Petition for Writ of Certiorari — San Diego Family Housing, LLC, a California Limited Liability Corporation, et al., Petitioners v. Lena Childs, et al.

Supreme Court, U.S.

FILED

JAN - 6 2026

No. 25- ICfifi'

OFFICE OF THE CLERK

In THE

Supreme tourt nf ttye Bntteii States

SAN DIEGO FAMILY HOUSING, LLC; LINCOLN

MILITARY PROPERTY MANAGEMENT LP,

Petitioners,

v.

LENA CHILDS; DONALD CHILDS, T.C, AND A.C.,

Respondents.

'

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

Kristin N. Reyna Dehart

Counsel of Record

Buchalter LLP

655 West Broadway,

Suite 1600

San Diego, CA 92101

(619) 219-5335

kreyna@buchalter.com

Counsel for Petitioners

120864

COUNSEL PRESS

(800) 274-3321 • (800) 359-6859

RECEIVED

JAN - 8 2026

OFFICE OF THE CLERK

SUPREME COURT, U.S.

i

QUESTIONS PRESENTED

This petition arises from the attempts of former

military housing residents to hold the United States

Navy’s government contractors under the Military

Housing Privatization Initiative (“MHPI”), 10 U.S.C.

§§2871-85, liable in state court for their military housing

operational activities for the U.S. Navy under contracts

and plans with, and under supervision and oversight

by, the U.S. Navy. This case was immediately removed

to federal court by Petitioners, as the federal officer

removal statute allows for federal jurisdiction over civil

actions against “any person acting under [an] officer of

the United States for or relating to any act under color

of such office.” This case proceeded in federal court until

2024, when the United States interjected itself into the

proceeding to argue that Petitioners did not meet the

“causal nexus” standard of the Ninth Circuit per Lake v.

Ohana Mil. Communities, 14 F.4th 993 (9th Cir. 2021), as

there was no “causal nexus” between “plaintiffs’ claims

and the actions [it] took pursuant to a federal officer’s

direction.” The District Court agreed, relying heavily on

Lake, to remand the case. The Ninth Circuit also agreed,

focusing on the “causal nexus” test and Lake to support

its position. Petitioners sought rehearing en banc, which

was also denied.

The questions presented are:

1.

Whether a causal nexus test of any variety,

including that used by the Ninth Circuit, survives

the 2011 amendment to the federal officer removal

statute.

ii

Whether a federal contractor can remove to

federal court when sued for U.S. Navy military

housing operational activities which it undertook

to fulfill federal contracts with the U.S. Navy as

to the operation of such housing, and specifically

as to the housing’s management and maintenance,

and in following plans, directions, and oversight

from the U.S. Navy as to such military housing.

Hi

PARTIES TO THE PROCEEDING

Petitioners are San Diego Family Housing LLC and

Lincoln Military Property Management LP. Petitioners

were defendants-appellants below.

Respondents are Lena Childs, Donald Childs, T.C.,

a minor, and A.C., a minor. Respondents were plaintiffsappellees below.

InDepth Corporation is a defendant in the case but

has not been a party to the appellate proceedings.

CORPORATE DISCLOSURE STATEMENT

Petitioner San Diego Family Housing is a California

privately held limited liability company. It is not publicly

held or traded. No publicly held corporation or other

publicly held entity holds 10% or more of its stock.

Petitioner Lincoln Military Property Management,

L.P. is presently known as LMH Military Property

Management-L.P., which is a Delaware privately held

limited partnership. It is not publicly held or traded. No

publicly held corporation or other publicly held entity holds

10% or more of its stock.

V

STATEMENT OF RELATED PROCEEDINGS

This case arises from the following proceedings:

• Childs v. San Diego Family Housing LLC, No.

24-1256, (9th Cir. August 28, 2025) (opinion and

judgment)

• Childs v. San Diego Family Housing LLC, No. 241256, (9th Cir. October 8, 2025) (denial of petition

for rehearing en banc)

• Childs v. San Diego Family Housing LLC, 19-cv2329-JM-SBC (S.D. Ca. February 1, 2024) (order

remanding case)

Petitioners are not aware of any other proceedings

that are directly related to this case within the meaning

of Rule 14.1(b)(iii).

VI

TABLE OF CONTENTS

Page

i

QUESTIONS PRESENTED

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

iii

CORPORATE DISCLOSURE STATEMENT....... iv

STATEMENT OF RELATED PROCEEDINGS

v

TABLE OF CONTENTS

vi

TABLE OF APPENDICES

viii

TABLE OF CITED AUTHORITIES........................

xi

PETITION FOR WRIT OF CERTIORARI

1

OPINIONS BELOW

3

JURISDICTION

3

STATUTORY PROVISION INVOLVED

4

STATEMENT OF THE CASE

............................. 4

A. Legal Background

4

B. Factual Background

6

C. Procedural History

12

REASONS FOR GRANTING THE PETITION

15

vii

Table of Contents

Page

I.

The Ninth Circuit’s Decision Conflicts with

the Post 2011 Statutory Standard for Federal

Officer Removal, Other Ninth Circuit

decisions and Other Circuit Decisions...... 16

A. The Ninth Circuit’s Decision

Improperly Relies Heavily on a

Strict Causal Nexus Standard that

the Statute No Longer Requires

after the 2011 Amendment........................ 16

B. The Ninth Circuit Has in More

Recent Years Often Supported

a More Lenient Standard than a

Strict Casual Nexus, Adding to the

Confusion and Causing Inconsistent

Rulings within this Circuit Which

this Court Should Address........................ 19

C. The Decision is a Hallmark of the

Ongoing Split between Circuits on

this Issue.......................................... 28

II. This Issue Requires Resolution

in Multiple Factual Scenarios, and in

Multiple Circuits, Given the Critical

Nature of this Issue for Government

Contracts and Contractors’ Ongoing Work

for the Federal Government.......................... 31

CONCLUSION.......................................................... 34

viii

TABLE OF APPENDICES

Page

APPENDIX

APPENDIX A — OPINION OF THE

UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED AUGUST 28,2025 ................................. la

APPENDIX B — ORDER OF THE

UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT,

FILED OCTOBER 8,2025............................. 25a

APPENDIX C — ORDER OF THE

UNITED STATES DISTRICT COURT,

SOUTHERN DISTRICT OF CALIFORNIA,

FILED FEBRUARY 1,2024 ......................... 27a

APPENDIX D — RELEVANT STATUTORY

PROVISION....................................................... 58a

APPENDIX E — DECLARATION

OF PHILIP RIZZO OF THE UNITED

STATES DISTRICT COURT, SOUTHERN

DISTRICT OF CALIFORNIA,

FILED OCTOBER 26,2023............................. 61a

APPENDIX F — NAVY AND MARINE CORPS

FACTS ABOUT HOME MOLD TESTING,

FILED OCTOBER 26,2023.............................. 77a

Table ofAppendices

Page

APPENDIX G — LETTER OF THE

DEPARTMENT OF THE NAVY

HOUSING PRIVATION PARTNERS,

FILED OCTOBER 26,2023............................. 85a

APPENDIX H — SCOTT D. FORREST LETTER

TO THE DEPARTMENT OF THE NAVY,

FILED OCTOBER 26,2023............................. 90a

APPENDIX I — LETTER OF THE

DEPARTMENT OF THE NAVY,

FILED OCTOBER 26,2023...................

