Amicus Curiae Brief — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore

No. 19-1189

IN THE

Supreme Court of the United States

____________________________________

BP P.L.C. ET AL.,

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

____________________________________

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fourth Circuit

____________________________________

BRIEF OF INDIANA, ALASKA, ARKANSAS,

GEORGIA, KANSAS, KENTUCKY, LOUISIANA,

MISSISSIPPI, MISSOURI, OHIO, SOUTH

CAROLINA, TEXAS, AND UTAH AS AMICI

CURIAE IN SUPPORT OF PETITIONERS

____________________________________

Office of the

Attorney General

302 W. Washington St.

Indianapolis, Indiana

46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

CURTIS T. HILL, JR.

Attorney General

of Indiana

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

JULIA C. PAYNE

Deputy Attorney General

Counsel for Amici States

Additional counsel listed with signature block

i

QUESTION PRESENTED

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

where 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.

ii

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... i

TABLE OF AUTHORITIES ................................... iii

INTEREST OF THE AMICI STATES .................... 1

REASONS FOR GRANTING THE PETITION ...... 2

I. The Appealability of Remand Orders

Is an Issue of National Importance

That Requires Clear, Uniform Rules ................. 3

II. The Court Should Reverse the Decision

Below and Hold That When a Remand

Order Is Lawfully Appealed, the Appeal

Encompasses All Grounds for Removal ........... 12

CONCLUSION ....................................................... 18

iii

CASES

TABLE OF AUTHORITIES

Agostini v. Felton,

521 U.S. 203 (1997) ..............................................13

Alabama v. Conley,

245 F.3d 1292 (11th Cir. 2001)..............................6

Appalachian Volunteers, Inc. v. Clark,

432 F.2d 530 (6th Cir. 1970)..........................16, 17

Briscoe v. Bell,

432 U.S. 404 (1977) ..............................................10

Carlsbad Technology, Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009) ..............................................12

Cyan, Inc. v. Beaver Cty. Employees Ret.

Fund,

138 S. Ct. 1061 (2018)..........................................17

Davis v. Glanton,

107 F.3d 1044 (3d Cir. 1997) .................................6

Decatur Hospital Authority v. Aetna Health,

Inc.,

854 F.3d 292 (5th Cir. 2017)..............................6, 7

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) ....................................................8

Gravitt v. Sw. Bell Tel. Co.,

430 U.S. 723 (1977) ..............................................10

iv

CASES [CONT’D]

Guerrero-Lasprilla v. Barr,

140 S. Ct. 1062 (2020)............................................9

Hamer v. Neighborhood Hous. Servs. of

Chicago,

138 S. Ct. 13 (2017)................................................9

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ..................................................8

Jacks v. Meridian Resource Co.,

701 F.3d 1224 (8th Cir. 2012)................................6

Kakarala v. Wells Fargo Bank, N.A.,

136 S. Ct. 1153 (2016)..........................................12

Kircher v. Putnam Funds Tr.,

547 U.S. 633 (2006) ..............................................11

Lapides v. Bd. of Regents of Univ. Sys. of

Georgia,

535 U.S. 613 (2002) ................................................8

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015)................ 7, 14, 15, 16

Mayor & City Council of Baltimore v. BP

p.l.c.,

952 F.3d 452 (4th Cir. 2020)..................................6

Mays v. City of Flint,

871 F.3d 437 (6th Cir. 2017)............................7, 16

v

CASES [CONT’D]

