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

Supreme Court briefNov 16, 2020

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No. 19-1189

In the Supreme Court of the United States

BP P.L.C., ET AL., PETITIONERS

MAYOR AND CITY COUNCIL OF BALTIMORE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONERS

PETER D. KEISLER

C. FREDERICK BECKNER III

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

THEODORE J. BOUTROUS, JR.

THOMAS G. HUNGAR

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut

Avenue, N.W.

Washington, DC 20036

DAVID C. FREDERICK

BRENDAN J. CRIMMINS

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

KANNON K. SHANMUGAM

Counsel of Record

WILLIAM T. MARKS

TANYA S. MANNO

E. GARRETT WEST

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

ADAM P. SAVITT

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(additional counsel on signature page)

QUESTION PRESENTED

Section 1447(d) of Title 28 of the United States Code

generally precludes appellate review of an order remanding a removed case to state court. But Section 1447(d) expressly provides that an “order remanding a case * * *

removed pursuant to” the federal-officer removal statute,

28 U.S.C. 1442, or the civil-rights removal statute, 28

U.S.C. 1443, “shall be reviewable by appeal or otherwise.”

Some courts of appeals have interpreted Section 1447(d)

to permit appellate review of any issue encompassed in a

district court’s remand order where the removing defendant premised removal in part on the federal-officer or

civil-rights removal statutes. Other courts of appeals, including the Fourth Circuit in this case, have held that appellate review is limited to the federal-officer or civilrights ground for removal. The question presented is as

follows:

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 civilrights removal statute, 28 U.S.C. 1443.

(I)

PARTIES TO THE PROCEEDING

AND CORPORATE DISCLOSURE STATEMENT

Petitioners are BP p.l.c.; BP America Inc.; BP Products North America Inc.; Chevron Corporation; Chevron

U.S.A., Inc.; CITGO Petroleum Corporation; CNX Resources Corporation; ConocoPhillips; ConocoPhillips

Company; CONSOL Energy Inc.; CONSOL Marine Terminals LLC; Crown Central LLC; Crown Central New

Holdings LLC; Exxon Mobil Corporation; ExxonMobil

Oil Corporation; Hess Corporation; Marathon Petroleum

Corporation; Phillips 66; Royal Dutch Shell plc; Shell Oil

Company; and Speedway LLC.

Petitioner BP p.l.c. has no parent corporation, and no

publicly held company owns 10% or more of its stock.

Petitioners BP America Inc. and BP Products North

America Inc. are wholly owned indirect subsidiaries of petitioner BP p.l.c.

Petitioner Chevron Corporation has no parent corporation, and no publicly held company owns 10% or more of

its stock.

Petitioner Chevron U.S.A., Inc., is a wholly owned

subsidiary of petitioner Chevron Corporation.

Petitioner CITGO Petroleum Corporation is a wholly

owned indirect subsidiary of Petróleos de Venezuela S.A.

No publicly held company owns 10% or more of Petróleos

de Venezuela S.A.’s stock.

Petitioner CNX Resources Corporation has no parent

corporation, and no publicly held company owns 10% or

more of its stock.

Petitioner ConocoPhillips has no parent corporation,

and no publicly held company owns 10% or more of its

stock.

Petitioner ConocoPhillips Company is a wholly owned

subsidiary of petitioner ConocoPhillips.

(II)

III

Petitioner CONSOL Energy Inc. has no parent corporation. BlackRock, Inc., through itself or its subsidiaries,

owns 10% or more of CONSOL Energy Inc.’s stock.

Petitioner CONSOL Marine Terminals LLC is a

wholly owned indirect subsidiary of petitioner CONSOL

Energy Inc.

Petitioner Crown Central New Holdings LLC is the

sole member of petitioner Crown Central LLC. The sole

member of Crown Central New Holdings LLC is

Rosemore Holdings, Inc., a wholly owned subsidiary of

Rosemore, Inc. No publicly held company owns 10% or

more of Rosemore, Inc.’s stock.

Petitioner Exxon Mobil Corporation has no parent

corporation, and no publicly held company owns 10% or

more of its stock.

Petitioner ExxonMobil Oil Corporation is a wholly

owned indirect subsidiary of petitioner Exxon Mobil Corporation.

Petitioner Hess Corporation has no parent corporation, and no publicly held company owns 10% or more of

its stock.

Petitioner Marathon Petroleum Corporation has no

parent corporation, and no publicly held company owns

10% or more of its stock.

Petitioner Speedway LLC is a wholly owned indirect

subsidiary of Marathon Petroleum Corporation.

Petitioner Phillips 66 has no parent corporation, and

no publicly held company owns 10% or more of its stock.

Petitioner Royal Dutch Shell plc has no parent corporation, and no publicly held company owns 10% or more of

its stock.

Petitioner Shell Oil Company is a wholly owned indirect subsidiary of petitioner Royal Dutch Shell plc.

Respondent is the Mayor and City Council of Baltimore.

Marathon Oil Corporation and Marathon Oil Company

were parties to the proceedings below.

Marathon Oil Corporation has no parent corporation.

BlackRock, Inc., through itself or its subsidiaries, owns

10% or more of Marathon Oil Corporation’s stock.

Marathon Oil Company is a wholly owned subsidiary

of petitioner Marathon Oil Corporation.

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statutory provision involved........................................................ 2

Statement ...................................................................................... 2

A. Background ...................................................................... 4

B. Facts and procedural history ......................................... 6

Summary of argument ............................................................... 11

Argument..................................................................................... 16

I. A court of appeals may review any ground

for removal encompassed in a remand

order where the defendant premised

removal in part on the federal-officer

or civil-rights removal statutes .................................... 16

A. The plain text of 28 U.S.C. 1447(d) permits

appellate review of any ground for removal

where removal is premised in part

on the federal-officer or civil-rights

removal statutes ...................................................... 16

B. The plain-text interpretation of Section

1447(d) is supported by precedent

from this Court and the courts of appeals ............ 20

C. The plain-text interpretation of Section

1447(d) serves the provision’s purposes ............... 26

D. The court of appeals’ contrary

interpretation is incorrect ...................................... 31

II. The Court should reverse the judgment below .......... 37

A. Removal was proper because respondent’s

claims necessarily arise under federal law ........... 38

B. If the Court does not reverse, it should

vacate the judgment below and remand

the case to the court of appeals.............................. 45

Conclusion ................................................................................... 47

(V)

TABLE OF AUTHORITIES

Page

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001)...................... 35

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) ................................................. passim

Armstrong v. Exceptional Child Center, Inc.,

135 S. Ct. 1378 (2015) ...................................................... 34

Avco Corp. v. Machinists, 390 U.S. 557 (1968) ................. 45

Azar v. Allina Health Services,

139 S. Ct. 1804 (2019) ...................................................... 32

Banco Nacional de Cuba v. Sabbatino,

376 U.S. 398 (1964) .......................................................... 42

Behrens v. Pelletier, 516 U.S. 299 (1996) ........................... 36

Bell v. Hood, 327 U.S. 678 (1946) ........................................ 36

BMW of North America v. Gore, 517 U.S. 559 (1996) ...... 39

Board of County Commissioners v. Suncor Energy

(U.S.A.) Inc., 965 F.3d 792 (10th Cir. 2020) ................... 7

Brill v. Countrywide Home Loans, Inc.,

427 F.3d 446 (7th Cir. 2005) ........................................... 25

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

556 U.S. 635 (2009) .......................................................... 17

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987) ............ 44

Chambers v. NASCO, Inc., 501 U.S. 32 (1991) ............ 35, 36

City of Columbus v. Ours Garage & Wrecker

Service, Inc., 536 U.S. 424 (2002) .................................. 33

City of Greenwood v. Peacock, 384 U.S. 808 (1966) .......... 27

City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ........... 39

City of Oakland v. BP p.l.c.,

960 F.3d 570 (9th Cir. 2020) ............................................. 7

City of Walker v. Louisiana,

877 F.3d 563 (5th Cir. 2017) ........................................... 25

Coffey v. Freeport McMoran Copper & Gold,

581 F.3d 1240 (10th Cir. 2009) ....................................... 25

County of San Mateo v. Chevron Corp.,

960 F.3d 586 (9th Cir. 2020) ............................................. 7

Dahda v. United States, 138 S. Ct. 1491 (2018) ................ 24

VII

Page

Cases—continued:

Deckert v. Independence Shares Corp.,

311 U.S. 282 (1940) .......................................................... 22

Department of Revenue v. ACF Industries, Inc.,

510 U.S. 332 (1994) .................................................... 31, 32

EPA v. EME Homer City Generation, L.P.,

572 U.S. 489 (2014) .......................................................... 28

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) ... 38, 40

Exxon Mobil Corp. v. Allapattah Services, Inc.,

545 U.S. 546 (2005) .......................................................... 17

Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008)..... 17, 24

Federated Department Stores, Inc. v. Moitie,

452 U.S. 394 (1981) .......................................................... 44

Florida Lime & Avocado Growers, Inc. v. Jacobsen,

362 U.S. 73 (1960) ............................................................ 23

Food Marketing Institute v. Argus Leader Media,

139 S. Ct. 2356 (2019) ...................................................... 33

Fourth Estate Public Benefit Corp.

v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019) ............ 32

Franchise Services of North America, Inc., In re,

891 F.3d 198 (5th Cir. 2018) ........................................... 24

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) ................................. 44

Franchise Tax Board v. Hyatt,

139 S. Ct. 1485 (2019) ...................................................... 39

Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907)..... 40

Goosby v. Osser, 409 U.S. 512 (1973) .................................. 36

Healy v. Beer Institute, Inc., 491 U.S. 324 (1989) ............ 39

Illinois v. City of Milwaukee,

406 U.S. 91 (1972) .................................................. 6, 39, 40

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) ................................................ 9, 40, 41

Jennings v. Stephens, 574 U.S. 271 (2015) ........................ 24

Johnson v. Mississippi, 421 U.S. 213 (1975) ..................... 27

Juliana v. United States,

947 F.3d 1159 (9th Cir. 2020) ......................................... 29

VIII

Page

Cases—continued:

Kansas v. Colorado, 206 U.S. 46 (1907) ............................. 40

Lewis v. BT Investment Managers, Inc.,

447 U.S. 27 (1980) ............................................................ 23

Lightfoot v. Cendant Mortgage Corp.,

137 S. Ct. 553 (2017) ........................................................ 34

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) .................................. passim

Marshall v. Blake,

885 F.3d 1065 (7th Cir. 2018) ......................................... 25

Marx v. General Revenue Corp., 568 U.S. 371 (2013) ...... 19

McClung v. Silliman, 19 U.S. (6 Wheat.) 598 (1821)........ 24

Meadows v. United Services, Inc.,

963 F.3d 240 (2d Cir. 2020) ............................................. 36

Munaf v. Geren, 553 U.S. 674 (2008) .................................. 22

National Farmers Union Insurance Cos.

v. Crow Tribe of Indians, 471 U.S. 845 (1985) ............. 39

National Weather Service Employees

v. Federal Labor Relations Authority,

966 F.3d 875 (D.C. Cir. 2020) ......................................... 25

Noel v. McCain, 538 F.2d 633 (4th Cir. 1976) ............. 10, 11

Pennsylvania Co., Ex parte, 137 U.S. 451 (1890) ............... 5

Pepper v. United States, 562 U.S. 476 (2011) .................... 19

Pepperling v. Risley, 739 F.2d 443 (9th Cir. 1984) ........... 36

Pierce v. Underwood, 487 U.S. 552 (1988) ......................... 34

PPL Montana LLC v. Montana, 565 U.S. 576 (2012)...... 39

Quackenbush v. Allstate Insurance Co.,

517 U.S. 706 (1996) .......................................................... 17

Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507 (1875) ...... 5

Raymond B. Yates, M.D., P.C., Profit Sharing Plan

v. Hendon, 541 U.S. 1 (2004) .......................................... 19

Rhode Island v. Shell Oil Products Co.,

Civ. No. 19-1818, 2020 WL 6336000

(1st Cir. Oct. 29, 2020)....................................................... 7