94a

APPENDIX J — SCOTT D. FORREST AND

CHARLES A. WILLIAMS LETTERS TO

THE DEPARTMENT OF THE NAVY,

FILED OCTOBER 26,2023........................... 100a

APPENDIX K — PLAINTIFF’S FIRST

AMENDED COMPLAINT FOR DAMAGES

AND JURY TRIAL DEMAND OF THE

SUPERIOR COURT OF CALIFORNIA FOR

THE COUNTY OF SAN DIEGO - CENTRAL

DIVISION, FILED DECEMBER 5,2019...... 116a

SEALED APPENDIX

APPENDIXL—EXHIBITB:THIRD AMENDED

AND RESTATED LIMITED LIABILITY

COMPANY OPERATING AGREEMENT

OF SAN DIEGO FAMILY HOUSING, LLC,

DATED FEBRUARY 1,2010................. S. App. 1

X

Table ofAppendices

Page

APPENDIX M — EXHIBIT C: THIRD

AMENDED AND RESTATED REAL

ESTATE GROUND LEASE, UNITED

STATES OF AMERICA, DEPARTMENT OF

THE NAVY, AS LESSOR AND SAN DIEGO

FAMILY HOUSING, LLC, AS LESSEE,

DATED MARCH 10,2017................... S. App. Ill

APPENDIX N — EXHIBIT D: SECOND

AMENDED AND RESTATED REAL

ESTATE GROUND LEASE, UNITED

STATES OF AMERICA, DEPARTMENT OF

THE NAVY, AS LESSOR AND SAN DIEGO

FAMILY HOUSING, LLC, AS LESSEE,

DATED OCTOBER 1,2007 ................ S. App. 196

APPENDIX 0 — EXHIBIT E: THIRD

AMENDED AND RESTATED

PROPERTY MANAGEMENT

AGREEMENT .................................. S. App. 272

APPENDIX P — EXHIBIT F: WATER

INTRUSION/MOLD OPERATIONS

AND MAINTENANCE MANAGEMENT

SYSTEM............................................. S.App. 360

XI

TABLE OF CITED AUTHORITIES

Page

Cases

Arizona v. Manypenny,

451 U.S. 232 (1981)

.....5,23,31

Baker v. Atl. Richfield Co.,

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

28

Bd. of Cnty Comm’rs v. Suncor Energy (U.S.A) Inc.,

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

28

Campbell-Ewald v. Gomez,

136 S.Ct. 663 (2016)

13

Caver v. Cent. Alabama Elec. Coop.,

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

29

Childs v. San Diego Family Housing, LLC,

22 F.4th 1092 (9th Cir. 2022)

. ....... 13

DeFiore v. SOC, LLC,

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

Dist. of Columbia v. Exxon Mobil Corp.,

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

Durham v. Lockheed Martin Corp.,

445 F.3d 1247 (9th Cir. 2006)

Fidelitad v. Insitu,

904 F.3d 1095 (9th Cir. 2018)

14,26,27,28

28,29

1,17,23-24,26

17

xii

Cited Authorities

Page

Goncalves by and through Goncalves v. Rady’s

Children’s Hospital of San Diego,

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

6,14,23-28

In re Commonwealth’s Motion to Appoint

Counsel Against or Directed to Defender

Association of Philadelphia,

790 F.3d 457 (3d Cir. 2015, as amended

June 16,2015)

5-6,28,29

Isaacson v. Dow Chemical Co.,

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

Jefferson County v. Acker,

527 U.S. 423 (1999)

21,24,27

............. 1, 5,17,21,24,27

Lake v. Ghana Mil. Communities,

14 F.4th 993 (9th Cir. 2021).... 6,13,14,17,18,20,26

Latiolais v. Huntington Ingalls, Inc.,

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

Leite v. Crane Co.,

749 F.3d 1117 (9th Cir. 2014)

30

14,17,20-24,27,28

Maryland v. Soper,

270 U.S. 9 (1926)

Minnesota ex rel. Ellison v. Am Petroleum Instit.,

63 F4th 703 (8th Cir. 2023)

.5,24

30

xiii

Cited Authorities

Page

Moore v. Elec. Boat Corp.,

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

28

Morales v. Trans World Airlines,

504 U.S. 374(1992)

17

Ohio St. Chiropractic Ass’n v.

Humana Health Plan Inc.,

647 Fed. Appx. 619 (6th Cir. 2016)

29

Papp v. Fore-Kast Sales Co.,

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

29

Plaquemines Par. v. BP Am. Prod. Co.,

103 F.4th 324 (5th Cir. 2024), cert, granted

sub nom. Chevron USA Inc. v. Plaquemines Par.,

No. 24-813, 2025 WL 1678985

(U.S. June 16, 2025)

15,19, 30, 33

Sawyer v. Foster Wheeler LLC,

860 F.3d 249 (4th Cir. 2017)

5,28,29

Shawv. Delta Air Lines, Inc.,

463 U.S. 85 (1983)

17

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007)

1, 4,17,31

Willingham v. Morgan,

395 U.S. 402 (1969)

4, 5,20,21,23,26,27,31

xiv

Cited Authorities

Page

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

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

13

Statutes, Regulations and Other Authorities

10 U.S.C. §2885 ............................................................. 6

10 U.S.C. §§2871-85....................................................... 6

28 U.S.C. §1254 .............................................................3

28 U.S.C. §1442 ................................................... 1,4,23

28 U.S.C. §1442(a)(l).... 1, 5,12,14,15,17,21,23,31-33

Pub. L. No. 112-51,125 Stat. 545 (2011)............... 1, 5,17

1

PETITION FOR WRIT OF CERTIORARI

Federal officer removal is a critical vehicle for federal

government contractors to have claims against them

pertaining to their work for the federal government

heard in federal court, separated from any biases and

preconceptions of state court, or such venues’ lacking

familiarity with federal issues. The federal officer

removal statute, 28 U.S.C. §1442, has been continually

expanded over the decades; after the Civil War, Congress

expanded the original language to guarantee government

contractors the same protections as federal officers, and

it was again expanded to cover additional subject matters

after World War II. Watsonv. Philip Morris Cos., 551 U.S.

148, 151-52 (2007). Even prior to the 2011 amendment,

removal under 28 U.S.C. §1442(a)(1) was recognized to

have a “low bar” or “lenient” standard, more so than

removal under any other provision. See, e.g., Durham

v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir.

2006) (quoting Jefferson County, v. Acker, 527 U.S. 423,

431 (1999)). After the 2011 amendment, the statute was

once again broadened by Congress, to encompass not only

claims relating to actions for acts under color of federal

office, but for or related to acts under color of federal

office. 28 U.S.C. §1442(a)(l), 125 Stat. 545 (2011).

The Ninth Circuit’s decision below stands at direct

odds with the 2011 amendment. In the decision below,

and in the wake of the 2011 amendment, the Ninth Circuit

has continued to use a causal nexus standard, which

contravenes the statute. Even worse, the Ninth Circuit

inconsistently applies this standard, at times voicing more

leniency and at times not, so there is a total lack of clarity

as to what standard the court will apply on any given case.

2

While Petitioners here unequivocally are government

contractors performing ongoing work for the U.S. Navy

operating its military housing, which the Navy otherwise

would have to do itself, under contracts, plans, directions

and oversight from the Navy, the Ninth Circuit panel

erroneously found this was insufficient for federal officer

jurisdiction, where the Childs’ claims specifically relate

to that government work performed by Petitioners.

The decision further contravenes other Ninth

Circuit cases, which applied a more flexible standard to

government contractors. The decision additionally stands

at odds with the decisions of the majority of other circuits,

which have rejected causal nexus or contractual directive

tests in the wake of the 2011 amendment.

The Ninth Circuit’s decision here is particularly

dangerous, and damaging to federal contractors in

California and the Ninth Circuit, who are sued for claims

plainly relating to their work for the government, but

need to meet an elevated standard to have their cases in

federal court that the federal officer removal statute and

most other circuits do not support. Even more precarious

may be the Ninth Circuit’s current modus operandi of

not only still acknowledging its use of a causal nexus

test in contravention of the statute, but further either

tightening or loosening the constraints thereof on a

case by case basis, depending on an unclear, nebulous

standard, creating complete uncertainty. The result is

that government contractors like Petitioners, who perform

ongoing work across the country in multiple jurisdictions

for the U.S. Navy, may be able to clearly avail themselves

of federal officer jurisdiction in one location, but be denied

it in another, and then face not only hostile state courts on

3

occasion, but inconsistent results. For their actions which

are taken to fulfill their federal contracts and in following

federal plans and directions, Petitioners should have any

claims against them for or relating to such work heard in

federal court. The language of the statute dictates this

result and certainty they should be able to rely upon.

