United States Court of Appeals For the First Circuit No. 19-1818
STATE OF RHODE ISLAND,
Plaintiff, Appellee,
v.
SHELL OIL PRODUCTS CO., L.L.C.; CHEVRON CORP.; CHEVRON USA, INC.; EXXONMOBIL CORP.; BP, PLC; BP AMERICA, INC.,; BP PRODUCTS NORTH AMERICA, INC.; ROYAL DUTCH SHELL P.L.C.; MOTIVA ENTERPRISES, L.L.C.; CITGO PETROLEUM CORP.; CONOCOPHILLIPS; CONOCOPHILLIPS CO.; PHILLIPS 66; MARATHON OIL CO.; MARATHON PETROLEUM CORP.; MARATHON PETROLEUM CO., L.P.; SPEEDWAY, L.L.C.; HESS CORP.; LUKOIL PAN AMERICAS L.L.C.; AND DOES 1-100,
Defendants, Appellants,
GETTY PETROLEUM MARKETING, INC.
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND
[Hon. William E. Smith, Chief U.S. District Judge]
Before
Howard, Chief Judge and Thompson, Circuit Judge.*
Theodore J. Boutrous, Jr., with whom Joshua S. Lipshutz,
* Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the panel's opinion in this case. The remaining two panelists therefore issued the opinion pursuant to 28 U.S.C. § 46(d). Anne Champion, Gibson, Dunn & Crutcher LLP, Gerald J. Petros, Robin L. Main, Ryan M. Gainor, Hinckley, Allen & Snyder LLP, Neal S. Manne, Susman Godfrey LLP, John A. Tarantino, Patricia K. Rocha, Nicole J. Benjamin, Adler Pollock & Sheehan P.C., Philip H. Curtis, Nancy G. Milburn, Matthew T. Heartney, Arnold & Porter Kaye Scholer LLP, Matthew T. Oliverio, Oliverio & Marcaccio LLP, Theodore V. Wells, Jr., Daniel J. Toal, Jaren Janghorbani, Kannon Shanmugam, Paul, Weiss, Rifkind, Wharton, Garrison LLP, Jeffrey S. Brenner, Nixon Peabody LLP, David C. Frederick, Brendan J. Crimmins, Grace W. Knofczynski, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C., Daniel B. Levin, Jerome C. Roth, Elizabeth A. Kim, Munger, Tolles & Olson LLP, John E. Bulman, Stephen J. MacGillivray, Pierce Atwood LLP, Nathan P. Eimer, Pamela R. Hanebutt, Lisa S. Meyer, Raphael Janove, Ryan J. Walsh, Eimer Stahl LLP, Michael J. Colucci, Olenn & Penza, LLP, Sean C. Grimsley, Jameson R. Jones, Bartlit Beck LLP, Robert G. Flanders, Jr., Timothy K. Baldwin, Whelan, Corrente, Flanders, Kinder & Siket LLP, Steven M. Bauer, Margaret A. Tough, Latham & Watkins LLP, Jeffrey B. Pine, Patrick C. Lynch, Lynch & Pine, Shannon S. Broome, Shawn Patrick Regan, Ann Marie Mortimer, Hunton Andrews Kurth LLP, Jason C. Preciphs, Roberts, Carroll, Feldstein & Peirce, INC., J. Scott Janoe, Matthew Allen, Megan Berge, Baker Botts L.L.P., Lauren Motola-Davis, Samuel A. Kennedy-Smith, Lewis Brisbois Bisgaard & Smith LLP, Jeffrey S. Brenner, Nixon Peabody LLP, Stephen M. Prignano, Mcintyre Tate LLP, James Stengel, Robert Reznick, and Orrick, Herrington & Sutcliffe, LLP, were on brief for appellants. Victor M. Sher, with whom Matthew K. Edling, Sher Edling LLP, and Neil F.X. Kelly, Assistant Attorney General, were on brief for appellee. Steven P. Lehotsky, U.S. Chamber Litigation Center, Peter D. Keisler, Tobias S. Loss-Eaton, and Sidley Austin LLP, on brief for Chamber of Commerce of The United States of America, amicus curiae. Patrick Parenteau, Vermont Law School, Harold Hongju Koh, Conor Dwyer Reynolds, Peter Gruber Rule of Law Clinic, and Yale Law School, on brief for Former U.S. Government Officials, amicus curiae. Gerson H. Smoger, Smoger & Associates, P.C., Anthony Tarricone, and Kreindler & Kreindler, LLP, on brief for Senator Sheldon Whitehouse, Senator Jack Reed, and Senator Edward Markey, amicus curiae. Scott L. Nelson, Allison M. Zieve, and Public Citizen Litigation Group, were on brief for Public Citizen, amicus