Nasrallah v. Barr,

140 S. Ct. 428 (2019)..............................................9

Noel v. McCain,

538 F.2d 633 (4th Cir. 1976)................................16

Nutraceutical Corp. v. Lambert,

139 S. Ct. 710 (2019)..............................................9

Osborn v. Haley,

549 U.S. 225 (2007) ..............................................11

Patel v. Del Taco, Inc.,

446 F.3d 996 (9th Cir. 2006)..................................6

Powerex Corp. v. Reliant Energy Services,

Inc.,

551 U.S. 224 (2007) ........................................11, 12

Quackenbush v. Allstate Insurance Co.,

517 U.S. 706 (1996) ..............................................11

Ramos v. Louisiana,

No. 18-5924 (U.S. Apr. 20, 2020) .........................13

Rodriguez v. United States,

480 U.S. 522 (1987) ..............................................17

State Farm Mutual Automobile Insurance

Co. v. Baasch,

644 F.2d 94 (2d Cir. 1981) .....................................6

Thermtron Prod., Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ..........................................5, 10

vi

CASES [CONT’D]

Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995) ........................................10, 11

Tidewater Oil Co. v. United States,

409 U.S. 151 (1972) ................................................9

United States v. Sisson,

399 U.S. 267 (1970) ............................................8, 9

Yamaha Motor Corp., U.S.A. v. Calhoun,

516 U.S. 199 (1996) ..............................................15

STATUTES

28 U.S.C. § 1446(a)....................................................13

28 U.S.C. § 1446(d)....................................................13

28 U.S.C. § 1447(d)............................................ passim

28 U.S.C. § 2679(d)(2) ...............................................11

Act of March 3, 1875, c. 137, §§ 2, 5, 18

Stat. 470–72 ...........................................................5

Pub. L. 112-51 .............................................................6

1 Stat. 73, c. 20, § 12 ...................................................4

78 Stat. 266 .................................................................6

vii

OTHER AUTHORITIES

Federal Judicial Center, Integrated

Database, https://www.fjc.gov/research/

idb/interactive/IDB-civil-since-1988 .....................2

Wright & Miller, Federal Practice &

Procedure § 3721 (Rev. 4th ed.).............................5

Wright & Miller, Federal Practice &

Procedure § 3914.11 (Rev. 4th ed.)......................14

1

INTEREST OF THE AMICI STATES 1

The States of Indiana, Alaska, Arkansas, Georgia,

Kansas, Kentucky, Louisiana, Mississippi, Missouri,

Ohio, South Carolina, Texas, and Utah respectfully

submit this brief as amici curiae in support of the petitioners.

As litigants who often find themselves on either

side of motions to remand cases back to state court,

Amici States file this amicus brief to urge the Court

to answer an important question governing the scope

of appellate review of such remands: When a party

seeks to remove a case based in part on the federalofficer removal statute or civil-rights removal statute,

is appellate review of a remand order rejecting removal limited to the federal-officer or civil-rights

grounds, or does appellate review encompass every

ground raised in support of removal?

Amici States recognize the importance of this

question and the need for a single, clear answer. They

file this brief to explain why the Court should provide

such an answer and hold that, so long as the appellant

has raised non-frivolous federal-officer or civil-rights

grounds for removal, appellate review encompasses

all grounds for removal.

1 Pursuant to Supreme Court Rule 37.2(a), counsel of record for

all parties received notice of Amici States’ intention to file this

brief at least 10 days prior to the due date of this brief.

2

REASONS FOR GRANTING THE PETITION

Every year state-court defendants remove tens of

thousands of cases to federal court. State-court plaintiffs often respond with motions to remand the case

back to state court, and a great many of these motions

are granted: In the last five years, remand orders terminated nearly 27,000 federal cases. 2

The large volume of remand orders makes the

rules regulating the availability and scope of their appellate review a matter of nationwide significance.

Litigants need to know in advance whether a district

court’s remand order will end the federal-court litigation or will instead begin the federal appellate process; the rules governing remand orders’ appealability

affect not only whether the party supporting removal

bothers with an appeal, but also which arguments for

and against remand the parties make to the district

court. And these rules have just as much significance

for appellate courts, whose jurisdiction turns on them.

It is thus essential that these rules—provided by 28

U.S.C. § 1447(d)—be clear.

