Petition for Writ of Certiorari — Chevron USA Incorporated, et al., Petitioners v. Plaquemines Parish, Louisiana, et al.

Supreme Court briefJan 29, 2025

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No. ______

In the

Supreme Court of the United States

________________

CHEVRON U.S.A. INCORPORATED; CHEVRON U.S.A.

HOLDINGS, INCORPORATED; CHEVRON PIPE LINE

COMPANY; THE TEXAS COMPANY; EXXON MOBIL

CORPORATION; BURLINGTON RESOURCES

OIL & GAS COMPANY,

Petitioners,

PLAQUEMINES PARISH; PARISH OF CAMERON; STATE

OF LOUISIANA; LOUISIANA DEPARTMENT OF ENERGY

AND NATURAL RESOURCES,

Respondents.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

________________

PETITION FOR WRIT OF CERTIORARI

________________

PETER D. KEISLER

JENNIFER J. CLARK

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, DC 20005

PAUL D. CLEMENT

Counsel of Record

C. HARKER RHODES IV

JOSEPH J. DEMOTT

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

(Additional Counsel Listed on Inside Cover)

January 29, 2025

ALEXANDRA WHITE

ERIC J. MAYER

SUSMAN GODFREY

LLP

1000 Louisiana Street,

Suite 5100

Houston, TX 77002

CHARLES S. MCCOWAN III

PAMELA R. MASCARI

KEAN MILLER LLP

II City Plaza

400 Convention St.,

Suite 700

P.O. Box 3513 (70821)

Baton Rouge, LA 70801

MICHAEL R. PHILLIPS

CLAIRE E. JUNEAU

KEAN MILLER LLP

909 Poydras Street,

Suite 3600

New Orleans, LA 70112

Counsel for Chevron

U.S.A. Inc., Chevron

U.S.A. Holdings Inc.,

Chevron Pipe Line

Company, and The Texas

Company

ROBERT B. MCNEAL

LISKOW & LEWIS

Hancock Whitney Center

701 Poydras Street,

Suite 5000

New Orleans, LA 70139

JAMIE D. RHYMES

LISKOW & LEWIS

1200 Camellia Blvd.,

Suite 300

Lafayette, LA 70508

MARTIN A. STERN

JEFFREY E. RICHARDSON

ALEXANDRA LAMB

ADAMS AND REESE LLP

701 Poydras Street,

Suite 4500

New Orleans, LA 71039

Counsel for Exxon Mobil

Corporation

MICHAEL J. MAZZONE

HAYNES AND BOONE, LLP

1221 McKinney, Suite 4000

Houston, TX 77010

Counsel for Burlington

Resources Oil & Gas

Company

Counsel for Petitioners

QUESTION PRESENTED

This petition arises from Louisiana parishes’

efforts to hold petitioners liable in state court for, inter

alia, production of crude oil in the Louisiana coastal

zone during World War II. Petitioners removed these

cases from state court under 28 U.S.C. §1442(a)(1),

which as amended in 2011 provides federal

jurisdiction over civil actions against “any person

acting under [an] officer” of the United States “for or

relating to any act under color of such office.” The

Fifth Circuit unanimously held that petitioners satisfy

the statute’s “acting under” requirement by virtue of

their WWII-era contracts to supply the federal

government with high-octane aviation gasoline

(“avgas”). But the panel divided on the “relating to”

requirement, with the two-judge majority holding that

petitioners’ wartime production of crude oil was

“unrelated” to their contractually required refinement

of that same crude into avgas because the contracts

did not contain any explicit “directive pertaining to

[petitioners’] oil production activities.” App.38. Judge

Oldham dissented, explaining that the majority’s

approach reinstates a variant of the “causal nexus”

requirement that multiple circuits (and the U.S.

Congress) have expressly rejected. The Fifth Circuit

denied rehearing en banc by a vote of 7 to 6.

The questions presented are:

1. Whether a causal-nexus or contractualdirection test survives the 2011 amendment to the

federal-officer removal statute.

2. Whether a federal contractor can remove to

federal court when sued for oil-production activities

undertaken to fulfill a federal oil-refinement contract.

PARTIES TO THE PROCEEDING

Petitioners are Chevron U.S.A., Incorporated;

Chevron U.S.A. Holdings, Incorporated; The Texas

Company; Chevron Pipe Line Company; Exxon Mobil

Corporation; and Burlington Resources Oil & Gas

Company. Petitioners were defendants-appellants

below.

Respondents are Plaquemines Parish, Parish of

Cameron, the State of Louisiana, and the Louisiana

Department of Energy and Natural Resources.

Respondents were plaintiffs-appellees below.

BP America Production Company, Shell Oil

Company, Shell Offshore, Inc., and SWEPI, L.P., were

also defendants-appellants below.

iii

CORPORATE DISCLOSURE STATEMENT

Chevron U.S.A. Inc., Chevron U.S.A. Holdings,

Inc., and Chevron Pipe Line Company are indirectly

wholly owned subsidiaries of Chevron Corporation, a

publicly traded company (NYSE: CVX).

The Texas Company is the former name of Texaco

Inc., an indirect, wholly owned subsidiary of Chevron

Corporation, a publicly traded company (NYSE: CVX).

Exxon Mobil Corporation is a publicly held

corporation, shares of which are traded on the New

York Stock Exchange under the symbol XOM. Exxon

Mobil Corporation has no parent corporation, and no

publicly held corporation owns ten percent (10%) or

more of its outstanding stock.

Burlington Resources Oil & Gas Company LP is a

privately held limited partnership that is owned by

two privately held limited liability companies, BROG

GP LLC and BROG LP LLC. The sole member of both

BROG GP LLC and BROG LP LLC is Burlington

Resources LLC, which is a privately held limited

liability company. The sole member of Burlington

Resources LLC is ConocoPhillips Company, which is a

privately held corporation. ConocoPhillips Company

is wholly owned by ConocoPhillips, which is a publicly

traded corporation (NYSE: COP). No publicly held

corporation or other publicly held entity holds 10% or

more of the stock of Burlington Resources Oil & Gas

Company LP.

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:



Plaquemines Parish v. BP America Production

Co., Nos. 23-30294, 23-30422 (5th Cir. May 29,

2024) (opinion and judgment)



Plaquemines Parish v. Total Petrochemical &

Refining USA, Inc., No. 18-cv-5256 (E.D. La.

Apr. 21, 2023) (order granting motion to

remand)



Parish of Cameron v. Apache Corp. of

Delaware, No. 2:18-cv-688 (W.D. La. Dec. 22,

2022) (order granting motion to remand)



Plaquemines Parish v. Total Petrochemicals &

Refining USA, Inc., No. 61-0002, 25th Judicial

District Court for the Parish of Plaquemines

(Division “B”), Louisiana (state-court petition

filed, no judgment entered)



Parish of Cameron v. Apache Corp. (of

Delaware) et al., No. 10-19579, 38th Judicial

District Court for the Parish of Cameron,

Louisiana (state-court petition filed, no

judgment entered)

Petitioners are not aware of any other proceedings

that are directly related to this case within the

meaning of Rule 14.1(b)(iii).

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDING ........................... ii

CORPORATE DISCLOSURE STATEMENT ........... iii

STATEMENT OF RELATED PROCEEDINGS ....... iv

TABLE OF AUTHORITIES .................................... viii

PETITION FOR WRIT OF CERTIORARI ................ 1

OPINIONS BELOW ................................................... 5

JURISDICTION ......................................................... 5

STATUTORY PROVISION INVOLVED ................... 5

STATEMENT OF THE CASE ................................... 5

A. Legal Background ........................................ 5

B. Factual Background ..................................... 7

C. Procedural History ....................................... 9

REASONS FOR GRANTING THE PETITION....... 13

The Fifth Circuit’s Decision Conflicts With

The Clear Statutory Text And Decisions

From Multiple Circuits. .................................... 15

A. The Decision Below Erroneously Adopts

a Contractual-Direction Requirement

That the Statute No Longer Requires. ...... 15

B. The Decision Below Exacerbates An

Entrenched Circuit Split. ........................... 24

II. The Question Presented Is Important, And

This Is An Excellent Vehicle To Resolve It. ..... 30

CONCLUSION ......................................................... 35

APPENDIX

Appendix A

Opinion, United States Court of Appeals for

the Fifth Circuit, Plaquemines Parish v. BP

Am. Prod. Co., No. 23-30294, Parish of

Cameron v. BP Am. Prod. Co., No. 23-30422

(May 29, 2024) ............................................. App-1

Appendix B

Order, United States Court of Appeals for the

Fifth Circuit, Plaquemines Parish v. BP

Am. Prod. Co., No. 23-30294, Parish of

Cameron v. BP Am. Prod. Co., No. 23-30422

(Oct. 31, 2024) ............................................ App-64

Appendix C

Order, United States District Court for the

Eastern District of Louisiana, Jefferson

Parish

Atl.

Richfield

Co.,

No. 18-5246, Plaquemines Parish v. Total

Petrochemical & Refining USA, Inc.,

No. 18-5256 (Apr. 21, 2023) ...................... App-66

Appendix D

Order and Reasons, United States District

Court for the Eastern District of Louisiana,

Parish of Plaquemines v. Northcoast Oil Co.,

No. 18-5228 (Apr. 18, 2023) ...................... App-68

Appendix E

Judgment, United States District Court for

the Western District of Louisiana, Parish of

Cameron v. Apache Corp. of Delaware,

No. 18-00688 (Dec. 22, 2022)..................... App-97

vii

Appendix F

Reasons for Decision, United States District

Court

for

the

Western

District

of Louisiana, Parish of Cameron v.

Auster Oil & Gas Inc., No. 18-00677

(Dec. 22, 2022) ........................................... App-99

Appendix G

Reasons for Decision, United States District

Court

for

the

Western

District

of Louisiana, Parish of Cameron v.

Apache Corp. (of Delaware), No. 18-00688

(June 13, 2023) ........................................ App-126

Appendix H

Contract Between Defense Supply Corp. and

Texas Company (Port Arthur Refinery –

Second Contract), 100-Octane Aviation

Gasoline (Mar. 10, 1942) ......................... App-150

Appendix I

Relevant Statutory Provision.................. App-182

28 U.S.C. §1442 ................................. App-182

viii

TABLE OF AUTHORITIES

Cases

Abernathy v. Kral,

779 F.App’x 304 (6th Cir. 2019) ............................ 27

Arizona v. Manypenny,

451 U.S. 232 (1981) .................................. 1, 7, 16, 31

Baker v. Atl. Richfield Co.,

962 F.3d 937 (7th Cir. 2020).................................. 24

Bd. of Cnty. Comm’rs

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

25 F.4th 1238 (10th Cir. 2022) .............................. 24

Caver v. Cent. Ala. Elec. Coop.,

845 F.3d 1135 (11th Cir. 2017).............................. 26

Colorado v. Symes,

286 U.S. 510 (1932) .................................. 1, 7, 16, 31

DeFiore v. SOC LLC,

85 F.4th 546 (9th Cir. 2023) .................................. 27

District of Columbia v. Exxon Mobil Corp.,

89 F.4th 144 (D.C. Cir. 2023) .................... 16, 21, 24

Georgia v. Clark,

119 F.4th 1304 (11th Cir. 2024) ............................ 26

Georgia v. Meadows,

88 F.4th 1331 (1th Cir. 2023) ................................ 26

Goncalves ex rel. Goncalves

v. Rady Child.’s Hosp. San Diego,

865 F.3d 1237 (9th Cir. 2017)................................ 27

In re Commonwealth’s Motion to

Appoint Counsel Against or

Directed to Def. Ass’n of Phila.,

790 F.3d 457 (3d Cir. 2015) ..... 14, 16, 24, 25, 28, 29

Isaacson v. Dow Chem. Co.,

517 F.3d 129 (2d Cir. 2008) ................................... 32

Jefferson Cnty. v. Acker,

527 U.S. 423 (1999) ...................................... 7, 15, 26

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020).................................. 13

Maryland v. Soper,

270 U.S. 9 (1926) .................................................. 1, 6

Minnesota ex rel. Ellison

v. Am. Petroleum Inst.,

63 F.4th 703 (8th Cir. 2023) .................................. 27

Mitchell v. Clark,

110 U.S. 633 (1884) .................................................. 6

Mohr v. Trs. of Univ. of Pa.,

93 F.4th 100 (3d Cir. 2024).................................... 31

Moore v. Elec. Boat Corp.,

25 F.4th 30 (1st Cir. 2022)..................................... 24

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) .................................... 16, 21, 25

New Orleans City v. Aspect Energy, LLC,

No. 24-30199, 2025 WL 274969

(5th Cir. Jan. 23, 2025) ............................................ 9

Ohio St. Chiropractic Ass’n

v. Humana Health Plan Inc.,

647 F.App’x 619 (6th Cir. 2016) ............................ 27

Par. of Plaquemines v. Chevron USA, Inc.,

7 F.4th 362 (5th Cir. 2021) ...................................... 9

Plaquemines Par. v. Chevron USA, Inc.,

2022 WL 9914869 (5th Cir. Oct. 17, 2022) ........... 10

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017)...................... 24, 29, 30

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) .................................................. 21

Tennessee v. Davis,

100 U.S. 257 (1879) .................................................. 6

Tong v. Exxon Mobil Corp.,

83 F.4th 122 (2d Cir. 2023).................................... 26

Veneruso

v. Mt. Vernon Neighborhood Health Ctr.,

586 F.App’x 604 (2d Cir. 2014) .............................. 26

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ............................ 6, 7, 16, 22, 31

Willingham v. Morgan,

395 U.S. 402 (1969) .................. 1, 6, 7, 12, 16, 30, 31

Statutes

28 U.S.C. §1442(a)(1) ........................................ 1, 7, 12

La. Rev. Stat. §§49:214.21-42..................................... 8

La. Rev. Stat. §49:214.34(C)(2) .................................. 8

3 Stat. 195 (1815)........................................................ 6

Pub. L. No. 112-51, 125 Stat. 545 (2011) ......... 1, 7, 16

Other Authority

H.R. Rep. No. 112-17 (2011) ..................................... 25

PETITION FOR WRIT OF CERTIORARI

For more than two centuries, Congress has

authorized federal officers facing state-court litigation

involving their official duties to remove the matter to

federal court, where it is more likely to be adjudicated

“free from local interests or prejudice.” Arizona v.

Manypenny, 451 U.S. 232, 242 (1981); see Willingham

v. Morgan, 395 U.S. 402, 405-07 (1969). Congress has

also extended that same protection to private parties

“acting under” federal officers. 28 U.S.C. §1442(a)(1);

see, e.g., Maryland v. Soper, 270 U.S. 9, 21 n.1, 30

(1926). That extension ensures that private parties

are not deterred from assisting federal officials in

discharging responsibilities that are nationally

important but locally unpopular, ranging from taxcollection to Prohibition-enforcement to wartime

priorities. In revisiting the federal-officer removal

statute over time, Congress has uniformly broadened

its scope—most recently, by explicitly extending the

right to federal-officer removal to encompass not only

suits “for” actions taken under federal direction, but

any suit “relating to” such actions.

Removal

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

(2011).

And in recognition of that repeatedly

expressed congressional policy, this Court has

emphasized that unlike other removal provisions,

which are narrowly construed out of federalism

concerns, the federal-officer removal provision should

be broadly construed. See, e.g., Willingham, 395 U.S.

at 406; Colorado v. Symes, 286 U.S. 510, 517 (1932).

The Fifth Circuit’s divided decision defies those

principles and improperly narrows the scope of

federal-officer removal in the face of Congress’

considered decision to broaden it. And it does so by

effectively reimposing a variant of the causal-nexus

requirement that six other courts of appeals have

expressly rejected, exacerbating a lopsided circuit

split and underscoring the general confusion in the

lower courts on this recurring and important issue.

The panel majority’s decision—which avoided en banc

reconsideration by a single vote—cries out for this

Court’s review.

These cases belong in federal court. They involve

efforts by local governments to sue federal contractors

in state court, in part for actions undertaken to fulfill

federal contracts. The federal-officer removal statute

exists for cases like this. Indeed, the Fifth Circuit

unanimously and correctly recognized that these cases

were different from earlier removal efforts by

companies without federal contracts, and that they

satisfied the federal-officer removal statute’s “acting

under” requirement. App.14-17, 37-38. But at that

point, the panel fractured, with a two-judge majority

reaching the remarkable conclusion that petitioners’

exploration and production activities undertaken to

fulfill their federal refinement contracts were

unrelated to those federal refinement contracts,

because those contracts did not include an explicit

“directive pertaining to [those] activities.” App.38.

As Judge Oldham explained in dissent, that

holding is flatly irreconcilable with the statutory text.

As amended in 2011, the federal-officer removal

statute permits removal not only of suits “for” actions

taken under federal direction, but also suits “relating

to” such actions. Congress added that phrase after

this Court had repeatedly made clear that “relating to”

is a term of considerable breadth, such that the

amended act plainly allows removal of any suit

bearing a “connection” or “association” with any act

taken under federal direction. App.43-44. That test is

readily satisfied here, because petitioners’ WWII-era

predecessors were vertically integrated companies

that contracted with the federal government to

furnish it with avgas and were sued for their efforts in

fulfilling those contracts by extracting the primary,

indispensable ingredient for manufacturing that

avgas. Those extraction efforts were not just related

to petitioners’ federal contracts; they were

indispensable, as “it is unclear how [petitioners] could

have met their contractual obligations” without using

the crude-oil production practices that respondents

now claim were unlawful. App.46.

By demanding not just a relationship or

connection, but an explicit contractual “directive

pertaining to [petitioners’] oil production activities,”

App.38, the panel majority not only disregarded the

statutory text, but also exacerbated an already

entrenched division of authority in the federal courts

of appeals. As Judge Oldham cogently explained, the

panel majority effectively reintroduced a variant of

the “causal-nexus” test that pre-dated the 2011

amendment to the federal-officer removal statute.

