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

Supreme Court briefMar 24, 2025

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No. 24-813

IN THE

Supreme Court of the United States

CHEVRON U.S.A. INCORPORATED, ET AL.,

Petitioners,

PLAQUEMINES PARISH, LOUISIANA, ET AL.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE CHAMBER OF COMMERCE OF

THE UNITED STATES OF AMERICA AND

THE NATIONAL ASSOCIATION OF

MANUFACTURERS AS AMICI CURIAE

SUPPORTING PETITIONERS

ANDREW R. VARCOE

JANET GALERIA

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for the Chamber of

Commerce of the United

States of America

WILLIAM M. JAY

Counsel of Record

ANDREW KIM

GOODWIN PROCTER LLP

1900 N Street, NW

Washington, DC 20036

wjay@goodwinlaw.com

(202) 346-4000

Counsel for Amici Curiae

(Additional Counsel Listed on Inside Cover)

March 24, 2025

ERICA KLENICKI

MICHAEL A. TILGHMAN II

NATIONAL ASSOCIATION

OF MANUFACTURERS

733 10th Street, N.W.

Suite 700

Washington, D.C. 20001

Counsel for the National

Association of Manufacturers

TABLE OF CONTENTS

PAGE

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

SUMMARY OF ARGUMENT ..................................... 2

ARGUMENT ............................................................... 4

The Fifth Circuit’s “relevant federal

directive” requirement has no basis in

law or the realities of federal

contracting. ....................................................... 4

II.

The availability of federal-officer

removal is a significant question for the

wide variety of businesses that can act

under federal officers. ..................................... 13

CONCLUSION .......................................................... 22

TABLE OF AUTHORITIES

Page(s)

Cases

In re “Agent Orange” Prod. Liab. Litig.,

304 F. Supp. 2d 442 (E.D.N.Y. 2004) ............... 20

Akin v. Big Three Indus., Inc.,

851 F. Supp. 819 (E.D. Tex. 1994) .................... 16

Anesthesiology Assocs. of

Tallahassee, Fla., P.A. v.

Blue Cross Blue Shield of Fla., Inc.,

No. 03-15664, 2005 WL 6717869

(11th Cir. Mar. 18, 2005) .................................. 17

Baker v. Atl. Richfield Co.,

962 F.3d 937 (7th Cir. 2020) ............................. 16

Bell v. Thornburg,

743 F.3d 84 (5th Cir. 2014) ............................... 18

Bennett v. MIS Corp.,

607 F.3d 1076 (6th Cir. 2010) ........................... 18

Blake Constr. Co. v. United States,

987 F.2d 743 (Fed. Cir. 1993) ............................. 8

Camacho v. Autoridad de

Telefonos de Puerto Rico,

868 F.2d 482 (1st Cir. 1989) ............................. 18

Colorado v. Symes,

286 U.S. 510 (1932) ........................................... 15

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Def. Ass’n

of Phila.,

790 F.3d 457 (3d Cir. 2015) .............. 7, 18, 19, 21

Crutchfield v. Sewerage &

Water Bd. of New Orleans,

829 F.3d 370 (5th Cir. 2016) ............................. 11

Davis v. South Carolina,

107 U.S. 597 (1883) ........................................... 14

DeFiore v. SOC LLC,

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

Einhorn v. CarePlus Health Plans, Inc.,

43 F. Supp. 3d 1268 (S.D. Fla. 2014)................ 17

Exxon Mobil Corp. v. United States,

108 F. Supp. 3d 486 (S.D. Tex. 2015) ............... 12

Texas ex rel. Falkner v.

Nat’l Bank of Com. of San Antonio,

290 F.2d 229 (5th Cir. 1961) ............................. 17

Fireman’s Fund Ins. Co. v. United States,

92 Fed. Cl. 598 (2010) ......................................... 8

First Nat’l Bank of Bellevue v.

Bank of Bellevue,

341 F. Supp. 960 (D. Neb. 1972) ....................... 17

Freeze v. Coastal Bend Foot Specialist,

No. C-06-481, 2006 WL 3487405

(S.D. Tex. Dec. 1, 2006) ..................................... 17

iii

Fung v. Abex Corp.,

816 F. Supp. 569 (N.D. Cal. 1992) .................... 16

Genereux v. Am. Beryllia Corp.,

577 F.3d 350 (1st Cir. 2009) ............................. 16

Goncalves ex rel. Goncalves v.

Rady Children’s Hosp. San Diego,

865 F.3d 1237 (9th Cir. 2017) ........................... 17

Gordon v. Air & Liquid Sys. Corp.,

990 F. Supp. 2d 311 (E.D.N.Y. 2014) ............... 16

Grp. Health Inc. v. Blue Cross Ass’n,

587 F. Supp. 887 (S.D.N.Y. 1984) ..................... 17

Gurda Farms, Inc. v.

Monroe Cnty. Legal Assistance Corp.,

358 F. Supp. 841 (S.D.N.Y. 1973) ..................... 18

Hagen v. Benjamin Foster Co.,

739 F. Supp. 2d 770 (E.D. Pa. 2010) ................ 16

Holton v. Blue Cross & Blue Shield of S.C.,

56 F. Supp. 2d 1347 (M.D. Ala. 1999) .............. 16

IntegraNet Physician Res., Inc. v.