Unfortunately, however, clarity is precisely what

judicial interpretation of 1447(d) has long lacked.

There is no doubt that 1447(d) permits appeals of

some remand orders, but courts have struggled for

2 All case data are drawn from the Federal Judicial Center’s In-

tegrated Database of civil cases, available at https://www.fjc.gov/

research/idb/interactive/IDB-civil-since-1988. A search for cases

that (1) originated with removal, (2) were terminated by a remand to state court, and (3) were terminated between January

1, 2015 and December 31, 2019 produces a list of 26,800 cases.

3

decades to determine which orders are appealable

and, for those that are, which issues are included in

the scope of the appeal. In just the last fifteen years,

for example, the Court has attempted to clarify

1447(d)’s rules for the appealability of remand orders

four separate times.

Yet 1447(d) continues to confound—in particular,

its authorization of appellate review of any “order remanding a case” that “was removed pursuant to” the

federal-officer or civil-rights removal statutes. 28

U.S.C. § 1447(d). There is a deep and abiding circuit

split regarding whether, when removal is based in

part on these statutes, this authorization of appellate

review is limited to the federal-officer or civil-rights

grounds alone or instead permits consideration of all

grounds raised in support of removal. This question,

squarely presented here, deserves a clear and uniform

answer, which can come only from this Court.

The Court should grant the petition and, ultimately, hold that once a court has appellate jurisdiction to review a remand order, it has authority to consider every argument pertaining to the order’s validity. Such a rule makes the best sense of the statutory

text and the best use of judicial resources.

I.

The Appealability of Remand Orders Is an

Issue of National Importance That

Requires Clear, Uniform Rules

Subsection 1447(d) provides that in general an “order remanding a case to the State court from which it

4

was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d) (emphasis added). The provision affords two crucial exceptions, however, and

provides “that an order remanding a case to the State

court from which it was removed pursuant to section

1442 or 1443 of this title [the federal-officer and civilrights removal statutes, respectively] shall be reviewable by appeal or otherwise.” Id. (emphasis added).

The numerous cases the Court has taken to elucidate the meaning of this provision attest to the

Court’s longstanding recognition of the importance of

giving it a clear and consistent interpretation: Because 1447(d) potentially affects thousands of cases

annually and goes to the jurisdiction of federal appellate courts, it is especially important that it be applied

in the same, predictable way across the country. The

Court has thus regularly stepped in when the lower

courts have proved unable to agree on the statute’s

proper application. It should do so again here.

1. Congress has authorized federal courts to hear

cases removed from state court since the Judiciary

Act of 1789 first established the federal-court system.

See 1 Stat. 73, c. 20, § 12 (authorizing removal of

state-court cases against aliens and nonresident defendants as well as state-court cases involving competing land grants issued by different States). And for

nearly as long as federal courts have possessed authority to hear removal cases, litigants have been disputing what constitutes proper grounds for exercising

that authority—and have been seeking appellate review of decisions with which they disagree. Until

5

1875, an erstwhile state-court defendant could obtain

review of a remand decision via writ of mandamus.

See Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S.

336, 346 (1976) (citing Chicago & A.R. Co. v. Wiswall,

23 Wall. 507 (1875)). But that year Congress expanded the class of removable cases and authorized

review of remand orders by writ of error or appeal to

this Court. See Act of March 3, 1875, c. 137, §§ 2, 5, 18

Stat. 470–72. Twelve years later, Congress reversed

course: It narrowed the scope of removal, authorized

remand where removal was improper (on jurisdictional grounds or otherwise), and foreclosed appellate

review of remand orders. See Wright & Miller, Federal Practice & Procedure § 3721 (Rev. 4th ed.) (citing

Act of March 3, 1887, c. 373, 24 Stat. 552); Thermtron,

423 U.S. at 347 (“[N]o appeal or writ of error from the

decision of the circuit court so remanding such cause

shall be allowed.” (quoting same)).