curiae. Robert S Peck and Center For Constitutional Litigation, P.C., on brief for The National League of Cities; The U.S. Conference of Mayors; and The International Municipal Lawyers Association, amicus curiae. Amy Williams-Derry, Daniel P. Mensher, Alison S. Gaffney, and Keller Rohrback L.L.P., on brief for Robert Brulle, Center for Climate Integrity, Justin Farrell, Benjamin Franta, Stephan Lewandowsky, Naomi Oreskes, Geoffrey Supran, and The Union of Concerned Scientists, amicus curiae. William A. Rossbach and Rossbach Law, PC on brief for Mario J. Molina, Michael Oppenheimer, Robert E. Kopp, Friederike Otto, Susanne C. Moser, Donald J. Wuebbles, Gary B. Griggs, Peter C. Frumhoff and Kristina Dahl, amicus curiae. Peter Huffman on brief for Natural Resources Defense Council, amicus curiae. Xavier Becerra, Attorney General for the State of California, David A. Zonana, Supervising Deputy Attorney General, Erin Ganahl, Deputy Attorney General, Heather Leslie, Deputy Attorney General, Maura Healey, Attorney General for the Commonwealth of Massachusetts, Seth Schofield, Senior Appellate Counsel, William Tong, Attorney General of Connecticut, Kathleen Jennings, Attorney General of Delaware, Clare E. Connors, Attorney General of Hawaii, Aaron M. Frey, Attorney General of Maine, Brian E. Frosh, Attorney General of Maryland, Keith Ellison, Attorney General of Minnesota, Gurbir S. Grewal, Attorney General of New Jersey, Letitia James, Attorney General of New York, Ellen F. Rosenblum, Attorney General of Oregon, Thomas J. Donovan, Attorney General of Vermont, and Robert W. Ferguson, Attorney General of Washington on brief for Commonwealth of Massachusetts, State of California, State of Connecticut, State of Delaware, State of Hawaii, State of Maine, State of Maryland, State of Minnesota, State of New Jersey, State of New York, State of Oregon, State of Vermont, and State of Washington, amicus curiae. Matthew D. Hardin on brief for Energy Policy Advocates, amicus curiae.
October 29, 2020 THOMPSON, Circuit Judge. Rhode Island is salty about
losing its already limited square footage to rising sea levels
caused by climate change. Facing property damage from extreme
weather events and otherwise losing money to the effects of climate
change, Rhode Island sued a slew of oil and gas companies for the
damage caused by fossil fuels while those companies misled the
public about their products' true risks.
Because those claims were state law claims, Rhode Island
filed suit in state court. The oil companies, seeing many grounds
for federal jurisdiction, removed the case to federal district
court. Rhode Island opposed removal and asked that the district
court kindly return the lawsuit to state court. The district court
obliged and allowed Rhode Island's motion for remand.
The oil companies appealed the district court's order to
us and a heated debate ensued over the scope of our review. After
careful consideration, we conclude that 28 U.S.C. § 1447(d)
permits our review of remand orders only to the extent that the
defendant's grounds for removal are federal-officer jurisdiction,
pursuant to 28 U.S.C. § 1442 or civil rights jurisdiction,
pursuant to 28 U.S.C. § 1443. The oil companies make no argument
that this is a civil rights case and we conclude the allegations
in Rhode Island's state court complaint do not give rise to
federal-officer jurisdiction. Having jurisdiction to review no
- 4 - more than that question, we affirm the district court's remand
order.
