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acknowledging that "Latiolais left unclear where to draw the line between related and unrelated activities"
Summary of this case from Plaquemines Par. v. BP Am. Prod. Co.Opinion
No. 23-30291
10-11-2023
PLAQUEMINES PARISH, Plaintiff—Appellee, Louisiana State, ex rel. Jeff Landry, Attorney General; Louisiana State, through the Louisiana Department of Natural Resources Office of Coastal Management and its Secretary, Thomas F. Harris, Intervenors—Appellees, v. CHEVRON USA, INCORPORATED, As Successor in Interest to Gulf Oil Corporation and The California Company; Chevron USA Holdings, Incorporated, As Successor in Interest to Getty Oil Company, Texas E&P, Incorporated, Tide Water Associated Oil Company, Tide Water Oil Company, and Texaco Producing, Incorporated; BP America Production Company, As Successor in Interest to Pan American Petroleum Corporation, Defendants—Appellants.
Victor L. Marcello, Esq., Donald T. Carmouche, Talbot, Carmouche & Marcello, Baton Rouge, LA, for Plaintiff-Appellee. Victor L. Marcello, Esq., Talbot, Carmouche & Marcello, Baton Rouge, LA, Ryan Michael Seidemann, Louisiana Department of Justice, Baton Rouge, LA, for Intervenor-Appellee Louisiana State, ex rel. Jeff Landry, Attorney General. Donald Wayne Price, Special Counsel, Department of Natural Resources for the State of Louisiana, Baton Rouge, LA, Ryan Michael Seidemann, Louisiana Department of Justice, Baton Rouge, LA, for Intervenor-Appellee Louisiana State, through the Louisiana Department of Natural Resources Office of Coastal Management and its Secretary, Thomas F. Harris. Peter D. Keisler, Esq., Jennifer Jo Clark, Sidley Austin, L.L.P., Washington, DC, Alexandra Giselle White, Eric Julian Mayer, Susman Godfrey, L.L.P., Houston, TX, for Defendants-Appellants Chevron USA, Incorporated, As Successor in Interest to Gulf Oil Corporation and The California Company, Chevron USA Holdings, Incorporated, As Successor in Interest to Getty Oil Company, Texas E&P Incorporated, Tide Water Associated Oil Company, Tidewater Oil Company and Texaco Producing, Incorporated. George Arceneaux, III, Esq., Liskow & Lewis, Lafayette, LA, Jennifer Kwapisz, Nancy Gordon Milburn, Arnold & Porter Kaye Scholer, L.L.P., New York, NY, for Defendant-Appellant BP America Production Company, As Successor in Interest to Pan American Petroleum Corporation.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:18-CV-5215, Eldon E. Fallon, U.S. District Judge Victor L. Marcello, Esq., Donald T. Carmouche, Talbot, Carmouche & Marcello, Baton Rouge, LA, for Plaintiff-Appellee. Victor L. Marcello, Esq., Talbot, Carmouche & Marcello, Baton Rouge, LA, Ryan Michael Seidemann, Louisiana Department of Justice, Baton Rouge, LA, for Intervenor-Appellee Louisiana State, ex rel. Jeff Landry, Attorney General. Donald Wayne Price, Special Counsel, Department of Natural Resources for the State of Louisiana, Baton Rouge, LA, Ryan Michael Seidemann, Louisiana Department of Justice, Baton Rouge, LA, for Intervenor-Appellee Louisiana State, through the Louisiana Department of Natural Resources Office of Coastal Management and its Secretary, Thomas F. Harris. Peter D. Keisler, Esq., Jennifer Jo Clark, Sidley Austin, L.L.P., Washington, DC, Alexandra Giselle White, Eric Julian Mayer, Susman Godfrey, L.L.P., Houston, TX, for Defendants-Appellants Chevron USA, Incorporated, As Successor in Interest to Gulf Oil Corporation and The California Company, Chevron USA Holdings, Incorporated, As Successor in Interest to Getty Oil Company, Texas E&P Incorporated, Tide Water Associated Oil Company, Tidewater Oil Company and Texaco Producing, Incorporated. George Arceneaux, III, Esq., Liskow & Lewis, Lafayette, LA, Jennifer Kwapisz, Nancy Gordon Milburn, Arnold & Porter Kaye Scholer, L.L.P., New York, NY, for Defendant-Appellant BP America Production Company, As Successor in Interest to Pan American Petroleum Corporation. Before Clement, Southwick, and Higginson, Circuit Judges.
PUBLISHED ORDER
Stephen A. Higginson, Circuit Judge:
This case, first filed in 2013, is one of many closely related cases seeking to determine the oil and gas industry's responsibility, and consequent restoration obligations, for the rapid loss and deterioration of Louisiana's coastal wetlands. For ten years, Chevron et al. ("defendants") have repeatedly attempted removal to federal court based on various theories, so the merits have never been reached.
On March 1, 2023, the district court granted Plaquemines Parish and Louisiana's ("plaintiffs") motion to remand this case to state court based on a lack of federal subject matter jurisdiction. On March 2, the district court mailed its remand order to state court. On April 19, the district court denied reconsideration of the remand order but stayed the order pending defendants' appeal to our court. Soon after, plaintiffs appealed and moved us to vacate the district court's stay. The only question before this panel is whether to grant the motion to vacate the stay.