App.57-58; see App.52, 54, 56-57. The federal courts

of appeals are openly split on whether that

requirement survives the 2011 amendment: At least

six circuits have correctly held that the post-2011

federal-officer removal statute eliminated that

requirement, while at least two circuits continue to

demand a causal nexus. The decision below places the

Fifth Circuit in a category of its own: Having

previously gone en banc to reject the causal-nexus

test, a panel has now reintroduced a contractualdirection variant of the test over the objection of six

judges, including the author of the earlier en banc

opinion. This incoherence cries out for clarification

from this Court.

The issue is also immensely consequential. Both

Congress and this Court have long made clear that the

protections of the federal-officer removal statute must

extend beyond the federal officers themselves to those

who assist them in carrying out important federal

functions. Acting pursuant to a federal contract has

long been the quintessential way for private parties to

qualify for that protection. But the decision below

eviscerates that critical protection, exposing federal

contractors to suit in potentially hostile state courts

for actions that are undertaken to fulfill their federal

contracts but not explicitly demanded by the terms of

those federal contracts. As multiple amici explained

below, that approach will seriously complicate and

deter future federal contracting and private-sector

assistance to the government. It creates artificial

incentives to lard up federal contracts with

unnecessary directions and to impose massive

retroactive liability on those who assisted the federal

government in an hour of national need.

This Court should grant review to correct the

panel majority’s unduly narrow view of federal-officer

jurisdiction, resolve the entrenched circuit split on the

scope of the “relating to” test, and protect those

charged with carrying out the business of the federal

government from being subjected to local prejudices in

state courts.

OPINIONS BELOW

The Fifth Circuit’s opinion is reported at 103

F.4th 324 and reproduced at App.1-63. The Eastern

District of Louisiana’s remand order is reproduced at

App.66-67; it incorporates by reference the opinion in

a related case, Parish of Plaquemines v. Northcoast Oil

Co., No. 18-cv-5228 (E.D. La.), which is reported at 669

F.Supp.3d 584 and reproduced at App.68-96. The

Western District of Louisiana’s remand order is

reproduced at App.97-98; it incorporates by reference

the opinion in a related case, Parish of Cameron v.

Auster Oil & Gas, Inc., No. 2:18-cv-677 (W.D. La.),

which is unreported but available at 2022 WL

17852581 and reproduced at App.99-125.

The

Western District of Louisiana’s opinion denying

petitioners’ motion for reconsideration is unreported

but available at 2023 WL 3974168 and reproduced at

App.126-149.

JURISDICTION

On October 31, 2024, the Fifth Circuit denied a

timely petition for rehearing en banc by a 7-6 vote.

App.64-65. This Court has jurisdiction under 28

U.S.C. §1254.

STATUTORY PROVISION INVOLVED

The federal-officer removal statute, 28 U.S.C.

§1442, is reproduced in the Appendix.

STATEMENT OF THE CASE

A. Legal Background

The federal-officer removal statute has a long and

venerable pedigree. Congress first authorized federalofficer removal during the War of 1812 to protect

federal officers who were being harassed for enforcing

a trade embargo. See Act of February 4, 1815, §8, 3

Stat. 195, 198. While that statute was temporary,

Congress soon enacted a permanent replacement, this

one protecting all officials involved in enforcing

federal customs revenue laws. See Tennessee v. Davis,

100 U.S. 257, 268 (1879) (discussing 1833 Force Act).

Congress likewise authorized removal for Union

officers targeted by insurrectionists during the Civil

War and Reconstruction, Mitchell v. Clark, 110 U.S.

633, 639 (1884), and prohibition enforcers

implementing the Volstead Act, Maryland v. Soper,

270 U.S. 9, 31-32 (1926). Each statute was animated

by a desire “to protect federal officers from

interference by hostile state courts.” Willingham, 395

U.S. at 405.

Over many decades, “Congress relaxed, relaxed,

and relaxed again the limits on federal officer

removal.” App.44. Soon after the Civil War, Congress

made removal available not only to federal officers

themselves, but also to “any person acting under or by

authority of any such officer” to enforce federal law in

certain subject areas. Watson v. Philip Morris Cos.,

551 U.S. 142, 148 (2007). And, shortly after World

War II, Congress eliminated the subject-area

restrictions, “expand[ing] the statute’s coverage to

include all federal officers” as well as those “acting

under” them. Id. at 149. As this Court has explained,

federal contractors are the quintessential example of

private parties who “act[] under” federal direction;

they go beyond mere “compliance with the law” by

performing jobs the Government would otherwise

have to perform itself, and helping the Government

“produce … item[s] that it needs.” Id. at 153-54. And

in light of that history, this Court has repeatedly

confirmed that the federal-officer removal statute

must be “liberally construed to give full effect to the

purposes for which [it was] enacted,” Symes, 286 U.S.

at 517, and “should not be frustrated by a narrow,

grudging interpretation,” Willingham, 395 U.S. at

407; see also, e.g., Watson, 551 U.S. at 147;

Manypenny, 451 U.S. at 242.

Until relatively recently, defendants who invoked

28 U.S.C. §1442(a) had to “establish that the suit [wa]s

‘for a[n] act under color of [federal] office.’” Jefferson

Cnty. v. Acker, 527 U.S. 423, 431 (1999). This Court

interpreted that provision to require a defendant

seeking removal to demonstrate “a causal connection

between the charged conduct and asserted official

authority.” Id. In the Removal Clarification Act of

2011, however, Congress expanded the scope of federal

officer removal yet again, amending the statute to

permit removal of an action “for or relating to any act

under color of such office,” rather than just actions

“for” such acts. 28 U.S.C. §1442(a)(1) (emphasis

added); see Pub. L. No. 112-51, 125 Stat. 545 (2011).

B. Factual Background

1. The present litigation arises from multiple

cases filed in Louisiana state court by various

Louisiana parishes seeking to hold oil and gas

companies liable for exploration and production

activities conducted in Louisiana’s coastal zone. One

such case was brought by respondent Plaquemines

Parish against petitioner Chevron U.S.A., Inc.

(“Chevron”) and several other companies based in part

on the WWII-era activities of two of Chevron’s

predecessors, Gulf Oil Company and The Texas

Company, in two oil fields located within the parish.

App.9. Another was brought by respondent Parish of

Cameron against Chevron as well as BP America

Production Company (“BP”) and Shell Oil Company,

Shell Offshore, Inc., and SWEPI, L.P., (collectively,

“Shell”) based in part on Shell’s WWII-era activities in

a third oil field.1 App.10.

Respondents allege that petitioners violated the

permitting requirements of Louisiana’s State and

Local

Coastal

Resources

Management

Act

(“SLCRMA”), La. Rev. Stat. §§49:214.21-42, which

took effect in 1980. Yet they assail activities going

back decades before permits were even available

under SLCRMA. This anachronistic effort to hold

petitioners liable for activities that long pre-dated

their ability to obtain a SLCRMA permit defies not

only basic chronology, but also SLCRMA’s

grandfather clause, which expressly provides that

“uses legally commenced or established prior to the

effective date of the coastal use permit program shall

not require a coastal use permit.”

Id.

§49:214.34(C)(2).

1 BP and Shell reached a settlement with the Parish of

Cameron during the pendency of the appeal. As the Fifth Circuit

explained, however, that settlement does not affect federal-officer

jurisdiction, which is determined based on “the claims in the

state court petition as they existed at the time of removal.”

App.11 n.29. In all events, the question presented independently

arises from the Parish of Plaquemines’ claims against the

Chevron defendants.

2 In the context of rejecting the City of New Orleans’ effort to

avoid federal jurisdiction over a related case via fraudulent

joinder, the Fifth Circuit recently rejected a similar effort to

impose liability for activities pre-dating SLCRMA’s effective date

Notwithstanding that grandfather clause,

respondents insist that petitioners are liable under

SLCRMA for pre-SLCRMA activities on the theory

that “most, if not all, of [petitioners’] operations or

activities … were not ‘lawfully commenced or

established’ prior to the implementation of the coastal

zone management program.” Dkt.1-7 at 15, Parish of

Cameron v. Apache Corp. of Del., No. 2:18-cv-688

(W.D. La. filed May 23, 2018) (state-court petition); see

also Par. of Plaquemines v. Chevron USA, Inc.

(“Plaquemines I”), 7 F.4th 362, 366 (5th Cir. 2021)

(related case). Among other things, respondents

contend that oil production activities that occurred

during WWII were not “lawfully commenced or

established” because they supposedly “depart[ed] from

prudent industry practices,” App.5-6, such as “by

dredging canals (instead of building overland roads),

by using vertical drilling (instead of directional

drilling), by using earthen pits at well heads (instead

of steel tanks), by extracting too much oil, and by not

building saltwater reinjection wells,” Plaquemines I, 7

F.4th at 367.

C. Procedural History

1. Once it became clear that respondents were

challenging petitioners’ wartime work for the federal

government, petitioners invoked federal officer

removal. App.5-6. In related litigation involving

similar lawsuits filed by these same parishes, the

Fifth Circuit considered whether oil companies could

as lacking a “reasonable basis” to support recovery and thus

affirmed the dismissal of the in-state defendant from the case.

New Orleans City v. Aspect Energy, LLC, No. 24-30199, 2025 WL

274969, at *5 (5th Cir. Jan. 23, 2025).

remove the cases based on evidence “that they had an

‘unusually close and special relationship’ with the

federal government” during WWII. Plaquemines Par.

v. Chevron USA, Inc. (“Plaquemines II”), 2022 WL

9914869, at *2 (5th Cir. Oct. 17, 2022), cert denied, 143

S.Ct. 991 (2023). The court held that the companies

failed to demonstrate that they had “‘act[ed] under’ a

federal officer’s directions” because they did not

present evidence that their WWII-era activities were

performed pursuant to any “governmental contract[]”

or similar “principal/agent arrangement.” Id. at *2,

*4. The court recognized, however, that “refineries[]

who had federal contracts” would satisfy the “acting

under” element, and “can likely remove under §1442.”

Id. at *4 (emphasis added).

In accordance with that decision, petitioners

argued that the present litigation does belong in

federal court, because it presents the very fact pattern

supporting federal-officer removal that the Fifth

Circuit had posited: These cases involve vertically

integrated companies that (1) had federal contracts to

supply the U.S. government with refined petroleum

products during WWII, and (2) produced crude oil that

they used to fulfill those contracts. App.9-10. The

district courts nevertheless granted respondents’

motion to remand these cases to state court. Id.

2. In a divided decision, the Fifth Circuit affirmed.

The panel began by unanimously holding that unlike

the earlier removal efforts by defendants without a

federal contract, petitioners here “satisfy the ‘acting

under’ requirement” of 28 U.S.C. §1442(a)(1) by virtue

of their federal contracts to supply the federal

government with avgas for the armed forces during

WWII. App.14-17, 40. The panel divided, however, on

the “relating to” requirement. As to that requirement,

the panel majority held that the challenged

“exploration and production activities” were

“unrelated” to the refining activities that petitioners

carried out under their federal contracts—even

though the challenged production activities produced

crude that petitioners then refined to fulfill those

federal contracts. The panel majority reasoned that

the federal contracts themselves lacked “any

reference, let alone direction, pertaining to crude oil.”

App.21; App.33. In the panel majority’s view, because

the federal contracts gave petitioners “complete

latitude” over how to acquire the necessary crude—

i.e., they could purchase it from other producers or

extract it themselves—their exploration and

production activities undertaken to fulfill their federal

contracts were unrelated to their refining activities

under those same federal contracts. App.29-30. The

panel majority further held that it would “limit [its]

analysis” to the express “directives in [petitioners’]

federal refining contracts,” and ignore all “federal

regulations, designations, and reports involving oil

production in the Operational Areas during World

War II.” App.23-26.

Judge Oldham dissented in relevant part,

explaining that the panel majority’s decision could not

be reconciled with Congress’ deliberate expansion of

the scope of federal-officer removal in the Removal

Clarification Act of 2011. See App.43-44. As Judge

Oldham explained, before 2011, the federal-officer

removal statute authorized removal of “actions ‘for’ an

act under color of federal office”—a phrase that this

Court interpreted to require “a ‘causal connection’

between the charged conduct and asserted official

authority.” App.43; Willingham, 395 U.S. at 409. In

2011, however, Congress explicitly amended the

statute to make it “significantly broader,” by

authorizing removal of any suit “for or relating to any

act under color of [federal] office.” App.43-44 (quoting

28 U.S.C. §1442(a)(1)).

Here, “the charged conduct—[petitioners’]

petroleum exploration and production activities—

clearly ‘related to’ an a ‘act under color of federal

office,” i.e., petitioners’ “contractually specified

refining activities.” App.45 (brackets and footnote

omitted).

After all, crude oil is the primary,

indispensable component of refined avgas. App.45-46.

Upon assuming a contractual duty to provide the U.S.

military with unprecedented quantities of avgas,

petitioners naturally responded “by increasing their

own exploration and production of crude.” App.45.

There was accordingly a clear connection between

petitioners’ exploration and production practices to

produce crude oil that they needed as the primary

ingredient for avgas, and their refining of that same

crude oil into avgas to satisfy their federal contracts.

See App.53-54.

As Judge Oldham underscored, the panel

majority’s decision “reinstates a version of” the

“causal-nexus test” that Congress eliminated in 2011.

App.57-58; see App.47-57. In Judge Oldham’s view,

the text of the amended statute does not “[r]equir[e]

an unsevered causal chain” between federal direction

and the challenged action, or insist that “the outcome

of the challenged conduct be contractually specified,”

as the panel majority demanded. App.53-54. Under

the statutory text, petitioners’ exploration and

production activities “plainly ‘related to’ their avgas

contracts and hence satisfy today’s federal officer

removal statute.” App.63.

3. Petitioners timely sought en banc review,

explaining that the panel majority’s decision is

inconsistent with the statutory text as amended by

Congress in 2011 and with the Fifth Circuit’s own

prior rejection of any causal-nexus requirement under

that amended text in Latiolais v. Huntington Ingalls,

Inc., 951 F.3d 286, 292 (5th Cir. 2020) (en banc), as

well as decisions from multiple other circuits. On

October 31, 2024, the Fifth Circuit denied en banc

rehearing by a vote of 7-6, with Judges Jones (the

author of Latiolais), Richman, Willett, Duncan, and

Wilson joining Judge Oldham in voting in favor of

rehearing. App.64-65.

REASONS FOR GRANTING THE PETITION

The decision below adopts a crabbed view of

federal-officer removal that flouts the text of 28 U.S.C.

§1442, exacerbates a circuit split, and has serious

implications for the federal government and federal

contractors alike. In holding that a federal contractor

facing state-court litigation over its efforts to support

the federal government may not invoke federal-officer

removal unless the relevant contract contained an

explicit directive specifically addressing and limiting

the contractor’s discretion vis-à-vis the challenged

conduct, the decision defies the plain text of

§1442(a)(1)—as specifically broadened by Congress in

2011. That text rejects any contractual-direction or

causal-nexus requirement, authorizing removal not

only of civil actions “for” acts taken under federal

direction, but also any civil actions “relating to” acts

taken under such direction. That clear statutory text,

and Congress’ deliberate decision to broaden the scope

of federal-officer removal to reach actions “relating to”

acts taken under federal direction, cannot be

reconciled with the decision below.

The decision below is not only wrong, but

exacerbates an entrenched circuit split that warrants

this Court’s review. Six other circuits have correctly

concluded that Congress’ amendment of the federalofficer removal statute in 2011 to encompass suits

“relating to” acts under federal direction abrogated the

causal-nexus requirement embodied in earlier

versions of the statute. Those circuits have allowed

removal for actions related to federal contracts, but in

no way directed or commanded by them, such as the

state-court efforts of federal defenders contractually

obligated to represent defendants in federal court. See

In re Commonwealth’s Motion to Appoint Counsel

Against or Directed to Def. Ass’n of Phila., 790 F.3d

457 (3d Cir. 2015). In contrast, the Second and

Eleventh Circuits have expressly rejected that

majority view and continue to demand a causal nexus.

And the decision below places the Fifth Circuit in a

category of its own. Despite previously abandoning

the causal-nexus test—in an en banc decision, no

less—the Fifth Circuit has now hopelessly confused

matters by reintroducing a particularly demanding

variant of that test over the objection of six judges,

including the author of the earlier en banc decision.

The decision below cannot be reconciled with decisions

like Commonwealth’s Motion that allow removal

based on connections far less direct than extracting

crude so it can be refined to fulfill a federal contract.

This Court should not allow this ongoing confusion in

the federal courts of appeals to continue.

And the need for this Court’s intervention is all

the more pronounced in light of the substantial

importance of the issue—as underscored by Congress’

own intervention on this very point in 2011. By

extending the protection of a neutral federal forum not

only to federal employees who are sued for their

official acts, but also to private parties who help those

federal officers carry out their duties, Congress

ensured that federal contractors would not be forced

to face lawsuits in state courts for actions that serve

the national interest but may be locally unpopular. As

multiple amici explained below, depriving federal

contractors of that protection unless they can point to

an explicit federal directive governing their

challenged actions will seriously undermine the

federal government’s ability to find willing private

partners to carry out its necessary functions. This

Court should grant certiorari and reverse.

The Fifth Circuit’s Decision Conflicts With

The Clear Statutory Text And Decisions

From Multiple Circuits.

A. The Decision Below Erroneously Adopts

a Contractual-Direction Requirement

That the Statute No Longer Requires.

Before 2011, the federal-officer removal statute

authorized the removal of suits “for a[ny] act under

color of [federal] office,” a phrase this Court

interpreted to require a defendant seeking removal to

demonstrate “a causal connection between the

charged conduct and asserted official authority.”

