Petition for Writ of Certiorari — City of Brunswick, Georgia, Petitioner v. Honeywell International, Inc., et al.

Supreme Court briefSep 1, 2026

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No. _____

In the Supreme Court of the United States

CITY OF BRUNSWICK,

Petitioner,

HONEYWELL INTERNATIONAL, INC., ET AL.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

JOHN C. BELL, JR.

PAMELA S. JAMES

THE BELL FIRM

P.O. Box 1547

Augusta, GA 30903

ROBERT P. KILLIAN

KILLIAN LAW FIRM LLC

47 Professional Drive

Brunswick, GA 31520

BRIAN DONALD CORRY

MCQUIGG SMITH & CORRY

504 Beachview Drive, Ste. 3-D

St. Simons Island, GA 31522

MICHAEL F. QIAN

Counsel of Record

BONNIE K. ST. CHARLES

HAYNES AND BOONE, LLP

2801 N. Harwood Street, Ste. 2300

Dallas, TX 75201

(214) 651-5041

michael.qian@haynesboone.com

ANGELA M. OLIVER

HAYNES AND BOONE, LLP

888 16th Street, N.W., Ste. 300

Washington, DC 20006

CHLOE WARNBERG

HAYNES AND BOONE, LLP

1221 McKinney Street, Ste. 4000

Houston, TX 77010

QUESTION PRESENTED

This case concerns a frequently recurring scenario: A

defendant removes a state case to federal court on a

federal-officer-removal theory. The district court rejects

that theory and remands the case to state court. The

defendant appeals the remand order under 28

U.S.C. §1447(d).

The First, Second, Fifth, Seventh, Ninth, Tenth, and

D.C. Circuits have held that a stay pending appeal is

discretionary. The Fourth and Eleventh Circuits have

held that a stay pending appeal is automatic.

The question presented is:

Whether an appeal from a remand order under 28

U.S.C. §1447(d) triggers an automatic stay, barring the

state court from proceeding with the case.

PARTIES TO THE PROCEEDINGS BELOW

Petitioner is the City of Brunswick, Georgia, by and

through its Mayor and Board of Commissioners—the

plaintiff-appellee below.

Respondents are Honeywell International, Inc.

(NASDAQ: HON) and Georgia Power Company (a

subsidiary of Southern Company, NYSE: SO)—the

defendants-appellants below.

RELATED PROCEEDINGS

City of Brunswick v. Honeywell International, Inc.,

No. 23-13200 (11th Cir. Aug. 3, 2026) (reversing remand

order)

City of Brunswick v. Honeywell International, Inc.,

No. 2:22-cv-00132 (S.D. Ga. Sept. 1, 2023) (granting

motion to remand)

City of Brunswick v. Honeywell International, Inc.,

No. CE22-01086 (Ga. Super. Ct.)

City of Brunswick v. Honeywell International, Inc.,

No. 2:24-cv-00129 (S.D. Ga.)

iii

TABLE OF CONTENTS

QUESTION PRESENTED.......................................... i

PARTIES TO THE PROCEEDINGS BELOW .......... ii

RELATED PROCEEDINGS ...................................... ii

TABLE OF CONTENTS ........................................... iii

TABLE OF AUTHORITIES ........................................ v

PETITION FOR A WRIT OF CERTIORARI .............1

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTES INVOLVED .............................................1

INTRODUCTION ........................................................2

STATEMENT OF THE CASE ....................................4

Legal Background ..........................................4

Proceedings Below .........................................5

REASONS FOR GRANTING THE PETITION .........9

The decision below cements a square

and intractable circuit conflict ......................9

II.

The question presented is important

and warrants review in this case ................18

III. The decision below is wrong ........................26

CONCLUSION ..........................................................32

APPENDICES

Appendix A: Opinion of the U.S. Court of

Appeals for the Eleventh Circuit

(Aug. 3, 2026) .................................................................. 1a

Appendix B: Order of the U.S. District Court for

the Southern District of Georgia

(Sept. 1, 2023) ................................................................ 37a

Appendix C: 28 U.S.C. §1441 ............................................ 60a

Appendix D: 28 U.S.C. §1442 ............................................ 64a

Appendix E: 28 U.S.C. §1446 ............................................ 67a

Appendix F: 28 U.S.C. §1447 ............................................ 71a

TABLE OF AUTHORITIES

Page(s)

Cases

Arbaugh v. Y&H Corp.,

546 U.S. 500 (2006) ........................................... 25

Arkansas ex rel. Griffin v. Optum, Inc.,

No. 24-CV-00701, 2024 WL 6991679

(E.D. Ark. Dec. 31, 2024) .................................. 17

Att’y Gen. of N.J. v. Dow Chem. Co.,

No. 24-1753 (3d Cir. July 24, 2024).................. 17

BP p.l.c. v. Mayor & City Council

of Baltimore,

593 U.S. 230 (2021) ................................. 5, 20, 31

BP p.l.c. v. Mayor & City Council

of Baltimore,

No. 19A368 (U.S. Oct. 22, 2019) ................. 20, 31

California ex rel. Harrison v. Express

Scripts, Inc.,

139 F.4th 763 (9th Cir. 2025) ....... 2, 8-13, 16, 19,

23, 26-31

California ex rel. Harrison v. Express

Scripts, Inc.,

No. 24-1972 (9th Cir. Aug. 29, 2025)................ 18

Carlsbad Tech., Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009) ........................................... 20

Chevron USA Inc. v. Plaquemines Par.,

146 S. Ct. 1052 (2026) ....................................... 21

City of Brunswick v. Honeywell Int’l, Inc.,

No. 2:24-cv-00129 (S.D. Ga. Jan. 7, 2025).......... 6

City of Chicago v. BP p.l.c.,

No. 25-1916 (7th Cir. Aug. 1, 2025).................. 14

City of Martinsville v. Express Scripts, Inc.,

128 F.4th 265 (4th Cir. 2025) ....... 8, 9, 13-15, 19,

21-23, 26, 28, 30

City of Martinsville v. Express Scripts, Inc.,

No. 24-1912, 2025 WL 1039624

(4th Cir. Apr. 8, 2025) ....................................... 23

City of Martinsville v. Purdue Pharma, L.P.,

No. 24-CV-00002, 2024 WL 4218847

(W.D. Va. Sept. 16, 2024).................................. 22

In re Clark,

No. 23-7073 (D.C. Cir. Oct. 26, 2023) ............... 14

Coinbase, Inc. v. Bielski,

599 U.S. 736 (2023) ............ 3, 7, 9, 10, 12, 17, 20,

26, 28-30

County of Westchester v. Express Scripts, Inc.,

No. 24-1639 (2d Cir. Sept. 6, 2024) .................. 14

Doe v. Centerville Clinics Inc.,

No. 23-2738 (3d Cir. Dec. 21, 2023) .................. 18

vii

Express Scripts, Inc. v. California,

No. 25-327 (U.S. Dec. 9, 2025) .......................... 16

Georgia v. Clark,

No. 23-13368 (11th Cir. Dec. 21, 2023) ............ 17

Gov’t of P.R. v. Express Scripts, Inc.,

119 F.4th 174 (1st Cir. 2024) ...................... 14, 22

Griggs v. Provident Consumer Disc. Co.,

459 U.S. 56 (1982) ............................... 3, 7, 12, 28

Healy v. Ratta,

292 U.S. 263 (1934) ....................................... 5, 27

Hilton v. Braunskill,

481 U.S. 770 (1987) ........................................... 20

Horton v. Gen. Elec. Co.,

817 F. Supp. 3d 455 (W.D. Ky. 2025) ........... 9, 17

Illinois v. 3M Co.,

No. 4:25-CV-04189-SLD-RLH,

2025 WL 3470040 (C.D. Ill. Dec. 3, 2025) ........ 17

Kansas v. Pfizer, Inc.,

No. 24-1128, 2025 WL 1548507

(D. Kan. May 30, 2025) ..................................... 17

Kircher v. Putnam Funds Tr.,

547 U.S. 633 (2006) ........................................... 20

Leroy v. Hume,

563 F. Supp. 3d 22 (E.D.N.Y. 2021) ................. 29

viii

Lopez v. Cantex Health Care Centers II, LLC,

No. 23-2038 (10th Cir. Sept. 5, 2023) ............... 14

M&T Bank v. Arsenis,

No. 24-1723 (3d Cir. Nov. 6, 2024) ................... 18

Nken v. Holder,

556 U.S. 418 (2009) ......................... 10, 21, 26, 31

Osborn v. Haley,

549 U.S. 225 (2007) ........................................... 20

Pappagallo v. Redco Corp.,

No. 25-2693 (3d Cir. Oct. 20, 2025) .................. 18

Plaquemines Par. v. Chevron USA, Inc.,

84 F.4th 362 (5th Cir. 2023) ............................. 13

Powerex Corp. v. Reliant Energy Servs., Inc.,

551 U.S. 224 (2007) ........................................... 20

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) ........................................... 20

Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ..................................... 20, 23

Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995) ........................................... 20

Utah v. Express Scripts, Inc.,

No. 25-CV-00088, 2026 WL 891851

(D. Utah Mar. 31, 2026) .............................. 16, 17

Virginian Ry. Co. v. United States,

272 U.S. 658 (1926) ........................................... 26

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ........................................... 21

Younger v. Harris,

401 U.S. 37 (1971) ......................................... 5, 27

Statutes

28 U.S.C. §1254 ........................................................ 1

28 U.S.C. §1441 ........................................................ 4

28 U.S.C. §1442(a)(1) ............................................... 5

28 U.S.C. §1446(a) .................................................... 4

28 U.S.C. §1447(c) .......................................... 4, 6, 32

28 U.S.C. §1447(d) ............. 2-4, 6-7, 9, 10, 12, 14, 17,

19-21, 23, 30

28 U.S.C. §2283 ..................................................... 28

Other Authorities

O’Connor’s Federal Rules: Civil Trials §9.2

(2026 ed.) ............................................................. 9

Wright & Miller’s Federal Practice &

Procedure §3740 (rev. 4th ed. 2026) ................... 4

Zachary D. Clopton, Catch and Kill

Jurisdiction, 121 Mich. L. Rev. 171 (2022)........ 21

PETITION FOR A WRIT OF CERTIORARI

Petitioner City of Brunswick respectfully petitions for

a writ of certiorari to review the judgment of the U.S.

Court of Appeals for the Eleventh Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-36a) was

designated for publication and is available at 2026

WL 2224648. The order and opinion of the district court

(App. 37a-59a) is unreported but available at 2023

WL 5671290.

JURISDICTION

The Eleventh Circuit entered judgment on

August 3, 2026. This Court has jurisdiction under 28

U.S.C. §1254(1).

STATUTES INVOLVED

The relevant provisions are reproduced in the

appendix. App. 60a-72a.

INTRODUCTION

This case presents a square, acknowledged conflict

over an important question concerning the relationship

between state and federal courts: When a party appeals

an order remanding a case to state court under 28 U.S.C.

§1447(d), does federal law impose an automatic stay

pending appeal such that the state court cannot proceed?

The Eleventh Circuit’s decision below answered yes,

expressly deepening a circuit split. It “h[e]ld that the

appeal of a motion to remand under § 1447(d) triggers an

automatic stay of all district court proceedings,” and “any

subsequent state court proceedings are rendered void.”

App. 15a-16a. It sided with the Fourth Circuit, whose

“analysis closely track[ed]” the Eleventh Circuit’s own.

App. 14a. It rejected the Ninth Circuit’s extended analysis

of “the same automatic stay question.” App. 14a-15a n.9.

And it reached that outcome despite the Ninth Circuit’s

observation that “[a]ll other circuits where this question

has been raised” (besides the Fourth, and now the

Eleventh) have come out the other way. Ibid. (quoting

California ex rel. Harrison v. Express Scripts, Inc., 139

F.4th 763, 766 (9th Cir. 2025), cert. denied, No. 25-327

(Jan. 12, 2026)).

Further percolation is pointless: The arguments have

been extensively aired, and there is no realistic prospect

of either side reversing course. Allowing the split to

persist is also untenable. Federal procedure should not

vary by geography. Nor should different states face

different levels of federal intrusion in their judicial

proceedings. And uncertainty in the remaining circuits

invites gamesmanship and turmoil.

The question is important and recurring. It arises in

every 28 U.S.C. §1447(d) appeal. Courts and litigants need

to know what rule governs a stay. And leaving state courts

guessing as to whether a federal court will retroactively

“void” their work via an automatic stay—as the Eleventh

Circuit did here—is particularly damaging. App. 9a. This

Court has repeatedly granted review to decide the

availability of stays pending appeal in other contexts. The

issue now vexes courts in the state-court-remand context,

with over a dozen courts reaching conflicting results in the

past few years alone. This Court’s guidance is needed.

This is an unusually strong vehicle. Often, the stay

question arises in emergency motions, decided in

summary orders and proceeding separately from the

merits of the appeals. But here, the Eleventh Circuit

resolved the question presented squarely and

dispositively—with no complications from any emergency

posture or dual-track appellate proceedings.

Review is especially warranted because the Eleventh

Circuit’s decision is wrong. It invents a mandatory

federal-court bar on state-court proceedings. And it

purports to “render[ ] void” everything the state court had

done—even though “[n]o party in this case requested a

stay in federal court.” App. 9a, 13a n.8. Nothing authorizes

that remarkable intrusion on state sovereignty. The

Eleventh Circuit identified no statutory authority for its

automatic-stay rule. Instead, it extended a judge-made

“background principle” that warranted a stay in the

materially different context of arbitration appeals.

Coinbase, Inc. v. Bielski, 599 U.S. 736, 740 (2023); see

Griggs v. Provident Consumer Disc. Co., 459 U.S. 56

(1982). But Coinbase and Griggs nowhere address, let

alone mandate, federal interference with state-court

proceedings. Instead, the usual rule applies here: Stays

pending appeal are discretionary, not available as a

matter of right.

As it now stands, defendants in some states—but not

others—can unilaterally strip a state court of jurisdiction

simply by filing a notice of appeal (in a case the district

court already determined was improperly removed). The

Ninth Circuit concluded that this result offends core

principles of federalism and comity—yet the Fourth and

Eleventh Circuits have now endorsed it. This Court

should resolve the conflict over this important, purely

legal question, and this case is an excellent vehicle for

doing so. The petition should be granted.

STATEMENT OF THE CASE

Legal Background

A defendant in state court can remove a case to federal

court by filing a notice of removal in the federal district

court. 28 U.S.C. §1446(a); see, e.g., §1441. The district

court then determines whether removal was proper or

whether the case should instead be remanded to state

court. §1447(c).

Only certain district-court remand orders are appealable. See 14C Wright & Miller’s Federal Practice & Procedure §3740 (rev. 4th ed. 2026) (cataloging appealable remand orders). Section 1447(d) contains one such path for

appellate review, providing that remand orders “shall be

reviewable by appeal or otherwise” in cases “removed

pursuant to section 1442 or 1443.” §1447(d).

Section 1442 is the federal-officer-removal statute,

permitting removal by, inter alia, “any officer . . . of the

United States” “or any person acting under that officer”

“for or relating to any act under color of such office.” §1442(a)(1). Like any other “removal practice[ ],”

federal-officer removal “implicate[s] questions of comity

between federal and state authorities.” BP p.l.c. v. Mayor

& City Council of Baltimore, 593 U.S. 230, 242 (2021).

Since the Founding, “Congress has, subject to few exceptions, manifested a desire” to keep state courts “free from

interference by federal courts.” Younger v. Harris, 401

U.S. 37, 43 (1971). Federal courts therefore must “scrupulously confine their own jurisdiction,” Healy v. Ratta, 292

U.S. 263, 270 (1934), lest they infringe on the “legitimate

activities” of state courts, Younger, 401 U.S. at 44-45.

Proceedings Below

1. In 2022, the City brought this suit in Georgia state

court, asserting state tort claims arising from respondents’ release of toxic chemicals onto City property.

App. 38a. Respondents removed the action, invoking

(among other jurisdictional theories) federal-officer removal under §1442. App. 40a. According to respondents,

they were “acting under” federal officers when remediating contamination under a court order obtained by the

Environmental Protection Agency (EPA). App. 2a-5a.

The district court remanded to state court.

App. 37a-59a. Rejecting respondents’ federal-officer-removal theory, it held that respondents could not have

“ ‘acted under’ ” a federal officer because the EPA did not

“ ‘require[ ]’ ” respondents “ ‘to cause [the] pollution,’ ” and

the EPA merely “supervising” respondents’ remediation

efforts “is not sufficient to demonstrate they acted under

a federal officer.” App. 44a-46a. The district court also rejected respondents’ other federal-jurisdiction theories.

App. 46a-58a. The district court accordingly granted the

City’s motion to remand; it also directed the clerk to remand the case to the state court, terminate all pending

motions, and close the case. App. 59a. Pursuant

to §1447(c), a “certified copy of the order of remand” was

“mailed by the clerk to the clerk of the State court,” which

docketed it. §1447(c); see App. 6a, 16a n.10.

2. Respondents then appealed the remand order to

the Eleventh Circuit under §1447(d). App. 6a. “No party

in this case requested a stay in federal court.” App. 13a

n.8.

The litigation proceeded in the state court (which initially imposed a stay but lifted it a few months later).

App. 6a. All parties participated fully in the state-court

proceedings, with respondents filing answers and motions

to dismiss, and the City amending its complaint twice.

Ibid. 1

3. On appeal from the remand order, the Eleventh

Circuit reversed. At the outset, the Eleventh Circuit held

that “the appeal of a motion to remand under § 1447(d)

triggers an automatic stay of all district court proceedings—including the remand order—pending resolution of

1 After the second amended complaint, respondents filed a new

notice of removal. The district court stayed that new case pending this

appeal. See Order, City of Brunswick v. Honeywell Int’l, Inc.,

No. 2:24-cv-00129, Dkt. 22 (S.D. Ga. Jan. 7, 2025).

the appeal,” so “any subsequent state court proceedings

are rendered void.” App. 15a-16a.

The court rested that holding on “the Griggs principle”—that a notice of appeal “ ‘divests the district court of

its control over’ ” the “ ‘aspects of the case’ ” on appeal.

