960 F.3d 586
9th Cir.2020Background
- Multiple California counties and cities filed state-law nuisance and related suits (2017–2018) against 30+ energy companies, alleging their fossil-fuel activities substantially contributed to global warming and sea-level rise.
- Defendants removed six consolidated actions to federal court, asserting eight separate bases for federal jurisdiction, including federal-officer removal under 28 U.S.C. § 1442(a)(1).
- The district court remanded all cases to state court for lack of subject-matter jurisdiction and stayed the remand orders to permit appeal.
- On appeal, the Ninth Circuit held its appellate review under 28 U.S.C. § 1447(d) is limited: it may review only the district court’s disposition as to § 1442(a)(1), not the other asserted grounds for removal.
- Applying § 1442(a)(1) law, the Ninth Circuit concluded defendants failed to prove by a preponderance that they were "acting under" a federal officer based on (1) CITGO fuel-supply contracts with NEXCOM, (2) the Elk Hills unit agreement, or (3) Outer Continental Shelf (OCS) lease terms; it affirmed remand as to § 1442 and dismissed the remainder of the appeals for lack of jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of appellate review under 28 U.S.C. § 1447(d) | Remand was for lack of subject-matter jurisdiction; Patel limits review to the specific statutory grounds listed in § 1447(d). | Lu Junhong/Yamaha support plenary review of the entire remand order when removal invoked § 1442. | Followed Patel: appellate review limited to the district court’s ruling as to § 1442(a)(1); other issues dismissed for lack of jurisdiction. |
| Whether district court’s remand was a merits decision (i.e., not colorably jurisdictional) | Remand was properly characterized as for lack of subject-matter jurisdiction (colorable). | Defendants contended the district court effectively made a merits ruling (e.g., on federal common law), so remand was not "colorably" jurisdictional. | Remand was sufficiently colorable as based on lack of subject-matter jurisdiction; nonreviewability clause applies. |
| Whether defendants were "persons acting under" a federal officer (federal-officer removal) | The Counties: contracts and leases were arm’s-length, commercially focused, or regulatory compliance—not the close "acting under" relationship § 1442 requires. | Defendants: contracts (NEXCOM fuel supply), the Elk Hills unit agreement, and OCS leases put them under federal control/direction and thus satisfy § 1442(a)(1). | Defendants failed to carry their burden; none of the agreements established the unusually close subjection, control, or agency-like relationship required for "acting under." |
| Effect of Congress’s 2011 amendment to § 1447(d) | Patel remains binding; the 2011 insertion of § 1442 into the exception clause did not abrogate Patel’s rule limiting review to enumerated grounds. | Amendment shows Congress intended broader appellate review (plenary review of remand orders when § 1442 invoked). | Congress did not abrogate Patel; Ninth Circuit adheres to Patel and similar circuit precedent. |
Key Cases Cited
- Patel v. Del Taco, Inc., 446 F.3d 996 (9th Cir. 2006) (§ 1447(d) permits review only of remand rulings tied to the statute sections listed in the exception clause)
- Watson v. Philip Morris Cos., 551 U.S. 142 (2007) (purpose and liberal construction of federal-officer removal; limits on extending § 1442 to regulated commercial actors)
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007) (district court’s characterization of remand as jurisdictional must be at least colorable)
- Willingham v. Morgan, 395 U.S. 402 (1969) (historical purpose of federal-officer removal to protect federal operations)
- Goncalves ex rel. Goncalves v. Rady Children’s Hosp. San Diego, 865 F.3d 1237 (9th Cir. 2017) (acting-under analysis; agency-like relationships can support removal)
- Fidelitad, Inc. v. Insitu, Inc., 904 F.3d 1095 (9th Cir. 2018) (elements required for federal-officer removal)
- Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) (defendant bears preponderance burden to establish removal requirements)
- Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015) (holds § 1447(d) permits plenary review of the remand order when § 1442 invoked)
- Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996) (statutory construction supporting review of issues "fairly included" in an appealed order)
- Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387 (5th Cir. 1998) (government-contractor removal where contractor followed detailed government specifications and supervision)