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

Supreme Court briefNov 20, 2025

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No. 24-813

IN THE

Supreme Court of the United States

CHEVRON USA INCORPORATED, ET AL.,

v.

Petitioners,

PLAQUEMINES PARISH, LOUISIANA, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Fifth Circuit

BRIEF OF AMICI CURIAE

AMERICAN ASSOCIATION FOR JUSTICE AND

LOUISIANA ASSOCIATION FOR JUSTICE

IN SUPPORT OF RESPONDENTS

ROBERT S. PECK

Counsel of Record

CENTER FOR

CONSTITUTIONAL

LITIGATION, PC

1901 Connecticut Ave. NW

Suite 1101

Washington, DC 20009

(202) 944-2874

robert.peck@cclfirm.com

(Additional Counsel and Individual

Amici Curiae Listed on Inside Cover)

November 20, 2025

BRUCE PLAXEN

President

JEFFREY R. WHITE

Sr. Assoc. Gen. Counsel

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th St. NW, #300

Washington, DC 20001

(202) 617-5620

bruce.plaxen@justice.org

jeffrey.white@justice.org

B. SCOTT ANDREWS

President

STEPHEN J. HERMAN

Amicus Curiae

Cmte. Chair

LOUISIANA ASSOCIATION

FOR JUSTICE

442 Europe St.

Baton Rouge, LA 70802

(225) 383-5554

sandrews@dueguidry.com

sherman@fishman

haygood.com

i

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

TABLE OF AUTHORITIES ................................... iii

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

INTRODUCTION AND

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

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

I.

CHEVRON’S ARGUMENT WOULD GIVE

UNWARRANTED, IMPROPER, AND

BREATHTAKING SCOPE TO THE

OFFICER-REMOVAL STATUTE’S

2011 AMENDMENT, CREATING

PLENARY FEDERAL SUBJECT-MATTER

JURISDICTION BASED ON THE MOST

TENUOUS JUSTIFICATIONS.........................4

A. Nursing Homes Claimed Eligibility for

Federal-Officer Removal for Their

Unsuccessful Efforts to Keep Residents

Safe During the COVID-19 Pandemic. ........... 6

B. Aircraft Manufacturers Have Also

Unsuccessfully Sought Removal to Federal

Court on Federal-Officer Grounds. ............... 11

C. Misrepresentation Actions Concerning

Deceptive Marketing About the Negative

Climatological Effects of Fossil Fuels Have

ii

Experienced Repeated Remands After

Courts Rejected Federal-Officer Removal. ... 13

D. Some Privacy Lawsuits over Patient

Portal Websites Demonstrate Misuse of

Federal-Officer Removal Without Fear of

Local Prejudice. ............................................. 15

II. EVERY APPROPRIATE READING OF THE

STATUTE WITH THE 2011 AMENDMENT

REJECTS ALLOWING THE ADDITION OF

“RELATING TO” TO OVERRIDE THE

WELL-ESTABLISHED MEANING OF

“ACTING UNDER.” .........................................17

A. The 2011 Amendment Did Not Massively

Change the Requirements for FederalOfficer Removal. ............................................ 18

B. The Text Did Not Change the Criterion

for What Constitutes “Acting Under” a

Federal Officer or the Purpose of That

Requirement. ................................................. 20

C. Legislative History Supports a More Cabined

Approach to the 2011 Amendment. .............. 25

CONCLUSION .........................................................28

iii

TABLE OF AUTHORITIES

Cases

Anne Arundel Cnty. v. BP P.L.C.,

94 F.4th 343 (4th Cir. 2024)............................. 14, 19

Att’y Gen. of New Jersey v. Dow Chem. Co.,

140 F.4th 115 (3d Cir. 2025) .................................. 19

Baker v. Atlantic Richfield Co.,

962 F.3d 937 (7th Cir. 2020) .................................. 19

Bd. of Cnty. Commissioners of Boulder Cnty. v.

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

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

cert. denied, 143 S. Ct. 1795 (2023) ........... 13, 14, 19

Bennett v. MIS Corp.,

607 F.3d 1076 (6th Cir. 2010) .......................... 24, 25

Bond v. United States,

572 U.S. 844 (2014) ................................................ 28

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

593 U.S. 230 (2021) ................................................ 13

Buljic v. Tyson Foods, Inc.,

22 F.4th 730 (8th Cir. 2021 ...................................... 9

Cagle v. NHC Healthcare-Maryland Heights, LLC,

78 F.4th 1061 (8th Cir. 2023)............................. 9, 10

California Div. of Lab. Standards Enf’t v.

Dillingham Constr., N.A., Inc.,

519 U.S. 316 (1997) .................................................. 5

iv

Caris MPI, Inc. v. UnitedHealthcare, Inc.,

108 F.4th 340 (5th Cir. 2024)................................. 19

City & Cnty. of Honolulu v. Sunoco LP,

39 F.4th 1101 (9th Cir. 2022)................................. 15

City of Hoboken v. Chevron Corp.,

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

cert. denied, 143 S. Ct. 2483 (2023) ....................... 15

Connecticut Nat’l Bank v. Germain,

503 U.S. 249 (1992) ................................................ 17

County of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022)................................... 15

D.C. v. Exxon Mobil Corp.,

89 F.4th 144 (D.C. Cir. 2023) ................................. 15

DeFiore v. SOC LLC,

85 F.4th 546 (9th Cir. 2023)................................... 19

Doe I v. UPMC,

No. 2:20-cv-359, 2020 WL 4381675

(W.D. Pa. July 31, 2020) ........................................ 16

Doe v. BJC Health Sys.,

89 F.4th 1037 (8th Cir. 2023)................................. 16

Doe v. SSM Health Care Corp.,

126 F.4th 1329 (8th Cir. 2025)............................... 19

Glenn v. Tyson Foods, Inc.,

40 F.4th 230 (5th Cir. 2022)..................................... 9

v

Gov’t of Puerto Rico v. Express Scripts, Inc.,

119 F.4th 174 (1st Cir. 2024) ................................. 19

Gundy v. United States,

588 U.S. 128 (2019) ................................................ 17

Healy v. Ratta,

292 U.S. 263 (1934) .................................................. 6

Hudak v. Elmcroft of Sagamore Hills,

58 F.4th 845 (6th Cir. 2023)............................. 10, 19

K&D LLC v. Trump Old Post Off. LLC,

951 F.3d 503 (D.C. Cir. 2020) ................................ 19

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994) .................................................. 6