App. 10a-11a; see Griggs, 459 U.S. at 58. In Coinbase, this

Court held that the Griggs principle triggers an automatic

stay pending an appeal from the denial of a motion to compel arbitration. 599 U.S. at 744. The Eleventh Circuit

acknowledged that “neither the Supreme Court nor [the

Eleventh Circuit] ha[d] previously applied the Griggs

principle to appeals of remand orders concerning federal

officer removal.” App. 10a-11a. But it nonetheless extended Coinbase and Griggs to that new context. Ibid.

The court of appeals gave three reasons for its holding.

App. 12a-13a. First, the court observed that §1447(d), like

the Federal Arbitration Act provision at issue in Coinbase, lacks “ ‘non-stay’ ” language. App. 12a. Second, the

court concluded that “the entire case is essentially involved in the appeal” when deciding whether the litigation

belongs in state or federal court. Ibid. (internal quotation

marks omitted). Third, the court cited a “very real possibility of undermining appellate review” without a stay.

App. 13a.

The court also considered that “the district court had

already mailed the remand order to the state court when

the defendants filed their notice of appeal.” App. 16a-18a.

It ultimately found that event “irrelevant,” concluding

that the “Griggs principle operated to stay the remand order even though it had already been mailed.” App. 16a.

The Eleventh Circuit explained that its automatic-stay

holding aligned with the Fourth Circuit’s decision on “the

same question in the context of federal officer removal,”

“in an analysis closely tracking” the Eleventh Circuit’s

own. App. 13a-14a (citing City of Martinsville v. Express

Scripts, Inc., 128 F.4th 265, 268 (4th Cir. 2025)). But the

Eleventh Circuit recognized that the Ninth Circuit

reached the opposite conclusion on “the same automatic

stay question in the federal officer removal context.”

App. 14a-15a n.9 (citing California, 139 F.4th at 768). The

Eleventh Circuit examined “the Ninth Circuit’s reasoning” but was “unpersuaded.” Ibid.

The court of appeals treated the automatic-stay question as a threshold matter of appellate jurisdiction.

Whether it had “jurisdiction over this appeal” turned on

whether subsequent state-court proceedings had

“moot[ed] this appeal.” App. 8a. Because the court concluded that the “appeal triggered an automatic stay, such

that the state court proceedings are rendered void,” it

held the appeal was not moot. App. 8a-9a; see App. 3a

(“[W]e have jurisdiction to review the district court’s remand order, notwithstanding the parties’ subsequent litigation activities in state court, because the remand order

was automatically stayed upon the defendants’ notice of

appeal.”); App. 18a-19a.

“Having concluded that [it had] jurisdiction,” the court

of appeals then “turn[ed] to the merits of this appeal” and

held that respondents were entitled to federal-officer removal. App. 19a-36a.

REASONS FOR GRANTING THE PETITION

I. The decision below cements a square and intractable

circuit conflict.

The decision below entrenches an acknowledged conflict over an important question of federal procedure. The

Ninth Circuit has held, in a thorough published opinion,

that a §1447(d) appeal does not trigger an automatic stay.

California ex rel. Harrison v. Express Scripts, Inc., 139

F.4th 763, 765-73 (9th Cir. 2025), cert. denied, No. 25-327

(Jan. 12, 2026). The First, Second, Fifth, Seventh, Tenth,

and D.C. Circuits have taken the same view. See id. at 766

n.2; infra 13-14. But the Eleventh Circuit in this case

joined the Fourth Circuit in disagreeing. Both courts have

now issued published opinions squarely holding the opposite. App. 1a-36a; City of Martinsville v. Express Scripts,

Inc., 128 F.4th 265, 268 (4th Cir. 2025). The issue has likewise generated conflicting decisions in district courts.

The conflict could not be clearer. The cases all arise in

the exact same context: §1447(d) appeals over federal-officer removal. Courts and commentators alike have recognized the split. 2 The issues have crystallized, with opinions on each side confronting and rejecting the opposing

2 E.g., App. 13a-15a & n.9; California, 139 F.4th at 766 n.2; Horton

v. Gen. Elec. Co., 817 F. Supp. 3d 455, 460 (W.D. Ky. 2025) (“Courts

are split on whether Coinbase [v. Bielski, 599 U.S. 736 (2023)]

requires courts to grant an automatic stay pending an interlocutory

appeal of remand orders where the case was originally removed

under the officer removal statute.”); O’Connor’s Federal Rules: Civil

Trials §9.2 (2026 ed.) (“The circuits disagree on whether the Supreme

Court opinion in Coinbase . . . extends to the federal-officer removal

context . . . .”).

analysis. The remaining circuits are left to simply pick

sides. This Court’s intervention is urgently warranted.

1. a. Settled law in the Ninth Circuit squarely conflicts

with the decision below. In California, the Ninth Circuit

confronted the identical question presented here, yet held

the opposite: Stays pending appeal “in the federal officer

removal context” remain “discretionary,” not automatic. 139 F.4th at 766. It thus “disagree[d]” that “Coinbase, Inc. [v. Bielski, 599 U.S. 736 (2023)] should be extended to automatically stay litigation during the appeals

of remand orders in the federal officer removal context.”

Id. at 767.

California arose in the same posture as this case: It in-

volved a state court lawsuit removed to federal court under the federal-officer-removal statute. 139 F.4th

at 766-67. The plaintiff moved to remand, and the district

court granted the motion. Ibid. The district court then executed the remand order by mailing the certified order to

the state court. See California ex rel. Harrison v. Express

Scripts Inc., No. 2:23-cv-08570, Dkts. 51, 52 (C.D. Cal.).

Afterwards, the defendant appealed under 28

U.S.C. §1447(d). 139 F.4th at 767. That all mirrors this

case. App. 5a-6a; see supra 5-6.

Those similarities did not produce the same outcome.

In California, after the defendant moved to stay the remand order pending appeal, the district court denied the

stay using a discretionary analysis and rejected the argument that Coinbase required an automatic stay. Ibid. The

Ninth Circuit affirmed, holding that a stay pending appeal

is not automatic, but discretionary as set forth in Nken v.

Holder, 556 U.S. 418 (2009). 139 F.4th at 773.

The Ninth Circuit rested that holding on an analysis

directly contrary to that of the decision below. The Ninth

Circuit examined the argument (adopted by the Fourth

Circuit and the decision below) that “an automatic stay of

all proceedings is warranted under Coinbase ’s application

of the Griggs principle.” 139 F.4th at 767. But the Ninth

Circuit rejected that view on several grounds—which the

Eleventh Circuit considered but deemed “unpersua[sive]”

in the decision below. Compare California, 139 F.4th

at 767-72, with App. 14a-15a n.9.

First, while the Eleventh Circuit believed Coinbase

applies “regardless of the type of case,” App. 14a-15a n.9,

the Ninth Circuit concluded that Coinbase ’s reasoning

and holding are limited to “the arbitration context,” California, 139 F.4th at 768. The Ninth Circuit observed that

the issues and briefing in Coinbase “concerned only stays

in the context of arbitration” and nearly “every paragraph

of the . . . opinion specifically references ‘arbitrability’ or

the provisions of the FAA.” Ibid.

Second, the Ninth Circuit explained that the statecourt-removal context presents federalism and comity

concerns absent from Coinbase. Id. at 768-69. Unlike arbitration, a removal case “involves another sovereign”:

the state. Id. at 768. “Automatic stays” would “exacerbate

federal infringement on state courts’ rights,” while “discretion” allows courts to account for “important factors”

and “craft case-specific solutions.” Id. at 768-69. The

Ninth Circuit thus held that “federalism concerns” preclude an automatic stay in this context. Id. at 768. Contra

App. 14a-15a n.9 (adopting automatic-stay rule notwithstanding any “federalism concern”).

Third, the Ninth Circuit rejected the argument—

which carried the day in the decision below—that in

a §1447(d) appeal, “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.” California, 139 F.4th at 767; see

App. 11a. Instead, the Ninth Circuit explained that “the

question on appeal” is “a narrow venue question of

whether the case belongs in state or federal court.” 139

F.4th at 771. That further distinguished Coinbase : Having “to continue litigation in state court for a brief period

pending appeal [on that narrow question] does not cause

defendants to ‘irretrievably lo[se]’ any benefits of the type

lost when being wrongfully forced to arbitrate.” Id. at 770

(quoting Coinbase, 599 U.S. at 743). And for the same reason, the post-remand state-court proceedings “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.’ ” Id. at 771 (quoting

Griggs v. Provident Consumer Disc. Co., 459

U.S. 56, 59 (1982)).

Fourth, the Ninth Circuit emphasized that an automatic-stay rule would “encourage gamesmanship by defendants.” Id. at 771-72. Defendants could “delay discovery” simply by raising and appealing a meritless federalofficer theory. Ibid. “[A]dopting an automatic stay rule in

the federal officer context” would thus “frustrate principles of judicial economy.” Ibid.

The Ninth Circuit recognized that its holding took

sides in a circuit split. Observing that the Fourth Circuit

had been “the first . . . circuit in the country to have extended Coinbase ’s logic to the federal officer removal

context,” the Ninth Circuit declined to follow that path.

Id. at 766 n.2 (citing Martinsville, 128 F.4th 265). Instead,

the Ninth Circuit aligned itself with the Fourth Circuit

dissent. Id. at 773 (“Coinbase does not constitute a general withdrawal of the discretion that courts have exercised for centuries—rather, it merely represents a carveout in favor of arbitration.” (quoting Martinsville, 128

F.4th at 275 (Wynn, J., dissenting))). And the Ninth Circuit recognized that it was reaching “the same conclusion”

as all “other circuits where this question has been raised,

besides the Fourth”—and now, the Eleventh. Id. at 766

n.2.

b. As the Ninth Circuit recognized, its holding aligns

with the weight of circuit-court authority: Other circuits

to address stays pending federal-officer-removal appeals—even after Coinbase—have held that stays are discretionary, not automatic. Ibid. The Fourth Circuit

acknowledged that consensus as well. Martinsville, 128

F.4th at 270 n.4.

The Fifth Circuit—in a published opinion considering

a stay in this exact context (pending appeal of a remand

order in a federal-officer-removal case)—did not impose

an automatic stay. Plaquemines Par. v. Chevron USA,

Inc., 84 F.4th 362, 373-78 (5th Cir. 2023). Instead, despite

acknowledging Coinbase, id. at 376, it applied the discretionary Nken factors. Id. at 373-78. And it found a stay

unwarranted, concluding that the “defendants have fallen

well short of meeting their burden to show that a stay

pending appeal is justified in the circumstances of this

case.” Id. at 367.

The First, Second, Seventh, Tenth, and D.C. Circuits

have likewise rejected an automatic-stay rule in this context. Each of those courts has exercised discretion to deny

stays in federal-officer-removal appeals—often rejecting

express arguments that Coinbase requires an automatic

stay. Those decisions came in unpublished orders, as is

typical for rulings on emergency stay motions. See Gov’t

of P.R. v. Express Scripts, Inc., 119 F.4th 174, 184 n.3

(1st Cir. 2024) (noting the court denied a stay); Emergency Mot. to Stay Pending Appeal 7-10, id., No. 23-1613

(1st Cir. Aug. 1, 2023) (arguing Coinbase requires an automatic stay); County of Westchester v. Express Scripts,

Inc., No. 24-1639, Dkt. 72.1 (2d Cir. Sept. 6, 2024) (“Appellants are not entitled to an automatic stay pending appeal

under Coinbase.”); City of Chicago v. BP

p.l.c., No. 25-1916, Dkt. 73 (7th Cir. Aug. 1, 2025) (denying

motion to stay); Mot. to Stay Execution of Remand Order

Pending Appeal 8-11, id., Dkt. 48-1 (7th Cir. July 3, 2025)

(arguing Coinbase requires an automatic stay); Order,

Lopez v. Cantex Health Care Centers II,

LLC, No. 23-2038, Dkt. 96 (10th Cir. Sept. 5, 2023) (“This

court evaluates the traditional stay factors in deciding

whether to stay the district court’s order.”); Order, In re

Clark, No. 23-7073 (D.C. Cir. Oct. 26, 2023) (denying stay

under Nken standard and rejecting argument that the

“remand order has been automatically stayed pending appeal”).

In those post-Coinbase cases, the First, Second, Fifth,

Seventh, Tenth, and D.C. Circuits applied the opposite

rule, with the opposite outcome, from the decision below.

The decision below requires granting stays automatically.

These circuits denied stays discretionarily.

2. a. The Fourth Circuit disagrees with those circuits.

Martinsville, 128 F.4th at 267-72. In Martinsville, the

Fourth Circuit faced the same context: a §1447(d) appeal

from a federal-officer-removal remand order. Id. at 268.

And a divided panel of that court held the opposite: Coinbase ’s automatic-stay rule “applies to appeals under the

federal-officer-removal statute.” Id. at 272.

In direct contrast to the Ninth Circuit, the Fourth Circuit concluded that the principles underlying Coinbase apply “just as forcefully” in the federal-officer-removal context as “in Coinbase itself.” Id. at 270. Specifically, the

court found “[n]othing in § 1447(d)” that “overrides the

background Griggs principle.” Ibid. And the court saw

parallels between “a motion to compel arbitration” and “a

remand order,” characterizing both as addressing

“[w]hich forum will hear the case.” Ibid. It held that a stay

therefore happens “automatically,” and “the lower court

loses dominion over not just the remand order but most

everything else in the case.” Id. at 270, 272 n.6.

Judge Wynn dissented. Id. at 272-75. He urged that

the majority had “disingenuously extend[ed] the narrow

holding on arbitrability appeals in Coinbase to broadly abrogate the well-settled holding in Nken v. Holder that district courts have discretion over whether to impose a

stay.” Id. at 272. Tracing that tradition back to the Judiciary Act of 1789, Judge Wynn concluded that “Coinbase

nowhere, as the majority claims, discarded two centuries

of practice and established what is tantamount to a generally applicable substantive Canon in Favor of Automatic

Stays.” Id. at 273-74. Instead, Coinbase “merely represents a carve-out in favor of arbitration.” Id. at 275. That

position failed to command a majority in the Fourth

Circuit; it became the unanimous holding of the Ninth.

See California, 139 F.4th at 773.

b. The Eleventh Circuit’s decision below entrenched

the split. App. 13a-15a & n.9; supra 6-8. It recognized the

divide in circuit authority. App. 13a-15a & n.9. It expressly

sided with the Fourth Circuit’s “analysis closely tracking”

its own on “the same question.” App. 13a-14a. And it directly acknowledged and rejected the opposing rationales

laid out by the Ninth Circuit, again on “the same automatic stay question.” App. 14a-15a n.9.

The decision below even closed the only conceivable

gap remaining between the Fourth and Ninth Circuits’

decisions. In opposing certiorari in California, the respondent contended the split was not square because the

Fourth Circuit had not addressed precisely the same situation as the Ninth Circuit: In the Ninth Circuit case, but

not the Fourth Circuit case, the remand order was mailed

to the state court before the notice of appeal was filed. Br.

in Opp. 4-5, Express Scripts, Inc. v. California, No. 25-327

(U.S. Dec. 9, 2025). But that exact scenario is presented

here: The remand order “had already been mailed” “when

the defendants filed their notice of appeal.” App. 16a. The

Eleventh Circuit explicitly considered that timing. Ibid.

Yet it sided with the Fourth Circuit against the Ninth Circuit anyway, cementing the split. Ibid.

3. Widespread division also exists among district

courts. District courts have expressly acknowledged the

circuit split. See, e.g., Utah v. Express Scripts, Inc.,

No. 25-CV-00088, 2026 WL 891851, at *15 (D. Utah

Mar. 31, 2026) (identifying the split but recognizing that

“more circuit courts” have held “that appealable remand

orders are subject only to a discretionary stay, notwithstanding Coinbase ”), appeal filed, No. 26-4035 (10th Cir.

Apr. 2, 2026); Horton v. Gen. Elec. Co., 817 F.

Supp. 3d 455, 460 (W.D. Ky. 2025) (“Courts are split on

whether Coinbase requires courts to grant an automatic

stay pending an interlocutory appeal of remand orders

where the case was originally removed under the officer

removal statute.”). Courts are now just choosing sides.

Compare, e.g., Utah, 2026 WL 891851, at *15 (finding the

Ninth Circuit’s view “more persuasive”); Horton, 817 F.

Supp. 3d at 460 (“declin[ing] to follow the Fourth Circuit

in expanding Coinbase beyond the context of arbitration”); Illinois v. 3M Co., No. 4:25-CV-04189-SLDRLH, 2025 WL 3470040, at *2 (C.D. Ill. Dec. 3, 2025) (finding “the Ninth Circuit’s reasoning in [California] to be

more persuasive”), with Kansas v. Pfizer, Inc.,

No. 24-1128, 2025 WL 1548507, at *3 (D. Kan.

May 30, 2025) (stay is mandatory under Coinbase in federal-officer-removal context); Arkansas ex rel. Griffin v.

Optum, Inc., No. 24-CV-00701, 2024 WL 6991679, at *5

(E.D. Ark. Dec. 31, 2024) (same). 3

3 Confusion reigns at the appellate level as well. The Eleventh

Circuit, before it reversed course in the decision below, had refused

an automatic stay pending a §1447(d) appeal. Georgia v. Clark,

No. 23-13368, Dkt. 26 (11th Cir. Dec. 21, 2023) (“[Appellant] is not

entitled to an automatic stay under . . . Coinbase.”).

The Third Circuit has also repeatedly taken the same view as the

First, Second, Fifth, Seventh, Ninth, Tenth, and D.C. Circuits: It has

applied a discretionary standard to deny stays pending §1447(d)

appeals, rejecting arguments for an automatic stay under Coinbase.

See Order, Att’y Gen. of N.J. v. Dow Chem. Co., No. 24-1753, Dkt. 24

(3d Cir. July 24, 2024) (“[A] stay of state court proceedings pending

appeal is DENIED.”); Mot. for Stay Pending Appeal 10-13, id.,

II.

The question presented is important and warrants

review in this case.

