Amicus Curiae Brief — Suncor Energy (U.S.A.) Inc., et al., Petitioners v. County Commissioners of Boulder County, et al.

No. 25-170

In The

Supreme Court of the United States

SUNCOR ENERGY (U.S.A.) INC., ET AL.,

Petitioners,

v.

COUNTY COMMISSIONERS OF BOULDER COUNTY, ET AL.,

Respondents.

On Writ of Certiorari to the

Supreme Court of Colorado

BRIEF OF ALAN MORRISON AS

AMICUS CURIAE IN SUPPORT OF

RESPONDENTS

Jeffrey B. Simon

David C. Greenstone

SIMON GREENSTONE

PANATIER, PC

901 Main St, Suite 5900

Dallas, TX 75202

(214) 276-7680

Hyland Hunt

Counsel of Record

Dana Kaersvang

DEUTSCH HUNT PLLC

300 New Jersey Ave. NW

Suite 300

Washington, DC 20001

(202) 868-6915

hhunt@deutschhunt.com

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................1

ARGUMENT ...............................................................5

I.

The Court lacks statutory jurisdiction to

review the Colorado Supreme Court’s

interlocutory decision. ..........................................5

A. Absent narrow exceptions, this Court has

jurisdiction to review only final state

court judgments..............................................5

B. The fourth Cox exception is not satisfied

here. ................................................................8

C. If the fourth Cox exception does extend

to mine-run decisions like this, it should

be overruled. .................................................13

II. Petitioners lack standing to invoke the

Court’s Article III jurisdiction. ...........................17

A. Harms that are nothing more than a

byproduct of litigation do not confer

Article III standing to adjudicate the

substance of the litigants’ dispute. ..............18

B. Petitioners’ litigation-cost harms are a

mismatch for their preemption

arguments. ....................................................22

(i)

ii

C. Petitioners’ potential future injuries are

too speculative to give rise to standing

now. ...............................................................24

D. Maintaining justiciability guardrails is

especially crucial for cases that could not

have been brought in federal court in the

first instance. ................................................28

CONCLUSION ..........................................................30

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Arizonans for Off. Eng. v. Arizona,

520 U.S. 43 (1997) ............................................4

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 320 (2015) ........................................24

ASARCO, Inc. v. Kadish,

490 U.S. 605 (1989) .............. 4, 5, 18, 24, 25, 28

Atlantic Richfield Co. v. Christian,

590 U.S. 1 (2020) .................................. 8, 23, 24

Bd. of Cnty. Comm’rs of Boulder Cnty. v. Suncor

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

25 F.4th 1238 (10th Cir. 2022) .......................15

Bennett v. Spear,

520 U.S. 154 (1997) ........................................18

Bond v. United States,

564 U.S. 211 (2011) ....................................3, 23

BP p.l.c. v. Mayor of Balt.,

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

Camreta v. Greene,

563 U.S. 692 (2011) ....................................3, 26

City of Erie v. Pap’s A.M.,

529 U.S. 277 (2000) ........................................25

iv

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013) ....................................4, 26

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) ........................................13

Coventry Health Care of Mo., Inc. v. Nevils,

581 U.S. 87 (2017) ....................................11, 12

Cox Broad. Corp. v. Cohn,

420 U.S. 469 (1975) ...................... 2, 6, 9, 10, 15

Dan’s City Used Cars, Inc. v. Pelkey,

569 U.S. 251 (2013) ..................................11, 12

Deposit Guar. Nat’l Bank v. Roper,

445 U.S. 326 (1980) ........................................21

Diamond v. Charles,

476 U.S. 54 (1986) .............................. 18, 19, 20

Florida v. Thomas,

532 U.S. 774 (2001) ....................................7, 12

Flynt v. Ohio,

451 U.S. 619 (1981) ............................ 7, 8, 9, 10

Fort Wayne Books v. Indiana,

489 U.S. 46 (1989) ............................................7

Franchise Tax Bd. v. Constr. Laborers Vacation Tr.,

463 U.S. 1 (1983) ............................................15

v

GEO Grp., Inc. v. Menocal,

607 U.S. 438 (2026) ...................... 12, 13, 20, 22

Goodyear Atomic Corp. v. Miller,

486 U.S. 174 (1988) ..........................................7

Health & Hosp. Corp. v. Talevski,

599 U.S. 166 (2023) ..................................22, 24

Henry Schein, Inc. v. Archer & White Sales, Inc.,

586 U.S. 63 (2019) ..........................................15

Herb v. Pitcairn,

324 U.S. 117 (1945) ........................................16

Houston Cmty. Coll. Sys. v. Wilson,

595 U.S. 468 (2022) ..................................23, 24

Jefferson v. City of Tarrant,

522 U.S. 75 (1997) .......................... 6, 11, 13, 14

Johnson v. California,

541 U.S. 428 (2004) .............................. 8, 12, 14

Kloeckner v. Solis,

568 U.S. 41 (2012) ..........................................14

Lamps Plus, Inc. v. Varela,

587 U.S. 176 (2019) ........................................21

Lewis v. Casey,

518 U.S. 343 (1996) ........................................12

Lewis v. Cont’l Bank Corp.,

494 U.S. 472 (1990) ........................................19

vi

Lujan v. Defs. of Wildlife,

504 U.S. 555 (1992) ....................................4, 18

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ........................................26

Michigan v. Long,

463 U.S. 1032 (1983) ......................................16

Mills v. Alabama,

384 U.S. 214 (1966) ........................................14

Mitchell v. Forsyth,

472 U.S. 511 (1985) ........................................20

Murthy v. Missouri,

603 U.S. 43 (2024) ..........................................18

Nike, Inc. v. Kasky,

539 U.S. 654 (2003) ..................................27, 29

O’Dell v. Espinoza,

456 U.S. 430 (1982) ........................................13

Pac. Bell Tel. Co. v. linkLine Commc’ns, Inc.,

555 U.S. 438 (2009) ..................................23, 24

Perry v. Thomas,

482 U.S. 483 (1987) ..........................................7

Pierce Cnty. v. Guillen,

537 U.S. 129 (2003) ..........................................5

vii

Radio Station WOW, Inc. v. Johnson,

326 U.S. 120 (1945) ....................................9, 14

San Diego Gas & Elec. Co. v. San Diego,

450 U.S. 621 (1981) ..........................................9

Seila Law LLC v. Consumer Fin. Prot. Bureau,

591 U.S. 197 (2020) ........................................23

Slack Techs., LLC v. Pirani,

598 U.S. 759 (2023) ..................................23, 24

Southland Corp. v. Keating,

465 U.S. 1 (1984) ..............................................7

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ..........................................19

Susan B. Anthony List v. Driehaus,

573 U.S. 149 (2014) ........................................26

Tafflin v. Levitt,

493 U.S. 455 (1990) ........................................28

Vt. Agency of Nat. Res. v. United States ex rel.