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) .................................. 11

Maglioli v. All. HC Holdings LLC,

16 F.4th 393 (3d Cir. 2021) ................................ 9, 10

Maracich v. Spears,

570 U.S. 48 (2013) .................................................. 27

Martin v. Petersen Health Operations, LLC,

37 F.4th 1210 (7th Cir. 2022)................................... 8

Martin v. Petersen Health Operations, LLC,

No. 1:20-CV-1449, 2021 WL 4313604

(C.D. Ill. Sept. 22, 2021) ........................................... 8

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

952 F.3d 452 (4th Cir. 2020),

vi

vacated and remanded on other grounds,

593 U.S. 230 (2021) .......................................... 13, 14

Mitchell v. Advanced HCS, L.L.C.,

28 F.4th 580 (5th Cir. 2022)..................................... 9

Mohr v. Trustees of Univ. of Penn.,

93 F.4th 100 (3d Cir. 2024) .................................... 17

New York State Conf. of Blue Cross &

Blue Shield Plans v. Travelers Ins. Co.,

514 U.S. 645 (1995) ................................................ 21

Price v. Johnson,

600 F.3d 460 (5th Cir. 2010) .................................. 26

Rhode Island v. Shell Oil Prods. Co.,

35 F.4th 44 (1st Cir. 2022) ..................................... 15

Riggs v. Airbus Helicopters, Inc.,

939 F.3d 981 (9th Cir. 2019),

cert. denied, 141 S. Ct. 161 (2020) ......................... 12

Saldana v. Glenhaven Healthcare LLC,

27 F.4th 679 (9th Cir. 2022), cert. denied sub. nom.,

Glenhaven Healthcare LLC v. Saldana,

143 S. Ct. 444 (2022) ................................................ 9

Schleider v. GVDB Operations, LLC,

121 F.4th 149 (11th Cir. 2024)............................... 10

Shaw v. Delta Air Lines, Inc.,

463 U.S. 85 (1983) .................................................. 28

Solomon v. St. Joseph Hosp.,

62 F.4th 54 (2d Cir. 2023) ........................................ 9

vii

State by Tong v. Exxon Mobil Corp.,

83 F.4th 122 (2d Cir. 2023) .................................... 15

Turner v. Bank of N. Am.,

4 U.S. 8 (1799) .......................................................... 6

Van Buren v. United States,

593 U.S. 374 (2021) ............................................ 4, 17

Watson v. Philip Morris Cos, Inc.,

551 U.S. 142 (2007) .......................... 3, 20, 21, 22, 25

West Virginia Univ. Hosps., Inc. v. Casey,

499 U.S. 83 (1991) .................................................. 17

Statutes

28 U.S.C. § 1442 ................................................ 2, 3, 20

42 U.S.C. §§ 247d to 247d–10 ..................................... 8

Pub. L. No. 112-51, 125 Stat. 545 ................. 18, 19, 27

Regulations

14 C.F.R. § 183.41(a)...................................................12

Other Authorities

156 Cong. Rec. (daily ed. May 12, 2010) ................... 26

157 Cong. Rec. (daily ed. Feb. 28, 2011) ................... 27

Removal Clarification Act of 2010, Hearing on H.R.

5281 Before the Subcomm. on Courts and

viii

Competition of the H. Comm. on the Judiciary,

111th Cong. (2010) ........................................... 26, 27

Christopher J. Cronin & William N. Evans, Nursing

Home Quality, COVID-19 Deaths, and Excess

Mortality, 82 J. Health Econ. 1 (Mar. 2022) ........... 7

David P. Bui et al., Centers for Disease Control &

Prevention, Association Between CMS Quality

Ratings and COVID-19 Outbreaks in Nursing

Homes—West Virginia, March 17–June 11, 2020,

69 Morbidity & Mortality Wkly. Rep. 1300, 1301–

02 (Sept. 18, 2020), https://www.cdc.gov/mmwr/

volumes/69/wr/mm6937a5.htm................................ 7

Fred Schulte, Nursing Homes Wield Pandemic

Immunity Laws to Duck Wrongful Death Suits,

KFF Health News, May 14, 2024,

https://kffhealthnews.org/news/article/nursinghome-pandemic-immunity-wrongful-deathlawsuits/.................................................................... 7

R. Tamara Konetzka, David C. Grabowski, & Vincent

Mor, Four Years and More Than 200,000 Deaths

Later: Lessons Learned from the COVID-19

Pandemic in US Nursing Homes, 43 Health Affs.

985 (July 2024) ......................................................... 7

1

INTEREST OF AMICI CURIAE 1

The American Association for Justice (“AAJ”) is a

national, voluntary bar association established in

1946 to strengthen the civil justice system, preserve

the right to trial by jury, and protect access to the

courts for those who have been wrongfully injured.

With members in the United States, Canada, and

abroad, AAJ is the world’s largest plaintiff trial bar.

AAJ members primarily represent plaintiffs in personal injury actions, employment rights cases, consumer cases, and other civil actions. Throughout its

79-year history, AAJ has served as a leading advocate

for the right of all Americans to seek legal recourse for

wrongful conduct.

The Louisiana Association for Justice (“LAJ”) is a

voluntary bar association whose statewide membership is composed of lawyers who have a trial practice.

Both defense and plaintiff attorneys belong to the association; however, most LAJ members represent injured plaintiffs, consumers, and small businesses in

civil actions. The association and its members attempt

to promote highway safety, a clean environment,

safety in the workplace, and quality healthcare. They

are likewise committed to preserving the civil justice

system, protecting open access to the courts, protecting individual rights, promoting individual and corporate responsibility, and preserving the highest of ethical and educational standards for the profession.

1 Pursuant to Rule 37.6,

amici affirm that no counsel for any

party authored this brief in whole or in part and no person or

entity, other than amici, their members, or their counsel has

made a monetary contribution to its preparation or submission.

