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. BP P.L.C. at 457. Baltimore asserted that the companies, notwithstanding their awareness of harmful environmental effects generated by their products, worked in concert to weaken supervision of their businesses and promote the unrestricted use of their fossil fuel products. Id. Baltimore further argued that as a result of the companies’ organized efforts, it suffered a wide array of climate-related injuries ranging from “an increase in sea levels, storms, floods, heatwaves, droughts, and extreme precipitation.” Id. Consequently, Baltimore asserted a total of eight causes of action based upon Maryland law, including public and private insurance, failure to warn and design defect, trespass, and violations of the Maryland Consumer Protection Act. Id. Baltimore sought “monetary damages, civil penalties, and equitable relief.” Id.
In response, two of the companies, Chevron Corporation and Chevron U.S.A. Inc. (collectively, “Chevron”), filed a motion to remove the case from Maryland state court to the United States District Court for the District of Maryland under 28 U.S.C. § 1441, the general removal statute, and 28 U.S.C. § 1442, the federal-officer removal statute. Id. at 457–58. Chevron contended that Baltimore’s claims are within the scope of federal jurisdiction under 28 U.S.C. § 1331 because they: (1) were governed by federal common law, rather than by state law; (2) brought up issues of federal law under Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing; (3) were preempted by both the Clean Air Act and the foreign affairs doctrine; and (4) were based upon conduct or injuries occurring on federal domains. Id. at 458. Baltimore, following Chevron’s removal claim, filed a motion to remand the case back to Maryland state court under 28 U.S.C. § 1447(c). The district court granted Baltimore’s motion for remand. Id.
The companies then appealed to the U.S. Court of Appeals for the Fourth Circuit and moved the district court to stay the implementation of the remand order pending the results of their appeal. Id. at 458. However, the Supreme Court of the United States denied the companies’ motion for a stay. Id. Further, on appeal, the Fourth Circuit held that 28 U.S.C. § 1447(d) limits its appellate jurisdiction to review of whether the companies properly removed the case under the federal officer removal statute. Id. at 459. Concerning the application of the federal officer removal statute, the Fourth Circuit found that all three contractual relationships between the companies and the federal government upon which the companies relied for removal were not sufficient to justify such removal. Id. at 461, 466. The Fourth Circuit specifically found that the alleged contractual relationships failed to satisfy the prongs that (1) the companies were “acting under” a federal officer, (2) the companies had a “colorable federal defense,” and (3) the contractual relationships were “sufficiently related” to Baltimore’s claims. Id. 460–67. The Fourth Circuit also determined that the Removal Clarification Act of 2011 did not allow “plenary review” of remand orders. Id. at 459. Consequently, the Fourth Circuit affirmed the district court’s order granting Baltimore’s motion to remand. Id. at 471.
On March 31, 2020, the companies petitioned the U.S. Supreme Court for review of the case. BP P.L.C. v. Mayor and City Council of Baltimore – SCOTUSblog. On October 2, 2020, the Court granted a writ of certiorari. Id.
HISTORICAL LIMITATIONS ON REVIEW OF REMAND ORDERS
Petitioner BP, P.L.C. and the other companies (collectively, “BP”) argue that it is not clear that Congress intended to allow a court of appeals to review all issues in a remand order when it amended Section 1447(d) by adding the federal-officer exception. Brief for Petitioners, BP et al. at 34. BP distinguishes amending an existing statute and reenacting it. Id. at 34–35. When Congress merely amends a statute, BP maintains, it does not necessarily endorse previous understandings of the statute’s purpose. Id. at 35. BP notes that here, Congress only made an “isolated amendment” to existing law. Id. This alone, BP asserts, is not proof that Congress meant to approve any alleged prior interpretations of Section 1447(d) as limiting the ability of courts of appeals to consider issues other than the federal-officer or civil-rights exceptions on remand. Id. Moreover, BP argues that allowing review of the whole order where federal-officer or civil-rights grounds are implicated is not in conflict with the historical purpose of Section 1447(d). Id. at 34. BP contends that the purpose of Section 1447(d) was to reduce the load on the Supreme Court’s docket after “broad federal-question jurisdiction became available” and before the courts of appeals were created. Id. at 33. Finally, BP argues that other important federal interests—which Congress tried to protect by creating the exception—would be best served by allowing courts to review other grounds for remand because these grounds are often related to Congress’s goal to protect federal officers. Id. at 27–28.