1. The split warrants resolution without delay. The circuits will not agree on their own. Precedential opinions on

each side have considered and repudiated the opposing

rationales; neither faction will reverse course. Rehearing

en banc in the Ninth Circuit failed without a single judge

requesting a vote. Order, California, supra, No. 24-1972,

Dkt. 81 (9th Cir. Aug. 29, 2025). And in the circuits that

have adopted the automatic-stay rule, reversal is procedurally implausible: It would require emergency en banc

action, outrunning the merits of the appeal, to overrule

existing precedent and lift the automatic stay before it expires. There is simply no realistic chance that percolation

will heal the split.

Nor do the issues need more development. Multiple

opinions on each side have thoroughly aired the arguments. The issue is discrete and purely legal, and only a

Dkt. 22-1 (3d Cir. July 10, 2024) (arguing that “Coinbase v. Bielski

mandates a stay” (capitalization altered)); Order, M&T Bank v.

Arsenis, No. 24-1723, Dkt. 14 (3d Cir. Nov. 6, 2024); Order, Doe v.

Centerville Clinics Inc., No. 23-2738, Dkt. 25 (3d Cir. Dec. 21, 2023).

Yet a different Third Circuit panel has seemingly embraced the

automatic-stay rationale, concluding that a §1447(d) “notice of appeal

deprive[d] the District Court of jurisdiction to take action until the

appeal is resolved.” Order, Pappagallo v. Redco Corp., No. 25-2693,

Dkt. 77 (3d Cir. Oct. 20, 2025).

That confusion underscores the need for this Court’s review. The

question presented warrants a definitive answer from this Court, not

inconsistent, expedited adjudication by district courts and appellate

motions panels.

handful of statutes and precedents are at issue. The matter is ready for this Court’s resolution now.

Delay would be harmful. Federal law should not treat

courts of different states differently, automatically divesting some but not others of authority pending §1447(d) appeals. Yet until this Court intervenes, California courts

are “empowered to craft case-specific solutions . . . when

they receive remanded cases,” California, 139 F.4th

at 769, while Georgia courts’ proceedings are “disregard[ed]” as “ ‘void ab initio,’ ” App. 18a.

And the longer the question lingers, the greater the

potential fallout. Every relevant state-court proceeding

that goes forward risks being retroactively “voided” by a

springing automatic stay (if a federal court later adopts

the Fourth and Eleventh Circuits’ rule). Those cases—

and the potential harms—will accumulate until this Court

acts.

The present uncertainty also invites gamesmanship.

In circuits where the question remains open, defendants

get two bites at the apple: After a district court remands

a case, the defendant can simultaneously notice an appeal

and take its chances in state court. If state proceedings go

well, it can dismiss its appeal. If not, it can contend that

the state proceedings were “ ‘void ab initio.’ ” App. 18a. After all, the Fourth and Eleventh Circuits’ automatic stay

applies even if the defendant never requested it. App. 13a

n.8; Martinsville, 128 F.4th at 269-70. The Court should

end that opportunity for abuse by resolving the question

now.

Prolonging the uncertainty would also leave courts to

confront the question under the worst possible circumstances. The question presented usually arises in emergency motions for stays pending appeal. Courts deciding

such motions need a clear answer, rather than having to

weigh competing rationales from conflicting circuits on a

truncated timeline. This Court itself could face the question in an application for interim relief, requiring a choice

between the usual Nken stay standard and an automaticstay rule in an emergency posture. See, e.g., BP p.l.c. v.

Mayor & City Council of Baltimore, No. 19A368 (U.S. Oct.

22, 2019) (denying application for stay pending appeal of

remand order under §1447(d)). This important question

warrants plenary consideration and a definitive resolution

now.

2. The consequential, recurring nature of the question

presented reinforces the need for review.

This case addresses multiple areas this Court has frequently recognized as worthy of review. The Court has repeatedly granted review to decide the availability of stays

pending appeal. See Coinbase, 599 U.S. 736; Nken, 556

U.S. 418; Hilton v. Braunskill, 481 U.S. 770 (1987). Likewise, the Court has intervened time and again to provide

clarity regarding §1447(d) appeals. E.g., BP p.l.c. v.

Mayor & City Council of Baltimore, 593 U.S. 230 (2021);

Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009);

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S.

224 (2007); Osborn v. Haley, 549 U.S. 225 (2007); Kircher

v. Putnam Funds Tr., 547 U.S. 633 (2006); Quackenbush

v. Allstate Ins. Co., 517 U.S. 706 (1996); Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (1995); Thermtron

Prods., Inc. v. Hermansdorfer, 423 U.S. 336 (1976). So too

with federal-officer removal. E.g., Chevron USA Inc. v.

Plaquemines Par., 146 S. Ct. 1052 (2026); Watson v. Philip

Morris Cos., 551 U.S. 142 (2007).

The question presented here affects every single

§1447(d) appeal. Over a dozen courts have decided the

stay question in just the past few years. Supra 10-17 & n.3.

And the issue lurks even in cases where no party raises it,

because under the Fourth and Eleventh Circuits’ rule, the

stay is “self-executing” “whether or not the parties ask.”

Martinsville, 128 F.4th at 269; see App. 13a n.8. Cases implicating the issue will continue to proliferate, given the

frequency with which private corporations now assert federal-officer removal—including in mass tort, environmental, and opioid litigation. See Zachary D. Clopton, Catch

and Kill Jurisdiction, 121 Mich. L. Rev. 171, 198 (2022)

(“Recently, private defendants have offered ever-expanding notions of federal officer removal to gain access to federal courts.”).

The question presented is also fundamentally important to the judicial system. “A stay is an ‘intrusion into

the ordinary processes of administration and judicial review.’ ” Nken, 556 U.S. at 427 (citation omitted). Even

more so, an automatic stay impairs courts’ “traditional

equipment for the administration of justice.” Ibid. (citation omitted). The Fourth and Eleventh Circuits’ rule

jeopardizes “the discretion that courts have exercised for

centuries.” Martinsville, 128 F.4th at 275 (Wynn, J., dissenting).

The stay question here also strikes at the relationship

between federal and state courts. At stake is whether federal law, via a judge-made “background principle,”

handcuffs state courts and renders their proceedings

“void.” App. 14a-15a & n.9. Federal courts should not so

intrude on state courts without this Court’s review.

The practical consequences are considerable. An automatic-stay rule halts a case for months or years. The appeal in this case, for example, consumed three years. Delay risks lost evidence and faded memories. Injured parties endure continued hardship and mounting financial

pressure, and all sides face prolonged uncertainty. Trial

courts are powerless, even to grant emergency relief in

the face of irreparable harm. Most perversely, proceedings are frozen even against defendants with no basis at

all for asserting federal-officer removal. See Gov’t of P.R.,

119 F.4th at 185 (“[I]f a single defendant properly removes under §1442, the entire action, with all defendants,

must be removed to federal court.”). And all those harms

result from a federal-officer theory weak enough to be rejected by the district court.

Martinsville vividly illustrates the problem. There, the

City of Martinsville—in a suit responding to the opioid epidemic—successfully defeated federal-officer removal in

district court. City of Martinsville v. Purdue Pharma,

L.P., No. 24-CV-00002, 2024 WL 4218847, at *1 (W.D. Va.

Sept. 16, 2024). By that time, the City had already “been

waiting about six years for its case to proceed,” and the

district court found a stay pending appeal unwarranted

under the traditional factors. Id. at *14-15. “Such additional delay in an already lengthy litigation process can

raise concerns about a loss of memories or evidence,” the

court explained. Ibid. Nevertheless, the Fourth Circuit

imposed an automatic stay, freezing the case as the appeal

wore on. Martinsville, 128 F.4th at 272. But the Fourth

Circuit ultimately affirmed, agreeing that the case belonged in state court all along. City of Martinsville v. Express Scripts, Inc., No. 24-1912, 2025 WL 1039624, at *1

(4th Cir. Apr. 8, 2025). Indeed, in Martinsville, the federalofficer-removal theory was so weak the Fourth Circuit affirmed without oral argument. Ibid. Yet simply by asserting and appealing a federal-officer theory, a few defendants delayed the entire state-court case—and the City’s

attempts to secure relief for the opioid crisis—for over a

year. See Notice of Removal, Martinsville, supra,

No. 4:24-CV-00002, Dkt. 1 (W.D. Va. Jan. 17, 2024); id.,

Dkt. 65 (W.D. Va. May 1, 2025) (finally remanding the

case after appeal).

Left unchecked, the automatic-stay rule of the Fourth

and Eleventh Circuits will fuel widespread delay tactics.

See California, 139 F.4th at 771-72 (warning against

“gamesmanship by defendants that would frustrate principles of judicial economy”). Under an automatic-stay

rule, dubious removals to federal court and accompanying

mandatory stays of state-court proceedings will become

routine—further disrupting the administration of justice

and generating friction between state and federal courts.

And the impact extends beyond federal-officer-removal cases. The reasoning of the Fourth and Eleventh

Circuits seemingly reaches all appeals from remand orders, whether or not they arise under §1447(d) or concern

federal-officer removal. Cf., e.g., Thermtron, 423 U.S.

at 345-52 (allowing appeals of remand orders besides

those expressly authorized by §1447(d)). Worse, by unmooring Coinbase from the arbitration context, the

Fourth and Eleventh Circuits’ decisions threaten to eviscerate the traditional discretionary-stay standard in

myriad other settings. See Martinsville, 128 F.4th at 270

(suggesting automatic-stay rule applies to any appeal concerning “[w]hich forum will hear the case”); id. at 274

(Wynn, J., dissenting) (observing that panel majority’s

reasoning would apply automatic stay “to every interlocutory appeal of a dispositive issue”). This Court’s review

is warranted before the consequences multiply.

3. This case is an ideal vehicle and avoids common defects in other cases raising the question presented.

First, the Eleventh Circuit issued a comprehensive,

precedential opinion squarely deciding the question presented as a pure issue of law. Typically, stays pending appeal are sought in emergency motions and decided in summary orders. But here, the Eleventh Circuit reached a

clear, considered decision adopting an automatic-stay

rule.

Second, the choice between automatic and discretionary stays is dispositive here. The stay in this case could

not have been granted discretionarily, because “[n]o party

in this case requested a stay in federal court.” App. 13a

n.8. A stay thus could apply only if it were “automatic.”

Ibid.

Third, the question presented arises here as a thresh-

old, jurisdictional issue. The Eleventh Circuit’s automatic-stay holding was dispositive of its “jurisdiction to

review this appeal.” 4 App. 8a; see App. 3a, 18a-19a. The

4 The automatic-stay holding was dispositive of appellate

jurisdiction because it was the Eleventh Circuit’s sole ground for

overcoming one mootness objection. App. 18a (“For this reason, the

question presented is thus the single key question at the

outset of the Eleventh Circuit’s decision—on which courts

have an “independent obligation” to act—ensuring that no

predicate issues or preservation disputes pose an obstacle

to reaching the question. See Arbaugh v. Y&H Corp., 546

U.S. 500, 514 (2006).

That the stay question goes to appellate jurisdiction

here also ensures it is not mooted by a decision on the underlying merits of the appeal—a prominent vehicle issue

in other cases. See, e.g., Conditional Motion to Expedite

Consideration of Joint Petition for a Writ of Certiorari 2,

Coinbase, supra, No. 22-105 (July 29, 2022) (“The issue

presented by Coinbase’s joint petition for certiorari will

become moot once the Ninth Circuit issues its decisions

on Coinbase’s underlying arbitrability appeals . . . .”);

Suggestion of Mootness, Coinbase, supra, No. 22-105

(Mar. 1, 2023); Br. in Opp. 20-21 & n.10, California, supra.

Finally—curing the main defect asserted when certio-

rari was previously sought on this question—this case’s

posture mirrors that of the Ninth Circuit case. See Br. in

Opp. 4-5, California, supra. As noted above, the chief argument against certiorari in California was that the timing of the notice of appeal formed “a critically important

factual distinction” between cases on each side of the split.

Ibid.; see supra 16. This case, however, is on all fours with

City’s argument that its amended complaints in state court mooted

this appeal fails.”). The Eleventh Circuit considered no alternative

bases for deciding that jurisdictional issue (unlike a separate

threshold objection, which the court did reject on another ground, see

App. 18a n.12). Thus, only because of its automatic-stay holding did

the Eleventh Circuit reach its (incorrect) resolution of the federalofficer-removal merits. App. 3a, 8a, 18a-19a.

the Ninth Circuit case on the opposite side of the split:

The “district court had already mailed the remand order

to the state court when the defendants filed their notice of

appeal.” App. 16a; see Br. in Opp. 4-5, California, supra.

This case thus presents the split as squarely as possible,

and the Court should resolve it now.

III. The decision below is wrong.

This Court has long held that a stay pending appeal “is

not a matter of right.” Nken, 556 U.S. at 433 (quoting

Virginian Ry. Co. v. United States, 272 U.S. 658, 672

(1926)). Yet the Eleventh Circuit held the opposite here,

entitling defendants to a stay as of right—even if they

failed to request it. App. 13a n.8; see also Martinsville, 128

F.4th at 269-70 (imposing “self-executing” stay “whether

or not the parties ask”).

There is no basis for that departure from the

longstanding default rule that stays are “ ‘an exercise of

judicial discretion,’ ” requiring “[t]he party requesting a

stay” to carry its burden of justifying it. Nken, 556 U.S.

at 433-34 (quoting Virginian Ry. Co., 272 U.S. at 672). The

Eleventh Circuit relied on Coinbase, which recognized an

exception to the usual discretionary-stay rule in one

context: “while [an] interlocutory appeal on arbitrability

is ongoing.” 599 U.S. at 740. That exception does not

extend to the state-court-remand context, as the Ninth

Circuit and the Fourth Circuit dissent correctly

explained.

1. To begin, “[f]ederalism 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.”

California, 139 F.4th at 768. Nothing in Coinbase

authorizes “federal infringement on state courts’ rights.”

Id. at 769.

Unlike in Coinbase, a stay pending appeal here

operates not just on federal trial courts, but also on courts

of “another sovereign.” Id. at 768. Under the Eleventh

Circuit’s rule, federal law automatically barred Georgia’s

courts from proceeding with the case—and “rendered

void” the state court’s work. App. 9a, 16a.

That is a significant intrusion on the states. When a

defendant pursues a weak removal theory and the district

court rejects it, an automatic stay pending appeal

“deprive[s] state courts of jurisdiction over cases that

should rightfully be heard in their fora, in violation of

comity principles.” California, 139 F.4th at 768. And that

is not a contrived scenario. It is the heartland application

of the automatic-stay rule, which—unlike a discretionary

regime—imposes a stay even when the defendant cannot

make the traditional stay showing (including likelihood of

success on the merits).

Such an intrusion on state courts contravenes basic

limits on federal power, which require federal courts to

“scrupulously confine their own jurisdiction” and give

“due regard for the rightful independence of state

governments.” California, 139 F.4th at 769 (citation and

alterations omitted); see Healy v. Ratta, 292 U.S. 263,

270 (1934). “[T]he normal thing to do when federal courts

are asked to enjoin pending proceedings in state courts is

not to issue such injunctions.” California, 139 F.4th at 769

(quoting Younger v. Harris, 401 U.S. 37, 45 (1971)); see

also 28 U.S.C. §2283 (Anti-Injunction Act). That is doubly

true when no party even asks for such an injunction.

Coinbase nowhere creates federal power to so intrude

on state courts. Coinbase rests on a judge-made

“background principle” governing federal courts: A notice

of appeal “ ‘divests the district court of its control over

those aspects of the case involved in the appeal.’ ” 599 U.S.

at 740 (quoting Griggs, 459 U.S. at 58). But that principle,

even where it applies, says nothing about state courts.

Here, the Eleventh Circuit’s holding did not divest the

district court of any control; the district court did nothing

at all after the notice of appeal was filed. Instead, the

Eleventh Circuit divested the Georgia court of authority

to proceed with the case. Griggs supplies no federal power

to do that.

2. Coinbase ’s core logic also does not translate here.

“[T]he unique aspects of arbitration that automatic stays

help to preserve are not at issue in the federal officer

removal context.” California, 139 F.4th at 768; see

Martinsville, 128 F.4th at 274-75 (Wynn, J., dissenting).

A right to arbitrate is a right to avoid litigation. An

arbitrability appeal thus asks whether the suit should be

litigated or not. Accordingly, Coinbase reasoned that

“[b]ecause the question on appeal is whether the case

belongs in arbitration or instead in the district court, the

entire case is essentially ‘involved in the appeal.’ ” 599 U.S.

at 741 (quoting Griggs, 459 U.S. at 58). If “pre-trial and

trial proceedings” moved forward, “many of the asserted

benefits of arbitration (efficiency, less expense, less

intrusive discovery, and the like) would be irretrievably

lost.” Id. at 743. Arbitration is thus “analogous” to

“qualified immunity” and “double jeopardy”—other

rights to avoid suit entirely. Id. at 746.

Removal is different. A right to remove to federal

court is not a right to avoid litigation. Whether or not

removal is proper, the case is subject to litigation

regardless. So the question in a removal appeal is not (as

in Coinbase) whether the case should be litigated. It is

instead separable from the other aspects of the case—

“such as whether the claims have merit, whether the

parties are entitled to the discovery they seek, and so on.”

California, 139 F.4th at 771. “Proceedings on those

questions would not interfere with the appellate court’s

review of the remand order, nor risk inconsistent

judgments.” Ibid. The state court will never consider the

question before the federal appellate court: whether the

district court should have remanded the case.

And litigating in one court versus another does not

inherently cause the “irretrievabl[e] los[s]” of the benefits

sought on appeal. Coinbase, 599 U.S. at 743. “[P]ermitting

early stage litigation in state court would not preclude a

defendant from returning to federal court post-appeal” or

necessarily destroy the benefits of a federal forum.

California, 139 F.4th at 771. In many cases, progress can

be made on matters where the forum makes no difference.

See, e.g., Leroy v. Hume, 563 F. Supp. 3d 22, 30

(E.D.N.Y. 2021) (“Any subsequent discovery obtained in

state court will be relevant to the case’s adjudication even

if the case is subsequently [returned] to federal court.”).

