]” petitioners’ jurisdictional theory considering its unanimous rejection by “five courts of appeals,” since increased to seven. Id. at 7. Those “intervening

developments” amply support the Solicitor General’s

conclusion “that state-law claims like those pleaded

here should not be recharacterized as claims arising

under federal common law.” Id.

4. Finally, petitioners make passing reference to the

need for clarity and uniformity in jurisdictional rules.

Pet. 32. But it is petitioners who seek to undo this

Court’s progress clarifying the “muddled backdrop” of

jurisdictional rules that existed prior to Grable. Manning, 578 U.S. at 385. “Jurisdictional tests are built

for more than a single dispute,” and the district courts

have no need for a one-off jurisdictional test that applies only to judge-made federal law; the Grable analysis “provides ready answers to jurisdictional questions” and already “gives guidance whenever

borderline cases crop up.” Id. at 392, 393.

IV. This case is a poor vehicle.

This case is a poor vehicle for reviewing petitioners’

unusual theory of federal-common-law removal. To

reverse the judgment below, this Court would need to

(1) conclude that a congressionally displaced body of

federal common law “governs” the State’s state-law

claims, then (2) create a new exception to the wellpleaded complaint rule that stands separate and apart

from both Grable and complete preemption. But as petitioners necessarily concede, “the court of appeals did

not reach the question whether federal common law

governs claims” like the State’s. Pet. 17, 29. As a result, this Court would need to function as a court of

“first view,” not “a court of review,” if it were to grant

certiorari in this case. Jennings v. Rodriguez, 583 U.S.

__, 138 S. Ct. 830, 851 (2018) (citation omitted).

CONCLUSION

The Court should deny the petition.

Respectfully Submitted,

/s/ Victor M. Sher

KeITh EllIson

Attorney General,

State of Minnesota

LIz KrAmer

Solicitor General

OlIver LArson

PeTer Surdo

Assistant Attorneys General

State of Minnesota

445 Minnesota St., Ste. 1400

St. Paul, MN 55101

(651) 757-1291

oliver.larson@ag.state.mn.us

peter.surdo@ag.state.mn.us

VIcTor M. Sher

Counsel of Record

MATThew K. EdlIng

MArTIn D. QuIñones

QuenTIn C. KArpIlow

GreTel Lee

Sher Edling LLP

100 Montgomery St., Suite 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

matt@sheredling.com

marty@sheredling.com

quentin@sheredling.com

gretel@sheredling.com

Counsel for Respondent – State of Minnesota

October 23, 2023

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