Petition for Writ of Certiorari — Express Scripts, Inc., et al., Petitioners v. California
Supreme Court briefSep 16, 2025
Ask Donna
What actually matters in this document.
Text
No. ______
IN THE
Supreme Court of the United States
————
EXPRESS SCRIPTS, INC., ET AL.,
v.
Petitioners,
PEOPLE OF THE STATE OF CALIFORNIA,
Respondent.
————
On Petition for Writ of Certiorari to the United
States Court of Appeals for the Ninth Circuit
————
PETITION FOR WRIT OF CERTIORARI
————
BRIAN D. BOONE
CHRISTOPHER G. MICHEL
Counsel of Record
MATTHEW P. HOOKER
ALSTON & BIRD LLP
MICHAEL J. LYLE
1120 South Tyron St.
JONATHAN G. COOPER
Suite 300
ALEX VAN DYKE
QUINN EMANUEL URQUHART
Charlotte, NC 28203
& SULLIVAN, LLP
(704) 444-1000
1300 I Street, NW, 9th Fl.
D. ANDREW HATCHETT Washington, D.C. 20005
(202) 538-8308
ALSTON & BIRD LLP
1201 W. Peachtree St. christophermichel@
quinnemanuel.com
Suite 4900
Atlanta, GA 30309
(404) 881-7000
Counsel for Petitioners
[Additional Counsel Listed On Inside Cover]
September 16, 2025
LISA M. GEARY
COURTNEY DAUKAS
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
295 Fifth Ave.
New York, NY 10016
(212) 849-7000
Counsel for Petitioners
i
QUESTION PRESENTED
Like the statute at issue in Coinbase, Inc. v. Bielski,
599 U.S. 736 (2023), Section 1447(d) of Title 28 creates
a rare statutory exception to the usual rule that parties
may not appeal before final judgment. Section 1447(d)
permits the immediate appeal of a remand order in a
case removed under the federal officer removal statute,
28 U.S.C. § 1442(a). The question presented is:
Whether a remand order appealed under 28 U.S.C.
§ 1447(d), like the orders at issue in Coinbase, is subject
to an automatic stay pending appeal.
ii
CORPORATE DISCLOSURE STATEMENT
Petitioner Express Scripts Pharmacy, Inc. certifies
that it is a wholly owned subsidiary of Medco Health
Solutions, Inc., which is a wholly owned subsidiary of
Evernorth Health, Inc. Petitioner ESI Mail Pharmacy
Service, Inc. certifies that it is a wholly owned
subsidiary of Petitioner Express Scripts, Inc., which
certifies that it is a wholly owned subsidiary of
Evernorth Health, Inc. All interests in Evernorth
Health, Inc. are held by The Cigna Group, a publicly
traded company. The Cigna Group has no parent
corporation, and no publicly held corporation owns 10%
or more of its stock.
Petitioner OptumRx, Inc. states that UnitedHealth
Group Incorporated is its ultimate parent.
UnitedHealth Group Incorporated is publicly traded on
the New York Stock Exchange, and no publicly traded
entity owns 10% or more of UnitedHealth Group
Incorporated’s stock.
PARTIES TO THE PROCEEDINGS BELOW
Petitioners (defendants-appellants in the court of
appeals) are: Express Scripts Inc., ESI Mail Pharmacy
Service, Inc., Express Scripts Pharmacy, Inc., and
OptumRx, Inc.
Respondent (plaintiff-appellee in the court of
appeals) is: the People of the State of California, acting
by and through Los Angeles County Counsel Dawyn R.
Harrison.
Express Scripts Administrators, LLC, Medco
Health
Solutions,
OptumInsight,
Inc.,
and
OptumInsight Life Sciences, Inc. were defendants in
the district court.
iii
RELATED PROCEEDINGS
United States District Court (C.D. Cal.):
California v. Express Scripts, Inc., No. 2:23-cv08570-SPG (Feb. 28, 2024)
United States Court of Appeals (9th Cir.):
California v. Express Scripts, Inc., No. 24-1972
(June 2, 2025)
iv
TABLE OF CONTENTS
Page
INTRODUCTION ....................................................... 1
OPINIONS BELOW.................................................... 3
JURISDICTION ......................................................... 4
STATUTORY PROVISIONS INVOLVED ................. 4
STATEMENT OF THE CASE ................................... 5
A.
Legal Background .................................. 5
B.
Proceedings Below .................................. 8
REASONS THE WRIT SHOULD BE
GRANTED ...................................................... 12
I.
THE DECISION BELOW CREATES
AN
ACKNOWLEDGED
CIRCUIT
CONFLICT ON THE QUESTION
PRESENTED ................................................. 12
II.
THE DECISION BELOW IS WRONG ......... 16
III.
A.
Appeals Of Remand Orders Under
Section 1447(d) Are Subject To An
Automatic Stay Under The
Rationale of Coinbase ........................... 17
B.
The Decision Below Erroneously
Departs
From
Coinbase’s
Rationale ............................................... 20
THE
QUESTION
PRESENTED
WARRANTS REVIEW IN THIS CASE ....... 25
CONCLUSION .......................................................... 30
v
APPENDIX
APPENDIX A: ORDER, U.S. Court of Appeals
for the Ninth Circuit (June 2, 2025) ...................... 1a
APPENDIX B: ORDER, U.S. District Court
for the Central District of California
(Feb. 28, 2024) ...................................................... 19a
APPENDIX C: ORDER, U.S. Court of Appeals
for the Ninth Circuit (Aug. 29, 2025) .................. 32a
APPENDIX D: 28 U.S.C. § 1442 .............................. 34a
vi
TABLE OF AUTHORITIES
Cases
Page(s)
Acad. of Country Music v. Cont’l Cas. Co.,
991 F.3d 1059 (9th Cir. 2021) ................................. 16
Arizona v. Manypenny,
451 U.S. 232 (1981) ................................................... 6
Arkansas ex rel. Griffin v. Optum, Inc.,
No. 4:24-cv-00701, ECF 34
(E.D. Ark. Dec. 31, 2024) ....................................... 14
AT&T Mobility LLC v. Concepcion,
563 U.S. 333 (2011) ................................................. 19
Att’y Gen. v. Dow Chem. Co.,
2024 WL 3361395 (D.N.J. July 9, 2024) ................ 14
BP p.l.c. v. Mayor & City Council of Baltimore,
593 U.S. 230 (2021) .......................... 1, 3, 6, 18, 25, 26
Bielski v. Coinbase, Inc.,
87 F.4th 1003 (9th Cir. 2023) ................................. 29
California v. CaremarkPCS Health LLC,
2024 WL 3770326 (9th Cir. Aug. 13, 2024) ...... 20, 27
California v. Eli Lilly & Co.,
2023 WL 4681625 (C.D. Cal. July 14, 2023) .......... 14
People v. Express Scripts, Inc.,
2024 WL 5411144 (Cal. Super. Ct.
Dec. 17, 2024) ......................................................... 27
People v. OptumRx, Inc.,
2025 WL 2542288 (Cal. Ct. App. Sept. 4, 2025) .... 26
vii
City of Chicago v. B.P. P.L.C.,
No. 25-1916, ECF 73 (7th Cir. Aug. 1, 2025) ........ 15
City of Martinsville v. Express Scripts, Inc.,
128 F.4th 265 (4th Cir. 2025) ...... 1, 2, 3, 7, 10, 11, 13
16, 18, 19, 20, 21, 22, 25, 26, 28
City of Waco v. U.S. Fid. & Guar. Co.,
293 U.S. 140 (1934) ................................................. 16
Coinbase, Inc. v. Bielski,
599 U.S. 736 (2023) ................ 1, 2, 3, 7, 10, 13, 17, 18,
19, 20, 21, 22, 24, 26, 27, 28
Colorado v. Symes,
286 U.S. 510 (1932) ................................................. 17
County Bd. of Arlington County v. Express Scripts
Pharm., Inc.,
996 F.3d 243 (4th Cir. 2021) ..................................... 8
County of Westchester v. Express Scripts, Inc.,
No. 24-1639, ECF 72 (2d Cir. Sept. 6, 2024) ......... 15
County of Westchester v. Express Scripts, Inc.,
No. 24-1639, ECF 116.1 (2d Cir. Aug. 28, 2025) ... 11
Durham v. Lockheed Martin Corp.,
445 F.3d 1247 (9th Cir. 2006) ................................... 6
Elkins v. United States,
364 U.S. 206 (1960) ................................................. 20
FCC v. Consumers’ Rsch.,
145 S. Ct. 2482 (2025) ............................................ 29
Georgia v. Clark,
2023 U.S. App. LEXIS 34018
(11th Cir. Dec. 21, 2023) ........................................ 15
viii
GHP Mgmt. Corp. v. City of Los Angeles,
145 S. Ct. 2615 (2025) ............................................. 13
Griggs v. Provident Consumer Discount Co.,
459 U.S. 56 (1982) ............................................... 7, 17
Hammer v. U.S. Dep’t of Health & Hum. Servs.,
905 F.3d 517 (7th Cir. 2018)................................... 16
Hawai’i ex rel. Lopez v. CaremarkPCS Health, LLC,
2025 WL 1521396 (D. Haw. May 28, 2025) ............ 14
Hilton v. Braunskill,
481 U.S. 770 (1987) ................................................. 29
In re: 4/1/2025 Findings of Contempt as to ICE
Agent Sullivan,
No. 25-cv-10769, ECF 1 (D. Mass. Apr. 1, 2025) .. 28
In re Insulin Pricing Litig.,
2025 WL 1576940 (D.N.J. June 4, 2025) ............... 27
In re Nat’l Prescription Opiate Litig.,
2023 WL 166006 (N.D. Ohio Jan. 12, 2023) ............. 8
Jefferson County v. Acker,
527 U.S. 423 (1999) ................................................... 5
Kansas v. Pfizer, Inc.,
2025 WL 1548507 (D. Kan. May 30, 2025) ............ 14
Kentucky v. Express Scripts, Inc.,
No. 5:24-cv-303, ECF 71
(E.D. Ky. Aug. 27, 2025) ........................................ 14
Maryland v. 3M Co.,
130 F.4th 380 (4th Cir. 2025) ................................. 11
Maryland v. Soper,
270 U.S. 9 (1926) ................................................ 5, 25
ix
Mayor & Alderman of City of Nashville v. Cooper,
73 U.S. 247 (1867)...................................... 3, 5, 24, 27
McLaughlin Chiropractic Assocs., Inc. v.
McKesson Corp.,
606 U.S. 146 (2025) ................................................. 13
Mitchell v. Forsyth,
472 U.S. 511 (1985) ................................................. 24
Nken v. Holder,
556 U.S. 418 (2009) .................................. 2, 10, 13, 28
Plaquemines Parish v. Chevron USA, Inc.,
84 F.4th 362 (5th Cir. 2023) ............................. 15, 16
Price v. Johnson,
600 F.3d 460 (5th Cir. 2010) ............................... 7, 19
Puerto Rico v. Express Scripts, Inc.,
119 F.4th 174 (1st Cir. 2024)............................ 15, 20
Ramos v. Louisiana,
590 U.S. 83 (2020) ................................................... 21
Rivers v. Guerrero,
605 U.S. 443 (2025) ................................................. 13
Seminole Tribe v. Florida,
517 U.S. 44 (1996) ................................................... 21
Stanley v. City of Sanford,
145 S. Ct. 2058 (2025) ............................................. 13
State v. Meadows,
88 F.4th 1331 (11th Cir. 2023) ............................... 27
Tennessee v. Davis,
100 U.S. 257 (1879) ........................................ 3, 5, 19, 25
x
Town of Pine Hill v. 3M Co.,
2025 WL 994187 (S.D. Ala. Apr. 2, 2025) .............. 14
Trump v. CASA, Inc.,
145 S. Ct. 2540 (2025) ............................................ 22
Watson v. Philip Morris Cos.,
551 U.S. 142 (2007) ........... 1, 3, 5, 6, 17, 19, 24, 25, 27
Westchester County v. Mylan Pharms., Inc.,
737 F. Supp. 3d 214 (S.D.N.Y. 2024) ..................... 14
Willingham v. Morgan,
395 U.S. 402 (1969) ............................ 5, 17, 23, 24, 25
Wyoming v. Livingston,
443 F.3d 1211 (10th Cir. 2006) ............................... 28
Statutes and Rules
9 U.S.C. § 16 ............................................... 17, 18, 21, 22
28 U.S.C. § 1254 ............................................................. 4
28 U.S.C. § 1442 ...................................... 1, 4, 5, 6, 19, 25
28 U.S.C. § 1443 ......................................................... 4, 6
28 U.S.C. § 1447 .................................. 1, 2, 4, 6, 7, 10, 14
17, 18, 19, 20, 22, 24, 25, 26
28 U.S.C. § 1455 ........................................................... 15
Removal Clarification Act of 2011, Pub. L. 112–51,
§ 2(d), 125 Stat. 546 (Nov. 9, 2011) .......................... 6
Sup. Ct. R. 10 ................................................................. 2
Fed. R. App. P. 41 ....................................................... 11
xi
Other Authorities
157 Cong. Rec. 1371 (2011)...................................... 7, 19
157 Cong. Rec. 1372 (2011).......................................... 24
Texas Grand Jury Indicts Cheney, Gonzales of
Crime, Reuters (Nov. 18, 2008),
https://bit.ly/4gni0jL .............................................. 28
1
INTRODUCTION
Under 28 U.S.C. § 1442(a)(1), federal officers and
those “acting under” them may remove certain suits
related to their official conduct from state to federal
court. That critical protection shields those
defendants—and the federal government itself—from
“local prejudice” and “interference by hostile state
courts.” Watson v. Philip Morris Cos., 551 U.S. 142,
148, 150 (2007) (citations omitted). In 2011, Congress
enhanced those safeguards by creating a statutory
right to an immediate appeal of an order remanding to
state court a case removed to federal court under
Section 1442. 28 U.S.C. § 1447(d); see BP p.l.c. v.
