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

Supreme Court briefNov 23, 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 UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

JEFFREY B. WALL

Acting Solicitor General

Counsel of Record

JEFFREY BOSSERT CLARK

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

JONATHAN D. BRIGHTBILL

ERIC GRANT

Deputy Assistant Attorneys

General

BRINTON LUCAS

Assistant to the Solicitor

General

JENNIFER SCHELLER NEUMANN

AVI M. KUPFER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether 28 U.S.C. 1447(d) permits a court of appeals

to review any issue encompassed in a district court’s order remanding a removed case to state court where the

removing defendant premised removal in part on the

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

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

(I)

TABLE OF CONTENTS

Page

Interest of the United States....................................................... 1

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

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

Summary of argument ................................................................. 8

Argument:

A court of appeals may review any ground of removal

encompassed in an order remanding a case that was

removed pursuant to 28 U.S.C. 1442 or 1443 .................... 10

A. When its exception applies, the text of Section

1447(d) permits review of the remand “order,” not

just the ground of removal that triggered the

exception ....................................................................... 10

B. This Court’s precedents strongly support the

conclusion that Section 1447(d)’s exception

permits appellate review of the entire remand

order .............................................................................. 17

C. Reading Section 1447(d) to allow appellate review

of the entire remand order is consistent with the

policy balance struck in that provision ........................ 23

Conclusion ................................................................................... 31

TABLE OF AUTHORITIES

Cases:

Abbott v. Perez, 138 S. Ct. 2305 (2018) ................................ 25

American Elec. Power Co. v. Connecticut,

564 U.S. 410 (2011)........................................................ 26, 27

Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019) ......... 30

Bell v. Hood, 327 U.S. 678 (1946) ......................................... 30

Bersch v. Drexel Firestone, Inc., 519 F.2d 974

(2d Cir. 1975), abrogated on other grounds by

Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010).............................................................. 14

(III)

Cases—Continued:

Page

Board of Cnty. Comm’rs v. Suncor Energy (U.S.A.)

Inc., 965 F.3d 792 (10th Cir. 2020) .............................. 15, 16

Brown v. Gardner, 513 U.S. 115 (1994) ............................... 13

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343 (1988) ....... 12

Chevron U.S.A. Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) ..................................................... 19

City of Milwaukee v. Illinois, 451 U.S. 304 (1981) ............ 27

City of Oakland v. BP PLC, 969 F.3d 895

(9th Cir. 2020) ...................................................................... 21

Communications Workers of America v. Beck

487 U.S. 735 (1988).............................................................. 23

Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund

138 S. Ct. 1061 (2018) ......................................................... 23

Dothard v. Rawlinson, 433 U.S. 321 (1977) ........................ 19

Encino Motorcars, LLC v. Navarro,

138 S. Ct. 1134 (2018) ......................................................... 16

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

362 U.S. 73 (1960) ............................................................... 19

International Paper Co. v. Ouellette, 479 U.S. 481

(1987) .................................................................................... 27

Jefferson Cnty. v. Acker, 527 U.S. 423 (1999) ....................... 3

Kircher v. Putnam Funds Trust, 547 U.S. 633

(2006) .............................................................................. 14, 23

Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553

(2017) .................................................................................... 22

Lu Junhong v. Boeing Co., 792 F.3d 805

(7th Cir. 2015) ................................................................ 24, 25

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

Mesa v. California, 489 U.S. 121 (1989) ................................ 3

Milner v. Department of the Navy, 562 U.S. 562

(2011) .................................................................................... 22

Cases—Continued:

Page

National Enameling & Stamping Co., Ex parte,

201 U.S. 156 (1906).............................................................. 25

Noel v. McCain, 538 F.2d 633 (4th Cir. 1976)....................... 6

Osborn v. Haley, 549 U.S. 225 (2007) .................................... 1

Pennsylvania Co., In re, 137 U.S. 451 (1890) ..................... 16

Powerex Corp. v. Reliant Energy Servs., Inc.,

551 U.S. 224 (2007).....................................1, 5, 14, 16, 23, 31

Quackenbush v. Allstate Ins. Co., 517 U.S. 706

(1996) ........................................................................ 12, 16, 21

Rivet v. Regions Bank, 522 U.S. 470 (1998)........................ 28

Sandifer v. United States Steel Corp.,

571 U.S. 220 (2014).............................................................. 11

Shapiro v. McManus, 577 U.S. 39 (2015) ..................... 19, 30

Siler v. Louisville & Nashville R.R., 213 U.S. 175

(1909) .................................................................................... 20