These provisions authorizing remand orders and

prohibiting their appellate review have for the most

part endured. The text now codified at subsections

1447(c) and (d) “represent the 1948 recodification” of

the 1887 enactments. Id. at 349. And seventy-two

years later, 1447(c) continues to authorize remands

for “any defect” (including jurisdiction) while 1447(d)

continues to deem such remand orders to be generally

“not reviewable on appeal or otherwise.”

Importantly, however, Congress has twice

amended 1447(d) to carve out exceptions from its general bar on appellate review. The Civil Rights Act of

6

1964 amended subsection 1447(d) to authorize review, “by appeal or otherwise,” of any “order remanding a case to the State court from which it was removed pursuant to section 1443,” which authorizes

removal of civil-rights cases. 78 Stat. 266. And in 2011

Congress authorized appellate review of remand orders in cases removed under section 1442, which authorizes removal of cases involving federal officers,

agencies, and grants of property. See Pub. L. 112-51

(inserting “1442 or” before 1443 in subsection

1447(d)).

2. As the petition explains, 1447(d)’s exceptions for

civil-rights and federal-officer cases have produced a

deep, durable split among the federal courts of appeals. See generally Pet. 11–17. Six separate circuit

courts have held that—regardless of other grounds

raised in support of removal—1447(d) allows appellate courts to consider only grounds for removal based

on the civil-rights and federal-officer removal statutes. See State Farm Mutual Automobile Insurance

Co. v. Baasch, 644 F.2d 94 (2d Cir. 1981); Davis v.

Glanton, 107 F.3d 1044 (3d Cir. 1997); Mayor & City

Council of Baltimore v. BP p.l.c., 952 F.3d 452 (4th

Cir. 2020); Jacks v. Meridian Resource Co., 701 F.3d

1224 (8th Cir. 2012); Patel v. Del Taco, Inc., 446 F.3d

996 (9th Cir. 2006); Alabama v. Conley, 245 F.3d 1292

(11th Cir. 2001). Three other circuit courts, however,

have held that when a remand order rejects a removal

that was based in part on the civil-rights or federalofficer removal statutes, 1447(d) permits appellate review of the entire remand order, including all grounds

raised in support of removal. See Decatur Hospital

7

Authority v. Aetna Health, Inc., 854 F.3d 292 (5th Cir.

2017); Mays v. City of Flint, 871 F.3d 437 (6th Cir.

2017); Lu Junhong v. Boeing Co., 792 F.3d 805 (7th

Cir. 2015). In short, the circuits disagree over whether

1447(d)’s exceptions apply to particular orders and all

rulings made therein, or whether they apply only to

particular grounds for removal.

This entrenched lower-court disagreement requires the Court’s intervention. Litigants need to

know when remand orders will be appealable and

what issues will be reviewable in those appeals. Any

number of strategic decisions may turn on the answers to these questions—not only what arguments

the parties emphasize on appeal, but also whether the

remand order is appealed at all, which grounds the

state-court defendants initially raise in support of removal, and even how the state-court plaintiffs draft

the original complaint.

Because these questions arise in thousands of

cases each year, resolving this circuit split is a matter

of nationwide significance. In 2019 alone, state court

defendants removed more than 35,000 cases to federal court 3—nearly twelve percent of all federal cases

filed that year 4—and more than 4,300 of these cases

3 A search for cases that (1) originated with removal and (2) were

filed between January 1, 2019 and December 31, 2019 produces

a list of 35,289 cases.

4 A search for cases that were filed between January 1, 2019 and

December 31, 2019 produces a list of 296,138 cases. 35,289 is

11.9% of 296,138.

8

have been remanded back to state court. 5 The numbers for 2018 are similar: approximately 33,000 cases

removed, 6 about 5,400 of which were remanded. 7

Moreover, as a jurisdictional statute, 1447(d) must

conform to the longstanding “rule that ‘[j]urisdictional rules should be clear.’” Direct Mktg. Ass’n v.