Mayor & City Council of Baltimore, 593 U.S. 230,
235–36 (2021). The question presented is whether an
appeal under Section 1447(d) triggers an automatic
stay of the remand order pending appeal—or whether
litigation must instead proceed simultaneously in
state court and a federal appellate court absent a
discretionary stay.
That important and recurring question of federal
law is subject to an acknowledged circuit conflict. In
the first published decision addressing the issue, a
Fourth Circuit panel majority (Richardson &
Heytens, JJ.) concluded that an automatic stay is
required. City of Martinsville v. Express Scripts,
Inc., 128 F.4th 265, 272 (4th Cir. 2025). As the court
explained, the rationale of this Court’s decision in
Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023)—which
required a stay pending appeal of the denial of a
motion to compel arbitration, id. at 738—dictates that
result. In the federal officer removal context, as in the
arbitration context, Congress created a right to an
interlocutory appeal regarding the proper forum for
2
litigation to proceed. Martinsville, 128 F.4th at 270.
And in the federal officer removal context, as in the
arbitration context, the purpose of that statutorily
authorized appeal—avoiding litigation in the wrong
forum—“would be largely nullified” without a stay. Id.
at 269 (quoting Coinbase, 599 U.S. at 743). The
principles animating this Court’s decision in Coinbase
thus apply “just as forcefully” in the federal officer
removal context as “in Coinbase itself.” Id. at 270.
In the published decision below, however, a Ninth
Circuit panel (Murguia, C.J., Sanchez & H. Thomas,
JJ.) expressly rejected the Fourth Circuit’s position
and held that the discretionary standard of Nken v.
Holder, 556 U.S. 418 (2009), applies to a stay request
in a federal officer removal appeal. App. 4a, 7a.
Clarifying the sharpness of the split, the Ninth Circuit
adopted the Martinsville dissent’s position that
Coinbase “merely represents a carve-out in favor of
arbitration.” App. 17a–18a (quoting Martinsville, 128
F.4th at 275 (Wynn, J.)). That acknowledged circuit
conflict provides a paradigmatic basis for this Court’s
intervention. Sup. Ct. R. 10(a). There is no reason why
the treatment of federal officers or those acting under
them should differ between California and Virginia.
Review in this case is especially warranted because
the Ninth Circuit’s decision is wrong. Contrary to that
court’s reasoning, Coinbase made clear that it was not
adopting “a special, arbitration-preferring procedural
rule”; rather, this Court applied the “same stay
principles that courts apply in other analogous
contexts where an interlocutory appeal is authorized.”
599 U.S. at 746. Those principles support an automatic
stay here. Indeed, this Court has explained that
Congress amended Section 1447(d) precisely “to allow
3
appellate review before a district court may remand a
case to state court.” BP, 593 U.S. at 236 (emphasis
added).
The importance and recurring nature of the
question presented further weigh in favor of review.
The question arises frequently, with at least a dozen
courts addressing it in the past two years and
reaching conflicting results. See pp. 14–15, infra. The
question is also profoundly significant. As this Court
explained long ago, a “more important question can
hardly be imagined” than whether federal officers can
access a federal forum to assert federal defenses.
Tennessee v. Davis, 100 U.S. 257, 262 (1879). The Ninth
Circuit’s position exposes federal officers and those
acting under them to the very “harassing litigation in
the State courts” from which Congress enacted the
federal officer removal statute to shield them. Mayor
& Alderman of City of Nashville v. Cooper, 73 U.S.
247, 253 (1867); see Watson, 551 U.S. at 148.
The Ninth Circuit’s position also undermines the
“institutional” interests of courts and principles of
federalism by creating the prospect that state courts
“will waste scarce resources” adjudicating a case only
for a federal court to claw it back after a successful
appeal. Coinbase, 599 U.S. at 743. In short, “[t]wo
courts at once is one court too many.” Martinsville,
128 F.4th at 272. This Court should grant review and
reverse the flawed decision below.
OPINIONS BELOW
The amended opinion of the Ninth Circuit denying
a stay pending appeal (App. 1a–18a) is reported at 139
F.4th 763. The district court’s order granting remand
4
and denying a stay pending appeal (App. 19a–31a) is
not reported but is available at 2024 WL 841197.
JURISDICTION
The Ninth Circuit’s order denying a stay was
entered June 2, 2025, and amended June 6, 2025.
App. 1a. The order of the Ninth Circuit denying
rehearing was entered on August 29, 2025. App. 32a.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
The federal officer removal statute, 28 U.S.C.
§ 1442(a), is reproduced in full in the appendix to this
petition. As relevant here, it provides:
A civil action . . . that is commenced in a
State court and that is against or
directed to any of the following may be
removed by them to the district court of
the United States for the district and
division embracing the place wherein it
is pending: (1) . . . any officer (or any
person acting under that officer) of the
United States or of any agency thereof
. . . for or relating to any act under color
of such office[.]
The statute governing appeals from remand
orders, 28 U.S.C. § 1447(d), provides:
An order remanding a case to the State
court from which it was removed is not
reviewable on appeal or otherwise,
except that an order remanding a case to
the State court from which it was
removed pursuant to section 1442 or
5
1443 of this title shall be reviewable by
appeal or otherwise.
STATEMENT OF THE CASE
A. Legal Background
“Congress enacted the original federal officer
removal statute near the end of the War of 1812” and
has steadily expanded it since then. Watson, 551 U.S.
at 147; see id. at 147–49. “The purpose of all these
enactments is not hard to discern.” Willingham v.
Morgan, 395 U.S. 402, 406 (1969). The federal
government “can act only through its officers and
agents, and they must act within the States.” Davis,
100 U.S. at 263. “If, when thus acting, and within the
scope of their authority, those officers can be” sued “in
a State court, for an alleged offence against the law of
the State, yet warranted by the Federal authority
they possess” without any prospect of removal, the
“operations of the general government may at any
time be arrested at the will of one of its members.” Id.
The right of removal is thus “essential to the peace of
the nation, and to the vigor and efficiency of the
government.” Cooper, 73 U.S. at 253; see, e.g.,
Maryland v. Soper, 270 U.S. 9, 32 (1926). Indeed, this
Court has described the right as central to “the
possibility of the [federal] government’s preserving
its own existence.” Davis, 100 U.S. at 262.
The right of removal is not limited to federal
executive officers alone. The statute also applies to an
“officer of the courts of the United States” and
members of “either House of Congress.” 28 U.S.C.
§ 1442(a)(3)–(4); see, e.g., Jefferson County v. Acker,
527 U.S. 423, 433 (1999) (addressing removal by
federal judges). In addition, the statute applies to
6
entities “acting under” federal officers. 28 U.S.C.
§ 1442(a)(1); see Watson, 511 U.S. at 152–53. For all
those defendants, the availability of removal ensures
“an impartial setting” for the adjudication of issues—
often including an immunity defense—“free from local
interests or prejudice.” Arizona v. Manypenny, 451
U.S. 232, 242 (1981); see Watson, 511 U.S. at 150. And
for the government itself, the availability of removal
protects against the risk of “interference with its”
personnel and operations. Watson, 511 U.S. at 150;
see, e.g., Durham v. Lockheed Martin Corp., 445 F.3d
1247, 1253 (9th Cir. 2006) (“If the federal government
can’t guarantee its agents access to a federal forum if
they are sued or prosecuted, it may have difficulty
finding anyone willing to act on its behalf.”).
Congress’s most recent amendments to the federal
officer removal framework came in the Removal
Clarification Act of 2011. Pub. L. No. 112-51, 125 Stat.
545. Those amendments added language allowing
removal of claims not only “for” an act “under color of
[federal] office” but also “for or relating to” such an
act. 28 U.S.C. § 1442(a)(1) (emphasis added). Of
central relevance here, the amendments also created
a new statutory right to immediate appellate review of
a district court order remanding a case removed
under the federal officer removal statute. See BP, 593
U.S. at 235–36. Specifically, Congress amended 28
U.S.C. § 1447(d) to authorize appeals of orders
remanding a case to state court after it has been
“removed pursuant to section 1442.”* The legislative
Section 1447(d) also permits interlocutory appeals from
remand orders in cases removed under 28 U.S.C. § 1443, which
authorizes the removal of any case “(1) [a]gainst any person who
*
7
record indicates that the amendments were intended
in part to correct a decision that subjected a sitting
member of Congress to harassing and burdensome
state-court litigation while her appeal of a remand
order was pending. See 157 Cong. Rec. 1371 (2011)
(citing Price v. Johnson, 600 F.3d 460 (5th Cir. 2010)).
Congress created Section 1447(d)’s new right to
immediate appeal against the backdrop of Griggs v.
Provident Consumer Discount Co., 459 U.S. 56 (1982),
which recognized that such an appeal typically
“divests the district court of its control over those
aspects of the case involved in the appeal.” Id. at 58.
As this Court explained in Coinbase, when the
question in an interlocutory appeal is whether a case
can proceed in federal court at all—rather than being
sent to another forum—“the entire case is essentially
‘involved in the appeal,’” and “the district court must
stay its proceedings” during the appeal unless
Congress has provided contrary direction. Coinbase,
599 U.S. at 741 (quoting Griggs, 459 U.S. at 58); see id.
at 743–44. Numerous courts—including the Fourth
Circuit in its published decision in Martinsville—have
accordingly concluded that an automatic stay applies
to an appeal of a remand order under Section 1447(d).
128 F.4th at 272; see p. 14, infra (collecting cases).
is denied or cannot enforce in the courts of such State a right
under any law providing for the equal civil rights of citizens of
the United States,” or “(2) [f]or any act under color of authority
derived from any law providing for equal rights.”
8
B. Proceedings Below
1. District Court Proceedings
Respondent—the Los Angeles County Counsel, on
behalf of and in the name of the People of the State of
California—filed this suit in California Superior
Court. App. 4a–5a. The suit asserts a single claim for
public nuisance under California law against various
entities that provide pharmacy benefit management
(PBM) and mail-order pharmacy services for private
and governmental clients. Id. The complaint alleged
that petitioners contributed to a public nuisance by,
among other things, purportedly placing opioid
medications on their formularies with preferred
status in exchange for manufacturer rebates and
failing to adequately monitor for, identify, and refuse
to fill suspicious prescriptions in Los Angeles County.
App. 20a. Dozens of cases involving similar allegations
have been removed to federal court under the federal
officer removal statute. See, e.g., County Bd. of
Arlington County v. Express Scripts Pharmacy, Inc.,
996 F.3d 243, 257 (4th Cir. 2021) (reversing grant of
remand motion in similar case); In re Nat’l
Prescription Opiate Litig., 2023 WL 166006 (N.D.
Ohio Jan. 12, 2023) (denying remand motions in the
prescription opioid multi-district litigation (MDL)).
Petitioners timely removed this case to the U.S.
District Court for the Central District of California
under the federal officer removal statute. App. 5a, 20a.
The notice of removal explained that petitioners acted
under federal officers by providing PBM and mailorder pharmacy services to federal agencies,
including the U.S. Department of Defense, the
Department of Veterans Affairs, and Office of
9
Personnel Management, and that those services were
related to the County’s claims that petitioners’
formulary and dispensing practices created a public
nuisance. App. 5a, 27a.
After removal, the County filed an amended
complaint that purported to limit its allegations to
petitioners’ “conduct in the non-federal market” and
disclaim any relief based on their work for federal
health plans. App. 5a, 29a. Relying on its new
purported disclaimer, the County moved to remand
the case on the asserted ground that the federal
officer removal statute did not support jurisdiction.
App. 5a, 27a. Petitioners opposed the motion and also
argued that if the district court remanded the case, a
mandatory stay of the remand order during the
pendency of any appeal was required under the logic
of this Court’s decision in Coinbase. App. 5a, 30a.
The district court granted the County’s motion to
remand and denied petitioners’ request to stay the
remand order pending appeal. App. 30a. Without
addressing Coinbase, the court held that whether to
grant a stay in this context was a matter of discretion
and declined to issue one after applying a four-factor
balancing test. App. 30a–31a.
2. Court of Appeals Proceedings
Petitioners timely appealed the district court’s
remand order and denial of a stay. Because a recent
motions panel of the Ninth Circuit had denied a
motion for an automatic stay pending appeal in a
similar federal officer removal case, petitioners did
not file an independent stay motion. App. 3a–4a n.1.
Instead, petitioners asked the Ninth Circuit merits
panel to “address th[e] recurring issue” of whether a
10
mandatory stay is required before resolving whether
their removal was proper—an approach that the
Ninth Circuit ultimately approved. Id.
After briefing was complete but before argument,
the Fourth Circuit decided Martinsville. Applying
Coinbase, the court held that an automatic stay is
required in an appeal of an order remanding a case
removed under the federal officer removal statute.
Martinsville, 128 F.4th at 270–71. The court explained
that Coinbase’s reasoning applies “just as forcefully”
to appeals of remand orders under the federal officer
removal statute. Id. at 270. “[I]n both situations,” the
court reasoned, Congress has expressly authorized an
appeal, and “essentially the whole case is ‘involved in
the appeal.’” Id. (quoting Coinbase, 599 U.S. at 740).
The court added that nothing in Section 1447(d)’s text
“overrides the background Griggs principle.” Id. To
the contrary, anything but an automatic stay “would
‘largely defeat[] the point of the appeal.’” Id.
(alteration in original) (quoting Coinbase, 599 U.S. at
743). Judge Wynn dissented from the panel’s decision,
describing Coinbase as a “policy choice” by this Court
applicable only to arbitration cases. Id. at 275.