Plaintiffs argue that this court should vacate the stay because (1) federal courts lack jurisdiction to stay a remand order after mailing it to state court and (2) the district court abused its discretion by issuing the stay because the defendants fall well short of meeting their burden to justify this extraordinary relief.
We agree with the defendants that the district court had jurisdiction to stay its already-mailed remand order. However, we hold that defendants have fallen well short of meeting their burden to show that a stay pending appeal is justified in the circumstances of this case. Therefore, we GRANT plaintiffs' motion and VACATE the stay.
I.
The history of this litigation is central to the current motion, so we begin with an overview.
In 2013, Plaquemines Parish and other coastal parishes filed forty-two lawsuits, including this underlying suit, against oil and gas companies in Louisiana's state courts alleging violations of the State and Local Coastal Resources Management Act of 1978 ("SLCRMA"). Thirty of these cases, including this case, were filed in state courts located within Louisiana's Eastern District. The parishes sought, and continue to seek, damages and the establishment of remedial and "restoration obligations . . . for the rapid loss and deterioration of Louisiana's coastal wetlands." Par. of Plaquemines v. Riverwood Prod. Co., No. 18-5217, 2019 WL 2271118, at *1 (E.D. La. May 28, 2019) (hereinafter "Riverwood I").
The oil and gas defendants removed all thirty of the Eastern District cases to federal court, alleging federal question, maritime, and diversity jurisdiction, but the cases were remanded to state court after years of litigation in which district courts continuously rejected the oil and gas defendants' jurisdictional contentions. Riverwood I, 2019 WL 2271118, at *2; see, e.g., Par. of Plaquemines v. Total Petrochemical & Refin. USA, Inc., 64 F. Supp. 3d 872 (E.D. La. 2014) (remanding to state court); Plaquemines Par. v. Hilcorp Energy Co., No. 13-6727, 2015 WL 1954640 (E.D. La. Apr. 29, 2015) (same); St. Bernard Par. v. Atl. Richfield Co., No. 16-16294, 2017 WL 2875723 (E.D. La. July 6, 2017) (same).
In 2018, Parish plaintiffs "issued a Preliminary Expert Report on Violations in the related Parish of Plaquemines v. Rozel Operating Co. case," which led the oil and gas defendants to argue the report "revealed that the plaintiffs primarily attack activities undertaken before the state permitting law at issue was effective and that were instead subject to extensive and exclusive federal direction, control, and regulation." Riverwood I, 2019 WL 2271118, at *2 (internal quotation omitted). Specifically, according to this theory, the relevant activities were first undertaken during World War II, so the key time period in question is the World War II era. See Par. of Plaquemines v. Northcoast Oil Co., No. 18-5228, — F. Supp. 3d —, —, —, —, 2023 WL 2986371, at *1, *4, *7 (E.D. La. Apr. 18, 2023) (hereinafter "Northcoast") (explaining how activities undertaken during WWII became the crux of this jurisdictional dispute); Par. of Plaquemines v. Riverwood Prod. Co., No. 18-5217, 2022 WL 101401, at *6 (E.D. La. Jan. 11, 2022) ("Riverwood II") ("Defendants claim that their compliance with WWII authorizations and regulations entitles them to a preemption defense.").
The oil and gas defendants thus "re-removed" in 2018, this time alleging federal question and federal officer jurisdiction under 28 U.S.C. § 1442. Northcoast, — F.Supp.3d at —, 2023 WL 2986371, at *1; see Riverwood II, 2022 WL 101401, at *3. The Eastern District designated Riverwood as the lead case and assigned it to the late Judge Feldman. All the other Eastern District cases, including this case, were placed in abeyance in 2018 and held for Riverwood; they would ultimately be held in abeyance for five full years, "at times over the plaintiffs' strenuous objections." Par. of Plaquemines v. Goodrich Petroleum Co., No. 18-5238, 2023 WL 2014565, at *2 (E.D. La. Feb. 15, 2023); see Northcoast, — F.Supp.3d at —, 2023 WL 2986371, at *2 ("[Defendants] had been arguing in this district for years (when opposing the plaintiffs' periodic attempts to adjudicate motions to remand in certain of the SLCRMA cases) that Riverwood would resolve jurisdictional issues that cut across all of the removed SLCRMA cases.").
In Riverwood, Judge Feldman first rejected the oil and gas defendants' new bases for federal jurisdiction and remanded. See Riverwood I, 2019 WL 2271118. Our court at first affirmed in full on timeliness grounds, see Par. of Plaquemines v. Chevron USA, Inc., 969 F.3d 502 (5th Cir. 2020), but then vacated its opinion on panel rehearing and reissued an opinion that affirmed with respect to federal question jurisdiction but remanded with respect to federal officer jurisdiction, see Par. of Plaquemines v. Chevron USA, Inc., 7 F.4th 362 (5th Cir. 2021) ("Plaquemines I"). The reissued opinion did not suggest Judge Feldman had erred, but instead that the district court should reconsider the issue under the intervening case Latiolais v. Huntington Ingalls, Inc., 951 F.3d 286 (5th Cir. 2020) (en banc), which had altered federal-officer-jurisdiction precedent. See Plaquemines I, 7 F.4th at 373.