Acker, 527 U.S. at 431. In the Removal Clarification

Act of 2011, however, Congress amended the statute

to permit removal of an action “for or relating to any

act under color of such office.” 28 U.S.C. §1442(a)(1)

(emphasis added); see 125 Stat. 545.

As numerous courts have recognized, that

amendment significantly broadened the scope of

federal-officer removal. See, e.g., Commonwealth’s

Motion, 790 F.3d at 471-72. In the years immediately

before that 2011 amendment, this Court repeatedly

emphasized that “[t]he ordinary meaning of the words

‘relating to’ is a broad one—‘to stand in some relation;

to have bearing or concern; to pertain; refer; to bring

into association with or connection with.’” Id.

(brackets omitted) (quoting Morales v. Trans World

Airlines, Inc., 504 U.S. 374, 383 (1992)). Accordingly,

the current version of §1442(a)(1) “does not require a

causal connection between acts taken under color of

federal office and the basis for the [lawsuit].” District

of Columbia v. Exxon Mobil Corp., 89 F.4th 144, 155

(D.C. Cir. 2023). “Rather, it is enough that acts taken

under color of federal office are ‘connected or

associated’ with the conduct at issue in the case. Id.

at 155-56.

Moreover, this Court has also been at pains to

emphasize that the federal-officer removal statute,

unlike other removal statutes, should be “liberally

construed” in favor of removal. Watson, 551 U.S. at

147; see, e.g., Manypenny, 451 U.S. at 242;

Willingham, 395 U.S. at 407; Symes, 286 U.S. at 517.

Congress’ deliberate and repeated broadening of the

federal-officer removal provision cannot be frustrated

by a miserly judicial construction that puts a thumb

on the scales against removal.

In light of that clear statutory text and those

settled interpretive principles, this should have been

a straightforward case for removal. Petitioners are

being sued by local governments in state court for,

inter alia, actions undertaken to fulfill a federal

contract. The fact that petitioners could have fulfilled

the contract through other means—e.g., by purchasing

crude produced by unrelated companies—or that the

contract did not specify how extraction efforts should

proceed is beside the point. The statute asks only

whether production activities undertaken to fulfill the

contract were “related to” the contractual refining

obligations. And the answer to that question is selfevident:

Petitioners’ crude oil exploration and

production activities are closely and inextricably

related to their subsequent refining of that same crude

oil to satisfy their federal contracts for refined avgas.

The fact that the panel majority deemed those

exploration and production activities unrelated to

contractual refining underscores that it departed from

the clear statutory text and effectively reinstated a

particularly demanding variant of the causal-nexus

test that Congress explicitly abrogated. That error

should not be permitted to stand.

1. The relationship between petitioners’

challenged exploration and production activities and

their acts taken under federal direction here is clear

and unmistakable. As the panel majority below

recognized, “crude oil is a necessary component of

avgas.” App.28. It is undisputed that petitioners used

crude oil that they extracted from the specific fields at

issue in this case to fulfill their federal contracts.

App.36 n.90. Consequently, the “charged conduct”

here—petitioners’

exploration

and

production

activities—is plainly “connected or associated” with

petitioners’ “act[s] pursuant to a federal officer’s

directions,” i.e., their refining of massive amounts of

avgas under federal contracts.

App.45, App.47,

App.53-54 (Oldham, J., dissenting). Indeed, it is hard

to imagine how a vertically integrated company’s

production of raw materials could be anything but

related to its use of those raw materials to

manufacture a finished product for the government,

especially when it comes to the production and

refining of petroleum products—which is why even the

panel majority was forced to concede that petitioners’

federally directed “refinery activities” had “some

relation to oil production.” App.28-29. That is, of

course, all that the text of §1442(a)(1) requires.

Respondents’ specific claims further confirm that

the challenged production practices were directly and

integrally connected to petitioners’ fulfillment of

government contracts. Respondents allege, among

other things, that petitioners extracted too much

crude oil from the relevant fields during WWII and did

so too hastily. App.20-21. But the quantity of oil that

petitioners extracted, and the speed with which they

extracted it, was directly related to the U.S. military’s

unprecedented need for refined avgas to fuel the war

effort. See, e.g., App.46 (Oldham, J., dissenting)

(noting that the federal government “required U.S. oil

and gas companies ‘to increase oil production by more

than 44,000,000 gallons a day‘” during WWII). As

Judge Oldham observed, “[i]t is unclear how

[petitioners] could have met their contractual

obligations with the federal Government” without

dramatically expanding their own production from the

relevant fields. App.46; see App.54. Moreover,

“[f]orgoing the challenged crude exploration and

production practices would have hampered the federal

interest in refined avgas explicitly outlined in the

contracts.” App.52. That is more than sufficient to

show the necessary connection between petitioners’

WWII-era federal avgas contracts and petitioners’

WWII-era oil production practices for federal-officer

removal purposes.

And the connection here is even closer than that,

because petitioners’ federal contracts themselves

reinforced the close connection between refinement

and crude-oil production in multiple ways. First, each

of those contracts fixed the price that the federal

government would pay for avgas based on the cost of

producing crude oil and transporting it to refineries.

See, e.g., App.157-59. If the cost of crude went up, the

government was required to pay more for the refined

avgas. See, e.g., App.157-59. The contracts likewise

provided that the price of avgas could go up if the costs

to petitioners “of transporting petroleum raw

materials to [their] refineries” from their production

fields substantially increased. E.g., App.159-60.

Second, each of the federal contracts at issue here

provided that if any new taxes were imposed on the

“production ... of crude petroleum,” the federal

government itself would pay those increased taxes.

E.g., App.170. The contracts also provided that if

petitioners were “required by [a] municipal” or “state”

law to pay “any new or additional taxes” or other fees

“by reason of the production ... [of] crude petroleum,”

the companies were “entitled” (in the federal

government’s view) to an “exemption” from those taxes

“by virtue of [the purchasing agency’s] governmental

status.”

App.171.

That is, petitioners’ federal

contracts

expressly

contemplated

both

that

petitioners might be subject to state or local taxation

based on their production of crude oil, and that they

should be exempt from that state or local taxation

precisely because they were producing the crude oil to

fulfill their federal refining contracts.

The context in which the challenged activities

occurred further underscores the close connection

between petitioners’ wartime oil production and their

fulfillment of their avgas contracts. During WWII, “a

federal agency, the Petroleum Administration for

War … established a crude allocation program that

controlled the distribution and transportation of

produced crude oil from the fields to specific refineries

based on various factors that would maximize the

output of war products.” App.35. In carrying out that

program, “the government designated the three fields

at issue here as ‘Critical Fields Essential to the War

Program,’ in part because they produced crude oil that

was particularly suited for making avgas.” App.23

n.64.

That is, the federal government itself

contemporaneously

recognized

the

connection

between petitioners’ production of crude oil in the

relevant fields and petitioners’ federally directed

refinement of that same crude into avgas. That

government designation again confirms the same

obvious point: Petitioners’ production of crude oil was

closely connected with their actions to fulfill their

federal contracts by refining that crude oil into avgas.

That connection easily satisfies the “relating to”

element for federal-officer removal under §1442(a)(1).

2. The panel majority reached a different result

only by asking the wrong question. Instead of

assessing whether petitioners’ challenged oilproduction practices were “connected or associated”

with petitioners’ fulfillment of their federal contracts,

Exxon Mobil Corp., 89 F.4th at 155, the panel majority

asked instead whether the challenged practices were

“connected or associated with” a specific directive in

petitioners’ federal contracts.

See, e.g., App.19

(looking to the “relationship between” the “conduct

challenged in [respondents’] complaints and the

relevant federal directives in [petitioners’] refinery

contracts” (emphasis added)); App.29 (asking whether

the challenged “oil production activities ... had a

sufficient connection with directives in their federal

refinery contracts” (emphasis added)); App.37-38

(similar). And the panel majority seemed particularly

concerned that the contracts gave petitioners

“complete latitude” to buy crude rather than produce

it.

But none of that is relevant under the post-2011

statutory text. Before 2011, when removal was

available only “for” actions under color of federal

authority, demanding this kind of direction or

constraint in the federal contract might have made

sense. But by adding the phrase “or relating to,”

Congress plainly broadened the statute. “Relating to”

is a term of significant breadth that this Court has

repeatedly construed to mean connecting with or

associated with. See, e.g., Morales, 504 U.S. at 383-84;

Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96-97

(1983). The last thing that term means is “specifically

directed by or constrained by”—but that is the

requirement the panel majority superimposed on the

statute in finding petitioners’ extraction activities

unrelated to their refining activities.

As Judge Oldham explained in dissent, by

requiring a federal directive that specifically

addresses the challenged conduct and limits the

defendant’s discretion with respect to that conduct,

the panel majority’s reasoning departs from the

statutory text and “reinstates a version”—indeed, a

particularly demanding version—“of the old,

discarded, causal-nexus test.” App.57-58; see App.52.

3. The panel majority compounded its error by

limiting its new causal test to the express language of

the federal contracts themselves and declining to

consider the broader regulatory background.

According to the panel majority, because “compliance

with federal regulations” is not itself “action taken

under color of federal office,” the overarching

regulatory background has no role to play in

determining whether the “relating to” element is met.

App.24-25. Instead, the panel majority declared,

courts should look solely to “the contents of the

relevant federal contracts in determining whether the

challenged conduct was ‘connected or associated with’

acts taken under color of federal office.” App.25.

That analysis is wrong from start to finish. While

compliance with federal regulations alone cannot

show that a private party is “acting under” federal

direction, see, e.g., Watson, 551 U.S. at 153, that

hardly makes federal regulation irrelevant to whether

the challenged conduct and the defendant’s actions

under federal direction are related. Indeed, the

presence of those regulations may help explain why

the contract leaves such matters unaddressed. Here,

for example, the fact that the federal government not

only required petitioners (by contract) to produce

avgas, but also ensured (by regulation) that they

would refine crude from these specific fields into

avgas,

demonstrates

the

government’s

own

recognition of the close connection between

petitioners’ challenged production practices and their

federally directed refining activities. See App.54-55.

Moreover, the government’s extensive wartime

regulation of crude-oil production obviated the need

for individual refinement contracts to include

additional direction about where and how the

necessary crude oil should be procured. The panel

plainly erred by refusing to consider that regulatory

background in assessing the relationship between the

challenged conduct and petitioners’ acts under federal

direction, and insisting instead that federal-officer

removal would only be available if petitioners could

show an explicit contractual directive addressing their

challenged conduct.

After asserting that the broader regulatory

background was irrelevant to its analysis, the panel

majority then switched gears to suggest that the

federal government’s wartime crude-oil allocation

program

“severed

any

connection

between

[petitioners’] production and refinement activities.”

App.36. That focus on causation underscores that the

panel majority’s analysis reintroduces a variant of the

causal-nexus test. It also ignores that those allocation

orders only underscore the close connection between

production and refinement and the government’s

unique oversight of both due to wartime exigencies.

B. The Decision Below Exacerbates An

Entrenched Circuit Split.

The decision below is not only profoundly flawed,

but exacerbates a deep and entrenched circuit split.

The federal circuits are firmly split on the question

whether the causal-nexus test survives the 2011

amendment of the federal-officer removal statute.

And the decision below confuses matters further by

imposing a contractual-direction test in a circuit that

previously rejected the causal-nexus test.

The

resulting confusion was enough for six members of the

Fifth Circuit to vote for rehearing to restore clarity on

a recurring and important issue of federal law. Now

that the Fifth Circuit has fallen one vote short, only

this Court can resolve the confusion and clarify that

Congress meant what it said in adding “or relating to”

to the statute.

1. At least six other courts of appeals have held

that when Congress amended the federal-officer

removal statute in 2011 to reach suits “relating to”

acts taken under federal direction, it eliminated the

causal-nexus requirement embodied in the earlier

version of the statute. See Exxon Mobil Corp., 89 F.4th

at 155-56; Bd. of Cnty. Comm’rs v. Suncor Energy

(U.S.A.) Inc., 25 F.4th 1238, 1251 (10th Cir. 2022);

Moore v. Elec. Boat Corp., 25 F.4th 30, 35 (1st Cir.

2022); Baker v. Atl. Richfield Co., 962 F.3d 937, 944

(7th Cir. 2020); Sawyer v. Foster Wheeler LLC, 860

F.3d 249, 258 (4th Cir. 2017); Commonwealth’s

Motion, 790 F.3d at 471-72. None of these circuits has

interpreted “related to” to require an explicit

contractual directive pertaining to the defendant’s

challenged conduct.

Commonwealth’s Motion—the first federal

appellate decision to address the import of the 2011

amendment—is illustrative. There, the Third Circuit

recognized that “before 2011,” defendants seeking to

invoke federal-officer removal were required to show

that the acts for which they were being sued “occurred

at least in part ‘because of what they were asked to do

by the Government.’” 790 F.3d at 471. But by adding

the words “or relating to,” the Third Circuit

recognized, Congress deliberately expanded the scope

of federal-officer removal to make it available even in

cases without that kind of causal relationship. Id.

After all, “[t]he ordinary meaning of the words

‘relating to’ is a broad one—‘to stand in some relation;

to have bearing or concern; to pertain; refer; to bring

into association with or connection.’” Id. (brackets

omitted) (quoting Morales, 504 U.S. at 383). By

adding “or relating to” to the statute, Congress

accordingly made it “sufficient for there to be a

‘connection’ or ‘association’ between the act in

question and the federal office,” eliminating any need

to demonstrate a specific causal nexus. Id. That

understanding is not only compelled by the clear

statutory text, but “comports with the legislative

history of the amendment” as well, “which shows that

the addition … was intended to ‘broaden the universe

of acts’” that enable federal-officer removal. Id. at 47172 (quoting H.R. Rep. No. 112-17, pt.1 (2011), as

reprinted in 2011 U.S.C.C.A.N. 420, 425).

2. On the other side of the split, at least two

circuits continue to apply the “causal nexus” standard

despite Congress’ amendment of the federal-officer

removal statute. The Second Circuit has expressly

rejected the majority view that “the causal-nexus

requirement recognized in pre-2011 cases … was

abrogated by the Removal Clarification Act of 2011.”

Tong v. Exxon Mobil Corp., 83 F.4th 122, 145 n.7 (2d

Cir. 2023).

Accordingly, the Second Circuit

“continue[s] to apply the ca[us]al-nexus requirement.”

Id.; see, e.g., Veneruso v. Mt. Vernon Neighborhood

Health Ctr., 586 F.App’x 604, 608 (2d Cir. 2014).

The same goes for the Eleventh Circuit, which has

recently and repeatedly reaffirmed its longstanding

view that a defendant seeking federal-officer removal

“must establish a ‘causal connection between the

charged conduct and asserted official authority.’”

Georgia v. Meadows, 88 F.4th 1331, 1343 (11th Cir.

2023) (quoting Acker, 527 U.S. at 431); Georgia v.

Clark, 119 F.4th 1304, 1309-10, 1315-16 (11th Cir.

2024) (Rosenbaum, J., concurring) (reiterating that

the Eleventh Circuit imposes a “causal connection”

requirement).3

Adding to the confusion, the Eighth and Ninth

Circuits continue to use the phrase “causal nexus,” but

appear to have watered down their respective tests in

light of Congress’ 2011 amendment to §1442(a)(1). See

3 The Eleventh Circuit’s position is all the more remarkable

because it has previously recognized that Congress explicitly

amended §1442(a)(1) in 2011 to “broaden the scope of acts that

allow a federal officer to remove a case to federal court,” and that

the “relating to” language that Congress added “is broad and

requires only ‘a “connection” or “association” between the act in

question and the federal office.’” Caver v. Cent. Ala. Elec. Coop.,

845 F.3d 1135, 1144 & n.8 (11th Cir. 2017). The Eleventh Circuit

nevertheless continues to insist that a removing defendant must

demonstrate “a causal connection.” Id. at 1144; Clark, 119 F.4th

at 1309-10, 1315-16 (Rosenbaum, J., concurring); Meadows, 88

F.4th at 1343.

DeFiore v. SOC LLC, 85 F.4th 546, 557 n.6 (9th Cir.

2023) (“We read our ‘causal nexus’ test as

incorporating the ‘connected or associated with’

standard reflected in Congress’s 2011 amendment and

the Supreme Court’s decisions”); Goncalves ex rel.

Goncalves v. Rady Child.’s Hosp. San Diego, 865 F.3d

1237, 1244-45, 1250 (9th Cir. 2017) (noting that the

2011 amendment “expanded” the availability of

removal, but continuing to require a “causal nexus”);

Minnesota ex rel. Ellison v. Am. Petroleum Inst., 63

F.4th 703, 715 (8th Cir. 2023) (“describ[ing] the

standard in terms of ‘causal connection,’” but claiming

to apply a “lower, post-amendment standard”).4

3. The decision below plainly puts the Fifth

Circuit in a category of its own. While the Fifth

Circuit was at the vanguard of recognizing the import

of the 2011 amendment to the federal-officer removal

statute, going en banc to reject the causal-nexus test

in Latiolais, it has now put itself in a class of one by

adopting a particularly demanding sub-variant of the

discarded causal-nexus test, as evidenced by the

author of the en banc Latiolais opinion joining the en

banc dissenters. Moreover, the decision below cannot

be reconciled with decisions from other circuits

4 Neither the Sixth Circuit nor the Federal Circuit has issued

a published opinion addressing the effect of the 2011 amendment

to the federal-officer removal statute. One unpublished Sixth

Circuit opinion from 2016 recognizes that the 2011 amendment

broadened the statute’s reach. Ohio St. Chiropractic Ass’n v.

Humana Health Plan Inc., 647 F.App’x 619, 624-65 (6th Cir.

2016). On the other hand, a different unpublished Sixth Circuit

opinion issued in 2019 applies a “causal connection” test without

any mention of the 2011 amendment. See Abernathy v. Kral, 779

F.App’x 304, 307 (6th Cir. 2019).

rejecting the causal-nexus test and faithfully applying

the statutory text to allow for removal in the absence

of any contractual direction.