Stevens,

529 U.S. 765 (2000) ..................................18, 19

Warner Chappell Music, Inc. v. Nealy,

601 U.S. 366 (2024) ..................................22, 24

Warth v. Seldin,

422 U.S. 490 (1975) ........................................18

viii

Whitmore v. Arkansas,

495 U.S. 149 (1990) ........................................26

STATUTES

28 U.S.C.

§ 1254 ..............................................................23

§ 1257(a).................................. 1, 2, 5, 10, 13, 16

§ 1291 ..............................................................24

§ 1292(b)..........................................................24

INTEREST OF AMICUS CURIAE1

Alan B. Morrison is a Professorial Lecturer in

Law at George Washington University Law School,

where he teaches civil procedure and constitutional

law. Among other positions, he has served as a

member and then senior fellow of the Administrative

Conference of the United States, and a member of the

American Law Institute. With a teaching focus on

federal courts and jurisdiction, he maintains a unique

interest in ensuring that courts appropriately apply

doctrines related to statutory and constitutional

jurisdiction.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Petitioners ask this Court to intercede in ongoing

state court proceedings. The Court lacks statutory

and constitutional jurisdiction to do so. Without a

final judgment, 28 U.S.C. § 1257(a) bars review. And,

unless and until there is a final judgment in

Respondents’ favor, Petitioners suffer no legally

cognizable injury sufficient to create Article III

standing.

There are good reasons that Congress limited

this Court’s review of state courts to final judgments,

and there is no basis for disregarding those rules here.

Petitioners can seek this Court’s review at the end of

1 No counsel for any party authored this brief in whole or in

part, and no person or entity other than amicus curiae or his

counsel made a monetary contribution intended to fund the

brief’s preparation or submission.

(1)

2

the state court proceedings if they end up being

injured by the outcome. That is the ordinary course

for preemption defenses, which neither allow for

removal to federal court nor create an immunity from

the ordinary inconvenience and expense of

participating in litigation.

I. Under 28 U.S.C. § 1257(a), this Court’s review

of state courts is limited to final judgments and

decrees of state courts. The Colorado Supreme Court

decision is not final under the usual final-judgment

rules. There are significant further proceedings yet to

come in the state courts, including adjudication of

additional federal defenses.

Petitioners invoke a finality exception that has

been gathering dust for nearly four decades: the

fourth exception listed in the Court’s decision in Cox

Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). But

the limited circumstances that could justify

jurisdiction under that little-used, atextual exception

are lacking here. Cox’s fourth exception is limited to

exceptional cases where all the federal questions have

been conclusively determined in state court, reversal

would end the case, and waiting for final judgment

would seriously erode federal policy.

Not one of these requirements is satisfied here.

Additional federal defenses remain to be litigated.

This case thus presents the very risk of piecemeal

review of federal issues that the final-judgment rule

is designed to avoid. And it does so with no prospect

of even ending the litigation, because resolving the

one federal issue raised here would not end the case.

3

Nor do Petitioners point to a federal policy that

would be seriously eroded by allowing the litigation to

continue, much less any federal policy concerns above

and beyond those present in a mine-run preemption

case. The Colorado Supreme Court’s decision has no

consequences outside of the litigation. It does not

alter—or even cast doubt on—the lawfulness of any of

Petitioners’ conduct. Petitioners can do what

everyone else does in state court: wait until the end of

the litigation and seek review if this (or any other)

federal question ends up mattering to the outcome.

If read as broadly as Petitioners urge, Cox’s

fourth exception is not only atextual; it is inconsistent

with principles of federalism and modern statutory

interpretation. It would pave a highway to federal

court that could be traveled by all litigants who—like

Petitioners—had no basis for removal but would

rather not wait for final judgment. If understood so

expansively, the exception cannot be justified and

should be overruled.

II. Even if the ruling below were treated as final,

this case would not be constitutionally justiciable in

federal court.

In the usual case, plaintiffs have standing and

justiciability is assured so long as defendants possess

“an ‘ongoing interest in the dispute’ … that is

sufficient to establish ‘concrete adverseness.’” Bond v.

United States, 564 U.S. 211, 217 (2011) (quoting

Camreta v. Greene, 563 U.S. 692, 701 (2011)). But this

is not the usual case. Petitioners do not now argue

that this case was justiciable in federal court at the

outset, and they challenged Respondents’ standing

4

under Colorado’s standing rules. See Resp. Br. 11 n.3;

Pet. App. 115a-16a.

The Court’s Article III jurisdiction, therefore,

depends on Petitioners’ standing. They must show

that the Colorado Supreme Court’s decision caused

“‘an invasion of a legally protected interest’ that is

‘concrete and particularized’ and ‘actual or

imminent.’” Arizonans for Off. Eng. v. Arizona, 520

U.S. 43, 64 (1997) (quoting Lujan v. Defs. of Wildlife,

504 U.S. 555, 560 (1992)); see ASARCO, Inc. v.

Kadish, 490 U.S. 605, 612, 618 (1989).

Petitioners have not made that showing. Their

claimed injuries are all litigation consequences

stemming from the fact that the case continues to

move forward. But even if their preemption defense is

valid, such a defense does not protect them from the

burdens of continued litigation. Instead, like all

ordinary defenses, it shields them only from liability.