On remand, Judge Feldman agreed with Plaquemines Parish at oral argument that it was "bordering on absurd" that jurisdictional litigation had delayed these cases for so long. He then added, "Frankly, I think it's kind of shameful." That very same day, he reaffirmed his previous remand order, finding "[f]or a third time," that "these cases" do not "belong in federal court." See Riverwood II, 2022 WL 101401, at *1, *10.
To explain his reasoning, we turn to the relevant legal standards. "[T]o remove under section 1442(a), a defendant must show (1) it has asserted a colorable federal defense, (2) it is a 'person' within the meaning of the statute, (3) that has acted pursuant to a federal officer's directions, and (4) the charged conduct is connected or associated with an act pursuant to a federal officer's directions." Latiolais, 951 F.3d at 296. Latiolais widened the scope of prong (4), which had previously been thought to require a causal nexus. See id. at 291-92 (describing the causal nexus test); id. at 295-96 (describing the "connection test" that replaced it); see also id. at 295 ("[M]oving from the causal connection test . . . to a connection test . . . was not a radical change."). But our court has confirmed that Latiolais did not overrule or overhaul the third prong, and the third and fourth prongs "are distinct." St. Charles Surgical Hosp., LLC v. La. Health Servs. & Indem. Co., 990 F.3d 447, 454 (5th Cir. 2021).
On remand, Judge Feldman found that defendants failed at the third prong. Riverwood II, 2022 WL 101401, at *7-9. From the beginning, plaintiffs have charged that specific oil production activities violate SLCRMA. And from 2018 to 2022, defendants had been contending that their production activities were undertaken directly pursuant to a federal officer's direction, either because they undertook those activities as federal contractors or federal subcontractors, or because oil production was so heavily regulated that following those regulations constituted action "pursuant to a federal officer's directions." See id. Judge Feldman rejected these contentions. Id. After noting that Latiolais had not overhauled the third prong of section 1442, he held that defendants' arguments failed because there is no evidence in the record of a contract for oil production; there is no evidence in the record of a subcontractor relationship; and "regulation is not the same as direction." Id. at *5, *7-9.
Judge Feldman therefore remanded the case again to state court. But he did not mail a copy of the remand order to the clerk of the state court before he passed away two weeks later, on January 26, 2022. Riverwood was transferred to Judge Vance, who granted a stay of the unmailed remand order pending appeal.
Seven months later, this court affirmed Judge Feldman's holding and reasoning in full. Plaquemines Par. v. Chevron USA, Inc., No. 22-30055, 2022 WL 9914869 (5th Cir. Oct. 17, 2022) ("Plaquemines II") ("There is no removal jurisdiction in this case because Producers did not act pursuant to a federal officer's or agency's directions." (cleaned up)). This court then denied rehearing. Defendants filed a motion to stay issuance of the mandate pending petition for certiorari, which this court denied. Judge Vance ordered remand and mailed the certified order to the state court.
The Supreme Court denied certiorari in Plaquemines II on February 27, 2023. Chevron USA, Inc. v. Plaquemines Par., La., — U.S. —, 143 S. Ct. 991, 215 L.Ed.2d 112 (2023) (mem.). Judge Fallon, to whom the case at bar was assigned, immediately took it out of abeyance. Because Judge Fallon had been operating "[w]ith the understanding that the Fifth Circuit's decision as to [Riverwood] would also be determinative of federal jurisdiction in the instant case," he ordered remand on March 1 without additional briefing and mailed the remand letter on March 2.
Later in the day on March 2, defendants submitted a motion for reconsideration and a motion to stay the remand order pending reconsideration. Defendants did not request a stay pending appeal. Later, on March 14, they submitted a "Substitute Memorandum" in support of their motion for reconsideration; it still did not request a stay pending appeal, but it now noted that defendants planned to move for a stay pending appeal if the court were to deny their motion for reconsideration.
Defendants, in their own words, "move[d] to stay the judgment granting remand in this case for the purpose of allowing the Court to rule on Removing Defendants' Motion for Reconsideration Pursuant to Federal Rule of Civil Procedure 59."
In their motion for reconsideration and supporting memoranda, defendants argued that this case is factually distinct from Riverwood because in this case, defendants not only produced oil but also refined oil. And in the refinery context, defendants claimed, they can produce federal contracts, thus overcoming the prong (3) hurdle that was fatal in Riverwood II and Plaquemines II. We refer to this argument as defendants' "refinery argument" in what follows.
On April 19, Judge Fallon issued a reasoned opinion denying defendants" motion for reconsideration. Because plaintiffs' target is specific oil production activities, Judge Fallon recognized that the "highest hurdle" for the refinery argument to overcome is to connect defendants' refinery activities to their production activities. Thus, even if defendants can satisfy prong (3) by producing federal contracts—a contested question Judge Fallon opted not to resolve—the problem is now prong (4): are the production activities at issue in the lawsuit sufficiently "related to" the refinery activities under Latiolais?
Judge Fallon answered no, emphasizing the extent of the disconnect between the specific kinds of oil production activities at issue in the lawsuit and the kinds of refinery activities for which defendants now allege they can produce federal contracts. "To find federal officer jurisdiction in such a circumstance would take Latiolais' 'connected or associated' test too far, and would essentially mean that any upstream action a company might take to satisfy a federal contract, no matter how attenuated or outside of federal control, would entitle that company to federal officer jurisdiction."