In other cases, where benefits might be lost, a court could

impose a discretionary stay. Coinbase was different: It

rested on benefits of arbitration that cannot be recovered

once litigation occurs. 599 U.S. at 743. Such “fundamental

differences . . . do not exist as between litigation in state

versus federal courts”—“each provide forums for

litigation with roughly similar levels of efficiency,

expense, and comprehensive discovery mechanisms.”

California, 139 F.4th at 770. By contrast, “arbitration is a

fundamentally different form of dispute resolution than

litigation,” and that foundational element of Coinbase ’s

reasoning is missing here. Id. at 769.

Under the Fourth and Eleventh Circuits’ logic—

applying Coinbase just because the appeal concerns

whether the suit should proceed in district court—the

Coinbase automatic-stay rule is limitless. It would “apply

to every interlocutory appeal of a dispositive issue”

because every such appeal decides whether a case belongs

in district court. Martinsville, 128 F.4th at 274 (Wynn, J.,

dissenting). Yet Coinbase refused to go that far. In the

face of the dissenting Justices’ warning that a stay rule

would be “destabilizing” if applied to “any appeal over the

proper forum,” “any interlocutory appeal on a dispositive

issue,” or—as here—an appeal over “federal-court

jurisdiction,” the Coinbase majority did not extend the

automatic stay to those contexts. 599 U.S. at 760-61

(Jackson, J., dissenting). Instead, this Court’s holding was

limited to the “sole question” of whether an automatic

stay applies to an “appeal on arbitrability.” 599 U.S.

at 740.

3. The court of appeals’ contrary reasoning lacks

merit. It first observed that §1447(d) “includes no express

‘non-stay’ language” that would overcome “the

background Griggs principle.” App. 12a. But that assumes

Griggs would require a stay here in the first place—a false

premise for the reasons just explained. See supra 26-30.

The court of appeals next asserted that “the entire

case is essentially ‘involved in the appeal’ ” of a remand

order. App. 12a-13a. But the question of venue is separate

from other questions in the case, like what discovery is

appropriate. See supra 29; California, 139 F.4th at 771.

And nothing in Griggs prohibits state courts from

proceeding on those other matters.

The court of appeals also expressed concern that there

is a “very real possibility” appellate review might

sometimes be “nullif[ied]” without a stay. App. 13a. But

appellate courts regularly review remand orders in cases

where no stay was in effect (as the First, Second, Third,

Fifth, Seventh, Ninth, Tenth, and D.C. Circuits have

done). See supra 10-14, 17 n.3. This Court itself has done

so after denying a stay pending appeal. See BP p.l.c. v.

Mayor & City Council of Baltimore, No. 19A368 (U.S. Oct.

22, 2019) (denying stay of remand order pending appeal);

BP, 593 U.S. 230 (deciding appeal of that remand order).

The Eleventh Circuit identified particular scenarios that

might favor a stay in some cases, yet it imposed a stay in

all cases. App. 13a. The case-specific concerns the court of

appeals identified are exactly what the usual

discretionary-stay rule addresses. Under that rule,

judges can fashion an appropriate stay “dependent upon

the circumstances of the particular case.” Nken, 556 U.S.

at 434 (citation omitted).

Finally, the court of appeals concluded its analysis by

opining that “the Griggs principle operated to stay the

remand order even though it had already been mailed” to

the state court when the notice of appeal was filed.

App. 16a-18a. That, too, is mistaken. The court of appeals

acknowledged that under §1447(c), once the order is

mailed “to the clerk of the State court,” the “State court

may thereupon proceed with such case.” App. 16a n.10

(quoting §1447(c)). Yet the court of appeals held that the

subsequent notice of appeal somehow activated federal

power to stop the state proceedings. App. 16a-18a. The

court of appeals identified nothing in Griggs or

Coinbase—rules of federal court inaction—that would

reach out and stop the state court’s proceedings after the

remand had already been effectuated.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

JOHN C. BELL, JR.

PAMELA S. JAMES

THE BELL FIRM

P.O. Box 1547

Augusta, GA 30903

MICHAEL F. QIAN

Counsel of Record

ROBERT P. KILLIAN

KILLIAN LAW FIRM LLC

47 Professional Drive

Brunswick, GA 31520

BRIAN DONALD CORRY

MCQUIGG SMITH & CORRY

504 Beachview Drive, Ste. 3-D

St. Simons Island, GA 31522

BONNIE K. ST. CHARLES

HAYNES AND BOONE, LLP

2801 N. Harwood Street, Ste. 2300

Dallas, TX 75201

(214) 651-5041

michael.qian@haynesboone.com

ANGELA M. OLIVER

HAYNES AND BOONE, LLP

888 16th Street, N.W., Ste. 300

Washington, DC 20006

CHLOE WARNBERG

HAYNES AND BOONE, LLP

1221 McKinney Street, Ste. 4000

Houston, TX 77010

Counsel for Petitioner City of Brunswick

SEPTEMBER 1, 2026

APPENDICES

Appendix A: Opinion of the U.S. Court of

Appeals for the Eleventh Circuit

(Aug. 3, 2026) .................................................................. 1a

Appendix B: Order of the U.S. District Court for

the Southern District of Georgia

(Sept. 1, 2023) ................................................................37a

Appendix C: 28 U.S.C. §1441 ............................................60a

Appendix D: 28 U.S.C. §1442 ............................................64a

Appendix E: 28 U.S.C. §1446 ............................................67a

Appendix F: 28 U.S.C. §1447 ............................................71a

APPENDIX A

FOR PUBLICATION

IN THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 23-13200

CITY OF BRUNSWICK,

by and through its Mayor and

Board of Commissioners,

Plaintiff-Appellee,

versus

HONEYWELL INTERNATIONAL, INC.

f.k.a. Allied Chemical Corporation,

f.k.a. Allied Signal, Inc.,

THE GEORGIA POWER COMPANY,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Georgia

D.C. Docket No. 2:22-cv-00132-JRH-BWC

Before BRANCH, LUCK, and LAGOA, Circuit Judges.

BRANCH, Circuit Judge:

Congress has charged the Environmental Protection

Agency (“EPA”) with identifying sites affected by pollution and undertaking necessary remediation efforts or delegating those efforts to third parties. One such site surrounds the City of Brunswick, Georgia. The City sued

Honeywell International, Inc., and the Georgia Power

Company in Georgia state court asserting that both defendants were liable under state tort law for pollution emanating from that site. The defendants removed the case

to federal court, arguing, among various grounds for removal, that federal officer jurisdiction under 28 U.S.C.

§ 1442(a)(1) 1 applied, because all the remediation efforts

the defendants had undertaken at the site were controlled

and delegated by EPA, a federal agency. The district court

rejected this argument and remanded the case to state

court.

The federal officer removal statute provides as follows:

(a) A civil action or criminal prosecution that is commenced in a

State court and that is against or directed to any of the following

may be removed by them to the district court 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.

28 U.S.C. § 1442(a)(1).

While this appeal of the remand order was pending, the

Supreme Court further delineated the contours of the federal officer removal test. See Chevron USA Inc. v.

Plaquemines Parish, 608 U.S. ----, 146 S. Ct. 1052 (2026).

With the benefit of oral argument and supplemental briefing, we hold that federal officer removal was proper in this

case because the defendants’ alleged liability arises out of

their obligations under an EPA-mandated consent decree

to remediate the plant site, an action that EPA would otherwise have to perform itself.2

But first, we consider our jurisdiction to hear the appeal. We conclude that we have jurisdiction to review the

district court’s remand order, notwithstanding the parties’

subsequent litigation activities in state court, because the

remand order was automatically stayed upon the defendants’ notice of appeal. Accordingly, we reverse the district

court’s remand order.

I. Background

A. Factual Background

Georgia Power, an electric utility incorporated in Georgia, purchased plots of land (“the Plant Site”) in the Brunswick area in 1937 and the following years. Georgia Power

used the Plant Site to generate electric power and store

petroleum products. As a result of these operations, hazardous substances, including polychlorinated byphenals

(PCBs), were released on the Plant Site and into the environment.

In the mid-1950s, a corporation that later became Honeywell acquired the Plant Site and additional land in the

Because we decide the removal issue on the federal officer removal

ground, we do not reach the defendants’ other grounds for removal.

area from Georgia Power. Honeywell built and operated a

chlor-alkali facility at the Plant Site to produce chlorine

gas, hydrogen gas, and caustic solution. These operations

led to further disposal of hazardous substances, including

mercury and PCBs, within the Plant Site. Honeywell operated the Plant Site until 1979, when Honeywell sold it to

another corporation, although Honeywell remained involved in the plant’s operations until the plant ceased activity in 1994. Honeywell later reacquired the Plant Site.

In 1995, the defendants entered into an Administrative

Order on Consent with EPA, agreeing to undertake a remedial investigation and feasibility study at the Plant Site

under EPA’s oversight and subject to EPA’s approval.

EPA subsequently added the Plant Site to the National

Priorities List, a “prioritized list of contaminated sites for

cleanup, commonly known as Superfund sites” under the

Comprehensive Environmental Response, Compensation,

and Liability Act (“CERCLA”). See Atl. Richfield Co. v.

Christian, 590 U.S. 1, 6 (2020) (citing 42 U.S.C. § 9605).3 A

few years later, EPA began to mandate remediation actions, such as ordering “Honeywell to remove one foot of

soil from thirteen acres of the marsh and sediment in

creeks in front of the old Honeywell trash dump.”

Following extensive investigation activities and additional remedial work on the Plant Site, in 2015 EPA issued

a Record of Decision (EPA’s official cleanup plan pursuant

to CERCLA) selecting remedial actions to be implemented at the Plant Site. The defendants then entered into

Once a contaminated site is designated a Superfund site, “EPA may

clean [the site] itself or compel responsible parties to perform the

cleanup.” Atl. Richfield, 590 U.S. at 6 (citing 42 U.S.C. §§ 9604,

9606, 9615).

a consent decree with EPA, incorporating that Record of

Decision, to implement the EPA-selected remedial actions

subject to EPA’s oversight and control.

B. Procedural Background

The City initially filed suit in the Superior Court of

Glynn County, Georgia, on October 20, 2022. The suit alleged continuing nuisance and continuing trespass under

Georgia law for the defendants’ failure to adequately remediate the pollutants emanating from the defendants’

land and affecting the City’s property. The City alleged

that “Honeywell’s activities at the Plant Site caused and

continue to cause toxic mercury and PCBs to be spilled,

discharged and deposited into the Turtle River, its tributaries, surrounding marshlands and onto property of the

City of Brunswick.” These pollutants, it alleged, entered

the City’s property “in amounts, concentrations and combinations that are harmful to health, safety and welfare of

the citizens of the City of Brunswick, and to animals, birds

and aquatic life.” According to the City, “[d]efendants’

continuing failure and refusal to permanently remove

their pollution from property of the City of Brunswick[]

unreasonably and substantially interferes with the City’s

right to exclude others and the pollutants of others from

its property” and with “the City’s use and enjoyment of its

property.” The City therefore alleged that the defendants

were “liable for all . . . remediation costs and damages” related to the hazardous waste on City property.

The defendants timely removed the case to the United

States District Court for the Southern District of Georgia

based on three distinct grounds for subject-matter jurisdiction: (1) federal officer removal under 28 U.S.C. § 1442;

(2) federal question jurisdiction under 28 U.S.C. § 1331;

and (3) diversity jurisdiction under 28 U.S.C. § 1332(a), asserting that Georgia Power had been fraudulently joined

to defeat diversity. The City subsequently moved to remand the case back to state court.

The district court granted the City’s motion for remand, rejecting each of the defendants’ asserted grounds

for removal. As relevant to this appeal, the court concluded

that the defendants were not “acting under” a federal officer when they allegedly released pollutants into the waters and marshlands around the City’s property, and that

EPA’s supervision of the defendants’ remediation efforts

was not enough to show otherwise, thus federal officer removal was not warranted. 4 The district court instructed

the Clerk to “REMAND this case to the Superior Court of

Glynn County, Georgia” and to “CLOSE this case” on September 1, 2023, and the district court’s remand order was

docketed in state court on September 6, 2023. The defendants timely appealed the district court’s order on September 25 and 26, 2023.

After the district court issued its remand order and we

docketed the defendants’ appeal, the parties continued litigating this case in state court. Glynn County Superior

Court received a certified copy of the order remanding the

case on September 6, 2023, and reasserted jurisdiction

over the matter. The superior court initially stayed the

proceedings pending appeal, but later granted the City’s

motion to withdraw the stay in April 2024. Both Honeywell

and Georgia Power filed answers and motions to dismiss

the City’s complaint in the state court proceedings. As litigation continued, the City amended its complaint twice.

The district court also rejected the defendants’ reliance on federal

question and diversity jurisdiction.

Meanwhile, the City filed a motion to dismiss this appeal, arguing that the defendants had waived their right to

appeal the remand order by substantially litigating the

case in state court. 5 Upon being notified of the City’s

amended complaints in state court, we ordered supplemental briefing on the question of whether the City’s

amended complaints had any effect on our jurisdiction

over the appeal.

After that supplemental briefing, and after oral argument was held, we requested further briefing on whether

we should stay the appeal pending the Supreme Court’s

decision in Plaquemines Parish, 146 S. Ct. 1052, which considered the proper test for federal officer removal. Additionally, we requested briefing on whether Coinbase, Inc.

v. Bielski, 599 U.S. 736 (2023), required an automatic stay

of district court proceedings once the defendants had filed

notices of appeal, such that the district court’s remand order was without effect. The parties briefed the Coinbase

issue as it relates to federal officer removal and agreed

that we should stay the appeal pending Plaquemines Parish, which we did. After the Supreme Court issued its opinion in Plaquemines Parish, we lifted the stay and requested and received supplemental briefs from the parties

addressing the effect of that opinion on this appeal. We

now consider this appeal in the light of all the parties’

briefing on the relevant issues.

II. Standard of Review

We review questions of subject matter jurisdiction de

novo. Wilson v. Hearos, LLC, 128 F.4th 1254, 1259 (11th

Cir. 2025). We also review a district court’s remand order

We carried this motion with the case.

de novo. Evans v. Walter Indus., Inc., 449 F.3d 1159, 1161

(11th Cir. 2006).

III. Discussion

This appeal requires us to address two distinct questions: (1) whether we have jurisdiction to review the defendants’ appeal and (2) whether the defendants properly

removed this case to federal court. We answer both questions in the affirmative.

A. We have jurisdiction to review this appeal

Because the parties litigated this case in state court after the district court’s remand, the City disputes our jurisdiction over this appeal. First, the City argues that we

should dismiss the appeal because the defendants sought

“resolution in their favor” in state court upon remand and

thus “waived their right to proceed in federal district

court” (elsewhere, “waived removal jurisdiction”). Second,

the City contends that its decision to amend the underlying complaint in state court moots this appeal because the

initial complaint—the subject of this appeal—no longer

governs the case following the City’s amended complaints

in state court. The defendants respond that they did not

waive their right to appeal by litigating in state court because they had no other option once the state court lifted

its stay pending appeal. They further argue that the City’s

amended complaints did not divest us of jurisdiction because, among other things, 28 U.S.C. § 1447 provides for

appeal as of right following remand orders in cases involving federal officer removal. We agree with the defendants

that we have subject matter jurisdiction to review the remand order, holding that the defendants’ timely appeal

triggered an automatic stay, such that the state court proceedings are rendered void for our purposes. 6

The federal officer removal statute allows for the removal from state court to federal court of any “civil action

or criminal prosecution” against “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.” 28 U.S.C. § 1442(a)(1).7 If a district court determines that removal was improper, it may order the case

remanded to state court. See id. § 1447(c). Generally, we

lack jurisdiction to review remand orders. See id. § 1447(d)

(“An order remanding a case to the State court from which

it was removed is not reviewable on appeal or otherwise

. . . .”). But § 1447(d) specially allows appeals in cases involving federal officer removal under § 1442, providing

that remand orders “shall be reviewable by appeal or otherwise.” Id. (emphasis added); see Thomas v. Phoebe Putney Health Sys., 972 F.3d 1195, 1200–01 & n.4 (11th Cir.

2020).

Additionally, every appeal implicates 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.’” Coinbase, Inc. v. Bielski,

599 U.S. 736, 740 (2023) (quoting Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)). In Coinbase, the

Because we hold that the notice of appeal automatically stayed the

remand order, the amended complaints filed in the post-remand state

court proceedings have no legal effect in this Court. We therefore reject Honeywell’s argument that we may look to the second amended

complaint filed in the state court when analyzing the merits of the

removal itself.

We will discuss the merits of the defendants’ federal officer removal

argument pursuant to § 1442 in a later section.

10a

Supreme Court applied this “longstanding tenet of American procedure” in the context of a motion to compel arbitration, concluding that “the Griggs rule requires that a

district court stay its proceedings while the interlocutory

appeal on the question of arbitrability is ongoing.” Id. at

740, 744. The question before us is whether the Griggs

principle requires the automatic stay of all district court

proceedings during appeals of remand orders in federal officer removal cases.

The defendants argue that Coinbase’s application of

Griggs applies to appeals of remand orders under the fed-

eral officer removal statute, because appeals divest the

district court of control over the aspects of the case involved in the appeal, and appeals regarding federal officer

removal, as do appeals of arbitrability, involve the entire

case. The City, on the other hand, contends that Coinbase’s reasoning was narrow and turned on the fact that

discovery would not be available in arbitration, while in

this context parties would engage in discovery in both federal and state court. We conclude that, under the Griggs

principle as applied in Coinbase, the defendants’ notice of

appeal stayed the entirety of the district court’s proceedings and divested the district court of jurisdiction to remand the case, rendering the subsequent state court proceedings without legal effect.

To begin, Griggs explained that “[t]he filing of a notice

of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal.” 459 U.S. at 58. This principle grew

from the general understanding that “a federal district

court and a federal court of appeals should not attempt to

assert jurisdiction over a case simultaneously.” Id. While

11a

neither the Supreme Court nor this Court have previously

applied the Griggs principle to appeals of remand orders

concerning federal officer removal, in Coinbase the Supreme Court applied Griggs to determine that a notice of

appeal of arbitrability automatically stayed all district

court proceedings. 599 U.S. at 741. The Court’s reasoning

in Coinbase demonstrates that Griggs calls for an automatic stay in this context as well.