For example, the Third Circuit has specifically

rejected the panel majority’s view that removal is

impermissible unless a specific federal directive

addresses the challenged conduct. Commonwealth’s

Motion, 790 F.3d at 470-72. In Commonwealth’s

Motion, state prosecutors moved to disqualify the local

federal public defender from representing clients in

state-court post-conviction proceedings, and the public

defender removed the controversy to federal court. Id.

at 461. The Third Circuit found removal proper,

concluding that the public defender was entitled to

invoke federal-officer removal even though the

relevant federal contracts addressed only federalcourt habeas proceedings and did not mention—let

alone mandate participation in—state-court postconviction proceedings. See id. at 472.

Particularly relevant here, the Third Circuit

refused to treat the lack of any explicit federal

direction to appear in state-court proceedings as

dispositive, and expressly rejected the argument that

§1442(a)(1)’s “relating to” prong requires a defendant

seeking removal to show that it “acted pursuant to a

federal duty in engaging in the complained-of

conduct.” Id. at 470. While no federal directive

required the public defender “to appear in [state postconviction proceedings] on behalf of its clients,” id., the

Third Circuit still held that the “relating to”

requirement was satisfied, explaining that the

significant “impact [state post-conviction proceedings]

can have on a subsequent federal habeas petition”

provided the necessary relationship between the

challenged conduct and the public defender’s acts

under federal direction. Id. at 472.

The Fourth Circuit recognized the same point in

Sawyer. See 860 F.3d at 258. That case involved a

shipbuilder whose death was allegedly “caused by

exposure to asbestos while assembling boilers” that

the defendant manufactured “for use aboard U.S.

Navy vessels”; the plaintiffs alleged that the

contractor negligently failed to warn its employees of

the dangers of asbestos. Id. at 251-52. The Fourth

Circuit allowed removal even though “no federal

officer provided any direction regarding whether to

warn [defendant]’s workers in the shipyard’s boiler

shop about asbestos.” Id. at 258. The Fourth Circuit

explained that §1442(a)(1), as amended in 2011, does

not “demand[] a showing of a specific government

direction”; it is enough “that the charged conduct

relate to an act under color of federal office.” Id.

The Fourth Circuit’s rejection of a contractualdirection test in Sawyer underscores the incoherence

of the decision below. The Latiolais decision arose in

essentially the same factual context as Sawyer, and

the en banc court seized on that factual context to

reject the causal-nexus test.

But if the panel

majority’s contractual-direction standard were

applied to the facts of Latiolais, the case would have

come out the other way (as evidenced by the district

court’s remand order in Sawyer, which emphasized

the lack of contractual direction).5

In short, the decision below exacerbates an

entrenched split in the federal courts of appeals over

whether and to what extent a causal-nexus standard

survived the 2011 amendment to §1442(a)(1). This

Court should grant certiorari and end the ongoing

division in the courts of appeals on this important and

recurring question.

II. The Question Presented Is Important, And

This Is An Excellent Vehicle To Resolve It.

As this Court has explained, federal-officer

removal dates back to the early days of our Nation

(and has repeatedly been expanded) for “th[e] very

basic reason” that those charged with carrying out the

business of the federal government should not be

forced to rely on potentially “hostile state courts” in

litigating federal immunity and other federal

defenses. Willingham, 395 U.S. at 405-07; accord

App.40-44 (Oldham, J., dissenting). Congress has

accordingly extended the protections of federal-officer

removal beyond full-time officers to those “acting

under” those federal officers to help them discharge

5 The decision below also conflicts with Sawyer insofar as the

panel majority limited its assessment of relatedness to “the

contents of the relevant federal contracts,” ignoring federal

regulations. See App.24-25. Sawyer took the opposite approach:

Although the federal contract in that case was apparently silent

regarding safety warnings, the Fourth Circuit looked to

“associated regulations and procedures” and “actual practice as

it evolved in the field” to determine that the challenged conduct

was “related to [the defendant’s] performance of its contract with

the Navy.” 860 F.3d at 256, 258.

important federal responsibilities. The quintessential

example of the kind of private parties protected by

that “acting under” language are government

contractors who “help[] the Government … produce …

item[s] that it needs” and “fulfill other basic

governmental tasks”—in recognition of the fact that

those federal contractors likewise require protection

from “[s]tate-court proceedings” that may “reflect

‘local prejudice.’” Watson, 551 U.S. at 150, 153; see

Arizona v. Manypenny, 451 U.S. at 241 (similar); see

also, e.g., Mohr v. Trs. of Univ. of Pa., 93 F.4th 100,

105 (3d Cir. 2024) (“‘Government contractors are [the]

classic example’ of private parties who are acting

under the federal government.”).

The issue of federal-officer removal is important

enough to Congress that it has revisited the issue on

numerous occasions, almost universally broadening

the protections available. See supra pp.5-7. And in

recognition of those congressional priorities, this

Court has repeatedly admonished lower courts to

interpret the federal-officer removal provision

broadly. See, e.g., Watson, 551 U.S. at 147; see, e.g.,

Manypenny, 451 U.S. at 242; Willingham, 395 U.S. at

407; Symes, 286 U.S. at 517.

The decision below ignores those priorities and

admonishments and deprives the 2011 amendment to

the statute of its intended effect. Moreover, it does so

in a context where the policies behind the federalofficer removal statute could hardly be more apposite.

The underlying dispute is not just any state-law suit,

but an effort by local governments to obtain massive

recoveries from companies that assisted the federal

war effort long ago. The memories of the national

imperatives that caused a reordering of the petroleum

sector and an unprecedented effort to extract crude

and refine avgas in service of the national defense

have faded. The current-day financial challenges of

local governments and the advantages of a lawsuit

windfall over increasing local taxes, by contrast, are

front of mind.

Under those circumstances, the

importance of providing a federal forum is beyond

obvious.

But even beyond the dire circumstances facing

petitioners in this case, the baleful implications of the

decision below for federal contractors and the federal

government are manifest. In our increasingly complex

world, the federal government depends on federal

contractors for critical services the government cannot

furnish itself. Taking advantage of private-sector

expertise and avoiding a further expansion of the

federal-government bureaucracy that comes with

taking all this work in-house make federal contracting

more important than ever. Yet the decision below

leaves federal contractors exposed to litigation in state

court systems and creates perverse incentives for

federal contracts to be larded up with specific

directions. Accordingly, as the Chamber of Commerce

and the National Association of Manufacturers

pointed out in an amicus brief in support of rehearing,

the uncertainty created by the panel majority’s

reimposition of a causal-nexus requirement will

“inevitably have ‘a chilling effect on [the] acceptance

of government contracts.’” No.23-30294, Dkt.248 at 10

(quoting Isaacson v. Dow Chem. Co., 517 F.3d 129, 134

(2d Cir. 2008)). And by deterring private-sector

assistance to the federal government, the decision

below (and the decisions of the other circuits that have

retained a causal-nexus requirement) threaten to

“affect the government’s ability to fulfill its needs ‘at a

reasonable cost.’” Id. at 11 (quoting Winters v.

Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th

Cir. 1998)).

Even more troubling, the decision below will

cause the private sector to think twice—or demand

some combination of extensive directions or expensive

indemnification

provisions—before

supporting

defense priorities in an hour of national need. A

majority of federal contracts even in peacetime relate

to national defense, and the need for private-sector

cooperation ramps up substantially during times of

national crisis. But fulfilling those urgent national

priorities may prove unpopular in certain localities,

especially when lawsuits that promise to benefit

localities are not filed until decades after the national

exigency has passed. The federal-officer removal

statute exists to protect against the inevitable chilling

effect of that kind of state-court litigation. The

decision below, by contrast, creates all the wrong

incentives for private entities asked to help out in an

hour of national need. As two former Chairmen of the

Joint Chiefs of Staff explained in an amicus brief

below, that approach would have “devastating

implications for our national defense.” No.23-30294,

Dkt.247 at 13.

This case is also an excellent vehicle for resolving

this issue. The proper application of the “relating to”

element here was thoroughly litigated by the parties,

addressed by both district court decisions, and

explored by both the panel majority’s published

opinion and Judge Oldham’s dissent. There are no

material disputes of fact regarding petitioners’ WWIIera production and refining activities or the contents

of petitioners’ federal contracts. While at first blush it

may seem like 2025 litigation concerning WWII-era

events is an idiosyncratic vehicle for this Court’s

review, the very fact that state courts in Louisiana are

allowing this litigation to proceed—and other

defendants have felt the need to settle—only

underscores the importance of a federal forum. And in

all other respects, the WWII context underscores the

stakes in these cases. When America needed the

private sector to pitch in to address the exigency of

producing sufficient avgas to fight the war effort, the

private sector jumped in with both feet. With the

benefit of 80 years of hindsight, a Louisiana jury might

decide that it would have been better to use directional

drilling or other novel and time-consuming methods

that would have frustrated the war effort. Simply put,

petitioners face the prospect of massive state-law

liability for fulfilling a federal contract in wartime.

The federal-officer removal statute exists to protect

against that prospect, but the federal courts are in

disarray about the proper application of that statute.

This Court should grant certiorari and reverse.

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

PETER D. KEISLER

JENNIFER J. CLARK

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, DC 20005

ALEXANDRA WHITE

ERIC J. MAYER

SUSMAN GODFREY

LLP

1000 Louisiana Street,

Suite 5100

Houston, TX 77002

PAUL D. CLEMENT

Counsel of Record

C. HARKER RHODES IV

JOSEPH J. DEMOTT

CLEMENT & MURPHY, PLLC

706 Duke Street

Alexandria, VA 22314

(202) 742-8900

paul.clement@clementmurphy.com

ROBERT B. MCNEAL

LISKOW & LEWIS

Hancock Whitney Center

701 Poydras Street,

CHARLES S. MCCOWAN III

Suite 5000

New Orleans, LA 70139

PAMELA R. MASCARI

KEAN MILLER LLP

JAMIE D. RHYMES

II City Plaza

400 Convention St.,

LISKOW & LEWIS

Suite 700

1200 Camellia Blvd.,

P.O. Box 3513 (70821)

Suite 300

Baton Rouge, LA 70801

Lafayette, LA 70508

MICHAEL R. PHILLIPS

CLAIRE E. JUNEAU

KEAN MILLER LLP

909 Poydras Street,

Suite 3600

New Orleans, LA 70112

Counsel for Chevron

U.S.A. Inc., Chevron

U.S.A. Holdings Inc.,

Chevron Pipe Line

Company, and The Texas

Company

MARTIN A. STERN

JEFFREY E. RICHARDSON

ALEXANDRA LAMB

ADAMS AND REESE LLP

701 Poydras Street,

Suite 4500

New Orleans, LA 71039

Counsel for Exxon Mobil

Corporation

MICHAEL J. MAZZONE

HAYNES AND BOONE, LLP

1221 McKinney, Suite 4000

Houston, TX 77010

Counsel for Burlington

Resources Oil & Gas Company

January 29, 2025

APPENDIX

TABLE OF APPENDICES

Appendix A

Opinion, United States Court of Appeals

for the Fifth Circuit, Plaquemines Parish

v. BP Am. Prod. Co., No. 23-30294, Parish

of Cameron v. BP Am. Prod. Co.,

No. 23-30422 (May 29, 2024) ...................... App-1

Appendix B

Order, United States Court of Appeals for

the Fifth Circuit, Plaquemines Parish v.

BP Am. Prod. Co., No. 23-30294, Parish of

Cameron v. BP Am. Prod. Co.,

No. 23-30422 (Oct. 31, 2024) ..................... App-64

Appendix C

Order, United States District Court for

the Eastern District of Louisiana,

Jefferson Parish v. Atl. Richfield Co.,

No. 18-5246, Plaquemines Parish v. Total

Petrochemical & Refining USA, Inc.,

No. 18-5256 (Apr. 21, 2023) ...................... App-66

Appendix D

Order and Reasons, United States

District Court for the Eastern District of

Louisiana, Parish of Plaquemines

v. Northcoast Oil Co., No. 18-5228

(Apr. 18, 2023) ........................................... App-68

Appendix E

Judgment, United States District Court

for the Western District of Louisiana,

Parish of Cameron v. Apache Corp. of

Delaware, No. 18-00688 (Dec. 22, 2022) ... App-97

Appendix F

Reasons for Decision, United States

District Court for the Western District

of Louisiana, Parish of Cameron v.

Auster Oil & Gas Inc., No. 18-00677

(Dec. 22, 2022) ........................................... App-99

Appendix G

Reasons for Decision, United States

District Court for the Western District

of Louisiana, Parish of Cameron v.

Apache Corp. (of Delaware), No. 18-00688

(June 13, 2023) ........................................ App-126

Appendix H

Contract Between Defense Supply Corp.

and Texas Company (Port Arthur

Refinery – Second Contract), 100-Octane

Aviation Gasoline (Mar. 10, 1942) .......... App-150

Appendix I

Relevant Statutory Provision.................. App-182

28 U.S.C. §1442 ................................. App-182

App-1

Appendix A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 23-30294

________________

PLAQUEMINES PARISH,

Plaintiff-Appellee,

LOUISIANA STATE; LOUISIANA DEPARTMENT OF

NATURAL RESOURCES, Office of Coastal Management,

Thomas F. Harris, Secretary,

Intervenors-Appellees,

BP AMERICA PRODUCTION CO., et al.

DefendantsAppellants.

________________

No. 23-30422

________________

PARISH OF CAMERON,

Plaintiff-Appellee,

LOUISIANA STATE; LOUISIANA DEPARTMENT OF

NATURAL RESOURCES, Office of Coastal Management,

Thomas F. Harris, Secretary,

Intervenor PlaintiffsAppellees,

App-2

BP AMERICA PRODUCTION CO., et al.

DefendantsAppellants.

________________

Filed: May 29, 2024

________________

Before Davis, Engelhardt, and Oldham,

Circuit Judges.

________________

OPINION

________________

W. Eugene Davis, Circuit Judge:

This consolidated appeal concerns whether

lawsuits commenced in state court by Louisiana

parishes against various oil and gas companies for

their alleged state-law violations give rise to federal

jurisdiction. The companies removed these cases to

federal court pursuant to the federal officer removal

statute, 28 U.S.C. § 1442(a)(1), asserting that they

satisfy each of the statute’s requirements in light of

their refining contracts with the government during

World War II. The district courts granted the parishes’

motions to remand these cases to state court after

concluding that the oil companies did not meet their

burden of establishing federal jurisdiction. The oil

companies now appeal those decisions. Because we

conclude these cases were not properly removed under

the federal officer removal statute, we AFFIRM the

district courts’ orders remanding these cases to state

court.

App-3

This litigation has a long procedural history,

including two prior appeals to this Court. It originated

in 2013 when several Louisiana coastal parishes,

joined by the Louisiana Attorney General and the

Louisiana Secretary of Natural Resources, filed fortytwo lawsuits against various oil and gas companies in

state court alleging violations of Louisiana’s State and

Local Coastal Resources Management Act of 1978

(“SLCRMA”).

SLCRMA took effect in 1980, and requires parties

engaging in certain “uses” within Louisiana’s “coastal

zone” to comply with a permitting scheme.1 It defines

“use” to include any “activity within the coastal zone

which has a direct and significant impact on coastal

waters,” and defines “Coastal Zone” to include “the

coastal waters and adjacent shorelands,” defined by

Louisiana law, that “are strongly influenced by each

other.”2 As relevant here, SLCRMA creates a cause of

action against parties that violate or fail to obtain the

requisite coastal use permit.3 However, there are

several exemptions to SLCRMA’s permitting

requirement, including a “grandfather clause,” which

states that: “[i]ndividual specific uses legally

commenced or established prior to the effective date of

the coastal use permit program shall not require a

coastal use permit.”4

1 La. Stat. Ann. § 49:214.30(A)(1).

2 Id. § 49:214.23(5), (13).

3 Id. § 214.36 (D)-(E).

4 Id. § 214.34(C)(2).

App-4

In each lawsuit, the coastal parishes sued various

oil companies for their oil and gas exploration,

production, and transportation operations in a

different “Operational Area”5 of the Louisiana coast.

The parishes’ “materially identical” petitions “allege

that the companies violated SLCRMA by failing to

obtain necessary coastal use permits or by violating

the terms of the permits they did obtain.”6

Additionally, the parishes contend that the companies’

pre-SLCRMA

activities

were

not

“lawfully

commenced” and therefore do not fall within the

grandfather clause exemption which would excuse

such noncompliance.7 The parishes seek damages

under SLCRMA, including for “restoration and

remediation costs; actual restoration of disturbed

areas to their original condition; costs necessary to

clear, revegetate, detoxify and otherwise restore the

affected portions of the . . . Coastal Zone as near as

practicable to its original condition.”

The oil companies have attempted to remove

these cases to federal court on three separate

occasions.8 First, in 2013, the companies removed

5 “The term ‘Operational Area’ is used throughout the plaintiffs’

petition to describe the geographic extent of the area within

which the complained-of operations and activities at issue in this

action occurred.” Par. of Plaquemines v. Northcoast Oil Co.,

No. 18-5228, 2023 WL 2986371, at *1 (E.D. La. Apr. 18, 2023).

6 Par. of Plaquemines v. Chevron USA, Inc. (Plaquemines I),

7 F.4th 362, 366 (5th Cir. 2021).

7 Id.

8 “A defendant who fails in an attempt to remove on the initial

pleadings can file a second removal petition when subsequent

pleadings or events reveal a new and different ground for

removal.” S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 492-93

App-5

these cases on the grounds of federal question, general

maritime law, the Outer Continental Shelf Lands Act,

and diversity jurisdiction. The federal district courts

rejected all four jurisdictional bases and remanded the

cases to state court.9

After returning to state court, the oil companies

filed motions seeking clarification about the specific

state law violations underlying the parishes’

lawsuits.10 In response, in April of 2018, Plaquemines

Parish issued an expert report—the Rozel report—in

one of the pending cases, and certified that the report

“represented the position of the Louisiana

Department of Natural Resources in all forty-two

cases.”11 The Rozel report “triggered” the potential

application of SLCRMA’s grandfather clause by

placing at issue the companies’ pre-SLCRMA conduct,

including conduct that occurred during World War

II.12 Specifically, the Rozel report opined that the oil

companies’ pre-1980 production activities were not

“lawfully commenced or established” for purposes of

the grandfather clause because such activities did not

(5th Cir. 1996) (emphasis in original) (internal quotation marks

and citation omitted).

