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

No. 19-1189

IN THE

Supreme Court of the United States

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

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

__________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE DRI–THE VOICE

OF THE DEFENSE BAR IN SUPPORT OF

PETITIONERS

__________________________________________________________________________________________________

EMILY G. COUGHLIN

President

DRI–THE VOICE OF THE

DEFENSE BAR

222 South Riverside

Plaza

Chicago, IL 60606

(312) 795-1101

MATTHEW T. NELSON

Counsel of Record

CHARLES R. QUIGG

WARNER NORCROSS +

JUDD LLP

1500 Warner Building

150 Ottawa Avenue NW

Grand Rapids, MI 49503

(616) 752-2000

mnelson@wnj.com

Counsel for Amicus Curiae

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ........................................ii

INTEREST OF AMICUS CURIAE ............................ 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT................................................................ 4

I.

Appellate review of all grounds at issue

in a remand order is compelled by

Congress’s use of the word “order” in

§ 1447(d).......................................................... 4

A. Congress has long defined scopes of

review at the level of an “order,”

which courts have understood to

permit review of the entire order ............ 5

B. When Congress intends to limit

review to particular questions, it

says so explicitly..................................... 12

II. Appellate review of all grounds at issue

in a remand order is compatible with

Congress’s policy in enacting § 1447(d) ....... 17

CONCLUSION .......................................................... 21

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Ableman v. Booth,

62 U.S. 506 (1858) ...............................................19

Anderson v. Bayer Corp.,

610 F.3d 390 (7th Cir. 2010) ...............................12

Baker v. Atlantic Richfield Co.,

962 F.3d 937 (7th Cir. 2020) ...............................20

Betzner v. Boeing Co.,

910 F.3d 1010 (7th Cir. 2018) .............................20

Board of County Commissioners of Boulder

County v. Suncor Energy (U.S.A.) Inc.,

965 F.3d 792 (10th Cir. 2020) .............................18

Brill v. Countrywide Home Loans, Inc.,

427 F.3d 446 (7th Cir. 2005) ...............................12

California Medical Association v. Federal Election

Commission,

453 U.S. 182 (1981) .............................................15

City of Walker v. Louisiana,

877 F.3d 563 (5th Cir. 2017) ...............................12

Cleveland-Cliffs Iron Co. v. Arctic Iron Co.,

248 U.S. 178 (1918) .............................................13

Coffey v. Freeport McMoran Copper & Gold,

581 F.3d 1240 (10th Cir. 2009) ...........................12

Conway v. Principi,

353 F.3d 1369 (Fed. Cir. 2004) ...........................14

Edwardsville National Bank & Trust Co. v.

Marion Laboratories, Inc.,

808 F.2d 648 (7th Cir. 1987) ...............................18

iii

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Election Commission v. Central Long

Island Tax Reform Immediately Committee,

616 F.2d 45 (2d Cir. 1980) ..................................15

Florida Lime & Avocado Growers, Inc. v.

Jacobsen,

362 U.S. 73 (1960) .................................................7

Franchise Services of North America, Inc. v. U.S.

Trustee (In re Franchise Services of North

America, Inc.),

891 F.3d 198 (5th Cir. 2018) ...............................10

Greenwich Financial Services Distressed

Mortgage Fund 3 LLC v. Countrywide

Financial Corp.,

603 F.3d 23 (2d Cir. 2010) ..................................12

Hammer v. U.S. Department of Health & Human

Services,

905 F.3d 517 (7th Cir. 2018) ...............................20

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ...............................................19

In re Nortel Networks Inc.,

737 F.3d 265 (3d Cir. 2013) ................................10

In re Wade,

926 F.3d 447 (7th Cir. 2019) ...............................10

Khachaturian v. Federal Election Commission,

980 F.2d 330 (5th Cir. 1992) ...............................15

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) ......................... 18, 20

Marshall v. Blake,

885 F.3d 1065 (7th Cir. 2018) .............................10

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Merrell Dow Pharmaceuticals Inc. v. Thompson,

478 U.S. 804 (1986) .............................................19

Munaf v. Geren,

553 U.S. 674 (2008) ...............................................7

National Weather Service Employees Org. v.

Federal Labor Relations Authority,

966 F.3d 875 (D.C. Cir. 2020) ....................... 10, 11

Nevada v. Bank of America Corp.,

672 F.3d 661 (9th Cir. 2012) ...............................11

Quackenbush v. Allstate Insurance Co.,

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

Smith v. Vulcan Iron Works,

165 U.S. 518 (1897) ....................................... 5, 6, 7

Sprint Communications, Inc. v. Jacobs,

571 U.S. 69 (2013) ...............................................19

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) .............................................17

United States v. Barnett,

376 U.S. 681 (1964) .............................................13

United States v. Connolly,

716 F.2d 882 (Fed. Cir. 1983) ...............................9

United States v. Stanley,

483 U.S. 669 (1987) ...............................................5

University of North Carolina at Chapel Hill v.