This Court should grant review to make clear that

the Ninth Circuit’s causal nexus standard, treated as

“flexible” or not, cannot stand in the face of the 2011

Removal Clarification Act’s changes to the statutory

language, and neither can the causal nexus tests of

any other circuit. Federal contractors carrying out the

government’s work, who are sued for claims connected to

such work, should have those claims, and their defenses

thereto, heard in federal court, because such claims plainly

“relate to” their work for the federal government.

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 150 F.4th

1151 and reproduced at App. la-24a.

The Ninth Circuit’s denial of rehearing en banc is

reproduced at App. 25a-26a. The Southern District of

California’s remand order is reported at 714 F.Supp.3d

and reproduced at App. 27a-57a.

JURISDICTION

On October 8,2025, the Ninth Circuit denied a timely

petition for rehearing en banc. This Court has jurisdiction

under 28 U.S.C. §1254.

4

STATUTORY PROVISION INVOLVED

The federal officer removal statute, 28 U.S.C. §1442,

is reproduced in the Appendix at App. 58a-60a.

STATEMENT OF THE CASE

A. Legal Background

The federal officer removal statute has a long history.

It was first authorized by Congress as a temporary

measure during the War of 1812,1 but Congress soon

thereafter enacted permanent federal officer removal

statutes to, in large part, “protect federal officers from

interference by hostile state courts” as to their conducting

of federal activities. Willingham v. Morgan, 395 U.S.

402, 405 (1969). After the Civil War, Congress expanded

removal to include not only federal officers, but “any

person acting under or by authority of any such officer”

to enforce federal law in certain areas. Watson v. Philip

Morris Cos., 551 U.S. 142, 148 (2007). Following World

War II, however, the federal officer removal statute

was expanded yet again, to no longer contain subject

area limitations, and it was made clear that the statute

encompassed all those “acting under” federal officers,

performing jobs that the government would otherwise

have to perform itself. Id. at 153-54.

This Court’s sentiments on the right of removal have

repeatedly been, in recent decades, that it is “absolute

for conduct performed under color of federal office,” and

the “policy favoring removal ‘should not be frustrated

1. See Act of February 4,1815, sec. 8, 3 Stat. 195,198.

5

by a narrow, grudging interpretation of §1442(a)(l).’”

Arizona v. Manypenny, 451 U.S. 232,242 (1981) (quoting

Willingham, 395 U.S. at 407); see also Maryland v. Soper,

270 U.S. 9, 33 (1926) (“[T]he statute does not require

that the prosecution must be for the very acts which the

officer admits to have been done by him under federal

authority. It is enough that his acts or his presence at the

place in performance of his official duty constitute the

basis, though mistaken or false, of the state prosecution.”).

Further, this Court has found that “[t]he circumstances

that gave rise to the” claim against the federal officer, “not

just” the specific challenged acts of that federal officer,

are enough to establish the “essential nexus” between

the activity under “color of office” and a claim against the

officer. Jefferson County v. Acker, 527 U.S. 423,433 (1999).

In 2011, the federal officer removal statute was

broadened once again by Congress, making it so that a

defendant invoking the statute no longer had to show that

the lawsuit was only “/or a[n] act under color of federal

office,” but now could alternatively invoke the statute for

an act “/or or relating to any act under color of such office.”

28 U.S.C. §1442(a)(l) (emphasis added); see Pub. L. No.

112-51,125 Stat. 545 (2011).

In the wake of this expansion of the federal officer

removal statute, most circuits have now disposed of any

requirement to show a “causal nexus” or “contractual

directive” as to the act(s) in question and the basis

of the lawsuit, and defaulted instead to a connection

or relationship standard. See, e.g., Sawyer v. Foster

Wheeler LLC, 860 F.3d 249, 258 (4th Cir. 2017); In re

Commonwealth’s Motion to Appoint Counsel Against or

Directed to Defender Association of Philadelphia, 790

6

F.3d 457, 471 (3d Cir. 2015, as amended June 16, 2015).

However, the Ninth Circuit, in particular, proceeded

incongruously, sometimes utilizing a strict causal nexus

test, and other times, relaxing its parameters, causing

inconsistency. See, e.g., Lake, 14 F.4th 993 (strict causal

nexus standard); Goncalves by and through Goncalves v.

Rady’s Children’s Hospital of San Diego, 865 F.3d 1237

(9th Cir. 2017) (relaxed standard).

B. Factual Background

1. In 1996, to improve the quality of military housing,

Congress passed the Military Housing Privatization

Initiative (“MHPI”). 10 U.S.C. §§2871-85. Under the

MHPI, branches of the armed forces established public­

private ventures (“PPVs”) to own, develop, and manage

military housing. These PPVs build and renovate military

housing in areas of need on an expedited and improved

basis at a lower cost to the U.S. Government, with the

Government retaining oversight. App. 63a-64a.

Under the MHPI, a branch of the Armed Forces leases

land to a private entity selected through a competitive

bidding process, which then enters into a PPV agreement

with that branch to manage the military housing on it.

Id. Once the Department of Defense opts to delegate its

management function over military housing to a PPV, the

MHPI tasks the Department with ensuring that there is

direct oversight and accountability in place to “manage

military housing privatization projects,” including: (1)

conducting “monthly site visits;” (2) requiring “quarterly

reports” concerning “construction or renovation of

housing units;” and (3) conducting “meetings” to ensure

contractors are performing to “performance and schedule

requirements.” 10 U.S.C. §2885.

7

2. On August 1, 2001, pursuant to the MHPI, the

U.S. Navy entered into an Operating Agreement with

Lincoln/Clark San Diego, LLC to form SDFH, to operate

and manage Navy military housing. App. 64a-65a. The

Navy has an ownership interest in SDFH. Id.; S.App.

1-110. While SDFH, the PPV, has primary responsibility

for managing the military housing in its jurisdiction,

SDFH itself includes the U.S. Navy as the “government

partner” or “public” member of SDFH. Further, the Navy

made a capital contribution to this PPV in the eight (8)

figures, and has various ongoing duties, oversight, and

approval responsibilities relating to the military housing.

The Third Amended Operating Agreement covers the

span of the Childs’ tenancy. App. 64a-65a. On the same

date as the Operating Agreement, the Navy and SDFH

entered a 50-year ground lease (the “Ground Lease”) for

the Silver Strand I community at Naval Amphibious Base

Coronado where the property at issue at 1331 Saipan

Avenue, Coronado, California (“the Property”) is located,

and certain other military housing communities in the

San Diego area; the Second and Third Amended Ground

Leases cover the timeframe of the Childs’ tenancy. App.

65a-66a, S.App. 111-270.

Under the terms of the Ground Leases and Operating

Agreement, the Navy retained ownership of the land on

which the Silver Strand I community is located and only

conveyed ownership of the improvements located on the

land to SDFH for the term of the Ground Lease. App. 65a,

S.App. 121-122,204-205. Upon termination of the Ground

Lease, the improvements on the land will be abandoned in

place and become property of the Navy as the fee owner

of the land. Id.

8

Pursuant to the Operating Agreement, SDFH (which,

again, includes the U.S. Navy as a member) entered into a

property management agreement (“Property Management

Agreement”) with LMPM, relating to the Silver Strand

I community (which includes the Property), as well as

other housing communities. The Property Management

Agreement was prepared jointly by Petitioners, with

the U.S. Navy’s involvement in preparing, reviewing

and approving the Agreement. SDFH was directed to

enter into this Property Management Agreement with

LMPM by the terms of the Operating Agreement. App.