The Ninth Circuit merits panel in this case
adopted petitioners’ proposal to address the
“recurring” question whether a stay pending appeal is
warranted in appeals under Section 1447(d) before
resolving the appeal itself. Pet. App. 3a–4a n.1.
Acknowledging that the question had created
“uncertainty” after Coinbase, the panel expressly
disagreed with the Fourth Circuit’s resolution of the
question in Martinsville. App. 4a n.2. The panel
instead concluded that “the discretionary stay factors
outlined in Nken v. Holder”—rather than the
11
automatic-stay rule explained in Coinbase—apply to
“motions to stay litigation in the federal officer
removal context.” App. 3a–4a. The panel reasoned
that Coinbase did not abrogate Nken “beyond the
arbitration context,” in part because the “fundamental
differences between arbitration and litigation do not
exist as between litigation in state versus federal
courts.” App. 8a, 13a. The panel concluded by
adopting the language of Judge Wynn’s dissent as its
holding, stating that Coinbase “merely represents a
carve-out in favor of arbitration.” App. 17a–18a
(quoting Martinsville, 128 F.4th at 275 (Wynn, J.)).
After calling for a response, the Ninth Circuit
denied petitioners’ timely petition for panel rehearing
or rehearing en banc. App. 32a–33a. The panel then
issued an opinion affirming the remand order on
September 8, 2025. 2025 WL 2586648. That opinion
acknowledges a circuit conflict on whether a
disclaimer like the County’s can effectively defeat
removal. Id. at *13 (discussing Maryland v. 3M Co.,
130 F.4th 380 (4th Cir. 2025)). Petitioners intend to
seek panel or en banc rehearing of that decision and,
if necessary, a stay of the mandate pending a petition
for a writ of certiorari. Fed. R. App. P. 41. An
abeyance of the appeal or certiorari petition may also
be warranted pending this Court’s decision in Chevron
USA, Inc., v. Plaquemines Parish, No. 24-813 (cert.
granted June 16, 2025), which could provide guidance
relevant to the questions in the appeal. Indeed, the
Second Circuit recently held a similar appeal in
abeyance pending this Court’s resolution of
Plaquemines. County of Westchester v. Express
Scripts, Inc., No. 24-1639, ECF 116.1 (2d Cir. Aug. 28,
2025). The Ninth Circuit’s mandate on the underlying
12
appeal of the remand order is thus unlikely to issue for
a considerable period of time.
REASONS THE WRIT SHOULD BE GRANTED
The Ninth Circuit’s decision creates a square
circuit conflict on the significant and recurring issue
of whether remand orders in federal officer removal
cases are subject to an automatic stay pending appeal.
While the Fourth Circuit correctly applied the
reasoning of Coinbase to conclude that an automatic
stay of such orders is required, the Ninth Circuit
expressly disagreed, applying the discretionary stay
standard instead. That acknowledged conflict
between precedential decisions warrants review
under a straightforward application of this Court’s
certiorari criteria. The question is undeniably
important, as its resolution will dictate whether
federal officers and those acting under them—along
with federal judges and members of Congress—must
endure litigation before the very state courts from
which the statute shields them while pursuing appeals
that Congress expressly allowed. This case provides a
compelling vehicle to resolve the question because it
is cleanly presented through a published opinion and
because the extensive state-court litigation during the
pendency of the appeal vividly illustrates the costs of
simultaneous proceedings in state and federal court.
I. THE DECISION BELOW CREATES AN
ACKNOWLEDGED CIRCUIT CONFLICT ON
THE QUESTION PRESENTED
The circuit conflict on the question presented is
square and unmistakable. The Ninth Circuit held in a
published decision that “the discretionary stay factors
outlined in Nken”—rather than the automatic-stay
13
rule explained in Coinbase—apply to “motions to stay
litigation in the federal officer removal context.”
App. 4a. The Ninth Circuit acknowledged that its
decision conflicts with the Fourth Circuit’s published
decision on the same question in Martinsville—a
factually similar case involving the same claims and
many of the same defendants—in which the Fourth
Circuit concluded that Coinbase requires an
automatic stay of the remand order pending appeal.
App. 4a n.2; see Martinsville, 128 F.4th at 269.
Underscoring just how square the conflict is, the
Ninth Circuit concluded its decision by adopting the
dissenting opinion in Martinsville as its own holding.
App. 17a–18a (quoting Martinsville, 128 F.4th at 275
(Wynn, J.)).
That stark disagreement among federal courts of
appeal in published opinions is a paradigmatic basis
for this Court’s review. Sup. Ct. Rule 10(a); see, e.g.,
McLaughlin Chiropractic Assocs., Inc. v. McKesson
Corp., 606 U.S. 146, 166 (2025) (“Circuit splits followed
by this Court’s review are commonplace.”); Stanley v.
City of Sanford, 145 S. Ct. 2058, 2068 (2025) (“We took
this case to resolve a circuit split.”); Rivers v.
Guerrero, 605 U.S. 443, 449 (2025) (“We granted
certiorari to resolve [a] split.”); cf. GHP Mgmt. Corp.
v. City of Los Angeles, 145 S. Ct. 2615, 2616 (2025)
(Thomas, J., dissenting from denial of certiorari)
(noting the Court’s “obligation to fix” circuit splits).
Indeed, this Court has granted review to resolve
“disagreement among the Courts of Appeals”
specifically on the question of what standard applies
to a motion for a stay pending appeal. Coinbase, 599
U.S. at 740; see Nken, 556 U.S. at 423 (same).
14
There is no tenable prospect that the circuit
conflict presented here will be resolved without this
Court’s intervention. The Ninth Circuit denied
rehearing en banc in this case. And district courts in
other circuits have come out on both sides of the
split—with many of them following the Fourth
Circuit’s
decision
in
Martinsville—further
underscoring the depth of the divide and illustrating
the recurring nature of the question presented.
Compare, e.g., Kentucky v. Express Scripts, Inc., No.
5:24-cv-303, ECF 71 (E.D. Ky. Aug. 27, 2025)
(granting
stay
pending
appeal
based
on
Section 1447(d)); Kansas v. Pfizer, Inc., 2025 WL
1548507, at *3 (D. Kan. May 30, 2025) (following
Martinsville to hold that Coinbase principles require
an automatic stay of remand order pending appeal);
Hawai’i ex rel. Lopez v. CaremarkPCS Health,
L.L.C., 2025 WL 1521396, at *1 (D. Haw. May 28, 2025)
(“This Court . . . finds the Martinsville analysis to be
persuasive.”); Town of Pine Hill v. 3M Co., 2025 WL
994187 (S.D. Ala. Apr. 2, 2025) (granting stay);
Arkansas ex rel. Griffin v. Optum, Inc., No. 4:24-cv00701, ECF 34, at 10–11 (E.D. Ark. Dec. 31, 2024)
(granting stay “under the Supreme Court’s reasoning
in Coinbase”), with, e.g., Westchester County v. Mylan
Pharms., Inc., 737 F. Supp. 3d 214, 230–31 & n.13
(S.D.N.Y. 2024) (declining stay request and stating
that Coinbase is “hardly dispositive” as to whether
one is required); Att’y Gen. v. Dow Chem. Co., 2024
WL 3361395, at *9 (D.N.J. July 9, 2024) (declining to
apply the reasoning of Coinbase is this context
“[a]bsent clear guidance” from this Court); California
v. Eli Lilly & Co., 2023 WL 4681625, at *1 (C.D. Cal.
July 14, 2023) (denying stay).
15
When the Ninth Circuit called for a response to
petitioners’ rehearing petition, the County attempted
to minimize the circuit conflict by contending that it
was lopsided because other courts of appeals have also
denied stays pending appeal. See Resp. C.A. Reh’g
Opp. 8 n.2, 12; see also App. 4a n.2. But none of those
courts has issued a precedential decision addressing
the question. And most decisions denying stays have
come through summary orders “without any
analysis”—an understandable pattern given that the
issue is often raised through emergency motions.
Martinsville, 128 F.4th at 270 n.4; see, e.g., City of
Chicago v. B.P. P.L.C., No. 25-1916, ECF 73 (7th Cir.
Aug. 1, 2025) (unpublished order denying stay);
Puerto Rico v. Express Scripts, Inc., 119 F.4th 174,
184 n.3 (1st Cir. 2024) (referencing unpublished order
denying stay); County of Westchester, supra ECF 72
(2d Cir. Sept. 6, 2024) (unpublished order denying
stay); Plaquemines Parish v. Chevron USA, Inc., 84
F.4th 362, 378 (5th Cir. 2023) (vacating district court’s
order granting stay pending appeal without
addressing Coinbase). Other than the decision below,
the only court of appeals decision rejecting a Coinbase
argument with any reasoning is the nonprecedential
summary order in Georgia v. Clark, 2023 U.S. App.
LEXIS 34018 (11th Cir. Dec. 21, 2023). But that order
came in a criminal prosecution removed under 28
U.S.C. § 1455, which—unlike any provision at issue
here—explicitly provides that “a notice of removal”
does not bar “the State court in which such
prosecution is pending from proceeding further.” 28
U.S.C. § 1455(b)(3). Thus, the summary orders relied
on by the County do not diminish the basis to review
the square conflict between the precedential decisions
of the Fourth and Ninth Circuits. If anything, they
16
underscore the recurring nature of the question
presented and the need for this Court to resolve it.
The County also tried to distinguish this case from
Martinsville because the remand order here was
transmitted to the state court before the filing of the
notice of appeal, while the remand order in
Martinsville was transmitted after the filing of the
notice of appeal. See Resp. C.A. Reh’g Opp. 7–8. But
the Ninth Circuit did not rely on that irrelevant
ministerial distinction; the panel did not even mention
the timing of the transmittal of the remand order.
That is likely because there is no meaningful dispute
that a federal court can stay a remand order after it
has been transmitted, just as a federal court can recall
a remand order after it has been transmitted. Indeed,
courts routinely do so when they reverse remand
orders on appeal. See, e.g., Plaquemines, 84 F.4th at
367; Acad. of Country Music v. Cont’l Cas. Co., 991
F.3d 1059, 1070 (9th Cir. 2021); Hammer v. U.S. Dep’t
of Health & Hum. Servs., 905 F.3d 517, 525 (7th Cir.
2018); see also City of Waco v. U.S. Fid. & Guar. Co.,
293 U.S. 140, 142–43 (1934). The timing of the remand
transmittal thus has no connection to the proper
resolution of the question presented or the conflict
among the circuits in answering that question.
II. THE DECISION BELOW IS WRONG
The need for review is especially clear because the
Ninth Circuit’s decision is wrong. As the Fourth
Circuit recognized, this Court’s reasoning in Coinbase
applies “just as forcefully” in the federal officer
removal context as “in Coinbase itself.” Martinsville,
128 F.4th at 270. The Ninth Circuit’s contrary holding
contradicts not only this Court’s rationale in Coinbase
17
but also its repeated instruction that federal officer
removal should receive a “broad” rather than
“narrow, grudging interpretation” given its
importance to the federal system. Willingham, 395
U.S. at 406; see, e.g., Watson, 551 U.S. at 147;
Colorado v. Symes, 286 U.S. 510, 517 (1932).
A. Appeals Of Remand Orders Under Section
1447(d) Are Subject To An Automatic Stay
Under The Rationale of Coinbase
Remand orders in federal officer removal cases are
subject to an automatic stay pending appeal based on
the logic of this Court’s decision in Coinbase. There,
the Court held that a stay is required when a litigant
appeals the denial of a motion to compel arbitration
under the statutory right to interlocutory appeal
created by 9 U.S.C. § 16(a). 599 U.S. at 738. To reach
that conclusion, the Court relied on three basic
premises: First, under the Griggs principle, an
“appeal, including an interlocutory appeal, ‘divests the
district court of its control over those aspects of the
case involved in the appeal.’” Id. at 740 (quoting
Griggs, 459 U.S. at 58). Second, where the question in
an interlocutory appeal is what forum “the case
belongs in, . . . the entire case is essentially ‘involved
in the appeal,’” and the district court lacks jurisdiction
to do anything other than “stay its proceedings while
the interlocutory appeal” proceeds. Id. at 741. And
third, while Congress can by statute preclude such a
stay—and has done so in other statutes authorizing
interlocutory appeals—“absent contrary indications,
the background Griggs principle . . . requires an
automatic stay of district court proceedings that
relate to any aspect of the case involved in the appeal.”
Id. at 744 & n.6 (collecting statutes precluding stays).
18
That same reasoning applies equally to appeals of
remand orders in cases removed under the federal
officer removal statute. Martinsville, 128 F.4th at 270.
First, like 9 U.S.C. § 16(a), Section 1447(d) creates a
“rare statutory exception to the usual rule that parties
may not appeal before final judgment” by permitting
an interlocutory appeal that “divests the district court
of its control over those aspects of the case involved in
the appeal.” Coinbase, 599 U.S. at 740; see BP, 593
U.S. at 235–36. Second, as in the arbitrability appeals
addressed in Coinbase, “the question on appeal” in a
dispute over federal officer removal is which forum
“the case belongs in.” 599 U.S. at 741. In other words,
“whether ‘the litigation may go forward in the district
court’” or must be shifted to a different forum—
arbitration in Coinbase and state court in this case—
“‘is precisely what the court of appeals must decide.’”
Id. (citation omitted). And third, Congress has given
no “indication[]” that an automatic stay is
unwarranted in appeals of remand orders in cases
removed under the federal officer statute. Id. at 744.
Section 1447(d) is thus unlike statutory schemes in
which Congress has expressly displaced the automatic
stay requirement. Id. at 744 n.6 (collecting examples).