Respondent Baltimore counters that for over a century, Congress has limited courts of appeals’ ability to review orders remanding cases back to state courts. Brief for Respondent, Mayor and City Council of Baltimore at 39–40. Baltimore maintains that Congress reaffirmed this position by adding Section 1447(d), which Baltimore claims was meant only to protect a “narrow class” of defendants. Id. at 33, 40 n. 4. Against this historical background—and what it characterizes as the nearly unanimous interpretation of Section 1447(d)—Baltimore raises the Supreme Court’s canon of construction that Congress is aware of courts’ interpretation of statutes when making new law or amending existing law. Id. at 31–32. Baltimore also refutes BP’s assertion that when Congress makes an isolated amendment to existing law, it does not necessarily endorse existing interpretations of the law. Id. Instead, Baltimore argues that an amendment “is presumed to carry forward” earlier interpretations of words or phrases in a previous version of the statute. Id. at 32. By adding the federal-officer exemption, Baltimore maintains that Congress could not have intended to make any ground stated in the order to remand reviewable so long as one of the exemptions found in Section 1447(d) was mentioned in the order. Id. at 29–30.
YAMAHA AND THE PLAIN MEANING OF SECTION 1447(d)
BP argues that the Supreme Court’s interpretation of the word “order” in 28 U.S.C. § 1292(b) should be applied to Section 1447(d)’s use of the word. Brief for Petitioners at 32. In Yamaha Motor Court v. Calhoun, BP explains, the Supreme Court decided that for a federal interlocutory appeal, an order does not only encompass the issue that the district court asks the court of appeals to review, but also includes every issue implicated by the order. Id. BP asserts that—according to the plain language of the statute—a court of appeals reviewing an order to remand should be able to review the whole order because Section 1447(d) does not expressly limit a court of appeals’ ability to review the entire order. Id. BP maintains that this plain language-reading is not at odds with what it cites as the historical purpose of Section 1447(d): to reduce the Supreme Court’s caseload. Id. at 33. Furthermore, BP contends the modern purpose of Section 1447(d) is to prevent delays in the trial of remanded cases. Id. at 33. According to BP, under this interpretation of Section 1447(d), limiting a court of appeals’ discretion to consider only whether the Section 1447(d) exceptions apply furthers the goal of preventing delay only “marginally, if at all.” Id. at 33.
Baltimore responds by acknowledging that, like the interlocutory appeal statute in Yamaha, Section 1447(d) also concerns an order. Brief for Respondent at 21. However, Baltimore argues the Court should not define “order” in Section 1447(d) as expansively as in 28 U.S.C. § 1292(b) because of the differences between the two statutes. Id. at 21–23. Baltimore argues that when a court of appeals reviews an order in an interlocutory appeal, the court of appeals is allowed to review any issue that it ultimately could review on appeal after the case is decided. Id. at 22. In contrast, Baltimore asserts, a court of appeals would ordinarily lack the ability to review an order to remand because Section 1447(d) normally renders a court of appeals’ decision to remand unreviewable. Id. at 22–23. Therefore, Baltimore claims, BP’s interpretation of the word order would allow courts to review issues that the statute generally considered unreviewable, which would contradict the Court’s precedent, and broaden federal courts’ “limited jurisdiction.” Id.
INCENTIVE TO ASSERT MERITLESS JURISDICTIONAL CLAIMS
BP argues that its interpretation of Section 1447(d) would not incentivize defendants to make frivolous federal-officer claims. Brief for Petitioners at 35. BP maintains that if a defendant frivolously asserted a federal-officer claim simply to receive a review of an ordinarily unreviewable jurisdictional removal claim, courts maintain the authority to deal with that misconduct. Id. at 35. For example, BP notes that any court of appeals has the inherent authority to impose sanctions, dismiss a case, or simply decide not to hear it. Id. at 35–36. Aside from whether a court of appeals could decide not to hear a case, BP claims that a court might lack jurisdiction to hear a frivolous claim in the first place. Id. at 36. According to BP, a court may not have jurisdiction where a defendant’s claim that federal law confers subject-matter jurisdiction is merely a ploy to obtain jurisdiction or the claim is otherwise “wholly insubstantial.” Id.
Baltimore counters that allowing courts of appeal to review an entire order would permit defendants to frivolously assert a federal-officer claim to obtain review of other ordinarily nonreviewable grounds for remand. Brief for Respondent at 36–37. Moreover, Baltimore maintains that the possibility of sanctions and fee-shifting is insufficient to deter defendants from doing so. Id. at 38. Specifically, Baltimore contends that courts rarely utilize its “inherent authority to sanction” and seldom levy sanctions under Rule 11 of the Federal Rules of Civil Procedure. Id. Baltimore further argues that the ability for a court to issue an award under Section 1447(c)—which allows district courts to order the defendant to pay costs the plaintiff incurs because of the defendant’s removal—would also fail to dissuade frivolous claims. Id. at 17, 38. According to Baltimore, if defendants could succeed on any other “objectively reasonable” jurisdictional grounds for removal, they would not be required to pay the plaintiff’s costs. Id. at 38.