Brohl, 575 U.S. 1, 14 (2015) (quoting Grable & Sons

Metal Products, Inc. v. Darue Engineering & Mfg., 545

U.S. 308, 321 (2005) (Thomas, J., concurring)); see

also Lapides v. Bd. of Regents of Univ. Sys. of Georgia,

535 U.S. 613, 621 (2002) (same). Hazy answers to jurisdictional questions burden litigants and inevitably

“produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that results and settlements will reflect a claim’s legal and

factual merits.” Hertz Corp. v. Friend, 559 U.S. 77, 94

(2010). Courts too “benefit from straightforward rules

under which they can readily assure themselves of

their power to hear a case.” Id. “Clarity is to be desired

5 A search for cases that (1) originated with removal, (2) were

terminated by a remand to state court, and (3) were filed between January 1, 2019 and December 31, 2019 produces a list of

4,329 cases.

6 A search for cases that (1) originated with removal and (2) were

filed between January 1, 2018 and December 31, 2018 produces

a list of 33,033 cases.

7 A search for cases that (1) originated with removal, (2) were

terminated by a remand to state court, and (3) were filed between January 1, 2018 and December 31, 2018 produces a list of

5,423 cases.

9

in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of

dispute settlement, but on simply deciding whether a

court has the power to hear a case.” United States v.

Sisson, 399 U.S. 267, 307 (1970).

For these reasons, the Court often grants certiorari to resolve such “important question[s] of federal

appellate jurisdiction.” Tidewater Oil Co. v. United

States, 409 U.S. 151, 153 (1972). See also, e.g., Nasrallah v. Barr, 140 S. Ct. 428 (2019) (granting certiorari

to decide whether the Immigration and Nationality

Act authorizes appellate jurisdiction to review factual

findings underlying denials of withholding of removal

relief); Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062

(2020) (holding that the Immigration and Nationality

Act authorizes appellate jurisdiction to review an immigration judge’s application of a legal standard to

undisputed or established facts); Nutraceutical Corp.

v. Lambert, 139 S. Ct. 710 (2019) (holding that the

deadline for seeking immediate appeal from a classcertification order is not subject to equitable tolling);

Hamer v. Neighborhood Hous. Servs. of Chicago, 138

S. Ct. 13 (2017) (holding that the deadline for seeking

an extension of time to file a notice of appeal is a nonjurisdictional claim-processing rule).

The circuit split over 1447(d)’s exceptions has left

litigants confused about the application of a jurisdiction provision that affects thousands of cases a year.

It is time for the Court to resolve this confusion.

10

3. The Court’s longstanding efforts to resolve

many other applications of 1447(d) underscores the

importance of giving it a clear, uniform construction

here. Because it is a widely applicable jurisdictional

provision, the Court has often acted to bring clarity to

1447(d). It should do so again here.

In particular, the Court has frequently reviewed

whether 1447(d)’s appellate-review bar permits additional exceptions beyond civil-rights and federal-officer cases. In Thermtron, the Court addressed

whether 1447(d)’s prohibition on appellate review is

limited to jurisdictional or procedural defects—the

grounds for remand listed in 1447(c). 423 U.S. at 340–

41. The Court held that 1447(d) is so limited, explaining that 1447(d) and 1447(c) “must be construed together,” which “means that only remand orders issued

under § 1447(c) and invoking the grounds specified

therein . . . are immune from review under § 1447(d).”

423 U.S. at 345–46 (emphasis added). The very next

year, however, the Court reiterated that remands

based on 1447(c) grounds are categorically unreviewable. See Gravitt v. Sw. Bell Tel. Co., 430 U.S. 723,

723 (1977) (per curiam) (“[Subsection] 1447(c) remands are not reviewable.”); Briscoe v. Bell, 432 U.S.