At issue in Coinbase was the appeal of the district

court’s denial of a motion to compel arbitration. Id. Congress had provided, by statute, for immediate appeal of a

district court’s denial of such motions, but the statutory

provision did not explicitly call for an automatic stay of district court proceedings upon appeal. Id. at 740. The Court

determined, nonetheless, that the “Griggs principle resolve[d] th[e] case.” Id. at 741. Griggs held that an appeal

divested the district court of jurisdiction over “those aspects of the case involved in the appeal.” 459 U.S. at 58.

Because the appeal in Coinbase would decide “whether the

case belongs in arbitration or instead in the district court,”

the Court found that “the entire case [wa]s essentially ‘involved in the appeal.’” 599 U.S. at 741 (quoting Griggs, 459

U.S. at 58)). And Congress did not need to explicitly require a stay in the statutory text of the Federal Arbitration Act because, “absent contrary indications, the background Griggs principle already require[d] an automatic

stay.” Id. at 743–44. The Court observed that when Congress does not want the Griggs principle to apply, it “typically says so” expressly, pointing to a litany of “statutory

‘non-stay’ provisions” where Congress had clearly chosen

to “authorize an interlocutory appeal, but not to automatically stay district court proceedings pending that appeal.”

12a

Id. at 744 (emphasis in original); see id. at 744 n.6 (collecting statutes with express “non-stay” provisions).

In support of its conclusion, the Court cited circuit decisions “in the analogous contexts of qualified immunity

and double jeopardy” and of other interlocutory appeals

that had similarly held that district court proceedings

were automatically stayed for the pendency of the appeal.

Id. at 742–43. The Court further pointed out that this

“common practice reflects common sense”: “continuation

of proceedings in the district court largely defeats the

point of the appeal” and functionally “nullified” Congress’s

choice to provide an interlocutory appeal of such orders.

Id. (quotation omitted). Without a stay, the benefits of arbitration, such as avoiding extensive discovery, could be

lost and parties could be forced to settle while awaiting the

appellate court’s decision. Id. at 743. Thus, the Court concluded that the district court “was required to stay its proceedings” once Coinbase appealed its order. Id. at 747.

The Coinbase Court’s reasoning clearly supports requiring an automatic stay of all district court proceedings

in this case. First, the Court presented the Griggs principle as a “rule” that required its conclusion that appeals of

arbitrability decisions automatically stayed underlying

proceedings—a rule that operated in the background of

statutory grants of appellate review, unless Congress

clearly indicated otherwise. Id. at 743–44. The provision

granting review in this case, § 1447(d), includes no express

“non-stay” language, so Coinbase indicates that the background Griggs principle applies.

Second, just as an appeal of a motion to compel arbitration decides the forum in which proceedings will continue, the appeal of a remand order decides “whether the

case belongs in [state court] or instead in the district

13a

court.” Id. at 741. In both contexts, “the entire case is essentially ‘involved in the appeal.’” Id. (quoting Griggs, 459

U.S. at 58).

And third, Coinbase’s concern about nullifying Congress’s grant of appellate review also applies here: the

City’s own mootness arguments demonstrate the very real

possibility of undermining appellate review in federal officer removal cases absent an automatic stay. Unless the

district court or state court grants a discretionary stay

pending appeal, it is likely that state court proceedings

during the appeal would require the defendants to engage

in litigation in state court—the very action the City contends moots this appeal—or that the plaintiff would amend

its complaint—the grounds for the City’s other mootness

argument— in order to avoid a possible reversal on appeal.

Recognizing an automatic stay in this context preserves

Congress’s choice to grant appellate review of decisions

denying federal officer removal.

For these three reasons, it necessarily follows from

Coinbase that the Griggs rule requires an automatic stay

of all district court proceedings pending appeal of a remand order in the context of federal officer removal.8

We are not alone in concluding that Griggs and Coinbase require an automatic stay in this context. The Fourth

Circuit recently considered the same question in the context of federal officer removal and determined that

“[u]nder a fair[] reading of Coinbase, the district court was

automatically stayed from mailing the remand order.”

City of Martinsville v. Express Scripts, Inc., 128 F.4th 265,

268 (4th Cir. 2025). The court distilled from Coinbase three

No party in this case requested a stay in federal court, but Coinbase

is clear that the stay is “automatic.” See, e.g., 599 U.S. at 742.

14a

principles it believed resolved the question: First, when

the question on appeal is “the whole ballgame” (such as

whether the district court or the arbitrator should act as

factfinder), the appeal divests the district court of “control

over more or less the whole case,” otherwise the appeal

would be pointless. Id. at 269. Second, an automatic stay

is, as its name implies, self-executing, so a district court

must “immediately . . . halt all proceedings covered by the

Griggs principle when a proper notice of appeal is docketed, whether or not the parties ask it to.” Id. at 269–70.

And third, “because Griggs identifies a background principle,” Congress need not affirmatively include an automatic stay provision (although it can certainly create exceptions to the general principle); “the default rule is that

an appeal automatically stays all aspects of the case involved in the appeal.” Id. at 270. Based on these principles—applied in an analysis closely tracking our discussion above—the Fourth Circuit concluded it was “clear

that the Griggs principle applies just as forcefully here as

it did in Coinbase itself.” Id.9

The Ninth Circuit, considering the same automatic stay question in

the federal officer removal context, limited Coinbase to the arbitration context. California v. Express Scripts, Inc., 139 F.4th 763, 768

(9th Cir. 2025), cert. denied, 146 S. Ct. 1507 (2026) (mem.). The court

pointed out that federal officer removal from state court presents

“unique federalism issues” not present in the arbitration context and

highlighted that “a stay is an ‘intrusion into the ordinary processes of

administration and judicial review.’” Id. (quoting Nken v. Holder, 556

U.S. 418, 427 (2009)). According to the Ninth Circuit, a stay in a case

involving an improper removal might “infringe upon the rights of

state courts” to hear “cases that should rightfully be heard in their

fora, in violation of comity principles.” Id. at 769. Thus, the Ninth Circuit determined that stays in this context should be discretionary rather than automatic. Id.

15a

Relying, then, on the Griggs principle as explained in

Coinbase, we hold that the appeal of a motion to remand

under § 1447(d) triggers an automatic stay of all district

court proceedings—including the remand order—pending

Federalism and comity with state courts are certainly important principles. See, e.g., Leonard v. Ala. State Bd. of Pharmacy, 61 F.4th 902,

907 (11th Cir. 2023). But the Griggs principle is a rule of federal appellate procedure that stays only federal district court proceedings.

And, in any event, Congress struck a balance when it explicitly allowed defendants to appeal remand orders in the federal officer removal context—an exception from the non-appealability of most remand orders. See 28 U.S.C. § 1447(c), (d). It did so without including

an express non-stay provision, as it has done elsewhere. See Coinbase, 599 U.S. at 744. So a free-floating federalism concern cannot

overcome Congress’s decision to provide a meaningful appeal of decisions denying federal officer removal.

The Ninth Circuit also asserted that the “unique features of arbitration” demonstrate why the Coinbase Court would conclude that an

automatic stay was warranted in that context, and that the same concerns did not attach in the federal officer removal context. California,

139 F.4th at 770. But as we discussed above, Coinbase stated the

Griggs rule as a clear background principle—regardless of the type

of case—that “divests the district court of its control over those aspects of the case involved in the appeal.” 599 U.S. at 740 (quotations

omitted). And in appeals of both arbitrability decisions and federal

officer removal denials, the question on appeal is “whether the case

should be litigated in the district court”; in both contexts, “the entire

case is essentially involved in the appeal.” Id. at 741 (quotations omitted). The Ninth Circuit also asserted that “[a]ll other circuits where

this question has been raised, besides the Fourth Circuit, appear to

have reached the same conclusion.” California, 139 F.4th at 766 n.2.

But it cites no published circuit decisions analyzing the Coinbase issue in this context and refusing to apply it.

For these reasons, we are unpersuaded by the Ninth Circuit’s reasoning and conclude that Coinbase does indeed counsel application of

the Griggs principle in the federal officer removal context.

16a

resolution of the appeal. See Coinbase, 599 U.S. at 740.

Thus, any subsequent state court proceedings are rendered void for our purposes. See Maseda v. Honda Motor

Co., Ltd., 861 F.2d 1248, 1254–55 (11th Cir. 1988) (noting

that “after removal,” “[a]ny subsequent proceedings in

state court on the case are void ab initio”); cf. Lee v. U.S.

Bank Nat’l Ass’n, 102 F.4th 1177, 1180 (11th Cir. 2024) (observing that, in the bankruptcy context, “actions taken in

violation of the automatic stay are void and without effect,”

including foreclosure actions in state court (quotations

omitted)).

It is irrelevant to our conclusion that, in this case, the

district court had already mailed the remand order to the

state court when the defendants filed their notice of appeal.10 The Griggs principle operated to stay the remand

order even though it had already been mailed. Congress

explicitly provided that “an order remanding a case to the

State court from which it was removed” pursuant to federal officer removal “shall be reviewable by appeal or otherwise.”11 28 U.S.C. § 1447(d). The administrative task of

Section 1447(c), which applies to removals generally, requires the

district court clerk to mail a “certified copy of the order of remand . . .

to the clerk of the State court,” at which time the “State court may

thereupon proceed with such case.” 28 U.S.C. § 1447(c). While the district court docket does not indicate exactly when the remand order was

mailed in this case, it does include the court’s remand order, dated

September 1, 2023, instructing the Clerk to “REMAND this case to

the Superior Court of Glynn County, Georgia” and to “CLOSE this

case.” The docket further reflects that the Clerk entered judgment

and closed the case that same day. The Superior Court docket shows

that the district court’s remand order was docketed on September 6,

2023. The defendants’ timely notices of appeal followed on September

25 and 26, 2023.

This “or otherwise” language has been interpreted to mean that the

district court retains jurisdiction to “review . . . vacate or reinstate”

17a

mailing the remand order to the state court cannot operate

to prevent the very opportunity for review Congress explicitly provided in federal officer removal cases. Such

would be the case if the district court lost jurisdiction over

a case to the state court as soon as it mailed a remand order whenever it did so before the defendants filed notices

of appeal. Other circuits have agreed that the mailing of a

reviewable remand order does not divest the district court

of jurisdiction. See Plaquemines Parish v. Chevron USA,

Inc., 84 F.4th 362, 371–72 (5th Cir. 2023) (holding that a

district court had jurisdiction to issue a discretionary stay

of a reviewable remand order even after the order was

mailed); Shapiro v. Logistec USA, Inc., 412 F.3d 307, 312

(2d Cir. 2005) (holding that, unlike unreviewable remand

orders, which divest the district court of jurisdiction when

the order is mailed, “the mailing of [a reviewable] remand

order to the state court does not strip the federal court of

jurisdiction”); Hudson United Bank v. LiTenda Mortg.

Corp., 142 F.3d 151, 158 (3d Cir. 1998) (concluding that

“the mailing of a remand order does not divest a district

court of jurisdiction to entertain a motion for reconsideration” in cases involving reviewable remand orders).

Because the district court retains jurisdiction to reconsider or amend reviewable remand orders after such orders are mailed, the Griggs principle acted to stay the district court’s reviewable remand order in this case when the

reviewable remand orders. Plaquemines Parish v. Chevron USA,

Inc., 84 F.4th 362, 371–72 (5th Cir. 2023) (quoting In re Shell Oil Co.,

631 F.2d 1156, 1158 (5th Cir. 1980)); see Bonner v. City of Prichard,

661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that all deci-

sions from the Fifth Circuit Court of Appeals issued before the close

of business on September 30, 1981, are “binding as precedent in the

Eleventh Circuit”).

18a

defendants filed notices of appeal, even though the order

had already been mailed. And, again, because the remand

order was stayed, the subsequent state court proceedings

were “void ab initio” for our purposes. See Maseda, 861

F.2d at 1254–55. We therefore disregard both the City’s

amended complaints in state court and the defendants’ litigation activity there. For this reason, the City’s argument

that its amended complaints in state court mooted this appeal fails, and we deny the City’s motion to dismiss this

appeal.12

The City’s motion to dismiss fails for another reason. The City argues that the defendants waived any right they had to proceed in federal court when they “s[ought] resolution on the merits in their favor”

in state court after remand. Specifically, the City points to the defendants’ respective answers to the complaint, motions to dismiss, and participation in a hearing on pending motions. The City argues that by

seeking relief in state court, the defendants have consented to the

state court’s jurisdiction.

True, a defendant with valid grounds for removal can nonetheless

waive the right to remove by “taking some substantial offensive or defensive action in the state court action indicating a willingness to litigate in that tribunal before filing a notice of removal with the federal

court.” Yusefzadeh v. Nelson, Mullins, Riley & Scarborough, LLP, 365

F.3d 1244, 1246 (11th Cir. 2004) (emphasis added) (quotations omitted). In this case, though, the City points only to actions the defendants took after the district court remanded the case to state court. As

previously recounted, the state court initially stayed the proceedings

pending this appeal after the district court remanded the case. The

City, however, asked the court to withdraw the stay, which the court

ultimately did. At that point, the defendants had no choice but to participate in the state court litigation proceedings. The City has not identified any case of this Court where such post-remand activities in state

court waived defendants’ otherwise-meritorious appeal of a remand

order.

Thus, the defendants’ litigation activity in state court post-remand, necessitated by the City’s request to lift the stay pending appeal, does

19a

Having concluded that we have jurisdiction, we now

turn to the merits of this appeal.

B. The defendants may remove this case pursuant to the

federal officer removal statute

The defendants argue that this action is removable

pursuant to 28 U.S.C. § 1442(a)(1), which governs federal

officer removal, because the defendants’ remediation activities were performed under the authority of EPA, and

the remediation is the subject of the City’s claims. The

City responds that federal officer removal is inappropriate

because the defendants are merely regulated parties, not

government employees or contractors serving as de facto

federal agents. We conclude that the defendants are entitled to remove the action to federal court under

§ 1442(a)(1).

The federal officer removal statute allows for the removal from state court to federal court of any action

against “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.” 28 U.S.C.

§ 1442(a)(1) (emphasis added). The statute has been “liberally construed” in favor of a federal forum, Watson v.

Philip Morris Co., 551 U.S. 142, 147 (2007), and “defendants enjoy much broader removal rights under the federal

officer removal statute than they do under the general removal statute,” Leite v. Crane Co., 749 F.3d 1117, 1122

not waive their right to remove or to appeal the district court’s remand

order. See R.R. Street & Co. v. Transp. Ins. Co., 656 F.3d 966, 973 (9th

Cir. 2011) (concluding parties did not waive their right to appeal a remand order when they “merely sought to preserve their claims in state

court pending the outcome of th[e] appeal”).

20a

(9th Cir. 2014); see also Florida v. Cohen, 887 F.2d 1451,

1453 (11th Cir. 1989) (“This statute is an incident of federal

supremacy and is designed to provide federal officials with

a federal forum in which to raise defenses arising from

their official duties.”).

Because the defendants are not themselves federal officers, they must satisfy a three-pronged test to show that

removal is proper: they must (1) “show that [they are persons] within the meaning of the statute who acted under a

federal officer,” Caver v. Cent. Ala. Elec. Coop., 845 F.3d

1135, 1142 (11th Cir. 2017); (2) show that the suit is “for or

relating to any act under color of such office”—i.e., establish that the actions taken under federal control are

“closely connected” to the plaintiff’s claims, Plaquemines

Parish, 146 S. Ct. at 1057, 1060 (quotations omitted); and

(3) “assert a colorable federal defense,” id. at 1057–58

(quotations omitted). See 28 U.S.C. § 1442(a)(1).

The defendants, as the parties seeking removal, bear

the burden of proof.13 See Georgia v. Meadows, 88 F.4th

1331, 1348 (11th Cir. 2023). Importantly, at the removal

stage of litigation, courts “credit the [defendant’s] theory

of the case for purposes of [all] elements of [the court’s]

jurisdictional inquiry,” Jefferson County v. Acker, 527

U.S. 423, 432 (1999), and we subject the defendant’s allegations in support of removal to “the same liberal rules . .

Because the removing party bears the burden of proof, we may consider evidence attached to the removal petition along with post-petition evidence to establish facts relevant to jurisdiction that existed at

the time of removal. See Sierminski v. Transouth Fin. Corp., 216 F.3d

945, 946, 949 (11th Cir. 2000). We therefore may rely on the documents the defendants attached to their notice of removal, which include the defendants’ consent decree with EPA and other documents

related to the defendants’ relationship with EPA.

21a

. that are applied to other matters of pleading,” Dart Cherokee Basin Operating Co. v. Owens, 574 U.S. 81, 87 (2014)

(quotations omitted). See Baker v. Atl. Richfield Co., 962

F.3d 937, 941 (7th Cir. 2020) (noting that removal allegations need only be “facially plausible”); Agyin v. Razmzan,

986 F.3d 168, 175 (2d Cir. 2021) (“Not only must the words

of § 1442 be construed broadly but a court also must credit

[the] [d]efendants’ theory of the case when evaluating the

relationship between the defendants’ actions and the federal officer.” (quotations omitted)).

1. The defendants were persons “acting under” EPA

when they undertook to remediate the pollution

emanating from the Plant Site 14

The defendants satisfy the first prong of the federal officer removal test because they acted under EPA when remediating the pollution on and around the Plant Site. The

Supreme Court has explained that the relationship between the officer or agency and the private entity “acting

under” the agency “typically involves subjection, guidance, or control.” Watson, 551 U.S. at 151 (quotations omitted). In addition, the “private person’s ‘acting under’ must

involve an effort to assist, or to help carry out, the duties

or tasks of the federal superior.” Id. at 152 (emphasis in

original). “In other words, the private person must help

federal officers fulfill a basic governmental task that the

government otherwise would have had to perform.” Caver,

845 F.3d at 1143. At the same time, this help or assistance

must involve more than “simply complying with the law.”

Watson, 551 U.S. at 152 (emphasis in original).

The parties do not dispute that the defendants qualify as persons

within the meaning of the statute. See Caver, 845 F.3d at 1142.