To the contrary, Congress’s 2011 amendment to
Section 1447(d) was designed “to allow appellate
review before a district court may remand a case
[removed under the federal officer statute] to state
court,” which indicates that state-court proceedings
should not continue before the appeal concludes. BP,
593 U.S. at 236 (emphasis added).
If anything, the statutory objective underlying
interlocutory appeals in the federal officer removal
context supports an automatic stay even more so than
19
in the arbitration context addressed in Coinbase.
While the statute at issue in Coinbase reinforced a
“federal policy favoring arbitration,” AT&T Mobility
LLC v. Concepcion, 563 U.S. 333, 339 (2011) (citation
omitted), the federal officer removal statute advances
the federal government’s far more profound interest
in “preserving its own existence,” Davis, 100 U.S. at
262—including by ensuring that entities acting under
federal officers are protected against harassment and
disruption by hostile state courts, see Watson, 551
U.S. at 150. That critical interest “would be largely
nullified” without a stay pending appeal because
defendants would have to litigate before the very state
courts from which Congress enacted the federal
officer removal statute to shield them. Coinbase, 599
U.S. at 743. The rule adopted in this case, moreover,
will apply not only to private entities acting under
federal officers but also to federal officers themselves,
federal judges, and members of Congress. 28 U.S.C.
§ 1442(a)(1), (3)–(4). Indeed, Congress amended
Section 1447(d) in 2011 partly in response to a decision
allowing a sitting member of Congress to face
burdensome state-court litigation during her appeal of
the remand decision. See 157 Cong. Rec. 1371 (citing
Price, 600 F.3d 460).
Finally, as in Coinbase, an automatic stay is
necessary in federal officer removal cases from the
judiciary’s “institutional perspective.” 599 U.S. at 743.
Without an automatic stay of a remand order pending
appeal, litigation will typically continue in state court
while the appeal unfolds in federal court. If the appeal
succeeds, the federal court will have to claw the case
back, resulting in a “waste” of the state court’s “scarce
judicial resources.” Id.; see Martinsville, 128 F.4th at
20
267 (describing the “havoc of multiple courts taking
actions in the same case, on the same issues, at the
same time”). That is exactly what has happened in
federal officer removal cases in which courts have
denied stays of the remand orders pending appeal,
only for the remand orders to be reversed and the case
clawed back after months of litigation in state court.
See, e.g., Puerto Rico, 119 F.4th at 184; California v.
CaremarkPCS Health LLC, 2024 WL 3770326, at *1
(9th Cir. Aug. 13, 2024). An automatic stay pending
appeal avoids such a potentially “detrimental result,”
which would produce unnecessary jurisdictional
tension between state and federal courts. Coinbase,
599 U.S. at 743; cf. Elkins v. United States, 364 U.S.
206, 221 (1960) (“The very essence of a healthy
federalism depends upon the avoidance of needless
conflict between state and federal courts.”).
The Fourth Circuit got all of that right in
Martinsville. As it correctly explained, “[t]he
rationale of Coinbase applies” fully to remand orders
in federal officer removal cases appealed under
Section 1447(d). Martinsville, 128 F.4th at 271. That
application of Coinbase is important but limited—only
in the “rare” situations in which all three of the factors
described in Coinbase are present will a mandatory
stay pending appeal be required. Coinbase, 599 U.S.
at 740; see Martinsville, 128 F.4th at 270 n.3.
B. The Decision Below Erroneously Departs
From Coinbase’s Rationale
The decision below rejected the Fourth Circuit’s
position in Martinsville and contradicted this Court’s
reasoning in Coinbase by holding that remand orders
in federal officer removal cases are subject to
21
discretionary stays under Nken rather than automatic
stays. The Ninth Circuit offered five rationales for
departing from Coinbase. None has merit.
First, the Ninth Circuit concluded that Coinbase
was “concerned only [with] stays in the context of
arbitration” and should be limited “to the arbitration
context.” App. 8a; see App. 17a–18a (stating that
Coinbase “merely represents a carve-out in favor of
arbitration”) (quoting Martinsville, 128 F.4th at 275
(Wynn, J., dissenting)). That fundamentally misreads
Coinbase and misunderstands the role of this Court’s
precedent. To be sure, the Court in Coinbase decided
only the case before it, which involved whether a stay
is required in an appeal under 9 U.S.C. § 16(a). But
the “rationale” of Coinbase, “not only the result,”
governs future cases. Seminole Tribe v. Florida, 517
U.S. 44, 66–67 (1996); see, e.g., Ramos v. Louisiana,
590 U.S. 83, 104 (2020) (“It is usually a judicial
decision’s reasoning—its ratio decidendi—that allows
it to have life and effect in the disposition of future
cases.”); id. at 125 n.6 (Kavanaugh, J., concurring in
part) (“In the American system of stare decisis, the
result and the reasoning each independently have
precedential force, and courts are therefore bound to
follow both the result and the reasoning of a prior
decision.”).
Indeed, in Coinbase itself, the Court explained
that it was applying the “same stay principles that
courts apply in other analogous contexts where an
interlocutory appeal is authorized, including qualified
immunity and double jeopardy.” 599 U.S. at 746
(emphases added). The Court emphasized, moreover,
that it was not creating “a special, arbitrationpreferring procedural rule.” Id. As the Fourth Circuit
22
correctly recognized, “[w]hile Coinbase was a case
about arbitration, this does not mean it was only a
case about arbitration.” Martinsville, 128 F.4th at
270–71. “Distinctions require meaningful differences
to matter; a [Supreme Court] decision’s rationale
binds [lower courts] even if some immaterial facts
differ,” and the “rationale of Coinbase applies here.”
Id. at 271.
Second, the Ninth Circuit erred in suggesting that
following Coinbase’s rationale in this case would
effectively overrule the discretionary approach to
stays pending appeal described in Nken. App. 8a. In
Coinbase, the Court applied “the background Griggs
principle,” which has long coexisted alongside Nken.
Coinbase, 599 U.S. at 743–44 (emphasis added); see id.
at 746–47 (discussing Nken). Applying the rationale of
Coinbase here would thus no more overrule Nken than
applying that rationale in Coinbase did. In short, an
automatic stay pending appeal applies in the “rare”
situations
recognized
in
Coinbase—including
statutorily authorized appeals under 9 U.S.C. § 16(a)
and Section 1447(d)—while Nken continues to provide
the default standard for stay requests. Id. at 740; see,
e.g., Trump v. CASA, Inc., 145 S. Ct. 2540, 2550, 2561–
62 (2025) (granting application for partial stay
pending appeal under Nken factors).
Third, the Ninth Circuit stated that “requiring an
automatic stay in the federal officer removal context
would implicate federalism concerns not at issue
where parties seek to compel arbitration.” App. 8a.
The court suggested that an automatic stay under
Coinbase would “deprive state courts of the power” to
stay a remanded case if they “think[] the defendants
. . . have a strong likelihood of success on appeal.”
23
App. 9a–10a. That position is badly mistaken. As “an
incident of federal supremacy,” the federal officer
removal statute is designed to deprive state courts of
power over federal officers and those acting under
them. Willingham, 395 U.S. at 405. The Ninth
Circuit’s rule empowering a state court to determine
whether such a defendant must endure discovery and
potentially trial based on whether the state court
thinks the defendant is likely to succeed on appeal
would “turn[] the removal statute on its head.” Id. As
explained above, moreover, federalism considerations
properly understood undermine rather than support
the Ninth Circuit’s position, which would produce
greater friction between federal and state courts by
requiring state courts to devote resources to litigation
that might be wasted. See pp. 19–20, supra.
Fourth, the Ninth Circuit identified “differences
between arbitration and litigation” that purportedly
illustrate why “an automatic stay rule is not
warranted in the federal officer removal context.”
App. 12a. The court suggested, for example, that a
federal officer wrongly facing litigation in state court
instead of federal court suffers a lesser hardship than
a defendant wrongly facing litigation in federal court
instead of arbitration. App. 13a. And the court opined
that the burden on a federal officer wrongly subjected
to “some early stages of litigation in state court”
would be relatively minimal because the officer could
eventually return to federal court before final
judgment. App. 14a n.6. But those differences do not
justify confining Coinbase to arbitration. It is not the
case, for instance, that the Federal Arbitration Act
serves a weightier end than that served by the federal
24
officer removal statute—the federal government’s
interest in “preserving its own existence.” App. 11a.
Nor do the protections created by the federal
officer removal statute exist only for trial. App. 14a
n.6. That cramped understanding disregards
Congress’s assessment of the importance of a federal
forum to a federal officer, which applies to early
stages of litigation such as “pre-suit discovery,” as
well as the ultimate merits. 157 Cong. Rec. 1372
(identifying “a district court ruling in Texas that the
Federal removal statute does not apply to a Texas law
involving pre-suit discovery” as part of the reason for
adopting the 2011 amendment). That is why this Court
has long described the protection of the federal officer
removal statute in terms of avoiding “harassing
litigation in the State courts,” Cooper, 73 U.S. at 253
(emphasis added), not just trial proceedings or an
adverse judgment. Indeed, the Court has consistently
explained that “[o]ne of the most important reasons
for removal is to have the validity of the defense of
official immunity tried in a federal court,” Watson, 551
U.S. at 150 (quoting Willingham, 395 U.S. at 405)—a
determination that typically comes at the beginning
rather than the end of the process, see, e.g., Mitchell
v. Forsyth, 472 U.S. 511, 526 (1985).
Fifth, the Ninth Circuit speculated that mandatory
stays of appeals from remand orders in cases removed
under the federal officer removal context “might
encourage gamesmanship.” App. 15a. But this Court
rejected that argument in Coinbase, explaining that
“the courts of appeals possess robust tools to prevent
unwarranted delay and deter frivolous interlocutory
appeals.” 599 U.S. at 745; see, e.g., 28 U.S.C. § 1447(c)
(“An order remanding the case may require payment
25
of just costs and actual expenses, including attorney
fees, incurred as a result of the removal.”). Although
the Ninth Circuit suggested that those tools would not
be effective in this context, it gave no reason why, and
none is apparent. The gamesmanship rationale is thus
another way in which the Ninth Circuit’s decision
“artificially restricts Coinbase” to arbitration, in
contradiction of this Court’s reasoning in Coinbase
itself. Martinsville, 128 F.3d at 268.
III.
THE QUESTION PRESENTED
RANTS REVIEW IN THIS CASE
WAR-
The question presented also satisfies this Court’s
other criteria for review because it is important,
frequently recurring, and cleanly presented.
The right of removal for federal officers and others
covered by Section 1442 is exceptionally important;
this Court once said that a “more important question
can hardly be imagined,” given the connection
between the right of removal and “the possibility of
the federal government preserving its own existence.”
Davis, 100 U.S. at 262; see, e.g., Willingham, 395 U.S.
at 405; Soper, 270 U.S. at 41–42. This Court has
sustained that view by granting review in many
federal officer removal cases over the years, see, e.g.,
Watson, 551 U.S. at 147–51 (collecting decisions)—
including Plaquemines this Term, No. 24-813.
The question presented here directly implicates
when and whether defendants can benefit from the
federal officer removal framework that Congress has
created, specifically the right to an immediate appeal
of remand orders added in the 2011 amendments to
Section 1447(d). See BP, 593 U.S. at 235–37. From the
perspective of a defendant removing a suit from a
26
potentially “hostile” state court who loses a remand
dispute in a federal district court, Watson, 551 U.S. at
148, there is a vast and consequential difference
between having the case stayed pending appeal and
having to return to state court while the appeal
unfolds. After all, the central purpose of the federal
officer removal statute is to allow defendants to avoid
potential “local prejudice” in state courts, id. at 150
(citation omitted), and the central purpose of the
interlocutory appeal right created in the 2011
amendments to Section 1447(d) is “to allow appellate
review before a district court may remand a case to
state court,” BP, 593 U.S. at 236 (emphasis added).
Yet without a stay, a defendant has to face the very
dangers that the statutory framework was created to
avoid—a result that defies “common sense” as well as
statutory design. Coinbase, 599 U.S. at 743; see
Martinsville, 128 F.4th at 270.
This case illustrates the harms that result from the
absence of an automatic stay pending appeal. While
this appeal has been pending in the Ninth Circuit for
roughly a year and a half without a stay, the parties
have proceeded simultaneously in state court with
jurisdictional discovery, extensive motion practice—
including demurrers to two amended complaints,
multiple hearings and conferences, a motion to
disqualify counsel, and a motion to quash—and even
an interlocutory state-court appeal. See People v.
Express Scripts, Inc., 23-ST-CV-20886 (Cal. Super.
Ct.); People v. OptumRx, Inc., 2025 WL 2542288 (Cal.
Ct. App. Sept. 4, 2025). Those significant issues are
being adjudicated before the County’s home courts,
which have (among other things) denied a demurrer
on petitioners’ federal preemption defenses. See
27
People v. Express Scripts, Inc., 2024 WL 5411144
(Cal. Super. Ct. Dec. 17, 2024). Not only does that
litigation inflict the very burden that the federal
officer removal statute exists to shield petitioners
against, see Watson, 551 U.S. at 148–51, but it will also
all be “waste[d]” if the Ninth Circuit or this Court
ultimately reverses the remand decision, Coinbase,
599 U.S. at 743.
That is exactly what happened in a recent case
brought by the County against some of petitioners
alleging illegal conduct in insulin pricing. After those
petitioners removed and the district court granted a
motion to remand, the Ninth Circuit declined to enter
an automatic stay pending appeal, and the state court
managed the case for over a year—holding hearings
and issuing rulings on defendants’ demurrers and a
motion to quash—before the Ninth Circuit vacated
the remand order. Caremark, 2024 WL 3770326, at *1.
The case was then transferred to the insulin-pricing
MDL, which denied the State’s renewed remand
motion and held the case was properly removed. See
In re Insulin Pricing Litig., 2025 WL 1576940, at *3–
15 (D.N.J. June 4, 2025).