404, 414 n.13 (1977) (“Where the order is based on one

of the enumerated grounds, review is unavailable no

matter how plain the legal error in ordering the remand.”).

The Court returned to 1447(d) two decades later in

Things Remembered, Inc. v. Petrarca, where it held

11

that 1447(d)’s appellate-review bar applies to bankruptcy removals. 516 U.S. 124, 129 (1995). That same

term, in Quackenbush v. Allstate Insurance Co., the

Court addressed 1447(d)’s application to remand orders grounded in abstention, holding that the appellate-review bar does not apply to such orders because

an “abstention-based remand order does not fall into

either category of remand order described in

§ 1447(c), as it is not based on lack of subject matter

jurisdiction or defects in removal procedure.” 517 U.S.

706, 711–12 (1996).

The Court again addressed 1447(d) ten years later,

“grant[ing] certiorari to resolve a split of authority on

the question whether § 1447(d) bars review of remand

orders in cases removed under the [Private Securities

Litigation Reform Act].” Kircher v. Putnam Funds Tr.,

547 U.S. 633, 639 (2006). It held that “the Act does

not exempt remand orders from 28 U.S.C. § 1447(d)

and its general rule of nonappealability.” Id. at 648.

The following year, the Court decided a pair of

cases in which the Court itself raised the 1447(d) issue—Osborn v. Haley, 549 U.S. 225, 239 (2007), and

Powerex Corp. v. Reliant Energy Services, Inc., 551

U.S. 224, 226 (2007). In Osborn the Court held that a

statute authorizing the Attorney General to “conclusively establish” a state-court defendant’s federal employment “for purposes of removal,” 28 U.S.C.

§ 2679(d)(2), displaced 1447(d)’s appellate-review bar.

549 U.S. at 243–44. And in Powerex it held that

1447(d)’s prohibition on appellate review applies even

where removal was initially proper but the district

12

court later loses jurisdiction and remands. 551 U.S. at

230–32.

Finally, the Court most recently addressed

1447(d)’s appellate-review bar in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635 (2009). There

the Court granted certiorari to “decide[] whether a

district court’s order remanding a case to state court

after declining to exercise supplemental jurisdiction

is a remand for lack of subject-matter jurisdiction for

which appellate review is barred by §§ 1447(c) and

(d).” It held that “such remand orders are not based

on a lack of subject-matter jurisdiction,” and thus fall

outside the scope of 1447(d). Id.

These decisions demonstrate the Court’s concerted

efforts to clarify 1447(d)’s rules for appealing remand

orders—even when the parties do not raise the issue.

And this case warrants review every bit as much as

those cases. The confusion over 1447(d)’s exceptions

for civil-rights and federal-officer cases is “forc[ing]

parties and lower courts to guess when § 1447(d) will

and will not apply.” Kakarala v. Wells Fargo Bank,

N.A., 136 S. Ct. 1153, 1154 (2016) (Thomas, J., dissenting from the denial of certiorari). The Court

should countenance this confusion no longer.

II.

The Court Should Reverse the Decision

Below and Hold That When a Remand

Order Is Lawfully Appealed, the Appeal

Encompasses All Grounds for Removal

As frequent parties to removal cases who find

themselves on one side as often as the other, Amici

13

States are chiefly interested in obtaining clarity on

the question presented in this case, whatever answer

the Court chooses. The principle that “in most matters

it is more important that the applicable rule of law be

settled than that it be settled right,” has particular

force where, as here, the matter pertains to a technical jurisdictional rule that Congress can easily alter. Agostini v. Felton, 521 U.S. 203, 235 (1997); see

also Ramos v. Louisiana, No. 18-5924, (U.S. Apr. 20,

2020) (Kavanaugh, J., concurring in part) slip op. at 5

(citing Burnet v. Coronado Oil & Gas Co., 285 U.S.

393, 406 (1932) (Brandeis, J., dissenting)).