At least three additional district court judges have since ruled the same way, based on the same reasoning, in the various cases where defendants have raised their refinery argument. See Northcoast, — F.Supp.3d at —, 2023 WL 2986371, at *10 (E.D. La. Apr. 18, 2023) (Zainey, J.) ("[I]n no way did the government direct [defendant] to produce its own crude, and in no way did [defendant] agree to do that as part of the [refinery] agreement. The agreement does not even allude to the possibility of [defendant] producing its own crude to fulfill the contract . . . . [Defendant] had complete latitude under the contract to forego producing any crude and instead to buy it on the open market."); Par. of Plaquemines v. Rozel Operating Co., No. 18-5189, 2023 WL 3336640, at *6 (E.D. La. May 10, 2023) (Morgan, J.) ("[T]he removing Defendants have failed to demonstrate . . . that the removing Defendants' alleged violations of SLCRMA are 'connected or associated with' or 'related to' a federal directive."); Par. of Cameron v. Apache Corp. (of Del.), No. 18-688, 2023 WL 3974168, at *8 (W.D. La. June 13, 2013) (Summerhays, J.) ("The evidence in the record does not support a link between the requirements of [defendants'] refining contracts and the conduct challenged in Plaintiffs' SLCRMA claims.").
Judge Fallon issued his denial of reconsideration on April 19 in this case. But Judge Fallon had first issued opinions with that same holding and reasoning on April 4, 2023 in the closely related cases Parish of Jefferson v. Destin Operating Co., No 18-5206, 2023 WL 2772023 (E.D. La. Apr. 4, 2023), and Parish of Jefferson v. Equitable Petroleum Corp., No 18-5242, 2023 WL 2771705 (E.D. La. Apr. 4, 2023). See Northcoast, — F.Supp.3d at — n.11, 2023 WL 2986371, at *4 n.11 ("Judge Fallon has already rejected the same argument that is before the Court in the instant motion to remand. The Court agrees wholeheartedly with Judge Fallon's reasoning.").
Defendants have not identified any district court opinion that has accepted a version of their refinery argument. In contrast, we are aware of four district courts who have rejected the refinery argument, some across multiple cases and multiple opinions.
See, e.g., cases cited supra note 2.
In the same April 19 order, however, Judge Fallon first noted that "Defendants also move the Court to stay the remand order pending adjudication of its motion for reconsideration." He made no further mention of the stay until the final sentence of his order, where, presumably anticipating defendants' motion for a stay pending appeal, he wrote: "Defendants' Motion to Stay the Judgement remanding this matter to state court . . . is GRANTED pending the Defendant's appeal to the Fifth Circuit."
Plaintiffs quickly filed a "Motion to Lift Stay Pending Appeal in this Matter," making the same jurisdictional arguments they make before this panel and arguing that denying a stay will not impair our court's flexibility and authority to decide this case.
On May 4, Judge Fallon denied plaintiffs' motion to lift the stay. Regarding jurisdiction, he noted that the Fifth Circuit has long recognized that where a remand order is appealable, "an appellate court has jurisdiction to review the remand order, and a district court has jurisdiction to review its own order, and vacate or reinstate that order." (quoting In re Shell Oil Co., 932 F.2d 1523, 1528 (5th Cir. 1991)). He reasoned, "if a district court may review or vacate its remand order, it is also within the power to stay that order."
Regarding the merits of the stay, he said in full:
[I]n the interest of judicial efficiency and the best use of the resources of parties on both sides, it simply makes most sense for the Fifth Circuit to rule on the merits of Defendants' jurisdictional appeal before this matter proceeds in state court: a finding by the Fifth Circuit that Defendants are entitled to federal officer jurisdiction, and the resulting reversal of this Court's remand order, would moot any state court proceedings and require that the parties essentially restart litigating the instant issues before the federal district court.
The other district courts that rejected defendants' refinery argument also granted stays pending appeal in orders that rely on Judge Fallon's having done the same or provide no reasoning. See Order, Northcoast, No. 2:18-cv-5228 (E.D. La. May 30, 2023), ECF No. 90 (Zainey, J.) ("[T]he Motions to Stay (the remand orders) . . . are GRANTED for the reasons provided by Judge Fallon when he declined to lift the stays that he entered in his similarly situated SLCRMA cases."); Order at 2, Par. of Plaquemines v. Rozel Operating Co., No. 2:18-cv-5189 (E.D. La. June 5, 2023), ECF No. 91 (Morgan, J.) ("[I]t is in the interest of judicial economy to stay the remand order. Likewise, two other sections of this Court have found the same."); Order, Par. of Cameron v. Apache Corp. (of Del.), No. 2:18-cv-688 (W.D. La. June 13, 2023), ECF No. 147 (Summerhays, J.) (providing no reasons).
On May 23, plaintiffs submitted a motion to this panel to lift and vacate Judge Fallon's stay. The remainder of this case—i.e., defendants' appeal of Judge Fallon's remand order and denial of reconsideration—has been placed in abeyance for the appeal in the lead case Plaquemines Parish v. BP America Production Co., No. 23-30294.
