Case Note: Parish of Plaquemines v. Chevron USA, Inc.,
No. 19-30492, 2021 WL 3413161 (5th Cir. Aug. 5, 2021)
In recent years, several Louisiana parishes (joined by the Louisiana Attorney General) sued various oil companies for allegedly harmful production activities. The parishes—proceeding solely under Louisiana law and disclaiming any rights under federal law—broadly alleged that the oil companies violated Louisiana regulations predating the state’s 1978 State and Local Coastal Resources Management Act. The petitions, however, did not set out the specific wrongful conduct of the defendants.
Later in all of the cases, the parishes produced an expert report (the “Rozell report”) detailing the alleged conduct at issue. Within 30 days, the defendants removed the cases to the U.S. District Courts for the Eastern and Western Districts, invoking federal question jurisdiction1 and federal officer jurisdiction.2 With respect to the latter basis, the defendants alleged that the Rozell report, for the first time, showed that they were being sued for conduct that (at least in part) was required by World War II-era federal directives.
The plaintiffs challenged the timeliness of removal and federal jurisdiction. The district courts remanded, and the defendants appealed.3 A panel of the Fifth Circuit initially affirmed the remand orders. The panel later granted rehearing and reversed.
The Fifth Circuit’s substituted opinion focused largely on whether the defendants’ removal under 28 U.S.C. § 1442 was timely. Citing circuit precedent, the court observed that there are two deadlines for filing a notice of removal. The first deadline is 30 days after receipt of an initial pleading that “affirmatively reveals on its face” the grounds for removal.4 If the first deadline is not triggered, a second deadline arises 30 days after a defendant receives some “other paper” that makes the grounds for removal “unequivocally clear and certain.”5
The defendants’ removal was timely under these standards. The court noted that the jurisdictional test under 28 U.S.C. § 1442 at the time of removal required that the defendants show a “causal nexus” between a federal directive and the state-law requirement they allegedly violated.6 In other words, removability hinged on whether the defendants had been prevented from complying with state law due to federal requirements. Neither the petitions nor any other document produced in the case (prior to the Rozell report) started a 30-day removal countdown under this standard; at most, they merely informed the defendants that they allegedly violated various Louisiana regulations but did not spell out the specific wrongful conduct at issue. Absent such specifications, the petitions and other documents did not “connect the dots” and make the existence of federal officer jurisdiction facially evident or unequivocally certain: “The Rozel report revealed, for the first time, the specific conduct that the companies engaged in before 1980 that supported the parishes’ theory of liability. Without knowing what they did wrong before 1980, the companies could not have established a causal nexus between their conduct and the government’s wartime directives. Accordingly, the companies’ removal on federal-officer grounds was timely.... ”7
With this opinion, the Fifth Circuit continues the trend of protecting broad removal rights for defendants invoking federal officer jurisdiction. Nevertheless, this ruling may be limited to some extent to its facts. The defendants removed these cases before the Fifth Circuit abandoned its “causal nexus” test for federal officer removal.8 The new “relating-to” test is looser and was intended to permit broader removal by federal officers. It stands to reason that fewer specifics in a petition or “other paper” may be necessary to evidence the requisite “relationship” (as opposed to “causal nexus”). It remains to be seen whether that point will be used against defendants who fail to remove upon receipt of a state-court petition that implicates some relationship between alleged violations of state law and federal directives.
Anders F. Holmgren
FLANAGAN PARTNERS LLP
Written on behalf of the Complex Litigation Committee
2 See 28 U.S.C. § 1442. Under § 1442(a)(1), “[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” may remove a case brought against it “for or relating to any act under color of such office.”
3 While remand orders generally are unreviewable on appeal, an exception exists for (among other things) cases removed under § 1442. See 28 U.S.C. § 1447(d). Further, all grounds for removal are reviewable on appeal if one removal basis is § 1442. BP P.L.C. v. Mayor & City Council of Baltimore, 141 S. Ct. 1532, 1538 (2021).
7 Id. at *8. Having decided that removal was timely, the court turned briefly to whether jurisdiction existed. Since the district court had evaluated federal officer jurisdiction under the circuit’s prior causal-nexus test, the court remanded for the district courts to assess jurisdiction in the first in- stance under the new relating-to test. Id. Finally, the court rejected the defendants’ arguments that federal jurisdiction existed under Grable & Sons Metal Prod., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308 (2005), which allows removal of state-law claims when the right to relief depends on a substan- tial question of federal law. The court found no dispute as to the meaning of any federal law.