As serious as those consequences have been, the
harm in other cases governed by the Ninth Circuit’s
position could be even worse. History is filled with
examples of federal officers and their delegates being
subjected to “harassing litigation” by states where
federal laws or programs are unpopular. Cooper, 73
U.S. at 253 (Union-installed mayor in Tennessee); see
Watson, 551 U.S. at 147–48 (tariff collectors in the
early 1800s and prohibition agents in the early 1900s);
Manypenny, 451 U.S. at 234–35 (border patrol agent);
State v. Meadows, 88 F.4th 1331, 1351–54 (11th Cir.
28
2023) (Rosenbaum, J., concurring) (providing
additional examples). It is not hard to imagine similar
examples today. See, e.g., In re: 4/1/2025 Findings of
Contempt as to ICE Agent Sullivan, No. 25-cv-10769,
ECF 1 (D. Mass. Apr. 1, 2025) (removal under federal
officer statute after state court found ICE agent in
contempt for arresting undocumented immigrant
leaving court proceeding); Wyoming v. Livingston,
443 F.3d 1211, 1225, 1230–31 (10th Cir. 2006) (removal
under federal officer statute by U.S. Fish and Wildlife
Service employee prosecuted for misdemeanor
trespass in state court that was “an attempt to hinder
a locally unpopular federal program”); see also Texas
Grand Jury Indicts Cheney, Gonzales of Crime,
Reuters (Nov. 18, 2008) (criminal indictment by state
grand jury of then-Vice President Cheney and others
for purported “organized criminal activity” related to
alleged abuse of inmates in private prisons),
https://bit.ly/4gni0jL. The need to establish a clear
rule to govern such sensitive and significant cases
strongly supports review.
In addition to its importance, the question
presented is worthy of review because it is frequently
recurring. Indeed, the Ninth Circuit issued a separate
published decision on the stay issue precisely because
the court recognized that the issue is “recurring” and
subject to “uncertainty.” App. 3a, 4a n.1. The Fourth
Circuit agreed that the question is an “active subject”
in the federal courts. Martinsville, 128 F.4th at 269.
Numerous courts of appeals have addressed the issue,
albeit largely through summary orders. App. 4a n.2.
And as detailed above, district courts are frequently
addressing the question and reaching conflicting
conclusions. See p. 14, supra. This Court has
29
previously granted certiorari to resolve recurring
questions regarding the standard for stays, see e.g.,
Coinbase, 599 U.S. at 739; Nken, 556 U.S. at 423;
Hilton v. Braunskill, 481 U.S. 770, 772 (1987), and
review is similarly warranted here.
Finally, this case offers a compelling vehicle to
resolve the question presented. It arises from a
published decision exclusively addressing the stay
issue, see App. 3a n.1, which is rare in this area given
that stays pending appeal are often sought in
emergency motions and decided through summary
orders. And while the Ninth Circuit recently issued a
decision affirming the district court’s remand order,
see 2025 WL 2586648, petitioners plan to seek
rehearing en banc, followed by a stay of the mandate
pending certiorari if necessary. Moreover, either the
Ninth Circuit or this Court may choose to hold
requests for further review on the underlying remand
issue until this Court’s decides Plaquemines, which
involves similar questions. See p. 11, supra. There is
accordingly no meaningful risk that the stay issue will
become moot during the pendency of this Court’s
review—and either this Court or the Ninth Circuit
could readily prevent that result in any event. Cf.
Bielski v. Coinbase, Inc., 87 F.4th 1003, 1008 n.1 (9th
Cir. 2023) (discussing the Ninth Circuit’s abeyance of
the merits decision in Coinbase pending this Court’s
review of the stay issue). Moreover, the automaticstay issue is one “capable of repetition, yet evading
review,” FCC v. Consumers’ Rsch., 145 S. Ct. 2482,
2496 n.1 (2025) (quotation omitted), given that timing
complications are inevitable in stay-related litigation.
At bottom, the question presented is exceptionally
30
important and worthy of review, and this Court should
resolve it in this case.
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
BRIAN D. BOONE
MATTHEW P. HOOKER
ALSTON & BIRD LLP
1120 South Tyron St.
Suite 300
Charlotte, NC 28203
(704) 444-1000
D. ANDREW HATCHETT
ALSTON & BIRD LLP
1201 W. Peachtree St.
Suite 4900
Atlanta, GA 30309
(404) 881-7000
CHRISTOPHER G. MICHEL
Counsel of Record
MICHAEL J. LYLE
JONATHAN G. COOPER
ALEX VAN DYKE
QUINN EMANUEL URQUHART
& SULLIVAN, LLP
1300 I Street, NW, 9th Fl.
Washington, D.C. 20005
(202) 538-8308
christophermichel@
quinnemanuel.com
LISA M. GEARY
COURTNEY DAUKAS
LISA
M. GEARY
QUINN
EMANUEL
URQUHART
C
OURTNEY
DAUKAS
& SULLIVAN, LLP
UINN Ave.
EMANUEL URQUHART
295QFifth
&
S
ULLIVAN
, LLP
New York, NY 10016
295849-7000
Fifth Ave.
(212)
New York, NY 10016
(212) 849-7000
Counsel for Petitioners
September 16, 2025
APPENDIX
APPENDIX TABLE OF CONTENTS
Page
APPENDIX A: ORDER, U.S. Court of Appeals
for the Ninth Circuit (June 2, 2025) ...................
1a
APPENDIX B: ORDER GRANTING PLAINTIFF’S MOTION TO REMAND, U.S. District
Court for the Central District of California
(February 28, 2024) .............................................
19a
APPENDIX C: ORDER, U.S. Court of Appeals
for the Ninth Circuit (August 29, 2025) .............
32a
APPENDIX D: 28 U.S.C. § 1442 .........................
34a
1a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
————
No. 24-1972
D.C. No. 2:23-cv-08570-SPG-PD
————
PEOPLE OF THE STATE OF CALIFORNIA,
acting by and through Los Angeles County
Counsel Dawyn R. Harrison,
Plaintiff - Appellee,
v.
EXPRESS SCRIPTS, INC.; ESI MAIL
PHARMACY SERVICE, INC.; EXPRESS SCRIPTS
PHARMACY, INC.; OPTUMRX, INC.,
Defendants - Appellants,
and
EXPRESS SCRIPTS ADMINISTRATORS, LLC,
MEDCO HEALTH SOLUTIONS, INC., OPTUMINSIGHT,
INC., OPTUMINSIGHT LIFE SCIENCES, INC.,
Defendants.
————
Appeal from the United States District Court
for the Central District of California
Sherilyn Peace Garnett, District Judge, Presiding
————
Argued and Submitted March 4, 2025
Pasadena, California
————
2a
Filed June 2, 2025
————
Before: Mary H. Murguia, Chief Judge, and Gabriel P.
Sanchez and Holly A. Thomas, Circuit Judges.
————
SUMMARY*
————
ORDER
Stay Pending Appeal
In an appeal from the district court’s order remanding a removed action to state court, the panel
affirmed the district court’s denial of defendants’
motion to stay the remand order pending appeal.
Defendants removed the action to federal court
under the federal officer removal statute. The district
court granted plaintiff’s motion to remand and denied
defendants’ stay motion. Declining to extend the logic
of Coinbase, Inc. v. Bielski, 599 U.S. 736 (2023),
which held that interlocutory appeals of denials of
motions to compel arbitration result in automatic
stays of district court litigation, the panel clarified
that in this Circuit, the discretionary stay factors
outlined in Nken v. Holder, 556 U.S. 418 (2009), still
control district courts and motions panels reviewing
motions to stay litigation in the federal officer
removal context. The panel disagreed with the
Fourth Circuit and agreed with other Circuits.
Applying the Nken factors, the panel held that the
*
This summary constitutes no part of the opinion of the
court. It has been prepared by court staff for the convenience of
the reader.
3a
district court did not abuse its discretion in denying
a stay.
COUNSEL
Louis M. Bograd (argued), Elizabeth Smith, and
Linda Singer, Motley Rice LLC, Washington, D.C.,
for Plaintiff-Appellee.
Christopher Michel (argued), Jonathan G. Cooper,
and Michael J. Lyle, Quinn Emanuel Urquhart &
Sullivan LLP, Washington, D.C.; Kiel Ireland and
Sage V. Heuvel, Quinn Emanuel Urquhart &
Sullivan LLP, Los Angeles, California; Charles B.
Straut II, Quinn Emanuel Urquhart & Sullivan LLP,
San Francisco, California; Omar Morquecho and
Kimberly K. Chemerinsky, Alexander Akerman,
Alston & Bird LLP, Los Angeles, California; for
Defendants-Appellants.
ORDER
MURGUIA, Chief Circuit Judge:
Since the Supreme Court decided, in Coinbase, Inc.
v. Bielski, 599 U.S. 736 (2023), that interlocutory
appeals of denials of motions to compel arbitration
result in automatic stays of district court litigation,
some uncertainty has arisen as to whether that
holding applies in other contexts. Defendants here
argue that Coinbase’s logic should extend to the
federal officer removal context and ask this Court to
issue an automatic stay of the district court’s order
remanding this case to state court “before deciding
the merits of this appeal.”1 We accept Defendants’
1
Defendants concede in their briefing that a motions panel of
this Circuit in a similar federal officer removal case immediately
prior to Defendants’ appeal denied a motion to stay litigation
pending appeal and cited to Nken v. Holder. See California v.
4a
call to address this issue expeditiously and separately
from the merits of their appeal. Today we clarify that
in this Circuit, the discretionary stay factors outlined
in Nken v. Holder, 556 U.S. 418, 434 (2009) still
control district courts and motions panels reviewing
motions to stay litigation in the federal officer
removal context.2
I.
This case involves a lawsuit brought originally in
state court by the Los Angeles County Counsel
CaremarkPCS Health LLC, Nos. 23-55597, 23-55599 (9th Cir.
Aug. 17, 2023) (order denying motion to stay lower court
proceedings). Accordingly, after the district court denied
Defendants’ motion to stay litigation pending appeal, Defendants did not file a separate application for a stay pending appeal
in this Circuit. Instead, they asked this panel to “address this
recurring issue.” We do so in this order affirming the district
court’s denial of stay and will issue our disposition on the merits
of whether Defendants’ removal pursuant to the federal officer
removal statute was proper.
2
All other circuits where this question has been raised, besides
the Fourth Circuit, appear to have reached the same conclusion.
See Gov’t of P.R. v. Express Scripts, 119 F.4th 174, 184 n.3 (1st
Cir. 2024); Cnty. of Westchester v. Express Scripts, Inc., No. 241639 (2d Cir. Sept. 6, 2024) (order denying motion to stay) (“[T]he
request to stay is DENIED because the Appellants are not
entitled to an automatic stay pending appeal under Coinbase.”);
Georgia v. Clark, No. 23-13368, 2023 U.S. App. LEXIS 34018, at
*2 (11th Cir. Dec. 21, 2023) (“Coinbase was limited to arbitration
proceedings, which are not at issue here.”); see also Plaquemines
Par. v. Chevron United States, Inc., 84 F.4th 362, 373‒ 78 (5th
Cir. 2023) (applying the Nken factors in considering whether to
grant the plaintiffs’ motion to lift and vacate the district court’s
stay order pending appeal of its remand order in a federal officer
removal case). The Fourth Circuit appears to be the first and only
circuit in the country to have extended Coinbase’s logic to the
federal officer removal context. City of Martinsville, Virginia v.
Express Scripts, Inc., 128 F.4th 265 (4th Cir. 2025).
5a
against pharmaceutical-entity defendants Express
Scripts, Inc.; ESI Mail Pharmacy Service, Inc.;
Express Scripts Pharmacy, Inc.; and OptumRx, Inc.
(“Defendants”). The People of the State of California
acting by and through Los Angeles County Counsel
(“Plaintiff” or “the People”) allege Defendants should
be held liable under California’s public nuisance
statute for contributing to the public nuisance of the
opioid epidemic through their prescription opioid
business practices. Defendants removed this case to
federal court under the federal officer removal statute on the theory that their business involves contracts with the U.S. Department of Defense, Department of Veterans Affairs, and Office of Personnel
Management to fill prescriptions for health plan
members, including opioid medications. The federal
officer removal statute permits a person “acting
under” a federal officer to remove claims “for or
relating to” the work for the federal officer. 28 U.S.C
§ 1442(a)(1). Plaintiff moved to remand and simultaneously amended its Complaint to include a disclaimer expressly limiting the scope of its claims to
“Defendants’ conduct in the non-federal market.”
The district court granted the People’s motion to
remand, noting that the “explicit disclaimer” in the
Amended Complaint eviscerated Defendants’ ground
for removal. Defendants then appealed that decision
pursuant to 28 U.S.C § 1447(d), which provides for
interlocutory appeals of remand orders based on lack
of subject-matter jurisdiction under the federal officer
removal statute. DeFiore v. SOC LLC, 85 F.4th 546,
554 (9th Cir. 2023). Defendants also moved in the
district court for a stay of the remand order pending
appeal. But the district court denied the motion
pursuant to Nken v. Holder, 556 U.S. 418 (2009) as
opposed to Coinbase, Inc. v. Bielski, 599 U.S. 736
6a
(2023). We affirm the district court’s denial of
Defendants’ motion to stay.
3
II.
This Court reviews a district court’s stay order for
abuse of discretion. In re PG&E Corp. Sec. Litig., 100
F.4th 1076, 1083 (9th Cir. 2024).
III.
In Coinbase, the Supreme Court held that a district
court is “require[d]” to enter an “automatic stay”
pending appeal when a party exercises its statutory
right under 9 U.S.C. § 16(a) (“The Federal Arbitration Act” or “FAA”) to an interlocutory appeal of the
denial of a motion to compel arbitration. 599 U.S. at
742–44. In so ruling, the Court relied on Griggs v.