Smith v. Vulcan Iron Works, 165 U.S. 518 (1897) ............. 18

Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336 (1976).......................................................... 4, 16

United States v. Standard Oil Co., 332 U.S. 301

(1947) .............................................................................. 26, 27

United States v. Stanley, 483 U.S. 669 (1987) .................... 17

Vaden v. Discover Bank, 556 U.S. 49 (2009)....................... 28

Watson v. Philip Morris Cos., 551 U.S. 142 (2007)............ 21

Winter v. Natural Res. Def. Council, Inc.,

555 U.S. 7 (2008) ................................................................. 18

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

516 U.S. 199 (1996).......................................1, 7, 8, 17, 19, 20

Constitution, statutes, and rule:

U.S. Const.:

Art. I, § 8, Cl. 9 ................................................................ 30

Constitution, statutes, and rule—Continued:

Page

Art. III:

§ 1 ............................................................................... 31

§ 2, Cl. 2 ...................................................................... 31

Act of Mar. 3, 1887, ch. 373, § 2, 24 Stat. 553 .................. 4, 12

Act of Mar. 3, 1891, ch. 517, § 7, 26 Stat. 828 ...................... 18

Act of May 24, 1949, ch. 139, § 84(d), 63 Stat. 102 ................ 4

Act of Aug. 12, 1976, Pub. L. No. 94-381,

90 Stat. 1119 ........................................................................ 18

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

§ 901, 78 Stat. 266 ................................................................. 5

Class Action Fairness Act of 2005, Pub. L. No. 109-2,

§ 5(a), 119 Stat. 12 ................................................................. 4

Clean Air Act, 42 U.S.C. 7401 et seq. ................................... 27

Clean Water Act, 33 U.S.C. 1251 et seq. .............................. 27

Judiciary Act of 1789, ch. 20, § 12, 1 Stat. 79-80 ................... 2

Removal Clarification Act of 2011, Pub. L. No.

112-51, 125 Stat. 545 ............................................................. 5

28 U.S.C. 1253 ............................................................ 18, 19, 20

28 U.S.C. 1254(2) ................................................................... 14

28 U.S.C. 1291 ........................................................................ 16

28 U.S.C. 1292(a)(1) ............................................................... 18

28 U.S.C. 1292(b) .......................................................... passim

28 U.S.C. 1331 .......................................................................... 2

28 U.S.C. 1441(a) ............................................................... 2, 26

28 U.S.C. 1441(b)(2) ............................................................... 15

28 U.S.C. 1442 .....................................................1, 3, 24, 25, 29

28 U.S.C. 1442(a) ..................................................................... 3

28 U.S.C. 1442(a)(1) ................................................................. 3

28 U.S.C. 1442(a)(2)-(4) ........................................................... 3

28 U.S.C. 1443 .....................................................1, 2, 24, 25, 29

28 U.S.C. 1443(1) ..................................................................... 2

VII

Statutes and rule—Continued:

Page

28 U.S.C. 1443(2) ..................................................................... 3

28 U.S.C. 1446(a) ..................................................................... 2

28 U.S.C. 1446(d) ..................................................................... 2

28 U.S.C. 1447(c) ................................................................ 4, 30

28 U.S.C. 1447(d) (Supp. III 1949) ................................... 4, 11

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

28 U.S.C. 1453(c) .................................................................... 31

28 U.S.C. 1453(c)(1) ................................................................. 4

28 U.S.C. 2281 (1970)............................................................. 18

28 U.S.C. 2284(a) ............................................................. 20, 30

38 U.S.C. 7292(b)(1) ............................................................... 14

Fed. R. Civ. P. 11(b)-(c) ........................................................ 30

Miscellaneous:

Black’s Law Dictionary:

(4th ed. 1951) .................................................................... 11

(10th ed. 2014) .................................................................. 11

H.R. Rep. No. 17, 112th Cong., 1st Sess. Pt. 1 (2011) ........ 24

16 James Wm. Moore et al., Moore’s Federal

Practice (3d ed. 2020) ......................................................... 16

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) ......................... 22

Stephen M. Shapiro et al., Supreme Court Practice

(10th ed. 2013) ..................................................................... 14