The Chamber of Commerce of the United States of America (“U.S. Chamber of Commerce”), in support of BP, argues that reviewing an entire remand order is indispensable to protect the removal rights that Congress conferred on the nation’s businesses, and to rectify “otherwise-dispositive errors” committed by the district court. See Brief of Amicus Curiae Chamber of Commerce of the United States of America, in Support of Petitioners at 5, 14. The U.S. Chamber of Commerce contends that Congress authorized courts of appeals to safeguard parties against any potential bias “for in-state parties or against federal laws.” Id. at 14. The U.S. Chamber of Commerce asserts that by having properly-removed cases stay in federal court, “complete appellate review” will achieve this end without unduly impeding Congress’s interest in speedy litigation. Id. at 8–15. Likewise, DRI–The Voice of the Defense Bar (“DRI”), also in support of BP, argues that when enacting the statutory provisions for the civil rights and federal officer cases, Congress sought to ensure that such cases are not trapped in an “inhospitable state forum” hostile to federal interests. See Brief of Amicus Curiae DRI–The Voice of the Defense Bar, in Support of Petitioners at 18–19. DRI further contends that allowing for complete appellate review of remand orders will not culminate in a “flood of frivolous assertions,” given the Seventh Circuit, which has adopted plenary appellate review for the longest period, shows the opposite result. Id. at 20.
State and Local Government Groups (“Government Groups”), in support of Baltimore, counter that Congress, since the beginning of the United States history, has expressed a desire to authorize state courts to handle cases free from federal interference. See Brief of Amici Curiae State and Local Governments, in Support of Respondent at 14. Government Groups assert that Congress sought to maintain the “separate spheres of governmental authority” well-preserved in the United States federalist system. Id. at 13. Therefore, Government Groups contend, the Fourth Circuit’s decision to decline the removal of a remand order would strike the right constitutional balance between state and federal authority. Id. Erwin Chemerinsky, Andrew D. Bradt, Helen Hershkoff, Lonny Hoffman, E. Farish Percy, Michael E. Solimine, Adam N. Steinman, Joan Steinman, Stephen I. Vladeck, Rhonda Wasserman and Anne Bloom (collectively, “Law Professors”), also in support of Baltimore, argue that Congress has imposed broad constraints on the power of federal appellate courts to review orders remanding cases to state court. See Brief of Amici Curiae Chemerinsky et al., in Support of Respondent at 12. Absent an express congressional grant of authority, Law Professors contend, a case is presumed to reside outside federal jurisdiction. Id. at 9. Moreover, the Law Professors argue that, if left unchecked, defendants’ erroneous use of the removal statute would increase costs for plaintiffs, drain resources from both district and appellate courts, and create administrative barriers. Id. at 23–24.
HOW TO MEANINGFULLY ADDRESS CLIMATE CHANGE
National Association of Manufacturers (“NAM”), in support of BP, argues that the optimal way to address concerns associated with climate change is for federal agencies, local governments, and Congress to collaborate with American manufacturers to create technologies and policies that can reduce emissions inimical to the environment. See Brief of Amicus Curiae National Association of Manufacturers, in Support of Petitioners at 16. NAM argues that both the production and consumption of oil and gas are essential to public life, but their “risks and externalities” must continue to be controlled. Id. at 16–17. Only federal agencies and Congress, NAM concludes, are able to weigh these competing interests, and the Fourth Circuit’s decision in the instant case will undermine such efforts to meaningfully address climate change. Id. Energy Policy Advocates, also in support of BP, further contend that the Fourth Circuit’s decision will provide a strong impetus for those “climate nuisance” litigants to abuse the state courts to acquire a “sustainable funding stream” for their spending goals. See Brief of Amicus Curiae Energy Policy Advocates, in Support of Petitioners at 7–8.
Chesapeake Bay Foundation and Natural Resources Defense Council (“CBFNRDC”), in support of Baltimore, counter that climate changes vary by location and produce “uniquely local injuries,” primarily interacting with regional infrastructure and topology. See Brief of Amici Curiae Chesapeake Bay Foundation and Natural Resources Defense Council, in Support of Respondent at 16. Therefore, CBFNRDC argues, a “uniform” federal solution cannot adequately address these local impacts. Id. The State of New York, the District of Columbia, and eighteen other states (“New York et al.”), also in support of Baltimore, further assert that states and localities have been at the forefront of handling the problems associated with climate change. See Brief of Amici Curiae State of New York et al., in Support of Respondent at 24. Therefore, New York et al. contend, allowing the companies to remove the case can thwart state enforcement by equipping the companies with a formidable tool to prolong litigation, and by unduly hindering the states from acquiring relief for serious wrongdoings. Id. at 17, 25.
- Lawrence Hurley, Supreme Court Takes Up Energy Companies' Appeal Over Baltimore Climate Suit, Reuters (Oct. 2, 2020).