Tex. Indep. Providers, L.L.C.,

945 F.3d 232 (5th Cir. 2019) ............................... 6

Isaacson v. Dow Chem. Co.,

517 F.3d 129 (2d Cir. 2008) .................. 10, 16, 19

Jacks v. Meridian Res. Co., LLC,

701 F.3d 1224 (8th Cir. 2012) ........................... 17

Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286 (5th Cir. 2020) (en banc) . 5, 6, 7, 16

Magnin v. Teledyne Cont'l Motors,

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

Malsch v. Vertex Aerospace, LLC,

361 F. Supp. 2d 583 (S.D. Miss. 2005) ............. 16

Mansfield v. Fed. Land Bank of Omaha,

No. 4:14-CV-3232, 2015 WL 4546610

(D. Neb. July 28, 2015) ..................................... 18

Maryland v. 3M Co.,

--- F.4th ----, 2025 WL 727831

(4th Cir. Mar. 7, 2025) ...................................... 16

Maryland v. Soper,

270 U.S. 9 (1926) ............................................... 14

McMahon v. Presidential Airways, Inc.,

410 F. Supp. 2d 1189 (M.D. Fla. 2006) ............ 16

Moore v. Elec. Boat Corp.,

25 F.4th 30 (1st Cir. 2022) ................................ 16

Morales v. Trans World Airlines, Inc.,

504 U.S. 374 (1992) ............................................. 5

Nat’l Review, Inc. v. Mann,

140 S. Ct. 344 (2019) ......................................... 19

In re Nat’l Sec. Agency Telecomms.

Records Litig.,

483 F. Supp. 2d 934 (N.D. Cal. 2007) ......... 18, 19

P.R. Burke Corp. v. United States,

277 F.3d 1346 (Fed. Cir. 2002) ........................... 8

Pani v. Empire Blue Cross Blue Shield,

No. 93 Civ. 8215 (SHS), 1996 WL 734889

(S.D.N.Y. Dec. 23, 1996) ................................... 17

Papp v. Fore-Kast Sales Co.,

842 F.3d 805 (3d Cir. 2016) .............................. 16

Peterson v. Blue Cross/Blue Shield of Tex.,

508 F.2d 55 (5th Cir. 1975) ............................... 17

Puerto Rico v. Express Scripts, Inc.,

119 F.4th 174 (1st Cir. 2024) ........................ 9, 10

Ruppel v. CBS Corp.,

701 F.3d 1176 (7th Cir. 2012) ........................... 16

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017) ............... 7, 9, 16, 21

Stuyvesant Dredging Co. v. United States,

834 F.2d 1576 (Fed. Cir. 1987) ........................... 8

Taylor Energy Co., L.L.C. v. Luttrell,

3 F.4th 172 (5th Cir. 2021) ............................... 10

Tennessee v. Davis,

100 U.S. 257 (1880) ..................................... 13, 14

Vietnam Ass’n for Victims of Agent Orange

v. Dow Chem. Co.,

517 F.3d 104 (2d Cir. 2008) .............................. 19

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ............. 5, 7, 9, 10, 12, 14, 15

Willingham v. Morgan,

395 U.S. 402 (1969) ................. 5, 7, 13, 14, 15, 20

Winters v. Diamond Shamrock Chem. Co.,

149 F.3d 387 (5th Cir. 1998) ............................... 7

Yearsley v. W.A. Ross Constr. Co.,

309 U.S. 18 (1940) ............................................. 11

Statutes

28 U.S.C. § 1442(a) ............................................... 2, 7

28 U.S.C. § 1442(a)(1) ............................................ 15

28 U.S.C. § 1442(a)(1) (2006) ............................... 4, 8

Removal Clarification Act of 2011,

Pub. L. No. 112-51, 125 Stat. 545............. 2, 5, 14

Other Authorities

H.R. Rep. No. 112-17 (2011)..................................... 7

Jeffrey A. Belkin & Donald G. Brown, The

Soldier of Fortune in Federal Court: An

Analysis of the Federal Officer Removal

Statute, 22 No. 6 Andrews Gov't Cont.

Litig. Rep. 1 (July 28, 2008) ............................. 10

John W. Frey & H. Chandler Ide, A History

of the Petroleum Administration for War

1941-1945

(U.S. Gov’t Printing Office 1946)...................... 12

vii

Nat’l Petroleum Council, A National Oil

Policy for the United States (1949) ................... 11

14C Wright & Miller,

Fed. Prac. & Proc. Juris. § 3726

(4th ed. 2022)..................................................... 15

viii

INTEREST OF THE AMICI CURIAE 1

The Chamber of Commerce of the United States of

America is the world’s largest business federation. It

represents approximately 300,000 direct members and

indirectly represents the interests of more than 3

million companies and professional organizations of

every size, in every industry sector, and from every

region of the country. An important function of the

Chamber is to represent the interests of its members in

matters before Congress, the Executive Branch, and

the courts. To that end, the Chamber regularly files

amicus curiae briefs in cases, like this one, that raise

issues of concern to the nation’s business community.

The National Association of Manufacturers (“NAM”)

is the largest manufacturing association in the United

States, representing small and large manufacturers in

every industrial sector and in all 50 states.

Manufacturing employs nearly 13 million men and

women, contributes $2.93 trillion to the United States

economy annually, has the largest economic impact of

any major sector, and accounts for over half of all

private-sector research and development in the Nation.

The NAM is the voice of the manufacturing community

and the leading advocate for a policy agenda that helps

manufacturers compete in the global economy and

create jobs across the United States.