U.S. Department of Commerce,

701 F.2d 942 (Fed. Cir. 1983) .............................14

Wagner v. Federal Election Commission,

717 F.3d 1007 (D.C. Cir. 2013) ...........................15

v

TABLE OF AUTHORITIES—Continued

Page(s)

White v. Regester,

412 U.S. 755 (1973) ...............................................7

Whitfield v. United States,

543 U.S. 209 (2005) ...............................................5

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

516 U.S. 199 (1996) ...............................................8

Statutes

5 U.S.C. § 7118 ..........................................................10

5 U.S.C. § 7123 ..........................................................10

28 U.S.C. § 158 ...................................................... 9, 10

28 U.S.C. § 1253 ..........................................................7

28 U.S.C. § 1254 ........................................................13

28 U.S.C. § 1291 ..........................................................8

28 U.S.C. § 1292 ............................................ 7, 8, 9, 10

28 U.S.C. § 1295 ........................................................14

28 U.S.C. § 1442 ..........................................................3

28 U.S.C. § 1443 ..........................................................3

28 U.S.C. § 1447 ................................................ passim

28 U.S.C. § 1453 ........................................................11

38 U.S.C. § 7292 .................................................. 13, 14

42 U.S.C. § 8514 ........................................................16

52 U.S.C. § 30110 ......................................................15

Act of Aug. 13, 1888, 25 Stat. 433 (1888) ...................6

Act of Mar. 3, 1875, 18 Stat. 470 (1875) .....................6

vi

TABLE OF AUTHORITIES—Continued

Page(s)

Act of Mar. 3, 1887, 24 Stat. 552 (1887) .....................5

Act of May 24, 1949, Pub. L. No. 81-72, 63 Stat.

89 (1949) ................................................................6

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

901, 78 Stat. 241, 266 ...........................................5

Judiciary Act of 1891, 26 Stat. 826.............................6

Rules

Federal Rule of Appellate Procedure 38 ...................20

Federal Rule of Civil Procedure 11 ...........................20

Supreme Court Rule 19.............................................13

Supreme Court Rule 37.6............................................1

Other Authorities

110 Cong. Rec. 6,955 (1964) ......................................19

15A Charles Alan Wright et al., Federal Practice

& Procedure § 3914.11 (2d ed.) ..................... 18, 21

H.R. Rep. 112-17 (2011) ............................................19

Rhonda Wasserman, Rethinking Review of

Remands: Proposed Amendments to the

Federal Removal Statute, 43 Emory L.J. 83,

90 (1994) .......................................................... 6, 17

1

BRIEF OF AMICUS CURIAE DRI–THE VOICE

OF THE DEFENSE BAR IN SUPPORT OF

PETITIONERS1

INTEREST OF AMICUS CURIAE

DRI–The Voice of the Defense Bar is an

international organization of approximately 16,000

attorneys involved in the defense of civil litigation.

DRI is committed to enhancing the skills,

effectiveness, and professionalism of defense

attorneys. Because of this commitment, DRI seeks to

promote the role of defense attorneys, to address

issues germane to defense attorneys and their clients,

and to improve the civil justice system. DRI has long

participated in the ongoing effort to make the civil

justice system fairer, more consistent, and more efficient. To promote these objectives, DRI, through its

Center for Law and Public Policy, participates as

amicus curiae in cases that raise issues important to

its members, their clients, and the judicial system.

1 Pursuant to this Court’s Rule 37.6, amicus curiae states that

this brief was not authored in whole or in part by counsel for any

party, and that no person or entity other than amicus curiae and

its counsel made a monetary contribution to the preparation or

submission of this brief. The parties have granted blanket

consent to the filing of amicus curiae briefs.

2

DRI’s interest in this case arises from its support

for securing defendants’ rights to a federal forum and

correcting trial-court errors. Cases that are removable

under the federal-officer or civil-rights removal

statutes may also be removable on other grounds. Full

review of a remand order, not just particular grounds

for that order, is important to civil defense attorneys,

their clients, and the civil justice system because it

ensures that cases properly removed to federal court

stay in federal court.

3

SUMMARY OF ARGUMENT

This case presents a straightforward question:

when Congress authorized appellate review of “an

order remanding a case to the State court from which

it was removed pursuant to section 1442 or 1443,”

28 U.S.C. § 1447(d) (emphasis added), did it authorize

appellate review of all grounds for removal at issue in

the order or just the section 1442 or 1443 ground? As

petitioners correctly explain, § 1447(d)’s plain text

calls for plenary review.