Shapiro v. McManus, 136 S. Ct. 450 (2015) ...................... 36

Smith v. Vulcan Iron Works, 165 U.S. 518 (1897) ............ 22

Page

Cases—continued:

Sprint Communications, Inc. v. Jacobs,

571 U.S. 69 (2013) ............................................................ 17

Supreme Court of Virginia v. Consumers Union of

United States, Inc., 446 U.S. 719 (1980) ....................... 23

Taniguchi v. Kan Pacific Saipan, Ltd.,

566 U.S. 560 (2012) .......................................................... 16

Taylor v. Morton, 67 U.S. (2 Black) 481 (1863) ................. 18

Teamsters v. Peña, 17 F.3d 1478 (D.C. Cir. 1994) ............ 19

Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) .......................................................... 38

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ................................................ 5, 26, 30

United States v. Connolly,

716 F.2d 882 (Fed. Cir. 1983) ......................................... 25

United States v. Seatrain Lines, 329 U.S. 424 (1947) ...... 17

United States v. Standard Oil Co.,

332 U.S. 301 (1947) .................................................... 38, 45

Watson v. Philip Morris Cos.,

551 U.S. 142 (2007) ........................................ 26, 27, 28, 29

West v. Aurora City, 73 U.S. (6 Wall.) 139 (1868) ............... 5

White v. Regester, 412 U.S. 755 (1973) ............................... 23

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

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

Statutes, rules, and regulation:

Act of Mar. 3, 1875, ch. 137, § 5, 18 Stat. 472 ....................... 5

Act of Mar. 3, 1887, ch. 373, § 1, 24 Stat. 553 ....................... 5

Act of Mar. 3, 1891, ch. 517, § 7, 26 Stat. 828 ..................... 22

Act of May 24, 1949, ch. 139, 63 Stat. 89 ........................ 5, 35

§ 84(a), 63 Stat. 102 ......................................................... 35

§ 84(b), 63 Stat. 102 ........................................................... 5

Civil Rights Act of 1866, ch. 31, § 3, 14 Stat. 27 ................ 27

Civil Rights Act of 1964, Pub. L. No. 88-352,

§ 901, 78 Stat. 266 ....................................................... 6, 27

Clean Air Act, 42 U.S.C. 7401-7671q .................................. 28

Judiciary Act of 1789, ch. 20, 1 Stat. 73 ............................ 4, 5

Page

Statutes, rules, and regulation—continued:

§ 12, 1 Stat. 79-80 .............................................................. 4

Naval Petroleum Reserves Production Act of 1976,

Pub. L. No. 94-258, § 201(3)(c)(1)(B), 90 Stat. 303 ......... 8

Removal Clarification Act of 2011,

Pub. L. No. 112-51, § 2(d), 125 Stat. 546 ............. 6, 27, 35

5 U.S.C. 7123(a) .................................................................... 25

11 U.S.C. 547(b) .................................................................... 19

11 U.S.C. 550 ......................................................................... 19

18 U.S.C. 3553(f) ................................................................... 19

28 U.S.C. 158(a) .................................................................... 24

28 U.S.C. 158(d)(2) ............................................................... 24

28 U.S.C. 1253 ....................................................................... 23

28 U.S.C. 1254(1) .................................................................... 1

28 U.S.C. 1254(2) .................................................................. 18

28 U.S.C. 1291 ....................................................................... 32

28 U.S.C. 1292(a)(1).............................................................. 22

28 U.S.C. 1292(b) ...................................................... 10, 21, 32

28 U.S.C. 1292(d)(2) ............................................................. 25

28 U.S.C. 1295(a)(7).............................................................. 18

28 U.S.C. 1331 ................................................................. 39, 45

28 U.S.C. 1441-1455................................................................ 4

28 U.S.C. 1441(a) ............................................................ 39, 45

28 U.S.C. 1441(b)(2) ............................................................. 20

28 U.S.C. 1442 .............................................................. passim

28 U.S.C. 1443 .............................................................. passim

28 U.S.C. 1443(1) .................................................................. 27

28 U.S.C. 1443(2) .................................................................. 27

28 U.S.C. 1446(a) .................................................................... 4

28 U.S.C. 1447(c) .............................................................. 4, 35

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

28 U.S.C. 1453(c)(1) .............................................................. 25

28 U.S.C. 2342(5) .................................................................. 20

38 U.S.C. 7292(b)(1) ............................................................. 18

42 U.S.C. 8514(a)(2).............................................................. 18

50 U.S.C. 1803(j) ................................................................... 18

52 U.S.C. 30110 ..................................................................... 18

Page

Rules and regulation—continued:

Fed. R. Civ. P. 11(b)(1) ........................................................ 35

Fed. R. Civ. P. 11(b)(2) ........................................................ 35

U.S.S.G. § 5C1.2 ................................................................... 19

Miscellaneous:

Black’s Law Dictionary (4th ed. 1951) ........................ 17, 19

Black’s Law Dictionary (11th ed. 2019) ...................... 17, 19

Richard H. Fallon, Jr., et al., Hart & Wechsler’s

Federal Courts and the Federal System

(7th ed. 2015).................................................................... 44

Felix Frankfurter, The Business of the

Supreme Court of the United States—

A Study in the Federal Judicial System,

39 Harv. L. Rev. 35 (1925) .............................................. 30

Heather L. Greenley, Congressional Research

Service, R45832, Department of Defense

Energy Management: Background and

Issues for Congress (2019) ............................................. 42

Oxford English Dictionary (1933) ............................... 17, 19

Petroleum Administration for War, A History of the

Petroleum Administration for War, 1941-1945

(John W. Frey & H. Chandler Ide eds. 2005) .............. 28

Restatement (Second) of Torts (1979) ............................... 42

Rhonda Wasserman, Rethinking Remand:

Proposed Amendments to the Federal

Removal Statute, 43 Emory L.J. 83 (1994) .............. 5, 30

Webster’s Third New International

Dictionary (1961) ...................................................... 17, 19

Charles Alan Wright et al., Federal Practice and

Procedure (multiple eds.) ...................................... passim

In the Supreme Court of the United States

No. 19-1189

BP P.L.C., ET AL., PETITIONERS

MAYOR AND CITY COUNCIL OF BALTIMORE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE PETITIONERS

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-30a)

is reported at 952 F.3d 452. The opinion of the district

court (Pet. App. 31a-81a) is reported at 388 F. Supp. 3d

538.

JURISDICTION

The judgment of the court of appeals was entered on

March 6, 2020. The petition for a writ of certiorari was

filed on March 31, 2020, and granted on October 2, 2020.

The jurisdiction of this Court rests on 28 U.S.C. 1254(1).

(1)

STATUTORY PROVISION INVOLVED

Section 1447(d) of Title 28 of the United States Code

provides:

An order remanding a case to the State court from

which it was removed is not reviewable on appeal or

otherwise, except that an order remanding a case to

the State court from which it was removed pursuant to

section 1442 or 1443 of this title shall be reviewable by

appeal or otherwise.

STATEMENT

This case concerns the scope of appellate review of a

district court’s order remanding a removed case to state

court where 28 U.S.C. 1447(d) permits appeal of the order.

While the first clause of Section 1447(d) ordinarily precludes appellate review of a remand order, the second

clause expressly authorizes appeal of “an order remanding a case * * * removed pursuant to” the federal-officer or civil-rights removal statutes. 28 U.S.C. 1447(d).

The question presented is whether Section 1447(d) permits a court of appeals to review all of the grounds for removal encompassed in a remand order where the removing defendant premised removal in part on the federal-officer or civil-rights removal statutes.

Petitioners are 21 domestic and foreign energy companies that produce or sell fossil fuels around the world

(or have previously done so); respondent is the municipal

government of Baltimore, Maryland. Like a number of

other state and local governments in similar cases across

the country, respondent filed this action against petitioners in local state court, asserting claims purportedly arising under state law to recover for harms that it alleges it

has sustained and will sustain from petitioners’ global operations due to global climate change.

As in other similar cases, petitioners removed this

case to federal district court, asserting federal subjectmatter jurisdiction on multiple grounds. Among other

grounds, petitioners contended that removal was warranted under the federal-officer removal statute because

respondent’s complaint encompassed petitioners’ exploration for and production of fossil fuels at the direction of

federal officers. Petitioners also asserted that respondent’s claims necessarily and exclusively arise under federal common law. The district court remanded the case to

state court, and petitioners appealed.

The court of appeals affirmed. It held that Section

1447(d), as construed in an earlier opinion from that court,

deprived it of appellate jurisdiction to consider any of the

grounds for removal that the district court addressed and

that the parties briefed and argued on appeal, except for

the federal-officer ground. The court proceeded to conclude that the case was not removable on the federal-officer ground.

The court of appeals erred in holding that Section

1447(d) precluded it from reviewing the other asserted

grounds for removal. The plain text of Section 1447(d)

demonstrates that a court of appeals has jurisdiction to

review the entire remand “order,” not merely particular

issues or questions within the order. And because the entire remand order necessarily disposes of all of the defendant’s grounds for removal, the scope of appellate review extends to each of those grounds. That interpretation comports not just with the plain text, but also with

this Court’s precedents and the broader purposes of Section 1447(d). The court of appeals erred by failing to consider all of the grounds for removal encompassed in the

remand order.

To remedy that error, this Court has the option either

to proceed to address the remaining grounds for removal

and reverse the judgment below, or to vacate the judgment and direct the court of appeals to address those

grounds in the first instance. One of the additional bases

for removal raised and briefed below follows directly from

this Court’s precedents and is currently being litigated in

numerous similar cases across the country: namely, that

claims alleging injury based on interstate emissions, including the extraordinary claims at issue here (which seek

to hold petitioners responsible for the effects of global climate change), necessarily and exclusively arise under federal law. To preserve judicial resources, the Court should

take the modest step of applying its precedents to the

claims at issue here and confirm that they belong in federal court. The judgment of the court of appeals should

be reversed.

A. Background

In the Judiciary Act of 1789, Congress permitted defendants to remove certain actions initially brought in

state courts to the newly created federal courts. See ch.

20, § 12, 1 Stat. 79-80. Since then, Congress has established various grounds for removal and detailed procedures for removing cases. See 28 U.S.C. 1441-1455.

A defendant in state court removes an action by filing

a “notice of removal” in the relevant federal district court.

28 U.S.C. 1446(a). The “notice of removal” must contain a

“short and plain statement of the grounds for removal”—

that is, the bases on which the defendant asserts that the

district court has subject-matter jurisdiction over the action. Ibid.; see 14C Charles Alan Wright et al., Federal

Practice and Procedure § 3733, at 702-704 (4th ed. 2018).

The district court then must determine whether it has

subject-matter jurisdiction. See 28 U.S.C. 1447(c). If it

determines that it does not, it must remand the case to

state court. See ibid.

The availability and scope of appellate review of remand orders has changed throughout our Nation’s history. Under the Judiciary Act of 1789, this Court reviewed remand orders on writs of error and appeal. See,

e.g., West v. Aurora City, 73 U.S. (6 Wall.) 139 (1868);

Rhonda Wasserman, Rethinking Remand: Proposed

Amendments to the Federal Removal Statute, 43 Emory

L.J. 83, 90 nn.28-29 (1994) (Wasserman) (citing other examples). Except for a brief period when review occurred

only by writ of mandamus, the Court continued to review

remand orders as a matter of course for nearly a century.

