Opposition Brief — San Diego Family Housing, LLC, a California Limited Liability Corporation, et al., Petitioners v. Lena Childs, et al.

No. 25-1027

IN THE

Supreme Court of the United 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

RESPONDENTS’ BRIEF IN OPPOSITION

CHRISTIAN B. CLARK

LAUREN E. BATEMAN

LENDEN WEBB

Counsel of Record

WEBB LAW GROUP, APC

WILLIAM H. GOMBERG

10509 Vista Sorrento Pkwy. PUBLIC CITIZEN

San Diego, CA 92121

LITIGATION GROUP

(619) 399-7700

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

lbateman@citizen.org

Attorneys for Respondents

May 2026

i

QUESTIONS PRESENTED

1) Whether the Court should grant review to

consider whether the federal officer removal statute

requires a defendant seeking removal to show a

causal nexus between plaintiffs’ claims and the

defendants’ federal duties, when the Court answered

that precise question last month in Chevron USA

Inc. v. Plaquemines Parish.

2) Whether the Court should grant review to

apply Plaquemines Parish to the facts presented by

this case, when the United States Court of Appeals

for the Ninth Circuit has already directed the parties

in this case to submit supplemental briefing to do

exactly that.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ........................................ i

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

INTRODUCTION ....................................................... 1

STATEMENT .............................................................. 2

Factual Background .............................................. 2

Procedural History ................................................ 3

REASONS FOR DENYING THE WRIT .................... 7

I.

This Court recently resolved the first

question presented by the petition. ..................... 7

II. The court of appeals is currently considering,

in this case, the second question presented by

the petition. .......................................................... 7

III. The causal nexus test did not affect the

outcome of this case because Petitioners were

not “acting under” a federal officer. .................... 9

CONCLUSION.......................................................... 14

iii

TABLE OF AUTHORITIES

Cases

Page(s)

Chevron USA Inc. v. Plaquemines Parish,

146 S. Ct. 1052 (2026) ............................ 1, 7, 8, 9, 10

County of San Mateo v. Chevron Corp.,

32 F.4th 733 (9th Cir. 2022) ...................... 4, 5, 6, 10

Goncalves By and Through Goncalves v. Rady

Children’s Hospital San Diego,

865 F.3d 1237 (9th Cir. 2017) .......................... 10, 11

Lake v. Ohana Military Communities, LLC,

14 F.4th 993 (9th Cir. 2021) ............................ 11, 12

Lawrence ex rel. Lawrence v. Chater,

516 U.S. 163 (1996) .............................................. 8, 9

Mesa v. California,

489 U.S. 121 (1989) ................................................ 10

Stirling v. Minasian,

955 F.3d 795 (9th Cir. 2020) ............................ 11, 12

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ........................................ 6, 9, 13

iv

Statutes

28 U.S.C. § 1442(a)(1) ......................................... 4, 7, 9

Rules

Sup. Ct. Rule 10 .......................................................... 8

Other Authorities

Brief for the United States as Amicus Curiae,

Childs v. San Diego Family Housing,

No. 24-1256 (9th Cir. Oct. 30, 2024) ................. 5, 14

Order, Childs v. San Diego Family Housing,

No. 24-1256 (9th Cir. Sep. 10, 2025) ..................... 13

Order, Childs v. San Diego Family Housing,

No. 24-1256 (9th Cir. Oct. 16, 2025) ....................... 8

Order, Childs v. San Diego Family Housing,

No. 24-1256 (9th Cir. May 4, 2026) ......................... 8

INTRODUCTION

This case, originally filed in state court, is a

landlord-tenant dispute over residential mold

abatement. Petitioners removed the case to federal

court under the federal officer removal statute. The

district court granted a motion to remand, holding

that the federal officer removal statute did not apply,

and the Ninth Circuit affirmed. Petitioners sought

certiorari, presenting two questions.

First, Petitioners ask this Court to address

whether a removing defendant must show a causal

nexus between its federal duties and the conduct

challenged by the lawsuit. This Court subsequently

issued its opinion in Chevron USA Inc. v.

