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WASHINGTON, D.C. – America First Legal (AFL), in partnership with co-counsel Christopher Mills of Spero Law, has filed an amicus brief in the U.S. Supreme Court on behalf of a coalition of U.S. Senators including Mike Lee, Ted Bud, Ted Cruz, John Cornyn, John Hoeven, and Cindy Hyde-Smith, in Chevron v. Plaquemines Parish, urging the Court to rein in the Fifth Circuit’s defiance of federal law and reaffirm longstanding protections for federal employees and contractors.
This case deals with the ability of federal employees and contractors to transfer court cases into federal court when the underlying facts relate to their federal responsibilities—an important issue for the Courts to get right. The decision will have sweeping implications—including for federal immigration enforcement. States like California, Illinois, Colorado, and others have shown open hostility toward federal law enforcement. To keep America safe, federal law enforcement officers must know they will not be dragged into state courts and put on trial for carrying out their lawful federal duties. Because federal law enforcement officials often rely on help from the private sector, federal contractors also need the protection of a neutral federal forum.
That protection is not hypothetical. Today, private contractors who assist U.S. Immigration and Customs Enforcement (ICE) have been directly targeted by state and local governments hostile to immigration enforcement. Officials in New Haven, Connecticut, have banned their employees from flying on Avelo Airlines because it is an ICE subcontractor, going so far as to threaten the airline and its president. In Colorado, activists and the state attorney general have not only attacked detention facility contractors working under ICE’s direction, but also a Mesa County sheriff’s deputy whose only ‘wrongdoing’ was compliance with federal immigration enforcement. Clearly, it is not a stretch to assume that contractors in similar venues will face a deck stacked against them. If removal protections are weakened, federal contractors working under ICE and other agencies could be dragged into hostile state courts simply for carrying out federal directives. The risk is clear: private companies may refuse to contract with the federal government at all, undermining America’s ability to enforce its laws and secure its borders.
Congress has long recognized this danger. In fact, as AFL’s brief explains, Congress first acted on the issue in 1815, following the War of 1812, and has consistently expanded removal protections ever since. These expansions ensure that federal officials can avoid harassment from hostile states while carrying out their duties by transferring them to federal court. The Fifth Circuit defied that command when it imposed a heightened causation requirement on federal contractors, demanding proof of a strict cause-and-effect link before transferring their case. That narrow reading defies Congress’s intent, as most recently clarified in the Removal Clarification Act of 2011, and leaves federal officers and contractors vulnerable.
The case arises from Plaquemines Parish’s (Louisiana) lawsuit against several oil and gas companies for coastal erosion allegedly linked to oil production dating back to the 1940s. At the time, these companies were fulfilling federal wartime contracts to refine oil for the Allied Victory in World War II. The Parish, however, argued—and the Courts have agreed—that because the contracts specified refining, the related production activities were not covered. The companies counter that producing crude oil is, of course, inseparable from refining it, and that the act of doing so is directly connected to their federal contracts.
AFL, representing allies in the Senate, some of whom helped shape the current iteration of the Federal Officer Removal Statute, is urging the Supreme Court to enforce Congress’s clear intent. Federal officers, agents, and contractors must be protected from hostile state courts that could—and have—otherwise obstructed lawful federal operations with which the states disagree. Respecting the will of the people requires nothing less.
Gene Hamilton, President of America First Legal, said, “We are honored to have worked on this important brief on behalf of Senator Lee and this group of his colleagues. We urge the Supreme Court to properly apply the text of this statute and shield federal officers and contractors from abusive lawfare in hostile forums.”
“Lawfare has become the weapon of choice for ambitious local officials hungry for headlines and political clout, and this case shows that even mild forms of court-shopping can negatively impact good government,” said Senator Lee. “Local politicians know they face an uphill climb in federal court, so they put their thumb on the scales by dragging cases into hand-picked state courts where the outcome is stacked in their favor. That kind of courtroom abuse undermines the rule of law, and the Supreme Court has an opportunity and a duty to help bring it to an end.”
Daniel Epstein, Vice President of America First Legal, said, “Congress has repeatedly expanded these protections for more than two centuries, from the War of 1812 to today. The Fifth Circuit ignored and defied that history. Dragging federal officers into hostile state courts for doing their jobs is sabotage against the rule of law and a direct threat to America’s security.”
Read the brief here.
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