The best resolution of this case, however, would be

to reverse the decision below and hold that when

1447(d) authorizes an appeal of a remand order, it authorizes consideration of all arguments relevant to

the order’s validity. This interpretation accords with

1447(d)’s specific language and coheres with the overall statutory framework for removal.

This statutory framework provides that the removal process begins when “defendants desiring to remove any civil action from a State court” file “a notice

of removal” that contains “a short and plain statement of the grounds for removal.” 28 U.S.C. § 1446(a).

“[P]romptly after the filing of such notice of removal,”

the defendant gives notice to adverse parties and files

“a copy of the notice with the clerk of such State

court.” 28 U.S.C. § 1446(d). Importantly, the filing of

the notice with the state court “shall effect the removal

and the State court shall proceed no further unless

and until the case is remanded.” Id. In other words,

14

the case is “removed” as soon as the state-court notice

is filed.

Accordingly, when a notice cites several grounds

for removal and one of those grounds includes the

civil-rights or federal-officer removal statute, it is correct to say that the case “was removed pursuant to

section 1442 or 1443.” 28 U.S.C. § 1447(d). The application of 1447(d) is straightforward from there: It

states that “an order remanding [such] a case to the

State court from which it was removed . . . shall be

reviewable by appeal or otherwise.” Id. (emphasis

added). Section 1447(d), in other words, authorizes

appeal of the order—without limitation.

For this reason, when a remand order rejecting removal on civil-rights or federal-officer grounds is lawfully appealed under 1447(d), the court of appeals has

jurisdiction to consider all grounds raised in favor of

removal—including those for which the defendant

would not otherwise be able to obtain appellate review. As Judge Easterbrook’s opinion for the Seventh

Circuit explained in the course of adopting this interpretation of 1447(d), “[t]o say that a district court’s

‘order’ is reviewable is to allow appellate review of the

whole order, not just of particular issues or reasons.”

Lu Junhong v. Boeing Co., 792 F.3d 805, 811 (7th Cir.

2015). The leading federal-courts treatise agrees. See

Wright & Miller, Federal Practice & Procedure

§ 3914.11 (Rev. 4th ed.) (“Review should . . . be extended to all possible grounds for removal underlying

the order. Once an appeal is taken there is very little

to be gained by limiting review . . . .”).

15

The “whole order” interpretation of 1447(d) is further supported by the Court’s decision in Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996),

which construed the statute authorizing permissive

appeal of some interlocutory “orders” to permit appellate review of all issues decided within such a properly

appealed order. Id. at 204–05 (quoting 28 U.S.C.

§ 1292(b) (emphasis in original)). The Court underscored the importance of the statute’s use of the word

“order,” observing that “appellate jurisdiction applies

to the order certified to the court of appeals, and is not

tied to the particular question formulated by the district court.” Id. at 205 (emphasis in original). The

Court thus held that while the Court of Appeals “may

not reach beyond the certified order to address other

orders made in the case,” it “may address any issue

fairly included within the certified order because it is

the order that is appealable, and not the controlling

question identified by the district court.” Id. (emphasis in original; internal quotation marks and citations

omitted). Section 1447(d) provides no textual (or historical) basis for differing treatment of an “order”

properly appealed under its authority.

Beyond making the best sense of the statute, reading 1447(d) to permit appeal of the whole remand order also makes the best use of litigants’ and courts’

time. As Judge Easterbrook observed, “once Congress

has authorized appellate review of a remand order”—

as it has when the state-court defendant relies on the

civil-rights or federal-officer removal statutes—“[t]he

marginal delay from adding an extra issue to a case

where the time for briefing, argument, and decision

16

has already been accepted is likely to be small.” Lu

Junhong, 792 F.3d at 813.

Rather than accept that 1447(d) authorizes appeals of orders, the Fourth Circuit’s decision below

mistakenly limits its authorization of appellate review to only civil-rights and federal-officer grounds

for removal. Pet. App. 7a. The Fourth Circuit based

this conclusion upon its earlier decision in Noel v.