On June 28, this panel directed the parties to submit letter briefs describing what, if anything, has happened in the state court proceeding since Judge Fallon mailed his remand order. The parties did so, and neither reported that the state court has taken any action. However, the plaintiffs mailed a letter to defendants on April 6, 2023, demanding responses to discovery requests that were pending before removal. Shortly after the district court granted the stay pending appeal, the defendants responded to the discovery request and refused it, stating, "[b]ecause Judge Fallon stayed the legal effect of his remand order[ ], . . . Chevron does not believe that discovery responses are required at this time."
II.
We first consider plaintiffs' argument that the federal courts lack jurisdiction to stay a remand order after a certified copy has been mailed to the clerk of the state court. See 28 U.S.C. § 1447(c).
Defendants removed this case to federal court under, inter alia, 28 U.S.C. § 1442 (federal officer jurisdiction). Where a case is removed under section 1442, an order remanding to state court "shall be reviewable by appeal or otherwise." 28 U.S.C. § 1447(d). The parties therefore agree that even after the district court mailed its remand order to the state court, the district court retained "jurisdiction to review its own [remand] order, and vacate or reinstate that [remand] order." See In re Shell Oil Co., 631 F.2d 1156, 1158 (5th Cir. 1980).
Plaintiffs nevertheless contend that the district court lacked jurisdiction to stay the remand order because the plain text of 28 U.S.C. § 1447(c) shows that jurisdiction transfers to the state court upon the mailing of the remand order, and jurisdiction to stay the order does not follow from jurisdiction to vacate it.
We hold that plaintiffs' contention is mistaken. First, we have stayed already-mailed remand orders at least twice since 2014, and at least once in the face of identical arguments in a case closely related to this one. Although these orders do not explain their reasoning and are not precedential, they presuppose federal court jurisdiction to stay an already-mailed remand order.
The first of these, from 2014, is not one of the cases closely related to this one. See Order at 1-2, 6, Humphries v. OneBeacon Am. Ins. Co., No. 2:13-cv-05426 (E.D. La. Apr. 2, 2014), ECF No. 361 (denying stay pending appeal of an already-mailed remand order on non-jurisdictional grounds); Order, Humphries v. Elliott Co., No. 14-30182 (5th Cir. Apr. 18, 2014), ECF No. 41-2 (granting a stay pending appeal in the same case); Humphries v. Elliott Co., 760 F.3d 414, 416 (5th Cir. 2014) (noting "[o]ur court granted [defendant's] motion to stay remand pending appeal"). The second, from 2019, was one of the originally filed forty-two cases in this litigation. See Order, Par. of Cameron v. BP America, No. 19-30829 (5th Cir. Nov. 4, 2019), ECF No. 76 (granting a stay pending appeal of an already-mailed remand order in the face of identical jurisdictional arguments to those made at bar); Order, id. (Nov. 26, 2019), ECF No. 99 (granting an injunction enforcing the stay); Order, id. (Dec. 13, 2019), ECF No. 105 (denying motion for reconsideration).
Second, plaintiffs overread 28 U.S.C. § 1447(c), which states, "A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may there-upon proceed with such case." Plaintiffs quote Arnold v. Garlock, Inc., for the proposition that the "district court is divested of jurisdiction" at the time "the remand order . . . is certified and mailed by the clerk of the district court," 278 F.3d 426, 438 (5th Cir. 2001), and conclude that the district court below was divested of jurisdiction to stay the remand order upon mailing it. But this argument proves too much. It is inconsistent with the undisputed proposition that the district court retains jurisdiction to vacate its already-mailed remand order because the order is appealable under section 1447(d). Moreover, Arnold speaks only to remand orders that are not appealable, so it does speak to the appealable remand order in this case. Instead, where a remand order is appealable under section 1447(d), "the remand order is treated like any other final judgment." Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994). Neither section 1447(c) nor Arnold supports the proposition that a district court lacks jurisdiction to stay an order it retains jurisdiction to vacate.
We conclude the district court below was correct to reason that, because it had jurisdiction to vacate its remand order, it also had jurisdiction to stay its remand order.
Separately, Judge Fallon held below that the Anti-Injunction Act, 28 U.S.C. § 2283, is inapplicable to the stay pending appeal because the stay is just that: a stay, not an injunction. Plaintiffs argue, to the contrary, that the functional effects of the stay are relevantly like the functional effects of an injunction, so the stay should be considered an injunction violative of the Anti-Injunction Act. Plaintiffs made identical arguments multiple times before the BP America panel, which rejected them at each turn, albeit in unpublished orders that did not provide their reasoning. See BP America cases cited supra note 5. The Anti-Injunction Act does not deprive the federal courts of jurisdiction, even where it applies. Health Net, Inc. v. Wooley, 534 F.3d 487, 493 & n.2 (5th Cir. 2008) ("[T]he district court is incorrect that the Anti-Injunction Act deprives it of jurisdiction."). Therefore, because we proceed to vacate the stay under the Nken factors, we need not and do not reach plaintiffs' alternative, Anti-Injunction Act argument in favor of vacating. We note that no party has suggested this panel must first determine whether the stay violates the Anti-Injunction Act before vacating it under the Nken factors, and we treat any possible suggestion to that effect as waived and insufficiently briefed.
III.
We now consider whether a stay pending appeal in this case is justified under Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).