22a

A private firm’s compliance (or noncompliance)

with federal laws, rules, and regulations does not

by itself fall within the scope of the statutory

phrase “acting under” a federal “official.” And

that is so even if the regulation is highly detailed

and even if the private firm’s activities are highly

supervised and monitored.

Id. at 153.

The City does not dispute that the defendants are subject to EPA’s guidance and control of their remediation efforts. It argues, however, that the defendants are not assisting EPA with its own governmental task but simply

complying with EPA regulation. We disagree.

Two cases illustrate the distinction between “acting

under” and mere compliance. First, in Watson the Supreme Court determined that Philip Morris, a tobacco

company, was not “acting under” the Federal Trade Commission (“FTC”) when it advertised “light” cigarettes that

indicated “lower tar and nicotine levels than those present

in other cigarettes.” Id. at 146. Philip Morris argued that

it was “acting under” the FTC because the plaintiffs were

essentially challenging the FTC-imposed method of testing cigarettes when the plaintiffs argued that Philip Morris’s cigarettes were more potent than its advertising suggested. Id. The Court disagreed, concluding that Philip

Morris was not “perform[ing] a job that,” otherwise, “the

Government itself would have had to perform,” id. at 154,

nor did the FTC’s regulation and supervision of Philip

Morris’s testing constitute “a delegation of authority,” id.

at 157. Instead, the “FTC/Philip Morris relationship” was

a “usual regulator/regulated relationship,” which did not

23a

“bring[] Philip Morris within the terms of the [federal officer removal] statute.”15 Id. at 157; see also Schleider v.

GVDB Operations, LLC, 121 F.4th 149, 159 (11th Cir.

2024) (concluding that an assisted living home complying

with federal COVID-19 orders could not remove a case to

federal court because, “aside from allegedly complying

with ‘orders’ and ‘instructions’ from the Secretary and

HHS, Defendants ha[d] failed to show that they helped or

assisted a federal agency to perform its duties or tasks”

(alterations adopted)).

Next, in Caver we came to the opposite conclusion and

determined that a company “acted under” a federal

agency when considering the relationship between a rural

electric cooperative and the U.S. Department of Agriculture Rural Utilities Services (“RUS”). 845 F.3d at 1143–

44. We first noted that RUS highly regulated the defendant, “demonstrat[ing] the close and extensive relationship

between [the defendant] and RUS” and the “significant

level of control” RUS exercised over the defendant. Id. at

1143. But, as Watson made clear, even significant regulation, standing alone, would not be enough for removal to

be proper. Id. at 1142. Our analysis therefore proceeded to

determine that the relationship between the government

and the defendant went beyond regulation: rural electric

cooperatives functioned as “instrumentalities of the

United States” that existed to carry out the government’s

The Watson Court offered other examples of “help[]” or “assist[ance]” that demonstrated compliance rather than “‘acting under’

a federal official who is giving an order or enforcing the law”: “[t]axpayers who fill out complex federal tax forms, airline passengers who

obey federal regulations prohibiting smoking, [and] for that matter

well-behaved federal prisoners.” 551 U.S. at 152.

24a

objective of “bringing electricity to sparsely populated rural areas that would not otherwise receive electricity.” Id.

at 1143. Because the defendant “assist[ed] the RUS by

performing a job that, in the absence of a contract with a

private firm, the Government itself would have had to perform,” we concluded that it was “acting under” RUS and

thus met the first prong of the federal officer removal test.

Id. at 1144 (alteration adopted) (quotations omitted).

Watson and Caver provide the framework for our de-

cision in this case. Does EPA simply regulate the defendants, requiring them to comply with its directives, or are

the defendants’ remediation efforts assisting EPA by performing a task that EPA would otherwise have to perform? CERCLA’s text and the consent decree answer this

question: CERCLA makes EPA responsible for the remediation efforts on the Plant Site, a responsibility it can, and

did, delegate to the defendants when it required them to

undertake various remediation actions and entered a consent decree with the defendants calling for further remediation. See Atl. Richfield, 590 U.S. at 6.

Congress enacted CERCLA, 42 U.S.C. § 9601 et seq.,

also known as the “Superfund statute,” to address “the serious environmental and health risks posed by industrial

pollution.” Burlington N. & Santa Fe Ry. Co. v. United

States, 556 U.S. 599, 602 (2009). CERCLA provides “a

comprehensive scheme for the cleanup of hazardous waste

sites.” Broward Gardens Tenants Ass’n v. EPA, 311 F.3d

1066, 1071 (11th Cir. 2002). CERCLA “directs EPA to

compile and annually revise a prioritized list of contaminated sites for cleanup, commonly known as Superfund

sites.” Atl. Richfield, 590 U.S. at 6 (citing 42 U.S.C. § 9605).

EPA, wielding authority delegated by the President, must

25a

either “clean those sites itself or compel responsible parties to perform the cleanup.” Id. (citing 42 U.S.C. §§ 9604,

9606, 9615).

The statute and implementing regulations require

EPA to develop a cleanup plan that includes “a remedial

investigation and feasibility study to assess the contamination and evaluate cleanup options” (which EPA will perform or order a private party to conduct) and “extensive

public consultation,” including public notice and comment

and “substantial and meaningful involvement by each

State” in the choice of a cleanup plan. Id. at 7 (quotation

omitted) (first citing 40 C.F.R. § 300.430 (2019); and then

citing 42 U.S.C. §§ 9613(k), 9617, 9621(f)(1)). Once the feasibility study begins, “‘no potentially responsible party

may undertake any remedial action’ at the site without

EPA approval.” Id. (quoting 42 U.S.C. § 9622(e)(6)).

Each of these steps has taken place in this case, and

EPA has tasked the defendants with the responsibilities

EPA would otherwise have had to accomplish itself. EPA

ordered the defendants to undertake a remedial investigation and feasibility study in 1995 and shortly thereafter

placed the Plant Site on the CERCLA National Priorities

List. Rather than “clean th[e] site[] itself,” EPA chose to

compel the defendants “to perform the cleanup.” See Atl.

Richfield, 590 U.S. at 6. Thus, in the years following the

investigation and study, EPA directed the defendants to

undertake various remediation actions such as “remov[ing] one foot of soil from thirteen acres of the marsh

and sediment in creeks in front of the old Honeywell trash

dump.” Ultimately, in 2016, the defendants and EPA entered a consent decree binding the parties to EPA’s chosen remediation plan (as outlined in EPA’s final Record of

26a

Decision). The consent decree affirmed that EPA had followed CERCLA’s required steps (including public notice

and opportunity for State involvement).

The consent decree demonstrates that EPA maintained considerable authority over the remediation activities. It explained that EPA could designate a “Project Coordinator” along with “other representatives, which may

include [EPA’s] employees, contractors and/or consultants, to oversee the Work,” oversight that “include[d] the

authority to halt the Work and/or to conduct or direct”

emergency response actions when “necessary.” EPA

could also require the defendants to “conduct community

involvement activities under EPA’s oversight” including

“designation of a Community Involvement Coordinator

and implementation of a technical assistance plan.” The

consent decree also outlined that EPA could take over performance of the remediation work if it determined that the

defendants were not adequately implementing the remediation plan.

The details of CERCLA’s statutory scheme and the

history of EPA’s involvement here show that the defendants are acting under EPA in carrying out remediation efforts at the Plant Site: EPA exercised a “significant level

of control” over the defendants, and the defendants were

carrying out CERCLA and EPA’s objectives when they

engaged in remediation efforts. See Caver, 845 F.3d

at 1143. More importantly, because CERCLA tasks EPA

with cleaning up hazardous waste, directing it either to remediate such pollution itself or to “compel responsible parties to perform the cleanup,” Atl. Richfield, 590 U.S. at 6,

the defendants assisted EPA by “perform[ing] a job that

. . . the Government itself [otherwise] would have had to

perform.” Watson, 551 U.S. at 154; see Ruppel v. CBS

27a

Corp., 701 F.3d 1176, 1181 (7th Cir. 2012) (holding this

prong is met when “the federal government uses a private

corporation to achieve an end it would have otherwise used

its own agents to complete”). Just as in Caver, the defendants operate—in a limited manner—as “instrumentalities

of the United States” for the purpose of cleaning the Plant

Site on behalf of EPA. 16 Id. at 1143.

The City argues that we should be persuaded by a

Fourth Circuit case holding that defendants seeking

§ 1442 removal were not “acting under” EPA when EPA

required them “to perform certain remedial measures to

obtain an operating permit.” W. Va. State Univ. Bd. of

Governors v. Dow Chem. Co., 23 F.4th 288, 301 (4th Cir.

2022) (“WVSU ”). It is true that the Fourth Circuit case

shares some surface similarities with this one: both involve

environmental pollution emanating from a property

owned by the defendants, and in both cases the defendants

worked with EPA to identify and implement necessary

corrective actions. See id. at 292–94. But the defendants’

Although the City’s allegations relate to pollution that has traveled

to its own property, as well as pollution at the Superfund site, the defendants argue that CERCLA and the consent decree govern all their

remedial actions related to pollution from the Superfund site, not just

remediation on the site itself. See 42 U.S.C. § 9622(e)(6) (noting that,

after a consent decree has been entered, “no potentially responsible

party may undertake any remedial action at the facility unless such

remedial action has been authorized by the President” through EPA);

id. § 9601(9) (defining “facility” as “any site or area where a hazardous

substance has been deposited . . . or otherwise come to be located”).

See Atl. Richfield, 590 U.S. at 17–23 (explaining these provisions). At

this time, we need not decide whether the defendants’ argument

about the scope of CERCLA and the consent decree under these provisions is correct on this point, since we “credit the [defendant’s] theory of the case for purposes of [all] elements of [the court’s] jurisdictional inquiry.” Jefferson County, 527 U.S. at 432.

28a

relationship with EPA in WVSU was governed, not by

CERCLA, but by the Resource Conservation and Recovery Act (“RCRA”)—a critical distinction. Under RCRA,

the defendants applied for a permit to operate hazardous

waste management units, and EPA granted the permit

with a general condition that the defendants had an ongoing obligation to comply with any corrective measures

EPA imposed. Id. at 292–94. The WVSU defendants attempted to argue that they were “acting under EPA authority” because their “corrective actions were taken only

at the direction and oversight of EPA, which . . . EPA itself

would have performed under CERCLA if Defendants had

not.” Id. at 303 (alteration adopted) (quotations omitted).

But the Fourth Circuit found that the defendants were

simply regulated by EPA pursuant to RCRA, as Philip

Morris was regulated by the FTC in Watson, and thus removal was improper. Id. at 302–06. Crucially, the WVSU

court explicitly distinguished its facts from a hypothetical

case where “the federal government [had] ordered a

‘cleanup’ under CERCLA and [had] taken over remediation responsibilities” on the property, concluding that the

defendants’ argument invoking CERCLA was speculative

and irrelevant, given the “detailed and lengthy procedure”

needed to designate the property a Superfund site and develop a remedial action plan in the first place. Id. at 306; cf.

Mays v. City of Flint, 871 F.3d 437, 447 (6th Cir. 2017) (concluding that a state environmental agency was not entitled

to removal simply because EPA could “intervene if a state

fails to properly exercise its primary enforcement authority”).

No such speculation is needed here. EPA has already

executed CERCLA’s lengthy procedure and adopted a re-

29a

medial plan under which EPA has chosen to have the defendants carry out the necessary remediation efforts as required by the consent decree. Thus, the defendants do

more than “simply comply[]” with “federal laws, rules, and

regulations,” Watson, 551 U.S. at 152–53; rather, they are

“help[ing] federal officers fulfill a basic governmental task

that the government otherwise would have had to perform,” Caver, 845 F.3d at 1143.

Accordingly, we conclude that the defendants were

“acting under” EPA in the context of their remediation efforts on the Superfund site, satisfying the first prong of

the federal officer removal test.

2. The City’s allegations and state tort claims are “for

or relating to” the defendants’ remediation activities as directed by EPA

Under the second prong of the federal officer removal

test, we consider whether the actions forming the basis of

the City’s claims are “closely connected” to the defendants’ actions taken under color of law. Plaquemines Parish,

146 S. Ct. at 1060. The defendants argue that they satisfy

this prong of the test because the defendants’ remediation

efforts, governed by CERCLA and the consent decree, are

“critical to the City’s theory of liability for continuing nuisance and continuing trespass.”17

The federal officer removal statute allows for removal

of cases “for or relating to any act under color of such office,” 28 U.S.C. § 1442(a)(1), language we have interpreted

to call for only “a connection or association between the act

The City does not argue, on appeal, why the defendants fail to meet

the second prong of the federal officer removal test, asserting only

that the defendants are not “de facto federal agent[s].”

30a

in question and the federal office” rather than a strict

causal relationship, Caver, 845 F.3d at 1144 (quotations

omitted); see also Plaquemines Parish, 146 S. Ct. at 1060

(“[A] removing defendant need not show that his federal

duties specifically required or strictly caused the challenged conduct.”). While “a tenuous, remote, or peripheral” relationship between the “challenged conduct and

the performance of [the defendants’] federal duties” is not

sufficient, “[o]ne thing can relate to another even if the

connection is indirect” and “even if it was not specifically

designed to affect it.” Plaquemines Parish, 146 S. Ct. at

1061, 1060 (quotations omitted); see also id. at 1062 (“[T]he

ordinary meaning of ‘relating to’ does not require the defendant to show that his federal duties specifically invited

his challenged conduct.”).

Caver demonstrates the type of “connection or association” that satisfies this prong of the test. In Caver, the

defendant argued that it could not make the cash distributions for which the plaintiffs were suing because doing so

would cause it to breach its agreement with RUS, the federal agency. 845 F.3d at 1145. We determined the defendant had met the connection prong because it alleged that

“the acts for which [it was] being sued . . . occurred because

of [its] performance of its duties” under its agreement with

RUS. Id.; see Latiolais v. Huntington Ingalls, Inc., 951

F.3d 286, 296 (5th Cir. 2020) (en banc) (concluding a defendant satisfied this prong when the defendant performed the activities forming the basis of the lawsuit “pursuant to directions of the U.S. Navy”). On the other hand,

we have rejected a federal officer’s attempt to remove

when his official duties did not overlap with the activities

for which he was being prosecuted. See Meadows, 88 F.4th

31a

at 1349; see also Cabalce v. Thomas E. Blanchard & Assocs., Inc., 797 F.3d 720, 730 (9th Cir. 2015) (affirming remand when a defendant “failed to provide any evidence of

federal control or supervision over” the actions plaintiffs

challenged, as relevant to the court’s discussion of the “for

or relating to” prong).

As in Caver, the allegations in the City’s complaint and

the defendants’ notice of removal demonstrate that the

City’s claims against the defendants are closely connected

to the defendants’ remediation efforts as directed by EPA.

The City alleges that “Honeywell’s activities at the Plant

Site caused and continue to cause toxic mercury and PCBs

to be spilled, discharged and deposited into the Turtle

River . . . and onto property of the City of Brunswick.” It

has brought claims for “continuing trespass” and “continuing nuisance,” alleging that the “[d]efendants’ continuing

failure and refusal to permanently remove their pollution

from property of the City of Brunswick[] unreasonably

and substantially interferes with the City’s right to exclude others and the pollutants of others from its property” and with “the City’s use and enjoyment of its property.” 18 But the defendants’ notice of removal alleges that

their remedial actions are governed by their consent decree with EPA, which, along with CERCLA’s text, prevents them from undertaking any remedial actions without EPA’s authorization. Thus, according to the defendants’ allegations, “the acts for which [they are] being

sued”—failure to adequately remediate pollution on the

City’s property—“occurred because of [their] performance of [their] duties” and their consent decree with

The City does not allege that either defendant is continuing to dump

new pollutants on its property, just that the defendants are not adequately dealing with the pollution already present.

32a

EPA. Caver, 845 F.3d at 1145. The defendants have “plausibly alleged a close relationship between [their] challenged conduct and the performance of [their] federal duties.” 19 Plaquemines Parish, 146 S. Ct. at 1061.

We therefore conclude that the City’s continuing trespass and nuisance claims for the defendants’ continued

failure to remediate the pollution on the City’s property

are related to the defendants’ CERCLA-governed remediation plan, meeting the second prong of the federal officer removal test.20

In its briefing below, the City argued that the defendants failed the

“causal connection” prong because it was “not suing Defendants for

the way they have conformed or failed to conform to the Consent Decree” but rather “for the pollution that migrated into the Marshes of

Glynn long before EPA became involved.” But the language of the

complaint alleges “continuing trespass” and “continuing nuisance,”

language which, on its face, challenges the sufficiency of the defendants’ current remediation efforts by asserting that pollution continues

to emanate from the Plant Site onto the City’s property. And even if

the claims in the complaint also encompass the defendants’ actions

before EPA’s involvement, removal would still be proper. See Nadler

v. Mann, 951 F.2d 301, 306 n.9 (11th Cir. 1992) (quoting another case

for the proposition that “if one claim cognizable under Section 1442 is

present, the entire action is removed, regardless of the relationship

between the Section 1442 claim and the non-removable claims”).

Our holding today serves to clarify this Court’s interpretation of the

“for or relating to” prong of the federal officer removal test. A previous version of the relevant provision allowed for removal of only those

actions “for any act under color of such office.” See 28 U.S.C.

§ 1442(a)(1) (2010). But in 2011 Congress amended the provision, adding the words “or relating to.” Caver, 845 F.3d at 1144 n.8. Even after

this amendment, we continued to require a “causal connection” or a

“causal nexus” between a plaintiff’s claims and a defendant’s conduct,

although we recognized that the provision’s amendment “broaden[ed]

the scope of acts that allow a federal officer to remove a case to federal

33a

3. The defendants have raised a colorable federal defense

Finally, for the third prong of the federal officer removal test, we ask whether the defendants have raised a

colorable federal defense. Caver, 845 F.3d at 1145. The defendants argue that the City’s claims are preempted by

federal law because the City seeks to hold the defendants

liable for failing to remove pollution from the Plant Site

and surrounding areas, which conflicts with the defendants’ remedial obligations under EPA’s CERCLA-based

directives.21

To satisfy this prong of the federal officer removal test,

a “colorable federal defense need only be plausible; its ultimate validity is not to be determined at the time of removal.” Id. (quotation omitted); see Mesa v. California, 489

court.” Id. at 1144–45 & 1144 n.8; see Meadows, 88 F.4th at 1348 (requiring the defendant to “establish some causal connection or association between [the alleged criminal actions] and his federal office” but

noting that “the bar for proof is quite low” (quotations omitted)). The

Supreme Court has since affirmed that “a removing defendant need

not show that his federal duties specifically required or strictly

caused the challenged conduct.” Plaquemines Parish, 146 S. Ct. at

1060; see Town of Pine Hill v. 3M Co., --- F.4th ---, 2026 WL 2178967,

at *3 (11th Cir. July 29, 2026) (observing that “the hurdle erected by

this requirement is quite low” (quotations omitted)). Instead, the “for

or relating to” language requires only that the acts challenged by the

removed lawsuit are “closely connected to the performance of [the

defendants’] federal duties.” Plaquemines Parish, 146 S. Ct. at 1062.