A comparison of § 1447(d) to other statutes in the

U.S. Code confirms that petitioners’ plain-text

reading is correct. Congress, dating to the 19th

century, has enacted statutes that define an appellate

court’s scope of review at the level of an “order.” This

Court and others have understood such statutes to

mean what they say: when a statute authorizes

review of an “order,” the entire order comes before the

appellate court. By contrast, Congress has enacted

statutes that limit the scope of appellate review to

particular questions, which courts have properly

understood to cabin their jurisdiction. Section

1447(d), which allows for appeal from an “order,” falls

into the former category of statutes.

Reading the statute to allow appellate review of

the entirety of an order likewise comports with

Congress’s policy behind § 1447(d) and federal

jurisdiction more generally. Congress enacted the

general prohibition on review of remand orders either

to relieve this Court’s docket at a time when

intermediate appellate courts did not exist or to

hasten the resolution of removed cases. Either way,

when it decided to allow appeals from orders

remanding cases removed under the civil-rights or

4

federal-officer removal statutes, Congress set aside

those interests. Congress having done so, there is no

compelling basis for a court of appeals not to review a

remand order in its entirety. Both experience and the

possibility of sanctions suggest that the risk of

frivolous assertions of the civil-rights or federal-officer

removal statutes to secure the possibility of appellate

review is low. And the federal interests that undergird

federal jurisdiction counsel in favor of complete

review.

For all these reasons, this Court should reverse

the Fourth Circuit’s judgment and hold that § 1447(d)

authorizes complete review of a remand order in a

case removed under the civil-rights or federal-officer

removal statutes.

ARGUMENT

I.

Appellate review of all grounds at issue in a

remand order is compelled by Congress’s

use of the word “order” in § 1447(d).

Section 1447(d) articulates the general rule that

“[a]n order remanding a case to the State court from

which it was removed” is not reviewable on appeal. 28

U.S.C. § 1447(d) (emphasis added). It also creates an

exception for certain remand orders: “[a]n order

remanding a case to the State court from which it was

removed pursuant to” the civil-rights and federalofficer removal statutes is reviewable. Ibid. (emphasis

added). As petitioners’ brief demonstrates, under a

plain reading, § 1447(d) permits review of all grounds

encompassed in a remand order if the case was

removed, in whole or in part, under the civil-rights or

federal-officer removal statutes.

5

Congress’s choice to authorize appellate review at

the level of orders, rather than particular questions or

grounds, reinforces this conclusion. Section 1447(d) is

syntactically indistinguishable from numerous

statutes that courts have interpreted to allow for

plenary appellate review. By contrast, Congress has

enacted other statutes providing only for review of a

particular issue or question, “clearly demonstrating

that it knows how to impose such a [limitation] when

it wishes to do so.” Whitfield v. United States, 543 U.S.

209, 216 (2005).

A. Congress has long defined scopes of

review at the level of an “order,” which

courts have understood to permit review

of the entire order.

For more than a century, this Court and lower

courts have understood that a statute permitting an

appeal to be taken from an “order” authorizes,

“according to its grammatical construction and

natural meaning, an appeal to be taken from the

whole of such . . . order.” Smith v. Vulcan Iron Works,

165 U.S. 518, 524–25 (1897); see also United States v.

Stanley, 483 U.S. 669, 677 (1987) (“Even if the Court

of Appeals’ jurisdiction is not confined to the precise

question certified by the lower court (because the

statute brings the ‘order,’ not the question, before the

court), that jurisdiction is confined to the particular

order appealed from.” (emphasis added)). The

exception in § 1447(d), which was first enacted as part

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

901, 78 Stat. 241, 266, is no different.2

2 Congress enacted the predecessor to § 1447(d) in 1887. Act of

Mar. 3, 1887, ch. 373, 24 Stat. 552, 553, as amended by Act of

6

a) Section 7 of the Evarts Act.

To start, Congress created the U.S. courts of

appeals when it enacted the Judiciary Act of 1891,

commonly known as the Evarts Act. Judiciary Act of

1891, 26 Stat. 826. Like the modern Judicial Code, the

Evarts Act generally allowed for appeals only from

final decisions. § 6, 26 Stat. at 828. Section 7

contained an exception for interlocutory orders

granting or continuing injunctions:

[W]here, upon a hearing in equity in a district

court . . . , an injunction shall be granted or

continued by interlocutory order or decree, . . .

an appeal may be taken from such

interlocutory order or decree granting or

continuing such injunction to the circuit court

of appeals . . . .

§ 7, 26 Stat. at 828 (emphasis added).

Shortly after its enactment, this Court considered

whether the exception restricted appellate review “to

that part of [the order] which grants the injunction,”

or instead allowed a court of appeals to “consider and

decide the merits of the case.” Smith, 165 U.S. at 520.