Many of the Chamber’s and the NAM’s members

perform vital functions for the United States while

acting under the direction and control of federal

1 Amici curiae timely provided notice of intent to file this brief to

all parties. No counsel for any party authored this brief in whole

or in part, and no entity or person, aside from amici curiae, their

members, or their counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

officers. The Chamber’s and the NAM’s members are

sometimes exposed to potential liability for the

performance of those functions. Thus, the Chamber

and the NAM have a strong interest in ensuring that

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

is correctly interpreted so that claims subject to the

statute are heard in federal courts, and not in state

courts where local interests may sometimes be given

undue weight.

SUMMARY OF ARGUMENT

In the decision below, the Fifth Circuit worsened an

entrenched circuit split on the meaning of a key

provision of § 1442(a). This Court should grant

certiorari to resolve that split once and for all—and to

ensure that federal contractors have reliable access to

federal court in cases that relate to their work for the

federal government.

I. Despite Congress’ expansion of access to federalofficer removal in the Removal Clarification Act of

2011, the panel majority narrowed such access by

requiring a federal contractor to show that it was

following a “relevant federal directive” issued by a

federal officer when engaging in the conduct leading to

suit. See Pet. 21; Pet. App. 19, 29. Most circuits read

the phrase “relating to” as requiring only a connection

or association between an act taken under a federal

officer and the subject matter of the suit, not strict

causation. But not the Fifth Circuit. The panel

majority’s insistence that a removing party must also

identify a “relevant federal directive” makes the Fifth

Circuit an outlier among the circuits—even among the

few that still insist on a showing of causation.

There is no basis for this overly restrictive

construction, particularly now that Congress has

amended the statute to add the broad words “relating

to.” If Congress wanted removing defendants to show

that the subject of the suit against them was the result

of a “relevant federal directive,” it would have had no

need to amend the federal-officer removal statute as it

did: such suits were already subject to removal “for”

acts under color of federal office.

The panel majority’s “relevant federal directive”

requirement clashes not just with the text and history

of the federal-officer removal statute, but also with the

realities of modern government contracting. While

there are many contracts under which the government

will dictate every last detail, there are many others

under which the government will trust a contractor’s

expertise and judgment to some degree. Given the

broad spectrum of discretion in government

contracting, it was unrealistic for the panel majority to

require that defendants tie the claims they are

removing to a “relevant federal directive.”

Respondents’ lawsuits here plainly satisfy the

statutory “for or relating to” requirement for removal.

The lawsuits relate to crude oil exploration and

production activity that petitioners undertook to fulfill

their federal contracts for avgas and other refined

petroleum products during the Second World War.

That should have been enough for petitioners to

remove the lawsuits to federal court.

If left to stand, the Fifth Circuit’s overly restrictive

approach to removal will make companies think twice

about performing work for the federal government, for

fear that they will be exposed to litigation “relating to”

that work in hostile state courts.

II. The questions presented are important, as they

affect virtually every private contractor that assists the

federal government in carrying out its functions. Like

federal employees, federal contractors may end up

performing work for the federal government that is

nationally important but locally unpopular. Federal

contractors therefore depend on predictable access to a

fair, federal forum, should their work for the federal

government ever be the subject of litigation.

But because of the circuits’ division on the meaning

of “for or relating to”—exacerbated by the panel

majority’s outlier decision—access to a fair, federal

forum now depends on where a plaintiff chooses to

bring his suit against a federal contractor. A circuitby-circuit approach to federal-officer removal is

untenable, not least because the work that a private

company performs for the federal government often has

nationwide impacts. When a federal contractor faces a

lawsuit relating to federal work, that contractor’s

access to federal court should be the same, regardless

of whether suit is brought in Louisiana or elsewhere.

This Court should grant certiorari to resolve the split

and ensure uniform access to federal courts for federal

contractors.

ARGUMENT

I. The Fifth Circuit’s “relevant federal directive” requirement has no basis in law or

the realities of federal contracting.

Until 2011, the federal-officer removal statute permitted “any [federal] officer (or any person acting under that officer)” to remove a civil action to federal

court “for any act under color of such office.” 28 U.S.C.

§ 1442(a)(1) (2006) (emphasis added). This Court construed this phrase to require that a suit “grow[] out of

conduct under color of office,” i.e., that there be a

“‘causal connection’ between the charged conduct and

asserted official authority.” Willingham v. Morgan,

395 U.S. 402, 407, 409 (1969) (emphasis added) (citation omitted). But the causal-connection requirement

was never particularly taxing; merely showing that an

act occurred while federal officers (or contractors) were

“performing their duties” was enough to satisfy the

connection requirement. See id. at 409.

Against the backdrop of § 1442’s broad, liberal construction, see Watson v. Philip Morris Cos., 551 U.S.

142, 147 (2007), Congress enacted the Removal Clarification Act of 2011, which allowed removal not just of

any civil action “for any act under color of such office,”

but for any action “for or relating to any act under color

of such office.” § 2(b)(1)(A), 125 Stat. 545. As the Fifth

Circuit itself has recognized, the addition of “or relating to” “broadened the universe of acts that could sustain removability.” Latiolais v. Huntington Ingalls,

Inc., 951 F.3d 286, 294 (5th Cir. 2020) (en banc). But

this was “not a radical change,” for the burden of showing a causal connection even before 2011 had been

“minimal.” Id. at 295. By adding the phrase “or relating to,” the Act merely expanded the universe of civil

actions and criminal prosecutions eligible for removal

under § 1442 to include those actions that “stand in

some relation” to, or have an “association with,” acts

taken under color of federal office. See Morales v.