BACKGROUND
Rhode Island's State Court Case
We summarize Rhode Island's claims, taking all well-
pleaded allegations in its state court complaint as true for the
purposes of our analysis. Ten Taxpayer Citizens Grp. v. Cape Wind
Assocs., LLC, 373 F.3d 183, 186 (1st Cir. 2004).
In 2018, faced with rising sea levels, higher average
temperatures and extreme heat days, more frequent and severe
floods, tropical storms, hurricanes, and droughts, Rhode Island
sued, in state court, nearly every oil and gas company under the
sun.1 According to Rhode Island, the companies knew that their
fossil fuel products were hazardous to the planet and concealed
those risks, instead opting to market their products in Rhode
Island and promote "antiscience campaigns." The oil companies
actively worked to muddy the waters of scientific consensus,
collecting decades of detailed research into the global impact of
fossil fuels but hiding the results.
All of this left the state up the creek without a paddle
once the effects of fossil fuels became more clear, working to
combat the effects of a warming planet and an extreme climate.
1 The defendants are unified in their arguments about the issues before us, so we treat them as one group in our analysis.
- 5 - And those effects are no joke. Most Rhode Island cities and towns
are below the floodplain and New England as a whole is losing
ground to the ocean at a rate three to four times faster than the
global average (and Rhode Island is hardly big enough to sacrifice
so much of its land). Those rising sea levels have already
increased erosion and the damage of storm surges along Rhode
Island's coast. On top of the work it has already done to respond
to these environmental crises, Rhode Island anticipates that the
costs will only grow as it responds to more frequent and extreme
flooding and other storm damage.
Rhode Island therefore brought this lawsuit "to ensure
that the parties who have profited from externalizing the
responsibility for [climate change] bear the costs of those impacts
on Rhode Island." Or, as the district court aptly summarized:
"Climate change is expensive, and the State wants help paying for
it." Rhode Island v. Chevron Corp., 393 F. Supp. 3d 142, 146
(D.R.I. 2019).
The state court complaint lists state causes of action:
public nuisance, various products liability claims, trespass,
impairment of public trust resources, and violation of the state's
Environmental Rights Act. The theories of liability vary to fit
each cause of action, but at its core, Rhode Island's claim is
simple: the oil companies knew what fossil fuels were doing to
- 6 - the environment and continued to sell them anyway, all while
misleading consumers about the true impact of the products.
District Court Litigation
The oil companies removed the case to the district court,
arguing that it falls within federal jurisdiction under a variety
of theories. The oil companies contended that removal was proper
pursuant to 28 U.S.C. § 1441, which permits removal of any cases
that could have been originally brought in federal court. To
support that ground for removal, the oil companies in turn argued
that the district court could have had jurisdiction over the case
from the start per 28 U.S.C. § 1331 because the complaint presents
a federal question. The oil companies also argued that any of a
flock of specific jurisdiction statutes provided the necessary
hook to keep the case in federal court, citing the federal-officer
removal statute, the Outer Continental Shelf Lands Act, federal-
enclave jurisdiction, the bankruptcy-removal statute, and
admiralty jurisdiction.
Rhode Island disagreed with all of these arguments and
moved for the case to be remanded to state court.
The district court evaluated each of the oil companies'
claims and saw no federal jurisdiction lurking within Rhode
Island's state causes of action. Accordingly, the district court
ordered the case remanded to state court.
- 7 - Questions on Appeal
The oil companies appealed the remand order to us. As
we detail below, Rhode Island argues that our appellate
jurisdiction is limited by 28 U.S.C. § 1447(d) to considering only
whether the district court was wrong about federal-officer removal
and forsaking the other grounds for removal claimed below. Rhode
Island, of course, contends the district court was correct to
reject the federal-officer removal theory. The oil companies read
§ 1447(d) to authorize appellate review of the entire remand order
and tell us that, were we to review the entire order, we would
find that the district court improperly remanded the case. Should
we limit our review only to the federal-officer jurisdiction
question, the oil companies are confident we will still find
federal jurisdiction.