2

This case is of acute interest to AAJ and LAJ

members who have represented and continue to represent plaintiffs in actions where private defendants

have sought removal from state to federal court under

28 U.S.C. §1442(a)(1), which permits removal when

federal officers or agencies are sued or prosecuted, as

well as when a private defendant is acting under a federal officer. Despite the long history of federal-officer

removal and the clarity with which courts have applied the relevant standards, defendants continue to

invoke federal-officer removal with uncommon frequency, often asserting the barest and most tangential

connections to federal actions.

In this case, the Fifth Circuit correctly construed

precedent, understood the import of the 2011 amendment to the federal officer removal statute, and applied that law properly. Based on the statute’s “language, context, history and purpose,” the Fifth Circuit

concluded Chevron’s claimed connection between the

government’s World War II contract for refined avgas

and the underlying lawsuit looking at events after

1980 was too tenuous to support removal jurisdiction,

particularly given that the federal contracts at issue mentioned neither production of crude oil nor directed or controlled defendants’ production of crude

oil. For these reasons, amici urge this Court to affirm.

INTRODUCTION AND

SUMMARY OF ARGUMENT

In recent years, private defendants have repeatedly sought removal to federal courts, claiming to be

3

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

and advancing arguments properly described as

grasping. The 2011 amendment to the federal officer

removal statute did not effect a sea change in eligibility for federal-officer removal, but clarified the types

of state-court actions subject to the act and appellate

rights. It did not call forth a wholesale change in the

criteria so that existing, uniformly adverse decisions

focused on the “acting under” prong would be overturned. Its employment of new language “relating to”

certain acts under color of federal authority involves a

separate criterion and cannot provide boundless authorization for removal as Respondents (hereinafter,

collectively, “Chevron”) advocate. The statutory text

confirms those limits, as does the statute’s structure,

history, and intent.

In fact, this Court had already deemed the “acting

under” language to be a “broad” phrase that must be

“liberally construed,” and yet was “not limitless.” Watson v. Philip Morris Cos, Inc., 551 U.S. 142, 147 (2007).

The addition of “relating to,” particularly in the context of where it was placed, does not change that. Nor

does it cast any doubt or limit on what this Court declared in Watson.

There still must be some nexus to that which was

required by the federal government and the subject of

the underlying lawsuit. Otherwise, tangentially associated activities upon which a lawsuit is based suddenly become “federal” and yield jurisdiction in the

federal courts to traditional state causes of action that

no federal officer would ever need to defend.

4

Nothing in the amendment or the legislative history supports a congressional intent to displace statecourt actions without limits. Adopting the analysis of

Judge Oldham’s dissent below, Chevron argues “the

‘relating to’ element requires only that the challenged

conduct be ‘connected or associated with’ an act taken

under federal direction.” Chevron Br. 20 (quoting Pet.

App. 47). It proposes no limiting principle, and none

could be discerned from such a definition.

The astounding breadth that Chevron ascribes to

the 2011 amendment becomes clear when it accuses

the Fifth Circuit majority of “compound[ing] its error,”

by holding that “compliance with federal regulations,”

including compliance with “specific regulatory directives,” does not suffice to warrant federal-officer removal. See Pet. Br. 35 (citing Pet. App. 24–25). That

holding by the Fifth Circuit was not error, but comported with this Court’s teachings.

ARGUMENT

I.

CHEVRON’S ARGUMENT WOULD GIVE UNWARRANTED, IMPROPER, AND BREATHTAKING SCOPE TO THE OFFICER-REMOVAL STATUTE’S 2011 AMENDMENT,

CREATING PLENARY FEDERAL SUBJECTMATTER JURISDICTION BASED ON THE

MOST TENUOUS JUSTIFICATIONS.

Chevron offers this Court a version of the federalofficer removal statute that is breathtaking in scope.

This Court starts with the text in construing a statute.

Van Buren v. United States, 593 U.S. 374, 381 (2021).

5

Several recent disputes in which courts have uniformly rejected federal-officer removal can provide a

unique perspective useful to this Court and enrich

analysis of the text.

The contrast between these practical applications

and Chevron’s preferred construction demonstrates

how radical a change in removal law it seeks. It is

surely not consistent with an amendment dubbed a

“clarification” of longstanding law. To be clear, in

Chevron’s capacious construction of the phrase “relating to,” no real limitations remain on federal-officer removal. As Justice Antonin Scalia once wryly pointed

out, “everything is related to everything else.” California Div. of Lab. Standards Enf’t v. Dillingham Constr., N.A., Inc., 519 U.S. 316, 335 (1997) (Scalia, J.,

concurring).

If this Court does not recognize common-sense

limits to that language, particularly in light of its

placement in the federal-officer removal statute, a

new removal regime will arise that has little connection to preexisting law. If Chevron’s argument is validated, the law would now authorize removal by any

federal contractor, whether the contract exists today

or only in the past. Work with a party who holds a federal contract, and removal is also authorized. Comply

with detailed federal regulations, removal is authorized. In short, in Chevron’s formulation, an indirect

and tangential federal connection opens the door to removal even if any linkage to the actual dispute remains highly attenuated.

6

If validated, Chevron’s argument would undermine the longstanding premise that federal courts

possess limited jurisdiction. Kokkonen v. Guardian

Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In fact,

this Court established a rebuttable presumption

against federal jurisdiction rather than jurisdiction in

the state courts in the eighteenth century. Turner v.

Bank of N. Am., 4 U.S. 8, 10 (1799). Even causes

brought before a federal court as a function of diversity

jurisdiction must satisfy a “strict construction” of its

requirements in order to respect the “power reserved

to the states, under the Constitution (Amendment 10),

to provide for the determination of controversies in

their courts.” Healy v. Ratta, 292 U.S. 263, 270 (1934).

Still, defendants have claimed to be acting under

a federal officer as their ticket to federal court with

increasing frequency. Like Chevron here, they make

outsized and broad claims about being eligible for removal. Courts, however, have recognized that the

claims lack a sound basis—and the nature of the arguments made in those cases provide this Court with

substantial guidance on what “relating to” should

mean here, as well as what Congress intended by

those words.