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

As the petition explains (at 24-25), the circuits are

deeply split on the meaning of “for or relating to” in

§ 1442. A majority of the circuits to have considered

the issue have concluded that the stricter, pre-2011

“causal connection” requirement no longer applies, and

that some “connection” or “association” with federal office suffices for federal-officer removal. For a moment,

the Fifth Circuit appeared to be in that majority. After

nearly a decade of continuing to require a “causal nexus” despite the 2011 Act, see, e.g., IntegraNet Physician

Res., Inc. v. Tex. Indep. Providers, L.L.C., 945 F.3d 232,

241 (5th Cir. 2019), the court, sitting en banc, abandoned that requirement in Latiolais, which held that a

causal nexus was no longer required “after Congress

amended section 1442(a) to add ‘relating to.’” 951 F.3d

at 296. Latiolais replaced the causal-nexus test with

the requirement that “the charged conduct [be] connected or associated with an act pursuant to a federal

officer’s directions.” Id.

If Latiolais aligned the Fifth Circuit with the majority of circuits, the panel majority’s decision threw the

court of appeals back out of joint. It resurrected the

court’s old nexus requirement—a requirement that at

least six circuits have expressly abandoned, see Pet.

24—under which the removability of an action depends

on whether there is a “sufficient” “relationship between” the conduct challenged in an action and “the

relevant federal directives” found in the four corners of

the federal contracts at issue. Pet. App. 19. Despite its

recognition that federal-officer removal does not require “alleged conduct [to be] precisely dictated by a

federal officer’s directive,” Pet. App. 14, that is in substance what the court of appeals imposed in scrutinizing whether the alleged conduct here is “sufficiently”

connected to a relevant directive by a federal officer in

the federal contract. According to the panel majority, a

federal contract must spell out the conduct that gives

rise to federal-officer removal jurisdiction; if an act is

committed to the contractor’s exercise of discretion in

carrying out the federal contract, that is not “related”

enough to give rise to jurisdiction. E.g., Pet. App. 29-30

(no sufficient connection between challenged conduct

and federal contract, given the “lack of any contractual

provision pertaining to” the sourcing of crude oil used

to make contracted-for refined petroleum products, and

defendants’ “complete latitude” in sourcing).

1. The panel majority’s construction of “for or relating to” is textually baseless and runs counter to the

purpose of the Removal Clarification Act, which was to

“broaden the universe of acts” that qualify for removal.

H.R. Rep. No. 112-17, at 6 (2011). Before the Act, the

word “for” had already covered actions that “gr[ew] out

of conduct under color of office.” Willingham, 395 U.S.

at 407. Under the “for” standard, courts considered

“whether the government specified” the conduct that

gave rise to the plaintiff’s claims. E.g., Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 398-99 (5th

Cir. 1998), cited approvingly by Watson, 551 U.S. at

153. The Fifth Circuit should have abandoned any

semblance of a “specific” or “relevant” federal-directive

requirement when it shed the causal-nexus test in Latiolais. By searching for a “relevant federal directive,”

e.g., Pet. App. 19, the Fifth Circuit restored its now-toorestrictive, pre-2011 standard—which did not account

for the phrase “relating to.” As at least two circuits

have recognized, the demand for a “relevant federal directive” cannot be squared with the plain text of the

“relating to” prong of § 1442(a). See In re Commonwealth’s Motion to Appoint Counsel Against or Directed

to Def. Ass’n of Phila., 790 F.3d 457, 470 (3d Cir. 2015)

(rejecting that the federal public defender “is required

to allege that the complained-of conduct itself was at

the behest of a federal agency”); Sawyer v. Foster

Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017) (holding that “the district court went beyond what

§ 1442(a)(1) requires” by “demanding a showing of a

specific government direction”).

2. The panel majority’s holding is also unmoored

from the realities of federal government contracting.

While the government often lays out in fine print how

it wants a contractor to provide its goods or services, in

many other instances, the government leaves those details to the discretion of the contractor. For example,

when the government directs a contractor to manufacture a product, it can provide “design specifications,”

which “describe in precise detail the materials to be

employed and the manner in which the work is to be

performed”; the contractor has “no discretion to deviate

from the specifications.” Blake Constr. Co. v. United

States, 987 F.2d 743, 745 (Fed. Cir. 1993). Or, the government can provide performance specifications, which

“specify the results to be obtained, and leave it to the

contractor to determine how to achieve those results.”

Stuyvesant Dredging Co. v. United States, 834 F.2d

1576, 1582 (Fed. Cir. 1987). A contractor carrying out

performance specifications is “expected to exercise his

ingenuity in achieving [the] objective or standard of

performance, selecting the means and assuming a corresponding responsibility for that selection.” Blake

Constr., 987 F.2d at 745 (citation omitted). Performance specifications “anticipate a contractor’s exercise

of discretion,” Fireman’s Fund Ins. Co. v. United States,

92 Fed. Cl. 598, 652 (2010), as it is possible “nothing in

the contract’s description [will] dictate[] the ‘manner’ in

which [the contractor] must perform.” P.R. Burke

Corp. v. United States, 277 F.3d 1346, 1357 (Fed. Cir.

2002).