9 See, e.g., Par. of Plaquemines v. Total Petrochemical & Refin.

USA, Inc., 64 F. Supp. 3d 872, 906 (E.D. La. 2014).

10 Par. of Plaquemines v. Riverwood Prod. Co. (Riverwood I),

No. 18-5217, 2019 WL 2271118, at *2 (E.D. La. May 28, 2018),

aff’d in part, rev’d in part and remanded sub nom. Plaquemines

I, 7 F.4th 362.

11 Plaquemines I, 7 F.4th at 366-67.

12 Northcoast, 2023 WL 2986371, at *1.

App-6

begin in “good faith” by departing from prudent

industry practices.13

According to the oil companies, the Rozel report

“unveiled a new legal theory,” which they relied on to

remove these cases to the Eastern and Western

Districts of Louisiana, this time alleging federal

question and federal officer jurisdiction.14 The

parishes again moved to remand the cases to state

court. The Eastern District of Louisiana designated

Plaquemines Parish v. Riverwood Production Co. as

the lead case and stayed the other cases pending a

decision in Riverwood. The Western District of

Louisiana adopted a similar approach and designated

Cameron Parish v. Auster Oil & Gas, Inc., as the lead

case in that district.15

The courts in both Riverwood I and Auster

ultimately granted the parishes’ remand motions after

concluding that neither federal question nor federal

officer jurisdiction existed.16 The oil companies

appealed both decisions, and we consolidated the cases

on appeal. In Plaquemines I, this Court affirmed the

district court decisions on federal question

jurisdiction, but remanded with respect to federal

officer jurisdiction in light of an intervening en banc

13 Plaquemines I, 7 F.4th at 367.

14 Id.

15 Northcoast, 2023 WL 2986371, at *2.

16 Riverwood I, 2019 WL 2271118, at *8-22; Par. of Cameron v.

Auster Oil & Gas Inc., 420 F. Supp. 3d 532, 540-50 (W.D. La.

2019), aff’d in part, rev’d in part and remanded sub nom.

Plaquemines I, 7 F.4th 362.

App-7

decision, Latiolais v. Huntington Ingalls, Inc.,17 which

altered our federal officer removal precedent.18

On remand, the district court in Riverwood II,

after considering the impact of Latiolais, again held

there was no federal officer jurisdiction. The court first

acknowledged that under Latiolais, the “new” federal

officer removal test requires a defendant to show:

“(1) it has asserted a colorable federal defense, (2) it is

a ‘person’ within the meaning of the statute, (3) that

has acted pursuant to a federal officer’s directions, and

(4) the charged conduct is connected or associated

with an act pursuant to a federal officer’s directions.”19

The court then proceeded to analyze whether the oil

companies had met these four prongs, ultimately

concluding they could establish all but the third

“acting under” prong, which was unaltered by

Latiolais.20

951 F.3d 286 (5th Cir. 2020) (en banc). As explained in

greater detail below, in Latiolais, we expanded the scope of the

fourth prong of the federal officer removal test. Specifically, we

replaced the “causal nexus” test with the broader “connected or

associated with” test. Under the revised fourth element, a

removing defendant must show that the conduct challenged in a

plaintiff’s complaint is “connected or associated with” acts the

defendant has taken under color of federal office. Id. at 292-96.

18 Plaquemines I, 7 F.4th at 373-75.

19 Par. of Plaquemines v. Riverwood Prod. Co. (Riverwood II),

No. 18-5217, 2022 WL 101401, at *4 (E.D. La. Jan. 11, 2022)

(quoting Latiolais, 951 F.3d at 296).

20 Id. at *6-10.

App-8

The oil companies again appealed, and this Court

affirmed.21 In Plaquemines II, we held that the

companies had failed to satisfy the “acting under”

prong of federal officer removal because their

“compli[ance] with federal regulations or cooperat[ion]

with federal agencies” was insufficient to bring a

private action within § 1442(a)(1).22 The Plaquemines

II opinion concluded by stating: “As the district court

noted, the ‘refineries, who had federal contracts and

acted pursuant to those contracts, can likely remove

[under § 1442], but that does not extend to [parties]

not under that contractual direction.”23 The Supreme

Court denied certiorari in Plaquemines II on February

27, 2023.24

Following Plaquemines II, the district court in

Auster again remanded that case to state court

because the oil companies satisfied neither the “acting

under” nor the “connected or associated with”

requirements for federal officer removal.25

This background brings us to the present

consolidated appeal which involves two cases that

were stayed during the pendency of the above

litigation. In the appeal from the Eastern District of

Plaquemines Par. v. Chevron USA, Inc. (Plaquemines II),

No. 22-30055, 2022 WL 9914869, at *4 (5th Cir. Oct. 17, 2022)

(per curiam) (unpublished).

22 Id. at *3.

23 Id. at *4 (quoting Riverwood II, 2022 WL 101401, at *7).

24 Chevron USA, Inc. v. Plaquemines Par., La., 143 S. Ct. 991

(2023) (mem.).

25 Par. of Cameron v. Auster Oil & Gas Inc., No. 18-677, 2022

WL 17852581, at *3-10 (W.D. La. Dec. 22, 2022).

App-9

Louisiana—Plaquemines Parish v. BP—the district

court reopened the case in January 2023. The next

day, Plaintiffs, Plaquemines Parish and the State of

Louisiana, filed a motion to remand, arguing that the

case was “indistinguishable from the relevant

jurisdictional[,] factual[,] and legal issues in

Riverwood.”

Defendants, Chevron U.S.A., Inc. (“Chevron”) et

al., opposed the motion, arguing that the case was

distinguishable from Riverwood II because two

predecessors to Chevron—The Texas Company and

Gulf Oil Company (“Gulf”)—were vertically integrated

oil companies that produced crude oil in the

Operational Areas and used some of that crude at

their refineries to comply with their World War II-era

contracts with the government. Thus, unlike in

Riverwood II, Plaquemines II, and Auster, where the

oil companies could not show they were “acting under”

a federal officer, Defendants here were federal

contractors. In support of their new removal theory,

Defendants relied on the language in Plaquemines II

that “refineries, who had federal contracts and acted

pursuant to those contracts, can likely remove [under

§ 1442].”26

The district court granted Plaintiffs’ motion and

remanded the case to state court for the same reasons

it gave in Parish of Plaquemines v. Northcoast Oil Co.

In Northcoast, the district court held that Defendants’

“refinery-contract-based theory” satisfied neither the

“acting under” nor the “connected or associated with”

26 2022 WL 9914869, at *4 (quoting Riverwood II, 2022 WL

101401, at *7).

App-10

requirements

for

federal

officer

removal.27

Specifically, the court emphasized that although

Defendants may have been “acting under” a federal

officer in the refinery context, the relevant refinery

contracts “lack[ed] any connection” to the oil

production activities at issue in the lawsuit.28 The

court stayed its remand order pending the resolution

of this appeal.

The second case in this consolidated appeal—

Parish of Cameron v. BP—is from the Western District

of Louisiana. In that case, the district court granted

Plaintiff Parish of Cameron’s motion to remand for the

same reasons the court gave in Auster. Defendants,

Shell USA, Inc. (“Shell”) et al., filed a motion for

reconsideration, raising the same refinery-contractbased theory for removal. In that case, Defendant

Shell had refinery contracts with the government

during World War II, and its refineries used some of

the crude oil Shell produced from the Black Bayou

Field in Cameron Parish to fulfill those contracts. The

district court denied Defendants’ motion for

reconsideration, concluding that Shell was unable to

show it was “acting under” a federal officer, and that

the oil production activities at issue in the lawsuit

were not related to any refinery activities taken

pursuant to Shell’s federal contracts. The court also

stayed its remand order pending the resolution of this

appeal.

Defendants timely appealed both remand orders.

We designated Plaquemines Parish v. BP as the lead

27 2023 WL 2986371, at *4, 9-11.

28 Id. at *9-10.

App-11

case among the related “refinery cases” pending before

us from the Eastern District. And we consolidated

Plaquemines Parish v. BP with Parish of Cameron v.

BP,29 the only refinery case appealed from the

Western District.

II.

“An order remanding a case to state court is ‘not

generally reviewable.’”30 However, an order

remanding a case under the federal officer removal

statute is “reviewable by appeal or otherwise.”31 We

29 After oral argument, Defendants, BP American Production

Company (“BP”) and Shell, informed the Court that they have

reached a settlement with Cameron Parish and therefore

withdraw their appeal in Parish of Cameron v. BP, No. 23-30422.

BP additionally noted that it remained a party in the appeal from

the Eastern District of Louisiana, Plaquemines Parish v. BP,

No. 23-30294. Defendant Chevron also notified the Court that it

has not settled nor intends to settle either appeal. Although

Defendants’ federal officer removal theory in the Parish of

Cameron appeal is based on Shell’s federal contracts, Shell’s

withdrawal from the appeal does not deprive this Court of

jurisdiction. See Manguno v. Prudential Prop. & Cas. Ins. Co.,

276 F.3d 720, 723 (5th Cir. 2002) (“To determine whether

jurisdiction is present for removal, we consider the claims in the

state court petition as they existed at the time of removal.”

(citation omitted)). Thus, “[o]ur analysis proceeds as if the

Federal Officer Defendants had not been dismissed.” Bartel v.

Alcoa S.S. Co., 805 F.3d 169, 172 n.2 (5th Cir. 2015), overruled

on other grounds by Latiolais, 951 F.3d 286 (“These Federal

Officer Defendants have since been dismissed from the

action . . . [and although] the claims against them gave rise to

potential removability we now consider, our analysis is

unaffected by the dismissals.”).

30 Plaquemines I, 7 F.4th at 367 (quoting Latiolais, 951 F.3d at

290).

31 28 U.S.C. § 1447(d).

App-12

review a district court’s remand order de novo.32 But

we review the “district court’s factual determinations

made in the process of determining jurisdiction . . . for

clear error.”33

Unlike other removal doctrines, “federal officer

removal is not narrow or limited.”34 However, it

remains the removing party’s burden to establish

federal jurisdiction exists.35 And if the removing party

establishes that one claim satisfies the requirements

under § 1442(a)(1), the entire case is deemed

removable.36

III.

Defendants removed these cases under

§ 1442(a)(1), which provides federal jurisdiction over

state court actions filed against “any officer (or any

person acting under that officer) of the United States

or of an agency thereof, in an official or individual

capacity, for or relating to any act under color of such

office.”37 The statute’s “basic purpose” is to protect the

federal government from interference with its

32 Latiolais, 951 F.3d at 290 (citation omitted).

33 U.S. Fire Ins. Co. v. Villegas, 242 F.3d 279, 283 (5th Cir.

2001) (citation omitted).

34 Butler v. Coast Elec. Power Ass’n, 926 F.3d 190, 195 (5th Cir.

2019) (internal quotation marks and citation omitted); see also

Williams v. Lockheed Martin Corp., 990 F.3d 852, 859 (5th Cir.

2021) (“[T]he federal officer removal statute is to be broadly

construed in favor of a federal forum.” (internal quotation marks

and citation omitted)).

35 Butler, 926 F.3d at 195.

36 Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 606 (5th

Cir. 2018).

37 28 U.S.C. § 1442(a)(1).

App-13

operations that would ensue if a state were able to

arrest federal officers or agents acting within the

scope of their authority and bring them to trial in state

court on state-law charges.38

In order to remove a case under § 1442(a)(1), a

private defendant must show that: “(1) it has asserted

a colorable federal defense, (2) it is a ‘person’ within

the meaning of the statute, (3) that has acted

pursuant to a federal officer’s directions, and (4) the

charged conduct is connected or associated with an act

pursuant to a federal officer’s directions.”39 Here,

Plaintiffs do not dispute that Defendants are

“person[s]” within the meaning of § 1442(a)(1) and

therefore satisfy the second requirement for

removal.40 Instead, Plaintiffs argue that Defendants

are unable to meet the remaining three elements.

Because the district courts held that Defendants failed

Watson v. Philip Morris Cos., 551 U.S. 142, 150 (2007)

(internal quotation marks and citation omitted); see also Glenn v.

Tyson Foods, Inc., 40 F.4th 230, 232 (5th Cir. 2022) (“While the

scope of federal officer removal has broadened, its purpose

remains the same: to give those who carry out federal policy a

more favorable forum than they might find in state court.”

(citation omitted)); Elizabeth M. Johnson, Removal of Suits

Against Federal Officers: Does the Malfeasant Mailman Merit a

Federal Forum?, 88 Colum. L. Rev. 1098, 1098-99 (1988)

(“Congress enacted these statutes in response to conflicts

between states and the federal government to protect officers

carrying out controversial federal policies.”).

39 Latiolais, 951 F.3d at 296.

40 See Butler, 926 F.3d at 201 (acknowledging that “the removal

statute applies to private persons and corporate entities”

(citations omitted)).

App-14

to establish the third and fourth elements, we begin

our analysis with these two elements.

Private persons, including corporations, may

invoke the federal officer removal statute only if they

were “acting under” a federal officer or agency. The

phrase “acting under” describes “the triggering

relationship between a private entity and a federal

officer.”41 In describing the “acting under” inquiry, the

Supreme Court in Watson acknowledged that it is a

“broad” phrase that must be “liberally construed,” but

is “not limitless.”42

In cases involving a private party, the “acting

under” relationship “must involve an effort to assist,

or to help carry out, the duties or tasks of the federal

superior.”43 And although a removing defendant “need

not show that its alleged conduct was precisely

dictated by a federal officer’s directive,” it must show

that a federal officer exerted “a sufficient level of

subjection, guidance, or control over the private

actor.”44 However, “the help or assistance necessary to

bring a private person within the scope of the statute

does not include simply complying with the law.”45

This is true “even if the regulation is highly detailed

41 Watson, 551 U.S. at 149.

42 Id. at 147 (internal quotation marks and citations omitted).

43 Id. at 152 (emphasis in original) (citation omitted).

44 St. Charles Surgical Hosp., L.L.C. v. La. Health Serv. &

Indem. Co. (St. Charles II), 990 F.3d 447, 454-55 (5th Cir. 2021)

(internal quotation marks and citations omitted).

45 Watson, 551 U.S. at 152 (emphasis in original).

App-15

and even if the private firm’s activities are highly

supervised and monitored.”46

Here, the district courts held that Defendants

could not satisfy the “acting under” requirement. Both

courts concluded that although Defendants may have

acted under a federal officer in refining petroleum

products, they were unable to show they acted under

a federal officer in producing crude oil.47 We disagree.

A private party “working under a federal contract

to produce an item the government needed” is the

“archetypal case” of a defendant “acting under” a

federal officer.48 For example, in Watson, the Supreme

Court cited with approval this Court’s decision in

Winters v. Diamond Shamrock Chemical Co.,49

46 Id. at 153.

Northcoast, 2023 WL 2986371, at *8-10 (holding that

Defendants failed to satisfy the “acting under” prong “by relying

on federal directives governing conduct (refining) that is not

implicated by the plaintiffs’ lawsuit”).

48 Williams, 990 F.3d at 859; see, e.g., Latiolais, 951 F.3d at 296

(holding that the removing defendant “performed the

refurbishment and, allegedly, the installation of asbestos

pursuant to directions of the U.S. Navy” and therefore “act[ed]

under color of federal office”); St. Charles Surgical Hosp., L.L.C.

v. La. Health Serv. & Indem. Co. (St. Charles I), 935 F.3d 352,

356 (5th Cir. 2019) (analyzing the terms of the defendant’s

contract with the Office of Personnel Management to conclude

that the federal agency “enjoys a strong level of guidance and

control over” the defendant); Bd. of Cnty. Comm’rs of Boulder

Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238, 1253 (10th

Cir. 2022) (emphasizing that a contract for “[w]artime production

is the paradigmatic example for this special [acting under]

relationship”).

49 149 F.3d 387 (5th Cir. 1998), overruled on other grounds by

Latiolais, 951 F.3d 286.

App-16

wherein we held that Dow Chemical, a federal

contractor, was “acting under” a federal officer when

it manufactured Agent Orange, a product the

government used during the Vietnam War.50 Like Dow

Chemical, Defendants here were federal contractors

that refined a product—100-octane aviation gasoline

(“avgas”)—that the government needed to fight in

World War II. And like Dow Chemical’s contract with

the Department of Defense, the terms of Defendants’

federal contracts vested the government with control

over the size and manufacturing capacity of their

refineries.51 Accordingly, Defendants have shown that

they had the necessary relationship with the

government to satisfy the “acting under” requirement.

The district courts came to the opposite conclusion

by requiring Defendants to show not only that they

“act[ed] under” a federal officer, but also that they

acted pursuant to federal directives when they

engaged in the conduct giving rise to Plaintiffs’ suits.

But such a requirement impermissibly conflates the

“distinct” “acting under” and “connected or associated

with” elements of the federal officer removal test.52

50 Watson, 551 U.S. at 153-54 (citing Winters, 149 F.3d at 398-

99).

51 See infra Part III.B.2; Winters, 149 F.3d at 398-99 (detailing

the government’s control over Dow Chemical’s production of

Agent Orange).