A. Nursing Homes Claimed Eligibility for

Federal-Officer Removal for Their

Unsuccessful Efforts to Keep Residents

Safe During the COVID-19 Pandemic.

During the COVID-19 pandemic, nursing homes

experienced a disproportionately high rate of death,

7

largely due to widespread and longstanding problems

over their poor quality of care, inadequate infection

control measures, and sparse staffing. See, e.g., R.

Tamara Konetzka, David C. Grabowski, & Vincent

Mor, Four Years and More Than 200,000 Deaths Later:

Lessons Learned from the COVID-19 Pandemic in US

Nursing Homes, 43 Health Affs. 985 (July 2024); see

also Christopher J. Cronin & William N. Evans, Nursing Home Quality, COVID-19 Deaths, and Excess Mortality, 82 J. Health Econ. 1, 15 (Mar. 2022) (estimating

that “roughly one-fifth of COVID-19 deaths” were

nursing home residents). On the other hand, highly

rated, high-quality nursing homes experienced substantial success in preventing COVID-related deaths.

See, e.g., David P. Bui et al., Centers for Disease Control & Prevention, Association Between CMS Quality

Ratings and COVID-19 Outbreaks in Nursing

Homes—West Virginia, March 17–June 11, 2020,

69 Morbidity & Mortality Wkly. Rep. 1300, 1301

–02 (Sept. 18, 2020), https://www.cdc.gov/mmwr/

volumes/69/wr/mm6937a5.htm.

The fatalities that occurred in nursing homes resulted in wrongful-death lawsuits brought in state

courts throughout the country. KFF Health News documented more than 1,100 COVID-related lawsuits

were filed against nursing homes from March 2020 to

March 2024. Fred Schulte, Nursing Homes Wield Pandemic Immunity Laws to Duck Wrongful Death Suits,

KFF Health News, May 14, 2024, https://kffhealthnews.org/news/article/nursing-home-pandemic-immunity-wrongful-death-lawsuits/.

8

In what became a familiar sequence of events, defendant nursing homes sued in state courts removed

the cases to federal courts, resting in large part on a

claim that the nursing home was “acting under” a federal officer, 2 and the cases were remanded to state

court in “more than 80 other suits.” Martin v. Petersen

Health Operations, LLC, 37 F.4th 1210, 1212 (7th Cir.

2022). The nursing home cases all took place after enactment of the 2011 amendment.

The nursing homes made a number of assertions

in support of federal-officer removal. First, they

claimed they were “subject to extensive federal regulation” to qualify for reimbursement from Medicare or

Medicaid, which only increased because of the pandemic. Id. Second, they asserted that the pandemic

had created such a deep crisis that the Department of

Health and Human Services and the Centers for Disease Control and Prevention had issued an “all-handson-deck” alert so that they assisted “pursuant to the

direct orders and comprehensive and detailed directives issued by these agencies.” Martin v. Petersen

Health Operations, LLC, No. 1:20-CV-1449, 2021 WL

4313604, at *3 (C.D. Ill. Sept. 22, 2021), aff’d, 37 F.4th

1210 (7th Cir. 2022) (quoting defendant’s brief). In

2 Nursing homes also unsuccessfully asserted that the wrongful-

death claims necessarily rested on federal law or invaded the immunity provided by the Public Readiness and Emergency Preparedness (PREP) Act, 42 U.S.C. §§ 247d to 247d–10. This basis for

federal jurisdiction, as well, was uniformly rejected. See, e.g.,

Martin, 37 F.4th at 1213–14.

9

that regard, these defendants claimed “the government designated nursing homes as ‘critical infrastructure’ during the COVID-19 pandemic. Cagle v. NHC

Healthcare-Maryland Heights, LLC, 78 F.4th 1061,

1068 (8th Cir. 2023); see also Saldana v. Glenhaven

Healthcare LLC, 27 F.4th 679, 685 (9th Cir. 2022),

cert. denied sub. nom., Glenhaven Healthcare LLC v.

Saldana, 143 S. Ct. 444 (2022); Mitchell v. Advanced

HCS, L.L.C., 28 F.4th 580, 590 (5th Cir. 2022). 3

In addition to the rulings in the Fifth, Seventh,

Eighth, and Ninth Circuits, noted above, the arguments were uniformly rejected by other circuit and

district courts. See, e.g., Solomon v. St. Joseph Hosp.,

62 F.4th 54, 63 (2d Cir. 2023); Maglioli v. All. HC

Holdings LLC, 16 F.4th 393, 411 (3d Cir. 2021);

Hudak v. Elmcroft of Sagamore Hills, 58 F.4th 845,

3 The “critical infrastructure” argument was also unsuccessfully

asserted in at least two circuits by a meat-processing company to

claim eligibility for federal-officer removal when being sued by

survivors of workers who died of COVID-19 after contracting it

at work. Buljic v. Tyson Foods, Inc., 22 F.4th 730, 739 (8th Cir.

2021) (“Tyson conflates the federal government’s designation of

the ‘food and agriculture’ sector as critical infrastructure with a

finding that Tyson was fulfilling a basic governmental task.”);

Glenn v. Tyson Foods, Inc., 40 F.4th 230, 233, 235 (5th Cir. 2022)

(holding that Tyson’s close work with on-site inspectors from the

USDA’s Food Safety and Inspection Service, which grew more

complex during the pandemic, and its promise to help procure

more protective equipment still amounted to nothing more than

“heavy regulation”).

10

859 (6th Cir. 2023); Schleider v. GVDB Operations,

LLC, 121 F.4th 149, 159 (11th Cir. 2024).

The Eighth Circuit explained, “[i]t cannot be that

the federal government’s mere designation of an industry as important—or even critical—is sufficient to

federalize an entity’s operations and confer federal jurisdiction.” Cagle, 78 F.4th at 1068 (quoting Buljic, 22

F.4th at 740). The Third Circuit rejected the claim because nursing homes “do not assist or help carry out

the duties of a federal superior,” “do not have [a] close

relationship with the federal government,” “are not

delegated federal authority, nor do they provide a service that the federal government would otherwise provide,” and the government publications they called

“comprehensive directives” were “more aptly described as guidance.” Maglioli, 16 F.4th at 405.