Regardless of whether the government has given a

contractor no discretion or complete discretion, the con-

tractor’s function is the same: “to assist, or to help carry out, the duties or tasks of the federal superior.”

Watson, 551 U.S. at 152. That includes, as here, when

a private contractor “help[s] the Government to produce an item that it needs.” Id. at 153. A contractor’s

actions do not lose their “connection” or “association”

with a federal contract simply because the contractor

exercised discretion in how to fulfill the contract.

“[D]emanding a showing of a specific government

direction,” as the panel majority did here, goes “beyond

what [the federal-officer removal statute] requires,

which is only that the charged conduct relate to an act

under color of federal office.” Sawyer, 860 F.3d at 258.

For a case to be “for or relating to” actions taken under

color of federal office, a federal contractor need only

demonstrate that a claim against it arose from actions

that “resulted from [its] work” for the government.

E.g., DeFiore v. SOC LLC, 85 F.4th 546, 557 (9th Cir.

2023). That relationship is enough for removal “even if

[the contractor] perform[s] the same service jointly for

the federal government and private entities.” Puerto

Rico v. Express Scripts, Inc., 119 F.4th 174, 193 (1st

Cir. 2024). The Fifth Circuit’s search for a “relevant

federal directive” within the four corners of a federal

contract is too exacting for both the text of the removal

statute and the modern realities of federal government

contracting.

3. Without access to the robust protections of a federal forum, a prospective federal contractor may find

itself hesitant to assist the federal government in the

performance of its duties. Being forced to defend

against a “scattering of … claims throughout the state

courts” over work performed for the federal government will “have a chilling effect” on the “acceptance of

government contracts.” Isaacson v. Dow Chem. Co.,

517 F.3d 129, 134 (2d Cir. 2008). Just as federal officials needed access to a federal forum to “assert federal

immunity defenses” at the incipience of the federalofficer removal statute, Watson, 551 U.S. at 150-51,

contractors, too, require a federal forum free of “local

prejudice,” id. at 150, so that they have a fair opportunity to invoke federal immunity and other federal defenses. See, e.g., Express Scripts, 119 F.4th at 187-88

(Puerto Rico cannot deprive a federal contractor of the

right to have its “immunity litigated in federal court”

by disclaiming claims based on acts under color of federal office); see also Jeffrey A. Belkin & Donald G.

Brown, The Soldier of Fortune in Federal Court: An

Analysis of the Federal Officer Removal Statute, 22 No.

6 Andrews Gov’t Cont. Litig. Rep. 1, at *2 (July 28,

2008) (noting that “removal under the [federal-officer

removal] statute and immunity for a government contractor are closely related issues”).

The panel majority’s cramped reading of “for or relating to” will deprive a great many contractors of that

forum. Indeed, the Fifth Circuit’s too-taxing standard

invites a peculiar outcome where a “barebones” federal

contract that commits considerable discretion to a federal contractor may be good enough for federally conferred immunity, but not for federal-officer removal

under a “liberally construed” statute, Watson, 551 U.S.

at 147. E.g., Taylor Energy Co., L.L.C. v. Luttrell, 3

F.4th 172, 174-76 (5th Cir. 2021) (derivative sovereign

immunity for federal contractor whose “barebones”

statement of work “provide[d] goals and tasks for [the

contractor] to propose and accomplish with the approval of the [federal officer],” because “the contractor’s

work was ‘done pursuant to a contract with the United

States Government’” (quoting Yearsley v. W.A. Ross

Constr. Co., 309 U.S. 18, 19 (1940))).

And the safeguards offered by a federal forum extend beyond just substantive defenses like immunity.

For example, access to a federal forum may ensure that

a contractor does not find itself defending a lawsuit in

an inconvenient jurisdiction just because a state court

refuses to allow the case to be heard elsewhere. E.g.,

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

Cir. 1996) (affirming (1) denial of motion to remand

case removed under § 1442 and (2) dismissal for forum

non conveniens, as Alabama was not a convenient forum for an aviation accident that happened in France,

even though the defendant manufacturer was based in

Alabama). Or, when a contractor faces a putative class

action for work done under a federal officer, the contractor can find comfort in the fact that a federal court

will apply the rigors of Federal Rule of Civil Procedure

23, and not yield to more relaxed legal standards that

may favor putative class plaintiffs. E.g., Crutchfield v.

Sewerage & Water Bd. of New Orleans, 829 F.3d 370

(5th Cir. 2016). In denying access to federal court absent a “relevant federal directive,” the panel majority’s

decision risks depriving federal contractors of these

protections.

4. The panel majority should not have denied petitioners a federal forum here. Respondents’ actions “relate to,” i.e., are connected to or associated with, acts

that petitioners undertook during the Second World

War in fulfilling federal contracts for avgas and other

refined petroleum products. At the time, oil was considered “a bulwark of our national security,” Nat’l Petroleum Council, A National Oil Policy for the United

States 1 (1949), without which the armed services

“could neither fight nor live.” John W. Frey & H.

Chandler Ide, A History of the Petroleum Administration for War 1941-1945, at 1 (U.S. Gov’t Printing Office

1946) (“PAW History”). Every aspect of the oil industry—from exploration, to production, and, eventually,

refining—was overseen by the Petroleum Administration for War (“PAW”), which possessed a “broad delegation of war authority,” with the power to “issue and enforce necessary orders and directives regulating all the

operations of the vast petroleum industry.” PAW History at 44-45.