A stay pending appeal is "extraordinary relief" for which defendants bear a "heavy burden." See Vote.Org v. Callanen, 39 F.4th 297, 300 (5th Cir. 2022) ("extraordinary relief"); Nken, 556 U.S. at 433-34, 129 S.Ct. 1749 (2009) ("The party requesting a stay bears the burden of showing that the circumstances justify [it]."); Winston-Salem/Forsyth Cnty. Bd. of Ed. v. Scott, 404 U.S. 1221, 1231, 92 S.Ct. 1236, 31 L.Ed.2d 441 (1971) (Berger, J., in chambers) ("[In the context of] a stay order, . . . the heavy burden for making out a case for such extraordinary relief [is] on the moving parties.").
"We review a district court's decision to stay a proceeding for abuse of discretion," but "to the extent that such a decision rests on an interpretation of law, the review is de novo.' " Noatex Corp. v. King Const. of Hous., L.L.C., 732 F.3d 479, 488 (5th Cir. 2013) (internal quotations and citation omitted). "A stay is not a matter of right, even if irreparable injury might otherwise result. It is instead an exercise of judicial discretion, and [t]he propriety of its issue is dependent upon the circumstances of the particular case." Nken, 556 U.S. at 433, 129 S.Ct. 1749 (2009) (internal quotations and citations omitted).
In considering whether to exercise its discretion, a court must consider four factors (the "Nken factors"): "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Id. at 434, 129 S.Ct. 1749. "The first two factors . . . are the most critical." Id.
Importantly,
on motions for stay pending appeal the movant need not always show a "probability" of success on the merits; instead, the movant need only present a substantial case on the merits when a serious legal question is involved and show that the balance of the equities weighs heavily in favor of granting the stay.Ruiz v. Estelle, 650 F.2d 555, 565 (5th Cir. Unit A 1981) (emphasis added). A. Likelihood of Success on the Merits
We begin with whether defendants have made a "strong showing" of a "probability" of success on the merits. We focus our attention on the arguments defendants have timely made to this panel in attempting to establish the need for a stay pending appeal.
At oral argument, the panel requested letters from both parties providing the record citations they had raised at oral argument but had not included in their briefing. In response, defendants submitted briefing that made additional arguments and raised additional record citations. We struck this uninvited briefing from the record: it came too late, not least because plaintiffs were given no opportunity to respond in their own timely filed briefing to this panel. We will not consider arguments and record citations from either party that were not presented in that party's timely filed briefing to this panel.
Recall that at least three district court judges have written thorough opinions explaining why the oil production activities at issue in this and closely related lawsuits are far afield from any refinery activities allegedly undertaken pursuant to federal contracts. See Northcoast, — F.Supp.3d at —, 2023 WL 2986371, at *10; Par. of Plaquemines v. Rozel Operating Co., 2023 WL 3336640, at *6; Par. of Cameron v. Apache Corp. (of Del.), 2023 WL 3974168, at *8. Defendants point to no district court that has accepted their argument.
Nor, importantly, does defendants' timely filed briefing demonstrate that the district courts have erred. To the contrary, defendants do not acknowledge the district courts' reasoning, let alone attempt in good faith to undermine it.
Instead, defendants target a strawman. According to this strawman, it does not matter whether defendants' refinery activities are "related to" their production activities because the production activities, not the refinery activities, are at issue in these lawsuits. Defendants must therefore show "that they acted under federal direction in producing crude oil." But the final Riverwood appeal already found that defendants could not make that showing, so that appeal "already decided this case." In response to this reasoning, defendants answer that under Latiolais, "it does matter" whether the production and refinery activities are related (emphasis in original).
Defendants are correct, of course, but their showing is unpersuasive because no district court has suggested it does not matter whether the production and refinery activities were related. What the district courts have concluded is that these activities were not in fact related. Because defendants undermine a strawman rather than the reasoned views of any district court that has rejected their refinery argument, they fail to show that the district courts have committed reversible error and fail to make progress toward showing a likelihood of success on appeal.
Defendants also argue that this "Court expressly stated in Plaquemines II that 'refineries, who had federal contracts and acted pursuant to those contracts, can likely remove under § 1442.' " See Plaquemines II, 2022 WL 9914869, at *4. In other words, defendants suggest, Plaquemines II shows that defendants can remove because they had refinery contracts at the relevant time.
But the obvious response is precisely what Judge Zainey wrote in Northcoast, — F.Supp.3d at —, 2023 WL 2986371, at *10:
[T]he dicta in Plaquemines II that the Removing Defendants rely upon does not support their new theory for federal officer removal and it is a far cry from demonstrating that the Fifth Circuit believed that an oil producer who acted as both a producer and a refiner pursuant to a federal contract could remove so long as it refined some of the crude from the Operational Area in that case. The defendants read much into a single unremarkable statement that refineries with their own federal contracts would "likely" be able to remove. But the Fifth Circuit would not have been suggesting that refineries could remove for claims based on oil production activities because refineries do not produce crude and they do not engage in oil producing activities like those being challenged in this lawsuit. Common sense would dictate that what the appellate court meant was that the refineries whose federal contracts the Riverwood defendants were trying to latch onto could satisfy the acting under requirement and remove if they had been sued for activities taken pursuant to the federal directives in their refinery contracts, i.e., refining activities. The Removing Defendants' reliance on the Fifth Circuit's dicta in Plaquemines II is misplaced.Although defendants in the case at bar had the benefit of Judge Zainey's opinion at the time they filed their briefing to this panel, they neither acknowledged his reasoning nor attempted to undermine it.