Moreover, injuries that are merely byproducts of

litigation about a dispute do not confer standing to

adjudicate the merits of the dispute. This Court has

repeatedly rejected such arguments in cases involving

both plaintiffs’ standing to sue and defendants’

standing to appeal. While Petitioners would be

harmed if ultimately held liable, that risk is not

“certainly impending” and does not give rise to

standing now. See Clapper v. Amnesty Int’l USA, 568

U.S. 398, 409 (2013) (quoting Lujan, 504 U.S. at 565

n.2).

Opening the door to standing based on such

harms is problematic enough on its own, but doing so

to move a case into federal court that is otherwise

5

non-justiciable—while state court proceedings are

still ongoing—risks the disrespect to state courts that

the Court’s ASARCO decision was designed to avoid.

In ASARCO, the Court opened a narrow door to cases

that are otherwise non-justiciable based on a final

state court decision that placed the defendants “under

a defined and specific legal obligation … which causes

them direct injury.” 490 U.S. at 618. Accepting

Petitioners’ theory, on the other hand, would fling

open the doors to state court decisions that impose no

legal obligations, but simply allow a case to move

forward. Doing so in a case that no party could have

brought in federal court undermines fundamental

federalism principles, under which state courts have

the authority to adjudicate a case in full before federal

review attaches.

ARGUMENT

I.

The Court lacks statutory jurisdiction to

review the Colorado Supreme Court’s

interlocutory decision.

A. Absent narrow exceptions, this Court

has jurisdiction to review only final state

court judgments.

By statute, this Court has jurisdiction to review

only “[f]inal judgments” of state courts. 28 U.S.C.

§ 1257(a). In general, finality requires “an effective

determination of the litigation” as a whole, “not of

merely

interlocutory

or

intermediate

steps

therein.” Pierce Cnty. v. Guillen, 537 U.S. 129, 140

6

(2003) (quoting Jefferson v. City of Tarrant, 522 U.S.

75, 81 (1997)).

The Court has nonetheless recognized certain

exceptions where it has treated a state court’s final

determination of the federal issue in a case as a final

judgment, even though “there are further proceedings

in the lower state courts to come.” Cox, 420 U.S. at

477. The exceptions fall into four categories. In two of

these categories, the decided federal question will

inevitably be integral to the final judgment, either

because “the case is for all practical purposes

concluded” or because “[n]othing that could happen”

in state court “would foreclose or make unnecessary

decision on the federal question.” Id. at 479-80. In the

third category, neither party will be able to seek

review of the federal question after final judgment,

meaning that the federal question has reached the

end of the road. Id. at 481.

The fourth Cox exception—on which Petitioners

solely rely—is different. That exception is for cases

where 1) there are “further proceedings pending in

which the party seeking review here might prevail on

the merits on nonfederal grounds, thus rendering

unnecessary review of the federal issue by this Court,”

2) “reversal of the state court on the federal issue

would be preclusive of any further litigation,” and 3)

“a refusal immediately to review the state-court

decision might seriously erode federal policy.” Id. at

482-83. Exception four stands apart from the other

Cox categories in that it involves federal questions

that may be unnecessary to the resolution of the case

(because the party who lost the federal question might

prevail on nonfederal grounds) and which the Court

7

can review at the end of the case if the federal

question ends up being outcome determinative.

This Court has not invoked Cox’s fourth

exception as the basis for its jurisdiction in nearly

forty years. In rebuffing attempts by petitioners to

resort to that exception, the Court has recognized a

need for caution lest “[a]ny federal issue finally

decided on an interlocutory appeal in the state courts

… qualify for immediate review.” Flynt v. Ohio, 451

U.S. 619, 622 (1981) (per curiam).

In addition to the requirement that reversal by

this Court end the litigation, two guardrails cabin the

fourth Cox category’s reach. First, the requirement

that “delaying review” would “seriously erode federal

policy” has been understood narrowly to keep this

exception from “swallow[ing] the rule.” Id. at 622.

Since Cox, the Court has found this condition satisfied

in less than a handful of situations, including where

the state court permitted state regulation of the “only

nuclear facility producing nuclear fuel for the Navy’s

nuclear fleet,” Goodyear Atomic Corp. v. Miller, 486

U.S. 174, 179-80 (1988); in a First Amendment case

where there was concern about chilling speech and

the uninterrupted “flow of expressive materials,” Fort

Wayne Books v. Indiana, 489 U.S. 46, 55-57, 67

(1989); and where allowing a case to go forward would

itself “defeat the core purpose” of an arbitration

clause under dispute, Southland Corp. v. Keating, 465

U.S. 1, 7-8 (1984); Perry v. Thomas, 482 U.S. 483, 489

n.7 (1987). In more recent decades, the Court has

emphasized that only a federal policy interest that is

“not common to all run-of-the-mine decisions” can

8

satisfy this requirement. Florida v. Thomas, 532 U.S.

774, 780 (2001).

Second, in exercising jurisdiction under Cox’s

fourth exception, the Court guards against the

“probability of piecemeal review with respect to

federal issues.” Flynt, 451 U.S. at 621. In “most, if not

all, of the cases falling within the [Cox] exceptions, not

only was there a final judgment on the federal issue

for purposes of state-court proceedings, but also there

were no other federal issues to be resolved.” Id.

The fourth Cox exception is thus available only

when all of a case’s federal issues have been finally

resolved such that waiting for final judgment would

seriously erode federal policy and reversal would end

the case. And even then, the erosion of federal policy

must be so unusual and severe as to present an

“exceptional” situation. See Johnson v. California,

541 U.S. 428, 429 (2004) (per curiam).

B. The fourth Cox exception is not satisfied

here.

1. This case does not present the rare

circumstances to which the fourth Cox exception

applies. See Johnson, 541 U.S. at 430. Not one of the

three elements identified in Cox is satisfied here. And

to secure the Court’s jurisdiction, Petitioners would

have to run the table.2

2 Petitioners have also claimed that the Colorado Supreme

Court’s decision terminated a self-contained original proceeding

and is therefore final under Atlantic Richfield Co. v. Christian,

590 U.S. 1 (2020). Amicus agrees with Respondents that Atlantic

9

First, this is not a case where “the federal issue

has been finally decided” and Petitioners “might

prevail on the merits on nonfederal grounds.”

Cox, 420 U.S. at 482 (emphasis added); Flynt, 451

U.S. at 621. The fourth Cox exception does not apply

when the “remaining litigation may raise other

federal questions that may later come” to the Court.