See Railroad Co. v. Wiswall, 90 U.S. (23 Wall.) 507, 508

(1875); Act of Mar. 3, 1875, ch. 137, § 5, 18 Stat. 472.

Congress changed course in 1887, in the wake of this

Court’s mushrooming caseload after the Civil War. See

Act of Mar. 3, 1887, ch. 373, § 1, 24 Stat. 553; Wasserman

94-101. Congress provided that “no appeal or writ of error” from a “decision” remanding a case to state court

“shall be allowed.” Act of Mar. 3, 1887, § 1, 24 Stat. 553.

The Court interpreted that provision to prohibit review of

remand orders by mandamus as well. See Ex parte Pennsylvania Co., 137 U.S. 451, 454 (1890).

In 1948, Congress omitted the 1887 provision from the

recodified version of Title 28 of the United States Code.

See Thermtron Products, Inc. v. Hermansdorfer, 423

U.S. 336, 347 (1976). The next year, Congress enacted 28

U.S.C. 1447(d), which similarly provided that “an order

remanding a case to [state court] is not reviewable on appeal or otherwise.” Act of May 24, 1949, ch. 139, § 84(b),

63 Stat. 102.

Since then, Congress has amended Section 1447(d) to

permit appellate review of remand orders in two situations. In the Civil Rights Act of 1964, Congress authorized appeals of remand orders in cases removed pursuant

to the civil-rights removal statute, 28 U.S.C. 1443. See

Pub. L. No. 88-352, § 901, 78 Stat. 266. In the Removal

Clarification Act of 2011, Congress additionally authorized appeals of remand orders in cases removed pursuant

to the federal-officer removal statute, 28 U.S.C. 1442. See

Pub. L. No. 112-51, § 2(d), 125 Stat. 546. This case concerns the scope of appellate review in cases removed pursuant to Sections 1442 or 1443.

B. Facts And Procedural History

1. In 2017, a number of state and local governments

began filing lawsuits in state courts against various energy companies, most of them nonresidents of the forum

States. The plaintiffs alleged that the companies’ worldwide production, sale, and promotion of fossil fuels led to

the emission of greenhouse gases and thereby contributed

to global climate change. The plaintiffs have primarily asserted that the production, sale, and promotion of fossil

fuels violate various state-law duties, including commonlaw nuisance; they have sought compensatory and punitive damages as well as equitable relief.

The defendants removed those lawsuits to federal

court. They asserted multiple bases for federal jurisdiction, including that the allegations in the complaints pertain to actions the defendants took at the direction of federal officers, see 28 U.S.C. 1442, and that the plaintiffs’

climate-change claims necessarily and exclusively arise

under federal common law, see, e.g., American Electric

Power Co. v. Connecticut, 564 U.S. 410, 420-423 (2011); Illinois v. City of Milwaukee, 406 U.S. 91, 103 (1972). As of

the filing of this brief, 19 related cases are pending in fed-

eral courts nationwide in which the parties are actively litigating the question of removal, either in district court or

on appeal.1

2. Petitioners are 21 domestic and foreign energy

companies that produce or sell fossil fuels around the

world (or have previously done so). In 2018, respondent

filed a complaint in Maryland state court against petitioners and others, alleging that petitioners had caused or will

cause harms by contributing to global climate change.

Respondent seeks damages for the effect of climate

change on its property, as well as an order requiring petitioners to “abate” the “nuisance” they allegedly created

by their activities. J.A. 145-161, 182.2

See County of San Mateo v. Chevron Corp., 960 F.3d 586 (9th Cir.

2020) (petition for cert. due Jan. 4, 2021) (appeal consolidating six actions); City of Oakland v. BP p.l.c., 960 F.3d 570 (9th Cir. 2020) (petition for cert. due Jan. 11, 2021) (appeal consolidating two actions);

Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., 965

F.3d 792 (10th Cir. 2020) (petition for cert. due Dec. 4, 2020); Rhode

Island v. Shell Oil Products Co., Civ. No. 19-1818, 2020 WL 6336000

(1st Cir. Oct. 29, 2020) (petition for cert. due Mar. 29, 2021); Pacific

Coast Federation of Fishermen’s Associations, Inc. v. Chevron Corp.,

Civ. No. 18-7477 (N.D. Cal.); Connecticut v. Exxon Mobil Corp., Civ.

No. 20-1555 (D. Conn.); Delaware v. BP America Inc., Civ. No. 201429 (D. Del.); District of Columbia v. Exxon Mobil Corp., Civ. No.

20-1932 (D.D.C.); City & County of Honolulu v. Sunoco LP, Civ. No.

20-163 (D. Haw.); County of Maui v. Sunoco LP, Civ. No. 20-470 (D.

Haw.); Minnesota v. American Petroleum Institute, Civ. No. 20-1636

(D. Minn.); City of Hoboken v. Exxon Mobil Corp., Civ. No. 20-14243

(D.N.J.); County of Charleston v. Brabham Oil Co., Civ. No. 20-3579

(D.S.C.). Two similar cases are pending in federal court based on diversity jurisdiction. See City of New York v. BP p.l.c., No. 18-2188

(2d Cir.); King County v. BP p.l.c., Civ. No. 18-758 (W.D. Wash.).

Several petitioners contend that they are not subject to personal

jurisdiction in the Maryland courts, and they have separately moved

to dismiss the complaint on that ground. They are litigating the removal issue subject to that objection.

Petitioners removed this action to the United States

District Court for the District of Maryland. J.A. 187-242.

In their notice of removal, petitioners raised many of the

same bases for federal jurisdiction as have the defendants

in other climate-change lawsuits. J.A. 192-195. Of particular relevance here, petitioners asserted that removal was

permissible under the federal-officer removal statute.

J.A. 225-231. Because respondent’s theory of causation

and damages depended on petitioners’ production and

sale of fossil fuel over many decades, petitioners argued

that respondent’s claims encompassed activities that petitioners took at the direction of federal officers. J.A. 230231.

Petitioners cited several different examples of such activities. Petitioners noted that they had long produced oil

and gas belonging to the federal government on the Outer

Continental Shelf pursuant to governmental leases; those

leases gave the government control over various aspects

of petitioners’ operations, including approval of exploration and production plans, regulation of extraction rates,

and a right of first refusal during wartime to purchase all

oil, gas, and minerals extracted. J.A. 226-228. In addition,

petitioners observed that one of their corporate predecessors had agreed with the Navy jointly to extract and produce oil and gas from a strategic petroleum reserve that

the Navy maintained; in response to the 1973 oil crisis,

Congress ordered petroleum production at the strategic

reserve to proceed at the “maximum efficient rate” for a

“period not to exceed six years.” Naval Petroleum Reserves Production Act of 1976, Pub. L. No. 94-258,

§ 201(3)(c)(1)(B), 90 Stat. 303; see J.A. 228-230. Petitioners further noted that they had entered into supply agreements with the armed forces for motor-vehicle fuel. J.A.

230.

Petitioners asserted that removal was also warranted

based on federal-question jurisdiction because federal

common law necessarily and exclusively governed respondent’s claims. J.A. 196-203. Petitioners noted that

this Court has long held that interstate pollution is “a matter of federal, not state, law” and “should be resolved by

reference to federal common law.” International Paper

Co. v. Ouellette, 479 U.S. 481, 488 (1987) (citation omitted);

see J.A. 8, 197-198. Petitioners added that the Court’s decision in American Electric Power, supra, reinforced the

conclusion that federal common law governs public-nuisance claims related to global climate change. 564 U.S. at

422-423; see J.A. 8, 197-198.

3. The district court remanded the case to state court

based on a lack of subject-matter jurisdiction. Pet. App.

31a-81a. With respect to the federal-officer ground for removal, the district court determined that the connection

between the “wide array of conduct for which defendants

have been sued” and the “asserted official authority” was

too “attenuated” to permit removal. Id. at 71a. With respect to the federal-common-law ground for removal, the

district court concluded that the well-pleaded complaint

rule precluded removal because the complaint did not expressly assert claims under federal common law. Id. at

49a-50a. The district court also rejected petitioners’ other

grounds for removal. Id. at 50a-67a, 72a-81a.

After initially staying execution of the remand order,

the district court denied petitioners’ motion for a stay

pending appeal. Pet. App. 82a-94a.3

The court of appeals denied petitioners’ motion for a stay pending

appeal, Pet. App. 95a-96a, as did this Court, see No. 19A368 (Oct. 22,

2019).

4. The court of appeals affirmed the district court’s

remand order. Pet. App. 1a-30a. The court of appeals began its analysis with the “threshold question” of the scope

of its appellate jurisdiction under Section 1447(d). Id. at

6a. The court observed that, in Noel v. McCain, 538 F.2d

633 (4th Cir. 1976), it had held that Section 1447(d) deprives appellate courts of “jurisdiction to review any

ground” for removal addressed in a remand order “other

than the one specifically exempted from [Section]

1447(d)’s bar on review” (which at the time was only civilrights removal, see pp. 5-6, supra). Pet. App. 7a.

Petitioners argued that subsequent changes in the law

had abrogated the Fourth Circuit’s decision in Noel, but

the court of appeals disagreed. Pet. App. 7a-10a. Petitioners primarily relied on this Court’s decision in

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199

(1996). There, the Court addressed the question whether,

in an interlocutory appeal under 28 U.S.C. 1292(b), a court

of appeals could review any issue encompassed in a district court’s certified order. Section 1292(b) permits a

court of appeals to entertain an interlocutory appeal

“from [an] order” when the district court certifies that

“such order involves a controlling question of law as to

which there is substantial ground for difference of opinion

and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” 28

U.S.C. 1292(b).

This Court held in Yamaha that, because “it is the order that is appealable, and not the particular question formulated by the district court,” appellate review of any issue encompassed in the certified order was permissible.

516 U.S. at 205 (citation omitted). The court of appeals

acknowledged that the Seventh Circuit had relied on

Yamaha in construing Section 1447(d) to permit appellate

review of the entire remand “order.” Pet. App. 8a-9a. But

it held that it was bound by Noel because Yamaha involved Section 1292(b) and not Section 1447(d). Ibid.

In a related vein, the court of appeals concluded that

Congress did not incorporate the decision in Yamaha into

Section 1447(d) when it amended that provision in 2011

while retaining the reference to remand “order[s].” Pet.

App. 9a-10a; see p. 6, supra. The court of appeals noted

that “Yamaha did not interpret the scope of [Section]

1447(d), let alone involve a remand order.” Pet. App. 9a.

Accordingly, the court “dismiss[ed] th[e] appeal for lack

of jurisdiction insofar as it seeks to challenge the district

court’s determination” on any ground other than federalofficer removal. Id. at 10a (internal quotation marks and

citation omitted).

The court of appeals proceeded to conclude that the

case was not removable under the federal-officer removal

statute. Pet. App. 10a-30a. The court reasoned that, to

the extent petitioners relied on their contractual relationships with the federal government, either petitioners

were not acting under federal officers in carrying out

those relationships, or there was an insufficient nexus between those relationships and respondent’s claims. Id. at

14a-30a.

SUMMARY OF ARGUMENT

This case presents the question whether 28 U.S.C.

1447(d) permits a court of appeals to review all of the asserted grounds for removal where the removing defendant premised removal in part on the federal-officer or

civil-rights removal statutes. The plain text of Section

1447(d), this Court’s precedents, and Section 1447(d)’s

broader purposes all demonstrate that the answer is yes.

To correct the court of appeals’ error and to provide

needed guidance for numerous similar pending cases, the

Court should proceed to hold, as its precedents dictate,

that respondent’s claims are removable because they

arise under federal law. The Court should reverse the

judgment below or, in the alternative, vacate the judgment and direct the court of appeals to address the additional grounds for removal.