In sum, defendants' timely filed briefing failed to accurately characterize, and therefore failed to undermine, the reasoning of the district courts that have unanimously rejected the refinery argument in this and closely related cases. Defendants' briefing before this panel contains no presentation of factual evidence that might serve to convince the panel that the production and refinery activities are more closely related than the district courts have taken them to be. It therefore cannot be said that defendants have shown a "probability" of success because they provide no cogent response to the district courts who have unanimously rejected their novel refinery argument. See Ruiz, 650 F.2d at 565.
However, defendants claim that even if they have not shown a strong likelihood of success, they have nonetheless presented "a substantial case on the merits when a serious legal question is involved." Id. We grant without deciding that this is correct. Latiolais left unclear where to draw the line between related and unrelated activities, and against this legal uncertainty, defendants' appeal plausibly involves a serious legal question, namely, what is Latiolais's limiting principle? Latiolais arguably leaves open the possibility that the kind of relationship federal officer jurisdiction requires is quite minimal. Against the backdrop of this uncertainty, alongside the fact that defendants may present evidentiary arguments to the merits panel that they opted not to present in their timely filed briefing to this panel, we grant arguendo that defendants present a substantial case on the merits that involves a serious legal question and turn to whether the balance of equities "weighs heavily" in their favor. See Ruiz, 650 F.2d at 565. B. Irreparable Harm
And there is presumably some "relation" in the minimal sense that one needs to possess oil to refine it, and producing oil is one method of coming to possess it. But see Northcoast, — F.Supp.3d at —, 2023 WL 2986371, at *10 (E.D. La. Apr. 18, 2023) ("[Defendant] had complete latitude under the [refinery] contract to forego producing any crude and instead to buy it on the open market.").
Defendants fail to demonstrate a likelihood of irreparable harm that weighs heavily in their favor.
First, defendants claim that they will be irreparably harmed in the absence of a stay because the costs of litigating in state court during the pendency of the federal appeal cannot be recovered. But the Supreme Court has stated, "Mere litigation expense, even substantial and unrecoupable cost, does not constitute irreparable injury." Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24, 94 S.Ct. 1028, 39 L.Ed.2d 123 (1974) (discussing preliminary injunctions), quoted with approval in Coinbase, Inc. v. Bielski, 599 U.S. 736, 143 S. Ct. 1915, 1923, 216 L.Ed.2d 671 (2023) (discussing discretionary stays).
True, the Court has also said,
The key word . . . is irreparable. Mere injuries, however substantial, in terms of money, time and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm.Sampson v. Murray, 415 U.S. 61, 90, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974) (citation omitted). But we take the weight of this authority to suggest that if unrecoupable state-court-litigation costs constitute irreparable harm in these circumstances, the harm is of little weight. See Coinbase, 143 S. Ct. at 1923 (noting that courts "applying the usual four-factor standard for a discretionary stay . . . often do not consider litigation-related burdens . . . to constitute irreparable harm" (citing Nken, 556 U.S. at 434-35, 129 S.Ct. 1749)).
Second, defendants claim that without a stay pending appeal, they will lose "their right to a federal forum for resolution of the claims challenging conduct under federal office." But Nken instructs that "simply showing some possibility of irreparable injury fails to satisfy the second factor." 556 U.S. at 434-35, 129 S.Ct. 1749; see All. for Hippocratic Med. v. FDA, 2023 WL 2913725, at *4 (5th Cir. 2023) ("Although no factor is dispositive, the likelihood of success and irreparable injury factors are 'the most critical.' Success on either factor requires that the stay seeker make a strong not merely 'possib[le]' showing." (quoting Nken, 556 U.S. at 434, 129 S.Ct. 1749)). And here, defendants demonstrate no more than a remote and avoidable possibility.
Plaintiffs put forward cases where district courts rejected federal officer jurisdiction, ordered remand, refused to issue a stay pending appeal, and were later reversed by our court on appeal. See Zeringue v. Crane Co., 846 F.3d 785 (5th Cir. 2017); Savoie v. Huntington Ingalls, Inc., 817 F.3d 457 (5th Cir. 2016). As plaintiffs correctly state, "The Zeringue and Savoie defendants did not lose the federal forum to which they were entitled." In these cases, a stay was denied, but the defendants' right to a federal forum was not lost. It was, at most, put on hold pending appeal—and here, notably, defendants' disputed right to a federal forum will remain on hold pending appeal whether this panel vacates the stay or not.
Defendants' briefing before this panel did not attempt to distinguish Zeringue and Savoie or otherwise argue that the likely outcome would be different here. Nor have they put forward any case where, because a remand to state court was not stayed, a federal appeal was mooted, or something else blocked what should have been a return to federal court. At best, for the first time at oral argument, defendants have alleged that a related case, which has been successfully remanded to state court, is presently scheduled for trial in several months. They suggest this schedule shows it is reasonably likely that in the absence of a stay, a state-court trial will occur in this case, and state-court proceedings will reach finality, before our court is able to rule on defendants' appeal.