66a, S.App. 271-359. Under the terms of the Property

Management Agreement, LMPM acts as an agent of

SDFH in performing certain property management

functions, like leasing and maintenance. The Property

Management Agreement also includes a Maintenance

Plan which discusses general maintenance for the housing

including service request procedures and priorities,

routine maintenance, make ready maintenance, and

annual and preventative maintenance to be followed. Id.

One of the documents created as directed by the

Ground Leases, referenced therein in Section 11, is

entitled “Standard Procedures for Operations and

Maintenance of Fungi-Containing Materials” (“O&M

Plan”). It is referenced within the Ground Leases as the

“Mold Management Plan.” The O&M Plan was developed

by SDFH in consultation with the Navy, and reviewed and

approved by the Navy as the plan for water intrusion and

mold issues at the Navy military housing. App. 66a-67a,

S.App. 360-370.

The O&M Plan’s purpose is to “help assure that

consistent and highest quality operations and management

9

systems are in place and functioning sufficiently to

address water intrusion and mold related conditions”

and “verify compliance with applicable laws, regulations,

project-related requirements and LMH policies.” S.App.

361. It details how Petitioners will address water intrusion

and mold issues at Navy housing. The O&M Plan is based

in part on U.S. Navy documents and policies, and language

contained in the O&M Plan has been carried over from

past and current housing policies of the Navy. App. 67a.

The O&M Plan presents a water intrusion and mold

response plan, criteria that must be met, options and

considerations for response based on what is discovered

at a property, and directions for responding to tenant

complaints and service orders for a property that

specifically relate to mold and water intrusion. These

include, inter alia, timing of inspections or contact after a

service request (which vary depending on level of urgency,

but which levels of urgency and timeframes for response

were originally dictated by the U.S. Navy), frequency

of inspections, water intrusion/mold procedures, mold

remediation, use of third party contractors, and testing/

reports2. All third party contractors used with the

military housing are vetted and approved in advance by

the Navy. App. 67a-68a.

Petitioners are required to follow the parameters

and directives of the Property Management Agreement’s

Maintenance Plan and the O&M Plan, specifically, with

2. The Navy and Marine Corps policy documents which were

in effect at the time of the Childs’ lease of the Property stated

that the Navy does not recommend mold testing in housing unless

requested by an environmental contractor. App. 68a, 77a-80a.

10

respect to reports of mold, moisture or water intrusion

at a property. They track and log all service requests for

a property to document all requests and responses. This

was done with the Childs’ tenancy. App. 68a-69a. There

are detailed directives about responding to water or mold

related requests in the Maintenance Plan and O&M Plan.

Id., S.App. 339-341,363-368. For example, the O&M Plan

and Maintenance Plan consider mold and water intrusions

requests as “emergencies.” App. 69a, S.App. 340, 363. If

mold is found, it must be remediated; if small (less than

10 square feet), it can be approved to be done in house; if

large (more than 30 square feet) or deemed by the O&M

Coordinator to require an outside vendor, a contractor is

required. App. 69a, S.App. 364-365. If water intrusion

impacts cellulose materials, three follow up visits and a

letter to the tenant are required to ensure the issue is

remedied; otherwise, two visits are required. Id. Testing

is not permitted unless an environmental vendor requests

it. App. 68a, 77a-80a.

3. Various persons and departments within the

U.S. Navy are involved in an ongoing basis with the

military housing. The primary contact point with the

government partner is a Navy Business Agreements

Manager (“BAM”) from Naval Facilities Engineering

Systems Command (“NAVFAC”). The BAM acts like

an asset manager. Their duties involve budget review,

evaluation of metrics (e.g. number and types of work order,

maintenance issues, mold/water intrusion events), review

of work orders and tenancy notes for the properties,

inspections, and general oversight of the military housing.

They send inquiries to Petitioners regularly based on

their reviews. There are weekly and monthly meetings

Petitioners have with NAVFAC personnel, often the BAM,

11

to discuss the various properties. There are also quarterly

walk-throughs of certain housing to view and evaluate it.

Petitioners are required to report on certain metrics to

the U.S. Navy bimonthly and monthly, including on mold

and water intrusion events at the properties. If an issue

arises with the housing with which the U.S. Navy wants

to become more involved, the BAM or other Navy Housing

or NAVFAC personnel have the ability become involved

with the service member (tenant) directly, and/or conduct

their own inspection of the property. If there is a health

issue reported by a tenant, or remediation is required at a

property, the Navy is informed of this (typically the BAM).

NAVFAC and the BAM oversee the implementation of the

O&M Plan. App. 69a-71a.

NAVFAC frequently provides both guidance and

directives to Petitioners on all aspects of the military

housing which is the subject of the Operating Agreement,

Ground Leases and Property Management Agreement

(including the O&M Plan), which include instructions on

such matters as environmental testing, testing specifically

for mold in the housing, access of the Navy to the housing,

work order specifications, and tenant relocation from

the housing due to repairs. Petitioners must follow these

instructions. App. 69a-71a, 85a-115a.

4. The Childs signed a lease for the Property on

August 8,2016. App. 62a-63a. The Lease contains a choice

of law clause which selects federal law to apply to the

tenancy relationship with only minimal state civil code

carve outs. The Childs reported various maintenance

issues during their tenancy, of which they complain in

their operative Complaint, focused on water intrusion

and mold issues, to which Petitioners responded per the

12

contracts and O&M Plan, and Navy directions. App.

69a, 121a-146a. The Childs moved out of the Property

on or about December 2017. App. 63a. The Childs bring

state law claims against Petitioners for negligence,

nuisance, breach of contract, breach of implied warranty

of habitability, breach of implied covenant of peaceful

and quiet enjoyment, and constructive eviction, relating

to the Property and tenancy. App. 116a-159a. Petitioners

contend, as their theory of the case, that they responded

to each issue at the Property raised by the Childs in

conformance with the contracts, directions and plans

under which they operate the housing with the U.S. Navy.

App. 69a.

C. Procedural History

1. The Childs filed suit against Petitioners (and

InDepth Corporation) relating to their former military

housing tenancy at the Property, in San Diego County

Superior Court on May 2, 2019. On October 21, 2019,

the Childs served Petitioners with a First Amended

Complaint. App. 116a-159a. The Childs allege that the

response of Petitioners to their maintenance requests

and complaints about conditions at the Property, and the

inspections, repairs, and remediation by Petitioners in

response, were not adequate and that they should have

done more. Id. On December 5, 2019, Petitioners timely

removed the case to federal court under, inter alia, 28

U.S.C. §1442(a)(l), because Petitioners acted under federal

officers (the U.S. Navy) for or in relation to acts under

color of federal office, with respect to their operation

and management of the Navy military housing and the

Property at issue, and particularly in their response

to the water intrusion and mold items thereat on which

13

the Childs focused, as Petitioners responded to those

issues based on their military housing contracts and

plans developed with, approved by the U.S. Navy, policy

documents, guidance and instruction from the Navy, and

with continuing Navy oversight over their work. The

Childs did not seek remand.

2. On April 10, 2020, Petitioners filed a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(1)

arguing entitlement to derivative sovereign immunity

under Yearsley v. W.A. Ross Construction Co., 309 U.S.

18, 22 (1940) and Campbell-Ewald v. Gomez, 136 S.Ct.

663, 672-74 (2016). On September 15, 2020, the District

Court entered an order denying the motion, finding

that Petitioners could not avail themselves of derivative

sovereign immunity. SDFH and LMPM appealed. The

Ninth Circuit dismissed the appeal on January 14,2022 as

untimely based on the collateral order doctrine. Childs v.

San Diego Family Housing, LLC, 22 F.4th 1092 (9th Cir.