Although the 2011 amendment was in effect during all these decisions, the nursing homes were held

not to be acting under a federal officer. Adopting the

approach that Chevron advances in this case seems to

mandate reversal of those decisions, since its treatment of relatedness would not require the type of close

relationship between federal objectives and private assistance that characterized this COVID-era jurisprudence.

11

B. Aircraft Manufacturers Have Also Unsuccessfully Sought Removal to Federal

Court on Federal-Officer Grounds.

Aircraft manufacturers regularly remove litigation over injuries sustained in crashes from state to

federal court, claiming to be “acting under a federal

officer” and having those claims rejected. In what is

perhaps the leading case, Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015), Boeing argued that it

acts as a representative of the Administrator of the

Federal Aviation Administration (“FAA”) when it

“conduct[s] analysis and testing required for the issuance of type, production, and airworthiness certifications” in lieu of the agency’s inspectors. Id. at 808. It

added to its argument that it helps “reduce[] the size

of the bureaucracy” by making it unnecessary for an

FAA employee to undertake the airworthiness certification, a task that would have authorized federal-officer removal if a government employee conducted it

and was subsequently sued. Id. at 809.

Writing for the court, Judge Easterbrook held that

self-certification did not satisfy the “acting under” requirement, even “[i]f the FAA gave Boeing the power

to issue a conclusive certification of compliance” without establishing substantive standards, although that

would come closer to what is required. Id. at 810. In

light of that conclusion, the Seventh Circuit stated

that “after today it would be frivolous for Boeing or a

similarly-situated defendant to invoke § 1442 as a basis of removal.” Id. at 813.

12

Nonetheless, that notice that the argument was

frivolous has not stopped aircraft manufacturers from

repeatedly pressing it on courts. Airbus made the

same argument when one of its helicopters crashed

and sought removal from Nevada state court to federal

court. Riggs v. Airbus Helicopters, Inc., 939 F.3d 981

(9th Cir. 2019), cert. denied, 141 S. Ct. 161 (2020). In

Riggs, Airbus added to Boeing’s failed arguments that

federal regulations allow “an organization to perform

specified functions on behalf of the Administrator related to engineering, manufacturing, operations, airworthiness, or maintenance.” Id. at 985 (quoting 14

C.F.R. § 183.41(a)). As a result, Airbus asserted it was

an FAA-certified Designation holder with authority to

issue Supplemental Certificates,” a document that authorizes certification for certain design changes to the

aircraft. Id. at 984.

The Ninth Circuit rejected the argument after

adopting the same analysis as in Lu Junhong and

found that Airbus’s authority solely related to compliance with regulatory standards. Id. at 989.

Yet, if Chevron’s construction of the 2011 amendment were correct, not only would these decisions be

doubtful, but what the Seventh Circuit called a frivolous argument would likely succeed.

13

C. Misrepresentation Actions Concerning

Deceptive Marketing About the Negative

Climatological Effects of Fossil Fuels

Have Experienced Repeated Remands

After Courts Rejected Federal-Officer

Removal.

As this Court well knows, states and cities have

sued fossil fuel companies alleging that their marketing campaigns knowingly misled and deceived consumers about the negative effects of gasoline use on

the climate and have removed on the basis of a claimed

federal-officer status that courts have uniformly rejected. See, e.g., BP P.L.C. v. Mayor & City Council of

Baltimore (Baltimore II), 593 U.S. 230 (2021); Bd. of

Cnty. Commissioners of Boulder Cnty. v. Suncor Energy (U.S.A.) Inc., 25 F.4th 1238 (10th Cir. 2022), cert.

denied, 143 S. Ct. 1795 (2023).

In these cases, the fossil fuel companies offered a

variety of claims to bring the cases within the “acting

under” criteria of the Federal Officer Removal Statute

without success. For example, in the Baltimore case,

some corporate defendants unsuccessfully argued that

its contracts with the Navy Exchange Service Command (NEXCOM) and the Navy more generally, as

well as leases administered by the Secretary of the Interior, qualified it for Section 1442 removal. Mayor &

City Council of Baltimore v. BP P.L.C. (Baltimore I),

952 F.3d 452, 463 (4th Cir. 2020), vacated and remanded on other grounds, 593 U.S. 230 (2021).

14

The Fourth Circuit concluded that merely producing a product that the government needed lacked a

sufficient relationship to Baltimore’s claims in this

lawsuit and illogically “would bring every seller of contracted goods and services within the ambit of § 1442

when the government is a customer.” Id. The leasing

agreement argument proved unavailing for the same

reason, its remoteness from the claims at issue by Baltimore, but also because “many of lease terms are

mere iterations of the . . . regulatory requirements”

and because the court doubted that a “willingness to

lease federal property or mineral rights to a private

entity for the entity’s own commercial purposes, without more, could ever be characterized as the type of

assistance that is required to trigger the governmentcontractor analogy.” Id. at 465. The Circuit had to

reach that conclusion a second time when it was assayed again. See Anne Arundel Cnty. v. BP P.L.C., 94

F.4th 343, 347 (4th Cir. 2024) (“We conclude federal

officer removal was no more proper here than in Baltimore.”).

The Tenth Circuit reached the same conclusion,

finding the Outer Continental Shelf leases asserted in

its case insufficient to trigger federal-officer removal.

Suncor Energy, 25 F.4th at 1253 (“By winning bids for

leases to extract fossil fuels from federal land in exchange for royalty payments, Exxon is not assisting

the government with essential duties or tasks.”).

15

The First, Second, Third, Eighth, Ninth, and District of Columbia Circuits have reached the same conclusions as the Fourth and Tenth Circuits on this set

of issues. See Rhode Island v. Shell Oil Prods. Co., 35

F.4th 44, 53 n.6 (1st Cir. 2022); State by Tong v. Exxon

Mobil Corp., 83 F.4th 122, 143−45 (2d Cir. 2023); City

of Hoboken v. Chevron Corp., 45 F.4th 699, 712−13 (3d

Cir. 2022), cert. denied, 143 S. Ct. 2483 (2023); Minnesota by Ellison v. Am. Petroleum Inst., 63 F.4th 703,

714−16 (8th Cir. 2023), cert. denied, 144 S. Ct. 620

(2024); County of San Mateo v. Chevron Corp., 32

F.4th 733, 757 (9th Cir. 2022); City & Cnty. of Honolulu v. Sunoco LP, 39 F.4th 1101, 1107−110 (9th Cir.