10 The Oxford English Dictionary (2d ed. 1989) ............... 11

Webster’s New International Dictionary of the

English Language (2d ed. 1942) ....................................... 11

Webster’s Third New International Dictionary

(1971) .................................................................................... 11

VIII

Miscellaneous—Continued:

Page

Charles Alan Wright et al., Federal Practice and

Procedure:

Vol. 15A:

(2d ed. 1992) ................................................... 23, 24, 30

(2d ed. Supp. 2020)..................................................... 16

Vol. 16 (3d ed. 2012)......................................................... 18

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 UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

This case concerns the scope of appellate review over

orders remanding cases to state courts from which they

were removed pursuant to the federal-officer removal

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

28 U.S.C. 1443. As a frequent litigant, the United States

has a significant interest in the application of statutory

provisions governing federal appellate jurisdiction, including 28 U.S.C. 1447(d)’s exception for cases removed

pursuant to the federal-officer or civil-rights removal

statutes. In previous cases raising similar issues, the

United States has participated as amicus curiae or

through federal parties. See, e.g., Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007); Osborn v.

Haley, 549 U.S. 225 (2007); Yamaha Motor Corp.,

U.S.A. v. Calhoun, 516 U.S. 199 (1996).

(1)

STATUTORY PROVISION INVOLVED

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

provides as follows:

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.

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

STATEMENT

1. Since the Judiciary Act of 1789, Congress has allowed defendants to remove to federal court certain actions brought in state court. See ch. 20, § 12, 1 Stat. 7980. To “effect the removal” of an action to federal court

today, a defendant must file “a notice of removal” in the

relevant federal district court “containing a short and

plain statement of the grounds for removal.” 28 U.S.C.

1446(a) and (d).

Congress has provided defendants with a variety of

grounds for removal. The general removal statute permits the removal of “any civil action brought in a State

court of which the district courts of the United States

have original jurisdiction,” 28 U.S.C. 1441(a), including

cases “arising under the Constitution, laws, or treaties

of the United States,” 28 U.S.C. 1331.

Congress has added specialized removal provisions

over the years. For example, the civil-rights removal

statute, 28 U.S.C. 1443, authorizes removal by three

categories of defendants: (1) those who are “denied or

cannot enforce” rights under laws “providing for the

equal civil rights of citizens of the United States, or of

all persons within the jurisdiction thereof,” 28 U.S.C.

1443(1); (2) federal officers and those acting under them

who are sued or prosecuted “[f ]or any act under color of

authority derived from any law providing for equal

rights,” 28 U.S.C. 1443(2); and (3) state officers who are

sued or prosecuted “for refusing to do any act on the

ground that it would be inconsistent with such law,”

ibid.

Most relevant here, the federal-officer removal statute, 28 U.S.C. 1442, authorizes the United States, a federal agency, a federal officer, “or any person acting under” a federal officer to remove a civil action or criminal

prosecution that is “for or relating to any act under

color of such office or on account of any right, title or

authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection

of the revenue.” 28 U.S.C. 1442(a)(1). Other portions

of Section 1442(a) apply to cases against property holders deriving title from federal officers, officers of federal courts, and officers of either House of Congress.

28 U.S.C. 1442(a)(2)-(4).

When a defendant removes an action under Section

1442(a)(1), the notice of removal must enable the district court to evaluate whether the defendant satisfies

three requirements: (1) that it is a federal officer, a federal agency, or a person “acting under” a federal officer,

28 U.S.C. 1442(a)(1); (2) that it has a “colorable” federal

defense, Mesa v. California, 489 U.S. 121, 129, 139

(1989); and (3) that the suit is for “any act under color

of such office,” 28 U.S.C. 1442(a)(1), because there is “a

nexus, a causal connection between the charged conduct

and asserted official authority,” Jefferson Cnty. v.

Acker, 527 U.S. 423, 431 (1999) (citation and internal

quotation marks deleted).