Petitioners had little choice but to accede to PAW’s

demands: “PAW told the refiners what to make, how

much of it to make, and what quality.” PAW History at

219. PAW left no “freedom to make a choice between

contracting and not contracting.” Exxon Mobil Corp. v.

United States, 108 F. Supp. 3d 486, 496 (S.D. Tex.

2015).

And to meet the unprecedented wartime demand for

refined petroleum products, petitioners “increas[ed]

their own exploration and production of crude.” Pet.

App. 45. After all, in order to produce avgas, petitioners had to obtain their raw materials from somewhere.

Id. (explaining that “defendants could not simply snap

their fingers and, voilà, make avgas”). Had petitioners

failed to deliver what PAW had demanded, PAW would

simply have seized petitioners’ refineries and completed the job itself. Exxon Mobil, 108 F. Supp. 3d at 496.

These facts plainly suffice for federal-officer removal. Petitioners’ exploration and production activities

were part of their “effort to assist, or to help carry out,

the duties or tasks of the federal superior”—namely,

the production of refined petroleum products. Watson,

551 U.S. at 152. That PAW did not specifically direct

petitioners to produce the crude oil used to make the

government’s refined petroleum products does not matter. There is a direct link between petitioners’ exploration and production activities and the government contracts requiring petitioners to make avgas for the wartime effort. That connection was all that was needed to

show respondents’ claims were “for or relating to” petitioners’ wartime work for the federal government. The

panel majority erred by requiring more.

II. The availability of federal-officer removal is

a significant question for the wide variety of

businesses that can act under federal officers.

The availability of removal to federal officers and

those acting under them is an issue with broad nationwide significance. As this Court has long recognized, the removal statute protects persons working for

the federal government from state courts that may be

hostile to the work they are doing. The federal government “can act only through its officers and agents,

and they must act within the States.” Willingham, 395

U.S. at 406 (quoting Tennessee v. Davis, 100 U.S. 257,

263 (1880)).

1. “The federal officer removal statute has had a

long history.” Willingham, 395 U.S. at 405. The statute’s earliest predecessor was a customs law enacted

during the War of 1812, when several New England

states opposed efforts to embargo trade with England.

Id. The statute included a removal provision designed

“to protect federal officers from interference by hostile

state courts,” permitting customs officers “to remove to

the federal courts any suit or prosecution commenced

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

Id. Similar statutes protecting customs and revenue

officers were passed in 1833 (in the face of state nullification efforts) and again during the Civil War. Id. at

405-06. The current statute was enacted in 1948, see

id. at 406, and was amended as recently as 2011 to

broaden its scope, see Removal Clarification Act of

2011, Pub. L. No. 112-51, 125 Stat. 545.

“The purpose of all these enactments is not hard to

discern”: to ensure robust access to federal court for the

“officers and agents” through whom the federal government must act. Willingham, 395 U.S. at 406. In

cases where those officers and agents stand charged

with liability for acts undertaken “within the scope of

their authority,” “if their protection must be left to the

action of the State court,” then “the operations of the

general government may at any time be arrested at the

will of one of its members.” Id. (quoting Davis, 100

U.S. at 263).

Historically, all of these statutes provided a federal

forum not just to federal officers themselves, but also

to private parties assisting them. See Watson, 551 U.S.

at 147-49 (discussing history of current statute and its

predecessors). Well over a century ago, this Court recognized that “the protection which the law thus furnishes to the marshal and his deputy, also shields all

who lawfully assist him in the performance of his official duty.” Davis v. South Carolina, 107 U.S. 597, 600

(1883); see also Maryland v. Soper, 270 U.S. 9, 30

(1926) (citing Davis for the proposition that a private

individual “acting as a chauffeur and helper to [federal]

officers under their orders” had “the same right to the

benefit of [the removal statute]” as the officers themselves).

Today’s statute extends removal rights to “any officer (or any person acting under that officer) of the

United States or of any agency thereof,” in any action

“for or relating to any act under color” of federal office.

28 U.S.C. § 1442(a)(1). And this Court has made clear

that the statute must be “liberally construed to give

full effect to the purposes for which [the statute] w[as]

enacted,” Colorado v. Symes, 286 U.S. 510, 517 (1932),

and that removal must not be “frustrated by a narrow,

grudging interpretation.” Willingham, 395 U.S. at 407.

As a result, its protection extends to many different

types of persons working for the federal government.

2. Private businesses working with the government

have long relied on the federal-officer removal statute’s

protections in a remarkable variety of different contexts. See generally 14C Wright & Miller, Fed. Prac. &

Proc. Juris. § 3726 (4th ed. 2022) (“[T]he statute has

been applied in cases involving a wide spectrum of civil

and criminal substantive contexts, and the right to remove has been invoked by a tremendous variety of federal officers and persons acting under the direction of

federal officers.”) (footnotes omitted).

Federal contractors of various stripes frequently

remove under § 1442 when they are named in lawsuits

relating to their work for the government. As this

Court acknowledged in Watson, “lower courts have

held that Government contractors fall within the terms

of the federal officer removal statute, at least when the

relationship between the contractor and the

Government is an unusually close one involving

detailed regulation, monitoring, or supervision.” 551

U.S. at 153.