2022) (rejecting additional arguments not addressed

in San Mateo); and D.C. v. Exxon Mobil Corp., 89 F.4th

144, 155−57 (D.C. Cir. 2023).

As in the prior examples, each of these decisions

considered the 2011 amendment in rejecting the claim

for federal-officer removal, but Chevron’s construction

of the amendment would appear to mandate a different result.

D. Some Privacy Lawsuits over Patient Portal Websites Demonstrate Misuse of Federal-Officer Removal Without Fear of Local Prejudice.

Delay, rather than concerns about local prejudice,

appear to characterize some assertions of federal-officer status. For instance, Missouri patients of a Missouri health care provider, BJC Health System, sued

in state court based on allegations that the provider

16

violated state privacy rights in establishing online patient portals. Doe v. BJC Health Sys., 89 F.4th 1037,

1040 (8th Cir. 2023). BJC removed and argued it “exercised explicit or implied authority delegated from

HHS or the [National] Coordinator [for Health Information Technology] when it created and operated its

online patient portal” and relied on federal incentive

payments to deploy it. Id. at 1044.

Specifically, BJC relied on an out-of-circuit district

court decision to contend that “when healthcare providers create and maintain patient portals and accept

HHS incentive payments, they assist HHS in building

‘an interoperable health information technology infrastructure’” that will be part of a national network, creating a relationship akin to that of a government contractor. Id. at 1044–45 (quoting Doe I v. UPMC, No.

2:20-cv-359, 2020 WL 4381675, at *5–6 (W.D. Pa. July

31, 2020)).

The Eighth Circuit rejected the argument that

this relationship constituted “acting under” a federal

officer because the patient portal “was not a federal

government website, it was not a website BJC operated on the federal government’s behalf or for the federal government’s benefit, and it was not a website the

federal government directed BJC to create or operate.”

Id. at 1045. In fact, the “design of private websites is

not—and has never been—a basic governmental task.”

Id. Instead, “[w]hen BJC created and operated an

online portal for its patients, it was not doing the federal government’s business. It was doing its own.” Id.

17

The Third Circuit reached a similar conclusion.

See Mohr v. Trustees of Univ. of Penn., 93 F.4th 100,

106 (3d Cir. 2024) (ruling as in BJC and listing six district court rulings utilizing the same rationale). As in

the other examples, Chevron’s construction would appear to require a different and plainly unwarranted

result.

II. EVERY APPROPRIATE READING OF THE

STATUTE WITH THE 2011 AMENDMENT

REJECTS ALLOWING THE ADDITION OF

“RELATING TO” TO OVERRIDE THE WELLESTABLISHED MEANING OF “ACTING UNDER.”

As indicated earlier, this Court begins the task of

statutory construction with the law’s text, Van Buren,

593 U.S. at 381, which provides the best evidence of

Congress’s intent. West Virginia Univ. Hosps., Inc. v.

Casey, 499 U.S. 83, 98 (1991). That approach to statutory construction reflects the axiom that courts “presume that a legislature says in a statute what it

means and means in a statute what it says there.”

Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253–

54 (1992). Even so, this “Court has long refused to construe words in a vacuum,” but instead reads them “in

their context and with a view to their place in the overall statutory scheme.” Gundy v. United States, 588

U.S. 128, 141 (2019) (cleaned up).

Chevron, on the other hand, asks this Court to

adopt a reading that is breathtaking in scope based on

the addition of two words, “relating to,” as added in

18

the Removal Clarification Act of 2011, Pub. L. No. 11251, § 2(a)(1), 125 Stat. 545. That approach is disassociated from the placement of the words and treats it in

splendid isolation from the rest of the statute, from its

history, and from any logical congressional purpose

that might be ascribed to it. Under Chevron’s reading,

a transitory, shallow, and insubstantial connection at

some distant past justifies use of the removal statute

as a get-out-of state-court card with no expiration date

and no boundaries.

A. The 2011 Amendment Did Not Massively

Change the Requirements for FederalOfficer Removal.

Congress enacted the Removal Clarification Act of

2011 by pertinently amending Section 1442(a)(1) as

follows:

(a) A civil action or criminal prosecution

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. . . .

(1) 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 capacity, for or relating to any act

under color of such office. . . .

19

Removal Clarification Act of 2011 § 2(a)(1). 4

A plain reading of Section 1442(a)(1) makes clear

the separateness of the requirement that a non-government actor qualifies for consideration by being a

“person” who is “acting under [a federal] officer” from

the remaining criteria. Thus, every circuit has undertaken a three- or four-prong inquiry, sometimes collapsing the first two parts into one, by requiring that

the defendant be: (1) a person, (2) acting under the

United States, its agencies, or its officers, (3) “for or

relating to” an act under color of federal authority, and

(4) with a colorable federal defense. See, e.g., Att’y

Gen. of New Jersey v. Dow Chem. Co., 140 F.4th 115,

119 (3d Cir. 2025); see also Gov’t of Puerto Rico v. Express Scripts, Inc., 119 F.4th 174, 185 (1st Cir. 2024);

Tong, 83 F.4th at 142 (2d Cir.);; Anne Arundel Cnty.,

94 F.4th at 347; Caris MPI, Inc. v. UnitedHealthcare,

Inc., 108 F.4th 340, 346 (5th Cir. 2024); Hudak, 58

F.4th at 858; Baker v. Atlantic Richfield Co., 962 F.3d

937, 941 (7th Cir. 2020); Doe v. SSM Health Care

Corp., 126 F.4th 1329, 1332 (8th Cir. 2025); DeFiore v.

SOC LLC, 85 F.4th 546, 554 (9th Cir. 2023); Suncor

Energy, 25 F.4th at 1251 (10th Cir.); Schleider, 121

F.4th at 158 (11th Cir. 2024). But see K&D LLC v.

