Federal Officer Removal in Plaquemines Parish

On Monday, the Court heard oral argument in Chevron v. Plaquemines Parish. The question presented is whether the energy company, a federal contractor, could remove a case to federal court “when sued for oil-production activities undertaken to fulfill a federal oil-refinement contract.” I don’t have terribly strong thoughts about this particular question, but my ears perked up when Justice Barrett brought up officer stuff. Yes, you can never get away from officer stuff.

ACB inquired abut Chief Judge Pryor’s decision in Georgia v. Meadows (2023). As you might recall, the Fulton County DA indicted President Trump and several of his associates, including former Chief of Staff Mark Meadows, for events arising from the 2020 election. But by the time the case arrived to the Eleventh Circuit, Meadows no longer held that position. Judge Pryor found that the federal-officer removal statute does not apply to former federal officers.

In that case Georgia conceded that the Chief of Staff was an “officer” position, and the Eleventh Circuit relied on that concession. I’m not so sure about that concession. There is some reason to think the Chief of Staff is neither a principal nor an inferior officer of the United States. He just might be an employee, in which case he could not avail himself of the federal officer removal statute at all. But that issue was not litigated, so I’ll leave it here. And for those with short memories, Seth Barrett Tillman and I argued that Trump, as President, was not an “Officer of the United States,” and thus could not remove the case to federal court. Judge Hellerstein, who has been in the news of late with the Maduro case, “believe[d]” in dictum that the President was an “Officer of the United States” for purposes of Federal Officer Removal Statute.

Anyway, back to Meadows. Paul Clement represented Meadows, and filed a cert petition in June 2024. It was denied in November 2024, without any relists, or dissents. At the time, I suspected the Court wanted to get as far away from J6 as possible, and in any event, this was not the ideal vehicle to resolve the issue. Judge Pryor held in the alternative that even if Meadows could remove the case, the events giving rise to the indictment were not related to Meadows’s official duties.

Fast-forward to Plaquemines Parish (which is close to where ACB grew up in New Orleans.) Chevron was represented by (who else) Paul Clement. And Justice Barrett asked about Judge Pryor’s opinion:

JUSTICE BARRETT: The other thing is we’ve never addressed whether the federal officer has to be a federal officer now or at the time the conduct occurred. And in the Meadows case, which was pretty recent, Chief Judge Pryor said, well, it has to be at the time currently, which would not apply to your clients.

So if you could address those two.

MR. CLEMENT: Well, there’s a lot there. I mean, first –and –and let me make sure I don’t forget either piece.

JUSTICE BARRETT: Yeah.

…

So, on your second question, well, what can I say? I mean, Chief Judge Pryor got that badly, badly wrong. I asked on behalf of Mr. Meadows for this Court to take a look at it and fix it. This Court wasn’t interested. But, you know, the arguments are overwhelmingly strong that that’s –that the Eleventh Circuit decision is wrong. But even the Eleventh Circuit, my understanding is, has not applied that in the government contractor case because, you know, one of –I mean, there’s a lot wrong with that approach, but one of the things is it’s really hard to apply in the government contractor case because what are you saying? Like, the contract officer that gave us the contract in World War II still needs to be alive or still needs to be on the job? I mean, that doesn’t make any sense.

JUSTICE BARRETT: Well, I don’t –I don’t know whether it makes sense or not because, as you say, we didn’t take up that question before. I just don’t want to implicitly resolve it here because it’s a live one.

MR. CLEMENT: It’s not a live one on the Fifth Circuit on remand. You know, if you want to drop a footnote and say you’re not deciding that case or that issue in the opinion, you know, that –that –that would be an appropriate approach, I think.

I think there are only a handful of advocates who could stand at the podium and stay that the Chief Judge of the Eleventh Circuit was “badly, badly wrong.” And there are even fewer advocates who can complain that their cert petition in another case was denied. Paul Clement did both things in the span of a few moments.

Now, onto the transgender cases. Many more posts to come.