See St. Charles II, 990 F.3d at 454 (emphasizing that

although “the ‘acting under’ and ‘connection’ elements may often

ride in tandem toward the same result, they are distinct”); see

also Betzner v. Boeing Co., 910 F.3d 1010, 1015 (7th Cir. 2018)

(explaining that the “acting under color of federal authority

requirement . . . is distinct from the acting under requirement in

the same way a bona fide federal officer could not remove a

App-17

Specifically, it is inconsistent with the fact that “a

defendant might be ‘acting under’ a federal officer,

while at the same time the specific conduct at issue

may not be ‘connected or associated with an act

pursuant to the federal officer’s directions.’”53 Thus,

the district courts erred in holding that Defendants

did not satisfy the “acting under” element because

their federal contracts did not pertain to the oil

production activities challenged by Plaintiffs’

lawsuits.

Under the fourth element of the federal officer

removal test, “[s]ubject to the other requirements of

section 1442(a), any civil action that is connected or

associated with an act under color of federal office may

be removed.”54 In other words, it is not enough for

Defendants to have “act[ed] under” a federal officer if

those acts were unrelated to the activities challenged

in Plaintiffs’ complaints.

In 2011, Congress amended the federal officer

removal statute to expand the types of cases that can

be removed from just cases “for” an act under color of

federal office to include cases “for or relating to” such

actions.55 Despite the 2011 amendment, this Court

continued to require removing defendants to show

trespass suit that occurred while he was taking out the garbage”

(internal quotation marks and citation omitted)).

53 St. Charles II, 990 F.3d at 454.

54 Latiolais, 951 F.3d at 296.

55 Id. at 291-92 (emphasis added) (quoting 28 U.S.C. § 1442(a));

Removal Clarification Act of 2011, Pub. L. No. 112-51,

§ 2(b)(1)(A), 125 Stat. 545.

App-18

“that a causal nexus exists between the defendants’

actions under color of federal office and the plaintiff’s

claims.”56 In 2020, the Court’s en banc decision in

Latiolais brought our case law into compliance with

the amended statute by abandoning the “causal

nexus” test and replacing it with the “connected or

associated with” test, which requires a defendant to

show that “the charged conduct is connected or

associated with an act pursuant to a federal officer’s

directions.”57 In adopting this new test, we noted that

Congress broadened the scope of actions removable

under § 1442(a)(1) given that the ordinary meaning of

the phrase “relating to” is “a broad one” that normally

means “to stand in some relation; to have bearing or

concern; to pertain; refer; to bring into association

with or connection with.”58

Our application of the “connected or associated

with” element in Latiolais demonstrates the expanded

scope of this new test. In Latiolais, the plaintiff sued

Avondale in state court alleging Avondale had

negligently failed to warn him about the hazards of

asbestos or provide him with adequate safety

equipment during the refurbishment of a naval

vessel.59 Avondale removed the suit to federal court

under § 1442(a)(1), asserting that its contracts with

the Navy to build and refurbish naval vessels required

56 Latiolais, 951 F.3d at 291 (quoting Winters, 149 F.3d at 398).

57 See id. at 296 (overruling cases that “erroneously relied on a

‘causal nexus’ test after Congress amended section 1442(a) to add

‘relating to’”).

58 Id. at 292 (quoting Morales v. Trans World Airlines, Inc., 504

U.S. 374, 383 (1992)).

59 Id. at 289-90.

App-19

Avondale to use asbestos for thermal insulation.60 The

district court remanded the case after finding the old

“causal nexus” test was not satisfied because there

was no evidence that federal officers controlled

Avondale’s safety practices. After taking the case en

banc, we reversed, holding that under the revised

fourth element, removal was proper because

Latiolais’s negligence claims were “connected with”

Avondale’s “installation of asbestos pursuant to

directions of the U.S. Navy.”61

In this appeal, in order to determine whether

Defendants have satisfied the fourth element of

federal officer removal under Latiolais, we must first

identify the conduct challenged in Plaintiffs’

complaints and the relevant federal directives in

Defendants’ refinery contracts. We then turn to the

question of whether the relationship between the two

is sufficient to meet the “connected or associated with”

test.

The parties dispute which production activities

Plaintiffs challenge in their complaints. As explained

above, Plaintiffs assert that SLCRMA’s grandfather

clause does not excuse Defendants’ noncompliance

with the state-law permitting scheme because

Defendants’ oil production activities were not

“lawfully commenced or established.” In Plaquemines

I, we identified the following ways in which Plaintiffs’

Rozel report alleged that Defendants departed from

prudent industry practices before 1980: “by dredging

60 Id.

61 Id. at 296.

App-20

canals (instead of building overland roads), by using

vertical drilling (instead of directional drilling), by

using earthen pits at well heads (instead of steel

tanks), by extracting too much oil, and by not building

saltwater reinjection wells.”62

In defining the specific challenged conduct here,

Defendants rely on Plaquemines I’s summary of the

Rozel report and, in particular, the statement that

they “extracted too much oil.” Based on this language,

Defendants assert that the gravamen of Plaintiffs’

complaints is that they extracted too much oil too

quickly during World War II. Plaintiffs take issue with

Defendants’ (and by extension Plaquemines I’s)

characterization of the challenged conduct, asserting

that neither their complaints nor the Rozel report say

that Defendants extracted crude oil at overly high

production rates.

As identified by the district courts, Plaintiffs’

complaints, read in conjunction with the Rozel report,

target Defendants’ oil production and exploration

practices. Plaintiffs do not simply challenge the rate

at which Defendants extracted oil from the

Operational Areas. To be sure, Defendants have

presented evidence, which we credit at this stage,63

that adopting one of Plaintiffs’ preferred production

methods—the use of directional drilling instead of

62 Plaquemines I, 7 F.4th at 367.

63 Louisiana v. Sparks, 978 F.2d 226, 232 (5th Cir. 1992); see

also Cnty. Board of Arlington Cnty., Va. v. Express Scripts

Pharmacy, Inc., 996 F.3d 243, 256 (4th Cir. 2021) (“Generally,

‘[w]e credit Defendants’ theory of the case when determining

whether’ there is such a connection or association . . . ‘between

the act in question and the federal office.’” (citations omitted)).

App-21

vertical drilling—would have slowed their production

rates during World War II. But Defendants sole focus

on the use of vertical drilling and related rate-ofproduction argument leads them to define the

challenged conduct too narrowly by ignoring the other

production and exploration practices challenged by

Plaintiffs, such as the use of dredged canals and

earthen pits, the spacing of wells, and the lack of

saltwater reinjection wells. Thus, as properly defined,

the challenged conduct here pertains to Defendants’

exploration and production activities, which indirectly

include the rate at which they extracted crude oil.

In identifying the relevant federal directives,

Defendants have produced several contracts that

Shell and two predecessors of Chevron entered into

with the Defense Supplies Corporation (“DSC”), a

federal agency. As it pertains to Chevron’s

predecessors, both The Texas Company and Gulf

contracted with DSC in 1942 to manufacture 100octane avgas at their Port Arthur, Texas, refineries.

The Texas Company’s 1942 contract indicated that its

Port Arthur refinery could produce 2,940 barrels of

100- octane avgas per day, but that it was “willing to

expand its facilities” to enable production of 6,750

barrels of 100-octane avgas per day. The DSC agreed

to loan The Texas Company $5.5 million to finance the

expansion of the Port Arthur refinery.

Once the Port Arthur refinery expansion was

complete, DSC contracted to “buy and receive” 5,900

barrels per day of 100-octane avgas for one year “in

accordance with” the specifications attached to the

contract and “any other specifications which by

App-22

mutual agreement shall be attached as an addendum.”

DSC also had the option to purchase additional

quantities of avgas that The Texas Company had not

contracted to sell to other parties. The Texas Company

and DSC signed two subsequent contracts modifying

the terms of the original contract to account for further

expansions to the Port Arthur refinery and its

increased refinery capacity.

Similarly, Gulf’s 1942 contract acknowledged that

its Port Arthur refinery was “currently expanding its

facilities,” which would increase production to 4,836 or

5,667 barrels per day, depending on the specifications.

The contract called for Gulf to further expand its

refinery to increase production to 8,739 or 9,969

barrels per day, depending on the specifications. DSC

agreed to make advance payments to Gulf, up to

$9.825 million, to help finance this expansion.

Throughout Gulf’s expansion, the contract specified

that DSC would purchase increasing “minimum

quantit[ies]” of avgas. The contract also set forth the

relevant prices, specifications, and minimum

quantities for these purchases.

Lastly, Defendant Shell asserts that it entered

into at least 120 contracts with the government during

World War II. In particular, Shell contracted with

DSC in October 1942 to produce 100-octane avgas at

its Houston and Norco refineries “in accordance with”

the specifications attached to the contract. The

contract indicated that production at Shell’s “Norco,

Louisiana refinery comprises aviation alkylate and

cumene only, which are normally transported to the

Houston, Texas refinery and are blended there with

other aviation gasoline components produced at

App-23

Houston to make said aggregate production of” 9,000

barrels of 100-octane avgas.

The contract required Shell to provide DSC with

its “pro rata share of the entire requirements of the

United States Government,” a term defined in further

detail elsewhere in the contract. DSC also contracted

for “the option from time to time” to purchase avgas

that Shell had not contracted to sell to other parties.

In addition to buying the 100-octane avgas “in its

finished form,” DSC also had the option to take

alkylate and/or cumene directly from Shell’s Norco

refinery. In July 1944, Shell and DSC amended their

1942 contract in light of the Houston and Norco

refineries’ increase in production capacity to 12,000

barrels per day of avgas.

At oral argument, Defendants asserted that we

are not limited to the above refinery contracts in

identifying the relevant federal directives for purposes

of determining whether they were “connected or

associated with” the challenged conduct. Oral Arg. at

14:00-15:40. Instead, they contend that in cases

involving federal contractors, courts should consider

whether the charged conduct is related to actions the

contractor took not only pursuant to its federal

contract, but also actions taken pursuant to relevant

federal regulations or directives. In light of this

theory, and in recognition that their refinery contracts

are silent as to oil production, Defendants point to

various federal regulations, designations, and reports

involving oil production in the Operational Areas

during World War II.64 Defendants contend that these

64 For example, Defendants emphasize the fact that the

government designated the three fields at issue here as “Critical

App-24

extra-contractual government documents provide

relevant federal directives in analyzing the “connected

or associated with” element and demonstrate that the

government was involved in regulating both crude oil

production and refinement.

As explained above, case law is clear that a

private party does not “act[] under” a federal officer by

complying with federal regulations, guidance, or

expectations.65 And the problem with Defendants’

extracontractual argument is that they cite no

authority for the proposition that simply being a

federal contractor transforms a private party’s actions

in compliance with federal regulations or expectations

into action taken under color of federal office for

purposes of analyzing the “connected or associated

Fields Essential to the War Program,” in part because they

produced crude oil that was particularly suited for making avgas

and other products of high value to the war. Defendants rely on

these designations as evidence that the government recognized

that oil production in these fields were “connected or associated

with” the refinement of avgas for the government and show that

the government knew Defendants would use the crude produced

in these fields at their refineries.

65 See Watson, 551 U.S. at 153 (“The upshot is that a highly

regulated firm cannot find a statutory basis for removal in the

fact of federal regulation alone . . . [because] [a] private firm’s

compliance (or noncompliance) with federal laws, rules, and

regulations does not by itself fall within the scope of the statutory

phrase ‘acting under’ a federal ‘official.’”); Plaquemines II, 2022

WL 9914869, at *3 ([M]erely being subject to federal regulations

is not enough to bring a private action within § 1442(a)(1).”); see

also Mohr v. Trustees of Univ. of Pa., 93 F.4th 100, 105 (3d Cir.

2024) (“Advancing governmental policy while operating one’s

own business is not the same as executing a delegated

governmental duty.”).

App-25

with” element. To the contrary, in cases involving

private federal contractors, courts look to the contents

of the relevant federal contracts in determining

whether the challenged conduct was “connected or

associated with” acts taken under color of federal

office.66 Moreover, even if we considered Defendants’

extra-contractual sources, Defendants are unable to

connect the government’s minimal regulation of crude

oil production during World War II to their federal

contracts for increased quantities of refined avgas.67

See, e.g., Latiolais, 951 F.3d at 296 (concluding that the

plaintiff’s failure-to-warn claims were “connected or associated

with” the defendant’s installation of asbestos, which was required

under the terms of its contract with the U.S. Navy); Cnty. Board

of Arlington Cnty., 996 F.3d at 256-57 (holding that the plaintiff’s

claim that pharmacies caused a public nuisance by filling certain

opioid prescriptions was “connected or associated with” the

pharmacies’ contracts with the Department of Defense (“DOD”)

because the pharmacies “were required to fill those prescriptions

to comply with their duties under the DOD contract”).

To the extent Defendants point to certain government

designations or reports as evidence that the government

“recognized” that Defendants would use the crude produced in

the Operational Areas at their refineries, such documents,

without any federal mandate, are insufficient to show that

Defendants’ production practices were connected to a

government directive. See Mitchell v. Advanced HCS, L.L.C., 28

F.4th 580, 590 (5th Cir. 2022) (holding that agency documents

consisting of the government’s “aspirations and expectations,” or

“permissive guidance,” without any mandates, are “insufficient

to establish the kind of relationship necessary to invoke the

[federal officer removal] statute”); In re Methyl Tertiary Butyl

Ether (“MTBE”) Prod. Liab. Litig., 488 F.3d 112, 129-30 (2d Cir.

2007) (holding that even if Congress and the Environmental

Protection Agency expected defendants to use MTBE, defendants

were unable to show they were “acting under federal officers

when they added MTBE, and not some approved alternative, to

App-26

We therefore limit our analysis under the “connected

or associated with” element to directives in

Defendants’ federal refining contracts.

Having identified the relevant challenged conduct

and federal directives, we now evaluate whether the

relationship between the two is sufficient for purposes

of the “connected or associated with” element of the

federal officer removal test. The district courts held

that Defendants were unable to satisfy this element

given the lack of connection between their oil

production and refining activities. In Northcoast, the

court explained that:

[T]he Removing Defendants fail to point to a

single directive in the Gulf contract that

touched upon its upstream oil production

activities in Louisiana or anywhere else for

that matter. No directive in the contract has

anything to do with upstream oil production.

In fact, the contract does not mention where

the Port Arthur refinery was to get the large

amounts of crude oil that would be necessary

to feed the refinery although part (d) of the

Price Escalation section does allude to the

possibility that Gulf may at times purchase

refining

components

from

other

suppliers . . . . The contract is simply not

concerned with where or how Gulf would

their reformulated gasoline”); Riverwood I, 2019 WL 2271118, at

*17 n.44 (“The defendants point to no mandate that the federal

government ordered the oil and gas companies to drill and

produce these operational areas that would otherwise not have

been developed but for the wartime directives.”).

App-27

obtain the crude oil necessary to produce the

fuel that was to be sold to the government at

the Port Arthur refinery. While anyone can

infer that performance under the contract

would require a lot of crude, the contract is

utterly silent as [to] where the crude oil was

to come from. The contract did not direct,

require, or even suggest that Gulf produce its

own crude in order to meet its contractual

obligations.68

The district court in Parish of Cameron adopted this

analysis from Northcoast.69

68 Northcoast, 2023 WL 2986371, *10.

69 In addition to Northcoast and Parish of Cameron, at least

three additional district court judges have ruled the same way in

related refinery cases. Notably, in these additional rulings, the

courts assumed without deciding that defendants could satisfy

the “acting under” prong in light of their federal contracts, but

concluded that the defendants’ production activities were not

sufficiently “connected or associated with” the federal directives

in their refinery contracts for purposes of the fourth prong. See,

e.g., Par. of Jefferson v. Destin Operating Co., No. 18-5206, 2023

WL 2772023, at *2 (E.D. La. Apr. 4, 2023) (Fallon, J.)

(“Accordingly, the Court will proceed to examine prong four, since

this prong presents the highest hurdle considering the facts in

this case: is the conduct charged here connected or associated

with an act pursuant to those directions?”); Par. of Plaquemines

v. Rozel Operating Co., No. 18-5189, 2023 WL 3336640, at *4 n.48

(E.D. La. May 10, 2023) (Morgan, J.) (“Because the Court finds

the removing Defendants have failed to establish the [fourth]

element, the Court need not address the other elements.

However, for the sake of argument, . . . the Court will assume,

without holding, that the Removing Defendants established the

[third] element—that they acted under a federal officer’s

directive because they contracted with the government to refine

crude oil.”); Jefferson Par. v. Chevron U.S.A. Holdings, Inc.,

App-28

On appeal, Defendants contend the district courts’

holdings are inconsistent with Latiolais’s expanded

“connected or associated with” test, and that they

easily satisfy this fourth element. Defendants’

overarching argument is that as vertically-integrated

companies they produced crude oil in the relevant

Operational Areas—Black Bayou Field in Cameron

Parish and Duck Club Field and Grand Bay Field in

Plaquemines Parish—and used some of that crude at

their refineries to manufacture petroleum products in

fulfillment of their federal contracts. They

additionally contend that if they had adopted

Plaintiffs’ preferred practice of directional drilling, it

would have slowed their production rates, which in

turn, would have hampered their ability to fulfill their

refinery contracts which called for ever-increasing

amounts of avgas. Defendants thus conclude that

there is a “close and direct link . . . between the federal

contracts for massively increased quantities of refined

petroleum war products and the production of

correspondingly enormous quantities of crude oil.”

Defendants’ federal contracts clearly pertain to

their refinement of avgas and other petroleum

products. But that is not to say that these refinery

activities do not have some relation to oil production.

This is of course because crude oil is a necessary

component of avgas, and one way of obtaining crude

Nos. 18-5224, 18-5213, 18-5218, 18-5220, 18-5230, 18-5252, 185260, 2023 WL 8622173, at *6 (E.D. La. Dec. 13, 2023) (Lemelle,

J.) (“However, even assuming arguendo that the acting-under

prong can be established, removing defendants fail to show their

complained-of conduct in oil production has anything more than

an attenuated connection to their actions under the direction of a

federal officer.”).

