REMAND

BP P.L.C. v. Mayor and City Council of Baltimore

Issues

Under 28 U.S.C. § 1447(d), may a court of appeals review any issue in an order to remand a case as long as one of the grounds for remand is federal-officer or civil-rights jurisdiction?

This case asks the Supreme Court to decide whether 28 U.S.C. § 1447(d) allows courts of appeals to review an entire order remanding a removed case back to state court. Normally, Section 1447(d) forbids courts of appeals from reviewing remand orders, except when a federal officer seeks removal or the case involves civil rights. Based on a plain reading of the text and the purpose of the exceptions, BP argues that if a defendant asserts either jurisdictional ground, Section 1447(d) permits a court to review the entire order. Baltimore contends that this reading contravenes the purpose and historical understanding of the proper scope of review. This case has implications for state and federal jurisdiction, climate change, and congressional delegation of power.

Questions as Framed for the Court by the Parties

Whether 28 U.S.C. 1447(d) permits a court of appeals to review any issue encompassed in a district court’s order remanding a removed case to state court when the removing defendant premised removal in part on the federal-officer removal statute, 28 U.S.C. 1442, or the civil-rights removal statute, 28 U.S.C. 1443.

In July 2018, the Mayor and City of Baltimore (collectively, “Baltimore”) filed suit in Maryland state court against twenty-six oil and gas companies, alleging that these companies knowingly contributed to climate change by “producing, promoting, and (misleadingly) marketing fossil fuel products long after learning the dangers associated with them.” Mayor & City Council of Balt. v.

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Osborn v. Haley

Issues

1. Under the Westfall Act, 28 U.S.C. § 2679, can the United States Attorney General certify that a federal employee was acting in the scope of his office or employment at the time of an allegedly harmful incident simply by denying that the incident ever occurred?

2. If a district court concludes that the Attorney General’s purported certification was not authorized under the Westfall Act, can the district court remand the case to state court or is it barred from doing so under the Act?

3. Did the Sixth Circuit Court of Appeals in this case have jurisdiction to review the district court ’s order to remand, notwithstanding 28 U.S.C. § 1447(d) which states that “an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise”?

 

Pat Osborn sued Barry Haley, a United States Forest Service manager, in state court, alleging that Haley had influenced her employer, Land Between the Lakes Association, to fire her and that, in so doing, Haley had acted outside the scope of his employment. Pursuant to the Westfall Act, the United States Attorney General certified that Haley was acting within the scope of his employment and successfully removed the case to federal district court. Once there, the United States denied that Haley had interfered with Osborn’s employment and proposed to substitute itself for Haley. The district court, however, assumed the veracity of Osborn’s allegations and refused substitution, remanding the action to state court. The Sixth Circuit Court of Appeals subsequently reversed, ruling that the lower court must resolve the factual disputes underlying the scope question and that the Westfall Act forecloses remand to the state court. The Supreme Court’s decision in this case will have significant implications for plaintiffs seeking to bring suit against federal employees and will likewise affect the way that the federal government and its employees respond to such suits.

Questions as Framed for the Court by the Parties

1. Whether the Westfall Act, 28 U.S.C. § 2679, authorizes the Attorney General to certify that the employee was acting within the scope of his office or employment at the time of the incident solely by denying that such incident occurred at all.

2. Whether the Westfall Act forbids a district court to remand an action to state court upon concluding that the Attorney General's purported certification was not authorized by the Act.

3. Whether the Court of Appeals had jurisdiction to review the district court's remand order, notwithstanding 28 U.S.C. § 1447(d).

In the spring of 2002, the United States Forest Service advertised a job opening in the business department of Land Between The Lakes National Recreation Area in Western Kentucky. Brief for Respondent at 3.

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Watson v. Philip Morris Companies, Inc.

Issues

Where no other reason exists for a federal court to have jurisdiction in a case, is a defendant corporation entitled to have the case heard in federal court because that corporation should be considered a “person acting under a federal officer” where the conduct in question occurred in a field which is heavily regulated by the federal government?

 

Philip Morris removed a class action tobacco lawsuit from an Arkansas state court to the Federal District Court for the Eastern District of Arkansas. Plaintiffs Watson and Lawson sought to remand the case to state court, but their motion was denied. The Eighth Circuit held that Philip Morris was a corporation qualifying as a “person acting under a federal officer” and thus entitled to removal under 28 U.S.C. § 1442(a)(1). The Supreme Court takes up the question of whether parties operating in an arena of heavy federal regulation qualify under this federal officer removal statute or, to the contrary, if the statute’s origins and history preclude such interpretation.

Questions as Framed for the Court by the Parties

Whether a private actor doing no more than complying with federal regulation is a “person acting under a federal officer” for the purpose of 28 U.S.C. § 1442(a)(1), entitling the actor to remove to federal court a civil action brought in state court under state law.

Lisa Watson and Loretta Lawson are smokers who purchased “light” cigarettes from tobacco company Philip Morris. Watson v. Philip Morris Companies, Inc., 2003 WL 23272484 *1 (E.D. Ark 2003) (not reported in F. Supp.2d). Watson and Lawson, and the class of individuals they represent, have sued the Philip Morris company for false advertising with regard to these purchased cigarettes, specifically, the Marlboro Lights and Cambridge Lights brands. Id.

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