The case concerns a group of Louisiana parishes, supported by the Louisiana Department of Natural Resources and the Louisiana Attorney General as intervenors, seeking relief for alleged damage to Louisiana’s coastal environment based on acts committed during World War II that were controlled, directed, and regulated by the federal government. After learning of the WWII connection to plaintiffs’ claims via the plaintiffs’ 2018 expert report, the defendant oil companies sought to remove 42 related cases to federal court. In the defendants' first appeal, the Fifth Circuit held that removal was untimely because the defendants should have ascertained the federal question earlier based on vague references buried in an exhibit to the plaintiffs’ complaint. On September 15, 2020, the NAM filed an amicus brief in support of the defendants’ petition for rehearing en banc, arguing that the court's decision created uncertainty in all forms of removal, forcing defendants to file protective removal notices for fear that even equivocal and uncertain statements by plaintiffs may start the 30-day removal clock. The NAM maintained that the decision undermined the purpose of the removal statute to the detriment of both litigants and courts. On August 5, 2021, the court agreed with the defendants that their removal based on federal-officer jurisdiction was timely, but remanded the case for consideration of whether federal question jurisdiction exists.
On remand, the district courts found federal questions jurisdiction wanting, which the Fifth Circuit affirmed. The panel held that the defendants failed to present evidence that they acted pursuant to a federal officer's directive in the absence a contract that made them accountable to the federal government. On November 16, 2022, the NAM filed an amicus brief in support of the defendants' petition for a panel rehearing or, in the alternative, rehearing in banc, arguing that the panel decision conflicts with Congress's expressive directive, Supreme Court precedent, and other Circuits' case law, which do not require evidence of an express contract to establish "guidance or control" by the federal government for removal purposes.
Unfortunately, on November 29, 2022, the Fifth Circuit the petition.