App-29

oil is to produce it.70 However, we agree with the

district courts that in these cases the relationship

between Defendants’ oil production and refinement

activities was insufficient to satisfy the fourth element

of federal officer removal.

Although Defendants need not show that a federal

officer directed the specific oil production activities

being challenged,71 they still must show these

activities had a sufficient connection with directives in

their federal refinery contracts. Defendants fall short

of meeting this requirement because, as emphasized

by the district court, the contracts gave Defendants

70 The dissent relies on the fact that crude oil is a necessary

component of avgas to support its contention that increased crude

oil production is “connected or associated with” Defendants’

contractual obligations to produce large quantities of avgas. To

drive home this point, the dissent posits that even though

Defendants’ contracts did not include provisions regarding

human labor to run their refineries, the hypothetical necessity of

250 additional laborers in the refinery to produce avgas would

clearly be “connected or associated with” Defendants’ refinery

contracts. Post, at 39 (Oldham, J., dissenting). We agree. Hiring

sufficient refinery employees to work at federally contracted

refineries is clearly “connected or associated with” Defendants’

contractual obligations to refine avgas. But would the same be

true as to Defendants’ decisions to hire employees to search for

new oil reserves? Or employees to extract crude oil? (Assuming,

of course, that these employees find or extract crude oil that is

ultimately refined into avgas by Defendants’ federally contracted

refineries). These are more analogous examples to the question

presented in the instant cases and are illustrative of the reach of

an unduly expansive reading of the “connected or associated

with” element.

71 See St. Charles II, 990 F.3d at 454 (“[A] removing defendant

need not show that its alleged conduct was precisely dictated by

a federal officer’s directive.”).

App-30

“complete latitude . . . to forego producing any crude

and instead to buy it on the open market.”72

The lack of any contractual provision pertaining

to oil production or directing Defendants to use only

oil they produced is what distinguishes these cases

from Latiolais.73 In Latiolais, there was a direct

connection between Avondale’s lack of safety practices

for asbestos installation and the requirement in its

federal contract to use asbestos.74 The same is not true

here. Under Defendants’ theory, their alleged failure

to use prudent industry practices in extracting crude

oil is connected to their increased need for crude oil,

which in turn is connected to their contractual

obligations to furnish the government with large

amounts of 100-octane avgas because crude oil is a

necessary component of avgas. But, as explained

below, even that attenuated connection was severed

by Defendants’ lack of control over where their crude

oil was refined and by their use of crude oil purchased

on the open market from other producers to comply

with their contractual obligations. Thus, unlike

Latiolais, or even Morales,75 the instant cases require

72 Northcoast, 2023 WL 2986371, at *10.

73 See Rozel Operating Co., 2023 WL 3336640, at *5 (“Clearly

at odds with Defendants’ interpretation of Latiolais is the fact

that, in Latiolais, the charged conduct was still related to a

federal officer’s directive to use asbestos . . . ,[whereas] [n]owhere

in any contract pointed to by the removing Defendants did a

federal officer direct the oil production activities of Defendants.”).

74 Latiolais, 951 F.3d at 289, 297 (recognizing that “the Navy

required installation of asbestos on the Tappahannock”).

75 Morales, 504 U.S. at 388 (holding that guidelines on airfare

advertising were “related to” the rates, routes, or services of an

App-31

various intermediary (and ultimately severed) links to

connect the federal directives and challenged conduct.

The dissent arrives at the opposite conclusion—

that this case “fits neatly” within Latiolais’s holding.76

In support of this conclusion, the dissent suggests that

the omission of safety instructions for handling

asbestos in Latiolais’s contract is equivalent to the

omission of instructions for gathering crude oil in the

contracts at issue here. But, as discussed above, such

a comparison overlooks the fact that Avondale’s

federal contract required the use of asbestos, whereas

the federal contracts here did not address crude oil

production at all, let alone require Defendants to

produce their own crude oil. Thus, the connection

between Avondale’s alleged lack of safety instructions

regarding the installation of asbestos and the

requirement in its federal contract to install asbestos

is much closer than the tenuous connection between

the oil production and exploration practices

challenged here and Defendants’ refinery contracts.

These refinery cases would be more analogous to

Latiolais if, for example, Defendants’ federal contracts

required them to produce their own crude oil but were

silent as to the production practices challenged by

Plaintiffs. Alternatively, Latiolais would be closer to

these cases if Avondale’s federal contract required it

to refurbish ships with thermal insulation but did not

specify what type of material should be used for

insulation.

air carrier given that every guideline makes “express reference

to [air]fares”).

76 Post, at 42 (Oldham, J., dissenting).

App-32

Consequently, and contrary to the dissent’s

position, permitting removal here would expand the

current limits of the “connected or associated with”

element as applied in Latiolais and its progeny.77 And

although we are mindful of the broad nature of the

statute’s “relating to” language, as the Supreme Court

has cautioned, even “broad language is not

limitless.”78 We acknowledge that reasonable minds

See, e.g., Williams, 990 F.3d at 859-60 (relying on Third

Circuit caselaw consistent with Latiolais to hold that the

plaintiff’s asbestos-related claims for strict liability and failure to

warn were “direct[ly] connect[ed]” to the government’s “detailed

material, design, and performance specifications for the fuel

tanks” and the government’s “controlled written materials and

markings accompanying the fuel tanks, including all warnings

and health-related safeguards associated with them”); Cloyd v.

KBR, Inc., No. 21- 20676, 2022 WL 4104029, at *1-3 (5th Cir.

Sept. 8, 2022) (per curiam) (unpublished) (holding that the

military contractors’ claims that the defendant failed to

implement adequate security measures and provide a safe place

to work were connected with the defendant’s actions under color

of federal office in light of the evidence that the United States

military directed and controlled the base and “retained authority

over all force protection measures for individuals on base, decided

what security protocols to implement, [and] dictated when

contractors should take shelter”); Trinity Home Dialysis, Inc. v.

WellMed Networks, Inc., No. 22-10414, 2023 WL 2573914, at *4

(5th Cir. Mar. 20, 2023) (per curiam) (unpublished) (concluding

that the conduct challenged by the plaintiff was “directly tied” to

actions the defendants took under color of federal office because

defendant “made this decision based on its determination that

[plaintiff’s] claims were not eligible for full reimbursement under

the Medicare Act”).

78 See Watson, 551 U.S. at 147, 153 (cautioning against a

“determination [that] would expand the scope of the [federal

officer removal] statute considerably, potentially bringing within

App-33

can differ on where to draw the line between related

and unrelated conduct under governing circuit

precedent.79 However, we ultimately conclude that

these cases fall on the unrelated side of the line given

the lack of any reference, let alone direction,

pertaining to crude oil production in Defendants’

federal contracts. To hold otherwise would permit a

federal contractor with a non-frivolous federal defense

to invoke federal jurisdiction under § 1442(a)(1) for

conduct only “remote[ly]” or “tenuous[ly]”80 related to

its federal contracts and thereby impermissibly

expand the scope of federal officer removal under our

existing precedent.

Perhaps recognizing that removal here would be

an expansion of existing precedent, Defendants assert,

citing to Latiolais, that the colorable federal defense

requirement will have a narrowing effect and weed out

cases that would otherwise pass their near limitless

interpretation of the “connected or associated with”

element.81 Oral Arg. at 11:30-12:04. Although

Latiolais acknowledged that the colorable federal

defense requirement may prevent the removal of cases

its scope state-court actions filed against private firms in many

highly regulated industries”).

79 See Plaquemines Par. v. Chevron USA, Inc., 84 F.4th 362, 366

(5th Cir. 2023) (acknowledging that “Latiolais left unclear where

to draw the line between related and unrelated activities”).

80 Morales, 504 U.S. at 390 (quoting Shaw v. Delta Air Lines,

Inc., 463 U.S. 85, 100 n.21 (1983)).

81 See Latiolais, 951 F.3d at 296 (explaining that although the

2011 amendment expanded the fourth element of federal officer

removal, “the statute’s requirement that a removing party assert

a colorable federal defense remains a constitutional, viable, and

significant limitation on removability” (citations omitted)).

App-34

that would otherwise satisfy the expanded “relating

to” language, this Court nonetheless still required a

removing defendant to show that the charged conduct

was “connected or associated with an act pursuant to

a federal officer’s directions.”82 Thus, we do not read

Latiolais as permitting courts to stretch the “relating

to” requirement to permit the removal of cases where

the defendant engaged in the challenged conduct on

its own initiative in fulfillment of a tangentially

related federal directive.83 To do so would be to ignore

the statute’s “language, context, history, and

purposes.”84 Specifically, it would read out of the

statute the requirement that only civil actions “for or

relating to” acts taken under color of federal office are

removable.85 This is particularly true given that

Defendants contend that the colorable federal defense

requirement is “not limited to defenses premised on

the asserted federal direction” and can include

82 Id.

83 See Engelhoff v. Engelhoff ex rel. Breiner, 532 U.S. 141, 146-

47 (2001) (noting in the context of ERISA pre-emption the

phrases “relate to” and “connection with” are “clearly expansive,”

but should not be applied with “uncritical literalism” that would

“turn on ‘infinite connections.’” (citations omitted)); Glenn, 40

F.4th at 232 (recognizing that the basic purpose of the federal

officer removal statute is “to give those who carry out federal

policy a more favorable forum” (emphasis added) (citation

omitted)).

84 Watson, 551 U.S. at 147, 151-53. Although Watson addressed

the limits of the “acting under” element, we find its method of

analysis—looking to § 1442(a)(1)’s “language, context, history,

and purpose”—to be just as relevant to analyzing the limits of the

“connected or associated with” element. Id. at 147-53.

85 28 U.S.C. § 1442(a)(1).

App-35

defenses that do “not relate to the official acts that

gave rise to ‘acting under’ status.”

Despite the lack of direction in their refinery

contracts, Defendants contend that their ability to

satisfy their federal refinery obligations was

nonetheless related to their oil production practices

because they were “vertically integrated” companies

that both produced and refined crude oil. Specifically,

Defendants assert that “when the government

contracts

with

vertically

integrated

refiner/producer, like [Defendants], the crude

production used to fulfill the contract for refined avgas

plainly relates to that contract.”

We find Defendants’ reliance on their statuses as

vertically-integrated companies to be misplaced. As

noted by one district court, Defendants’ oil production

and refining sectors were “two entirely separate

operations requiring different skills, and different

operations at different locations.”86 Moreover, the

record here shows that a federal agency, the

Petroleum Administration for War (“PAW”),

established a crude allocation program that controlled

the distribution and transportation of produced crude

oil from the fields to specific refineries based on

various factors that would maximize the output of war

products. In allocating the crude oil, the PAW

86 Par. of Jefferson v. Destin Operating Co., 2023 WL 2772023,

at *3; Northcoast, 2023 WL 2986371, at *7 (“The separate

functions [of upstream oil production and downstream refining

operations] may be performed by different companies or a larger

company may do both, as Gulf Oil was doing during World War

II.”).

App-36

considered neither the practices of the producer nor

whether the company that produced the crude had an

affiliated refinery.

The PAW’s allocation program severed any

connection between Defendants’ production and

refinement activities because Defendants could not

control whether they refined their own crude. Instead,

they were in the same position as companies that did

not produce crude oil but had refineries with federal

contracts. At base, whether or not Defendants

happened to refine their own crude oil in fulfilling

their federal contracts had nothing to do with any

actions they took pursuant to a federal directive.

Instead, it depended on “happenstance or logistical

preference.”87 Particularly illustrative of this point is

the outcome in Plaquemines II, in which one

defendant, Humble Oil, was a vertically-integrated oil

company that produced oil in the Operational Area

and had a refinery under federal contract to refine

avgas.88 However, Humble Oil did not rely on its

federal refinery contract in seeking removal due to the

fact that none of the crude oil it produced in the

relevant Operational Area was sent to its refinery.89

Crucially, this means that the only difference between

Humble Oil and Defendants here is that the PAW

allocated to Defendants’ refineries some of the crude

oil they produced in the Operational Areas.90 To

87 Jefferson Par. v. Chevron, 2023 WL 8622173, at *6.

88 Riverwood II, 2022 WL 101401, at *7 & n.14.

89 Northcoast, 2023 WL 2986371, at *6.

90 Id. at *7. The dissent’s assertion that the relevant difference

is instead that Defendants here relied on their own refining

contracts for removal overlooks the fact that Humble Oil could

App-37

permit removal here, but not in Plaquemines II, would

lead to illogical and disparate results inconsistent

with the overall purpose of the federal officer removal

statute.91

Finally, Defendants make the conclusory

assertion that had they adopted Plaintiffs’ preferred

extraction practices, it would have “hampered” their

ability to fulfill their federal contracts. But

Defendants point to no evidence, aside from their

statuses as vertically-integrated companies that

needed to refine increased quantities of avgas, to

support this assertion. Although Defendants’

conclusory assertion might be enough on its own if the

only crude oil they refined was their own, the record

does not support such a finding. Instead, the evidence

makes clear that not only did Defendants lack control

not rely on its own contracts because it did not refine the crude

oil it produced in the Operational Area. Post, at 47 n.4 (Oldham,

J., dissenting). Put differently, Humble Oil could not rely on its

contracts to satisfy the “connected or associated with” test

because none of the crude oil it produced in the relevant field,

which was the basis of the plaintiffs’ challenged conduct, was

allocated to its federally contracted refinery by the PAW.

Defendants here acknowledge this is the relevant difference,

explaining that “[i]n contrast to the removing defendants in

Plaquemines II, Defendants here did have government contracts

under which they produced avgas and other war products using

the oil they produced in the field at issue during WWII.”

91 See Watson, 551 U.S. at 152 (“When a company subject to a

regulatory order (even a highly complex order) complies with the

order, it does not ordinarily create a significant risk of state-court

‘prejudice’ . . . . Nor is a state-court lawsuit brought against such

a company likely to disable federal officials from taking necessary

action designed to enforce federal law.” (internal citations

omitted)).

App-38

over whether they refined their own crude oil, but that

their refineries regularly relied on crude oil produced

by other companies to fulfill their federal avgas

contracts.92 In sum, although Defendants’ refining

contracts indirectly required increased amounts of

crude oil, that fact alone, absent some federal directive

pertaining to Defendants’ oil production activities, is

insufficient to satisfy the “connected or associated

with” element of federal officer removal.

Because Defendants do not satisfy the “connected

or associated with” element of federal officer removal,

we do not address whether they have asserted a

colorable federal defense. Accordingly, we affirm the

district courts’ holdings that Defendants have not

established federal officer removal jurisdiction on the

grounds that they are unable to show that Plaintiffs’

claims against them are “connected or associated

with” actions they carried out pursuant to a federal

directive.

For example, the record shows that the PAW sent crude

produced by Defendants in the Operational Areas to other

companies’ refineries. Moreover, it also shows that Defendants

during this time period purchased crude oil on the open market

from other oil producers for use in their own refineries. As

indicative of this fact, Plaintiffs emphasize that in only four of

the thirteen SLCRMA cases pending against Defendant Shell did

Shell refine its own crude oil produced in the relevant

Operational Area in fulfillment of its federal contracts. In the

other nine cases, Shell—the same vertically-integrated company

that had federal contracts that required it to produce increased

quantities of refined avgas—was able to satisfy its federal

contracts without using its own crude produced in the

Operational Areas.

App-39

IV.

For the foregoing reasons, we AFFIRM the

district courts’ orders remanding these cases to state

court.

App-40

Andrew S. Oldham, Circuit Judge, dissenting.

I agree with the majority that the defendants

“acted under” a federal officer in both producing and

refining petroleum during WWII. Unfortunately, our

agreement ends there. In my view, the defendants’

actions also “relate to” instructions from federal

officers. That means this case is removable to federal

court.

“The ordinary meaning of [‘relating to’] is a broad

one.” Morales v. Trans World Airlines, Inc., 504 U.S.

374, 383 (1992). I first (A) discuss the text and history

of § 1442(a)(1). Then I (B) discuss the governing

precedent. Finally I (C) address the majority’s

counterarguments, which do not displace the meaning

of the statute and our precedent.

Federal officer removal has a long and

complicated history. In 1815, Congress enacted the

first ancestor of today’s federal officer removal statute.

In response to New England’s opposition to the War of

1812, Congress protected federal interests in

collecting customs duties by “insert[ing] into [the

relevant] act . . . a provision . . . authorizing removal

of all suits . . . against federal officers or other persons

as a result of enforcement of the act.” Richard H.

Fallon, Jr., John F. Manning, Daniel J. Meltzer &

David L. Shapiro, Hart and Wechsler’s The Federal

Courts and The Federal System 853 n.6 (7th ed. 2015)

[hereinafter Hart & Wechsler] (citing Act of Feb. 4,

1815, § 8, 3 Stat. 195, 198-99). That act embodied a

App-41

specialized, limited, and short-term exercise of

Congress’s power to remove cases arising under

federal law to federal courts. See ibid.; see also

Tennessee v. Davis, 100 U.S. 257, 267-68, 271 (1880)

(discussing the same act and power of Congress to

authorize removal).