San Diego Gas & Elec. Co. v. San Diego, 450 U.S. 621,

633 (1981) (quoting Radio Station WOW, Inc. v.

Johnson, 326 U.S. 120, 127 (1945)) (holding that a

state court judgment that “monetary compensation is

not an appropriate remedy for” a taking could not be

treated as final because the state court had not yet

determined whether a taking had occurred). The

remaining litigation is almost certain to raise other

federal questions here.

The Colorado Supreme Court has so far decided

only one of the many federal defenses that Petitioners

asserted below. See Pet. App. 108a-15a. Petitioners do

not dispute that they may very well prevail on

remand on a different federal issue. Pet. Br. 19. And

their amici press other federal defenses as well. See

Br. for Protect the First Found. as Amicus Curiae 415; Br. for Neutral Principles as Amicus Curiae 3-24.

Review now could mean embarking on the very

“piecemeal review with respect to federal issues” that

the final judgment rule is designed to guard against.

Flynt, 451 U.S. at 621.

Second, and relatedly, “reversal of the state

court on the federal issue” would not “be preclusive of

Richfield does not apply, see Resp. Br. 16-22, but does not

address that issue because it will be addressed by other amici.

10

any further litigation.” Cox, 420 U.S. at 482-83. The

federal defense for which Petitioners seek

interlocutory review hinges on the principle that

“States lack the power to regulate conduct beyond

their borders.” Pet. Br. 3. But the Complaint alleges

unlawful conduct by Petitioners both within Colorado

and elsewhere. See Pet. App. 54a. So even if the

federal defense at issue were valid, it would

presumably not preclude litigation as to in-state

conduct.

Third, there is no basis for concluding that “a

refusal immediately to review the state-court decision

might seriously erode federal policy.” Cox, 420 U.S. at

483. The key is that “identifiable federal statutory or

constitutional policies” must be seriously harmed by

allowing the decision to stand while litigation

continues. See Flynt, 451 U.S. at 622. Any harm

potentially caused by some future final judgment is

irrelevant since the Court can review that judgment

in the ordinary course if the federal question ends up

mattering to the outcome.

Petitioners do not even attempt to identify the

federal policy that would be seriously eroded by

continuation of the litigation, much less point to its

source in a statute or other authority. Pet. Br. 18-19.

Nor could they. No real-world consequences flow from

the Colorado Supreme Court’s ruling at this point.3

3 As

described in Part II, this lack of real-world

consequences—as opposed to litigation burdens alone—is an

additional, independent reason why the Court’s jurisdiction

fails, even if the Colorado Supreme Court’s decision could be

labeled “final” within the meaning of 28 U.S.C. § 1257(a).

11

The decision does not currently impair the authority

of federal regulators or interfere with federal

programs in any way. At the moment, it does not even

interfere with Petitioners’ activities. Petitioners have

not claimed that the decision is affecting how they

conduct their business, let alone compelling them to

make a change. Whatever the importance of the

substantive questions raised by the petition, the

Colorado Supreme Court’s decision has no present

impact whatsoever on federal policy.

When a final judgment is issued, Petitioners may

prevail (on other federal grounds or state ones), in

which case there will be no effect on the unidentified

federal policy Petitioners hypothesize. If instead

Petitioners do not prevail, “they will be free to seek

[the Court’s] review once the state-court litigation

comes to an end,” and that review suffices to protect

whatever federal policy is at stake. See Jefferson, 522

U.S. at 82-83 (finding Cox exceptions were not

satisfied).

2. Without identifying a specific federal policy

subject to erosion here, Petitioners assert (Pet. Br. 19)

that “ordinary questions of federal preemption”

satisfy Cox’s fourth exception as a matter of

“routine[],” citing two cases arising in a “similar

posture.” But the cited cases did not hold that federal

policy will be seriously eroded whenever ordinary

preemption questions are not subject to interlocutory

review. Indeed, they did not address Cox at all. See

Coventry Health Care of Mo., Inc. v. Nevils, 581 U.S.

87 (2017); Dan’s City Used Cars, Inc. v. Pelkey, 569

U.S. 251 (2013).

12

Because jurisdiction was not discussed in those

cases, “the existence of unaddressed jurisdictional

defects has no precedential effect.” See Lewis v. Casey,

518 U.S. 343, 352 n.2 (1996). Moreover, both cases

involved federal policies embedded in an express

preemption clause. See Coventry Health Care, 581

U.S. at 90; Dan’s City Used Cars, 569 U.S. at 254-56.

The decisions cannot be read to suggest that such a

clause is alone enough to convert an interlocutory

decision into a final one—especially given that the

Court did not address Cox at all—but, regardless,

even that justification is absent here. See Pet. App.

13a.

In any event, Petitioners’ argument proves too

much. It would allow for interlocutory review of all

“ordinary questions of federal preemption” decided in

state courts, Pet. Br. 19, while making “no claim of

serious erosion of federal policy that is not”—at best—

“common to all run-of-the-mine decisions” on

preemption. See Thomas, 532 U.S. at 780; Johnson,

541 U.S. at 430. The fourth Cox category requires

more.

Petitioners’

complaints

about

continued

litigation (Pet. Br. 12, 20)—the only consequence of

the Colorado Supreme Court decision—do not help

them. Incurring litigation costs following an

interlocutory ruling rejecting a preemption defense is

the rule under federal law, not the exception. See

GEO Grp., Inc. v. Menocal, 607 U.S. 438, 446 (2026).

So, it is hardly corrosive to federal policy to require

Petitioners to continue to litigate.

13

In short, this case “presents the typical situation

in which the state courts have resolved some but not

all” of a case. See Jefferson, 522 U.S. at 84 (holding

that state supreme court decision answering certified

question was not final for purposes of 28 U.S.C.

§ 1257(a)); O’Dell v. Espinoza, 456 U.S. 430, 430

(1982) (per curiam). It does not present exceptional

circumstances satisfying the criteria for the fourth

Cox category.

C. If the fourth Cox exception does extend

to mine-run decisions like this, it should

be overruled.