It reasoned that the “grammatical construction and

Aug. 13, 1888, ch. 866, 25 Stat. 433 (correcting errors in enrolled

bill). Under then-prevailing law, remand orders were appealable

to this Court. Act of Mar. 3, 1875, ch. 137, § 5, 18 Stat. 470, 472;

see also Rhonda Wasserman, Rethinking Review of Remands:

Proposed Amendments to the Federal Removal Statute, 43 Emory

L.J. 83, 90 (1994) (reporting that, although review was not

expressly authorized by statute until 1875, this Court reviewed

remand orders between 1789 and 1875). The 1887 law contained

no exceptions. 24 Stat. at 553. Congress enacted the modern

version of § 1447(d) in 1949. Act of May 24, 1949, Pub. L. No. 8172, § 84, 63 Stat. 89, 102. It also contained no exceptions until

the passage of the Civil Rights Act of 1964.

7

natural meaning” of the exception—allowing an

appeal from an “order”—authorized a court of appeals

to consider “the whole of such interlocutory order or

decree, and not . . . that part of it only which grants or

continues an injunction.” Id. at 524–25. This Court

continues to apply the same reasoning in cases under

28 U.S.C. § 1292(a)(1), the successor to section 7 of the

Evarts Act. E.g., Munaf v. Geren, 553 U.S. 674, 691

(2008).

b) 28 U.S.C. § 1253.

The Judicial Code contains a similar provision for

appeals to this Court from injunction orders entered

by a three-judge district court:

Except as otherwise provided by law, any

party may appeal to the Supreme Court from

an order granting or denying, after notice and

hearing, an interlocutory or permanent

injunction in any civil action, suit or

proceeding required by any Act of Congress to

be heard and determined by a district court of

three judges.

28 U.S.C. § 1253 (emphasis added). This Court has

long held that § 1253 gives this Court “jurisdiction of

the entire appeal,” not just those claims that

occasioned the convening of the three-judge district

court. White v. Regester, 412 U.S. 755, 761 (1973); see

also Fla. Lime & Avocado Growers, Inc. v. Jacobsen,

362 U.S. 73, 84 (1960) (“[T]he cases since 1925 have

continued to maintain the view that if the

constitutional claim against the state statute is

substantial, a three-judge court is required to be

convened and has jurisdiction, as do we on direct

appeal, over all grounds of attack against the

statute.”).

8

c) 28 U.S.C. § 1292(b).

In general, the Judicial Code allows for appeals

only from final decisions. See 28 U.S.C. § 1291; id.

§ 1292(a). Section § 1292(b) contains a limited

exception to that rule. It provides, in relevant part, as

follows:

When a district judge, in making in a civil

action an order not otherwise appealable

under this section, shall be of the opinion 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, he

shall so state in writing in such order. The

Court of Appeals . . . may thereupon, in its

discretion, permit an appeal to be taken from

such order . . . .

Id. § 1292(b) (emphasis added).

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

U.S. 199 (1996), this Court held that § 1292(b) means

what it says: “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.” 516 U.S. at 205. An appellate court may

therefore “address any issue fairly included within the

certified order because ‘it is the order that is

appealable, and not the controlling question identified

by the district court.’ ” Ibid. (quoting 9 J. Moore & B.

Ward, Moore’s Federal Practice ¶ 110.25[1], p. 300 (2d

ed. 1995)).

9

d) 28 U.S.C. § 1292(d)(2).

The Judicial Code contains a like provision

regarding interlocutory appeals from the Court of

Federal Claims to the Federal Circuit:

[W]hen any judge of the United States Court

of Federal Claims, in issuing an interlocutory

order, includes in the order a statement that a

controlling question of law is involved with

respect to which there is a substantial ground

for difference of opinion and that an

immediate appeal from that order may

materially advance the ultimate termination

of the litigation, the United States Court of

Appeals for the Federal Circuit may, in its

discretion, permit an appeal to be taken from

such order . . . .

28 U.S.C. § 1292(d)(2) (emphasis added). The Federal

Circuit has long recognized that § 1292(d)(2) does not

confine “the nature and scope of [its] review . . . to the

certified question” but rather leaves the court “free to

consider all questions material to the trial court’s

order.” United States v. Connolly, 716 F.2d 882, 885

(Fed. Cir. 1983) (en banc).

e) 28 U.S.C. § 158(d)(2).

Similarly, under 28 U.S.C. § 158(d)(2), a court of

appeals may, in its discretion, accept an appeal

directly from a bankruptcy court’s “judgment, order,

or decree,” bypassing intermediate review by the

district court or bankruptcy appellate panel. A court

of appeals may accept such an appeal only under

certain conditions, including when either the lower

courts or the parties certify, inter alia, that

10

(i) the judgment, order, or decree involves a

question of law as to which there is no

controlling decision of the court of appeals for

the circuit or of the Supreme Court of the

United States, or involves a matter of public

importance; [or]

(ii) the judgment, order, or decree involves a

question of law requiring resolution of

conflicting decisions.