I. Under Section 1447(d), a court of appeals may review the entire remand “order,” including all of the

grounds for removal asserted by the defendant, where the

defendant premised removal in part on the federal-officer

or civil-rights removal statutes.

A. The plain text of Section 1447(d) compels petitioners’ interpretation. The relevant clause of Section 1447(d)

states that an “order remanding a case” to state court that

was “removed pursuant to” the federal-officer or civilrights removal statutes is “reviewable by appeal or otherwise.” Giving the term “order” its ordinary meaning, a

remand “order” is a written command or direction that

the case must be returned to state court. Such a command

necessarily rejects all of the defendant’s grounds for removal, because the case must remain in federal court if

there is any basis for federal jurisdiction. An appeal of a

remand order thus brings all of those grounds for removal

before the court of appeals, and the court of appeals cannot affirm unless each lacks merit. Review of a remand

“order” therefore necessarily entails review of all of the

defendant’s grounds for removal.

The only limiting language in the relevant clause of

Section 1447(d)—that the remand order is reviewable if

the “case” was “removed pursuant to” the federal-officer

or civil-rights removal statutes—confirms the plain-language reading. When a defendant’s notice of removal asserts that the case is removable under one of those two

statutes, the defendant has “removed” the case “pursuant

to” the one invoked. And it is irrelevant whether the defendant asserts additional grounds for removal; a party

can act “pursuant to” multiple authorities. The plain text

of Section 1447(d) thus demonstrates that a court of appeals can review all of a defendant’s grounds for removal

if one of those grounds is federal-officer or civil-rights removal.

B. Judicial precedent strongly supports the plain-text

interpretation of Section 1447(d). The Court has determined the scope of appellate review under three statutes

that permit review of a particular type of district court

“order.” Under each of those statutes, the Court has held

that the appellate court’s review extends not only to the

particular aspect of the order that permitted the appeal,

but also to any other issues encompassed in the order.

The plain-text interpretation is also supported by the

Court’s decisions establishing the standard rules of appellate review and by decisions from the courts of appeals interpreting other statutes governing appellate jurisdiction.

C. In addition, the plain-text interpretation of Section

1447(d) furthers its purposes. The relevant clause of Section 1447(d) reflects a policy that the federal interests underlying the federal-officer and civil-rights removal statutes are sufficiently important that cases removed under

them should not be wrongly consigned to state court,

where the defendant may face local prejudice. Plenary

review of remand orders in such cases advances that goal,

because cases in which the defendant has a colorable but

ultimately unsuccessful argument for federal-officer or

civil-rights removal may implicate similar federal interests where the defendant has one or more other meritorious grounds for removal.

To be sure, Section 1447(d) was also intended to reduce delay caused by litigation of jurisdictional issues.

But such delay is inevitable in cases involving federal-officer or civil-rights removal, because, in the clause at issue

here, Congress has already authorized appeals in those

cases. Allowing the courts of appeals to review additional

grounds for removal once an appeal has been permitted

causes only marginal, if any, additional delay, and may

sometimes simplify the appeal.

D. The court of appeals’ contrary interpretation of

Section 1447(d), under which a court of appeals may review only a federal-officer or civil-rights ground for removal, is incorrect. That interpretation functionally

transforms the phrase “order remanding the case” to

mean “the district court’s reasoning rejecting the federalofficer or civil-rights ground for removal.” That distorts

the language Congress used and would assign different

meanings to the same word in the same sentence in Section 1447(d), given the parallel use of “order” in the preceding clause establishing the general limit on appellate

jurisdiction. Respondent’s arguments in defense of that

incoherent interpretation are unavailing. In the end,

there is no compelling reason to depart from the plain

meaning of Section 1447(d).

II. In light of the court of appeals’ error, the Court can

either proceed to address the remaining grounds for removal and reverse the judgment below, or vacate the

judgment and direct the court of appeals to address the

additional grounds for removal. There are 19 cases pending in federal court presenting the question whether

claims similar to respondent’s are removable from state

court. Those claims allege injury caused by interstate

emissions, and the Court’s precedents dictate that such

claims necessarily and exclusively arise under federal

common law. To preserve judicial resources, the Court

should address that ground for removal and confirm that

this case and others like it belong in federal court.

Federal common law supplies the source of law for

claims in certain narrow areas that implicate uniquely federal interests and require uniform, national rules. For

over a century, this Court has applied federal common law

to claims that, like respondent’s claims here, seek redress

for injuries allegedly caused by interstate pollution. The

conclusion that state law cannot apply to such claims flows

directly from our constitutional structure: one State cannot seek to resolve an interstate problem by imposing its

regulatory policies on the other States or their citizens.

That conclusion applies with added force where the claims

relate to activities conducted not only in other States but

also in other countries.

When those principles are applied to respondent’s climate-change-related claims, it is clear that federal law applies and state law cannot. Respondent’s claims seek

damages based on interstate and international emissions

over the course of decades. They also implicate the significant federal interest in fossil-fuel production, providing further justification for application of a uniform rule

of federal law.

Because respondent’s claims are exclusively subject to

federal law, they arise under federal law for purposes of

subject-matter jurisdiction and are thus removable from

state to federal court. This Court should therefore reverse the court of appeals’ judgment. In the alternative,

if the Court does not reach the federal-common-law

ground for removal, it should vacate the judgment below

and direct the court of appeals to address the remaining

grounds.

ARGUMENT

A COURT OF APPEALS MAY REVIEW ANY GROUND

FOR REMOVAL ENCOMPASSED IN A REMAND ORDER WHERE THE DEFENDANT PREMISED REMOVAL IN PART ON THE FEDERAL-OFFICER OR

CIVIL-RIGHTS REMOVAL STATUTES

Under 28 U.S.C. 1447(d), a court of appeals has jurisdiction to review an “order remanding a case to the State

court from which it was removed pursuant to” the federalofficer or civil-rights removal statutes. See 28 U.S.C.

1442, 1443. The plain text of Section 1447(d) demonstrates that, where one of the defendant’s grounds for removal is the federal-officer or civil-rights removal statute,

a court of appeals has jurisdiction to review the entirety

of the remand order, including all of the asserted grounds

for removal. The plain-text interpretation also comports

with this Court’s precedent and Section 1447(d)’s broader

purposes. The court of appeals’ contrary interpretation

should be rejected.

A. The Plain Text Of 28 U.S.C. 1447(d) Permits Appellate

Review Of Any Ground For Removal Where Removal

Is Premised In Part On The Federal-Officer Or CivilRights Removal Statutes

Under the plain text of Section 1447(d), a court of appeals may review any ground for removal asserted by the

defendant in a case where removal is premised in part on

the federal-officer or civil-rights removal statutes.

1. The relevant clause of Section 1447(d) authorizes

appeal of an “order remanding a case” to state court removed pursuant to the federal-officer or civil-rights removal statutes. Because Congress did not define the term

“order” for purposes of Section 1447(d), the Court “give[s]

the term its ordinary meaning.” Taniguchi v. Kan Pacific

Saipan, Ltd., 566 U.S. 560, 566 (2012). The ordinary

meaning of “order” is a “command or direction authoritatively given,” and in particular a “direction of a court or

judge made or entered in writing[] and not included in a

judgment.” Black’s Law Dictionary 1247 (4th ed. 1951);

see, e.g., Black’s Law Dictionary 1322 (11th ed. 2019);

7 Oxford English Dictionary 183 (1933); Webster’s Third

New International Dictionary 1588 (1961); cf. United

States v. Seatrain Lines, 329 U.S. 424, 432 (1947) (describing an “order” as a “formal command[]”). An “order remanding a case” is thus a formal command from a district

court that returns a case to state court.

“To 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). And in this context, appellate review of the “whole order” must extend to all of the

grounds for removal asserted by the defendant. That is

so because the district court’s command to return a case

to state court necessarily rejects all of the grounds for removal raised in the notice of removal; a district court cannot properly remand a case if any single ground for removal is meritorious. See Sprint Communications, Inc.

v. Jacobs, 571 U.S. 69, 72 (2013); Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 563 (2005).4 Because

the remand “order” embodies the rejection of every asserted ground for removal, an appeal of that “order”

Remand orders based on abstention doctrines constitute an exception to this rule. In that instance, Section 1447(d) does not apply,

see Quackenbush v. Allstate Insurance Co., 517 U.S. 706, 711-715

(1996), and the court of appeals has the ability to address the merits

of all of the arguments for removal, see Exxon Shipping Co. v. Baker,

554 U.S. 471, 487 (2008). Section 1447(d) also does not apply to a remand order declining to exercise supplemental jurisdiction over

state-law claims after all federal claims are dismissed. See Carlsbad

Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).

brings each of those grounds before the court of appeals.

And to determine whether the district court’s order returning the case to state court should be affirmed, a court

of appeals must conclude that no permissible basis for federal jurisdiction was present. See Taylor v. Morton, 67

U.S. (2 Black) 481, 484 (1863).

By authorizing review of the remand “order” under

the relevant clause of Section 1447(d), Congress thus authorized review of all of the grounds for removal asserted

in the notice of removal. Notably, the leading civil-procedure treatise agrees with that straightforward interpretation. See 15A Charles Alan Wright et al., Federal Practice and Procedure § 3914.11, at 706 (2d ed. 1992) (Wright

& Miller).

Congress knows how to provide for more limited appellate review of district-court orders when it wants to do

so. A number of statutes permit appellate review only of

particular “questions” and not of entire orders or judgments. See 28 U.S.C. 1295(a)(7) (permitting the Federal

Circuit to review “questions of law” arising from certain

findings of the Secretary of Commerce); 38 U.S.C.

7292(b)(1) (permitting the Federal Circuit to review a certified “question of law” from the Court of Appeals for Veterans Claims); 42 U.S.C. 8514(a)(2) (permitting the courts

of appeals to review “questions of law” arising from certain federal actions under the Emergency Energy Conservation Act of 1979); 52 U.S.C. 30110 (permitting the

courts of appeals to review “questions of [the] constitutionality” of the Federal Election Campaign Act); see also

28 U.S.C. 1254(2) (permitting this Court to review a certified “question of law” and separately authorizing the

Court to “require the entire record to be sent up for decision of the entire matter in controversy”); 50 U.S.C.

1803(j) (similar with respect to the Foreign Intelligence

Surveillance Court of Review).

In contrast, the relevant clause of Section 1447(d) does

not limit appellate review to a particular “question,” such

as the question whether removal under the federal-officer

or civil-rights removal statutes was proper. That difference in terminology confirms that Section 1447(d) permits

review of all of the defendant’s grounds for removal. See

Marx v. General Revenue Corp., 568 U.S. 371, 384 (2013).

2. The requirement that the “case” must be “removed

pursuant to” the federal-officer or civil-rights removal

statutes does not alter the foregoing interpretation. “Pursuant to” means “in accordance with or by reason of something.” Black’s Law Dictionary 1401 (4th ed. 1951); see,

e.g., Black’s Law Dictionary 1493 (11th ed. 2019); 8 Oxford English Dictionary 1684 (1933); Webster’s Third

New International Dictionary 1848 (1961). And here, the

prepositional phrase introduced by “pursuant to” merely

asks the court to determine a historical fact about the

“case”: namely, whether it was removed “pursuant to”

the federal-officer or civil-rights removal statutes.

Where a defendant’s notice of removal asserts that a

case is removable based on the elements set forth in either

the federal-officer or civil-rights removal statute, the defendant has “removed” the case “in accordance with” or

“by reason” of that statute. It does not matter whether a

defendant asserts other grounds for removal; a party can

act “pursuant to” multiple authorities. See, e.g., Pepper v.