Thus, while Plaquemines Parish does not change the test we have applied to the second prong pursuant to the broadened statutory language, it does suggest that we retire the “causal connection” and

“causal nexus” language we have previously used.

As with the second prong, the City offers no argument on appeal

why the defendants fail the third prong of the federal officer removal

test.

34a

U.S. 121, 129 (1989) (“[T]he validity of the defence authorized to be made is a distinct subject” and “has no connection whatever with the question of jurisdiction.” (quotation

omitted)). Because one key purpose of federal officer removal is to allow federal defenses to be tried in federal

court, the “law does not require that the removing defendant virtually win his case before it can be removed.” Caver,

845 F.3d at 1145; see Isaacson v. Dow Chem. Co., 517 F.3d

129, 138 (2d Cir. 2008) (stating that a defendant need only

“raise a claim that is defensive and based in federal law”

and “aris[es] out of [the party’s] official duties” (quotations

omitted)). 22 Thus, in Caver, we accepted as plausible the

defendant’s federal preemption defense when the Supreme Court had “expressly left open the possibility” that

preemption could attach in a case like the defendant’s. 845

F.3d at 1146.

The defendants in this case have offered a colorable

federal defense: they plausibly contend that federal directives pursuant to CERCLA preempt state tort actions.

“Conflict preemption can occur when (1) it is impossible

for a party to comply with both state and federal law, or

(2) the state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of

A recent Fifth Circuit decision demonstrates the low bar for a colorable federal defense. See Caris MPI, Inc. v. UnitedHealthcare, Inc.,

108 F.4th 340, 346–47 (5th Cir. 2024). The defendant offered two federal defenses: failure to exhaust and preemption. The Fifth Circuit

concluded that the failure to exhaust defense was colorable when asserted, allowing for removal, even though the court proceeded to reject that argument on its merits later in the same opinion. Id.

at 346, 349. The court also credited the defendant’s preemption defense as a plausible, colorable defense, highlighting that, while the

Fifth Circuit had not yet decided that particular preemption question,

the plaintiff had “cite[d] no contrary caselaw.” Id. at 347.

35a

Congress.” Lawson-Ross v. Great Lakes Higher Educ.

Corp., 955 F.3d 908, 920 (11th Cir. 2020) (quotations omitted). A conflict preemption analysis asks whether the state

law or legal action “stands as an obstacle to the carefully

calibrated federal regime.” Odebrecht Constr., Inc. v.

Sec’y, Fla. Dep’t of Transp., 715 F.3d 1268, 1274 (11th Cir.

2013). Thus “a conflict between federal and state law is imminent when two separate remedies are brought to bear

on the same activity.” Ga. Latino All. for Hum. Rts. v. Governor of Ga., 691 F.3d 1250, 1267 (11th Cir. 2012) (quotations omitted).

As discussed above, CERCLA requires that once a

party’s obligations have been defined “pursuant to an administrative order or consent decree [after] a remedial investigation and feasibility study for a particular facility,”

“no potentially responsible party may undertake any remedial action at the facility unless such remedial action has

been authorized by the President.” 42 U.S.C. § 9622(e)(6).

And the statute’s definition of “facility” plausibly includes

the City’s property, an “area where a hazardous substance

has . . . come to be located.” Id. § 9601(9). The defendants

have thus plausibly asserted that it would be impossible

for them to comply both with their obligations under

CERCLA and the consent decree and with potential remedies under state tort law; such remedies might counteract

EPA’s “carefully crafted federal regime” of remediation.

See Odebrecht Constr., 715 F.3d at 1274. The Supreme

Court has reserved the question of whether an

EPA-approved restoration plan could preempt state law,

see Atl. Richfield, 590 U.S. at 25–26, and the City has cited

no authority foreclosing this preemption defense. We thus

36a

conclude that the defendants have raised a colorable federal defense that CERCLA preempts the City’s state tort

claims.

***

In sum, then, we hold that the defendants have satisfied the three-prong test for federal officer removal and

were entitled to remove this action pursuant to § 1442(a)(1)

because they were acting under EPA when they engaged

in remediation efforts controlled by CERCLA and the

consent decree; the City’s state tort claims are related to

those remediation efforts; and the defendants have raised

a colorable federal preemption defense.

IV. Conclusion

For the foregoing reasons, we deny the City’s motion

to dismiss the appeal and reverse the district court’s remand to Glynn County Superior Court.

REVERSED.

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APPENDIX B

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF GEORGIA

BRUNSWICK DIVISION

CITY OF BRUNSWICK, by and

through its MAYOR AND

BOARD OF COMMISSIONERS,

Plaintiff,

HONEYWELL INTERNATIONAL,

INC., formerly known as ALLIED

CHEMICAL CORPORATION, and

as ALLIEDSIGNAL, INC., and

THE GEORGIA POWER

COMPANY,

Defendants.

CV 222-132

ORDER

Presently before the Court is Plaintiff City of Brunswick’s (the “City”) motion to remand (Doc. 21) and Defendants Honeywell International, Inc. f/k/a Allied Chemical

Corporation and as AlliedSignal, Inc. (“Honeywell”) and

Georgia Power Company’s (“Georgia Power”) request for

hearing (Doc. 26). For the following reasons, the City’s

motion to remand is GRANTED, and Defendants’ request

for hearing is DENIED.

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I. BACKGROUND

On October 20, 2022, the City filed suit in the Superior

Court of Glynn County, Georgia, alleging claims of continuing trespass and continuing nuisance against Defendants. (Doc. 1-1, at 158-162.) According to the City, the conduct underlying its claims is that Defendants polluted the

waters and marshlands on and abutting the City’s property when Honeywell released mercury and Aroclor 1268

poly-chlorinated byphenals (“PCBs”) and Georgia Power

released mercury. 1 (Id. at 154-55.) Based upon this, the

City seeks punitive damages and litigation costs. (Id. at

162.)

On November 18, 2022, Defendants filed their notice

of removal pursuant to 28 U.S.C. §§ 1331, 1332, 1441,

1442(a), and 1446. (Doc. 1, at 1.) On December 19, 2022,

the City filed the present motion asking the Court to remand the action because Georgia Power was not fraudulently joined, and there is no federal officer or federal

question jurisdiction. (Doc. 21; Doc. 21-1, at 1.) The motion

was timely filed within thirty days of removal pursuant to

28 U.S.C. § 1447. Defendants filed responses in opposition

to the City’s motion (Docs. 24, 25), 2 the City filed a reply

Even though the Complaint refers to Honeywell and Georgia Power

collectively as Defendants, the Complaint does not allege that Georgia Power also released PCBs. (See Doc. 1-1, at 154-55.) Accordingly,

the Court will refer to mercury and PCBs as “pollutants” when addressing the conduct of Honeywell and Georgia Power collectively as

Defendants and just mercury when addressing the conduct of Georgia Power.

Although Honeywell and Georgia Power respond to the City’s motion to remand separately, each incorporates the arguments of the

other. (See Doc. 24, at 23; Doc. 25, at 12 n.4.) Accordingly, the Court

will address the arguments as being raised by both Defendants.

39a

in further support (Doc. 32), Defendants filed sur-replies

in opposition (Docs. 35, 36), and the City filed a reply to

Georgia Power’s sur-reply (Doc. 38). Defendants also filed

a motion for oral argument on the motion pursuant to Local Rule 7.2. (Doc. 26.) Accordingly, the motions are

properly before the Court.

II. DISCUSSION

The Court addresses each motion below.

A. Motion to Remand

The City moves to remand this case back to the Superior Court of Glynn County. (Doc. 21, at 1.) “Federal

courts are courts of limited jurisdiction. They possess only

that power authorized by Constitution and statute, which

is not to be expanded by judicial decree.” Kokkonen v.

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

(internal citations omitted). As such, a defendant may only

remove an action from state court if the federal court

would possess original jurisdiction over the subject matter. 28 U.S.C. § 1441(a).

Federal district courts have jurisdiction over all civil

actions: (1) “arising under the Constitution, laws, or treaties of the United States”; and (2) “where the matter in

controversy exceeds the sum or value of $75,000, exclusive

of interest and costs, and is between citizens of different

States.” 28 U.S.C. §§ 1331, 1332. Further, district courts

have jurisdiction over an action “against or directed to . . .

[t]he 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 . . . .” 28 U.S.C. § 1442(a)(1).

40a

On a motion to remand, the removing party bears the

burden of establishing federal jurisdiction. Williams v.

Best Buy Co., 269 F.3d 1316, 1319 (11th Cir. 2001). It is

well established that removal jurisdiction is construed

narrowly with all doubts resolved in favor of remand.

Mann v. Unum Life Ins. Co. of Am., 505 F. App’x 854, 856

(11th Cir. 2013) (‘[W]e strictly construe removal statutes,

resolving all doubts in favor of remand.”). In evaluating a

motion to remand, the Court makes its “determinations

based on the plaintiff’s pleadings at the time of removal;

but[,] the court may consider affidavits and deposition

transcripts submitted by the parties.” Crowe v. Coleman,

113 F.3d 1536, 1538 (11th Cir. 1997) (citation omitted).

Defendants rely on three grounds for removal and

contend each ground provides an independent basis for

federal subject matter jurisdiction over the case: (1) federal officer removal jurisdiction under 28 U.S.C. § 1442,

(2) federal question jurisdiction under 28 U.S.C. § 1331, or

(3) diversity jurisdiction under 28 U.S.C. § 1332(a).

(Doc. 1, at 8-9.) The City argues remand is proper because

none of these grounds provide a basis for federal subject

matter jurisdiction. (Doc. 21, at 1.) The Court addresses

each ground below.

1. Federal Officer Removal Jurisdiction (28 U.S.C.

§ 1442)

First, Defendants rely on the federal officer removal

statute as a ground for removal. (Doc. 1, at 8-18.) Specifically, they argue there is federal officer removal jurisdiction because “the City’s claims are ‘connected or associated with’ Defendants’ decades-long investigation and remediation of environmental contamination . . . under the

direction and oversight of [the United States Environ-

41a

mental Protection Agency (‘EPA’)].” (Id. at 8.) In its motion for remand, the City argues there is no federal officer

removal jurisdiction. (Doc. 21-1, at 14.) Specifically, the

City argues Defendants are not “de facto Federal Officer[s]” because “[t]he toxic releases from the industrial

plants of [Defendants] all occurred before there were any

[Comprehensive Environmental Response, Compensation, and Liability Act (‘CERCLA’)] enforcement actions

by the [EPA, and n]either Defendant was a government

contractor, manufacturing a product for the government

according to government specifications.” (Id.)

Removal pursuant to the federal officer removal statute, 28 U.S.C. § 1442, establishes an independent basis for

the exercise of federal jurisdiction. Magnin v. Teledyne

Cont’l Motors, 91 F.3d 1424, 1427 (11th Cir. 1996) (citing

Willingham v. Morgan, 395 U.S. 402, 406 (1969)). In other

words, the subject matter jurisdiction established by 28

U.S.C. § 1442 “is an incident of federal supremacy and is

designed to provide federal officials with a federal forum

in which to raise defenses arising from their official duties.” Caver v. Cent. Ala. Elec. Coop., 845 F.3d 1135, 1142

(11th Cir. 2017) (quotation and citation omitted).

Because Defendants are not federal officers or agencies, they must satisfy a three-pronged test to rely on 28

U.S.C. § 1442 for subject matter jurisdiction. Id. First,

Defendants must show they are “person[s] within the

meaning of the statute who acted under a federal officer.”

Id. (citation omitted). Second, they “must show that [they]

performed the actions for which [they are] being sued under color of federal office.” Id. (citation omitted). Stated

differently, they “must show a causal connection between

what [they have] done under asserted official authority

and the action against [them].” Id. (citation omitted).

42a

Third, they “must raise a colorable federal defense.” Id.

(citation omitted). Defendants argue they satisfy the

three-prong test, and the City disagrees. (Doc. 1, at 10-18;

Doc. 21-1, at 14-25; Doc. 25, at 12 n.4.)

First, the Court looks at whether Defendants were

persons “acting under” a federal officer when they polluted “the waters and marshlands on and abutting property of [the City].” (See Doc. 1-1, at 155.) The City does

not argue that Defendants are not persons within the

meaning of the statute, but instead, it argues “Defendants

have not shown that they ‘acted under’ a federal officer

when they released their contamination to the environment on and about the City’s property.” (Doc. 21-1, at 20.)

Specifically, the City argues Defendants “fail[] to demonstrate that either Defendant ever manufactured products

using. PCBs and mercury (1) under a direct contract with

the United States government, (2) under any particular

government specification for PCBs, or (3) under ‘direction’ from any federal officer.” (Id.) According to Defendants, they “‘acted under’ federal officers because the federal government exerted extensive ‘subjection, guidance,

or control’ over Defendants’ remediation of the [Linden

Chemicals and Plastics Corp. (‘LCP Chemicals’)] Superfund Site 3 and because Defendants engaged in ‘an effort

to assist, or to help carry out, the duties or tasks of the

federal superior.” (Doc. 1, at 10-11 (emphasis and citation

omitted, footnote added).) Defendants contend their remedial efforts were not mere compliance with EPA regu-

CERCLA “directs [the] EPA to compile and annually revise a prioritized list of contaminated sites for cleanup, commonly known as

Superfund sites.” Atl. Richfield Co. v. Christian, 140 S. Ct. 1335, 1346

(2020) (citing 42 U.S.C. § 9605).

43a

lations but rose to the level of assisting the federal government because if they did not perform the investigation

and remediation the EPA “at least arguably” would have

had to do it under CERCLA. (Id. at 11-12; Doc. 24, at 8.)

Defendants argue “federal appellate courts have concluded that private corporations act under federal authority when they perform EPA-directed cleanups” by relying

on two unpublished opinions. (Doc. 1, at 12 (citing Greene

v. Citigroup, Inc., No. 99-1030, 2000 WL 647190, at *1-2

(10th Cir. May 19, 2000); California v. H & H Ship Serv.

Co., No. 94-10182, 1995 WL 619293, at *2 (9th Cir. Oct. 17,

1995)) (quotation marks omitted and alterations

adopted).) Specifically, Defendants contend the City’s

claims are similar to those in Greene where the Tenth Circuit “held that the private corporation acted under the direction of a federal officer by implementing a remedy selected by the EPA, a federal agency, pursuant to

CERCLA.” (Id. (quoting Greene, 2000 WL 647190, at *1-2

(quotation marks omitted and alterations adopted)).)

The Court finds Defendants fail to satisfy the first

prong in demonstrating they were “acting under” a federal officer when they allegedly released pollutants in the

waters and marshlands on and abutting the City’s property. In Watson v. Philip Morris Cos., the Supreme Court

provided the “acting under” language is broad, and “the

statute must be liberally construed,” however, this “broad

language is not limitless.” 551 U.S. 142, 147 (2007) (citations and internal quotation marks omitted). According to

the Supreme Court, “[i]n this context, the word ‘under’

must refer to what has been described as a relationship

that involves ‘acting in a certain capacity, considered in

relation to one holding a superior position or office,’ . . .

44a

[which] typically involves ‘subjection, guidance, or control.’” Id. at 151 (citations omitted). Moreover, the Supreme Court stated that “precedent and statutory purpose make clear that the private person’s ‘acting under’

must involve an effort to assist, or to help carry out, the

duties or tasks of the federal superior.” Id. at 152 (citing

Davis v. South Carolina, 107 U.S. 597, 600 (1883)) (emphasis in original). The Supreme Court then found the federal

officer removal statute did not apply because ‘a federal

regulatory agency direct[ing], supervis[ing], and monitor[ing] a company’s activities in considerable detail” was

not enough to establish the company was “acting under”

a federal officer. Id. at 145. Therefore, simply complying

with a federal law or regulation is insufficient to invoke

federal officer jurisdiction, even if the regulatory scheme

is “highly detailed” and the defendant’s “activities are

highly supervised and monitored.” Id. at 153. However,

“[t]he assistance that private contractors provide federal

officers goes beyond simple compliance with the law and

helps officers fulfill other basic governmental tasks.” Id.

Here, Defendants do not argue they were private contractors hired by the federal government to complete

tasks; instead, they contend they were acting under the

EPA because their remediation efforts were “under the

close supervision of the federal government.” (Doc. 1, at

13.) However, the EPA supervising Defendants’ activities

is not sufficient to demonstrate they acted under a federal

officer. See Watson, 551 U.S. at 153. Moreover, Defendants’ reliance on Greene and H & H Ship Serv. Co. is unavailing. (See Doc. 1, at 12 (citations omitted).) First, in

Greene, the activity that allegedly violated the interstate

compact was the implementation of the remedy ordered

by the EPA. See Greene, 2000 WL 647190, at *1. Here,

45a

the City is not alleging the implementation of the remediation efforts violated Georgia law or caused the pollution.

(Doc. 21-1, at 18-19; see generally Doc. 1-1.) Second, in

H & H Ship Serv. Co., the court found the private defendant “acted under” a federal officer where it was hired to

clean up a hazardous spill because the conduct that allegedly violated state law was done while “the defendants

were present at the site in order to execute a removal that

was under the direction and control of a federal officer.”

See H & H Ship Serv. Co., 1995 WL 619293, at *1-2. Here,

the City argues Defendants released pollutants even before the EPA was involved, and the Complaint does not

allege the pollution was done under the direction and control of the EPA. (Doc. 21-1, at 14; see generally Doc. 1-1.)