2. After a case has been removed, it will generally

proceed in federal court. But if the district court determines “at any time before final judgment” that it “lacks

subject matter jurisdiction,” then “the case shall be remanded” to the state court, which may then “proceed

with [the] case.” 28 U.S.C. 1447(c). Since 1887, Congress has circumscribed the ability of appellate courts

to review remand orders. That year, Congress specified

that, if a federal circuit court “shall decide that the

cause was improperly removed, and order the same to

be remanded to the State court from whence it came,”

then the “remand shall be immediately carried into execution, and no appeal or writ of error from the decision

of the circuit court so remanding such cause shall be allowed.” Act of Mar. 3, 1887 (1887 Act), ch. 373, § 2, 24

Stat. 553. A similar provision was “apparently inadvertently omitted from the 1948 revision of the Judicial

Code.” Thermtron Prods., Inc. v. Hermansdorfer, 423

U.S. 336, 360 (1976) (Rehnquist, J., dissenting). But in

1949, Congress recodified a general bar on appellate review by providing that “[a]n order remanding a case to

the State court from which it was removed is not reviewable on appeal or otherwise.” 28 U.S.C. 1447(d) (Supp.

III 1949); see Act of May 24, 1949, ch. 139, § 84(d), 63

Stat. 102.

Congress has, however, created various exceptions

to Section 1447(d)’s appellate-review bar. For example,

the Class Action Fairness Act of 2005 (CAFA), Pub. L.

No. 109-2, § 5(a), 119 Stat. 12, provides that, “notwithstanding section 1447(d),” when an application to a

court of appeals is timely filed, that court “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.” 28 U.S.C.

1453(c)(1); see Powerex Corp. v. Reliant Energy Servs.,

Inc., 551 U.S. 224, 237 (2007) (collecting other statutes

exempting “particular classes of remand orders from

§ 1447(d)”).

And Congress has exempted two categories of cases

in the text of Section 1447(d) itself. In the Civil Rights

Act of 1964, it amended Section 1447(d) to create an exception that allows review of a remand order in any case

that “was removed pursuant to section 1443” (the civilrights removal statute). Pub. L. No. 88-352, Tit. IX,

§ 901, 78 Stat. 266. And in the Removal Clarification

Act of 2011, Pub. L. No. 112-51, 125 Stat. 545, Congress

expanded that exception to include any case that “was

removed pursuant to section 1442” (the federal-officer

removal statute). 28 U.S.C. 1447(d).

3. In 2018, respondent—the local government of the

City of Baltimore—filed this lawsuit in Maryland state

court against 26 multinational oil and gas companies (21

of which are petitioners here). See Pet. 2; Pet. App. 2a,

5a n.3. Respondent alleges that petitioners’ business

practices have contributed to global greenhouse-gas

emissions, resulting in climate-change-related injuries

to the City of Baltimore. Pet. App. 2a-3a. Respondent

asserts a variety of nuisance, products-liability, and

other claims nominally arising under Maryland law. Id.

at 3a.

Two of petitioners removed the case to federal court

based on eight different grounds, including the federalofficer removal statute. Pet. App. 4a-5a. For purposes

of that statute, they contended that they had been “acting under” federal officers based on the contractual relationships that some of them had with the government

over the years, such as an agreement to extract oil and

supply fuel for the Navy. Id. at 70a (citation omitted).

They also invoked the general removal statute, contending that respondent’s claims arise under federal law because, among other things, cross-boundary torts associated with interstate pollution necessarily arise under

federal common law, rather than under state law. Id. at

43a-44a.

Respondent moved to remand the case for lack of

subject-matter jurisdiction. Pet. App. 5a. The district

court granted the motion, rejecting each of the asserted

grounds for removal, and ordered that the case be remanded to state court. Id. at 31a-81a; D. Ct. Doc. 173,

at 1 (June 10, 2019).

Petitioners sought a stay of the remand order pending appeal, which the district court denied. Pet. App.

82a-94a. While observing that “removal of this case

based on the application of federal law presents a complex and unsettled legal question,” id. at 87a, the court

found that petitioners were unlikely to succeed on appeal because Fourth Circuit precedent would limit appellate review to “the issue of federal officer removal,”

id. at 90a. The court of appeals declined to stay the remand order, id. at 95a-96a, as did this Court, J.A. 243.

4. The court of appeals affirmed. Pet. App. 1a-30a.

It first determined that it was bound by circuit precedent holding “that when a case is removed on several

grounds, appellate courts lack jurisdiction to review any

ground other than the one specifically exempted from

§ 1447(d)’s bar on review.” Id. at 7a (citing Noel v.

McCain, 538 F.2d 633 (4th Cir. 1976)). The court

acknowledged that, since Noel, this Court had adopted

a contrary approach in the context of 28 U.S.C. 1292(b),

which authorizes appeals of certified interlocutory orders involving certain questions. Pet. App. 7a-8a. Specifically, this Court had held that jurisdiction to review

an “order” certified for interlocutory appeal under Section 1292(b) permits the court of appeals to “ address

any issue fairly included within the certified order.”