OUR TAKE
The first question we must resolve is the scope of our
review of this appeal under 28 U.S.C. § 1447(d). Is our appellate
jurisdiction limited to the types of removal listed in § 1447(d)
or may we examine every basis for removal alleged by the oil
companies and rejected by the district court? We begin with the
statute and then detail our interpretation of it, peppering our
discussion with each side's contentions along the way. Concluding
that our review is cabined to the question of whether the district
court has jurisdiction over this case pursuant to federal officer
- 8 - removal, we then analyze whether Rhode Island's complaint meets
that threshold, and ultimately conclude it does not.
Scope of Appellate Review
Section 1447(d) of Title 28 United States Code,
provides:
An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.
Section 1442, in turn, authorizes defendants to remove
from state court cases involving "[f]ederal officers or agencies"
and § 1443 permits removal of civil rights cases. The parties
dispute whether this provision means we only have appellate
jurisdiction over the portion of the remand order rejecting
federal-officer jurisdiction or whether the entire remand order
falls within our purview.
Rhode Island argues that § 1447(d) only permits us to
review the district court's order so far as it applies to the
federal-officer jurisdiction argument. Though our Circuit has
held that § 1447(d) generally prohibits review of remand orders
with only narrow exceptions, see Ochoa Realty Corp. v. Faria, 815
F.2d 812, 815 (1st Cir. 1987), we have not yet addressed the
precise question presented here. Though this is not a popularity
contest, Rhode Island counts among its friends nearly all of the
- 9 - circuits that have weighed in on the topic and have limited
appellate review to federal officer or civil rights removal. See
Bd. of Cty. Commissioners of Boulder Cty. v. Suncor Energy (U.S.A.)
Inc., 965 F.3d 792, 802 (10th Cir. 2020); Mayor & City Council of
Baltimore v. BP P.L.C., 952 F.3d 452, 459 (4th Cir. 2020), cert.
granted sub nom. BP P.L.C. v. Mayor & City Council Baltimore, No.
19-1189 (U.S. Oct. 2, 2020); Cty. of San Matteo v. Chevron Corp.,
960 F.3d 586, 595-96 (9th Cir. 2020), Jacks v. Meridian Resource
Co., 701 F.3d 1224, 1229 (8th Cir. 2012); Patel v. Del Taco, Inc.,
446 F.3d 996, 998 (9th Cir. 2006); Alabama v. Conley, 245 F.3d
1292, 1293 n.1 (11th Cir. 2001); Davis v. Glanton, 107 F.3d 1044,
1047 (3d Cir. 1997); State Farm Mut. Auto Ins. Co. v. Baasch, 644
F.2d 94, 97 (2d Cir. 1981).2
The oil companies tell us that a plain text reading of
§ 1447(d) easily answers this question. In short, the word "order"
means the district court's entire remand order both times that it
appears in § 1447(d), so we have appellate jurisdiction to review
the entirety of the remand order and consider whether any of the
grounds asserted below for jurisdiction are sufficient to keep
this suit in federal court. They lean on the Seventh Circuit's
2 The Supreme Court recently granted a writ of certiorari to resolve the circuit split on this question. BP P.L.C. v. Mayor & City Council Baltimore, No. 19-1189 (U.S. Oct. 2, 2020).
- 10 - decision in Lu Junhong v. Boeing Co., which adopted this
interpretation. 792 F.3d 805, 811 (7th Cir. 2015).
In Lu Junhong, the Seventh Circuit evaluated the
provision at issue here and concluded that "to say that a district
court's 'order' is reviewable is to allow appellate review of the
whole order, not just of particular issues or reasons." 792 F.3d
at 811. In its analysis, the Seventh Circuit primarily relied on
the Supreme Court's decision in Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199 (1996). In Yamaha, the Court examined the
scope of appellate jurisdiction over a district court order during
an interlocutory appeal under 28 U.S.C. § 1292(b). 516 U.S. at
205. For its part, § 1292(b) provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order[.]
28 U.S.C. § 1292(b) (emphasis added); see Yamaha Motor Corp., 516
U.S. at 205 (quoting section and emphasizing same language). The
Yamaha Court held that the language of § 1292(b) permitted an
appellate court to review the entire order, rather than being bound
by the district court's framing of the "controlling question."