Military contractors in particular have invoked the

federal-officer removal statute in numerous cases (for

example, asbestos and other toxic tort litigation). Such

contractors include manufacturers of military

hardware such as helicopters, submarines, and

warships; 2 manufacturers of chemicals and chemical

components of other supplies; 3 administrators of

military health care programs; 4 and other providers of

services to the military, 5 including banks that operate

2 See Moore v. Elec. Boat Corp., 25 F.4th 30, 32 (1st Cir. 2022)

(submarines); Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286,

289 (5th Cir. 2020) (en banc) (naval vessels); Sawyer v. Foster

Wheeler LLC, 860 F.3d 249, 252 (4th Cir. 2017) (boilers for naval

vessels); Papp v. Fore-Kast Sales Co., 842 F.3d 805, 809 (3d Cir.

2016) (aircraft); Ruppel v. CBS Corp., 701 F.3d 1176, 1178 (7th

Cir. 2012) (turbines for naval vessels); Gordon v. Air & Liquid

Sys. Corp., 990 F. Supp. 2d 311, 314 (E.D.N.Y. 2014) (turbines and

steam generators for warships); Malsch v. Vertex Aerospace, LLC,

361 F. Supp. 2d 583, 584 (S.D. Miss. 2005) (helicopters); Akin v.

Big Three Indus., Inc., 851 F. Supp. 819, 823-24 (E.D. Tex. 1994)

(jet engines); Fung v. Abex Corp., 816 F. Supp. 569, 573 (N.D. Cal.

1992) (submarines).

3 See, e.g., Maryland v. 3M Co., --- F.4th ----, 2025 WL 727831, at

*8-9 (4th Cir. Mar. 7, 2025) (firefighting foam for the military);

Baker v. Atl. Richfield Co., 962 F.3d 937, 939-41, 942, 946-47 (7th

Cir. 2020) (various “critical wartime commodities” during World

War II, including zinc oxide and lead carbonate); Genereux v. Am.

Beryllia Corp., 577 F.3d 350, 353-54, 357 & n.9 (1st Cir. 2009) (beryllium oxide ceramics used in nuclear weapons, radar tubes, jet

brake pads, and jet engine blades); Isaacson v. Dow Chem. Co.,

517 F.3d 129, 138-39 (2d Cir. 2008) (Agent Orange).

4 Holton v. Blue Cross & Blue Shield of S.C., 56 F. Supp. 2d 1347,

1350-52 & n.3 (M.D. Ala. 1999) (administrator of medical program

for dependents of military personnel).

5 See Hagen v. Benjamin Foster Co., 739 F. Supp. 2d 770, 773

(E.D. Pa. 2010) (civilian contractor that employed machinist who

worked on Navy vessel); McMahon v. Presidential Airways, Inc.,

410 F. Supp. 2d 1189, 1192 (M.D. Fla. 2006) (contractor that flew

planes for Department of Defense in Afghanistan).

on military bases. 6

Another notable category of cases concerns private

businesses working with federal health care programs

outside the military context. In a number of cases,

courts have found private companies that contract to

administer Medicare benefits to be “acting under”

federal officers. See, e.g., Peterson v. Blue Cross/Blue

Shield of Tex., 508 F.2d 55, 57 (5th Cir. 1975); Einhorn

v. CarePlus Health Plans, Inc., 43 F. Supp. 3d 1268,

1270 (S.D. Fla. 2014); Freeze v. Coastal Bend Foot

Specialist, No. C-06-481, 2006 WL 3487405, at *3 (S.D.

Tex. Dec. 1, 2006); Pani v. Empire Blue Cross Blue

Shield, No. 93 Civ. 8215 (SHS), 1996 WL 734889, at *1

(S.D.N.Y. Dec. 23, 1996), aff’d, 152 F.3d 67 (2d Cir.

1998); Grp. Health Inc. v. Blue Cross Ass’n, 587 F.

Supp. 887, 891 (S.D.N.Y. 1984). The same has been

held of companies administering health benefits for

federal employees. See Goncalves ex rel. Goncalves v.

Rady Children’s Hosp. San Diego, 865 F.3d 1237, 124351 (9th Cir. 2017); Jacks v. Meridian Res. Co., LLC,

701 F.3d 1224, 1232-35 (8th Cir. 2012), abrogated in

part on other grounds by BP p.l.c. v. Mayor & City

Council of Balt., 141 S. Ct. 1532 (2021); Anesthesiology

Assocs. of Tallahassee, Fla., P.A. v. Blue Cross Blue

Shield of Fla., Inc., No. 03-15664, 2005 WL 6717869, at

*2 (11th Cir. Mar. 18, 2005).

Other contractors have also availed themselves of

the protections of the federal-officer removal statute.

For example, a business hired to eliminate toxic mold

from an air-traffic control tower was held to be “acting

under” the Federal Aviation Administration and, on

6 Texas ex rel. Falkner v. Nat’l Bank of Com. of San Antonio, 290

F.2d 229, 231 (5th Cir. 1961); First Nat’l Bank of Bellevue v. Bank

of Bellevue, 341 F. Supp. 960, 961-62 (D. Neb. 1972).

that basis, successfully removed a negligence lawsuit.