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

205 (1996). The court of appeals nevertheless declined

to apply that “entirely textual” approach when “interpreting the word ‘order’ under § 1447(d).” Pet. App. 8a9a. In the court’s view, “giving the word ‘order’ the

same meaning in the § 1447(d) context” would be inappropriate because Section 1447(d) “mandate[s] review

of issues that are ordinarily unreviewable,” whereas

Section 1292(b) “only affects the timing of review for

otherwise appealable questions.” Id. at 9a. It therefore

held that, in this case, its jurisdiction was limited “to review[ing] the district court’s conclusion that removal

was improper under the federal officer removal statute.” Id. at 10a.

The court of appeals then addressed petitioners’ contention that removal was proper under the federalofficer removal statute. Pet. App. 10a-30a. While acknowledging that “[t]his is a complex case,” id. at 19a

n.9, the court ultimately concluded that petitioners’

three contractual relationships with the federal government over the years were insufficient to justify federalofficer removal, either because petitioners could not establish they had been acting under a federal officer or

because the relationships were “insufficiently related to

[respondent’s] claims.” Id. at 14a.

Having addressed the only ground for removal that

it believed to be within its jurisdiction, the court of appeals “affirm[ed] the district court’s order granting [respondent’s] motion to remand.” Pet. App. 30a.

SUMMARY OF ARGUMENT

A. Although many remand orders are unreviewable,

the second clause of 28 U.S.C. 1447(d) specifies that “an

order remanding a case” that was “removed” from state

court “pursuant to section 1442 or 1443” is “reviewable

by appeal or otherwise.” There is no dispute that this

case was “removed” from state court “pursuant to section 1442.” The entire “order” remanding this case—

and not just certain parts of the reasoning supporting

the remand—is therefore “reviewable by appeal.” Neither respondent nor the court of appeals has satisfactorily explained how the statute’s reference to “an order

remanding a case” can, in the context of a case with multiple asserted grounds of removal, refer only to a “conclusion that removal was improper under the federal officer removal statute.” Pet. App. 10a. Nor can such a

reading flow from the phrase “pursuant to section 1442

or 1443.” That phrase concerns the bases for the case’s

previous removal, not the scope of the court’s remand

order, which necessarily rested here on a rejection of all

asserted grounds of removal. Finally, the fact that the

second clause of Section 1447(d) is an exception is no

justification for giving it anything other than a fair

reading.

B. That straightforward reading of Section 1447(d)

is confirmed by this Court’s precedents. This Court has

repeatedly held that when a court of appeals reviews an

“order” pursuant to other statutes, it may address any

issue fairly included within the “order,” not just the portion of the order that triggered appellate jurisdiction.

See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 516

U.S. 199, 205 (1996). Although the court of appeals

thought that “order” should be given a different meaning in Section 1447(d) to prevent appellate courts from

addressing issues that are otherwise unreviewable, Section 1447(d) makes certain orders, not issues, unreviewable. Had the district court denied respondent’s remand motion, its legal conclusions on all grounds for removal could have been reviewed on appeal. And lower

courts’ contrary decisions do not supply a compelling

reason for this Court to depart from text and precedent.

C. The most natural reading of Section 1447(d) is

also the one that best furthers the provision’s balance

among competing interests: avoiding protracted litigation over jurisdictional issues while protecting certain

defendants from improper remands. Once any appeal

has been allowed, confining the scope of appellate review to conclusions about the federal-officer and civilrights removal statutes is unlikely to materially expedite proceedings—and may in fact delay them if the

court of appeals lacks the flexibility to choose among

different dispositive issues. Ensuring that a remand order is not based on legal error is especially important

when there are multiple potential grounds of federal jurisdiction and the defendant is in the class of persons

entitled to the protections of appellate review.

Nor is a cramped reading of Section 1447(d)’s text

justified as an attempt to keep defendants from exploiting weak grounds of federal-officer or civil-rights removal to secure appellate review of more promising

grounds of removal. The plain reading of the text appropriately aids defendants with multiple potentially

meritorious grounds for removal and aids the judicial

system as a whole, by providing appellate courts with a

menu of options when reviewing a remand order. In any

event, the potential for abuse of the appellate process

can and should be addressed by sanctioning litigants

who make bad-faith arguments or by treating wholly insubstantial assertions as insufficient to create appellate

jurisdiction. If such measures prove insufficient, the ultimate remedy lies with Congress, the Branch constitutionally authorized to alter the scope or pace of appellate review.