Plaquemines Parish, 146 S. Ct. 1052 (2026), holding

that a “removing defendant need not show that his

federal duties specifically required or strictly caused

the challenged conduct.” Plaquemines Parish

completely resolves the first question presented by

the petition.

Second, Petitioners in essence ask this Court to

apply the rule in Plaquemines Parish to the specific

facts of this case. In the meantime, however, the

Ninth Circuit, which retained jurisdiction over this

matter when it stayed the issuance of its mandate,

has issued an order directing the parties to file

supplemental briefs addressing the effect of

Plaquemines

Parish

and

other

intervening

authorities on the issues presented by the case. This

Court, then, should deny certiorari and permit the

Ninth Circuit to address that fact-bound question in

the first instance.

In any event, the causal nexus question decided in

Plaquemines Parish is irrelevant to the outcome of

2

this case. The courts below determined that

Petitioners had not carried their burden of

establishing that they acted under a federal officer—

separate and apart from any question of causality.

STATEMENT

Factual Background

Petitioner San Diego Family Housing (SDFH)

operates and manages a housing community located

within the boundaries of a naval base in Coronado,

California. Pet. App. 28a. Formed under the Military

Housing Privatization Initiative, SDFH is a publicprivate venture between the United States Navy and

Lincoln/Clark

San

Diego,

LLC,

in

which

Lincoln/Clark

San

Diego

retains

“exclusive

management and control of the business of” SDFH

and “full authority to take all actions necessary or

appropriate to pursue the business and carry out the

purpose of the Company.” Pet. App. 18a, 28a. SDFH,

in turn, contracted with Petitioner Lincoln Military

Property Management (LMPM) to provide property

management services to the community. Id. at 3a.

In 2016, Respondents Lena and Donald Childs

leased a home from SDFH. Id. Soon after Mr. and

Mrs. Childs and their children moved in, the home

had repeated water leaks, leading to severe mold

contamination. Id. The contamination caused serious

health issues for each member of the family,

including chronic headaches, fatigue, nausea, and

shortness of breath. Id. at 3a, 123a–24a.

The Childs family reported the issues to

Petitioners. Id. at 3a. LMPM sent a mold

remediation company to inspect the property. Id. The

company documented visible mold in multiple areas,

3

and the family vacated the home while the company

purported to remediate. Id. at 3a–4a. Five days later,

the family was told they could return to their home.

Id. at 125a. When the family requested proof that

abnormal levels of mold were no longer present,

however, LMPM refused to provide it. Id. at 4a.

The family hired an independent mold test

provider to verify that the home was habitable. Id. It

was not. Id. The independent provider’s tests

revealed heightened levels of hazardous molds

throughout the house. Id. at 4a, 126a. Although the

family conveyed the results of this testing to

Petitioners, Petitioners dismissed the family’s

concerns and insisted that the home was habitable.

Id. On the advice of their doctors, the Childs family

did not move back into the house. Id. at 4a, 127a.

Petitioners took no further steps to remediate the

property. Id. at 4a. Although the home remained

unsafe, Petitioners also immediately stopped paying

the family’s relocation costs. Id.

Procedural History

In 2019, Plaintiffs sued SDFH and LMPM 1 in San

Diego County Superior Court, asserting negligence

and other state-law claims. Id. Petitioners removed

the action to federal court, alleging federal enclave,

federal agency, and federal officer jurisdiction. Id.

After further proceedings not relevant here,

Petitioners moved for summary judgment, arguing

that they were entitled to derivative sovereign

immunity and that federal enclave jurisdiction

––––––––––––––––––––––––

1 Plaintiffs also sued the mold remediation company hired

by LMPM. That defendant settled. Id. at 4a, 5a n.1.

4

precluded most of the family’s state-law claims. Id. at

5a. The Childs family opposed the motion. And the

United States filed a statement of interest opposing

the motion, arguing that (1) Petitioners were not

entitled to derivative sovereign immunity, (2) federal

enclave jurisdiction did not apply, and, relevant here,

(3) the case should be remanded to state court

because the district court lacked federal officer or

agency jurisdiction. Id. The district court, agreeing

with the Childs family and the United States, held

that it lacked subject matter jurisdiction and

remanded the case to state court. Id. at 27a–57a.