28 U.S.C. § 158(d)(2)(i)–(ii).

Acknowledging the syntactical similarity between

§ 158(d)(2) and § 1292(b), all of the circuits to have

addressed the question have held that § 158(d)(2) does

not limit review to the particular question certified.

Franchise Servs. of N. Am., Inc. v. U.S. Tr. (In re

Franchise Servs. of N. Am., Inc.), 891 F.3d 198, 205–

06 (5th Cir. 2018); Marshall v. Blake, 885 F.3d 1065,

1072 n.6 (7th Cir. 2018), overruled on other grounds

by In re Wade, 926 F.3d 447 (7th Cir. 2019); In re

Nortel Networks Inc., 737 F.3d 265, 273 (3d Cir. 2013)

(citing § 1292(b) precedent).

f)

5 U.S.C. § 7123(a).

Outside the context of § 1292(b) and its analogues,

5 U.S.C. § 7123(a) provides that a party may appeal a

“final order” issued by the Federal Labor Relations

Authority concerning an arbitration award only if “the

order involves an unfair labor practice under” 5 U.S.C.

§ 7118. 5 U.S.C. § 7123(a)(1). The D.C. Circuit

recently explained that the “most natural

interpretation of this provision is that so long as the

order disposes of an unfair labor practice claim . . . the

court has jurisdiction to review it.” Nat’l Weather

Serv. Emps. Org. v. Fed. Labor Relations Auth., 966

F.3d 875, 879–80 (D.C. Cir. 2020). And “[b]y granting

11

the court jurisdiction to review the entire order, the

statute forecloses the . . . view that the court may

review only the portion of the order that discusses the

alleged unfair labor practice.” Id. at 880 (emphasis

added).

g) 28 U.S.C. § 1453(c)(1).

The Class Action Fairness Act of 2005 provides

another example. Consistent with its stated purpose

to expand federal jurisdiction so class actions may be

heard in federal court, e.g., S. Rep. 109–14, at 4–5

(2005), the Act established special provisions for the

removal of such cases. Among those provisions is one

authorizing appeals from orders granting or denying

a motion to remand:

Section 1447 shall apply to any removal of a

case under this section, except that

notwithstanding section 1447(d), a court of

appeals may accept an appeal from an order of

a district court granting or denying a motion

to remand a class action to the State court

from which it was removed if application is

made to the court of appeals not more than 10

days after entry of the order.

28 U.S.C. § 1453(c)(1) (emphasis added). Three

circuits have held that, because § 1453(c) gives

jurisdiction over appeals from an “order,” a court of

appeals may consider a remand order in its entirety.

Nevada v. Bank of Am. Corp., 672 F.3d 661, 672–73

(9th Cir. 2012) (“[B]ecause § 1453(c)(1) permits

appellate review of remand orders ‘notwithstanding

section 1447(d),’ we have the discretion to entertain

the issue of whether another basis for federal

jurisdiction exists that would justify the district

court’s denial of Nevada’s motion.”); Coffey v. Freeport

12

McMoran Copper & Gold, 581 F.3d 1240, 1247 (10th

Cir. 2009) (per curiam) (“There is no language [in the

statute] limiting the court’s consideration solely to the

CAFA issues in the remand order.”); Brill v.

Countrywide Home Loans, Inc., 427 F.3d 446, 451–52

(7th Cir. 2005) (same as Bank of America). But see

City of Walker v. Louisiana, 877 F.3d 563, 567 (5th

Cir. 2017) (acknowledging that circuit precedent could

be read to prohibit the court “from considering an

entire order when a defendant removes on both CAFA

and federal question grounds”); Anderson v. Bayer

Corp., 610 F.3d 390, 394 (7th Cir. 2010) (concluding

that the court lacked jurisdiction to consider an

alternative ground for federal jurisdiction after

determining that the case was not a class action under

CAFA); Greenwich Fin. Servs. Distressed Mortg. Fund

3 LLC v. Countrywide Fin. Corp., 603 F.3d 23, 27–28

(2d Cir. 2010) (same, after determining that a CAFA

exception applied).

B. When Congress intends to limit review to

particular questions, it says so explicitly.

By contrast, when Congress wishes to limit the

scope of review of a particular decision, it expresses

that wish clearly.

a) 28 U.S.C. § 1254.

To begin, although cases most often come before

this Court by writ of certiorari, the Judicial Code

provides an alternative path. This Court may review

a case in a court of appeals

[b]y certification at any time by a court of

appeals of any question of law in any civil or

criminal case as to which instructions are

desired, and upon such certification the

13

Supreme Court may give binding instructions

or require the entire record to be sent up for

decision of the entire matter in controversy.