ARGUMENT

A COURT OF APPEALS MAY REVIEW ANY GROUND OF

REMOVAL ENCOMPASSED IN AN ORDER REMANDING

A CASE THAT WAS REMOVED PURSUANT TO 28 U.S.C.

1442 OR 1443

Once a defendant removes a case pursuant to the

federal-officer or civil-rights removal statutes, an order

remanding that case can be reviewed under 28 U.S.C.

1447(d). The court of appeals may address any of the

grounds of removal rejected in the course of issuing the

remand order, not merely the district court’s determination that removal was improper under the federalofficer removal statute or the civil-rights removal statute. That conclusion follows from a straightforward

reading of the text, it coheres with this Court’s precedents, and it furthers the balance struck by Congress in

preventing appeals of some but not all remand orders

on the basis of how a case was originally removed.

A. When Its Exception Applies, The Text Of Section 1447(d)

Permits Review Of The Remand “Order,” Not Just The

Ground Of Removal That Triggered The Exception

Section 1447(d) provides that “an order remanding a

case to the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.” 28 U.S.C. 1447(d). There

is no dispute that this “case” was “removed pursuant to

section 1442,” among other grounds. See Pet. App. 4a6a; Br. in Opp. 6-7. Nor is there any disagreement that

the district court’s “order” remanding this “case to the

State court” is “reviewable by appeal or otherwise.”

See Pet. App. 6a-10a; Br. in Opp. 20-21. Instead, the

question here turns on the meaning of the phrase describing what the court of appeals may review: “an order remanding a case.”

1. Because 28 U.S.C. 1447(d) leaves the word “order” undefined, it should “be interpreted as taking [its]

ordinary, contemporary, common meaning,” Sandifer v.

United States Steel Corp., 571 U.S. 220, 227 (2014) (citation omitted). As used in “law,” the word ordinarily

means “any command or direction of a court.” Webster’s

New International Dictionary of the English Language 1716 (2d ed. 1942) (capitalization and emphasis

omitted). That was so when the bar on appellate review

was codified in Section 1447(d) in 1949. See, e.g., ibid.;

Black’s Law Dictionary 1247 (4th ed. 1951) (defining

“order” as “a command or direction authoritatively

given,” and particularly a “direction of a court or judge

made or entered in writing, and not included in a judgment”) (capitalization and emphasis omitted). And it

continued to be so through the 1964 addition and the

2011 expansion of the exception permitting review of remand orders in cases that had been removed under the

civil-rights and federal-officer removal statutes. See,

e.g., Black’s Law Dictionary 1270 (10th ed. 2014) (“A

written direction or command delivered by a government official, esp. a court or judge.”); 10 The Oxford

English Dictionary 905 (2d ed. 1989) (def. 24.a: “Law.

A decision of a court or judge, made or entered in writing[.]”); Webster’s Third New International Dictionary

1588 (1971) (def. 3.d.1: “a command or direction of a

court”).

Section 1447(d)’s reference to “an order remanding

a case” therefore means the district court’s command

that the case must return to state court. That understanding is consistent with the appellate-review bar on

remand orders originally enacted in 1887, which used

“order” and “decision” interchangeably, by providing

that if a federal circuit court “shall decide that the cause

was improperly removed, and order the same to be remanded to the State court from whence it came,” then

“no appeal or writ of error from the decision of the circuit court so remanding such cause shall be allowed.”

1887 Act § 2, 24 Stat. 553 (emphases added).

Here, the “order remanding [the] case,” 28 U.S.C.

1447(d), rested on a rejection of each of petitioners’ asserted grounds for removal. See Pet. App. 31a-81a;

D. Ct. Doc. 173, at 1. Indeed, the district court could

not have done otherwise. When, as here, a defendant

asserts multiple grounds for removal, a district court

cannot remand for lack of subject-matter jurisdiction

without assuring itself that none of those grounds provides a basis for jurisdiction. Because “[f ]ederal courts

have a virtually unflagging obligation to exercise the jurisdiction given,” Quackenbush v. Allstate Ins. Co., 517

U.S. 706, 716 (1996) (citation, ellipsis, and internal quotation marks omitted), a district court that lacks “authority to decline to hear the removed case” cannot

“eliminate[] the case from its docket, whether by a remand or by a dismissal,” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 356 (1988). And because the “order

remanding [the] case” here was “reviewable by appeal”

under 28 U.S.C. 1447(d), the court of appeals had jurisdiction to review any of the district court’s determinations concerning petitioners’ asserted grounds for removal.