As to jurisdiction under the federal officer

removal statute, 28 U.S.C. § 1442(a)(1), the district

court began by describing the elements of the Ninth

Circuit’s then-governing two-part “causal nexus” test,

under which a removing party must demonstrate “(1)

that the person was ‘acting under’ a federal officer in

performing some ‘act under color of federal office,’

and (2) that such action is causally connected with

the plaintiff’s claims against it.” Pet. App. 46a

(quoting County of San Mateo v. Chevron Corp., 32

F.4th 733, 755 (9th Cir. 2022)). The court concluded

that Petitioners did not “satisf[y] their burden” to

show that they were “acting under officers of the

Navy” with respect to the family’s complaint. Id. at

45a–46a. The record included no communications

with a federal officer about the mold issues, and the

operating agreement between the Navy and

Lincoln/Clark San Diego, LLC, “disclaim[ed] Navy

responsibility over management and control

decisions.” Id. at 46a, 48a. The fact that “the Navy

reviewed and approved” the facility’s mold

management plan, the court explained, was

“insufficient to show SDFH and LMPM’s actions

5

were controlled by the Navy.” Id. at 48a–49a (quoting

County of San Mateo, 32 F.4th at 757 (“[A] person’s

compliance with the law (or acquiescence to an order)

does not amount to ‘acting under’ a federal official

who is giving an order or enforcing the law.” (internal

quotation marks omitted)). Any general directives

issued by the Navy were likewise “insufficient to

show [Petitioners] were ‘acting under’ the Navy in

this case,” since, “[i]n order for a private person to be

‘acting under’ a federal officer, the relationship must

go beyond simply complying with the law, even if the

laws are highly detailed.” Id. at 51a (internal

quotation marks and citation omitted). In sum,

because Petitioners failed to show that they were

“acting under” the Navy, the district court remanded

to state court. Id. at 57a.

Petitioners appealed to the Ninth Circuit. The

United States filed an amicus brief in support of the

Childs family, arguing that Petitioners’ argument

that they were “acting under” a federal officer was

“erroneous.” Brief for the United States as Amicus

Curiae at 22, Childs v. San Diego Family Hous.,

LLC, No. 24-1256 (9th Cir. Oct. 30, 2024), Dkt. No.

30.1.

The court of appeals affirmed. On the issue of

federal officer removal, the court reiterated the wellestablished principle that a private defendant must

show that they were acting under a federal officer in

performing some act under color of federal office. Pet.

App. 16a. As the court of appeals explained,

Petitioners failed to meet that “acting under” test

here.

First, the court of appeals emphasized that the

operating agreement with the Navy afforded

6

Lincoln/Clark “exclusive management and control of

the business of [SDFH] as well as full authority to

take all actions necessary or appropriate to pursue

the business and carry out the purpose of the

Company.” Id. at 17a–18a (internal quotation marks

omitted).

Second, the court noted that, when the United

States leased the housing development to SDFH, the

lease agreements “explicitly assigned responsibilities, costs, and liability over mold management

during the applicable term to SDFH.” Id. at 18.

Moreover, the court explained that “the federal

government’s willingness to lease federal property …

to a private entity for that entity’s commercial

purposes does not, without more, constitute the kind

of assistance required to establish that the private

entity is ‘acting under’ a federal officer.” Id. (quoting

County of San Mateo, 32 F.4th at 760).

Third, the court rejected Petitioners’ reliance on

the Navy’s promulgation of documents containing

“pertinent facts about the hazards of mold, the

efficacy of testing, and general recommendations by

expert bodies,” as well as “general guidelines for

minimum housing standards.” Id. at 19a. Relying on

this Court’s holding in Watson v. Philip Morris Cos.,

the court explained that “[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. at 19a–20a (quoting Watson,

551 U.S. 142, 153 (2007)).

In sum, the court found that, “[g]iven the dearth

of evidence suggesting federal involvement in or

control over Defendants’ mold management

7

practices,” Petitioners did not meet their burden to

prove they were entitled to federal officer removal.

