Earlier this month in Chevron USA Inc. v. Plaquemines Parish, the U.S. Supreme Court broadly interpreted the meaning of “relating to” in the federal officer removal statute.  In doing so, it vacated the judgment of the Fifth Circuit that held defendant had not sufficiently demonstrated that plaintiffs’ suit was “for or relating to” the acts it performed under the authority of a federal officer.  The Court looked to the ordinary meaning of “relating to” across various contexts and held that defendant had shown the instant lawsuit implicated acts “that are closely connected to the performance of its federal duties.”

Under the federal officer removal statute, 28 U.S.C. § 1442(a)(1), defendants may remove to federal court any “civil action or criminal prosecution that is commenced in a State court and that is against or directed to. . . [t]he United States or any agency thereof or any officer (or any person acting under that officer) of the United States or any agency thereof . . . for or relating to any act under color of such office.” 

The Court’s interpretation of the “relating to” requirement arose in the context of several lawsuits filed by different Louisiana parishes, including Plaquemines Parish, (the “Parish”), challenging the crude oil production practices of Chevron’s predecessor, The Texas Company, (“Chevron”) utilized in those areas during World War II (“WWII”).  This crude oil was used to refine aviation gasoline or “avgas.”   Avgas was critical to the war effort and the United States’ refining of avgas needed to be dramatically increased to support the military.  The Petroleum Administration for War (“P.A.W.”) entered into avgas refining contracts with several refineries to meet this need, including Chevron. 

The Parish’s challenge was made under Louisiana’s State and Local Coastal Resources Management Act of 1978 (the “Act”).  The Act requires permits for uses of state concern in the Louisiana coastal zone, including oil production, but exempted from the permitting program some uses “legally commenced or established” prior to 1980.  When it filed suit in 2013, the Parish alleged that Chevron needed a permit for its activities in the coastal zone, reasoning that the Act’s exemption did not apply as Chevron’s activities were illegally commenced.  The Parish filed an expert report that took issue with Chevon’s crude-oil production during WWII, including production-related activities such as using earthen pits instead of steel tanks, engaging in vertical drilling, and failing to build sufficient infrastructure to protect sensitive environmental resources.

Chevron removed under 28 U.S.C. § 1442(a)(1), arguing that their production activities in theses areas “related to” their federal contractual avgas refining duties.  The district court rejected this argument and granted the Parish’s motion to remand.  On appeal, the Fifth Circuit affirmed, reasoning that Chevron’s crude oil production “did not relate to the performance of Chevron’s avgas refining contract because the contract did not specify how to acquire crude oil.” 

 Justice Thomas, writing for an 8-0 Court, found this was error.  Starting with a review of the Court’s interpretations of the meaning of “relating to” across a variety of contexts, the Court emphasized that this connection may be satisfied even where one thing is not “specifically designed to affect another” or where the connection is “indirect.”  Similarly, the Court explained that “relating to” means “to have bearing or concern,” but not a connection that is “tenuous, remote, or peripheral.”  Given this, the Court concluded that “Chevron’s case fits comfortably” within the meaning of “relating to,” as the “suit implicated Chevron’s wartime efforts to produce and supply avgas’ essential feedstock, so it closely connected to Chevron’s wartime avgas refining for the military.”  Because the refining effort took place in an “all-hands-on-deck, wartime context,” Chevron’s choices to utilize practices at issue to increase crude oil—like the use of earthen pits and vertical drilling—related to maximizing the amount of avgas that could be refined and used in WWII.

Justice Jackson concurred only in the judgment.  While agreeing with her colleagues that Chevron had made the required showing, looking to the legislative history and events surrounding the 2011 amendments in which the “relating to” language was added to the statute, she reasoned that the “looser standard” announced by the Court was inconsistent with Congressional intent.  Specifically, she noted that change in the language of the federal officer removal statute to add “or relating to” was made as a conforming amendment and was not intended to change the statute’s substance.  Rather, the amendment sought to address a circuit split regarding whether federal officers could seek a federal forum when faced with presuit discovery requests in state court.  The language was added to clarify that because those presuit discovery proceedings are “related to” the defendant’s federally directed conduct, they are properly removable.

By broadening the federal officer removal statute’s requirement that the subject of the suit is “relating to” the defendant’s acts taken under federal direction, the Court has made it easier for private parties to remove such cases to federal court.  Moving forward, private parties that can articulate how suits stand “in some relation” to acts performed under federal contract will likely be able to keep those suits in a federal forum.     

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