2. Eschewing that straightforward reading, the

court of appeals defined “an order remanding a case” to

mean “the district court’s conclusion that removal was

improper under the federal officer removal statute.”

Pet. App. 10a. Neither the court below, other courts of

appeals, nor respondent has offered a persuasive defense for that construction.

a. The court of appeals made limited efforts to reconcile its limited reading with the actual statutory text.

Instead, just as respondent cannot help but describe its

view of what is reviewable as only a “part of the remand

order,” a “portion of the remand order,” or an “issue addressed in a remand order,” Br. in Opp. 8, 14, 22 (internal quotation marks omitted), the court said that it

lacked “jurisdiction to review the entire remand order,”

Pet. App. 7a (emphasis added). The need to add modifiers reinforces that there is no natural way to describe

“an order remanding a case” as including only certain

parts of the reasoning underlying such an order.

The court of appeals’ construction of “order remanding a case” also departs from the “presumption that a

given term is used to mean the same thing throughout

a statute,” which is “at its most vigorous when a term is

repeated within a given sentence.” Brown v. Gardner,

513 U.S. 115, 118 (1994). In providing that an “order

remanding a case to the State court from which it was

removed is not reviewable on appeal or otherwise,” Section 1447(d)’s first clause plainly uses the ordinary understanding of the phrase “order remanding a case” rather than the court of appeals’ narrower reading.

28 U.S.C. 1447(d). In the context of the first clause, this

Court has explained that a single “ ‘order remanding a

case’ to state court” “cannot be disaggregated” into reviewable and unreviewable rulings to evade Section

1447(d)’s appellate-review bar. Kircher v. Putnam

Funds Trust, 547 U.S. 633, 646 n.13 (2006) (citation

omitted); see Powerex Corp. v. Reliant Energy Servs.,

Inc., 551 U.S. 224, 235-236 (2007) (rejecting argument

that “§ 1447(d) does not preclude review of a district

court’s merits determinations that precede the remand,” because the defendant could “point to no District Court order, separate from the remand, to which it

objects”). That is equally true of the second clause: an

“order remanding a case” cannot be disaggregated into

reviewable and unreviewable rulings to evade Section

1447(d)’s exception.

Had Congress wanted to limit reviewability under

Section 1447(d)’s second clause to a particular “question” addressed in a remand order—such as whether

“removal was improper under the federal officer removal statute,” Pet. App. 10a—it knew how to do so.

Other statutes expressly limit the scope of review to

specified “questions” rather than an “order” or “decision.” For instance, under 38 U.S.C. 7292(b)(1), the

Court of Appeals for Veterans Claims may certify a controlling question of law for decision by the Federal Circuit, which “may permit an interlocutory appeal to be

taken on that question.” And Congress has authorized

this Court to review a “question of law” certified by a

court of appeals—review that “brings before the Court

only the points or questions certified,” Stephen M.

Shapiro et al., Supreme Court Practice § 9.2, at 606

(10th ed. 2013), unless the Court affirmatively chooses

to “require the entire record to be sent up for decision

of the entire matter in controversy,” 28 U.S.C. 1254(2).

See Bersch v. Drexel Firestone, Inc., 519 F.2d 974, 994

(2d Cir. 1975) (Friendly, J.) (suggesting that Congress

wrote 28 U.S.C. 1292(b) “differently” from Section

1254(2) to avoid the limitations associated with reviewing only specified questions), abrogated on other

grounds by Morrison v. National Australia Bank Ltd.,

561 U.S. 247 (2010).

b. Respondent has contended (Br. in Opp. 21) that

the court of appeals’ narrow interpretation of Section

1447(d) flows from the phrase “pursuant to Section 1442

or 1443.” But that phrase refers to how the case was

“removed,” and does not modify the reference to the

“order remanding” the case to state court. 28 U.S.C.

1447(d). Here, there is no dispute that petitioners “removed” this case “pursuant to section 1442.”