Id. at 20a, 24a. Petitioners sought rehearing en banc,

which the court denied with no judge requesting a

vote. App. 26a.

REASONS FOR DENYING THE WRIT

I. This Court recently resolved the

question presented by the petition.

first

Petitioners first seek review of the question

whether a removing defendant, seeking to establish

that the suit “relat[es] to” an act under color of

federal office under 28 U.S.C. § 1442(a)(1), must

demonstrate “a causal nexus” between their actions

and a plaintiff’s claims. Pet., at i. While the petition

has been pending, however, this Court resolved that

precise question: In Chevron USA Inc. v.

Plaquemines Parish, the Court held that “a removing

defendant need not show that his federal duties

specifically required or strictly caused the challenged

conduct.” 146 S. Ct. 1052, 1060 (2026); see also Pet.

33 (acknowledging that the “outcome” of the legal

question

when

claims

against

“government

contractor Petitioners ‘relate to’ their work for the

federal government” is “the same” as in Plaquemines

Parish).

In light of the recent decision in Plaquemines

Parish, no legal question remains for this Court to

resolve in this case.

II. The

court

of

appeals

is

currently

considering, in this case, the second

question presented by the petition.

Petitioners also ask this Court to grant certiorari

to address the case-specific question whether they

8

properly removed this matter to federal court. See

Pet., at ii. That fact-bound question does not present

an important issue that warrants this Court’s

review. See Sup. Ct. R. 10. Moreover, renewed

proceedings in the court of appeals render review

wholly unnecessary.

Specifically, granting Petitioners’ motion, the

Ninth Circuit stayed the issuance of its mandate

pending this Court’s “final disposition of the matter.”

Order, Childs v. San Diego Family Hous., No. 241256 (9th Cir. Oct. 16, 2025), Dkt. No. 59. The court

thus retained jurisdiction, and, shortly after this

Court issued its opinion in Plaquemines Parish, it

exercised that jurisdiction to sua sponte order the

parties to file supplemental briefs “addressing the

effect of Chevron USA Inc. v. Plaquemines Parish,

608 U.S. ___ (2026) and other intervening authorities

on the issues presented in this case.” Order, Childs v.

San Diego Family Hous., No. 24-1256 (9th Cir. May

4, 2026), Dkt. No. 64.1.

As a consequence of the court of appeals’ recent

order, even granting the petition for the purpose of

vacating the decision below and remanding is

unnecessary. That procedural mechanism is

“potentially

appropriate”

where

“recent

developments” that the Court has “reason to believe

the court below did not fully consider, reveal a

reasonable probability that the decision below rests

upon a premise that the lower court would reject if

given the opportunity for further consideration, and

where it appears that such a redetermination may

determine the ultimate outcome of the litigation.”

Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163,

167 (1996) (per curiam). Here, though, the Ninth

Circuit is already in the midst of considering whether

9

its previous opinion rests upon a premise affected by

intervening precedent of this Court.

III. The causal nexus test did not affect the

outcome of this case because Petitioners

were not “acting under” a federal officer.

Even if this Court had not already decided

Plaquemines Parish, and even if the Ninth Circuit

had not already directed the parties to address the

effect of Plaquemines Parish on the issues in this

case, certiorari would be unwarranted because the

existence or absence of a causal relationship between

the conduct at issue and the asserted federal duties

did not “determine the ultimate outcome” that

Petitioners had not carried their burden of

demonstrating federal officer jurisdiction. See

Chater, 516 U.S. at 167. Instead, both the district

court and the court of appeals concluded that

Petitioners failed to establish a different statutory

prerequisite of federal officer jurisdiction: that they

either are federal officers or were “acting under”

federal officers. See Chevron USA Inc. v.

Plaquemines Par., 146 S. Ct. 1052, 1057 (2026); 28

U.S.C. § 1442(a)(1).