McCain, 538 F.2d 633, 635 (4th Cir. 1976), and that

decision’s discussion of the issue consists entirely of a

citation to the Sixth Circuit’s half-century-old decision in Appalachian Volunteers, Inc. v. Clark, 432

F.2d 530, 533 (6th Cir. 1970). The Sixth Circuit, however, has since implicitly repudiated Appalachian

Volunteers, following the Seventh Circuit in holding

that jurisdiction to review a remand order under

1447(d) “encompasses review of the district court’s decision on the alternative ground for removal under 28

U.S.C. § 1441.” Mays v. City of Flint, 871 F.3d 437,

442 (6th Cir. 2017) (citing Lu Junhong, 792 F.3d at

811–13).

In any case, the rationale provided in Appalachian

Volunteers cannot justify ignoring the plain meaning

of 1447(d)’s text. That decision assumed that 1447(d)’s

“obvious purpose . . . is to avoid the delays which

would result if appeals from remand orders were permitted,” and reasoned that “even when removal is

based on 28 U.S.C. § 1443 and an appeal is authorized, the review of issues other than those directly related to the propriety of the remand order itself would

17

frustrate the clear Congressional policy of expedition.” Appalachian Volunteers, 432 F.2d at 533.

This Court, however, “has long rejected the notion

that ‘whatever furthers the statute’s primary objective must be the law.’” Cyan, Inc. v. Beaver Cty. Employees Ret. Fund, 138 S. Ct. 1061, 1073 (2018) (quoting Rodriguez v. United States, 480 U.S. 522, 526

(1987) (per curiam)). After all, courts “do not generally

expect statutes to fulfill 100% of all of their goals.” Id.

In Cyan, for example, the Court held that federal law

does not authorize removal of class actions brought

under the 1933 Securities Act, rejecting the federal

government’s attempt to “distort[]” the statutory text

on the ground that “Congress simply must have

wanted 1933 Act class actions to be litigated in federal

court.” Id. at 1078. “Where, as here, the language of a

provision is sufficiently clear in its context and not at

odds with the legislative history, there is no occasion

to examine the additional considerations of policy

that may have influenced the lawmakers in their formulation of the statute.” Rodriguez, 480 U.S. at 526

(cleaned up).

The Court should grant the petition, resolve the

confusion among the lower courts, and hold that

1447(d) authorizes appellate review, without limitation, of any “order” remanding a case for which removal was premised at least in part on the civil-rights

or federal-officer removal statutes.

18

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Office of the

Attorney General

302 W. Washington St.

Indianapolis, IN 46204

(317) 232-6255

Tom.Fisher@atg.in.gov

*Counsel of Record

CURTIS T. HILL, JR.

Attorney General

of Indiana

THOMAS M. FISHER*

Solicitor General

KIAN J. HUDSON

Deputy Solicitor General

JULIA C. PAYNE

Deputy Attorney General

Counsel for Amici States

Dated: April 30, 2020

19

ADDITIONAL COUNSEL

Counsel for Amici States

KEVIN G. CLARKSON

Attorney General

State of Alaska

LYNN FITCH

Attorney General

State of Mississippi

LESLIE RUTLEDGE

Attorney General

State of Arkansas

ERIC SCHMITT

Attorney General

State of Missouri

CHRISTOPHER M. CARR

Attorney General

State of Georgia

DAVE YOST

Attorney General

State of Ohio

DEREK SCHMIDT

Attorney General

State of Kansas

ALAN WILSON

Attorney General

State of South Carolina

DANIEL CAMERON

Attorney General

State of Kentucky

KEN PAXTON

Attorney General

State of Texas

JEFF LANDRY

Attorney General

State of Louisiana

SEAN D. REYES

Attorney General

State of Utah