United States, 562 U.S. 476, 481 n.1 (2011) (stating that

the petitioner was “eligible for safety-valve relief pursuant to 18 U.S.C. § 3553(f) (2000 ed.) and [U.S.S.G.]

§ 5C1.2”); Raymond B. Yates, M.D., P.C., Profit Sharing

Plan v. Hendon, 541 U.S. 1, 8-9 (2004) (stating that the

respondent “filed a complaint[] pursuant to 11 U.S.C.

§§ 547(b) and 550”); cf. Teamsters v. Peña, 17 F.3d 1478,

1482 (D.C. Cir. 1994) (holding that courts of appeals have

jurisdiction under the Administrative Orders Review Act,

28 U.S.C. 2342(5), over an agency regulation issued “pursuant to” an authority listed in the Act and another that is

not). And as before, Congress knows how to limit a provision to a single ground for removal: for example, the forum-defendant rule applies only to cases removable

“solely on the basis” of diversity jurisdiction. 28 U.S.C.

1441(b)(2).

Nor can respondent argue that Section 1447(d) permits review only when a case has been removed solely under Sections 1442 or 1443. That interpretation lacks any

support in the text, which says “pursuant to” and not

“pursuant only to.” And it would prove too much: whenever a defendant raises alternative bases for removal,

even the federal-officer or civil-rights ground would become unreviewable. No court has ever adopted that interpretation, and with good reason: it would oddly force defendants to choose between raising alternative removal

arguments and invoking their entitlement to appeal the

district court’s rejection of removal pursuant to the federal-officer or civil-rights removal statutes.

Accordingly, the relevant clause of Section 1447(d)

permits appeal whenever the defendant has invoked either the federal-officer or civil-rights removal statute as a

ground for removal. Once that occurs, because Section

1447(d) permits review of the remand “order,” a court of

appeals has jurisdiction to review all of the grounds for

removal asserted by the defendant.

B. The Plain-Text Interpretation Of Section 1447(d) Is

Supported By Precedent From This Court And The

Courts Of Appeals

Not only is the foregoing interpretation of Section

1447(d) compelled by the statutory text; it also follows

from the decisions of this Court and the courts of appeals

involving similar statutes.

1. This Court has previously interpreted three statutes that permit appellate review of a district court’s “order” to authorize review of issues encompassed in the order but distinct from the particular issue that permitted

the appeal. Each of those decisions supports the plaintext interpretation of Section 1447(d).

a. In Yamaha Motor Corp., U.S.A. v. Calhoun, 516

U.S. 199 (1996), the Court addressed the scope of appellate review under 28 U.S.C. 1292(b). That provision permits a court of appeals to entertain an interlocutory appeal “taken from [an] order” that is “not otherwise appealable” where the district court certifies that “such order

involves a controlling question of law as to which there is

substantial ground for difference of opinion” and that “an

immediate appeal from the order may materially advance

the ultimate termination of the litigation.” In Yamaha,

the district court granted partial summary judgment on

the ground that federal maritime law displaced state-law

remedies for the claims at issue. See 516 U.S. at 203. The

district court then authorized an interlocutory appeal under Section 1292(b), certifying three questions regarding

the remedies available under federal maritime law. See

id. at 203-204. The court of appeals accepted the appeal

but resolved it on the ground that state-law remedies

were not displaced. See id. at 204.

This Court granted review and asked the parties to

brief the question whether the court of appeals had jurisdiction under Section 1292(b) to resolve the appeal on an

uncertified ground. The Court then held that the answer

was yes. See Yamaha, 516 U.S. at 205. The Court reasoned that, “[a]s the text of [Section] 1292(b) indicates,”

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.” Ibid. The Court concluded that “the appellate court may address any issue

fairly included within the certified order because it is the

order that is appealable.” Ibid. (internal quotation marks

and citation omitted).

b. The Court’s decision in Smith v. Vulcan Iron

Works, 165 U.S. 518 (1897), likewise endorses plenary review of an appealable order. There, the Court interpreted

Section 7 of the Evarts Act—the predecessor to 28 U.S.C.

1292(a)(1)—which authorized an appeal as of right to the

newly created courts of appeals from an “interlocutory order or decree” in which a lower court “granted or continued” an “injunction.” Act of Mar. 3, 1891, ch. 517, § 7, 26

Stat. 828. In the two cases consolidated before the Court,

the plaintiffs had filed bills in equity for patent infringement, and the trial court had entered an interlocutory decree holding that the patents were valid, enjoining the defendants from further infringement, and referring the

case to a master for an accounting of profits. See 165 U.S.

at 518 (statement of case). The defendants appealed the

interlocutory decrees in both cases under Section 7, and

the court of appeals reversed in each, holding that the patents were invalid or not infringed. See id. at 518-519.

Before this Court, the plaintiffs argued that the court

of appeals should have dismissed the appeals except to the

extent that they presented the question whether the injunction itself was proper. The Court disagreed. Relying

on the statute’s “grammatical construction and natural

meaning” in addition to “previous practice,” the Court

held that the statute authorized appeal from “the whole of

such interlocutory order or decree, and not from that part

of it only which grants or continues the injunction.” 165

U.S. at 525. The Court has consistently followed that approach to the present day under 28 U.S.C. 1292(a)(1). See

Munaf v. Geren, 553 U.S. 674, 691 (2008); see also Deckert

v. Independence Shares Corp., 311 U.S. 282, 287 (1940)

(collecting earlier cases following Smith).

c. The Court’s cases interpreting the scope of its own

appellate jurisdiction similarly permit review of issues

other than the particular issue that permitted appeal. Under 28 U.S.C. 1253, the Court has jurisdiction over appeals from any “order” granting or denying an “interlocutory or permanent injunction” in any civil proceeding required to be heard by a three-judge district court. In a

series of cases, the Court has construed Section 1253

broadly to permit review beyond the particular injunctive

relief that permitted direct appeal.

For example, the Court has held that, although Section 1253 does not permit appeal of the “entry of a declaratory judgment unaccompanied by any injunctive relief,”

it does authorize review of a declaration encompassed by

an order issuing an injunction. White v. Regester, 412 U.S.

755, 761 (1973); see, e.g., Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 35 n.5 (1980). The Court has similarly held that it may review an award of attorney’s fees

encompassed by an order appealable under Section 1253,

even though that award would not be reviewable standing

alone. See Supreme Court of Virginia v. Consumers Union of United States, Inc., 446 U.S. 719, 737 n.16 (1980).

In addition, the Court has held that it may review both

constitutional and federal statutory grounds for challenging a state statute in an appeal under Section 1253 even

though a challenge based solely on federal statutory

grounds would not have required a three-judge district

court. Florida Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 84 (1960).

Section 1447(d) is similar. It provides courts of appeals with jurisdiction over a remand order when either

the federal-officer or civil-rights removal statute provides

one of the grounds for removal. And in such a case, the

court of appeals’ review extends to all of the asserted

grounds for removal. See pp. 16-19, supra.

2. The plain-text interpretation of Section 1447(d)

also aligns with the principle that appellate review of final

judgments is not limited to a particular ground addressed

by a lower court. The “question before an appellate

[c]ourt” is whether “the judgment is correct,” not whether

the “ground on which the judgment professes to proceed”

is correct. McClung v. Silliman, 19 U.S. (6 Wheat.) 598,

603 (1821); see, e.g., Jennings v. Stephens, 574 U.S. 271,

277 (2015). For that reason, appellate jurisdiction ordinarily extends to the entire judgment and all issues encompassed in it. That is why appellate courts have discretion to affirm on any ground in the record, even if the decision below did not rest on that ground. See Dahda v.

United States, 138 S. Ct. 1491, 1498 (2018); Exxon Shipping Co. v. Baker, 554 U.S. 471, 487 (2008). Similarly, the

plain-text interpretation of Section 1447(d) permits review of the entire remand order, and not simply one of the

grounds underlying it.

3. The courts of appeals have held that a number of

additional statutes that permit appellate review of particular “orders” authorize review of issues beyond the particular issue that permitted appeal.

In the bankruptcy context, a court of appeals may directly review a bankruptcy court’s “final judgments, orders, and decrees” if the relevant district court or bankruptcy appellate panel certifies that the judgment, order,

or decree involves an open or unsettled “question of law”

or that an “immediate appeal” may “materially advance

the progress of the case.” 28 U.S.C. 158(a), (d)(2). Like

the similar provision at issue in Yamaha, courts of appeals

have interpreted that provision as permitting review of

the whole “order,” not merely the “certified question.” In

re Franchise Services of North America, Inc., 891 F.3d

198, 206 (5th Cir. 2018); see Marshall v. Blake, 885 F.3d

1065, 1072 n.6 (7th Cir. 2018).

In similar fashion, the Federal Circuit has jurisdiction

over any “order” certified for interlocutory review by the

Court of Federal Claims. See 28 U.S.C. 1292(d)(2). Long

before Yamaha, the Federal Circuit held that the scope of

its review under that provision is “not limited to the certified question” but instead extends to “all questions material” to the certified order. United States v. Connolly, 716

F.2d 882, 885 (1983) (en banc).

A court of appeals also has jurisdiction over any “final

order” of the Federal Labor Relations Authority relating

to an arbitration award if the order “involves an unfair labor practice.” 5 U.S.C. 7123(a). As the D.C. Circuit recently explained, “[t]he most natural interpretation” of

that provision is that, “[b]y granting the court jurisdiction

to review the entire order,” the court is not limited to reviewing “only the portion of the order that discusses the

alleged unfair labor practice.” National Weather Service

Employees v. Federal Labor Relations Authority, 966

F.3d 875, 879-880 (2020).

Finally, under the Class Action Fairness Act, a court

of appeals may grant a petition for appeal from an “order

of a district court granting or denying a motion to remand

a class action.” 28 U.S.C. 1453(c)(1). At least two courts

of appeals have interpreted that provision to permit review of any issue encompassed in an appealable remand

order, not just the class-action ground for removal. See

Coffey v. Freeport McMoran Copper & Gold, 581 F.3d

1240, 1247 (10th Cir. 2009) (per curiam); Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 451 (7th Cir. 2005);

but see City of Walker v. Louisiana, 877 F.3d 563, 567

(5th Cir. 2017).

In sum, precedent from both this Court and the courts

of appeals supports the plain-text interpretation of Section 1447(d), under which a court of appeals may review

all of the asserted grounds for removal where removal is

premised in part on the federal-officer or civil-rights removal statutes.

C. The Plain-Text Interpretation Of Section 1447(d)

Serves The Provision’s Purposes

The purposes of Section 1447(d) further support the

plain-text interpretation. When Congress enacted and

amended the relevant clause of Section 1447(d), it did so

to ensure that cases implicating the interests protected by

the federal-officer and civil-rights removal statutes are

not erroneously consigned to state court. And while the

purpose of the preceding clause of Section 1447(d) is to

avoid “protracted litigation of jurisdictional issues,”

Thermtron Products, Inc. v. Hermansdorfer, 423 U.S.

336, 351 (1976), that policy would not be meaningfully advanced by circumscribing appellate review once an appeal

is allowed.

1. The plain-text interpretation of Section 1447(d)

protects the interests that motivated Congress to permit

appeals of remand orders in cases removed under the federal-officer or civil-rights removal statutes.

a. The federal-officer removal statute permits removal of certain cases that relate to the authorities and

duties of a federal officer (or a person acting at the direction of a federal officer) under federal law. See 28 U.S.C.