Under the federal officer removal statute, a

defendant seeking to remove a case to federal court

must satisfy each of three requirements: “First, the

removing defendant must be the United States, a

federal agency, a federal officer, or a person ‘acting

under’ a federal officer, such as certain private

parties hired to assist federal officers.” Plaquemines

Parish, 146 S. Ct. at 1057 (citing Watson, 551 U.S. at

148–53). “Second, the suit must be ‘for or relating to

any act under color of such office.’” Id. (quoting 28

U.S.C. § 1442(a)(1)). “Third, the removing defendant

10

must assert ‘a colorable federal defense.’” Id. at

1057–58 (quoting Mesa v. California, 489 U.S. 121,

129 (1989)).

Focusing on the second of these requirements,

Petitioners argue that the 2011 amendment to the

federal officer removal statute expanded the realm of

cases subject to federal officer removal from suits “for

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

relating to” such acts, rendering obsolete the Ninth

Circuit’s requirement that a removing defendant

demonstrate a causal connection between the

conduct at issue and the asserted federal duties. Pet.,

at i–ii, 1–3, 16–28. And, of course, the Court recently

held as much in Plaquemines Parish, 146 S. Ct. at

1060.

The court below, however, did not rely on the

absence of a causal connection between the conduct

at issue and the asserted federal duties in concluding

that the district court lacked federal officer

jurisdiction. Instead, the court analyzed the “acting

under” and “relating to” elements together, referring

to the overall inquiry as a “causal nexus”

requirement. Pet. App. 16a (quoting County of San

Mateo, 32 F.4th at 755); see id. at 46a; Goncalves By

& Through Goncalves v. Rady Children’s Hosp. San

Diego, 865 F.3d 1237, 1244–45 (9th Cir. 2017)

(describing the “causal nexus” requirement as

comprised of two prongs: the “acting under” prong

and the “causal-connection” prong). And the court’s

discussion of the evidence set forth by Petitioners

makes clear that—apart from any question of

causality—it did not find the “acting under” element

satisfied.

11

To start, the Ninth Circuit’s decision cited cases

analyzing the “acting under” element. Pet. App. 16a–

17a (citing Goncalves, 865 F.3d at 1245 (noting that

the “only real question” presented by the case under

the “causal nexus” prong was “whether …

[defendant] ‘acted under’ a federal officer”); Stirling

v. Minasian, 955 F.3d 795, 800 (9th Cir. 2020)

(addressing whether Defendant was “acting under” a

federal officer)). And it did so immediately before

concluding that the evidence presented by

Petitioners “demonstrate[d], at most, only general

federal

oversight

over

Defendants’

housing

management efforts and compliance with applicable

laws and regulations.” Id. at 17a.

The court went on to observe that Lake v. Ohana

Military Communities, LLC, 14 F.4th 993 (9th Cir.

2021), was “instructive” to its analysis. Id. In Lake,

like in this case, the removing defendant was “a

military housing public-private venture.” Id. As in

Goncalves and Stirling, the opinion in Lake used the

phrase “causal nexus analysis” to describe the court’s

combined consideration of the “relating to” and

“acting under” elements. 14 F.4th at 1004. But Lake

ultimately concluded that removal was not supported

based on the “acting under” element: “The Navy’s

consent power over aspects of the housing

arrangement does not change the result. Requiring

federal agency consent on collateral points fall[s]

within the simple compliance with the law

circumstance that does not meet the acting under

standard.” Lake, 14 F.4th at 1005 (internal citation

omitted).

As in Lake, the Ninth Circuit concluded here that

the arrangement between the Navy and SDFH—as

reflected in the operating agreement between the

12

entities, the ground leases, SDFH’s operation and

management plan, and the Navy’s promulgation of

general information about the hazards of mold—did

not evince that SDFH was “acting under” federal

officers. See generally Pet. App. 17a–21a; see id. at

17a (explaining that the “relationship between

someone acting under a federal officer and the

federal officer typically involves subjection, guidance,

or control” (quoting Stirling, 955 F.3d at 800

(internal quotation marks omitted))); id. at 20a

(highlighting “the dearth of evidence suggesting

federal involvement in or control over Defendants’