Trump Old Post Off. LLC, 951 F.3d 503, 506 (D.C. Cir.

2020) (describing it as a two-step test consisting of the

4 Other provisions of the 2011 amendment, such as defining for

the first time “civil action” and “criminal prosecution” or authorizing an appeal from a remand order, Removal Clarification Act

of 2011 §§ (2)(a)(2) and 2(d), are not relevant to this case.

20

third and fourth elements of the four-prong test).

B. The Text Did Not Change the Criterion

for What Constitutes “Acting Under” a

Federal Officer or the Purpose of That

Requirement.

While being a person is rarely an issue, many

courts—as this Court did in Watson v. Philip Morris

Cos, Inc.—focus heavily on the “acting under” prong,

where this Court pronounced the “relevant relationship is that of a private person ‘acting under’ a federal

‘officer’ or ‘agency.’” 551 U.S. 142, 151 (2007) (citing 28

U.S.C. § 1442(a)(1)). Watson read the requirement to

“refer to what has been described as a relationship

that involves ‘acting in a certain capacity, considered

in relation to one holding a superior position or office,’”

which “typically involves ‘subjection, guidance, or control.’” Id. This Court emphatically stated that it “does

not include simply complying with the law.” Id. at 152

(emphasis in original). Watson further stated that as

a “matter of statutory purpose . . . [w]hen 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,’” and

thus stands outside the protective shield that federalofficer removal seeks to accomplish. Id.

Watson also recognized that the “acting under”

prong is “broad” and “must be ‘liberally construed,’”

but further acknowledged that “broad language is not

limitless” and that those limits become evident in a

21

statute’s “language, content, history, and purposes.”

Id. at 147.

Nothing in the Removal Clarification Act suggests

that Congress sought to change this Court’s approach

to “acting under.” Cf. New York State Conf. of Blue

Cross & Blue Shield Plans v. Travelers Ins. Co., 514

U.S. 645, 661 (1995) (“[N]othing in the language of the

Act or the context of its passage indicates that Congress chose to displace general health care regulation

[by the States] . . . .”).

Chevon argues the plain meaning of “relates to” in

the 2011 amendment requires nothing more than

some connection or relation between the conduct at issue in the litigation and the defendant’s federal contracts. Yet, that focus ignores whether the person

seeking removal qualifies as “acting under” and involves the type of “subjection, guidance, or control”

that Watson called the essence of acting in relation to

a superior. Moreover, holding a federal contract does

not per se create an “acting under” relationship with

the federal government. Watson made clear—and

Philip Morris as the removing party agreed—that a

contractual relationship must also include “unusually

close” and “detailed supervision regulation, monitoring, or supervision.” 551 U.S. at 153.

To put a fine point to it, Watson held that the “upshot is that a highly regulated firm cannot find a statutory basis for removal in the fact of federal regulation

22

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.’” Id.

Despite that clear language, and adopting the

analysis of Judge Oldham’s dissent below, Chevron

advocates “the ‘relating to’ element requires only that

the challenged conduct be ‘connected or associated

with’ an act taken under federal direction.” Pet. Br. 20

(quoting Pet. App. 47). It proposes no limiting principle, and none can be discerned from that definition.

The astounding breadth that Chevron ascribes to

the 2011 amendment becomes even clearer when it accuses the Fifth Circuit majority of “compound[ing] its

error,” by holding “compliance with federal regulations,” including very “specific regulatory directives,”

did not suffice to support federal-officer removal. See

Pet. Br. 35 (citing Pet. App. 24–25). That holding by

the Fifth Circuit was not error, but comported with

this Court’s teachings in Watson.

It is worth noting that the issue in Watson was not

the way the cigarette manufacturer (or its laboratory)

“conducted cigarette testing,” but “the way in which

Philip Morris ‘designed’ its cigarettes.” 551 U.S. at 154

(emphasis in original). Thus, although this Court

found no reason to discuss that issue beyond noting it,

the notation makes clear a disconnect between the

lawsuit and the alleged basis for removal that cannot

be bridged. There must be some relationship between

23

the cause of action and the activities with which the

federal government has sought closely supervised assistance.

Here, that is absent. And its absence is not a matter of dispute. The government contracted with the

Defendants and their predecessor companies for refined aviation fuel during World War II. Pet. App. 2.

They did not contract to have crude oil drilled to supply the materials that required refining; they did not

regulate, supervise, or provide guidance about how

that crude oil was obtained; and they did not authorize

the destruction of the Louisiana coastline. Pet. App.

25, 61 n.67. In fact, both the majority and dissent below agreed, in the words of the dissent:

True, the contracts did not specify where or

how defendants should acquire the massive

amounts of crude oil needed to fulfill their

avgas obligations.

Pet. App. 45 (Oldham, J., dissenting); see also Pet.

App. 29–30.

While the majority properly found that fact significant, Judge Oldham’s dissent considered it inconsequential. Pet. App. 45–46. The disassociation between

claim and federal connection, however, should not be

dismissed so easily. An approach that downplays the

connection constitutes an extraordinarily loose approach to what is at issue. In fact, the approach Judge

Oldham would take, and that Chevron embraces,

24

would allow a government contract for the manufacture of widgets, containing no specifications for the

widgets, to justify removal of a subsequent state lawsuit for a wide variety of state-law claims. Those would

include allegations for unjust enrichment based on the

government contractor’s theft of another company’s

widgets to fulfill the government order. It would also

include an action for breach of contract for failing to

pay a third-party supplier for the raw materials used

to make the widgets that were delivered to the government. And it would include an automobile case for a

collision caused by the inattentive driver of the widget

delivery truck. Chevron’s expansive approach to “relating to” would attribute each of these actions to the

government as bearing some relationship to a service

the government contracted for even though no government official maintained oversight or guidance on the

task. In fact, no government official would have engaged in such activity, and the underlying purpose of

removal—to prevent prejudice against the federal government—could not be at issue.