Bennett v. MIS Corp., 607 F.3d 1076, 1088, 1091 (6th

Cir. 2010). Businesses relying on § 1442 have also

included federal land banks operating under the Farm

Credit Administration, which exist only to “further a

government interest”; 7 and telecommunications

companies that provide information to federal lawenforcement or national-security authorities. 8

Contractors are not always for-profit businesses:

nonprofits and individuals also benefit from the

protection of § 1442. For example, attorneys providing

legal services to disadvantaged individuals have

availed themselves of the removal statute. See In re

Commonwealth’s Motion, 790 F.3d at 462-63, 468, 472

(the Federal Community Defender Organization for the

Eastern District of Pennsylvania, which provided legal

services pursuant to the Criminal Justice Act, was

“acting under” the Administrative Office of the U.S.

Courts); Gurda Farms, Inc. v. Monroe Cnty. Legal

Assistance Corp., 358 F. Supp. 841, 842-47 (S.D.N.Y.

1973) (nonprofit providing legal advice to migrant

workers was “acting under” the Office of Economic

Opportunity); see also Bell v. Thornburg, 743 F.3d 84,

89 (5th Cir. 2014) (permitting “private citizen[]”

serving as standing Chapter 13 trustee under the

Bankruptcy Code to remove under § 1442).

3. Removal under § 1442 is important to these

persons working under the federal government—

individuals, nonprofits, and for-profit businesses alike.

7 Mansfield v. Fed. Land Bank of Omaha, No. 4:14-CV-3232, 2015

WL 4546610, at *5 (D. Neb. July 28, 2015).

8 Camacho v. Autoridad de Telefonos de Puerto Rico, 868 F.2d 482,

486-87 (1st Cir. 1989); In re Nat’l Sec. Agency Telecomms. Records

Litig., 483 F. Supp. 2d 934, 943 (N.D. Cal. 2007).

That is especially so when the work is risky or

politically controversial.

One prominent example, the Agent Orange litigation, see Isaacson, 517 F.3d at 138-39, took place

against the backdrop of the government’s controversial

decision to use herbicides in the Vietnam War. And

the conflict itself was the subject of considerable debate, to say the least. See, e.g., Vietnam Ass’n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104,

119 (2d Cir. 2008).

Similar examples abound. One involved a challenge

to a controversial practice of sharing customer phone

records with the National Security Agency—a case in

which the United States was prepared to intervene to

ensure its interests were adequately protected. See

Nat’l Sec. Agency Telecomms. Records Litig., 483 F.

Supp. 2d at 945. In yet another case, Pennsylvania

state courts sought a blanket disqualification of federally-funded lawyers from state habeas proceedings, animated by what one circuit judge concluded was “simple animosity or a difference in opinion regarding how

capital cases should be litigated.” In re Commonwealth’s Motion, 790 F.3d at 486 (McKee, J., concurring). And this petition involves climate change, a topic that has become the subject of significant political

disagreement. See Nat’l Review, Inc. v. Mann, 140 S.

Ct. 344, 346 (2019) (Alito, J., dissenting from denial of

certiorari) (“[T]he controversial nature of the whole

subject of climate change exacerbates the risk that the

jurors’ determination will be colored by their preconceptions on the matter.”).

In such politically charged cases, there is a significant risk that state officials will disagree with the deci-

sions of the federal government. Such political disagreements (over the War of 1812 and the federal trade

embargo of England) are, in fact, what prompted Congress to enact the earliest predecessor of § 1442 in

1815. See Willingham, 395 U.S. at 405.

The value of the protection afforded by § 1442 to

private businesses—and the drawbacks of narrowly

construing the statute to preclude removal—have not

escaped judicial attention. One district judge, who

presided for decades over multi-district litigation

concerning Agent Orange, made the following

observation:

If cases such as those in this present

wave of Agent Orange claims were scattered throughout state courts, manufacturers would have to seriously consider

whether they would serve as procurement

agents to the federal government. Since

the advent of the Agent Orange litigation

in 1979, mass tort law has become more

hazardous for defendants. While on balance state tort law does more good than

harm, its vagaries and hazards would

provide a significant deterrent to necessary military procurement.

In re “Agent Orange” Prod. Liab. Litig., 304 F. Supp. 2d

442, 451 (E.D.N.Y. 2004) (Weinstein, J.) (denying

motion to remand; holding that case was removable

under § 1442), aff’d sub nom. Isaacson, 517 F.3d at

129.

For private businesses “acting under” federal officials, the importance of a federal forum is particularly

strong. Given that their activities were conducted un-

der federal supervision, they should not be the ones to

bear the brunt of political disagreements over federal

policy choices. And so it is hardly surprising that, as

noted above, a variety of different businesses have

availed themselves of removal under § 1442.

But the entrenched split on whether the federalofficer removal statute continues to require a showing

of a causal nexus has left federal contractors uncertain

about where they can avail themselves of removal for

civil actions relating to their federal work. That uncertainty is particularly pronounced where, as here, a federal contractor’s work takes place over several years

and has effects that reach virtually every corner of the

United States. If the contractor is ever sued over that

work by a private plaintiff, it should have the same

ability to access a federal court, regardless of whether

suit is brought in Louisiana, Pennsylvania, Maryland,

or elsewhere. Compare Pet. App. 19, 29 (searching for

a “relevant federal directive”), with In re Commonwealth’s Motion, 790 F.3d at 470 (federal-officer removal statute does not require plaintiff to show that

“the complained-of conduct itself was at the behest of a

federal agency”), and Sawyer, 860 F.3d at 258 (federalofficer removal statute does not require “a showing of a

specific government direction”). This Court should

grant certiorari to resolve the conflict among the circuits on the meaning of “for or relating to,” and restore

uniform access to federal courts for federal contractors.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.