28 U.S.C. § 1254(2) (emphasis added). This Court has

long recognized that the default rule under this

provision is that “[n]othing can come before this Court

. . . except such single definite questions as shall

actually arise and become the subject of disagreement

in the Court below, and be duly certified here for

decision.” United States v. Barnett, 376 U.S. 681, 689

n.6 (1964) (emphasis added) (quoting Ward v.

Chamberlain, 67 U.S. 430, 434–35 (1862)); accord

Cleveland-Cliffs Iron Co. v. Arctic Iron Co., 248 U.S.

178, 180 (1918) (the statute may not be used “to

become the instrument by which the division of

powers made by the statute would be disregarded”);

see also S. Ct. R. 19. All other matters “remain in the

Court below to be determined by the Circuit Judges.”

Barnett, 376 U.S. at 689 n.6.

b) 38 U.S.C. § 7292.

Congress has narrowly circumscribed the scope of

the Federal Circuit’s jurisdiction and review of

decisions of the Court of Appeals for Veterans Claims

(the “Veterans Court”). Under 38 U.S.C. § 7292(c), the

circuit has “exclusive jurisdiction to review and decide

any challenge to the validity of any statute or

regulation or any interpretation thereof brought

under this section, and to interpret constitutional and

statutory provisions, to the extent presented and

necessary to a decision.” 38 U.S.C. § 7292(c). Section

7292(d) further provides that, in such appeals, the

Federal Circuit “shall decide all relevant questions of

law” and, “[e]xcept to the extent that an appeal . . .

presents a constitutional issue, . . . may not review

14

(A) a challenge to a factual determination, or (B) a

challenge to a law or regulation as applied to the facts

of a particular case.” 38 U.S.C. § 7292(d)(1)–(2)

(emphasis added).

The Federal Circuit construes these statutes to

limit its review of a Veterans Court decision only to

questions of law unless the case presents a

constitutional issue. E.g., Conway v. Principi, 353

F.3d 1369, 1372 (Fed. Cir. 2004) (“[W]hile we can

review questions of law, we cannot review

applications of law to fact.”).

c) 28 U.S.C. § 1295(a)(7).

Congress also has circumscribed the Federal

Circuit’s jurisdiction to review certain tariff-related

findings by the Secretary of Commerce. In that

context—and unlike in other contexts specified in the

same statute3—the Federal Circuit’s jurisdiction is

limited to reviewing “questions of law only.” 28 U.S.C.

§ 1295(a)(7). The Federal Circuit has held that,

because it may review only questions of law, its review

of the facts is highly circumscribed. Univ. of N.C. at

Chapel Hill v. U.S. Dep’t of Commerce, 701 F.2d 942,

944 (Fed. Cir. 1983) (citing Univ. of Cincinnati Med.

Ctr. v. U.S. Dep’t of Commerce, 537 F.2d 518, 522

(C.C.P.A. 1976)).

d) 52 U.S.C. § 30110.

The Federal Election Campaign Act contains an

expedited review procedure for “questions of

3 For instance, the statute gives the Federal Circuit jurisdiction

over “final decision[s]” of the U.S. Court of International Trade

and “final determinations” of the U.S. International Trade

Commission. 28 U.S.C. § 1295(a)(5)–(6).

15

constitutionality” regarding the Act. It provides that

certain parties

may institute such actions in the appropriate

district court of the United States, including

actions for declaratory judgment, as may be

appropriate to construe the constitutionality

of any provision of this Act. The district court

immediately shall certify all questions of

constitutionality of this Act to the United

States court of appeals for the circuit involved,

which shall hear the matter sitting en banc.

52 U.S.C. § 30110. This provision has been

interpreted to give the en banc courts of appeals

jurisdiction only over nonfrivolous constitutional

challenges to the Act. See Cal. Med. Ass’n v. Fed.

Election Comm’n, 453 U.S. 182, 192 n.14 (1981) (“[W]e

do not construe § 437h to require certification of

constitutional claims that are frivolous . . . or that

involve purely hypothetical applications of the statute

. . . or in cases where the resolution of such questions

required a fully developed factual record.”); Wagner v.

Fed. Election Comm’n, 717 F.3d 1007, 1012 (D.C. Cir.

2013) (statute vests exclusive original jurisdiction to

hear the merits of constitutional challenges to the

FECA in the en banc court of appeals); Khachaturian

v. Fed. Election Comm’n, 980 F.2d 330, 331 (5th Cir.

1992) (en banc) (per curiam) (“If no colorable

constitutional claims are presented on the facts as

found by the district court, it should dismiss the

complaint. If it concludes that colorable constitutional

issues are raised from the facts, it should certify those

questions to us.”); Fed. Election Comm’n v. Cent. Long

Island Tax Reform Immediately Comm., 616 F.2d 45,

51 (2d Cir. 1980) (“[T]he usual en banc jurisdiction

16

vested in us by [§ 30110] is limited to ‘questions of

constitutionality’ . . . .”).

e) 42 U.S.C. § 8514.