2022). The case returned to District Court and litigation

ensued.

3. On October 26, 2023, Petitioners filed a motion

for summary judgment, arguing, inter alia, the federal

enclave defense barring certain state law claims, the

choice of law provision in the lease barring state law

claims, the Supremacy Clause, and derivative sovereign

immunity as a defense. The Childs opposed. On December

4, 2023, the United States filed a Statement of Interest,

arguing, inter alia, that Petitioners did not qualify for

federal officer removal due to the Ninth Circuit’s ruling in

Lake v. Ohana Mil. Communities, 14 F.4th 993 (9th Cir.

2021), another military housing case which involved that

defendant’s admitted failure to follow the government-

14

related plan, and which focused on a causal nexus standard

for evaluating entitlement to federal officer jurisdiction.

Further briefing ensued.

On February 1, 2024, the District Court issued an

order on jurisdiction, remanding the case, finding that

Petitioners inter alia, could not avail themselves of

federal officer jurisdiction based largely on the Ninth

Circuit’s decision in Lake, its analogizing Petitioners to

the defendant in that case, and its reliance on a causal

nexus standard. App. 27a-57a.

Petitioners filed a notice of appeal on February 28,

2024. Briefing ensued, with Petitioners arguing that

the Lake case was factually inapposite as it involved

the defendant’s admission that it did not follow the plan

at issue created under Navy supervision, and how the

evidence in this case was far more substantial, showing

the U.S. Navy’s involvement, oversight and direction

with the Property and with the specific issues the Childs

complained of, to enable use of federal officer jurisdiction,

even under the heightened causal nexus standard upon

which the Ninth Circuit relied in Lake. On August 28,

2025, the Ninth Circuit issued its published opinion,

affirming the District Court’s ruling. The opinion relied

heavily on the Lake decision and a causal nexus test, which

conflicted with other panels’ post-201128 U.S.C. §1442(a)

(1) amendment holdings in Leite v. Crane Company,

Goncalves by and through Goncalves v. Rady’s Children’s

Hospital San Diego, and DeFiore v. SOC, LLC, as well

as the more lenient standard for federal officer removal

established by the 2011 amendment to the federal officer

removal statute itself, and the opinions of numerous other

circuit courts. App. la-24a. Petitioners filed a petition

15

for rehearing en banc on September 10, 2025, raising

all of the foregoing points, as well as this Court’s recent

granting of certiorari in Plaquemines Par. v. BP Am.

Prod. Co., 103 Frith 324 (5th Cir. 2024), cert, granted sub

nom. Chevron USA Inc. v. Plaquemines Par., No. 24-813,

2025 WL 1678985 (U.S. June 16, 2025). The petition for

rehearing was denied by the Ninth Circuit on October 8,

2025. App. 25a-26a.

REASONS FOR GRANTING THE PETITION

The Ninth Circuit’s decision below directly conflicts

with the 2011 amendment to the federal officer removal

statute by perpetuating an outdated “causal nexus”

standard which the present-day statutory language does

not support. Moreover, the Ninth Circuit’s decisions

since the amendment are inconsistent; while still using

an improper causal nexus standard, the Court at times

espouses more leniency, and acknowledgment of the

2011 amendment, and at other times, does not, creating

a unclear and amorphous standard it can alter at will,

causing confusion for present day government contractors

who continue to perform the government’s work on an

ongoing basis.

The decision below also further entrenches a split

between the circuits. While most circuits have rejected a

causal nexus or contractual directive standard following

the 2011 amendment, the Ninth Circuit has not. As with

the Plaquemines Parish case currently under review by

this Court, the decision below squarely parts with the

current statutory language and relationship standard.

But distinct from Plaquemines Parish, Petitioners in this

case seek review relating to their ongoing governmental

16

contract work for the U.S. Navy, which spans multiple

jurisdictions. Not only is the Ninth Circuit internally

inconsistent with how it addresses federal officer removal

on any given day, but how Petitioners are treated in

California will vary from how they are treated in Virginia,

for the same work and same claims relating to the same

work, if the situation in the Ninth Circuit is not addressed

directly. Because of the critical nature of federal officer

jurisdiction and government contractors’ entitlement to

have claims against them for such work heard in federal

court, apart from state court biases and lacking federal

claim/defense knowledge, this Court should address

this issue across multiple factual scenarios and multiple

circuits, to ensure that a consistent standard upon which

government contractors can rely in any jurisdiction results

from this Court’s review.

I. The Ninth Circuit’s Decision Conflicts with the

Post 2011 Statutory Standard for Federal Officer

Removal, Other Ninth Circuit decisions and Other

Circuit Decisions.

A. The Ninth Circuit’s Decision Improperly Relies

Heavily on a Strict Causal Nexus Standard that

the Statute No Longer Requires after the 2011

Amendment.

Prior to 2011, 28 U.S.C. section 1442(a)(1) permitted

removal of lawsuits against any officer or person acting

under such officer, solely “for any act under color of [federal]

office.” 28 U.S.C. §1442(a)(l) (pre-2011 statute) (emphasis

added). As such, the jurisprudence of this Court, and other

Courts, which required a “causal connection” or “causal

nexus” between the conduct at issue and the federal

17

authority, made sense. Jefferson County v. Acker, 527 U.S.

at 431; Durham v. Lockheed-Martin Co., 445 F.3d at 1251.

However, following the Removal Clarification Act in 2011,

this standard was notably lessened, to permit lawsuits

“for or relating to acts under color of [federal] office.” 28

U.S.C. §1442(a)(l) (emphasis added), 125 Stat. 545. This

Court has historically interpreted the phrase “relating

to” extremely liberally, to mean simply connecting with

or associated with. See, e.g., Morales v. Trans World

Airlines, 504 U.S. 374, 383-84 (1992); Shaw v. Delta Air

Lines, Inc., 463 U.S. 85,96-97 (1983). Thus, coupling this

2011 expansion of the federal officer removal universe to

a loose association test with the already acknowledged

standard that the federal officer removal statute is to be

“liberally construed,” see, e.g., Watson, 551 U.S. 242, there

was no more room after 2011 for an old, more stringent,

causal nexus standard.

Unfortunately, the Ninth Circuit never eliminated its

causal nexus test after the 2011 amendment. Before the

2011 amendment, the Ninth Circuit utilized a standard

that combined the statute’s “acting under” and “under

color of federal office” prongs: whether “there is a causal

nexus between [the defendant’s] actions, taken pursuant

to a federal officer’s directions, and plaintiff’s claims.”3

Despite the 2011 amendment, the Ninth Circuit did not

change this standard.4 While it would claim at times that

it had lessened this standard or was applying a more

lenient standard, the Ninth Circuit’s continued citation

3. See, e.g., Durham, 445 F.3d at 1251.

4. App. 6a, 15a (Opinion); see also, e.g., Lake, 14 F.4th at 1004;

Fidelitad v. Insitu, 904 F.3d 1095, 1099 (9th Cir. 2018); Leite v.

Crane Co., 749 F.3d 1117,1120 (9th Cir. 2014).

18

to a causal nexus standard in its decisions after the 2011

amendment spawned the result in Lake v. Ohana Military

Communities, which repeatedly cited to such standard in

finding insufficient support for federal officer jurisdiction.

Lake, a case involving another military housing provider,

although one which admittedly failed to follow the plan

it created with the government on the subject at issue

in that case, unlike the situation in this matter, was the

decision upon which the Ninth Circuit panel in this case

most squarely relied to reject federal officer jurisdiction

here, finding it “instructive to our analysis” and discussing

it at length in comparison with this case. App. 17a. But

not only was Lake not like this case, as here, Petitioners

followed their contracts and plans with the U.S. Navy, and

submitted substantial evidence in support of such, but,

Lake used an outdated causal nexus standard, and the

Ninth Circuit, because of this, again used the outdated

causal nexus standard in its opinion here, repeatedly citing

to the same. App. 17a-18a, 20a-21a.