1442. The basic purpose of the statute is to “protect the

[f]ederal [g]overnment” from “interference with its operations.” Watson v. Philip Morris Cos., 551 U.S. 142, 150

(2007) (internal quotation marks and citation omitted). As

this Court has explained, proceedings in state court “may

reflect ‘local prejudice’ against unpopular federal laws or

federal officials,” and States “hostile to the [f]ederal

[g]overnment” may use state-court litigation to “impede”

the enforcement of federal law. Ibid. (citation omitted).

To protect federal interests from state-court interference,

the Court has given the federal-officer statute a “liberal

construction.” Id. at 147.

The civil-rights removal statute, first enacted as part

of the Civil Rights Act of 1866, permits removal of cases

in three circumstances. See 28 U.S.C. 1443; Civil Rights

Act of 1866, ch. 31, § 3, 14 Stat. 27. First, a defendant in

state court who is “denied or cannot enforce” federal

rights “providing for specific civil rights stated in terms of

racial equality” may remove a case to federal court. Johnson v. Mississippi, 421 U.S. 213, 219 (1975); see 28 U.S.C.

1443(1). Second, a federal officer, or a person acting under a federal officer, may remove a case arising from an

act taken pursuant to official authority derived from “any

federal law providing for equal civil rights.” City of

Greenwood v. Peacock, 384 U.S. 808, 824 (1966); see 28

U.S.C. 1443(2). Third, a state official may remove a case

arising from the refusal to take an action that is inconsistent with federal civil-rights law. Peacock, 384 U.S. at

824 n.22; see 28 U.S.C. 1443(2).

In 1964 and 2011, Congress amended 28 U.S.C.

1447(d) to permit appeals of remand orders in cases removed under the civil-rights and federal-officer removal

statutes, respectively. See Civil Rights Act of 1964, Pub.

L. No. 88-352, § 901, 78 Stat. 266; Removal Clarification

Act of 2011, Pub. L. No. 112-51, § 2(d), 125 Stat. 546. The

amendments reflect a policy determination that the potential for state-court hostility to the federal interests implicated in cases removed under those statutes is sufficiently high to justify appellate review of remand orders.

Those federal interests include the maintenance and enforcement of federal policies administered by federal officers and the protection of equal civil rights.

b. The congressional policy underlying the amendments to Section 1447(d) is best served by permitting ple-

nary review of remand orders in cases removed on federal-officer or civil-rights grounds. When a defendant has

a colorable but ultimately unsuccessful argument for removal on one of those grounds, federal interests related

to those that Congress sought to protect by amending

Section 1447(d) are often present in the defendant’s other

grounds for removal. Plenary appellate review will correct erroneous remands in such cases and ensure that, if

there is a legitimate basis for removal, federal courts will

be available to safeguard those interests.

With respect to the federal-officer removal statute:

when defendants are federal officers or work closely with

such officers, the defendants’ actions may implicate vital

federal interests. This case is illustrative. Petitioners

produce and sell fossil fuels—a commercial enterprise

that is vital to the Nation’s economic health and the national defense and that has been promoted by a long series

of federal policies spanning more than a century. See J.A.

190, 202, 207-208. In fact, the history of the petroleum industry is one of inseparable involvement with the federal

government, from federal control of the industry during

World War II to federal direction of fossil-fuel extraction

on the Outer Continental Shelf. See J.A. 225-231; Petroleum Administration for War, A History of the Petroleum

Administration for War, 1941-1945 (John W. Frey & H.

Chandler Ide eds. 2005). The regulation of interstate air

pollution is also a uniquely federal concern, as this Court’s

precedents and the enactment of the Clean Air Act

demonstrate. See EPA v. EME Homer City Generation,

L.P., 572 U.S. 489, 495-499 (2014); pp. 39-45, infra.5

Because petitioners engaged in activities that “the [g]overnment

itself would have had to perform” in the absence of contracts with private firms, Watson, 551 U.S. at 154, petitioners disagree with the

court of appeals’ rejection of the federal-officer ground for removal.

The numerous lawsuits filed by state and local governments against petitioners and other energy companies in

state court, however, raise the specter of “local prejudice”

against the fossil-fuel industry, implicating the significant

federal policies in favor of fossil-fuel production. Watson,

551 U.S. at 150 (citation omitted); see Juliana v. United

States, 947 F.3d 1159, 1167 & n.4 (9th Cir. 2020); pp. 3943, infra. Permitting plenary appellate review of remand

orders in cases such as this one thus furthers significant

federal interests, even if the case is ultimately not removable under the federal-officer removal statute. Cf. Lu

Junhong, 792 F.3d at 808-810, 813-818 (rejecting federalofficer removal but permitting removal based on federal

admiralty jurisdiction, another area of unique federal interest).

With respect to the civil-rights removal statute: cases

in which defendants raise plausible—even if unavailing—

arguments for removal under 28 U.S.C. 1443 implicate the

critical federal interest in enforcing the civil-rights laws

and thereby promoting equality. Such defendants may

face significant local prejudice, even when the strict and

technical requirements for civil-rights removal are not

met. See p. 27, supra. When defendants remove their

case on an additional ground (say, diversity or federalquestion jurisdiction), plenary review of the remand order

ensures the full and fair adjudication of their liability in

federal courts.

2. The plain-text interpretation is also consistent

with the purpose of the preceding clause of Section

1447(d). That clause states that “[a]n order remanding a

case to the State court from which it was removed is not

Petitioners have presented a more fully developed historical record

to support that conclusion in subsequent removal petitions.

reviewable on appeal or otherwise.” Congress first enacted the general prohibition on appellate review of remand orders in 1887, after the 1875 expansion of federalquestion jurisdiction created a “flood of totally new business for the federal courts” and this Court’s docket became a “record of arrears.” Felix Frankfurter, The Business of the Supreme Court of the United States—A Study

in the Federal Judicial System, 39 Harv. L. Rev. 35, 44,

48 (1925). That context suggests that the prohibition on

appellate review of remand orders was intended to reduce

this Court’s backlog in the days before the creation of the

courts of appeals and the reduction of this Court’s mandatory appellate jurisdiction. See Rhonda Wasserman, Rethinking Remand: Proposed Amendments to the Federal

Removal Statute, 43 Emory L.J. 83, 100-102 (1994).

Whatever Congress’s original intent, it is the received

wisdom today that the purpose of the general prohibition

is to “prevent delay in the trial of remanded cases by protracted litigation of jurisdictional issues.” Thermtron, 423

U.S. at 351. Any concern about delay, however, has little

pertinence here. Respondent does not dispute that a defendant is entitled to appeal when a district court rejects

federal-officer or civil-rights removal, meaning that the

degree of delay inherent in the normal appellate process

is appropriate when a case is removed pursuant to those

grounds. The plain-text interpretation of Section 1447(d)

increases only the scope of appellate review. Any delay

from the broader inquiry that the court of appeals conducts will be marginal (at most)—as the leading civil-procedure treatise recognizes. See 15A Wright & Miller

§ 3914.11, at 706; see also Lu Junhong, 792 F.3d at 813.

Indeed, the broader scope of review will often cause no

additional delay. Neither the district court nor the court

of appeals is automatically required to stay the remand

order pending appeal—as this case demonstrates, see

Pet. App. 82a-96a—so in some cases the parties can litigate the case in state court while the appeal proceeds. See

Lu Junhong, 792 F.3d at 813. In addition, if the propriety

of federal-officer or civil-rights removal presents a particularly difficult question, a court of appeals could even reduce delay by resolving the appeal based on an alternative

ground for removal that is more clearly meritorious. The

plain-text interpretation of the relevant clause of Section

1447(d) thus does not conflict with—and may even advance—the purpose of avoiding delay.

D. The Court Of Appeals’ Contrary Interpretation Is

Incorrect

Relying on prior circuit precedent, the court of appeals

interpreted the relevant clause of Section 1447(d) to afford it jurisdiction to review only the district court’s rejection of the federal-officer ground for removal. Pet. App.

6a-10a. That interpretation lacks merit.

1. There is simply no way to derive the court of appeals’ interpretation of Section 1447(d) from the statutory

text. Again, the relevant clause of Section 1447(d) states

that certain “order[s] remanding a case” to state court are

“reviewable by appeal or otherwise.” In holding that Section 1447(d) limited its review to the federal-officer

ground for removal, the court of appeals functionally read

the phrase “order remanding a case” to mean “the district

court’s reasoning rejecting the federal-officer or civilrights ground for removal.” Wherever that interpretation

comes from, it is not from the words of the statute. See

pp. 16-20, supra.

It is clear that the first reference to the “order remanding a case” in Section 1447(d) is to the entire order.

See p. 5, supra. Applying the consistent-meaning canon,

the second use of “order remanding a case” presumptively

“carr[ies] the same meaning” as the first. Department of

Revenue v. ACF Industries, Inc., 510 U.S. 332, 342 (1994).

But the court of appeals’ interpretation gives the second

use of the phrase a different and dramatically narrower

meaning. That cannot have been Congress’s intention;

this Court has stated that when a statute repeats a phrase

twice in the same sentence, it is “improbable” that each

occurrence “refers to something totally different.”

Fourth Estate Public Benefit Corp. v. Wall-Street.com,

LLC, 139 S. Ct. 881, 889 (2019) (citation omitted); see Azar

v. Allina Health Services, 139 S. Ct. 1804, 1812 (2019).

2. Although the court of appeals primarily relied on

prior circuit precedent when determining the scope of its

appellate review, it suggested that this Court’s decision in

Yamaha might be distinguishable because of the differing

operation of the provision at issue there, 28 U.S.C.

1292(b). Pet. App. 9a. Specifically, the court observed

that, while Section 1292(b) “permits appellate review of

important issues before final judgment,” it “does not

make otherwise non-appealable questions reviewable,” as

does the relevant clause of Section 1447(d). Ibid.; see Br.

in Opp. 26-28.

That argument is unavailing. It is true that Section

1447(d) generally prohibits appellate review of remand orders, whereas Section 1292(b), in combination with 28

U.S.C. 1291, merely controls the timing of appellate review of certain orders. But that distinction does nothing

to change the scope of review when Congress has explicitly authorized appellate review of an “order.” Congress

used similar language in both Section 1292(b) and Section

1447(d) to determine when and whether an “order” is appealable. In accordance with the plain meaning of that

language, each provision should be construed to allow review of the entire order.

Nor is there any evidence that Congress intended Section 1447(d) to insulate remand orders from review where

the court of appeals has already been “authorized to take

the time necessary to determine the right forum.” Lu

Junhong, 792 F.3d at 813. As explained above, Congress

appears to have originally enacted the bar on appellate review of remand orders in an effort to reduce this Court’s

docket after broad federal-question jurisdiction became

available. See pp. 29-30, supra. And though today the

general limitation on appellate review in Section 1447(d)

serves to prevent delay in the trial of remanded cases, the

court of appeals’ interpretation of the relevant clause

serves that goal only marginally, if at all. See pp. 30-31,

supra.

3. At the certiorari stage, respondent offered several

additional arguments in defense of the court of appeals’

interpretation. Each is unpersuasive.

a. Respondent first contended that the relevant

clause of Section 1447(d) “must be narrowly construed”

because it is an “exception clause[].” Br. in Opp. 21. As

this Court has explained, however, “[a] congressional decision to enact both a general policy that furthers a particular goal and a specific exception that might tend

against that goal does not invariably call for the narrowest

possible construction of the exception.” City of Columbus

v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 440

(2002). Courts “normally have no license to give [statutory] exemption[s] anything but a fair reading.” Food

Marketing Institute v. Argus Leader Media, 139 S. Ct.