If Petitioners’ view of Cox is correct, the fourth

Cox exception reflects a wholesale, atextual carve-out

from Congress’s final judgment rule that vitiates the

statutory limits on the Court’s jurisdiction and

sweeps aside principles of federalism and judicial

restraint at the core of the final-judgment limitation.

Such an exception cannot stand. Cf. GEO Grp., 607

U.S. at 453 (Thomas, J., concurring in part and

concurring in judgment) (Because the “Cohen

collateral-order doctrine, which allows federal courts

to exercise appellate jurisdiction over certain

interlocutory orders, conflicts with Congress’s

authority over federal appellate jurisdiction,” the

Court “should not expand [it] beyond orders that [the

Court’s] precedents have already held to be

immediately appealable.” (citing Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949))).

“Compliance with the provisions of § 1257 is an

essential prerequisite to [the Court] deciding the

merits of a case brought here under that section.”

14

Johnson, 541 U.S. at 431. The “finality rule ‘is not one

of those technicalities to be easily scorned. It is an

important factor in the smooth working of our federal

system.’” Jefferson, 522 U.S. at 81 (quoting Radio

Station WOW, 326 U.S. at 124). Yet Cox’s fourth

exception rests on weak foundations in serious

tension with modern precedent.

Start with the text. Cox itself recognized that its

interpretation of finality was “pragmatic” rather than

literal, and that under plain “English usage,” the

statutory text “would justify an interpretation of the

final-judgment rule [that would] preclude review

where anything further remains to be determined by

a State court.” 420 U.S. at 477, 486 (internal

quotation marks omitted). Some of the Cox categories

describe circumstances where the state court

judgments are effectively final. See, e.g., id. at 479

(describing situations where “the case is for all

practical purposes concluded”). But the rationale for

the fourth Cox category is transparently a policy call,

reflecting the judgment that the Court should be

allowed to reach questions on interlocutory review

that may be ultimately unnecessary to the merits of

the dispute merely because they are so “important”

that it is “intolerable to leave [them] unanswered.” Id.

at 485 (quoting Mills v. Alabama, 384 U.S. 214, 22122 (1966) (Douglas, J., concurring)).

Yet subsequent cases have made clear that

“‘even the most formidable’ policy arguments cannot

‘overcome’ a clear statutory directive,” BP p.l.c. v.

Mayor of Balt., 593 U.S. 230, 245 (2021) (quoting

Kloeckner v. Solis, 568 U.S. 41, 55 n.4 (2012)), and the

Court “may not engraft [its] own exceptions onto the

15

statutory text,” Henry Schein, Inc. v. Archer & White

Sales, Inc., 586 U.S. 63, 70 (2019). If the fourth Cox

category stretches to mine-run interlocutory decisions

simply because they resolved federal defenses like

preemption, then the pretense can no longer be

maintained that the category interprets the word

“final” rather than supplants Congress’s finality

mandate with a different policy choice.

Federalism principles likewise counsel in favor

of abandoning the fourth Cox exception. A capacious

version of the fourth Cox category upends the

federalism balance inherent in foundational doctrines

regarding the interplay between state and federal

courts.

If read as broadly as Petitioners urge, Cox’s

fourth exception is effectively an end-run around the

well-pleaded complaint rule, allowing defendants to

obtain direct federal court intervention in ongoing

state court cases that could not have been removed to

federal court—like this one, Bd. of Cnty. Comm’rs of

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

1238, 1246 (10th Cir. 2022). “[S]ince 1887 it has been

settled law that a case may not be removed to federal

court on the basis of a federal defense, including the

defense of preemption, … even if both parties admit

that the defense is the only question truly at issue in

the case.” Franchise Tax Bd. v. Constr. Laborers

Vacation Tr., 463 U.S. 1, 14 (1983).

Petitioners thus could not remove this case to

federal court. See id. Nor could they have brought

their preemption defense to federal court as a

declaratory judgment action. See id. at 16. Yet an

16

expansive view of Cox would allow federal court

intervention in ongoing, non-removable state cases

through the mechanism of this Court’s review, rather

than hewing to federal court review only following

final judgment.

On top of opening the door to intervention in

state cases too soon, the fourth Cox exception permits

intervention in a state court proceeding when it may

not matter and when intervention is not clearly

needed to prevent a judgment from violating federal

law. This effectively invites the Court to issue

advisory opinions. The Court has repeatedly

recognized that it will not “review judgments of state

courts that rest on adequate and independent state

grounds” because “‘if the same judgment would be

rendered by the state court after we corrected its

views of federal laws, our review could amount to

nothing more than an advisory opinion.’” Michigan v.

Long, 463 U.S. 1032, 1041-42 (1983) (quoting Herb v.

Pitcairn, 324 U.S. 117, 126 (1945)). This doctrine

involves “sensitive issues of federal-state relations.”

Id. at 1039. Yet the fourth Cox category—if unleashed

from its guardrails—invites the Court to rush ahead

and beat the state court to the punch by making sure

the state court is unable to reach state-law grounds

that could obviate any need for federal review.

If the fourth Cox category is understood as

permitting this sort of interlocutory interference in

state court proceedings where the federal courthouse

doors would otherwise be closed, it should be

overruled in favor of hewing to the statutory text,

under which Congress provided for review only of

final judgments of state courts. 28 U.S.C. § 1257(a).

17

II. Petitioners lack standing to invoke the

Court’s Article III jurisdiction.

Even if the Colorado Supreme Court’s decision

somehow qualifies for an exception to the finaljudgment rule, the decision has only one consequence:

Petitioners must continue litigating this case. That

consequence, which is the basis for all the injuries

that Petitioners claim, does not qualify as an injurycausing invasion of Petitioners’ legally protected

interests that confers Article III standing in this

Court to adjudicate the merits of their preemption

defense.

For starters, Petitioners do not have a legally

protected interest in avoiding litigation costs. If valid,

Petitioners’ federal preemption defense shields

Petitioners from paying damages or facing other

state-law penalties. Because the defense confers no

federal right to be free from continued litigation, the

Colorado Supreme Court has not invaded Petitioners’

legally protected rights. Much less has it “finally

determine[d]” those rights (Pet. Br. 20) because it has

not determined that Petitioners are liable for

anything.