Contrary to the cases Defendants rely on, in Morgan v.

Ford Motor Co., a district court relied on Watson and

found the federal officer removal statute did not apply

where the defendant argued it was acting under a federal

officer “because its conduct was governed by a series of

administrative consent orders and it was doing exactly

what the [EPA] told it to do . . . .” CIVA No. 06-1080, 2007

WL 2137831, at *1 (D.N.J. July 23, 2007). Accordingly,

Greene and H & H Ship Serv. Co. are inapplicable to the

present case because as the City argues, “Defendants

have not identified how the Consent Decree, 4 federal regulations, or federal officers required them to cause [the]

pollution.” (Doc. 21-1, at 18-19 (footnote added).)

The Consent Decree resulted from another action where the United

States brought suit against Honeywell and Georgia Power pursuant

to CERCLA, seeking injunctive relief and recovery costs. (United

States v. Honeywell Int’l Inc. and Georgia Power Company, No.

2:16-cv-112, Doc. 1 (S.D. Ga. July 27, 2017).) On July 27, 2017, the

46a

Therefore, the Court finds Defendants fail to satisfy

the first prong in demonstrating they were “acting under”

a federal officer, namely the EPA, when they released pollutants into the waters and marshlands on and abutting

the City’s property. Accordingly, the Court does not address whether Defendants satisfy the second and third

prong, and the Court finds the federal officer removal

statute does not apply.

2. Federal Question Jurisdiction (28 U.S.C. § 1331)

Second, Defendants rely on federal question jurisdiction as a ground for removal. (Doc. 1, at 8, 18-25.) Specifically, they argue the City’s claims “necessarily involve

substantial and disputed federal questions . . . because

they constitute a challenge to a federally directed environmental cleanup under CERCLA and because they seek

contribution for response costs under CERCLA.” (Id. at

8.) According to Defendants, the City’s claims “implicate

and threaten to interfere with the ongoing implementation of a CERCLA cleanup that Defendants are performing under [the] EPA’s direction,” and “this Court is the

proper forum to address the City’s claims challenging the

sufficiency of Defendants’ remedial efforts under the Consent Decree.” (Id. at 21-22.) In its motion to remand, the

City argues there is no federal question jurisdiction for

several reasons: (1) “[n]o federal questions appear on the

face of the City’s Complaint”; (2) “[t]he City has not alleged that Defendants are in violation of any federal law”;

(3) “[n]o element of the City’s state law trespass and nuisance claims necessarily raise any issue of federal law that

Court approved the “Consent Decree for Remedial Design and Remedial Action at Operable Unit One of the LCP Chemicals Superfund

Site.” (Id., Doc. 26.)

47a

is an element of either of those claims”; (4) “[t]he lawsuit

seeks only money damages” and “does not seek any injunctive relief”; and (5) “neither of [the City’s claims]

‘arise under’ CERCLA.” (Doc. 21-1, at 7 (citations omitted).)

Removal jurisdiction based on a federal question is

governed by the well-pleaded complaint rule. Franchise

Tax Bd. of Cal. v. Constr. Laborers Vacation Tr. for S.

Cal., 463 U.S. 1, 11 (1983). Under the well-pleaded complaint rule, “[o]nly state-court actions that originally could

have been filed in federal court may be removed to federal

court by the defendant . . . . The rule makes the plaintiff

the master of the claim; he or she may avoid federal jurisdiction by exclusive reliance on state law.” Caterpillar Inc.

v. Williams, 482 U.S. 386, 392 (1987) (citations omitted);

see also Merrell Dow Pharms. Inc. v. Thompson, 478 U.S.

804, 809 n.6 (1986) (“Jurisdiction may not be sustained on

a theory that the plaintiff has not advanced.” (citations

omitted)). In plain terms, unless the face of a plaintiff’s

complaint states a federal question, a defendant may not

remove a case to federal court based on federal question

jurisdiction. Kemp v. Int’l Bus. Machs. Corp., 109 F.3d

708, 712 (11th Cir. 1997). As a result, neither a party’s defenses nor its counterclaims can give rise to federal question jurisdiction. Vaden v. Discover Bank, 556 U.S. 49, 60

(2009).

However, even where only state law claims are asserted in a complaint, the case “might still ‘arise under’

the laws of the United States if a well-pleaded complaint

established that [the] right to relief under state law requires resolution of a substantial question of federal law

in dispute between the parties.” Franchise Tax Bd. of

48a

Cal., 463 U.S. at 13. In other words, a claim “aris[es] under” federal law if it “necessarily raise[s] a stated federal

issue, actually disputed and substantial, which a federal

forum may entertain without disturbing any congressionally approved balance of federal and state judicial responsibilities.” Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg., 545 U.S. 308, 314 (2005); see also Hobbs v.

Carter, No. CV 2:22-148, 2023 WL 2495762, at *3 (S.D. Ga.

Mar. 14, 2023) (“In [the Eleventh Circuit], the accepted

rule is that upon removal the court should inspect the

complaint carefully to determine whether a federal claim

is necessarily presented by plaintiff, even if plaintiff has

couched his pleadings exclusively in terms of state law.”)

(citations omitted).

Here, applying the well-pleaded complaint rule, the

Court finds that the City’s complaint does not, on its face,

state a federal question because the two claims it brings

are state law claims. (See Doc. 1-1, at 158-162.) Defendants do not seem to dispute there is no federal question on

the face of the City’s Complaint; instead, they argue “the

City’s claims necessarily raise disputed and substantial

federal issues sufficient to support this Court’s jurisdiction because (1) they constitute a challenge to a CERCLA

cleanup, and (2) they seek contribution for response costs

under CERCLA.” (Doc. 1, at 20.) Therefore, the Court

looks to the City’s Complaint to determine whether the

state law claims arise under federal law.

Although the City’s Complaint references CERCLA

and the Consent Decree, 5 “there is no specific request for

The City references the Consent Decree to allege Georgia Power

“acknowledged joint responsibility for the mercury pollution of the

Marshes of Glynn.” (Doc. 1-1, at 155.)

49a

enforcement, modification, or alteration of the requirements of the consent decree[]” or Defendants’ remedial

efforts. (See Doc. 1-1, at 155-56); Abbo-Bradley v. City of

Niagara Falls, No. 13-CV-487, 2013 WL 4505454, at *7

(W.D.N.Y. Aug. 22, 2013). Moreover, the City’s Complaint

does not challenge the sufficiency or legality of Defendants’ remedial efforts under CERCLA, nor does the City

seek injunctive relief that might conflict with the remedial

efforts.6 (See Doc. 1-1.) Accordingly, the state law claims

do not necessarily depend on the resolution of substantial

questions regarding liabilities or obligations imposed by

the EPA under CERCLA, and the Court lacks federal

question jurisdiction over this matter.

Moreover, Defendants also argue the Court has jurisdiction because “Section 113(b) of CERCLA confers on

the federal district courts exclusive original jurisdiction

over all controversies arising under [CERCLA].” (Doc. 1,

at 21-22 (quoting 42 U.S.C. § 9613(b)) (quotation marks

omitted).) However, as already discussed, the City’s

claims “do not expressly challenge the effectiveness of

[Defendants’ cleanup], request modification of . . . [any remedial efforts], or seek any specific action that might conflict with the remediation plan,” but “seek only to be made

whole for any harm proximately caused by defendants’

conduct, whether in performance of operation, maintenance, and monitoring obligations with respect to the

remedy, or during the [cleanup].” See Abbo-Bradley, 2013

The Court notes the City’s Complaint states, “Defendants are liable

for all such remediation costs and damages,” however, under each

count and the prayer for relief, the City only seeks punitive damages.

(See Doc. 1-1, at 156-57, 159, 162.) Therefore, the Court construes the

City’s Complaint as seeking punitive damages and not remediation

costs.

50a

WL 4505454, at *10; see also Se. Tex. Env’t, L.L.C. v. BP

Amoco Chem. Co., 329 F.Supp.2d 853, 871 (S.D. Tex. 2004)

(“Because [p]laintiffs’ claims bear only on the liability of

individual defendants and not on the cleanup itself, the

[c]ourt concludes that [p]laintiffs have not challenged a

CERCLA cleanup.”). Based on the foregoing, the Court

also does not have jurisdiction under Section 113(b) of

CERCLA.

3. Diversity Jurisdiction (28 U.S.C. § 1332)

Lastly, Defendants argue the City fraudulently joined

Georgia Power to defeat diversity jurisdiction, and thus,

the Court should disregard Georgia Power’s citizenship

and find there is diversity jurisdiction because the City

and Honeywell are citizens of different states and the

amount in controversy exceeds $75,000.00. (Doc. 1,

at 8-9, 29.) In its motion to remand, the City does not dispute the citizenships of the City or Honeywell or the

amount in controversy; instead, it argues Georgia Power

was not fraudulently joined. (Doc. 21-1, at 3-7.)

Diversity jurisdiction requires complete diversity,

which means “each defendant is a citizen of a different

state from each plaintiff.” Owen Equip. & Erection Co. v.

Kroger, 437 U.S. 365, 373 (1978) (emphasis in original).

However, “[f]raudulent joinder is a judicially created doctrine that provides an exception to the requirement of

complete diversity.” Triggs v. John Crump Toyota, Inc.,

154 F.3d 1284, 1287 (11th Cir. 1998). In other words,

courts must retain jurisdiction and “ignore the presence

of the nondiverse defendant” when plaintiff joined a nondiverse party solely to defeat federal diversity jurisdiction. Stillwell v. Allstate Ins. Co., 663 F.3d 1329, 1332 (11th

Cir. 2011) (citation omitted). “In such a case, the plaintiff

51a

is said to have ‘fraudulently joined’ the non-diverse defendant.” McKenzie v. King Am. Finishing, Inc., No. 6:12cv-065, 2012 WL 5473498, at *1 (S.D. Ga. Nov. 9, 2012)

(citing Stillwell, 663 F.3d at 1332).

To establish fraudulent joinder, “the removing

party has the burden of proving by clear and convincing evidence that either: (1) there is no possibility the plaintiff can establish a cause of action

against the resident defendant; or (2) the plaintiff

has fraudulently pled jurisdictional facts to bring

the resident defendant into state court.”

Stillwell, 663 F.3d at 1332 (quoting Crowe v. Coleman, 113

F.3d 1536, 1538 (11th Cir. 1997) (alterations adopted)).

With a motion to remand, “the district court must evaluate the factual allegations in the light most favorable to

the plaintiff and must resolve any uncertainties about

state substantive law in favor of the plaintiff.” McKenzie,

2012 WL 5473498, at *2 (internal quotations and citation

omitted). The court must “not [] weigh the merits of a

plaintiff’s claim beyond determining whether it is an arguable one under state law.” Stillwell, 663 F.3d at 1333 (citation omitted). Indeed, “[i]f there is even a possibility

that a state court would find that the complaint states a

cause of action against any one of the resident defendants,

the federal court must find that joinder was proper and

remand the case to state court.” Coker v. Amoco Oil Co.,

709 F.2d 1433, 1440-41 (11th Cir. 1983) (citations omitted),

superseded by statute on other grounds as stated in

Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d

1533 (11th Cir. 1993).

“The burden of establishing fraudulent joinder is a

heavy one, and such a claim must be supported by clear

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and convincing evidence.” Ishmael v. Gen. Growth Props.,

Inc., No. CV 114-175, 2014 WL 7392516, at *2 (S.D. Ga.

Dec. 29, 2014) (quoting Poll v. Deli Mgmt., Inc., No. 1:07cv-959, 2007 WL 2460769, at *3 (N.D. Ga. Aug. 24, 2007))

(quotation marks omitted). In addressing a fraudulent

joinder claim, “this Court ‘must necessarily look to the

pleading standards applicable in state court, not the plausibility pleading standards prevailing in federal court.’”

McKenzie, 2012 WL 5473498, at *3 (quoting Stillwell, 663

F.3d at 1334). In contrast to the federal pleading standard, Georgia simply requires notice pleading. See

O.C.G.A. § 9-11-8. Thus, “it is immaterial whether a pleading states conclusions or facts as long as fair notice is

given, and the statement of claim is short and plain.” Carley v. Lewis, 472 S.E.2d 109, 110-11 (Ga. Ct. App. 1996).

In their notice of removal, Defendants do not argue

that the City fraudulently pled jurisdictional facts; instead, they argue Georgia Power was fraudulently joined

because the City cannot prove a cause of action against

Georgia Power under Georgia law for two reasons: (1) the

City’s claims are barred by the statute of limitations;

(2) the City failed to allege the elements required to state

a claim for trespass and nuisance. (Doc. 1, at 25-29.) Accordingly, the Court must determine whether there exists

a “possibility that a state court would find that the complaint states a cause of action against” Georgia Power. See

Coker, 709 F.2d at 1440-41. The Court addresses each argument below to determine whether Defendants meet

their burden of establishing fraudulent joinder.

a. Statute of Limitations

Defendants argue the City’s claim against Georgia

Power is barred by the statute of limitations because

“[t]he alleged trespasses and nuisances from Georgia

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Power’s operations meet the definition of permanent nuisances - not continuing nuisances – as they are alleged in

the City’s Complaint.” (Doc. 1, at 27.) According to Defendants, the latest the City could have brought its claims

against Georgia Power was in 1976 “[b]ecause the City alleges the mercury was emitted from a coal-fired plant, the

latest Georgia Power would have emitted the alleged mercury was 1972 - the year Georgia Power ceased combusting coal at Plant McManus.” (Id.) In its motion to remand,

the City argues its claims are not barred by the statute of

limitations because the pollution caused by the release of

mercury “is a classic case of continuing nuisances and continuing trespasses.” (Doc. 21-1, at 4.) In response, Defendants again argue the City’s claims are actually allegations

of permanent nuisance and trespass and not continuing.

(Doc. 25, at 4-8.)

Under Georgia law, trespass and nuisance claims are

subject to a four-year statute of limitations.” 7

O.C.G.A § 9-3-30 (a). “However, when the statute begins

to run depends on the nature of the nuisance or trespass.”

City of Atlanta v. Carlisle, 858 S.E.2d 543, 545 (Ga. Ct.

App. 2021), cert. denied (Nov. 2, 2021). The Georgia Supreme Court provides guidance on whether a trespass or

nuisance is permanent or continuing and when the statute

of limitations begins to run:

A nuisance, permanent and continuing in its character, the destruction or damage being at once

Although the statute only refers to a trespass claim, “[n]uisance and

trespass are closely analogous claims,” and [t]herefore, it is appropriate to treat the accrual of claims of trespass and nuisance in similar

fashion.” Provident Mut. Life Ins. Co. of Philadelphia v. City of Atlanta, 938 F. Supp. 829, 836 (N.D. Ga. 1995) (citing Rinzler v. Folsom,

74 S.E.2d 661, 664 (Ga. 1953)).

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complete upon the completion of the act by which

the nuisance is created, gives but one right of action, which accrues immediately upon the creation

of the nuisance, and against which the statute of

limitations begins, from that time, to run. Where a

nuisance is not permanent in its character, but is

one which can and should be abated by the person

erecting or maintaining it, every continuance of the

nuisance is a fresh nuisance for which a fresh action will lie. This action accrues at the time of such

continuance, and against it the statute of limitations runs only from the time of such accrual.

City of Atlanta v. Kleber, 677 S.E.2d 134, 137 (Ga. 2009)

(quoting City Council of Augusta v. Lombard, 28 S.E. 994,

994 (Ga. 1897)). However, “Georgia courts are not uniform

in their distinction between permanent and continuing

nuisances.” Crosson v. Carrollton City Sch. Dist., 478 F.

Supp. 3d 1255, 1265-66 (N.D. Ga. 2020) (comparing Camp

v. Warrington, 182 S.E.2d 419, 420 (Ga. 1971) with Lombard, 28 S.E. at 994). Moreover, “Georgia courts have

found that the distinction between a permanent nuisance

and a continuing nuisance has been referred to as one of

the most baffling areas of the law.” Id. at 1266 (alterations

adopted, citations and quotation marks omitted). At this

stage of the proceedings, the Court must resolve all

doubts in favor of remand. Mann, 505 F. App’x at 856 (citation omitted). With this in mind, the Court finds Defendants’ statute of limitations argument unavailing because

“[i]n the absence of clear precedent,” Defendants fail to

meet their burden of demonstrating with clear and convincing evidence that the City alleges permanent trespass

and nuisance. See Stephens v. Wal-Mart Stores E., LP,

No. 5:09-CV-325, 2010 WL 1487213, at *2 (M.D. Ga. Apr.

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12, 2010). Given that there is no clear bright line rule on

whether Georgia Power’s conduct constitutes permanent

or continuing nuisance and trespass, there is a possibility

the statute of limitations does not bar the City’s claim

against Georgia Power.

b. Elements of Trespass and Nuisance

Defendants also argue the City fails to allege the required elements for trespass and nuisance. (Doc. 1,

at 27-29.) Specifically, in the removal notice, Defendants

argue the City does not allege Georgia Power’s conduct

was intentional as required for a trespass claim, and the

City cannot establish a claim for nuisance because Georgia Power’s alleged conduct was legal. (Id. at 28.) In the

motion to remand, the City argues it alleged that Georgia

Power’s conduct was intentional, and a claim for nuisance

can be brought even when the conduct was legal.

(Doc. 21-1, at 6-7.) In response, Defendants argue the

City’s claims fail because the City’s Complaint does not

allege Georgia Power had the “right to abate,” which Defendants contend is an essential element of a continuing

trespass and nuisance claim. (Doc. 25, at 12.)

The Court looks to the City’s Complaint to determine

“[i]f there is even a possibility that a state court would find

that the complaint states a cause of action against” Georgia Power. Coker, 709 F.2d at 1440. However, the Court

does not weigh the merits of the case; instead, it only looks

to see if the pleading requirements have been met under

Georgia law. Stillwell, 663 F.3d at 1332; McKenzie, 2012

WL 5473498, at *3. Under Georgia law, “[t]he true test is

whether the pleading gives fair notice and states the elements of the claim plainly and succinctly . . . .” Carley, 472

S.E.2d at 111 (citation omitted).

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