2356, 2366 (2019) (internal quotation marks and citation

omitted). Here, the plain text of Section 1447(d) controls,

because it provides that a court of appeals has jurisdiction

to review all of the grounds for removal encompassed in

the “order remanding [the] case” when an appeal is permitted. See pp. 16-20, supra.

b. Respondent next relied on history, arguing that

Congress has barred appellate review of remand orders

“[f]or well over a century” and thus must have intended to

authorize only narrow appellate review of a federal-officer

or civil-rights ground for removal when it amended Section 1447(d). Br. in Opp. 22-24. But respondent’s conclusion does not follow from its premise. No one disputes the

background principle that remand orders are generally

unreviewable. When amending Section 1447(d) in 1964

and 2011, however, Congress departed from that background principle and authorized appeals under specified

circumstances. The question here concerns the scope of

those departures—a question that cannot be answered

simply by saying that such departures are relatively recent.

c. Respondent further contended (Br. in Opp. 24-26)

that Congress ratified the courts of appeals’ prior construction of Section 1447(d) in the 2011 amendment. That

contention lacks merit for two reasons.

To begin with, the meaning of Section 1447(d) was

hardly “settled” in respondent’s favor in 2011. See Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378,

1386 (2015). This Court and the courts of appeals had

overwhelmingly interpreted the term “order” in other

statutes governing appellate jurisdiction to permit review

of issues beyond the particular issue that permitted appeal, see pp. 20-26, supra, and the court-of-appeals decisions giving Section 1447(d) a contrary interpretation before 2011 were entirely conclusory. See Br. in Opp. 11-14;

Cert. Reply Br. 5. That casts doubt on the assertion that

Congress intended to ratify a conclusory set of cases over

another set of cases with more robust analysis.

More generally, the prior-construction canon has little

force here. It typically applies where Congress enacts a

new provision or reenacts an existing one. See Lightfoot

v. Cendant Mortgage Corp., 137 S. Ct. 553, 563 (2017);

Pierce v. Underwood, 487 U.S. 552, 567 (1988). But Section 1447(d) was not reenacted in 2011; Congress merely

added the words “1442 or” to the relevant clause, bringing

federal-officer removal within the clause’s scope. See Removal Clarification Act § 2(d), 125 Stat. 546. Where, as

here, Congress “has made only isolated amendments” to

an existing provision, “[i]t is impossible to assert with any

degree of assurance that congressional failure to act represents affirmative congressional approval of the [prior

judicial] interpretation.” Alexander v. Sandoval, 532 U.S.

275, 292 (2001) (internal quotation marks and citation

omitted). And as respondent has acknowledged (Br. in

Opp. 25-26 n.10), nothing in the legislative history of the

2011 amendments addresses the question presented here.

d. Finally, respondent argued that the plain-text interpretation of Section 1447(d) would incentivize the inclusion of “baseless” arguments for federal-officer or civilrights removal as a “hook for obtaining appellate review”

of other grounds for removal. Br. in Opp. 28-29. As an

initial matter, petitioners’ arguments for federal-officer

removal are substantial. See p. 8, supra. And in any

event, “[s]ufficient sanctions are available to deter frivolous removal arguments.” 15A Wright & Miller § 3914.11,

at 706. The district court has the authority to impose

sanctions on a defendant for filing a notice of removal containing bad-faith or frivolous arguments. See Fed. R. Civ.

P. 11(b)(1)-(2). And district courts have long had authority to require the defendant to pay “just costs and any actual expenses, including attorney fees, incurred as a result

of the removal.” 28 U.S.C. 1447(c); see, e.g., Act of May

24, 1949, ch. 139, § 84(a), 63 Stat. 102.

The court of appeals would likewise have inherent authority to sanction a defendant that appealed the denial of

a federal-officer or civil-rights ground for removal asserted in bad faith. See Chambers v. NASCO, Inc., 501

U.S. 32, 44-46, 49-50 (1991). A court of appeals could require the defendant to pay attorney’s fees, or it could even

dismiss the appeal. See, e.g., Meadows v. United Services,

Inc., 963 F.3d 240, 243-244 (2d Cir. 2020); Pepperling v.

Risley, 739 F.2d 443, 444 (9th Cir. 1984); cf. Behrens v.

Pelletier, 516 U.S. 299, 310 (1996) (noting that “it is well

within the supervisory powers of the courts of appeals to

establish summary procedures and calendars to weed out

frivolous claims” (citation omitted)).

A court of appeals, moreover, may lack jurisdiction

over an appeal from a remand order if the federal-officer

or civil-rights ground for removal is frivolous. As this

Court has long explained, a claim purporting to arise under federal law does not confer subject-matter jurisdiction if it is “immaterial and made solely for the purpose of

obtaining jurisdiction” or is “wholly insubstantial and frivolous.” Bell v. Hood, 327 U.S. 678, 682-683 (1946); see

Shapiro v. McManus, 136 S. Ct. 450, 455-456 (2015);

Goosby v. Osser, 409 U.S. 512, 518-519 (1973). Similarly,

a court of appeals may lack jurisdiction under Section

1447(d) if the sole basis for appellate jurisdiction is a badfaith or frivolous argument for federal-officer or civilrights removal.

Respondent thus urges a departure from Section

1447(d)’s plain text to solve a problem that courts already

have ample tools to address. But in advancing an interpretation to deter bad actors, respondent excludes defendants who do have plausible arguments for removal

under Section 1442 or 1443 and who will often be entitled

to remove their cases on other grounds. The plain text of

Section 1447(d) entitles those defendants to appellate review of the orders remanding their cases, and it ensures

that defendants entitled to a federal forum end up in one.

In sum, there is no compelling reason to depart from

the plain meaning of Section 1447(d). Because the text of

Section 1447(d) permits appellate review of a remand order where one of the defendant’s grounds for removal is

the federal-officer or civil-rights removal statute, a court

of appeals has jurisdiction to review all of the grounds for

removal encompassed in that order. The court of appeals’

contrary interpretation was erroneous.

II. THE COURT SHOULD REVERSE THE JUDGMENT

BELOW

For the reasons given above, the court of appeals

erred by holding that it lacked jurisdiction to review any

of petitioners’ grounds for removal other than the federalofficer ground. As petitioners explained in their petition

for a writ of certiorari, if the Court agrees that the court

of appeals’ holding was erroneous, it can either proceed to

address the remaining grounds for removal and reverse

the judgment below, or vacate the judgment and direct

the court of appeals to address those grounds in the first

instance. See Pet. 20 & n.3.

The Court should take the former course. As of the

filing of this brief, removal is being litigated in 19 climatechange lawsuits similar to this case. See p. 7 n.1, supra.

One of the grounds for removal common to all of those

cases is that claims alleging injury based on interstate

emissions necessarily arise under federal common law.

That conclusion follows directly from this Court’s

longstanding precedents, and it would break little new

ground for the Court so to hold here.

To preserve judicial resources, the Court should consider that additional ground for removal and confirm, as

the Court’s precedents dictate, that this case and others

like it belong in federal court. On that basis, the Court

should reverse the judgment below. In the alternative,

the Court should vacate the judgment and direct the court

of appeals to address the additional grounds for removal.

A. Removal Was Proper Because Respondent’s Claims

Necessarily Arise Under Federal Law

Respondent alleges that the combustion of petitioners’

fossil-fuel products led to greenhouse-gas emissions,

which contributed to global climate change and in turn

caused harms within its jurisdiction. See J.A. 23-29. To

remedy those alleged harms, respondent seeks damages

under a number of common-law theories. See J.A. 155182. This Court has long made clear that, as a matter of

constitutional structure, claims seeking redress for interstate pollution are governed exclusively by federal common law, not state law. Such claims necessarily arise under federal law for purposes of federal-question jurisdiction and are thus removable. For that reason, the remand

order in this case was erroneous.

1. In Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938), the Court announced the familiar principle that

“[t]here is no federal general common law.” Id. at 78. But

even after Erie, the “federal judicial power to deal with

common law problems” remains “unimpaired for dealing

independently, wherever necessary or appropriate, with

essentially federal matters, even though Congress has not

acted affirmatively about the specific question.” United

States v. Standard Oil Co., 332 U.S. 301, 307 (1947).

Of particular relevance here, federal law necessarily

supplies the rule of decision for certain narrow categories

of claims that implicate “uniquely federal interests,” including where “the interstate or international nature of

the controversy makes it inappropriate for state law to

control.” Texas Industries, Inc. v. Radcliff Materials,

Inc., 451 U.S. 630, 640-641 (1981) (citation omitted). At

bottom, whenever there is “an overriding federal interest

in the need for a uniform rule of decision,” Illinois v. City

of Milwaukee (Milwaukee I), 406 U.S. 91, 105 n.6 (1972),

“state law cannot be used,” City of Milwaukee v. Illinois

(Milwaukee II), 451 U.S. 304, 313 n.7 (1981), and any

claims necessarily arise under federal law.

Under 28 U.S.C. 1331, federal district courts “have

original jurisdiction of all civil actions arising under the

Constitution, laws, or treaties of the United States.” That

includes claims “founded upon federal common law as well

as those of a statutory origin.” National Farmers Union

Insurance Cos. v. Crow Tribe of Indians, 471 U.S. 845,

850 (1985) (citation omitted). As a result, if the “dispositive issues stated in the complaint require the application”

of a uniform rule of federal law, the action “arises under”

federal law for purposes of Section 1331, Milwaukee I, 406

U.S. at 100, and the case is removable to federal court, see

28 U.S.C. 1441(a).

2. The structure of our constitutional system requires that federal law exclusively govern claims seeking

redress for interstate pollution. The States are “coequal

sovereigns” in our system, PPL Montana LLC v. Montana, 565 U.S. 576, 591 (2012), and the Constitution “implicitly forbids” them from applying their own laws to resolve “disputes implicating their conflicting rights,” Franchise Tax Board v. Hyatt, 139 S. Ct. 1485, 1498 (2019) (alteration and citations omitted). In similar fashion, although each State may make law within its own borders,

no State may “impos[e] its regulatory policies on the entire Nation.” BMW of North America v. Gore, 517 U.S.

559, 585 (1996); see Healy v. Beer Institute, Inc., 491 U.S.

324, 336 (1989). Allowing state law to govern disputes regarding interstate pollution would violate the “cardinal”

principle that “[e]ach state stands on the same level with

all the rest,” by permitting one State to impose its law on

other States and their citizens. Kansas v. Colorado, 206

U.S. 46, 97 (1907).

Accordingly, for more than a century, this Court has

applied uniform federal rules of decision to common-law

claims seeking redress for interstate pollution. In Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907), the

Court considered an action by Georgia against a Tennessee-based corporation that was discharging “noxious gas”

across the border, resulting in the destruction of “forests,

orchards, and crops.” Id. at 236. In resolving the claim,

the Court relied on principles of federal and not state law.

See id. at 237.

The Court continued to follow the same approach in

cases after Erie. In Milwaukee I, supra, a case involving

interstate water pollution, the Court reasoned that,

“[w]hen we deal with air and water in their ambient or interstate aspects, there is a federal common law.” 406 U.S.

at 103. The Court explained that “[f]ederal common law,”

and not the “varying common law of the individual

States,” is “necessary to be recognized as a basis for dealing in uniform standard with the environmental rights of

a State against improper impairment by sources outside

its domain.” Id. at 108 n.9 (citation omitted). In International Paper Co. v. Ouellette, 479 U.S. 481 (1987), the

Court unambiguously reaffirmed that “the regulation of

interstate water pollution is a matter of federal, not state,

law.” Id. at 488.

The Court recently reinforced that conclusion in

American Electric Power, supra, with respect to similar

nuisance claims alleging injury from global climate

change caused by greenhouse-gas emissions. See 564

U.S. at 418. Writing for a unanimous Court, Justice Ginsburg reiterated that federal common law “undoubtedly”

governs claims involving “air and water in their ambient

or interstate aspects.” Id. at 421.