Based upon the 2011 amendment, historical treatment

of the phase “relating to” and the already existing more

“lenient” standard for federal officer jurisdiction, the facts

here clearly support removal. Petitioners are present

day government contractors of the U.S. Navy, operating

Navy military housing under Navy continued direction

and oversight, as well as under plans that were developed

with and ratified by the Navy, including the O&M Plan.

Petitioners are plainly “acting under” a federal officer in

operating the Navy’s housing. Further, the O&M Plan

and other Navy directions on its housing are squarely at

issue in this case, as the Childs directly contend in their

lawsuit that Petitioners should have done more than those

plans and directions say to, with, inter alia, inspections,

19

remediation work and repairs, and their displacement.

Petitioners, in response to the Childs’ allegations, contend

they followed the O&M Plan and the Navy’s directions

and guidance. Even if that, somehow, does not amount

to a “causal nexus,” it clearly amounts to a relationship

between the claims the Childs bring in the case and the

actions which Petitioners undertook operating the Navy’s

military housing under their contracts and plans with the

Navy.5

B. The Ninth Circuit Has in More Recent Years

Often Supported a More Lenient Standard

than a Strict Casual Nexus, Adding to the

Confusion and Causing Inconsistent Rulings

within this Circuit Which this Court Should

Address.

While Petitioners are mindful that this Court has

recently granted certiorari in another federal officer

jurisdiction case, Plaquemines Par. v. BP Am. Prod.

Co., 103 F.4th 324 (5th Cir. 2024), cert, granted sub nom.

Chevron USA Inc. v. Plaquemines Par., No. 24-813,2025

WL1678985 (U.S. June 16,2025), the Ninth Circuit’s own

inconsistent and confusing treatment of federal officer

removal is one which this Court should also directly

address head on. In several instances since the 2011

5. While not directly pertinent to the subject of this Petition,

Petitioners note that the panel further compounded its errors with

applying its improper standard by implying that Petitioners were

also a) mere lessees of government property versus government

contractors running a government program, and b) merely

following the law, versus following Navy contracts, plans and

directions. App. 18a-19a. The evidence Petitioners presented

plainly belied these erroneous conclusions of the panel.

20

amendment, while still retaining an acknowledged causal

nexus standard, the Ninth Circuit has, in many notable

decisions, interpreted that standard more broadly and

generously in its results than it did in both Lake and this

matter, via other panels. Regrettably, this retention of the

“causal nexus” standard and uneven application of it, only

leads to unpredictable treatment and varied results within

the same circuit when it comes to federal officer removal. '

In Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014),

machinists at a Naval shipyard sued government

contractor equipment vendor Crane, alleging it did not

provide sufficient warnings about asbestos in products

they worked with, causing them injury. Crane contended

it provided the information required by the government.

Similarly, here, Respondents, residents of Navy military

housing, sued Navy contractor Petitioners, alleging

they did not adequately investigate or remediate water

intrusion and mold in the housing, causing them injury.

App. 147a-149a. Petitioners contend that they followed the

Navy ratified plans and directions. App. 69a. Both sets of

plaintiffs claimed the contractors “should have done more”

than the requirements and plans told them to. Crane

submitted substantial evidence that it was following the

government’s directions. 749 F.3d at 1120,1123. Similarly,

Petitioners, even per the panel’s acknowledgement,

submitted “numerous pieces of evidence.” App. 16a.

The Ninth Circuit in Leite held that Crane simply had

to support its position with “competent proof”- which it

found it had, despite contradictory evidence submitted

by plaintiffs, and further found that while Crane had

to supply “competent proof,” this did not mean it had to

prove its government contractor defense or win its case

21

for it to be removed to federal court. Despite citation to

a causal nexus standard, Leite focused on the evidence

Crane submitted and its theory of the case, not the theory

of the plaintiffs and their evidence. 749 F.3d at 1123. The

Ninth Circuit held: “As the Supreme Court has held, a

defendant invoking §1442(a) ‘need notwin his case before

he can have it removed.’” Id. at 1124 (quoting Willingham,

395 U.S. at 407. The Ninth Circuit went on:

In assessing whether a causal nexus exists,

we credit the defendant’s theory of the case.

Id. at 432,6 119 S.Ct. 2069; Isaacson, 517 F.3d

at 137.7 Such a nexus exists here because the

very act that forms the basis of plaintiffs’

claims—Crane’s failure to warn about asbestos

hazards—is an act that Crane contends it

performed under the direction of the Navy.

Crane may not be right—indeed, it may be

that the Navy had nothing to do with Crane’s

failure to warn. But the question “whether the

challenged act was outside the scope of [Crane’s]

official duties, or whether it was specifically

directed by the federal Government, is one

for the federal—not state—courts to answer.”

Isaacson, 517 F.3d at 138; see also Willingham,

395 U.S. at 407, 89 S.Ct. 1813.

Leite, 749 F.3d at 1124.

Further, in Leite, the Ninth Circuit rejected plaintiffs’

contention that Crane “could have” provided more

6. Jefferson County v. Acker, 527 U.S. 423 (1999).

7. Isaacson v. Dow Chemical Co., 517 F.3d 129 (2d Cir. 2008).

22

warnings, finding that was not the issue and that the

government did not need to affirmatively forbid additional

warnings or dictate precise warnings. Rather, that they

did proscribe certain warnings, which Crane contended

it followed and used, was the issue. 749 F.3d at 1123-24.

Here, however, focusing tightly on its “causal nexus”

standard, the Ninth Circuit did not credit Petitioners’

theory of the case, nor their position as to what their

evidence supported: that the Navy, in the Ground Lease,

directed the creation of the O&M Plan for Petitioners to

follow in addressing water intrusion and mold at Navy

military housing, that the O&M Plan was prepared in

concert with the Navy and ratified by the Navy as the plan

to be used, and that Petitioners followed the O&M Plan

in responding to the water intrusion and mold issues at

the Childs home—which response the Childs specifically

claim in the lawsuit was insufficient and caused their

harm. Petitioners supported this position with the Ground

Lease, the O&M Plan, and the declaration of Mr. Rizzo

who directly testified about how Petitioners developed the

O&M Plan with the Navy, had to follow the O&M Plan

and the Navy’s directions to them, and how they were

subject to constant Navy oversight, including specifically

with following the O&M Plan, none of which evidence was

objected to. App. 62a-71a. Under Leite, this should have

satisfied the Court’s then-evaluation and more lenientlyapplied standard, but because of their adherence in this

case to a stricter “causal nexus” standard, the Ninth

Circuit panel here made the decision that Petitioners

were “wrong” and definitively decided that there was a

not a causal connection between Petitioners’ actions and

directions by the Navy. App. 21a. The panel’s further

discussion about how “nothing... constrained” Petitioners

from doing more to respond to the issues in the Childs

home above and beyond the O&M Plan (App. 19a), further

runs in direct opposition to Leite’s holding on the exact

same subject.

In Goncalves by and through Goncalves vs. Rady’s

Children’s Hospital San Diego, 865 F.3d 1237 (9th Cir.

2017), persons sued a long-time government contractor

health insurance subrogator over how certain insurance

claims were handled. The subrogator contended it was

operating under the directions of a federal office in

administering the subrogation, per a government program

and associated contracts and plan. Similarly, here, the

Respondents sued Petitioners, long-time government

contractors operating the Navy’s military housing based

on the MHPI, under contracts, plans and directions.

The Ninth Circuit’s opinion in Goncalves was

overwhelmingly deferential in favoring removal, accepting

the government contractor’s theory of the case, and

interpreting section 1442 broadly, in line with the prior

opinions of the Supreme Court:

The right of removal is “absolute for conduct

performed under color of federal office,” and

the “policy favoring removal ‘should not be

frustrated by a narrow, grudging interpretation

of §1442(a)(l).’” Arizona v. Manypenny, 451

U.S. 232, 242 (1981) (quoting Willingham v.