Provident Consumer Discount Co., 459 U.S. 56 (1982),
which held that an “appeal, including an interlockutory appeal, ‘divests the district court of its control
over those aspects of the case involved in the appeal.’”
Id. at 740 (quoting Griggs, 459 U.S. at 58).4 Because
the question on appeal in the FAA context “is
whether the case belongs in arbitration or instead in
the district court, the entire case is essentially
‘involved in the appeal.’” Id. at 741 (quoting Griggs,
459 U.S. at 58). Accordingly, a stay of lower court
proceedings pending appeal is required when a
3
The district court cited to Golden Gate Rest. Ass’n. v. City
and Cnty. of San Francisco, 512 F.3d 1112, 1115 (9th Cir. 2008),
for the four stay factors, but they are essentially identical to
those the Supreme Court articulated in Nken. See Nken, 556
U.S. at 434
4
Coinbase also turned in part on preserving for deserving
defendants the unique benefits of arbitration as opposed to
litigation, which we will discuss in more depth below. See 599
U.S. at 743.
7a
district court denies a motion to compel arbitration.
Id.
Defendants argue that the Supreme Court’s reasoning in Coinbase should be extended to automatically stay litigation during the appeals of
remand orders in the federal officer removal context.
Because the question on appeal is whether the case
belongs in federal or state court, Defendants argue
that the entire case is essentially involved in the
appeal, and therefore an automatic stay of all proceedings is warranted under Coinbase’s application of
the Griggs principle. We disagree.5
Coinbase read in conjunction with relevant
Supreme Court precedent counsels in favor of limiting the Coinbase holding to the arbitration context.
Federalism concerns–– namely the limited jurisdiction of federal courts and the need to respect the
jurisdiction of state courts––distinguish federal
officer removal from the arbitration context. Moreover, the unique aspects of arbitration that automatic
stays help to preserve are not at issue in the federal
officer removal context. Finally, automatic stays of
federal officer removal appeals could lead to improper
delay tactics and do harm to principles of judicial
efficiency. We therefore reaffirm that Nken v. Holder
still controls district courts and motions panels
reviewing motions to stay litigation in the federal
officer removal context.
5
Indeed, Defendants’ broad reading of Coinbase and the
Griggs principle would ostensibly sweep in other areas of
litigation including, for instance, interlocutory appeals of
remand orders based on 28 U.S.C. § 1443 (the civil rights
removal statute), though Coinbase made no mention of other
such areas.
8a
A.
The Coinbase majority clearly stated that “the sole
question before [the] Court [was] whether a district
court must stay its proceedings while the interlocutory appeal on arbitrability is ongoing.” 599 U.S.
at 740. The Supreme Court did not receive briefing
on the unique federalism issues implicated by the
federal officer removal statute that differ in the
arbitration context. Instead, the issues and briefing
presented concerned only stays in the context of
arbitration and the unique aspects of the Federal
Arbitration Act. Nearly every paragraph of the
Coinbase opinion specifically references “arbitrability” or the provisions of the FAA.
Coinbase does not abrogate Nken v. Holder beyond
the arbitration context. While Coinbase represents a
carveout to the normal discretionary stay powers in
the arbitration context, the opinion does not overrule
Nken nor render its precepts inoperable in other
contexts. Here, we abide by the Supreme Court’s
instruction to “follow the case which directly controls”
and “leav[e] to [the Supreme] Court the prerogative
of overruling its own decisions.” Agostini v. Felton,
521 U.S. 203, 237 (1997) (quoting Rodriguez de
Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477,
484 (1989)).
B.
Crucially, requiring an automatic stay in the federal officer removal context would implicate federalism concerns not at issue where parties seek to
compel arbitration. Nken emphasizes that a stay is
an “intrusion into the ordinary processes of administration and judicial review” and accordingly “is not
a matter of right, even if irreparable injury might
9a
otherwise result.” 556 U.S. at 427 (quotations
omitted). Nken further held that a stay is an exercise
of judicial discretion, the propriety of which is dependent upon the circumstances of a particular case.
Id. The ability for federal courts to weigh various
factors before issuing the extraordinary remedy of a
stay is vital for the efficient administration of justice,
especially when the case involves another sovereign:
here, the State of California. See Cnty. of San Mateo
v. Chevron Corp., 32 F.4th 733, 764 (9th Cir. 2022).
The four discretionary stay factors courts must
weigh under Nken are “(1) whether the stay applicant
has made a strong showing that he is likely to
succeed on the merits; (2) whether the applicant will
be irreparably injured absent a stay; (3) whether
issuance of the stay will substantially injure the
other parties interested in the proceeding; and (4)
where the public interest lies.” 556 U.S. at 434. The
first two factors are the most critical. Id.
This discretion makes sense in the federal officer
removal context because courts should have the power to weigh these important factors before granting
stays that could infringe upon the rights of state
courts. See Younger v. Harris, 401 U.S. 37, 43 (1971).
Improper removals based on the federal officer
removal statute deprive state courts of jurisdiction
over cases that should rightfully be heard in their
fora, in violation of comity principles. Automatic
stays of litigation based on those improper removals
pursuant to Coinbase would only exacerbate federal
infringement on state courts’ rights. Nken’s discretionary stay power allows federal courts to “scrupulously confine their own jurisdiction” and ensure
they are giving “[d]ue regard for the rightful independence of state governments.” Cnty. of San Mateo,
10a
32 F.4th at 764 (quoting Healy v. Ratta, 292 U.S. 263,
270 (1934)).
Just as Nken affords federal courts discretion, so
too are state courts empowered to craft case-specific
solutions to balance the interests at stake when they
receive remanded cases. For instance, a state court
could decide to stay a remanded case if, in its opinion,
it thinks the defendants who removed based on the
federal officer removal statute do have a strong
likelihood of success on appeal. Coinbase’s automatic
stay rule applied to the federal officer removal context would deprive state courts of the power to make
those types of determinations. Federal removal jurisprudence should allow state courts to “actuate federal
courts,” which is what Nken’s discretionary stay
factors allow for here. Healy, 292 U.S. at 270.
Our federal and state court systems operate on the
bedrock principle of comity, which includes “a
continuance of the belief that the National Government will fare best if the States and their institutions
are left free to perform their separate functions in
their separate ways.” Younger, 401 U.S. at 44. The
federal government “anxious though it may be to
vindicate and protect federal rights and federal
interest” must always “endeavor[] to do so in ways
that will not unduly interfere with the legitimate
activities of the States.” Id. Here, an automatic stay
pending appeal of a federal officer removal remand
order would run afoul of the delicate balance of
federalism. The Supreme Court has repeated “time
and time again that the normal thing to do when
federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions.”
Id. at 45. A stay pending appeal raises concerns for
state court proceedings analogous to those at issue in
11a
Younger. See Nken, 556 U.S. at 428 (“A stay pending
appeal certainly has some functional overlap with an
injunction.”). This is why Nken counsels that stays
pending appeal are discretionary and today we reaffirm that they should remain so in the federal officer
removal context. See id. at 427.
C.
That arbitration is a fundamentally different form
of dispute resolution than litigation further demonstrates why Coinbase’s logic is inapposite in the
federal officer removal context. The FAA reflects a
“liberal federal policy in favoring arbitration” when
parties validly contract for it. Moses H. Cone
Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
24 (1983). Thus, the Supreme Court has long
interpreted the FAA as an exceptional statute
“designed to promote arbitration . . . ‘notwithstanding
any state substantive or procedural policies to the
contrary.’” AT&T Mobility LLC v. Concepcion, 563
U.S. 333, 345–46 (2011) (quoting Moses H. Cone, 460
U.S. at 24).
The federal officer removal statute, since its
original enactment near the end of the War of 1812,
has undergone a series of amendments. Watson v.
Philip Morris Cos., 551 U.S. 142, 147–48 (2007). But
its “basic purpose” remains “to protect the Federal
Government from the interference with its operations
that would ensue” if federal officers and agents could
be subject to trial and liability in potentially hostile
state courts based on actions “within the scope of
their authority.” DeFiore, 85 F.4th at 555 (cleaned
up). The statute thus “vindicates . . . the interests of
[the federal] government” in “preserving its own
existence.” Id. at 553 (cleaned up).
12a
Congress’s intent to promote arbitration via the
FAA “notwithstanding any state substantive or
procedural policies to the contrary,” Moses H. Cone,
460 U.S. at 24, stands in contrast to the long-held
principle that “removal statutes should be construed
narrowly in favor of remand to protect the jurisdiction of state courts.” Harris v. Bankers Life and
Cas. Co., 425 F.3d 689, 698 (9th Cir. 2005). While it is
true that the federal officer removal statue should be
“liberally construed,” Watson, 551 U.S. at 147, that
guidance must be understood in the broader context
of the United States’ dual sovereign court system,
where federal courts of limited jurisdiction must
“scrupulously confine their own jurisdiction to the
precise limits which the statute [authorizing removal
jurisdiction] has defined.” Healy, 292 U.S. at 270; see
DeFiore, 85 F.4th at 553–54 (clarifying that while the
language of the federal officer removal statue is
broad and must be liberally construed, it “is not
limitless” (quoting Watson, 551 U.S. at 147)).
Coinbase highlights some of the fundamental
differences between arbitration and litigation, 599
U.S. at 743, which illustrate both that Coinbase is
inapposite and that an automatic stay rule is not
warranted in the federal officer removal context. The
reason why parties may prefer to arbitrate as
opposed to litigate claims is due to “efficiency, less
expense, less intrusive discovery, and the like.” Id.
The continuation of proceedings in the district court
when stays are denied renders those features
“irretrievably lost.” Id. These unique features of
arbitration also help explain Coinbase’s contention
that a denial of a motion to compel arbitration makes
it so “the entire case is essentially ‘involved in the
appeal,’” necessitating an automatic stay of litigation
pending appeals of denials of arbitrability. Id. at 741
13a
(quoting Griggs, 459 U.S. at 58). Absent an automatic
stay in the arbitration context, the benefits of
arbitration Congress aimed to effectuate via the FAA
could be irreparably lost with each day a party is
wrongfully subjected to pretrial litigation and discovery. Id. at 743.
These fundamental differences between arbitration
and litigation do not exist as between litigation in
state versus federal courts. Though state and federal
courts may operate in slightly different ways, each
provide forums for litigation with roughly similar
levels of efficiency, expense, and comprehensive
discovery mechanisms. Having to continue litigation
in state court for a brief period pending appeal does
not cause defendants to “irretrievably lo[se]” any
benefits of the type lost when being wrongfully forced
to arbitrate.6 See id. at 743.
6
Indeed, the Supreme Court has historically understood the
federal officer removal statute as intending to shield federal
officers from biased trials in state court and accompanying
judgments. See Watson, 551 U.S. at 150. The long line of
precedent stretching back over a century interpreting the federal
officer removal statute does not discuss the right to avoid
pretrial discovery in state court but instead focuses on providing
a federal forum for trials and final judgments for federal officers.
Id. at 150–51. In one of the seminal cases first upholding the
constitutionality of an early iteration of the statue, the Supreme
Court said the history of the statute was “well known” and that
“[i]t gives the right to remove at any time before trial.” Tennessee
v. Davis, 100 U.S. 257, 268 (1879) (emphasis added). The main
concern was a biased state court judge presiding over an unfair
trial in front of a hostile local jury reflecting “local prejudice”
against unpopular federal laws or federal officials. See Watson,
551 U.S. at 150 (quoting Maryland v. Soper, 270 U.S. 9, 32
(1926)). Over time, the focus on shielding federal officers from
biased trials evolved to include giving “officers a federal forum in
which to litigate the merits of immunity defenses.” Jefferson
14a
It also bears noting that applying Nken, and not
Coinbase, to appeals of federal officer removal
remand orders such as the one here squares with
Griggs because the question on appeal here is
essentially a narrow venue question of whether the
case belongs in state or federal court. This question
differs from questions remaining before the state
court (assuming the case gets remanded) such as
whether the claims have merit, whether the parties
are entitled to the discovery they seek, and so on.
Proceedings on those questions would not interfere
with the appellate court’s review of the remand order,
nor risk inconsistent judgments. Those proceedings,
in other words, do not implicate the Griggs principle,
which addresses the “danger a district court and a
court of appeals would be simultaneously analyzing
the same judgment.” 459 U.S. at 59.
In sum, permitting early stage litigation in state
court would not preclude a defendant from returning
to federal court post-appeal. If removed, the defendant could then have its federal immunity defenses
adjudicated and, if necessary, a trial held in federal
court. See Watson, 551 U.S. at 150–51. This system
works, and we see no valid reason to alter it.7
Cnty. v. Acker, 527 U.S. 423, 447 (1999) (Scalia, J., concurring in
part and dissenting in part). But, having to go through some
early stages of litigation in state court does not deprive
defendants wrongly remanded from later having their immunity
defenses decided in federal court if they are ultimately permitted
to remove.
7
Analogies to other contexts involving interlocutory appeals
help to further illustrate the distinct concerns raised in the
federal officer removal context. Appeals from denials of qualified
immunity, absolute immunity, sovereign immunity, and
immunity under the Double Jeopardy Clause all immediately
divest the district court of jurisdiction over the entire case
15a
D.
Finally, adopting an automatic stay rule in the
federal officer context might encourage gamesmanship by defendants that would frustrate principles of
judicial economy. Any defendant seeking to delay
discovery could craft an argument for federal officer
removal then appeal a district court’s remand order.
This could cause plaintiffs languishing under mandatory stays to suffer harms in the form of lost
evidence, depleted funding, and diminished patience.