A similar expedited review procedure exists under

the Emergency Energy Conservation Act of 1979,

which allows states to challenge certain actions taken

by the President or the Secretary of Energy. In such

circumstances,

[t]he district court shall determine the

questions of law and upon such determination

certify such questions immediately to the

United States court of appeals for the circuit

involved, which shall hear the matter sitting

en banc.

42 U.S.C. § 8514(a)(2). Although no court has

interpreted the scope of review under the statute,

there is little reason to think a court would interpret

it any differently from the foregoing statutes, each of

which limit the appellate court’s review to particular

questions, not an entire order or case.

*

*

*

The foregoing examples illustrate that Congress

knows how to limit the scope of appellate review when

it so desires. Congress has enacted statutes

authorizing an appeal from an “order” since well

before it passed the civil-rights and federal-officer

exceptions in § 1447(d). For nearly as long, courts

have understood that such statutes confer appellate

jurisdiction over an entire order, not just particular

questions or arguments contained therein. The word

“order” as used in § 1447(d) should carry the same

meaning.

17

II. Appellate review of all grounds at issue in a

remand order is compatible with Congress’s

policy in enacting § 1447(d).

Plenary review of a remand order not only is

consistent with Congress’s use of the word “order” but

also is compatible with its policy. There is good reason

to think that Congress originally enacted the

prohibition on appellate review of remand orders to

relieve this Court’s docket4 following the

Reconstruction-era expansion of federal jurisdiction.

See Wasserman, supra, at 100–02 (discussing

background to the enactment of the predecessor to

§ 1447(d)). Nonetheless, the modern understanding is

that Congress enacted the prohibition “to prevent

delay in the trial of remanded cases by protracted

litigation of jurisdictional issues.” Thermtron Prods.,

Inc. v. Hermansdorfer, 423 U.S. 336, 351 (1976),

abrogated in part on other grounds by Quackenbush v.

Allstate Ins. Co., 517 U.S. 706 (1996). Regardless,

there is no evidence that Congress enacted § 1447(d)

because it thought remand orders were categorically

undeserving of appellate review. Plenary review in

cases removed in part under the civil-rights or federalofficer removal statutes therefore does not upset

Congress’s policy in enacting the statute.

To be sure, appellate review of a remand order

adds to the courts of appeals’ dockets and may slow

the resolution of remanded cases. But in cases

involving the civil-rights or federal-officer removal

statutes, Congress already has made the decision to

4 As noted earlier, Congress originally enacted the prohibition

on review of remand orders in 1887, four years before it created

the courts of appeals. See supra note 2. Accordingly, at the time,

appeals from remand orders went directly to this Court.

18

subordinate those interests to a defendant’s interest

in securing a federal forum. Having made that

decision, it is only logical for a court of appeals to

consider all potential grounds for removal and ensure

that the case proceeds in the right court.

To start, declining to review all grounds for

removal would yield few, if any, practical benefits. As

courts and commentators recognize, “[t]he marginal

delay from adding an extra issue to a case where the

time for briefing, argument, and decision has already

been accepted is likely to be small.” Lu Junhong v.

Boeing Co., 792 F.3d 805, 813 (7th Cir. 2015); accord

15A Charles Alan Wright et al., Federal Practice &

Procedure § 3914.11 (2d ed.) (same). One circuit

worries that “adding more complex federal

jurisdictional issues to the appellate docket” may

cause delay. Bd. of Cty. Comm’rs of Boulder Cty. v.

Suncor Energy (U.S.A.) Inc., 965 F.3d 792, 817 (10th

Cir. 2020). But it stands to reason that, at least in

some cases, plenary review may actually speed up

appellate decision making by opening up additional

bases for reversal, some of which may be easier to

resolve than the questions presented by the federalofficer or civil-rights removal statutes. Cf.

Edwardsville Nat’l Bank & Tr. Co. v. Marion Labs.,

Inc., 808 F.2d 648, 651 (7th Cir. 1987) (“[O]nce the

interlocutory appeal has been accepted and the case

fully briefed, it may be possible to decide the validity

of the order without regard to the question that

prompted the appeal.”).