Morgan, 395 U.S. 402, 407 (1969)).

Throughout our analysis we pay heed to our

duty to interpret Section 1442 broadly in favor

of removal.” Durham v. Lockheed Martin

24

Corp., 445 F.3d 1247, 1251 (9th Cir. 2006)

(quoting Jefferson Cty. v. Acker, 527 U.S. 423,

431,119 S.Ct. 2069,144 L.Ed.2d 408 (1999)).

“ . . . the ‘hurdle erected by [the causalconnection] requirement is quite low.’” Isaacson

v. Dow Chem. Co. 517 F.3d 129,137 (2d Cir. 2008);

see also Maryland v. Soper, 270 U.S. 9, 33, 46

S.Ct. 185, 70 L.Ed. 449 (1926) (“[T]he statute

does not require that the prosecution must be

for the very acts which the officer admits to have

been done by him under federal authority. It is

enough that his acts or his presence at the place

in performance of his official duty constitute

the basis, though mistaken or false, of the state

prosecution.”). The [subrogator] need show only

that the challenged acts “occurred because of

what they were asked to do by the Government.”

Isaacson, 517 F.3d at 137. Here, 0PM asked

the [subrgator] to administer the plan and to

make “reasonable efforts” to pursue known

subrogation claims. This meets the low bar

that the causal-connection prong requires. The

“very act” that forms the basis for challenging

the lien—seeking subrogation—“is an act that

[the subrogator] contends [they] performed

under the direction of [federal officers].” Leite,

749 F.3d at 1124.

Goncalves, 865 F.3d at 1244-45.

As in Leite, the Court in Goncalves acceded to the

government contractor’s theory of the case, and applied

a more lenient standard than a strict causal nexus,

25

finding that such hurdle was, in fact, “low” in practice.

In Goncalves, the contractor’s theory that they were

conducting their subrogation per a federal program, under

contracts and plans with the government, and conducting

an activity that the government would otherwise do itself

was sufficient. This is exactly the same situation presented

here, where Petitioners operate the Navy’s military

housing under contracts and per plans and directives

developed with and by the Navy, a task which otherwise

the Navy would have to do itself, as it did prior to the

MHPI. It should have been “enough,” per Goncalves, that

Petitioners’ conducting military housing water intrusion

and mold investigation and remediation, the basis of the

Respondents Childs’ claims, was part of their “official

duty” to the government in operating Navy military

housing. 865 F.3d at 1244-45. Yet, due to confusion over

just what the Ninth Circuit’s causal nexus standard is or

should be in theory or practice, it was not.

Notably, Goncalves is also instructive on its specific

commentary on the 2011 amendments, making clear that

the “words ‘acting under’ are broad” and that this criteria

is met if the entity is involved in an “effort to assist, or to

help carry out, the duties or tasks of the federal superior,”

(865 F.3d at 1245) which Petitioners are plainly doing by

operating the Navy’s military housing with its oversight,

guidance and direction, generally and specific to the O&M

Plan. App. 62a-73a. Goncalves even specifically notes that

the 2011 amendments were to broaden the statute to allow

removal for or related to acts under color of federal office,

because courts were construing the statute too narrowly,

Id. at 1250, as ironically, the Ninth Circuit did yet again

here.

26

Very recently, even after Lake, in DeFiore v. SOC,

LLC, 85 F.4th 546 (9th Cir. 2023), the Ninth Circuit again

was more deferential in its application of its standards

for federal officer removal. Employees of a government

contractor providing war zone security claimed they

were hired under false pretenses and exposed to hazards

in their work; the contractor claimed, and supported

with evidence, that they were following the military’s

directives. Analogously here, Petitioners’ tenants alleged

they were exposed to mold in their housing, where

Petitioners claim, and submit evidence supporting, they

were following the contracts, plans and directives of the

Navy in their response to the conditions.

The Ninth Circuit in DeFiore found that the

contractor had a “limited burden” under the federal officer

removal statute (85 F.4th at 551) and that courts “afford

a ‘generous’ and ‘liberal’ construction, interpreting the

statute ‘broadly in favor of removal.’” Id. at 553, quoting

Durham, supra, 445 F.3d at 1252-53. The Court further

found that that the Supreme Court has “ ... accordingly

rejected the notion that removal through §1442 is ‘narrow’

or ‘limited.’” Id., quoting Willingham, supra, at 402.

The Ninth Circuit in DeFiore specifically stated that

the statute was intended to protect the government’s

agents, and that:

To satisfy the causal-connection requirement,

the contractors “need show only that the

challenged acts ‘occurred because of what

they were asked to do by the Government.’”

Goncalves, 865 F.3d at 1245 (emphasis in

27

original) (quoting Isaacson v. Dow Chem. Co.,

517 F.3d 129,137 (2d Cir. 2008).

DeFiore, 85 F.4th at 557.

The Ninth Circuit reiterated the more relaxed

application of the causal nexus standard from both Leite

and Goncalves that “in assessing whether a causal nexus

exists, we credit the defendant’s theory of the case” (citing

Leite, 749 F.3d at 1124) and that “the hurdle erected by

[the causal connection] requirement is quite low.” Id. at

557, quoting Goncalves, 865 F.3d at 1244. Further, the

Court held:

“The contractors therefore only need show

that the actions they took which gave rise to

the guards’ claims resulted from their work for

DOD.” See Jefferson County, 527 U.S. at 433,

119 S.Ct. 2069 (stating that “[t]he circumstances

that gave rise to the” claim against the federal

officer, “not just” the specific challenged acts of

that federal officer, are enough to establish the

“essential nexus” between the activity under

“color of office” and a claim against the officer);

Willingham, 395 U.S. at 409,89 S.Ct. 1813 (“[I]t

[is] sufficient for [removing defendants] to have

shown that their relationship to [the plaintiff]

derived solely from their official duties.”);

Isaacson, 517 F.3d at 137-38 (“To show

causation, Defendants must only establish that

the act that is the subject of Plaintiffs’ attack

(here, the production of the byproduct dioxin)

28

occurred while Defendants were performing

their official duties.”) (emphasis in original).”

DeFiore, 85 F.4th at 557.

As the Childs’ claims here plainly result from

Petitioners’ work for the Navy relating to their military

housing, as well as directly from their following the

O&M Plan and other Navy documents, this should have

been sufficient under Leite, Goncalves and DeFiore. Yet

because of the Ninth Circuit’s continued citation to its old

“causal nexus” requirement in its decisions, despite the

2011 amendment, an inconsistent and improper application

of this standard to cases, like this one, has resulted.

C. The Decision is a Hallmark of the Ongoing

Split between Circuits on this Issue.

Although the Ninth Circuit has inappropriately

retained a causal nexus standard since 2011 and then

further applied it un-evenhandedly, it is in the minority

to use such a standard at all. The First, Third, Fourth,

Seventh, Tenth, and D.C. Circuits have all eliminated any

“causal nexus” or federal direction requirement following

the 2011 amendment. See Dist. of Columbia v. Exxon

Mobil Corp., 89 F.4th 144,155-56 (D.C. Cir. 2023); Bd. of

Cnty Comm’rs v. Suncor Energy (U.S.A.) Inc., 25 F.4th

1238,1251 (10th Cir. 2022); Moore v. Elec. Boat Corp., 25

F.4th 30,35 (1st Cir. 2022); Baker v. Atl. Richfield Co., 962

F.3d 937, 944 (7th Cir. 2020); Sawyer v. Foster Wheeler

LLC, 860 F.3d at 258; Commonwealth’s Motion, 790 F.3d

at 471.

