420 F.Supp.3d 532
W.D. La.2019Background
- Parish of Cameron and Louisiana (state) sued dozens of oilfield defendants under Louisiana's Coastal Zone Management Act (SLCRMA), alleging unlawful pre-1980 dredging, drilling, and waste practices and that defendants' pre‑SLCRMA activities were not exempt as "lawfully commenced."
- The cases were previously removed and remanded; defendants removed again (May 23, 2018) invoking federal officer removal (28 U.S.C. § 1442) and federal‑question jurisdiction (§ 1331) based on an expert report in a related case (the "Rozel Report") that identified specific WWII‑era practices allegedly subject to federal wartime regulation.
- Plaintiffs moved to remand, arguing removal was untimely and that neither federal officer nor federal‑question jurisdiction exists; Magistrate recommended remand as untimely; defendants objected.
- The district court held the Rozel Report qualified as an "other paper" that made removal timely (30 days from report), but on the merits concluded defendants failed to satisfy § 1442's "acting under" and causal‑nexus requirements and failed Grable/Gunn substantiality for federal‑question removal.
- Court remanded the cases to state court, but certified the federal‑officer jurisdiction issue for interlocutory appeal under 28 U.S.C. § 1292(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of removal | Removal was untimely; defendants knew or should have known pre‑1980 claims earlier | Removal timely only after Rozel Report revealed specific WWII‑era federally‑directed activities | Removal was timely (Rozel Report triggered 30‑day clock) |
| § 1442 "acting under" requirement | WWII federal regulation did not subject defendants to direct federal control; regulatory compliance ≠ "acting under" | WWII wartime agencies (PAW/PCP) tightly controlled oil industry; defendants assisted federal war effort and thus acted under federal officers | Not satisfied: record shows regulation and some approvals, but not the required direct, detailed federal control or government‑contractor relationship |
| § 1442 causal nexus / colorable federal defense | Even if some federal involvement, plaintiffs' injuries stem from state law conduct free of federal interference | WWII directives caused or required the specific practices now challenged, creating the causal nexus | Not met under controlling Fifth Circuit precedent; inquiry collapses with "acting under" and fails here |
| Federal‑question (Grable/Gunn) | WWII regulatory question is necessarily raised, actually disputed, and substantial | WWII regulations raise only factbound, historical issues—not a substantial federal question warranting federal forum | Federal‑question jurisdiction rejected: federal issues are incidental, factbound, not sufficiently substantial or central to disrupt federal‑state balance |
Key Cases Cited
- Bosky v. Kroger Texas, LP, 288 F.3d 208 (5th Cir. 2002) ("unequivocally clear" standard for when an "other paper" starts the 30‑day removal clock)
- Watson v. Philip Morris Cos., 551 U.S. 142 (U.S. 2007) (compliance with federal regulation alone does not satisfy § 1442 "acting under" requirement)
- Durham v. Lockheed Martin Corp., 445 F.3d 1247 (9th Cir. 2006) (specific facts supporting federal‑officer removal must appear in pleadings or an "other paper" before removal clock runs)
- Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998) (government‑contractor producing items under detailed government control satisfies § 1442 "acting under")
- Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017) (government specifications mandating use of materials can support § 1442 removal)
- In re MTBE Prod. Liab. Litig., 480 F.3d 112 (2d Cir. 2007) (statutory/regulatory requirement to achieve an objective did not mandate use of a specific additive, so § 1442 removal failed)
- Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., 545 U.S. 308 (U.S. 2005) (state claims can "arise under" federal law if they present a substantial federal issue)
- Gunn v. Minton, 568 U.S. 251 (U.S. 2013) (clarifies Grable factors for federal‑question jurisdiction over state law claims)
- Empire Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677 (U.S. 2006) (Grable requires more than a federal element; looks for nearly pure issue of federal law)
- Bartel v. Alcoa S.S. Co., 805 F.3d 169 (5th Cir. 2015) (Fifth Circuit's causal‑nexus framework for § 1442 removal still binding)