In addition, Petitioners’ complained-of litigation

costs are merely a “byproduct” of the litigation.

Injuries that are merely a byproduct of litigation

about a dispute do not confer standing to adjudicate

the merits of the dispute. That rule disqualifies

Petitioners’ litigation-costs injury here.

As for the theory that the decision subjects

Petitioners to the “risk of adverse consequences” (Pet.

Br. 12)—presumably a damages award, though that

18

is left unsaid—Petitioners do not attempt to show

that any such consequences are imminent or likely.

Speculative threatened future injuries do not confer

standing. Tellingly, Petitioners do not assert that

they have altered their conduct in any way because of

perceived future risks. Petitioners have no claim to

the type of injury that would give rise to Article III

standing.

A. Harms that are nothing more than a

byproduct of litigation do not confer

Article III standing to adjudicate the

substance of the litigants’ dispute.

1. Standing requires harm to a “legally protected

interest,” Lujan, 504 U.S. at 560, and “is not

dispensed in gross,” Murthy v. Missouri, 603 U.S. 43,

61 (2024) (internal quotation marks omitted). Thus,

the interest a litigant seeks to vindicate must be more

than just a “concrete private interest.” Vt. Agency of

Nat. Res. v. United States ex rel. Stevens, 529 U.S.

765, 772 (2000) (internal quotation marks omitted). It

must also be an interest that is “judicially cognizable,”

Bennett v. Spear, 520 U.S. 154, 167 (1997)—i.e., that

the law protects. Not only that, the existence or scope

of the legal protection for the complained-of harm

must be what is at issue in the lawsuit or appeal.

Diamond v. Charles, 476 U.S. 54, 70 (1986); see also

ASARCO, 490 U.S. at 624 (“federal standing ‘often

turns on the nature and source of the claim asserted’”

(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975))).

In other words, there must be a match between the

interest asserted and the subject of the litigation such

that “the interest … consist[s] of obtaining

19

compensation for, or preventing, the violation of a

legally protected right.” Vt. Agency of Nat. Res., 529

U.S. at 772-73.

Implementing these principles, the Court has

held that “an interest that is merely a ‘byproduct’ of

the suit itself cannot give rise to a cognizable injury

in fact for Article III standing purposes.” Id. at 773. A

judicially cognizable injury must stem from the

underlying dispute, and not from the litigation about

that dispute. This is why plaintiffs cannot obtain

standing based on their interest in “reimbursement of

the costs of litigation,” Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 108 (1998), nor keep a suit alive on

the merits based on their interest in recovering

attorney’s fees, Lewis v. Cont’l Bank Corp., 494 U.S.

472, 480 (1990).

The same goes for defendants, who cannot obtain

standing to appeal the substance of a judgment based

on their interest in avoiding paying plaintiffs’

attorney’s fees. In Diamond, the Court held that an

intervenor-defendant lacked standing to appeal an

adverse judgment on the merits simply because the

judgment required him to pay the plaintiffs’

attorney’s fees. 476 U.S. at 69-71. This is so even

though the obligation to pay attorney’s fees is a

concrete and personal harm, caused by the judgment

below, that would be redressed by reversal of the

judgment on the merits. The “mere fact that

continued adjudication would provide a remedy for an

injury that is only a byproduct of the suit itself does

not mean that the injury is cognizable under Art. III.”

Id. at 70-71.

20

2. Diamond involved an order to pay the other

party’s litigation costs, rather than the defendant’s

interest in avoiding its own litigation costs. But in

either case the litigation costs are “only a byproduct

of the suit itself.” Id. And an interest in avoiding one’s

own litigation costs has even less purchase for

standing, because the complained-of harm—paying

for litigation—is usually not one that the law protects

against at all.

Defendants do not generally have a legal right to

avoid their own litigation costs. Ordinary defenses

protect litigants from liability, not lawsuits. This is

one

reason

why

ordinary

defenses—unlike

immunities from suit—are not immediately

appealable. See supra p. 12. As explained in GEO

Group, although an immunity is an “‘entitlement not

to stand trial,’” a “‘mere defense’ … offers something

different, and of lesser value.” 607 U.S. at 446

(quoting Mitchell v. Forsyth, 472 U.S. 511, 525-26

(1985)). An immunity permits a litigant to “avoid[], in

addition to liability, all the usual ‘burdens of

litigation.’” Id. (quoting Mitchell, 472 U.S. at 525-26).

A “valid defense,” on the other hand, allows the

defendant to escape liability, but not “the varied

rigors and costs of legal proceedings.” Id.

An ordinary defense thus confers no federal right

to be shielded from litigation costs. But even if it did,

a legal right to be shielded from litigation costs is

distinct from a legal right to be shielded from liability.

So, an injury tied to the former cannot confer

justiciability over an appeal about the latter.

21

3. The situations where the Court adjudicates

claims of litigation-related harms confirm the

requirement that the complained-of harm must

match the legal issue at stake. Litigation harms

confer standing only when the disputed issue is

whether federal law protects a party from that

litigation harm. Such an injury does not confer

standing to litigate the substance of the parties’

dispute. See Deposit Guar. Nat’l Bank v. Roper, 445

U.S. 326, 336 (1980) (holding that named plaintiffs’

“desire to shift part of the costs of litigation” to a class

conferred jurisdiction “only to review the asserted

procedural error” of denying class certification, “not

for the purpose of passing on the merits of the

substantive controversy” when claims were otherwise

moot).

The arbitration case cited by Petitioners (Pet. Br.

20) provides an example. In Lamps Plus, Inc. v.

Varela, 587 U.S. 176 (2019), the question was whether

the district court had correctly ordered class

arbitration, rather than individual arbitration. Id. at

179-80. The Court held that the employer’s “interest

in avoiding [the] consequences” of the “fundamental”

shift from individual to classwide arbitration

provided the employer standing to appeal. Id. at 182

(citation

omitted).

That

individual-to-classarbitration injury matched the substance of the

appeal, which was entirely about whether the

arbitration agreement protected the employer from

classwide arbitration—not the merits of the

employment dispute. Id. at 180.

22

B. Petitioners’ litigation-cost harms are a

mismatch

for

their

preemption

arguments.

