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Cardozo Law Review

Abstract

On June 16, 2025, the Supreme Court granted certiorari in Chevron USA, Inc. v. Plaquemines Parish to address whether the causal-nexus requirement survived the Removal Clarification Act of 2011’s amendment to 28 U.S.C. § 1442, the federal officer removal statute (FORS). The consolidated cases before the court include some of the more than forty civil cases that were brought by Louisiana parishes against various oil companies seeking to hold them responsible for the loss and deterioration of Louisiana’s coastal wetlands caused by the oil companies’ alleged violations of a Louisiana state permitting law. The cases were filed in 2013 and have been removed to federal district court and appealed to the Fifth Circuit three times, demonstrating the inefficiencies of litigation over forum. Prior to the 2011 amendment, and for the entirety of the FORS’s 200-year history up to that point, the federal officer removal statute clearly required removing defendants to demonstrate a causal nexus between the conduct at issue in the litigation and their acts under color of federal office — that they were being sued or prosecuted “for” acts under color of office. This requirement makes perfect sense given that the FORS was intended to provide a federal forum in which federal officers and those acting under them could try their immunity defense when they were sued or prosecuted in state court for acts necessitated by their federal duty. As amended in 2011, the statute now provides that federal officers or persons acting under them may remove civil actions or criminal prosecutions against them “for or relating to” their acts under color of office. Thus, the question boils down to the meaning of “relating to.” Resolution of the issue will determine the scope of removal jurisdiction pursuant to the FORS, which has substantial implications not only for the Louisiana cases at issue against the oil industry, one of which has already resulted in a $745 million judgment against Chevron, but also for government contractors’ ability to remove tort litigation and other cases from state to federal court. A broad interpretation of the amendment would greatly expand the scope of the FORS in a manner that is not only directly contradictory to the context, history and purpose of the FORS, which dates back to 1815, but which is also contrary to the legislative history of the 2011 Act, which unquestionably indicates that Congress did not intend to abrogate the causal nexus requirement. The interpretation urged by petitioners would establish a vague and amorphous standard for federal officer removal, which will only further incentivize well-financed defendants to engage in gamesmanship by wrongfully removing cases based on the statute. This Article argues that the Supreme Court should consider the context, history and purpose of the FORS when interpreting the 2011 amendment, just as it has done in the past when interpreting similar language in other statutes, and hold that the Removal Clarification Act of 2011 did not abrogate the causal nexus requirement for removal pursuant to Section 1442. Alternatively, the article contends that in the event that the Supreme Court interprets the amendment broadly as urged by petitioners, Congress should amend Section 1442 to narrow the scope of removal to those cases where the removing defendants are being sued for their acts under color of office.

Disciplines

Constitutional Law | Supreme Court of the United States

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