29

As illustrations, in Commonwealth’s Motion, the

Third Circuit was the first circuit to find, following the

2011 amendment, that the amendment made it “sufficient

for there to be a ‘connection’ or ‘association’ between

the act in question and the federal office,” as opposed

to requiring that the act explicitly occurred because of

what they were asked to do by the Government. 790 F.3d

at 471. In Sawyer, the Fourth Circuit found that “there

need be only ‘a connection or association between the

act in question and the federal office.’” Sawyer, 860 F.3d

at 258 (emphasis in original), quoting Papp v. ForeKast Sales Co., 842 F.3d 805, 813 (3d Cir. 2016), quoting

Commonwealth’s Motion, 790 F.3d at 471. Most recently,

the D.C. Circuit found that section 1442(a) “does not

require a causal connection between the acts taken under

color of federal office and the basis for the [lawsuit].” Dist.

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

Relatedly, the Eleventh Circuit, while retaining

“causal connection” language, has acknowledged that the

2011 amendment’s addition of “[t]he phrase ‘relating to’

is broad and requires only ‘a ‘connection’ or ‘association’

between the act in question and the federal office.’” Caver

v. Cent. Alabama Elec. Coop., 845 F.3d 1135, 1144 (11th

Cir. 2017), quoting Commonwealth’s Motion, 790 F.3d

at 471. The Sixth Circuit, while not having a published

opinion directly on point, has recognized that the 2011

amendment expanded the scope of federal officer removal.

Ohio St. Chiropractic Ass’n v. Humana Health Plan Inc.,

647 Fed. Appx. 619, 624-25 (6th Cir. 2016).

Unfortunately, the Eighth Circuit, like the Ninth,

continues to typically require a causal nexus test, although

it also at times espouses a more lenient standard. See

30

Minnesota ex rel. Ellison v. Am Petroleum Instit., 63 F4th

703, 715 (8th Cir. 2023). And, as this Court is aware, the

Fifth Circuit has recently re-accepted a form of the causal

nexus or contractual directive test, despite its rejection

of such criterion in Latiolais v. Huntington Ingalls, Inc.,

951 F.3d 286, 292 (5th Cir. 2020). See Plaquemines Par.,

supra, 103 F.4th 324 (5th Cir. 2024).

This Court is poised to rule on Plaquemines Parish.

That case, however, involves a very specific and nuanced

situation of historic World War II government oil activities

and whether that sufficiently relates to present day claims

and activities. The Ninth Circuit’s situation, and the

modern-day situation presented by this case, is far more

deeply cutting and worse. A present day government

contractor, performing the government’s work under

contracts and plans with the government, does not

know which Ninth Circuit it will get on any given day

with respect to federal officer jurisdiction. Will it get a

panel which applies a strict causal nexus test, and all but

requires that the contractor’s defense of the claims against

it be proven before being allowed the venue of federal

court, despite the 2011 amendment? Or, will it get a panel

which claims it does not use a strict causal nexus test,

despite its continued use of that phraseology, and applies

a more lenient, yet still amorphous, standard? The ongoing

inconsistency across the Ninth Circuit’s decisions requires

direct addressing, as does its outlier position among the

circuits of not expanding federal officer jurisdiction openly

and uniformly following the 2011 amendment.

31

II. This Issue Requires Resolution in Multiple Factual

Scenarios, and in Multiple Circuits, Given the

Critical Nature of this Issue for Government

Contracts and Contractors’ Ongoing Work for the

Federal Government.

Federal officer removal has long been recognized as

an important vehicle for federal government contractors to

have claims against them pertaining to their work for the

federal government, heard in federal court and not state

court. After the Civil War, Congress expanded the original

statutory language to guarantee government contractors

these same protections as federal officers, and again

expanded the subject matters covered by this provision

after World War II. Watson, 551 U.S. 148, 151-52. Even

prior to the 2011 amendment, removal under 28 U.S.C.

§1442(a)(l) was recognized to have a lower bar standard

than removal under any other provision, such that the right

of removal is “absolute for conduct performed under color

of federal office,” and the “policy favoring removal ‘should

not be frustrated by a narrow, grudging interpretation

of §1442(a)(l).”’ Arizona v. Manypenny, 451 U.S. at 242

(quoting Willingham, 395 U.S. at 407). This sentiment

is even truer today, after the 2011 amendment; yet, the

split between circuits continues, and the Ninth Circuit’s

continually shifting position and nebulous standard, which

it appears it can modify at whim, is both dangerous and

perplexing.

The Ninth Circuit’s decision in this case stands as a

bar to federal government contractors who operate under

contracts and plans with the federal government, and have

federal defenses, to be able to have cases brought against

them relating to their governmental work heard in federal

32

court. Claims made against government contractors

which relate to, or are connected with or associated

with, their ongoing work for the federal government are

properly in federal court under the 2011 amendment to

28 U.S.C. §1442(a)(1). That is the plain language of the

amendment. Any other interpretation, including use of a

causal nexus standard, even one which at times might be

more lenient than others, cannot stand against the change

in the statutory text. The Ninth Circuit must have a firm

standard put upon it by this Court which lines up with

the language of the statute, not a mutable, unstructured

standard that the Ninth Circuit can choose depending on

the day.

This issue is of the utmost importance for present

day government contractors, like Petitioners, performing

ongoing work for the federal government under contracts,

plans, directions and supervision from the government,

in the Ninth Circuit as well as other jurisdictions.

These contractors need to know, and deserve to know,

with certainty the standards by which they can avail

themselves of federal officer removal for claims brought

against them relating to their government work in any

state. The standard should not vary based on their work

in Maryland or Virginia versus California, and yet that

is exactly the situation that government contractors like

Petitioners face, who perform work for the U.S. Navy

nationwide, and who may face claims relating to their

government work in different jurisdictions. The standard

should also not be subject to variation within California or

the Ninth Circuit itself, depending on the panel.

Petitioners perform ongoing governmental work

operating and managing Navy military housing, doing

33

what the Navy would otherwise be doing itself. They

operate under contracts and plans with, by and ratified

by the Navy, and under ongoing Navy directions and

supervision. The Childs bring claims against them relating

to this work, claiming Petitioners did not do enough or did

something wrong in performing this work; Petitioners

claim they performed as required under their contracts

and plans (and hence further invoke a colorable derivative

sovereign immunity defense). This is a far cleaner scenario

that the historic World War II work situation presented

by Plaquemines Parish, but the outcome is the same:

The claims against the government contractor Petitioners

“relate to” their work for the federal government. The

claims, and Petitioners’ defenses, accordingly should be

heard in federal court.

The decision at issue fails to follow the 2011 amendment

revised language of 28 U.S.C. §1442(a)(l), perpetuates

the inconsistent decision-making of the Ninth Circuit

on federal officer jurisdiction, runs contrary to a more

lenient standard from three notable recent decisions from

the Ninth Circuit, and runs contrary to numerous other

circuit decisions as well as Supreme Court precedent on

the broad and lenient interpretation of the federal officer

removal statute. Entitlement to federal officer jurisdiction

is an issue of extremely high importance, especially for

present day government contractors performing ongoing

work for the government’s behest under government

issued and ratified contracts and plans, across multiple

states and jurisdictions. It was designed to protect

government contractors from state court biases and

allow claims against such contractors relating to their

government work to be heard in federal court by federal

judges understanding of and knowledgeable about federal

34

concerns. The Ninth Circuit’s erroneous standard and

further bipolar treatment of the issue over time is an even

more dire situation than the Fifth Circuit’s recent aboutface. This Court should grant certiorari and reverse.

CONCLUSION

This Court should grant certiorari.

Respectfully submitted,

Kristin N. Reyna Dehart

Counsel of Record

Buchalter LLP

655 West Broadway,

Suite 1600

San Diego, CA 92101

(619) 219-5335

kreyna@buchalter.com

Counsel for Petitioners