- 11 - 516 U.S. at 205. The Seventh Circuit reasoned that Yamaha's
understanding of "order" was the same interpretation called for in
§ 1447(d).
Seeing all of this, the oil companies rely on Lu Junhong
and Yamaha for their conclusion that the entirety of the district
court's remand order is fair game. The Seventh Circuit pronounced
its interpretation of the word "order" in Lu Junhong to be
"entirely textual," 792 F.3d at 812, and so the oil companies would
have us resolve this question with the same allegedly textual
approach.
We agree, of course, that we begin with the language of
the statute. In re Fin. Oversight & Mgmt. Bd. for Puerto Rico,
919 F.3d 121, 128 (1st Cir. 2019), cert. denied sub nom. Assured
Guar. Corp. v. Fin. Oversight & Mgmt. Bd. for Puerto Rico, 140 S.
Ct. 855 (2020). But a plain text interpretation (of the sort the
oil companies promote) is only appropriate where the statutory
language that applies to the word "order" is unambiguous. See
Babb v. Wilkie, 140 S. Ct. 1168, 1177 (2020) ("Where . . . the
words of a statute are unambiguous, the judicial inquiry is
complete.") (internal quotation marks and citation omitted)
(alteration adopted). "The plainness or ambiguity of statutory
language is determined by reference to the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole." In re Fin. Oversight & Mgmt.
- 12 - Bd. for Puerto Rico, 919 F.3d at 128 (quoting Robinson v. Shell
Oil Co., 519 U.S. 337, 341 (1997)).
The first phrase of § 1447(d) ("[a remand] order . . .
is not reviewable on appeal or otherwise") is clear that the
section is an overall prohibition on appellate review of remand
orders. The second phrase is where things get cloudy. Section
1447(d) provides for exceptions to that general prohibition on
review ("except that an order remanding a case to the State court
from which it was removed pursuant to section 1442 or 1443 of this
title shall be reviewable by appeal or otherwise"), but is latently
ambiguous because § 1447(d) "does not expressly contemplate the
situation in which removal is done pursuant to [federal officer
removal] and other grounds." Suncor Energy (U.S.A.) Inc., 965
F.3d at 805 (emphasis in original). In that circumstance (which
is the case here), the provision leaves open whether the entire
remand order or only the part that rejects federal-officer removal
is reviewable.
Seeing this ambiguity, we are unmoved by the Seventh
Circuit's reasoning in Lu Junhong because the "entirely textual"
analysis there was premised on clarity that § 1447(d) lacks. See
792 F.3d at 812. The Tenth Circuit examined the same question we
are faced with here and noted that to make its textual analysis
function in Lu Junhong, the Seventh Circuit had to bend the rules.
- 13 - The Lu Junhong court impliedly conceded [that there is ambiguity § 1447(d)] in asserting that "Section 1447(d) itself authorizes review of the remand order, because the case was removed (in part) pursuant to § 1442." 792 F.3d at 811 (emphasis added). In other words, to convey its point that the plain language of § 1447(d) creates plenary review of a remand order upon invocation of a federal officer removal basis, the Seventh Circuit was forced to modify that language with a clarifying parenthetical entirely absent from the statutory text.
Suncor Energy (U.S.A.) Inc., 965 F.3d at 805. We are similarly
unwilling, when faced with an ambiguous provision, to force an
interpretation in the name of simplicity. Instead, we will conduct
a more holistic analysis.
Beginning with the overall purpose of the statute, we
note that the Supreme Court has weighed in on § 1447 when answering
a different question, so we are not starting our work from scratch.
See Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224
(2007). We know that "[t]he authority of appellate courts to
review district-court orders remanding removed cases to state
court is substantially limited by [§ 1447]" and that if a district
court says that it is remanding a case for lack of subject-matter
jurisdiction (as it did here), we should only review whether that
"characterization was colorable." Powerex Corp., 551 U.S. at 229,
234. Another strike against a broad reading yielding a searching
review of the district court's remand order.
- 14 - Turning to the structure of the provision, the point of
§ 1447(d), by its text, is to limit appellate review. The
provision begins with a complete ban on our review of the remand
order and then pivots to two precise exceptions. See § 1447(d)
("a remand order . . . is not reviewable"). This general ban is
because, despite our best efforts, appeals can move at a glacial
pace and "[l]engthy appellate disputes . . . would frustrate the
purpose of § 1447(d)." Powerex Corp., 551 U.S. at 234. The oil
companies tell us that it would not take much longer to review the
entire order if we were already wading into the waters of the
federal-officer removal question, but even if that were true here
(and we are not confident it is) that does not change the section's
purpose. See Christopher v. Stanley-Bostitch, Inc., 240 F.3d 95,
99 (1st Cir. 2001) ("[Section 1447(d)'s] limitation is intended to
prevent prolonged litigation of the remand issue, and to minimize
interference in state court proceedings by the federal courts, for
reasons of comity.") (citation omitted).
Considering all of this, we are persuaded that to allow
review of every alleged ground for removal rejected in the district
court's order would be to allow § 1447(d)'s exception clause to
swallow the general rule prohibiting review and, thus, a narrow
construction is appropriate. See Suncor Energy (U.S.A.) Inc., 965
F.3d at 805 (interpreting the same provision and citing Comm'r of
Internal Revenue v. Clark, 489 U.S. 726, 739 (1989) ("In construing
- 15 - provisions . . . in which a general statement of policy is
qualified by an exception, we usually read the exception narrowly
in order to preserve the primary operation of the provision.")).
One more thing: we assume Congress is "'aware of the
universality of th[e] practice' of denying appellate review of
remand orders when Congress creates a new ground for removal."
Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128 (1995)
(alteration in original) (citation omitted) (addressing
§ 1447(d)). The final feather in the cap of this analysis then is
that Congress amended this section as recently as 2011 and yet
again refrained from clearly permitting plenary review of remand
orders.3 See Removal Clarification Act of 2011, Pub. L. No. 112-
51, 125 Stat. 545 (2011).
This is where the oil companies' Yamaha argument
resurfaces. Prior to the 2011 amendment to § 1447(d), Yamaha
interpreted "order" to mean everything decided by the district
3 Prior to its most recent amendment, § 1447(d) provided: An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.
28 U.S.C. § 1447 (1996). Congress added the phrase "section 1442 or" to the exception clause and left the provision otherwise untouched.
- 16 - court. 516 U.S. at 205. So, the reasoning goes, the relative
Congressional inaction on § 1447(d) in 2011 was actually Congress
ratifying the Yamaha understanding of the word "order" rather than
the decades-long deluge of appellate court interpretations of
§ 1447 generally. See, e.g., Powerex Corp., 551 U.S. at 229;
Christopher, 240 F.3d at 99. But Yamaha was interpreting the word
"order" in a different provision, § 1292(b), and in a different
procedural posture, an interlocutory appeal. No branch of
statutory interpretation says that we should assume Congress is
silently adopting court-determined definitions from other statutes
when the law in question has its own long history of application
and we are not going to plant that seed now.
To sum this up: we read § 1447(d) as prohibiting
appellate review of district court orders remanding cases for lack
of subject matter jurisdiction, except for the components of those
orders, should they exist, where the district court rejects a
defendant's attempt to remove a case under federal-officer removal
or civil rights removal.
Federal-Officer Removal
With the question of our jurisdiction resolved, we turn
to the merits that are within our purview: did the district court
err when it concluded that it did not have subject-matter
jurisdiction over this case pursuant to 28 U.S.C. § 1442(a)(1),
the federal-officer removal statute? We review de novo a "district
- 17 - court's decision to remand a case to state court," Amoche v.