Coinbase instructs that courts have tools to avoid
such gamesmanship in the arbitration context. But
these proposed solutions do not support judicial
economy in the federal officer removal context. First,
the Supreme Court provides that district courts may
“certify that an interlocutory appeal is frivolous.”
Coinbase, 599 U.S. at 754 (citing Arthur Andersen
LLP v. Carlisle, 556 U.S. 624, 629 (2009)). While
district courts have the power to certify the question
of whether an interlocutory appeal is frivolous, they
seldom seem to use it because they have the discretion to simply assess the Nken factors before
against defendants because these immunities represent an
entitlement to avoid litigation altogether. Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). That entitlement extends even to
pretrial discovery. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)
(“Until this threshold immunity question is resolved, discovery
should not be allowed.”). Courts have not understood the federal
officer removal statute, by contrast, to shield defendants from
pre-trial litigation in toto. See Watson, 551 U.S. at 150 (quoting
Soper, 270 U.S. at 32); Tennessee, 100 U.S. at 268. The statute
instead aims to guarantee a federal forum for adjudication of
federal immunity defenses and trial on the merits. See Jefferson
Cnty. 527 U.S. at 447. Allowing some pretrial litigation to
continue on in state court pending federal interlocutory appeal of
the remand order does not ultimately frustrate this purpose.
16a
deciding whether to grant a stay. Sanctions provide
another option to punish frivolous appeals, see Fed.
R. App. P. 38; Arthur Andersen, 556 U.S. at 629, but
they are cumbersome for courts to impose and rarely
used. Accordingly, the discretionary stay system
already in place is superior for the purposes of
judicial economy.
IV.
The district court did not abuse its discretion in
applying the Nken factors to deny Defendants’ motion
to stay the litigation pending appeal.8 The district
court found that Defendants did not make a strong
showing that they were likely to succeed on the
merits in large part because Plaintiff’s valid and
comprehensive disclaimer eviscerated all basis for
federal officer removal jurisdiction. A court of appeals
assessing the likelihood of success on the merits for
the purposes of a stay pending appeal must take care
“not to prejudge the merits of the appeal” and need
not “address the merits in detail.” Doe #1 v. Trump,
957 F.3d 1050, 1062 (9th Cir. 2020).
Here, Plaintiff’s disclaimer appears to sever all
federal involvement from Plaintiff’s state law public
nuisance claim so as to make it impossible for
Defendants to satisfy the elements of the federal officer removal statute––that the entity seeking removal is (a) a person within the meaning of the statute;
8
The Ninth Circuit’s application of the Nken factors operates
on a “sliding scale,” such that “if there is a probability or strong
likelihood of success on the merits, a relatively low standard of
hardship is sufficient.” Golden Gate, 512 F.3d at 1116–19
(internal quotations and citations omitted). By contrast, “if the
balance of hardships tips sharply in favor of the party seeking
the stay, a relatively low standard of likelihood of success on the
merits is sufficient.” Id. at 1119 (cleaned up).
17a
(b) there is a causal nexus between its actions, taken
pursuant to a federal officer’s directions, and
plaintiff’s claims; and (c) it can assert a colorable
federal defense. Goncalves ex rel. Goncalves v. Rady
Child.’s Hosp. San Diego, 865 F.3d 1237, 1244 (9th
Cir. 2017) (internal citations omitted). 9 Defendants
have not addressed any hardship that would be
cognizable under Nken nor injury to others that
would occur in the absence of a stay. Finally, the
district court agreed with Plaintiff that the public
interest favored continuing with the litigation to
abate an ongoing public health crisis to which
Defendants are alleged to have contributed. Defendants did not, at this stage in the litigation,
attempt to counter Plaintiffs’ arguments based on
Nken. Accordingly, the district court did not abuse its
discretion in denying Defendants’ motion for a stay
pending appeal. Nken, 556 U.S. at 434; In re PG&E
Corp., 100 F.4th at 1083.
***
Defendants asked this Court to rule first and as
quickly as possible on their request to stay the lower
court proceedings pending review of their federal
officer removal arguments. Having done so, we affirm
that Nken, and not Coinbase, provides the proper
standard for assessing Defendants’ request for a
stay of the state court proceedings. “[T]he Supreme
Court’s decision in Coinbase does not constitute a
general withdrawal of the discretion that courts have
exercised for centuries—rather, it merely represents
a carve-out in favor of arbitration.” City of
9
Our forthcoming opinion will discuss the merits of
Defendants’ federal officer removal arguments and the viability
of Plaintiff’s disclaimer in greater depth.
18a
Martinsville, Virginia v. Express Scripts, Inc., 128
F.4th 265, 275 (4th Cir. 2025) (Wynn, J., dissenting).
We agree. Accordingly, we affirm the district court’s
denial of the motion to stay.
AFFIRMED.
19a
APPENDIX B
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
————
Case No. 2:23-cv-08570-SPG-PD
————
THE PEOPLE OF THE STATE OF CALIFORNIA,
acting by and through Los Angeles County
Counsel Dawyn R. Harrison,
Plaintiff,
v.
EXPRESS SCRIPTS, Inc., at al.,
Defendants.
————
ORDER GRANTING PLAINTIFF’S
MOTION TO REMAND [ECF NO. 32]
————
Before the Court is Plaintiff the People of the State
of California’s motion to remand to the Superior
Court of California for the County of Los Angeles.
(ECF No. 32). Having considered the parties’ submissions, the relevant law, the record in this case,
and the arguments of counsel during the hearing on
the motion, the Court GRANTS Plaintiff’s Motion
and remands this Action to Los Angeles County
Superior Court for all further proceedings.
I. BACKGROUND
On August 30, 2023, Plaintiff the People of the
State of California, acting by and through Los
Angeles County Counsel Dawyn R. Harrison, filed a
20a
complaint in the Superior Court of California for the
County of Los Angeles (“LASC”) against Defendants
Express Scripts, Inc., et al. (ECF No. 1-1 (“Compl.”)).
Plaintiff brings a single cause of action for public
nuisance under California Civil Code Sections 3479
and 3480. (Id. ¶¶ 260-273). Very generally, Plaintiff
alleges that Defendants engaged in knowingly unreasonable and/or unlawful conduct that substantially
contributed to the opioid epidemic in California.
Plaintiff claims that Defendants colluded with opioid
manufacturers to increase sales by giving the manufacturers’ opioids preferred status on their formularies and refusing to place limits on their approval
for use in exchange for receiving rebate and fee
payments. (Id. ¶¶ 16, 27-28, 100, 269-271). Additionally, Plaintiff claims that Defendants assisted
manufacturers by engaging in misleading opioid marketing efforts and operating mail order pharmacies
that dispensed opioids for prescriptions written by
high-volume prescribers, despite Defendants knowing
that these prescriptions were not being written for
medically legitimate purposes. (Id. ¶¶ 30, 46-47, 51,
53, 60, 97, 110, 220-222, 226-229, 269).
On October 11, 2023, Defendants timely removed
this action from LASC based on federal question
jurisdiction, including federal officer jurisdiction
under 28 U.S.C. § 1442(a). (ECF No. 1). On November 10, 2023, Plaintiff timely moved to remand.
(ECF No. 32 (“Mot.”)). Defendants opposed on
December 6, 2023. (ECF No. 35 (“Opp.”)). On
December 20, 2023, Plaintiff replied. (ECF No. 37
(“Reply”)).
21a
II. LEGAL STANDARD
The “[f]ederal courts are courts of limited jurisdiction.” Corral v. Select Portfolio Servicing, Inc.,
878 F.3d 770, 773 (9th Cir. 2017) (internal citation
omitted). Therefore, a removing party must demonstrate that an action falls within the categories of
federal subject matter jurisdiction to avoid remand.
See Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28,
33–34 (2002). Congress has provided that the federal
“district courts shall have original jurisdiction of all
civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. “The
general rule, referred to as the ‘well-pleaded complaint rule,’ is that a civil action arises under federal
law for purposes of § 1331 when a federal question
appears on the face of the complaint.” City of
Oakland v. BP PLC, 969 F.3d 895, 903 (9th Cir. 2020)
(quoting Caterpillar Inc. v. Williams, 482 U.S. 386,
392 (1987)).
However, another such basis for removal arises for
federal officers, who are permitted to remove civil
actions filed against them in state court if “the
United States or any agency thereof or any officer (or
any person acting under that officer)” is sued “in an
official or individual capacity, for or relating to
any act under color of such office . . . .” 28 U.S.C.
§ 1442(a)(1). While § 1442 is colloquially described as
“federal officer removal,” as the statute explains, it
may also extend to private persons under certain
circumstances. Id.
To remove an action to federal court pursuant
to federal officer jurisdiction under 28 U.S.C.
§ 1442(a)(1), a private person must establish: “(a) it is
a person within the meaning of the statute; (b) there
is a causal nexus between its actions, taken pursuant
22a
to a federal officer’s directions, and [the] plaintiff’s
claims; and (c) it can assert a colorable federal
defense.” Cnty. of San Mateo v. Chevron Corp., 32
F.4th 733, 755 (9th Cir. 2022) (hereinafter “Mateo
III”) (citing Riggs v. Airbus Helicopters, Inc., 939 F.3d
981, 986–87 (9th Cir. 2019)). To establish a sufficient
causal nexus, a private person 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.” Id. (citing Goncalves
ex rel. Goncalves v. Rady Child.’s Hosp. San Diego,
865 F.3d 1237, 1244–50 (9th Cir. 2017)). Federal
courts are generally directed to interpret § 1442
broadly in favor of removal. Goncalves, 865 F.3d at
1244. However, Defendants seeking removal “still
bear the burden of proving by a preponderance of the
evidence that the colorable federal defense and causal
nexus requirements for removal are factually
supported.” Saldana v. Glenhaven Healthcare LLC,
27 F.4th 679, 684 (9th Cir. 2022) (quoting Lake v.
Ohana Mil. Cmtys., LLC, 14 F.4th 993, 1000 (9th Cir.
2021).
III. DISCUSSION
Plaintiff challenges Defendants’ arguments for
removal on two bases. First, there is no federal
question jurisdiction in this Action because Plaintiff
raises a state law claim that does not require resolution of a federal question. (Mot. at 7). Second,
federal officer removal does not apply because
Plaintiff’s nuisance claim does not address the
administration of federal health plans. (Id. at 23).
23a
A. Federal Question Jurisdiction
In determining whether federal question removal is
proper, the Ninth Circuit has held that “[a]n action
arises under federal law only if federal law ‘creates
the cause of action’ or ‘a substantial question of
federal law is a necessary element.’” Coeur d’Alene
Tribe v. Hawks, 933 F.3d 1052, 1055 (9th Cir. 2019)
(quoting Morongo Band of Mission Indians v. Cal.
State Bd. of Equalization, 858 F.2d 1376, 1383 (9th
Cir. 1988)). Where federal law does not create the
cause of action, federal question jurisdiction will lie
only where “a federal issue is: (1) necessarily raised,
(2) actually disputed, (3) substantial, and (4) capable
of resolution in federal court without disrupting the
federal-state balance approved by Congress.” Gunn v.
Minton, 568 U.S. 251, 258 (2013). “‘When a claim can
be supported by alternative and independent theories—one of which is a state law theory and one of
which is a federal law theory—federal question jurisdiction does not attach because federal law is not a
necessary element of the claim.’” State of Nevada v.
Bank of Am. Corp., 672 F.3d 661, 675 (9th Cir. 2012)
(quoting Rains v. Criterion Sys., Inc., 80 F.3d 339,
346 (9th Cir. 1996)).
Here, Plaintiff’s cause of action arises under California law. (Compl. ¶¶ 260-273). The question in
dispute is, therefore, whether Plaintiff’s claim requires resolution of a federal issue. Defendants argue
that “whether the Removing Defendants owed and
breached duties under the” federal Controlled Substances Act (CSA) is “necessarily raised by Plaintiff’s
public nuisance claim. (Opp. at 27). Plaintiffs disagree, arguing that (1) the CSA does not provide a
federal cause of action, and (2) violation of the CSA is
not
24a
necessary to prove their public nuisance claim under
California law. (Mot. at 19). The Court here agrees
with Plaintiff.
Plaintiff’s complaint asserts a single cause of action
for public nuisance under California Civil Code
Sections 3479 and 3480. (Id. ¶¶ 260-273). In removing the case, Defendants rely on the Complaint’s
references to the federal CSA. For instance, Defendants reference Plaintiff’s allegation that “. . . Defendants are part of the closed system and are
required to comply with the provisions of the federal
Controlled Substances Act (“CSA”) and its implementing regulations and California law, including the
California Uniform Controlled Substances Act (CA
Health and Safety Code, Division 10).” (Compl.
¶ 215). Additionally, Plaintiff alleges “[a]s dispensers
of opioids, ESI and OptumRx were required to ensure
that adequate safeguards were in place to dispense
opioids in a safe and effective manner, provide
effective controls and procedures to deter and detect
theft and diversion, and comply with federal controlled substances laws, such as the requirement to
maintain effective controls against diversion. See,
e.g., 21 U.S.C. 801, et seq., CA Health and Safety
Code, Division 10, Uniform Controlled Substances
Act. ESI and OptumRx failed to meet these obligations.” (Id. ¶ 217).
As an initial matter, Plaintiff is correct to note that
the CSA does not provide a federal cause of action.
United States v. Real Prop. & Improvements Located
at 1840 Embarcadero, Oakland, California, 932 F.
Supp. 2d 1064, 1072 (N.D. Cal. 2013) (collecting cases
on this point). Thus, if there is federal question
jurisdiction in this case, then the Court must look to
the four-factor test for determining whether a federal
25a
court may exercise federal question jurisdiction over
a state law claim. Gunn v. Minton, 568 U.S. 251, 258
(2013). Because a federal issue is not “necessarily
raised” in this case, the Court declines to exercise
federal question jurisdiction.