Contrast that approach not only to the decisions

rehearsed at the beginning of this brief, which were

rendered after the 2011 amendment, but also to a telling pre-amendment example. In Bennett v. MIS Corp.,

607 F.3d 1076 (6th Cir. 2010), the Sixth Circuit held

that federal-officer removal was proper when air traffic controllers sued over injuries caused by incompetent and negligent mold remediation by private companies hired by the FAA to address problems at De-

25

troit Metropolitan Wayne County Airport. The first effort allegedly exacerbated the mold problem, engendered nearly immediate medical problems, and resulted in a five-hour employee evacuation. Three subsequent attempts at remediation also failed.

The court found that removal was authorized because the company performed its work at the direction

and in accordance with detailed mold abatement specifications formulated by the FAA and because on-site

FAA officials closely monitored the work. Id. at 1087.

Thus, the relationship was the type of “unusually close

one, involving detailed regulation, monitoring, and supervision,” that Watson discussed. Id. (citing Watson,

551 U.S. at 153).

While the FAA’s close relationship satisfied the

“acting under” prong, the Sixth Circuit separately assessed the under-color-of-federal-authority prong that

“relating to” now modifies. That hurdle, the court

noted, is “quite low.” Id. at 1088 (citation omitted). To

the extent that the Removal Clarification Act of 2011

was passed to keep that portion of the test low, nothing about it suggests that Congress sought to overturn

this Court’s decision in Watson.

C. Legislative History Supports a More

Cabined Approach to the 2011 Amendment.

The 2011 amendment to the federal officer removal statute was a product of congressional pique at

the experience of Rep. Eddie Bernice Johnson with

26

pre-suit discovery, after she questioned the ethics of a

Dallas County Commissioner in a newspaper interview. See Price v. Johnson, 600 F.3d 460, 461 (5th Cir.

2010). Rep. Johnson sought removal to federal court,

asserting that she made her comments under color of

federal authority as a member of the House of Representatives. Id. at 462. The district court granted an order of remand after concluding that federal-officer removal did not apply to pre-suit proceedings in state

court, and the Fifth Circuit held it was without jurisdiction to review the remand order. Id. at 462−63.

One month after the Johnson decision, the first iteration of the Removal Clarification Act was introduced, referencing the decision in Rep. Johnson’s case

and noting that more than 40 States permit pre-suit

discovery. See 156 Cong. Rec. E827–28 (daily ed. May

12, 2010) (remarks of Rep. Henry “Hank” Johnson Jr.,

introducing H.R. 5281 (Removal Clarification Act of

2010)). It clearly and plainly authorized federal-officer

removal for pre-suit actions in state court. Removal

Clarification Act of 2010, Hearing on H.R. 5281 Before

the Subcomm. on Courts and Competition of the H.

Comm. on the Judiciary, 111th Cong. 43 (2010) (statement of Lonny Hoffman, George Butler Research Professor, University of Houston Law Center). It further

addressed the absence of appellate review of a decision

to remand. Id. at 44.

More relevant to the current matter, the U.S.

House of Representatives General Counsel explained,

27

the “bill does not alter the standard for general removal for Federal officers under 1442.” Id. at 13 (statement of Irvin B. Nathan, General Counsel, Office of

the General Counsel, U.S. House of Representatives).

When the bill was not enacted during that Congress, a “nearly identical” bill was introduced by the

same primary sponsor the next Congress. 157 Cong.

Rec. H1372 (daily ed. Feb. 28, 2011) (statement of Representative Henry “Hank” Johnson Jr. introducing

H.R. 5281 (Removal Clarification Act of 2011)). Other

than broadening its scope to capture other state court

proceedings deemed immune from removal under the

existing law and to authorize appeals from remand orders, nothing in the record suggests it changed the

longstanding standard for what constitutes “acting

under” or the necessary nexus between acts that

claimed color of federal authority and the underlying

lawsuit.

Not only are the standards urged by Chevron well

beyond any sensible reading of the statute after Congress amended it in 2011, but its proposed reading

would make removal and a battle over remand de

rigueur, flooding the federal courts with cases that

that should properly be heard in state court. Cf. Maracich v. Spears, 570 U.S. 48, 59−60 (2013) (holding

that language “susceptible to broad interpretation”

can still be read with a limiting principle consistent

with statutory structure to prevent indeterminacy and

an application that “stops nowhere”) (citations omitted).

28

Not to be overlooked is another value that has

guided this Court: Where our constitutional structure

leaves certain responsibilities to the States, this Court

has “generally declined to read federal law as intruding on that responsibility, unless Congress has clearly

indicated that the law should have such reach.” Bond

v. United States, 572 U.S. 844, 848 (2014). The placement of “relating to” in the amended federal-officer removal law does not achieve the crystalline quality that

Chevron attributes to it. Just as this Court observed

in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983),

some connections are simply “too tenuous, remote, or

peripheral . . . to warrant a finding that [it] ‘relates to’”

something else. Id. at 100. Chevron’s contention that

the “acting under” prong can be satisfied even when

its so-called federal acts are not the subject of a complaint is boundless without reason, and plainly outside of congressional contemplation.

CONCLUSION

For the foregoing reasons, the American Association for Justice and the Louisiana Association for Justice respectfully ask this Court to affirm the judgment

of the Fifth Circuit in this case.

November 20, 2025

Respectfully submitted,

Robert S. Peck

Counsel of Record

CENTER FOR CONSTITUTIONAL

LITIGATION, P.C.

1901 Connecticut Ave. NW

Suite 1101

Washington, DC 20009

29

Phone: (202) 944-2874

Fax: (646) 365-3382

robert.peck@cclfirm.com

Bruce Plaxen

President

Jeffrey R. White

Sr. Assoc. Gen. Counsel

AMERICAN ASSOCIATION

FOR JUSTICE

777 6th St. NW, #300

Washington, DC 20001

(202) 617-5620

bruce.plaxen@justice.org

jeffrey.white@justice.org

B. Scott Andrews

President

Stephen J. Herman

Amicus Curiae Cmte. Chair

LOUISIANA ASSOCIATION

FOR JUSTICE

442 Europe St.

Baton Rouge, LA 70802

(225) 383-5554

sandrews@dueguidry.com

sherman@fishman

haygood.com

Counsel for Amici Curiae

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

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