On the other hand, there is much to be gained by

plenary review and the concomitant correction of

erroneous jurisdictional rulings. “[A] federal court’s

‘obligation’ to hear and decide a case” within its

jurisdiction “is ‘virtually unflagging.’ ” Sprint

19

Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 77 (2013)

(quoting Colo. River Water Conserv. Dist. v. United

States, 424 U.S. 800, 817 (1976)). And it goes without

saying that weighty federal interests undergird

federal jurisdiction even outside the civil-rights and

federal-officer removal contexts. See, e.g., Merrell

Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 826–27

(1986) (federal-question jurisdiction promotes

uniformity and provides a forum that is more likely to

correctly apply federal law); Ableman v. Booth, 62

U.S. 506, 520 (1858) (without federal jurisdiction over

federal

claims,

“conflicting

decisions would

unavoidably take place, and the local tribunals could

hardly be expected to be always free from the local

influences”); Hertz Corp. v. Friend, 559 U.S. 77, 85

(2010) (noting “diversity jurisdiction’s basic rationale,

namely, opening the federal courts’ doors to those who

might otherwise suffer from local prejudice against

out-of-state parties”).

Indeed, plenary review is consistent with

Congress’s policy in enacting the exceptions for civilrights and federal-officer cases. Congress enacted

those provisions to ensure that such cases were not

stuck in an inhospitable state forum hostile to federal

rights and interests. See, e.g., 110 Cong. Rec. 6,955–

56 (1964) (statement of Sen. Dodd, floor manager for

remand-order appeal provision in the Civil Rights Act

of 1964); H.R. Rep. 112-17, at 1, 4 (2011) (Judiciary

Committee report on the Removal Clarification Act of

2011). Given its solicitude for keeping such cases in

federal court, it is unlikely that Congress intended to

bar the appellate door to other potentially meritorious

grounds for federal jurisdiction if a defendant’s

assertion of the civil-rights or federal-officer removal

statutes was colorable, if ultimately unsuccessful.

20

Nor is there any reason to think that allowing for

complete review of remand orders will result in a flood

of frivolous assertions of the civil-rights or federalofficer removal statutes to preserve the possibility of

appellate review. The experience in the Seventh

Circuit, which has explicitly endorsed plenary review

for the longest period among the circuits (for

approximately five years, after it decided Lu

Junhong), shows just the opposite. In that period,

defendants in the Seventh Circuit have filed zero

notices of removal citing the civil-rights removal

statute and only six notices of removal citing the

federal-officer removal statute.5 Only three of those

cases resulted in appeals from remand orders.

Notably, all of them addressed only the federal-officer

removal statute and concluded that the defendant

validly asserted it. Baker v. Atl. Richfield Co., 962

F.3d 937 (7th Cir. 2020); Betzner v. Boeing Co., 910

F.3d 1010 (7th Cir. 2018); Hammer v. U.S. Dep’t of

Health & Human Servs., 905 F.3d 517 (7th Cir. 2018).

The available sanctions for frivolous assertions of

the federal-officer and civil-rights removal statutes

suggest that this pattern is likely to continue. Lu

Junhong, 792 F.3d at 813. Both the Federal Rules of

Civil Procedure and the Federal Rules of Appellate

Procedure allow courts to impose sanctions for

frivolous claims, Fed. R. Civ. P. 11(c); Fed. R. App. P.

38, and § 1447 itself provides that a remand order

may require the payment of costs and expenses,

including attorney fees, 28 U.S.C. § 1447(c). Further,

the universe of defendants who plausibly may invoke

5 Amicus curiae determined these figures by reviewing citing

references for the civil-rights and federal-officer removal statutes

reported on Westlaw in documents filed in the district courts

located in the Seventh Circuit.

21

the civil-rights or federal-officer removal statutes is

small, and it grows smaller with each appellate

decision clarifying the scope of the statutes. For all

these reasons, the fear of frivolous removal arguments

“should be put aside against the sorry possibility that

experience will give it color.” Wright et al., supra,

§ 3914.11.

In short, because Congress has subordinated the

interests served by the general prohibition on

appellate review in the context of the civil-rights and

federal-officer removal statutes, no compelling policy

arguments counsel against reviewing all grounds at

issue in an appealable remand order. To the contrary,

complete review would serve the federal interests

undergirding federal jurisdiction and ensure that

cases properly removed to federal court stay in federal

court.

CONCLUSION

For the foregoing reasons, the Court should

reverse the Fourth Circuit’s judgment and hold that

§ 1447(d) authorizes complete review of a remand

order in a case removed under the civil-rights or

federal-officer removal statutes.

22

Respectfully submitted,

EMILY G. COUGHLIN

President

DRI–THE VOICE OF THE

DEFENSE BAR

222 South Riverside

Plaza

Chicago, IL 60606

(312) 795-1101

MATTHEW T. NELSON

Counsel of Record

CHARLES R. QUIGG

WARNER NORCROSS +

JUDD LLP

1500 Warner Building

150 Ottawa Avenue NW

Grand Rapids, MI 49503

(616) 752-2000

mnelson@wnj.com

Counsel for Amicus Curiae

NOVEMBER 20, 2020