3. Applying the foregoing precedents here leads to a

straightforward result: respondent’s climate-change

claims necessarily arise under federal, not state, law.

Through those claims, respondent is seeking damages

based on the interstate—and indeed international—emissions of greenhouse gases over many decades, allegedly

resulting in part from the use of fossil-fuel products produced or sold by defendants and consumed throughout

the world. See J.A. 23-28, 83-87, 145-155. Those claims

fall squarely within the long line of cases holding that federal common law governs claims seeking redress for interstate air and water pollution.

Any contrary approach would not only contravene this

Court’s precedents but also permit suits alleging climatechange-related injuries to proceed under the laws of all

fifty States. As the federal government explained in its

brief in American Electric Power, “virtually every person, organization, company, or government across the

globe * * * emits greenhouse gases, and virtually everyone will also sustain climate-change-related injuries,”

giving rise to claims from “almost unimaginably broad

categories of both potential plaintiffs and potential defendants.” TVA Br. at 11, 15, American Electric Power,

supra (No. 10-174). Out-of-state actors (such as most of

petitioners here) would quickly find themselves subject to

a “variety” of “vague” and “indeterminate ” state common-law tort standards, and States would be empowered

to “do indirectly what they could not do directly—regulate

the conduct of out-of-state sources.” Ouellette, 479 U.S.

at 495-496. “[R]esolving such claims would require each

court to consider numerous and far-reaching technological, economic, scientific, and policy issues” and to decide

“whether and to what extent each defendant should be

deemed liable under general principles of nuisance law for

some share of the injuries associated with global climate

change.” TVA Br. at 37, American Electric Power, supra.

That could lead to “widely divergent results” if a patchwork of fifty different legal regimes applied. Ibid.

Respondent’s claims also implicate important interests of the federal government. Because respondent asserts public-nuisance claims, a court adjudicating those

claims will ultimately need to weigh the gravity of the

harm caused by defendants’ alleged contribution to global

climate change against the utility of their production of

fossil-fuel products. See generally Restatement (Second)

of Torts §§ 821B, 826-831 (1979). That will require a determination of “what amount of carbon-dioxide emissions

is unreasonable” given what is “practical, feasible[,] and

economically viable.” American Electric Power, 564 U.S.

at 428 (internal quotation marks omitted). Such a determination squarely implicates the federal government’s interest in setting domestic and foreign policy on matters

involving energy, the environment, and the economy. See

id. at 427.

Indeed, by alleging injury based on global greenhouse-gas emissions, respondent is essentially seeking to

second-guess the United States’ energy and environmental policy around the globe. Yet state courts are “not left

free to develop their own doctrines” concerning the Nation’s “relationships with other members of the international community.” Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 425, 426 (1964). Respondent’s claims

implicate the national defense as well: the federal government has long been the largest consumer of fossil fuels in

the United States, and the Department of Defense consumes more energy than any other agency. See Heather

L. Greenley, Congressional Research Service, R45832,

Department of Defense Energy Management: Background and Issues for Congress 1 (2019).

Nor can respondent avoid federal law by characterizing its claims as aimed at fossil-fuel production and marketing rather than emissions. See Pet. App. 21a-23a &

n.10. Respondent does not claim harm from production,

sale, or promotion of fossil fuels alone; rather, its alleged

injuries arise from the effects of greenhouse-gas emissions worldwide. See J.A. 23-28, 83-87, 145-155. Respondent seeks damages for the effect of climate change as well

as injunctive relief to “abate” activities believed to cause

climate change. See, e.g., J.A. 161. Respondent thereby

seeks to regulate interstate and international greenhouse-gas emissions—precisely the type of claim that is

necessarily subject to federal law alone.

In short, there are compelling federal interests in addressing transboundary pollution suits in a uniform manner. Federal law exclusively governs such claims, and federal jurisdiction therefore lies to resolve them.

4. In the proceedings below, the district court held

that, even if federal common law governed respondent’s

claims, the well-pleaded complaint rule barred removal on

that basis. The district court noted that respondent had

not expressly “plead[ed] any claims under federal law,”

Pet. App. 44a, and it viewed petitioners’ invocation of federal common law as raising an ordinary preemption defense, see id. at 44a-50a. But federal common law is not

merely a defense to respondent’s claims alleging injury

from interstate and international air pollution. For the

reasons explained above, respondent’s claims do not just

implicate federal-law issues—they inherently are federal

claims, arising under federal law. No state law exists in

this area for respondent to invoke.

The well-pleaded complaint rule therefore does not

bar removal here. That rule provides that federal-question jurisdiction exists only when “a federal question is

presented on the face of the plaintiff’s properly pleaded

complaint.” Caterpillar, Inc. v. Williams, 482 U.S. 386,

392 (1987). An “independent corollary” of the rule, however, is that “a plaintiff may not defeat removal by omitting to plead necessary federal questions.” Franchise

Tax Board v. Construction Laborers Vacation Trust, 463

U.S. 1, 22 (1983). Put another way, a plaintiff cannot

“block removal” by artfully pleading its claims in an effort

to “disguise [an] inherently federal cause of action.” See

14C Wright & Miller § 3722.1, at 131-132 (4th ed. 2018).

As a result, the well-pleaded complaint rule will sometimes require a federal court to “determine whether the

real nature of the claim is federal, regardless of plaintiff’s

characterization.” Federated Department Stores, Inc. v.

Moitie, 452 U.S. 394, 397 n.2 (1981) (citation omitted).

And while the Court has applied the artful-pleading principle primarily in complete-preemption cases involving

federal statutes, there is “[n]o plausible reason” why “the

appropriateness of and need for a federal forum should

turn on whether the claim arose under a federal statute or

under federal common law.” Richard H. Fallon, Jr., et al.,

Hart & Wechsler’s Federal Courts and the Federal System 818 (7th ed. 2015).

Those principles apply fully here. To be sure, respondent contends that its common-law claims arise under Maryland common law (even though the complaint

does not so state). See J.A. 155-182. But again, federal

law necessarily supplies the exclusive source of law governing those claims. And because that is clear from the

face of the complaint—that is, from the nature of respondent’s allegations and the claims asserted—the wellpleaded complaint rule does not bar removal.6

Removal based on the foregoing ground does not depend on

whether a viable federal cause of action exists. Whether a claim arises

Accordingly, the district court had federal-question

jurisdiction under 28 U.S.C. 1331 despite the omission of

the federal source of law from the complaint, and removal

was permitted under 28 U.S.C. 1441(a). Given the number

of climate-change cases pending across the Nation, the

Court should confirm that this case and others like it were

properly removed to federal court on the ground that federal common law necessarily governs claims alleging injury based on the contribution of interstate and international emissions to global climate change. For that reason, the judgment of the court of appeals should be reversed.

B. If The Court Does Not Reverse, It Should Vacate The

Judgment Below And Remand The Case To The Court

Of Appeals

In their notice of removal, petitioners raised a number

of other grounds for removal in addition to the federalcommon-law and federal-officer grounds. See J.A. 203225, 231-240. Those additional grounds were briefed at

length by both petitioners and respondent in the court of

appeals. See Pet. C.A. Br. 33-40, 43-54; Resp. C.A. Br. 2853. The court of appeals did not reach any ground for removal other than the federal-officer ground, however, because of its erroneous interpretation of 28 U.S.C. 1447(d).

See Pet. App. 10a.

Accordingly, if this Court declines to reach the question whether federal law provides the exclusive source of

law for respondent’s claims, it should vacate the judgment

below and remand the case to the court of appeals. Be-

exclusively under federal common law is distinct from whether it implicates a viable cause of action. See American Electric Power, 564

U.S. at 422; Avco Corp. v. Machinists, 390 U.S. 557, 560-561 (1968);

Standard Oil, 332 U.S. at 308, 314.

cause removal was so clearly proper based on federal common law, however, the better course is for the Court to

reverse the judgment outright and hold that respondent’s

claims belong in federal court.

CONCLUSION

The judgment of the court of appeals should be reversed. In the alternative, the judgment should be vacated and the case remanded for further proceedings.

Respectfully submitted.

PETER D. KEISLER

C. FREDERICK BECKNER III

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

THEODORE J. BOUTROUS, JR.

THOMAS G. HUNGAR

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut Avenue,

N.W.

Washington, DC 20036

Counsel for Petitioners

Chevron Corporation and

Chevron U.S.A., Inc.

DAVID C. FREDERICK

BRENDAN J. CRIMMINS

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

Counsel for Petitioners

Shell Oil Company and

Royal Dutch Shell plc

NOVEMBER 2020

KANNON K. SHANMUGAM

WILLIAM T. MARKS

TANYA S. MANNO

E. GARRETT WEST

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS,SP JR.

DANIEL J. TOAL

ADAM P. SAVITT

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

Counsel for Petitioners

Exxon Mobil Corporation and

ExxonMobil Oil Corporation

PHILIP H. CURTIS

NANCY G. MILBURN

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

MATTHEW T. HEARTNEY

JOHN D. LOMBARDO

ARNOLD & PORTER

KAYE SCHOLER LLP

777 South Figueroa Street,

44th Floor

Los Angeles, CA 90017

JOHN B. ISBISTER

JAIME W. LUSE

TYDINGS & ROSENBERG LLP

One East Pratt Street,

Suite 901

Baltimore, MD 21202

Counsel for Petitioners

BP p.l.c., BP America Inc.,

and BP Products North

America Inc.

KATHLEEN TAYLOR SOOY

TRACY A. ROMAN

CROWELL & MORING LLP

1001 Pennsylvania

Avenue, N.W.

Washington, DC 20004

Counsel for Petitioners

CNX Resources Corporation,

CONSOL Energy Inc., and

CONSOL Marine Terminals

LLC

NATHAN P. EIMER

PAMELA R. HANEBUTT

LISA S. MEYER

EIMER STAHL LLP

224 South Michigan

Avenue, Suite 1100

Chicago, IL 60604

ROBERT E. DUNN

EIMER STAHL LLP

99 South Almaden

Boulevard, Suite 662

San Jose, CA 95113

RYAN J. WALSH

EIMER STAHL LLP

10 East Doty Street,

Suite 800

Madison, WI 53707

Counsel for Petitioner

CITGO Petroleum

Corporation

MICHELLE N. LIPKOWITZ

THOMAS K. PREVAS

SAUL EWING

ARNSTEIN & LEHR LLP

500 East Pratt Street,

Suite 900

Baltimore, MD 21202

Counsel for Petitioners

Crown Central LLC and

Crown Central New Holdings

LLC

SEAN C. GRIMSLEY

JAMESON R. JONES

DANIEL R. BRODY

BARTLIT BECK LLP

1801 Wewatta Street,

Suite 1200

Denver, CO 80202

Counsel for Petitioners

ConocoPhillips and

ConocoPhillips Company

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

MATTHEW J. PETERS

LATHAM & WATKINS LLP

555 11th Street, N.W.,

Suite 1000

Washington, DC 20004

Counsel for Petitioners

ConocoPhillips,

ConocoPhillips Company,

and Phillips 66

MARTHA THOMSEN

MEGAN BERGE

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, DC 20001

SCOTT JANOE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77022

Counsel for Petitioner

Hess Corporation

SHANNON S. BROOME

HUNTON ANDREWS

KURTH LLP

50 California Street

San Francisco, CA 94111

SHAWN PATRICK REGAN

HUNTON ANDREWS

KURTH LLP

200 Park Avenue

New York, NY 10166

ANN MARIE MORTIMER

HUNTON ANDREWS

KURTH LLP

550 South Hope Street,

Suite 2000

Los Angeles, CA 90071

Counsel for Petitioners

Marathon Petroleum Corp.

and Speedway LLC

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.