mold management practices”). 2

That the court below reached its jurisdictional

determination based on the “acting under” element is

also reflected in Petitioners’ Petition for Rehearing

En Banc before the Ninth Circuit. In that filing,

Petitioners challenged the panel’s conclusion that

“leasing federal property … to a private entity for

that entity’s commercial purposes does not, without

more, constitute the kind of assistance required to

establish that the private entity is ‘acting under’ a

federal officer.” Pet. for R’hg En Banc at 12–13,

Childs v. San Diego Family Hous., No. 24-1256 (9th

––––––––––––––––––––––––

2 Likewise, the district court concluded that “the evidence

on the record does not support SDFH and LMPM’s arguments

[that] the challenged actions (or omissions) in this case were

controlled by the Navy.” Id. at 48a. In reaching that conclusion,

it leaned on cases, including Lake, that reasoned that an

agreement that requires “federal agency consent on collateral

points” does not evince that a defendant acted under that

agency, but rather “simple compliance with the law.” Id. at 49a

(quoting Lake, 14 F.4th at 1005 (citations omitted)).

13

Cir. Sep. 10, 2025), Dkt. No. 56.1 (internal quotation

omitted).

Finally, the decision below, agreeing with the

position of the United States as amicus curiae, was

correct: Petitioners did not carry their burden of

establishing that they were “acting under” a federal

officer. As this Court has explained, that statutory

phrase contemplates that the private entity acts

“subordinate” to a “superior” federal agency or

officer, “to assist, or to help carry out, the duties or

tasks of the federal superior,” in a relationship that

involves “subjection, guidance, or control.” Watson,

551 U.S. at 151–52 (cleaned up).

Petitioners, as the district court correctly

observed, never “contend[ed] they were acting

directly under the instructions of a federal officer”:

There was no evidence of any communications

between Petitioners and a federal officer as to the

Childs’s mold complaints. Pet. App. 46a.

Absent that evidence, Petitioners argued that

they adhered to a mold management plan that,

according to them, was developed with the input and

approval of the Navy. Id. at 46a–47a. The court

below correctly determined that this point did not

establish the type of relationship contemplated by

the removal statute. See id. at 16a–21a; see also

Watson, 551 U.S. at 153 (observing that compliance

with federal laws, rules, and regulations is

insufficient to establish that a private defendant is

“acting under” a federal official, “even if the

regulation is highly detailed and even if the private

firm’s activities are highly supervised and

monitored.”).

14

Significantly, the operating agreement between

the Navy and Lincoln/Clark San Diego, LLC,

“disclaims Navy responsibility over management and

control decisions, stating Lincoln/Clark San Diego,

LLC—and not the Navy—has ‘exclusive management

and control’ over SDFH, including ‘full authority to

take all actions necessary or appropriate to pursue

the business and carry out’ SDFH’s purpose.” Pet.

App. 48a (quoting Operating Agreement at 15,

§ 5.01(b), S. App. 20); see also Brief for the United

States as Amicus Curiae at 22–24, Childs v. San

Diego Family Hous., No. 24-1256 (9th Cir. Oct. 30,

2024), Dkt. No. 30.1. (quoting Operating Agreement

at 15, § 5.01, S. App. 20 (“[m]anaging [m]ember” of

SDFH, not the government, has “exclusive

management and control of the business of” SDFH

and “commit[s] to ensuring superior quality

operations and management”)). Thus, to the extent

that the Navy had input into the mold management

plan, at most that input reflected “general federal

oversight over Defendants’ housing management

efforts and compliance with applicable laws and

regulations.” Pet. App. 17a; see also id. at 48a–51a

(reviewing the operating agreement and other

evidence submitted by Petitioners and concluding

that “[t]he evidence on the record does not support

[Petitioners’] arguments that the challenged actions

(or omissions) in this case were controlled by the

Navy”).

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

15

Respectfully submitted,

CHRISTIAN B. CLARK

LENDEN WEBB

WEBB LAW GROUP, APC

10509 Vista Sorrento

Parkway

San Diego, CA 92121

(629) 399-7700

LAUREN E. BATEMAN

Counsel of record

WILLIAM H. GOMBERG

PUBLIC CITIZEN

LITIGATION GROUP

1600 20th Street NW

Washington, DC 20009

(202) 588-1000

lbateman@citizen.org

Attorneys for Respondents

May 2026