Guarantee Tr. Life Ins. Co., 556 F.3d 41, 48 (1st Cir. 2009), "and,
thus, [the district court's] underlying conclusion[s]" as to
subject matter jurisdiction, Rhode Island Fishermen's All., Inc.
v. Rhode Island Dep't of Envtl. Mgmt., 585 F.3d 42, 47 (1st Cir.
2009).
Private actors sued in state court can remove the case
to federal court where the private actor is "acting under [any
federal officer], for any act under color of such office."
28 U.S.C. § 1442(a)(1); accord Camacho v. Autoridad de Telefonos
de Puerto Rico, 868 F.2d 482, 486-87 (1st Cir. 1989). "Acting
under" connotes "subjection, guidance, or control" and involves
"an effort to assist, or to help carry out, the duties or tasks of
the federal superior." Watson v. Phillip Morris Companies, Inc.,
551 U.S. 142, 152 (2007) (citations omitted).
To succeed in their argument that federal-officer
removal is proper in this case, the oil companies must show that
they were acting under a federal officer's authority, that they
will assert a colorable federal defense to the suit, and that there
exists "a nexus" between the allegations in the complaint and
conduct undertaken at the behest of a federal officer. Jefferson
Cty., Ala. v. Acker, 527 U.S. 423, 431 (1999) (internal quotation
marks and citations omitted). If the oil companies cannot
- 18 - demonstrate all three of these elements, they cannot remove the
case to federal court under § 1442.
To support their argument, the oil companies point us to
three contracts with the federal government related to the
production of oil and argue that they were "acting under" a federal
officer because they "help[ed] the Government to produce an item
that it needs." See Watson, 551 U.S. at 153. Specifically, these
contracts involved (1) oil extraction from the Elk Hills Naval
Petroleum Reserve, (2) oil extraction under the Outer Continental
Shelf Land Act ("OCSLA"), and (3) CITGO fuel supply agreements.
In the Elk Hills Reserve Contract, Standard Oil, a predecessor of
Chevron, and the U.S. Navy entered into a contract whereby Standard
would limit its extraction to ensure adequate reserves for the
Navy, but Standard "could dispose of the oil they extracted as
they saw fit." County of San Mateo v. Chevron Corp., 960 F.3d
586, 602 (9th Cir. 2020). In the OCSLA leases, some of the oil
companies agreed to mineral leases with the U.S. Government to
extract oil and natural gas from the Outer Continental Shelf, but
there appears to be no "close supervision" of this extraction or
production of oil "specially conformed to government use." See
Suncor (U.S.A.), Inc., 965 F.3d at 822, 825. And finally, CITGO
entered into a contract to provide oil to the Naval Exchange
Service Command ("NEXCOM") service stations on naval bases. County
of San Mateo, 960 F.3d at 600-01.
- 19 - At first glance, these agreements may have the flavor of
federal officer involvement in the oil companies' business, but
that mirage only lasts until one remembers what Rhode Island is
alleging in its lawsuit. Rhode Island is alleging the oil
companies produced and sold oil and gas products in Rhode Island
that were damaging the environment and engaged in a misinformation
campaign about the harmful effects of their products on the earth's
climate. The contracts the oil companies invoke as the hook for
federal-officer jurisdiction mandate none of those activities. See
Camacho, 868 F.2d at 486 (jurisdiction clearly proper where
defendants were under "express orders, control[,] and directions
of federal officers"). The Elk Hills Reserve contract and OCSLA
lease address extraction, not distribution or marketing, and the
NEXCOM contract only implicates any of those activities on Naval
bases, which are explicitly not a part of Rhode Island's case.
There is simply no nexus between anything for which Rhode Island
seeks damages and anything the oil companies allegedly did at the
behest of a federal officer. Accordingly, we conclude that the
district court properly found that there is no subject-matter
jurisdiction under the federal-officer removal statute.
CONCLUSION
Solely having appellate jurisdiction to review the
district court's remand order to the extent that it denies federal-
officer removal, we affirm. Costs awarded to Rhode Island.
- 20 -