These principles demonstrate that Article III

standing is absent here.

Petitioners’ primary claimed injury is the

“monetary costs … to continue litigating in Colorado.”

Pet. Br. 20. As explained above, Petitioners will likely

face the burden of litigating this suit regardless of the

outcome of their preemption defense, since their instate conduct will still be at issue. In any event,

Petitioners have no legal right to be free of litigation

costs, even if their preemption defense is valid. See

GEO Grp., 607 U.S. at 446.

Moreover, the litigation harm Petitioners assert

does not match the legal interest they seek to defend.

The issue Petitioners seek to invoke this Court’s

jurisdiction to adjudicate is not whether federal law

shields them from litigation costs (it doesn’t) but

whether it shields them from state-law damages

(which the Colorado Supreme Court decision has not

caused them to pay). That mismatch defeats standing.

Petitioners insist (Pet. Br. 21) that “litigation

consequences” are enough, and that their standing is

confirmed by cases in which the Court has reviewed

federal court decisions rejecting motions to dismiss

although defendants could have prevailed on other

grounds. But these cases are wholly inapposite. In

two of them, there is no mention of standing or Article

III jurisdiction. See Warner Chappell Music, Inc. v.

Nealy, 601 U.S. 366 (2024); Health & Hosp. Corp. v.

Talevski, 599 U.S. 166 (2023). The third case

23

mentions the plaintiff’s standing only in describing

the Fifth Circuit’s holding; it was not questioned in

this Court. Houston Cmty. Coll. Sys. v. Wilson, 595

U.S. 468, 473 (2022). The Court did not have

jurisdiction to hear such cases because of defendants’

harms from continued litigation—that topic was not

broached—but because the plaintiffs’ standing

assured Article III justiciability. See Seila Law LLC

v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 211

(2020) (“When the plaintiff has standing, ‘Article III

does not restrict the opposing party’s ability to object

to relief being sought at its expense.’” (quoting Bond,

564 U.S. at 217)).4

There is thus no general rule that the burden of

continued

litigation

justifies

admittedly

“interlocutory” review (Pet. Br. 20) of decisions

denying motions to dismiss—indeed the rule is

exactly the opposite. See supra p. 12.5

4 The government cites a few additional cases in this posture

(SG Br. 14 n.3). As with Petitioners’ cases, standing was not

addressed in any of the cases and the plaintiffs’ standing was

unquestioned in all three. See Slack Techs., LLC v. Pirani, 598

U.S. 759 (2023); Atl. Richfield, 590 U.S. 1; Pac. Bell Tel. Co. v.

linkLine Commc’ns, Inc., 555 U.S. 438 (2009).

5 The cases that Petitioners cite do not advance their position

as to either Article III standing or the statutory jurisdiction

argument discussed above, see supra Part I. In each federal case,

not only did the district court have federal question jurisdiction

and the plaintiffs have Article III standing, the courts of appeals

had unquestioned statutory jurisdiction. Thus the decisions

were properly reviewable in this Court under 28 U.S.C. § 1254,

even though decisions denying motions to dismiss would

ordinarily be unappealable interlocutory orders. In Warner

24

C. Petitioners’ potential future injuries are

too speculative to give rise to standing

now.

1. Petitioners are not injured in any other way

by the litigation at this stage. For starters, the

Colorado Supreme Court decision has not “finally

determine[d]

petitioners’

federal

rights”

as

Petitioners claim (Pet. Br. 20). The Supremacy

Clause, which gives rise to Petitioners’ preemption

defense, “is not the source of any federal rights.”

Armstrong v. Exceptional Child Ctr., Inc., 575 U.S.

320, 324 (2015) (internal quotation marks omitted).

Although a valid preemption defense shields a

litigant from liability, it does not confer a federal right

to avoid the burdens of litigation. So, a decision that

does nothing more than reject a preemption defense

and allow continued litigation is not a final

“adjudication of legal rights” like the declaratory

judgment at issue in ASARCO, 490 U.S. at 618.

In ASARCO, the Court addressed a declaratory

judgment that “pose[d] a serious and immediate

threat to the continuing validity” of defendants’

Chappell Music, 601 U.S. at 370, Slack Technologies, 598 U.S. at

765, and Pacific Bell, 555 U.S. at 444, an interlocutory appeal

had been certified under 28 U.S.C. § 1292(b). In the other two

cases, the district courts had issued final judgments dismissing

the cases, so appeal was taken under 28 U.S.C. § 1291. See

Health & Hosp. Corp., 599 U.S. at 174; Houston Cmty. Coll. Sys.,

595 U.S. at 473. For the one state case cited by the government,

the Court based final-judgment jurisdiction on the finding that

the Montana decision was issued in a self-contained proceeding

rather than an appeal, Atl. Richfield, 590 U.S. at 12, a status

that does not apply here, see Resp. Br. 16-22.

25

mineral leases. Id. That case involved, not a potential

future decision, but a judgment fully and finally

determining that the statute authorizing the leases

violated federal law. Id. Even then, two justices would

have held that the plaintiffs’ “absence of standing

disposes of this case and requires dismissal of the

appeal.” Id. at 634 (Rehnquist, C.J., dissenting, joined

by Justice Scalia); see also City of Erie v. Pap’s A.M.,

529 U.S. 277, 306 (2000) (Scalia, J., concurring, joined

by Justice Thomas) (“remain[ing] of the view that

[ASARCO] was incorrectly decided”).

Here, there has been no adjudication,

preliminary or otherwise, of whether any of

Petitioners’ conduct violates any law, state or federal.

Nothing in the Colorado Supreme Court decision

casts doubt upon Petitioners’ rights to engage in that

conduct. See Pet. App. 24a-25a. The only thing the

decision resolves is that Petitioners must continue to

litigate the lawfulness of their conduct until a final

judgment is reached. An ordinary defense, even if

valid, does not protect against this continued

litigation.

2. Petitioners also gesture at possible future

injury, complaining vaguely of the “risk of adverse

consequences” (Pet. Br. 12). The government puts it

more plainly as the risk of paying damages (SG Br.

14). As to this potential future injury, the problem is

not a mismatch with Petitioners’ claimed right to be

free of liability, but rather wholesale speculation.

