On September 12, 2023, the NAM joined a coalition brief in the 5th Circuit concerning removal under federal officer jurisdiction. This case is one of over 40 cases filed by a group of Louisiana parishes seeking relief for alleged damage to Louisiana’s coastal environment. The plaintiffs allege that the defendants--energy producing companies--violated the Louisiana State and Local Coastal Resources Management Act by violating or failing to obtain a use permit for oil production activities on the Louisiana coast. Defendants are authorized to remove cases against them from state to federal court for actions taken while “acting under” an officer of the United States. The defendants removed this case, in part, based upon acts taken to assist the Allies in World War II, pursuant to Shell Oil Company’s contracts with the government to refine oil. The district court found that Shell Oil Company’s contracts were insufficient to establish "acts under" a federal officer because the defendants failed to show that Shell Oil Company was "acting under" a federal officer in carrying out a specific directive to engage in the activity that provides the basis for the plaintiff’s suit.
In our amicus brief, we argue that Shell Oil Company "acted under" a federal officer because oil production was how the companies fulfilled their contractual obligation to produce refined oil to the government. Ensuring that courts properly apply federal-officer removal jurisdiction is important to all manufacturers who provide goods or services to the United States government pursuant to a contract and face potential liability claims in state courts. Unfortunately, on May 29, 2024, the 5th Circuit affirmed the trial court's decision.
On July 10, 2024, the NAM filed an amicus brief requesting that the full 5th Circuit rehear the case. We argued that full 5th Circuit review is necessary to correct the panel’s interpretation of the federal officer removal statute which is inconsistent with circuit precedent and narrower than the interpretation employed by other circuits. Further, if left uncorrected, the panel’s decision will create forum uncertainty and will discourage private companies from aiding the federal government.