But over time, Congress repeatedly enacted new

federal officer removal statutes, each time extending

removal to new classes of defendants. See Hart &

Wechsler, supra, at 853-54 n.6 (listing statutory

developments of federal officer removal). In 1833, the

“Force Bill” responded to South Carolina’s tariff

nullification threats in part by broadening federal

officer removal to provide federal courts with removal

jurisdiction over “any act done under the revenue laws

of the United States, or under colour thereof.” Act of

Mar. 2, 1833, § 3, 4 Stat. 632, 633; see also Davis, 100

U.S. at 268 (discussing history of this act). Then,

during and immediately following the Civil War,

Congress passed a series of removal acts (1) conferring

federal jurisdiction over suits for actions authorized by

the President or Congress during the War and

(2) extending the Force Bill to include internal

revenue actions. See Hart & Wechsler, supra, at 85354 n.6 (first discussing jurisdictional acts for war-time

actions, Act of Mar. 3, 1863, § 5, 12 Stat. 755, 756-57,

amended by Act of May 11, 1866, §§ 3-4, 14 Stat. 46,

46; Act of Feb. 5, 1867, 14 Stat. 385; Act of July 28,

1866, § 8, 14 Stat. 328, 329-30; Act of July 27, 1868,

§ 1, 15 Stat. 243, 243; then discussing Force Bill

extension, Act of Mar. 7, 1864, § 9, 13 Stat. 14, 17; Act

of June 30, 1864, § 50, 13 Stat. 223, 241 (cited as 13

Stat. 218); Act of July 13, 1866, §§ 67-68, 14 Stat. 98,

171-72).

App-42

Finally, in 1948, Congress amended the removal

statute, “dropping its limitation to the revenue

context” and expanding its “coverage to include all

federal officers.” Watson v. Philip Morris Cos., Inc.,

551 U.S. 142, 148-49 (2007); see also Act of June 25,

1948, ch. 89, Pub. L. No. 80-773, ch. 646, § 1442, 62

Stat. 869, 938. Thus, “[s]ince 1948, 28 U.S.C. § 1442

has permitted removal of any civil or criminal action

against any federal ‘officer’ or ‘person acting under the

officer’ for ‘any act under color of such office.’” Hart &

Wechsler, supra, at 426. That language stood until

2010, when § 1442(a)(1) read:

A civil action . . . commenced in a State court

against any of the following may be removed

by them to the district court of the United

States . . . : The United States or any agency

thereof or any officer (or any person acting

under that officer) of the United States or of

any agency thereof, sued in an official or

individual capacity for any act under color of

such office . . . .

(emphasis added).

According to the Supreme Court, the repeated

extension and expansion of federal officer removal

evinced a “very basic” congressional desire to protect

federal “interest[s] in the enforcement of federal law

through federal officials” from interference by state

courts or officials. Willingham v. Morgan, 395 U.S.

402, 406 (1969); see also Davis, 100 U.S. at 263. And

the Supreme Court held § 1442(a)(1)’s jurisdiction

over suits for any act under “color of [federal] office”

required “a ‘causal connection’ between the charged

conduct and asserted official authority.” Willingham,

App-43

395 U.S. at 409 (quoting Maryland v. Soper (No. 1),

270 U.S. 9, 33 (1926)).

But in 2011, Congress passed the Removal

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

(2011). In that act, Congress added the phrase “or

relating to” to § 1442(a)(1)’s text—broadening

§ 1442(a)(1)’s coverage from actions “for” an act under

color of federal office to actions “for or relating to” such

acts. See id. at § 2(b), 545 (“Conforming

Amendments”). The act sought to clarify “that State

courts lack the authority to hold Federal officers

criminally or civilly liable for acts performed in the

execution of their duties” and to avoid any statutory

suggestion that “would potentially subject Federal

officers to harassment” by state courts. H.R. Rep.

No. 112-17(I), at 1-2 (2011). In doing so, Congress

explicitly recognized that the addition of “relating to”

in § 1442(a)(1) was “intended to broaden the universe

of acts that enable Federal officers to remove to

Federal court.” Id. at 6.

So today, 28 U.S.C. § 1442(a)(1) provides:

A civil action . . . that is commenced in a

State court and that is against or directed to

any of the following may be removed by them

to the district court of the United States . . . :

The United States or any agency thereof or

any officer (or any person acting under that

officer) of the United States or of any agency

thereof, in an official or individual capacity,

for or relating to any act under color of such

office . . . .

(emphasis added).

App-44

The new language makes the federal officer

removal statute significantly broader than its pre2011 counterpart. The key phrase, “relating to,”

ordinarily means “to stand in some relation; to have

bearing or concern; to pertain; refer; to bring into

association with or connection with.” Morales, 504

U.S. at 383 (quoting Black’s Law Dictionary 1158 (5th

ed. 1979)). How are we supposed to understand a

phrase that broad? By looking to the statutory

“context” to understand its “broad and indeterminate”

reach. Mellouli v. Lynch, 575 U.S. 798, 811-12 (2015)

(quotations omitted). And here, the statutory context

is a story nearly as old as our Nation in which

Congress relaxed, relaxed, and relaxed again the

limits on federal officer removal.

Enter this dispute. Defendants Shell and Chevron

executed a series of contracts with the federal Defense

Supplies Corporation during World War II. Through

those contracts, defendants helped to supply

unprecedented volumes of high-octane aviation

gasoline (“avgas”) to support our Nation’s war effort.

See, e.g., ROA.23-30422.7868 (noting “a 1,185%

increase in domestic 100-octane avgas production”).

Those contracts were exceedingly broad and

demanding. Some of them provided for dramatic

expansion of the companies’ refineries; some required

multiple expansions. And in some contracts, the

Government asserted the right to take not only the

defendants’ finished avgas but also their raw

materials. Still more, and perhaps most importantly,

some contracts allowed the Government to

unilaterally demand more avgas than originally

App-45

specified, even requiring the refineries operate at full

capacity to meet the new demand.

Here,

the

charged

conduct1—defendants’

petroleum exploration and production activities—

clearly “relat[ed] to” an “act under color of [federal]

office”—the contractually specified refining activities.

The contracts required defendants to produce certain

amounts of avgas, which varied across refinery,

company, and contract. See ante, 18-20 (describing the

specific requirements of each contract). But

defendants could not simply snap their fingers and,

voilà, make avgas. They had to make it out of

something, and that something was crude oil. (Even

the majority concedes this point, noting that

“Defendants’ refining contracts indirectly required

increased amounts of crude oil . . . .” Ante, at 32.) So

defendants satisfied their contractual avgas

obligations by increasing their own exploration and

production of crude. The exploration/production of

crude was therefore undeniably “related to” the avgas

refining contracts.

True, the contracts did not specify where or how

defendants should acquire the massive amounts of

crude oil needed to fulfill their avgas obligations. See

ante, at 25-26. Nor, I suppose, did the contracts specify

where or how the defendants would acquire additional

human labor to increase output at their refineries. But

there can be no doubt that human labor, like crude oil,

is an indispensable, necessary, and direct step to

1 The majority notes that the parties dispute the exact

parameters of the “charged conduct.” See ante, at 17-18. But even

accepting the majority’s characterization of the conduct, all the

conduct still clearly “relates to” the refining contracts.

App-46

producing avgas. If the defendants were contractually

obligated to produce, say, one million barrels of avgas,

and to do that they needed 250 additional human

laborers to work in the refineries, we would obviously

say the human labor is “related to” the refining

contracts. And defendants’ hiring practices to acquire

the necessary, additional labor would likewise be

“related to” the refining contracts. Without those

practices, defendants could not meet their contractual

obligations—hence underscoring the connectedness of

the labor inputs and the avgas outputs. So too with

crude oil, in my view.

To give a sense of scale, defendants point out that

a combination of federal regulation and end-product

contracts required U.S. oil and gas companies “to

increase oil production by more than 44,000,000

gallons a day.” Cameron (23-30422) Blue Br. at 11

(emphasis in original); Plaquemines (23-30294) Blue

Br. at 11; ROA.23-30422.8295-96. Without that

increase, it is unclear how defendants could have met

their contractual obligations with the federal

Government. And given their contractual obligations

to produce avgas, defendants had to get the crude oil

from somewhere, and someone had to figure out how to

get 44 million extra gallons of crude oil out of the

ground every day. Thus, defendants’ increased

exploration and crude-production efforts were “related

to” their avgas contracts. In my view, that makes this

case removable under § 1442(a)(1).

If the plain language of § 1442 were not enough,

our most recent en banc decision on the question

App-47

should be. See Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) (en banc).

In Latiolais, this court gave “relating to” its

“ordinary meaning” and held civil actions “relat[e] to”

acts under federal direction as long as “the charged

conduct is connected or associated with an act

pursuant to a federal officer’s directions.” 951 F.3d at

292, 296 (emphasis added); see also Morales, 504 U.S.

at 383 (defining “relating to” in part as “to bring into

association with or connection with”). Like the phrase

“relating to,” the phrase “connected or associated

with” captures a broad range of conduct. See Maracich

v. Spears, 570 U.S. 48, 59-60 (2013) (interpreting “in

connection with”). And for good reason: Latiolais

adopted its connected-or-associated test because

Congress substantially broadened § 1442 in the 2011

amendment. See 951 F.3d at 290 (“Over

time . . . Congress has broadened the removal statute

repeatedly until it reached the coverage [seen in

§ 1442 today].”).

Our pre-Latiolais test was narrower. Our old test

was called the “direct causal nexus” standard. Id. at

291-92. The old test required “a causal

nexus . . . between the defendants’ actions under color

of federal office and the plaintiff’s claims.” Winters v.

Diamond Shamrock Chem. Co., 149 F.3d 387, 398 (5th

Cir. 1998). In other words, “mere federal involvement

[did] not satisfy the causal nexus requirement;

instead, the defendant [had to] show that its actions

taken pursuant to the government’s direction or control

caused the plaintiff’s specific injuries.” Savoie v.

Huntington Ingalls, Inc., 817 F.3d 457, 462 (5th Cir.

App-48

2016) (emphasis added) (citing Bartel v. Alcoa S.S.

Co., 805 F.3d 169, 172-74 (5th Cir. 2015)). That test

afforded the new § 1442 too little flexibility. Most

importantly, it excluded claims related to actions

under “the government’s direction or control” from

removal. Ibid.

The practical difference between “direct causal

nexus” and “connect[ion] or associat[ion]” is obvious

from Latiolais itself. There, the defendant contracted

with the United States Navy “to build and refurbish

naval vessels.” Latiolais, 951 F.3d at 289. The

contracts often required the defendant to use asbestos

for the ships’ thermal insulation. Ibid. The plaintiff, a

machinist on one of the refurbished ships, was exposed

to asbestos and diagnosed with mesothelioma many

years later. Ibid. The plaintiff sued the defendant

contractor, claiming the contractor “negligently failed

to warn him about asbestos hazards and failed to

provide adequate safety equipment.” Id. at 290.

While the contracts required asbestos, they said

nothing about whether the defendants could or should

furnish safety warnings or equipment. See Latiolais v.

Huntington Ingalls, Inc., 918 F.3d 406, 407 (5th Cir.

2019), rev’d en banc, 951 F.3d 286. We emphasized

“there [was] nothing to suggest that the Navy, in its

official authority, issued any orders, specifications, or

directives relating to safety procedures” at all—much

less did the contracts say anything at all about safety.

Id. at 410 (quotation omitted). And there was no

evidence that the safety precautions—had the

contractor employed them—would have impeded or

even affected the contracts’ objectives. See id. at 411

(concluding that the “failing to warn, train, and adopt

App-49

safety procedures regarding asbestos . . . were private

conduct that implicated no federal interests.”

(emphasis added) (quotation omitted)).

A panel of this court therefore initially found the

plaintiff could not satisfy the old, too-strict “causal

nexus requirement.” Id. at 411. And I suppose that

makes sense in a world where § 1442 requires a direct

causal connection between the charged conduct and

the Government’s contracts. After all, nothing in the

contracts prohibited defendants from warning about

asbestos or providing safety equipment, and hence

nothing in the contracts caused the defendants’

tortiously negligent safety violations. The defendant

contractor alone made those tortious choices in

deciding how to fulfill their contractual obligations to

furnish asbestos-insulated boats.

But our en banc court reversed and broadened the

§ 1442 standard to match the statutory text. While the

contracts did not prohibit providing, say, safety gear

to shipworkers, the defendants’ failures to provide

safety gear was certainly connected or associated with

the asbestos contracts. Latiolais, 951 F.3d at 296.

Obviously, the underlying facts and the nature of the

challenged conduct did not change between our panel

decision and our en banc review. But our new test

swept more broadly, encompassed more actions, and

more appropriately recognized that safety measures

for asbestos installation “relate[d] to” the asbestos

installation. Ibid.

Latiolais’s shift therefore highlights that our new

test has very real consequences, especially for federal

contractors. Without Latiolais, those contractors

might otherwise face a Catch-22: limit their actions to

App-50

the bare words of a federal contract and insist that the

Government control every action related to that

contract, or risk suit in a potentially hostile state court

for any associated acts taken to better fulfill that

contract. For example, the defendants in this case, I

suppose, could have said their avgas contracts make

no provision for hiring human laborers, so it was

simply impossible for the defendants to meet the

Government’s wartime demands. But after the 2011

amendment to § 1442 and after our decision in

Latiolais, government contractors do not face that

absurd choice.

This case fits neatly into the Latiolais holding.

True, as the majority highlights, the contracts here

did not specify where and how the defendants should

find the millions upon millions of gallons of crude oil

they needed to make avgas. At most, the contracts

“allude to the possibility that [defendants] may at

times purchase refining components from other

suppliers” but “did not direct, require, or even suggest

that [defendants] produce [their] own crude in order to

meet [their] contractual obligations.” Parish of

Plaquemines v. Northcoast Oil Co., 669 F. Supp. 3d

584, 597 (E.D. La. 2023); see also ante, at 23 (same).

But “direct, require, or . . . suggest” is not the § 1442

standard—as Latiolais itself proves. Instead, under

Latiolais, discretionary decisions need only be

“connected or associated with” a federal instruction to

warrant removal.

So too here. The majority admits “crude oil is a

necessary component of avgas, and one way of

obtaining crude oil is to produce it.” Ante, at 24-25. But

App-51

in the same way the Latiolais contracts were utterly

silent as to safety measures, the contracts here

omitted instructions for gathering the required

component parts of avgas. And in the same way that

the Latiolais defendants made an independent

decision to forgo safety measures to produce their final

product, defendants here decided to increase crude

production to meet the demand for their final product.

That the defendants in either case had “complete

latitude” to take associated actions in the process of

fulfilling their federal directives in no way severs the

connection between those actions and that direction.

If anything, this case is easier than Latiolais.

When it comes to refurbishing ships with asbestos, you

might reasonably imagine two different arguments a

contractor could make to justify removal. In the first,

the asbestos safety measures would have slowed down

the contractor’s work on the ships, created undue

expense, or otherwise impeded the accomplishment of

the federal interest in getting the ships back at sea

ASAP. In that hypothetical situation, the decision to

forgo safety measures would obviously relate to the

federal directive—indeed, it might even be necessary.

Alternatively, the asbestos safety measures might

have no bearing whatsoever on the speed, cost, or

feasibility of the federal refurbishment directive. In

that case, it is much less clear that the safety decisions

would properly fall within § 1442’s “relating to”

prong—and they certainly were not necessary to

refurbish the ships and get them back in service.

Latiolais presented the second scenario. See 918

F.3d at 411 (panel opinion). Nonetheless, our en banc

court held the safety measures “relate[d] to” the

App-52

federal contracts. Latiolais, 951 F.3d at 296 (en banc).

But in this case, we have the first, much easier

scenario. Forgoing the challenged crude exploration

and production practices would have hampered the

federal interest in refined avgas explicitly outlined in

the contracts. So if the conduct in Latiolais related to

the federal directive, so too must the conduct here.

To hold otherwise is to find that discretion

destroys the connection between a federal directive

and the challenged conduct—just as our old, nowjettisoned causal-nexus test once did. Latiolais bars

such an interpretation of § 1442 and requires us to

find these defendants acted in “connection . . . with”

their federal directives.

Finally, the majority makes several arguments

suggesting the connection between crude production

and avgas refining is too attenuated to satisfy

§ 1442(a)(1). With all respect to my learned and

esteemed colleagues, I think the majority’s arguments

miss the mark.

First, the majority contends the petroleum

production practices during WWII bore only an

“attenuated connection” composed of “various

intermediary . . . links” to refining avgas. Ante, at 26.

I do not understand how this helps the majority

because it concedes crude and avgas were “link[ed].” If

defendants needed to increase avgas production, they

necessarily needed to find more crude. And how they

chose to find more crude is necessarily linked and

hence necessarily “related to” increasing their avgas

production. The majority says, no, the supply chain

App-53

had two hermetically sealed links: Defendants used

certain exploration and production practices because

of increased need for crude oil (link one), and there

was increased need because of the refining contracts

(link two). But even on the majority’s telling these

supply-chain links are, well, linked. And hence they

are connected.

The majority next contends the appropriate single

link—the one purportedly more akin to Latiolais—

would have been if the “federal contracts required

[defendants] to produce their own crude oil but were

silent as to the production practices challenged by

Plaintiffs.” Ante, at 27. But again, even if the facts did

reveal “various” links, the majority would underread

Latiolais. Requiring that the outcome of the

challenged conduct be contractually specified so that

“relating to” only encompasses discretionary choices

about how to accomplish the expressly directed action

walks back Latiolais’s “connected or associated with”

test. Even the facts in Latiolais were not that closely

“related”: The contract specified the use of asbestos,

not what safety protocols the contractor would employ.

The challenged conduct dealt with shortcomings in

those protocols, not the defendant’s choice of how to

install the asbestos. See Latiolais, 918 F.3d at 407

(panel opinion) (describing government contracts and

oversight of safety measures). To claim the case before

us contains “various intermediary . . . links” is to

acknowledge that Latiolais itself contained at least

two links— apparently one too many in the majority’s

own § 1442 framework.

App-54

Second, the majority contends that, even if there

was an “attenuated connection” between the

production practices and refining contracts, ante, at

26, the Petroleum Administration for War (“PAW”)

“severed” the causal chain necessary for § 1442

removal, ante, at 30-31.2 But this contention suffers

from similar flaws. Requiring an unsevered causal

chain takes us back to the old, now-discarded, preLatiolais standard and ignores the expansiveness of

the new “relating to” language in § 1442. Moreover,

ther

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