The Court has “repeatedly reiterated that

threatened injury must be certainly impending to

constitute injury in fact, and that [a]llegations of

26

possible future injury are not sufficient.” Clapper, 568

U.S. at 409 (internal quotation marks omitted;

alteration in original). But it “is just not possible for a

litigant to prove in advance that the judicial system

will lead to any particular result in his case.”

Whitmore v. Arkansas, 495 U.S. 149, 159-60 (1990).

Petitioners offer at best speculation about the

outcome of future court proceedings, which falls short

of the standing mark. See Clapper, 568 U.S. at 401

(Article III injury cannot be “speculative”).

Tellingly, Petitioners do not claim they are

suffering any present harm from the potential future

liability. They and the government offer cases where

standing has been founded on a litigant being

“coerced” to alter its primary conduct—which it

claims is legally protected—by the threat of

prosecution or liability. See MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 129-30 (2007); see Pet.

Br. 20; SG Br. 14. In such cases, the risk of liability is

part of what causes the Article III injury, but the

injury is the deterrence or impairment of legally

protected conduct. No such injury is claimed here.

In Susan B. Anthony List v. Driehaus, 573 U.S.

149 (2014), the Court’s harm analysis focused on

“burdens … on electoral speech” and the need to

divert resources from other priorities “in the crucial

days leading up to an election.” Id. at 165. In Camreta,

the Court held that an officer who “regularly engages

in [the challenged] conduct as part of his job” has

standing to appeal a decision holding that conduct

unconstitutional because the potential future liability

“force[s] the official to change his conduct.” 563 U.S.

at 703-04 & n.4. In cases of this kind, the injury and

27

the claimed legal protection match: litigants claim

legal protection for their intended or desired conduct,

and the injury that confers standing is the deterrence

or alteration of that conduct.6 But that sort of injury

is wholly inapplicable here. Petitioners do not claim

that the Colorado Supreme Court decision has

affected the way they do business at all, nor that they

even have been nudged—never mind coerced—to

change their conduct one whit.

3. Petitioners’ argument about the preclusive

effect of the Colorado Supreme Court decision (Pet.

Br. 20) adds nothing to their other theories. The

preclusive effect that Petitioners claim—Colorado

trial courts must follow Colorado Supreme Court

opinions—does not actually preclude Petitioners from

litigating their preemption defense in this Court. All

it does is postpone that review. In other words, the

preclusive-effect argument is simply another way of

stating that Petitioners must bear litigation costs

until the state court case reaches final judgment.

That is not a cognizable harm that creates Article III

standing to litigate the merits of Petitioners’

preemption defense.

That does not mean, of course, that Petitioners

would never have standing to seek this Court’s review

of their federal defenses. If Petitioners’ conduct is

6 The dissenting justices in Nike, Inc. v. Kasky, 539 U.S.

654 (2003), would have held that Nike had standing based on

this sort of injury, on the theory that “Nike’s speech on public

matters might be ‘chilled’ immediately” by the interlocutory

state decision. Id. at 667-70 (Breyer, J., dissenting). No justices

suggested that the mere continuation of litigation was sufficient

to confer standing.

28

ultimately found unlawful and they are ordered to

pay damages, or to comply with some other remedy,

they would then suffer an invasion of the legally

protected interest that they seek to adjudicate here.

But Petitioners claim no current harms like those

that would flow from a final judgment, with good

reason—no such harms were inflicted by the Colorado

Supreme Court’s decision. The only effect of that

decision is continued litigation.

D. Maintaining justiciability guardrails is

especially crucial for cases that could

not have been brought in federal court in

the first instance.

Adopting Petitioners’ theory would undermine

federalism principles crucial in cases like this one

where, otherwise, state courts alone would have

jurisdiction.

State courts are “presumptively competent” to

resolve questions of federal law under our

constitutional “system of dual sovereignty.” Tafflin v.

Levitt, 493 U.S. 455, 458 (1990). In ASARCO, the

Court emphasized that finding justiciability based on

“concrete injury to the parties who seek now for the

first time to invoke the authority of the federal

courts,” even though “the original plaintiffs lacked

standing to sue,” would avoid “disrespect to statecourt proceedings and judgments.” 490 U.S. at 612,

623. The decision avoided disrespecting the state

courts because the alternatives to exercising

jurisdiction in ASARCO would “render nugatory the

entire proceedings in the state courts.” Id. at 620.

29

Here, however, the alternative to (improperly)

exercising jurisdiction now is exercising jurisdiction

later—if the Colorado courts end up inflicting an

Article III injury that federal law protects Petitioners

against. Finding standing now, where a state court

has merely “allow[ed] the case to go forward,” would

“effect a drastic expansion of ASARCO’s reasoning,

extending it to cover an interlocutory ruling that

merely allows a trial to proceed.” Nike, 539 U.S. at 662

(Stevens, J., concurring). In such a case, the only

injury asserted by the party seeking review in this

Court is the burden of continuing to litigate in state

court. The state court’s decision has caused no

consequences outside of the litigation—and

Petitioners do not claim it has. Under those

circumstances, it disrespects state courts to

intervene.

This is a case that our federal system remits

completely to state court before final judgment.

Petitioners do not claim that Respondents could have

brought this action in federal court. Petitioners could

neither have removed it to federal court nor brought

their own federal declaratory judgment suit to

adjudicate their preemption defense. See supra p. 15.

Dismissal of their petition would not render the state

proceedings nugatory; it would respect the authority

of state courts to adjudicate the case in full before

federal review attaches. Federal justiciability

doctrines should not be expanded beyond their

longstanding

bounds

to

justify

premature

intervention in ongoing state court proceedings.

30

CONCLUSION

The petition should be dismissed for lack of

jurisdiction.

Respectfully submitted,

Jeffrey B. Simon

David C. Greenstone

SIMON GREENSTONE

PANATIER, PC

901 Main St, Suite 5900

Dallas, TX 75202

(214) 276-7680

August 3, 2026

Hyland Hunt

Counsel of Record

Dana Kaersvang

DEUTSCH HUNT PLLC

300 New Jersey Ave. NW

Suite 300

Washington, DC 20001

(202) 868-6915

hhunt@deutschhunt.com