A federal issue is necessarily raised when the issue
is “pivotal” to the case. Nevada v. Bank of Am. Corp.,
672 F.3d 661, 675 (9th Cir. 2012). Defendants argue
that Plaintiff’s state law claim necessarily raises a
federal question because “Plaintiff’s claim against the
Removing Defendants requires it to establish that
the Removing Defendants breached duties under
federal law by failing to prevent diversion and report
suspicious prescribers.” (ECF No. 1 at 25). Plaintiff
responds that they do not have to prove a federal
CSA violation to prove their public nuisance claim for
two reasons. First, “California law does not require
the People to prove violation of any statute or regulation to prove public nuisance.” (Mot. at 19).
Second, “even to the extent that unlawful conduct
may be relevant to the People’s public nuisance
claim, the People still need not prove violations of the
federal CSA.” Id. at 20.
Here, the Court agrees with Plaintiff that even to
the extent that the unlawful conduct may be relevant
to the public nuisance claim, Plaintiff does not need
to prove violations of the federal CSA to prevail
on the public nuisance claim. This is so because
California law independently requires retail pharmacies to maintain effective controls against diversion
of the controlled substances they dispense, Cal.
Health and Safety Code § 11106(d)(3), including by
reasonably ensuring that the prescriptions they fill
are issued for legitimate medical purposes during
professional treatment. Cal. Health and Safety Code
26a
§ 11153(a); 16 Cal. Code Reg. § 1761(b). Thus, the
Court agrees with Plaintiff that a federal issue is not
necessarily raised because Plaintiff can prevail on its
public nuisance claim by reference to duties imposed
by California law alone.
Additionally, even if Plaintiff relies on federal law
to establish Defendants’ duty—as elements of a
common law public nuisance claim—it does not
necessarily create a federal question. As the Supreme
Court has held, “[a] complaint alleging violation of a
federal statute as an element of a state cause of
action, when Congress has determined that there
should be no private, federal cause of action for the
violation, does not state a claim “arising under the
Constitution, laws, or treaties of the United States.”
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804,
817 (1986). The Supreme Court there reasoned that
Congress’s choice to provide “no federal remedy for
the violation of this federal statute is tantamount to a
congressional conclusion that the presence of a
claimed violation of the statute as an element of a
state cause of action is insufficiently ‘substantial’ to
confer federal-question jurisdiction.” Id. at 814.
Accordingly, the CSA is not proper grounds for the
removal of this action. Unless removal was appropriate pursuant to the federal officer removal statute,
remand is warranted.
B. Federal Officer Removal
Plaintiff next argues that its public nuisance claim
in the Complaint did not address the administration
of federal health plans. (Mot. 23). Because the
Complaint does not address this issue, the three
elements of federal officer removal are wholly inapplicable since “the People did not at the time of
27a
removal (and still do not) raise any claim addressing
Defendants’ administration of federal health plans.”
(Id. at 24). Second, Plaintiff argues that its postremoval Amended Complaint makes explicit that
their “state-law public nuisance claim does not address Defendants’ administration of federal government health care plans.” (Id. at 27).
By contrast, Defendants argue that “Express
Scripts is entitled to remove this case under
the federal officer removal statute, 28 U.S.C.
§ 1442(a)(1), because Plaintiff seeks to hold Express
Scripts liable for actions it is required to perform at
the direction and supervision of the federal government. Pursuant to a contract with the U.S. Department of Defense (DoD), Express Scripts PBM provides formulary services and other PBM services to
the DoD health care program known as TRICARE
. . . .” (ECF No. 1 at 4). Likewise, OptumRx is
entitled to remove this Case based on its PBM
contract with the federal Veterans Health Administration (VHA).” (Id. at 5).
To remove an action to federal court pursuant
to federal officer jurisdiction under 28 U.S.C.
§ 1442(a)(1), a private person must establish: “(a) it is
a person within the meaning of the statute; (b) there
is a causal nexus between its actions, taken pursuant
to a federal officer’s directions, and [the] plaintiff’s
claims; and (c) it can assert a colorable federal defense.” Mateo III, 32 F.4th at 757.
Here, the Court finds two problems with Defendants’ application of federal officer jurisdiction to this
Case. First, the Ninth Circuit has found federal
officer jurisdiction does not arise where a private
person “enters into an arm’s length business arrangement with the federal government or supplies it with
28a
widely available commercial products or services.”
Mateo III, 32 F.4th at 757. Similarly, mere “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.” Id. This remains true “even if the regulation is highly detailed
and even if the firm’s activities are highly supervised
and monitored.” Id. (quoting Watson v. Philip Morris
Co., Inc., 551 U.S. 142, 151 (2007)). Given these
limitations, courts may not interpret federal officer
jurisdiction in a way that would “expand the scope of
the statute considerably, potentially bringing within
its scope state-court actions filed against private
firms in many highly regulated industries.” Id.
Here, Defendants’ relationships with the federal
government closely resemble the contractual relationships at issue in Mateo III. In Mateo III, the Ninth
Circuit held that defendant energy companies were
not acting under a federal officer where the plaintiffs’
claims touched upon fuel supply and lease agreements with the federal government because these
were arm’s-length business arrangements, not the
private performance of federal government functions.
32 F.4th at 757-8. By Defendants’ own statement in
this case, “DoD is statutorily obligated to contract
with private entities and establish an ‘effective,
efficient, integrated pharmacy benefits program” for
TRICARE members.” (Opp. at 13). Although Express
Scripts is contractually obligated to “establish and
maintain a nationwide retail pharmacy network” in
accordance with standards set by the DoD, nothing in
Defendants’ papers suggests that these contracts
were anything but arm’s-length business arrangements. The fact that the contracts track “highly
detailed” regulations is inapposite for the question
whether federal officer removal applies.
29a
However, even if the contracts were not at armslength, courts in the Ninth Circuit have recognized
that when the federal officer removal statute is at
issue, a plaintiff may expressly waive claims that
would give rise to potential federal defenses. See, e.g.,
Fisher v. Asbestos Corp., 2014 WL 3752020 (C.D. Cal.
July 30, 2014); Lockwood v. Crane Corp., 2012 WL
1425157 (C.D. Cal. Apr. 25, 2012). If the plaintiff
does so, its waiver is “sufficient to eviscerate [a
defendant’s] grounds for removal.” Hukkanen v. Air
and Liquid Systems Corporation, 2017 WL 1217075.
at *2 (C.D. Cal. March 31, 2017); see also, People of
the State of Calif. v. Eli Lilly and Co., No. 2:23-cv01929-SPG-SK, 2023 WL 4269750, at *7 (C.D. Cal.
June 28, 2023) (“Plaintiff’s disclaimer, and later
repeated waivers, negate any causal nexus that
might otherwise have existed between Plaintiff’s
claims and the Removing Defendants’ conduct on
behalf of government officers.”). Indeed, this is the
case even if the waiver is submitted post-removal.
See Fisher v. Asbestos Corp. Ltd., No. 2:14-cv-02338WGY (FEMx), 2014 WL 3752020, at *4 (C.D. Cal. Jul.
30, 2014) (crediting post-removal waiver in federal
officer jurisdiction case).
Here, Plaintiff’s Amended Complaint includes an
explicit disclaimer. (ECF No. 31 ¶ 34) (“This lawsuit
relates to the Defendants’ conduct in the non-federal
market which resulted in the increased use, abuse,
and diversion of opioids. The allegations in this
Complaint do not include and specifically exclude
Defendants’ provision of PBM or mail order pharmacy services pursuant to contracts with the Department of Defense, the Office of Personnel Management, the U.S. Department of Veteran Affairs, the
Veterans Health Administration, or any other federal
agency. . . .). Because an explicit disclaimer is
30a
sufficient to “eviscerate” Defendants’ grounds for
removal, remand here is appropriate.
C. Stay of Execution
Lastly, Defendants request that the Court stay
execution of the remand order or mailing the remand
order to the state court for at least thirty days to
preserve the Defendants’ right to appeal, and then
maintain the stay if the Defendants do appeal. (Opp.
at 30). The Court declines this request for the
following reasons.
District courts possess discretionary power to stay
a case. Landis v. N. Am. Co., 299 U.S. 248, 254
(1936). However, in the context of a stay pending
appeal, district courts apply a standard akin to the
standard for a preliminary injunction. See Lair v.
Bullock, 697 F.3d 1200, 1203 n.2 (9th Cir. 2012).
Specifically, courts consider the following: “(1) whether the stay applicant has made a strong showing that
he is likely to succeed on the merits; (2) whether the
applicant will be irreparable injured absent a stay;
(3) whether issuance of the stay will substantially
injure the other parties interested in the proceeding;
and (4) where the public interest lies.” Golden Gate
Rest. Ass’n v. Cnty. of San Francisco, 512 F.3d 1112,
1115 (9th Cir. 2008) (internal citation omitted). In
the Ninth Circuit, these factors operate like a “sliding
scale,” such that “if there is a probability or strong
likelihood of success on the merits, a relatively low
standard of hardship is sufficient.” (Id. at 1116-19)
(internal citations omitted). By contrast, “if the
balance of hardships tips sharply in favor of the party
seeking the stay, a relatively low standard of likelihood of success on the merits is sufficient.” (Id. at
1119) (internal citations omitted).
31a
Looking at these factors, the Court concludes a stay
is not warranted here. Defendants have not made a
strong showing that they are likely to succeed on the
merits, for the same reasons highlighted above. Nor
have the Defendants addressed any possible hardship
in their moving papers. Meanwhile, Plaintiff argues
that the harm to the public interest from the delay is
great, since the “public nuisance the People seek to
abate is an ongoing public health crisis of unprecedented dimensions.” (Reply at 19). In light of this
and the above, the factors weigh against a stay.
IV. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion to
Remand is GRANTED. This action is REMANDED
to the Los Angeles County Superior Court.
IT IS SO ORDERED.
Dated: February 28, 2024
/s/ Sherilyn Peace Garnett___________
HON. SHERILYN PEACE GARNETT
UNITED STATES DISTRICT JUDGE
32a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed: Aug. 29, 2025]
————
No. 24-1972
D.C. No. 2:23-cv-08570-SPG-PD
Central District of California, Los Angeles
————
PEOPLE OF THE STATE OF CALIFORNIA,
acting by and through Los Angeles County
Counsel Dawyn R. Harrison,
Plaintiff - Appellee,
v.
EXPRESS SCRIPTS, INC.; et al.,
Defendants - Appellants,
and
EXPRESS SCRIPTS
ADMINISTRATORS, LLC; et al.,
Defendants.
————
ORDER
————
Before: MURGUIA, Chief Judge, and SANCHEZ and
H.A. THOMAS, Circuit Judges.
The panel has voted to deny the petition for panel
rehearing and to deny the petition for rehearing
en banc.
33a
The full court has been advised of the petition for
rehearing and rehearing en banc and no judge has
requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 40.
The petition for panel rehearing and the petition
for rehearing en banc are DENIED (Doc. 61).
34a
APPENDIX D
28 U.S.C. § 1442. Federal officers or agencies
sued or prosecuted
(a) A civil action or criminal prosecution that is
commenced in a State court and that is against or
directed to any of the following may be removed by
them to the district court of the United States for the
district and division embracing the place wherein it
is pending:
(1) The United States or any agency thereof or
any officer (or any person acting under that
officer) of the United States or of any agency
thereof, in an official or individual capacity, for
or relating to any act under color of such office or
on account of any right, title or authority claimed
under any Act of Congress for the apprehension
or punishment of criminals or the collection of
the revenue.
(2) A property holder whose title is derived
from any such officer, where such action or
prosecution affects the validity of any law of the
United States.
(3) Any officer of the courts of the United
States, for or relating to any act under color of
office or in the performance of his duties;
(4) Any officer of either House of Congress, for
or relating to any act in the discharge of his
official duty under an order of such House.
(b) A personal action commenced in any State
court by an alien against any citizen of a State who
is, or at the time the alleged action accrued was, a
civil officer of the United States and is a nonresident
of such State, wherein jurisdiction is obtained by the
35a
State court by personal service of process, may be
removed by the defendant to the district court of the
United States for the district and division in which
the defendant was served with process.
(c) Solely for purposes of determining the propriety
of removal under subsection (a), a law enforcement
officer, who is the defendant in a criminal prosecution, shall be deemed to have been acting under
the color of his office if the officer(1) protected an individual in the presence of
the officer from a crime of violence;
(2) provided immediate assistance to an individual who suffered, or who was threatened with,
bodily harm; or
(3) prevented the escape of any individual who
the officer reasonably believed to have com—
mitted, or was about to commit, in the presence
of the officer, a crime of violence that resulted in,
or was likely to result in, death or serious bodily
injury.
(d) In this section, the following definitions apply:
(1) The terms “civil action” and “criminal
prosecution” include any proceeding (whether or
not ancillary to another proceeding) to the extent
that in such proceeding a judicial order, includeing a subpoena for testimony or documents, is
sought or issued. If removal is sought for a
proceeding described in the previous sentence,
and there is no other basis for removal, only that
proceeding may be removed to the district court.
(2) The term “crime of violence” has the
meaning given that term in section 16 of title 18.
36a
(3) The term “law enforcement officer” means
any employee described in subparagraph (A), (B),
or (C) of section 8401(17) of title 5 and any
special agent in the Diplomatic Security Service
of the Department of State.
(4) The term “serious bodily injury” has the
meaning given that term in section 1365 of title
18.
(5) The term “State” includes the District of
Columbia, United States territories and insular
possessions, and Indian country (as defined in
section 1151 of title 18).
(6) The term “State court” includes the Superior Court of the District of Columbia, a court
of a United States territory or insular possession,
and a tribal court.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.