We reject this suggestion as implausible in the particular circumstances of this case. Progress in this case has been delayed for ten years. It is not plausible that the case will reach trial before our court rules on defendants' appeal. Nor do we accept any suggestion that a state court would act to intentionally undermine the appeal. Regardless, to the extent the possibility defendants highlight becomes likely, they can request to expedite the appeal or submit an emergency motion to reinstate the stay on the ground that, for the first time, they can demonstrate more than a mere possibility of irreparable injury.
Defendants need to show that the balance of equities "weighs heavily" in favor of a stay. Irreparable injury is, along with likelihood of success, one of the two most important Nken factors. But defendants have fallen well short of showing that the second Nken factor "weighs heavily" in their favor. C . Harm to Plaintiffs and the Public
We find that the remaining Nken factors weigh against a stay pending appeal.
First, plaintiffs claim that the "protection of Louisiana's coast is now a matter of extreme urgency" and indeed, that the loss of the coast is an active "crisis." Defendants do not explicitly deny these claims. Instead, they recast them as follows:
Plaintiffs claim that there is a strong public policy favoring the prompt advancement of cases involving allegations of environmental damage, implying that a stay is virtually never appropriate in such cases. No precedent supports that argument, and the traditional balance of harms test applies to stays in environmental cases as in all cases.Defendants once again attack a strawman. Plaintiffs' timely filed briefing to this panel does not claim that there is a strong public policy favoring prompt advancement in all cases involving allegations of environmental damage. Plaintiffs claim that there is exceptional urgency in this case, where the environmental damage to the coast is an "extremely urgent . . . crisis." See Riverwood II, 2022 WL 101401, at *1 (describing the "loss/deterioration" of Louisiana's coastal wetlands as "rapid").
Defendants therefore fail to rebut plaintiffs' claims about the urgency of this crisis, and we find those claims have weight. Louisiana and its parishes have a strong interest in the speedy progression of this lawsuit because their land is deteriorating and disappearing. The public also has an interest—and the interest is particularly strong for those members of the public who live, work, or depend on Louisiana's coasts and coastal resources.
Second, plaintiffs stress that SLCRMA's stated public policy is to "protect, develop, and, where feasible, restore or enhance the resources of the state's coastal zone." Indeed, this underlines the fact that in this lawsuit, Louisiana, with its parishes, seeks to enforce its own laws, in its own courts, to protect its own and its people's rapidly disappearing coasts and coastal resources, which is precisely the public policy stated in the very law it seeks to enforce. See Arnold, 278 F.3d at 441 (finding it relevant that a stay would further "deprive states and state courts of their right to conduct proceedings brought under state law").
Comity toward the state, its parishes, and its courts also weighs in favor of minimizing further unnecessary federal-court interference with the progression of this lawsuit. See id. (stating, in the context of the fourth Nken factor, that "[t]he negative effect on comity between the federal and state court systems must be given some account"). The stay in this case is precisely that: an interference with what could otherwise be fractional progress in state court during the pendency of this appeal.
Considerations of comity have additional weight here because the remand order was already mailed to state court. Although the federal courts have jurisdiction to stay the already-mailed remand order in this case, that does not mean it demonstrates comity to state courts to do so unnecessarily, particularly where the primary "harm" defendants cite amounts to the possibility that absent a stay, the state courts might proceed with their litigation.
Third, we have noted that "the maintenance of the status quo is an important consideration" that often weighs in favor of a stay. E.T. v. Paxton, 19 F.4th 760, 770 (5th Cir. 2021) (citation omitted). Here, however, the district court mailed its remand order on March 2, so the state courts had jurisdiction and power to proceed for seven weeks before the stay was issued on April 19. Therefore, the stay may have restored the pre-March 2 status quo, but it also upended the status quo during the seven weeks preceding the stay. Given the unusual circumstances of this case, we find that maintenance of the status quo does not weigh significantly in favor of the stay. See Nken, 556 U.S. at 433, 129 S.Ct. 1749 (explaining that the propriety of a stay "is dependent upon the circumstances of the particular case" (citation omitted)).
Fourth, defendants long maintained that this case should be held in abeyance for Plaquemines II because Plaquemines II would decide the jurisdictional dispute in this very case. See Northcoast, — F.Supp.3d at —, 2023 WL 2986371, at *4. Only when defendants were unsuccessful in Plaquemines II did they construct the refinery argument, leading to additional jurisdictional litigation. See id. ("[Defendants] had been arguing in this district for years (when opposing the plaintiffs' periodic attempts to adjudicate motions to remand in certain of the SLCRMA cases) that Riverwood would resolve jurisdictional issues that cut across all of the removed SLCRMA cases. While Riverwood was a lost cause, the defendants in the other SLCRMA cases like this one rallied to find a way to distinguish their cases from Riverwood, and hence a new refinery-based argument for federal officer removal was born."). This equitable consideration weighs in plaintiffs' favor.
We conclude that the balance of equities weighs against a stay pending appeal in the circumstances of this case.
IV.
Therefore, plaintiffs' motion to lift and vacate the stay pending appeal issued by the district court on April 19, 2023, is GRANTED. The stay of the district court's already-mailed remand order is VACATED.