Nor does it matter that petitioners asserted multiple

grounds for the removal. The Tenth Circuit has suggested that Congress simply did not “contemplate the

situation in which removal is done pursuant to [the civilrights removal statute or federal-officer removal statute] and other grounds.” Board of Cnty. Comm’rs v.

Suncor Energy (U.S.A.) Inc., 965 F.3d 792, 805 (2020)

(Suncor) (citation omitted). But Congress is well aware

that a defendant may invoke multiple grounds of removal. Indeed, the general removal statute specifies

that an “action otherwise removable solely on the basis

of ” diversity jurisdiction “may not be removed if any of

the parties in interest properly joined and served as defendants is a citizen of the State in which such action is

brought.” 28 U.S.C. 1441(b)(2) (emphasis added). And

there is no reason to think Congress sought to make defendants with civil-rights or federal-officer removal

grounds consider forgoing their other potentially meritorious removal grounds simply to preserve their appellate rights.

c. The Tenth Circuit has also concluded that because 28 U.S.C. 1447(d) involves “a scheme whereby a

default rule is subject to an exception,” its exception

must be “construed narrowly.” Suncor, 965 F.3d at 805

(citation omitted). But in the absence of a textual indication that a statutory exception should in fact be “construed narrowly,” courts “have no license to give the exemption anything but a fair reading.” Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018).

In any event, Section 1447(d)’s appellate-review bar

is itself an exception to ordinary principles of appellate

review. In the absence of that bar, the remand order

here, which ended all proceedings in federal court,

would almost certainly be appealable under 28 U.S.C.

1291. * But no one contends that the appellate-review

bar in the first clause of Section 1447(d) should itself be

narrowly construed. Just as that appellate-review bar

should not be read narrowly to expand a court of appeals’ jurisdiction, Powerex Corp., 551 U.S. at 235-238,

the exception in Section 1447(d)’s second clause should

not be read narrowly to contract that jurisdiction.

* See Quackenbush, 517 U.S. at 714 (“When a district court remands a case to a state court, the district court disassociates itself

from the case entirely, retaining nothing of the matter on the federal

court’s docket.”); id. at 715 (casting significant doubt on the correctness of the statement in Thermtron Prods., Inc. v. Hermansdorfer,

423 U.S. 336, 352-353 (1976), that a remand order is not a final judgment and must be reviewed by mandamus); Thermtron, 423 U.S. at

360 (Rehnquist, J., dissenting) (“Congress has made all judgments

‘remanding a cause to the state court final and conclusive.’ ”) (quoting In re Pennsylvania Co., 137 U.S. 451, 454 (1890)); 15A Charles

Alan Wright et al., Federal Practice and Procedure § 3914.11, at 839

(2d ed. Supp. 2020) (concluding that, given the doubt already cast on

the finality discussion in Thermtron, “[a] remand that terminates all

proceedings in a federal court is final”); 16 James Wm. Moore et al.,

Moore’s Federal Practice § 107.156[3][b], at 107-530 (3d ed. 2020)

(“Following Quackenbush, a majority of circuits have held that remand orders are final.”).

B. This Court’s Precedents Strongly Support The Conclusion That Section 1447(d)’s Exception Permits Appellate Review Of The Entire Remand Order

1. This Court’s precedents confirm that appellate

review under Section 1447(d) is not limited to particular

conclusions supporting a remand order that rests on a

rejection of multiple grounds of removal. In interpreting other statutes governing appellate jurisdiction, this

Court has explained that, when an “order” is appealable, “the appellate court may address any issue fairly

included within” that order. Yamaha Motor Corp.,

U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996).

a. In Yamaha, the Court construed 28 U.S.C.

1292(b), which authorizes a court of appeals to accept

review of an otherwise-unreviewable interlocutory “order” when the district court certifies that it “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.” Based on “the

text of § 1292(b),” this Court held that “appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court.” Yamaha, 516 U.S. at 205.

As the Court explained, although the provision is not

available at all unless a specific question has been singled out as worthy of interlocutory review, “it is the order that is appealable, and not the controlling question

identified by the district court.” Ibid. (citation omitted);

see United States v. Stanley, 483 U.S. 669, 677 (1987)

(observing that a “Court of Appeals’ jurisdiction” under

Section 1292(b) “is not confined to the precise question

certified * * * because the statute brings the ‘order,’

not the question, before the court”).

That analysis hardly broke new ground. Since the

late nineteenth century, this Court has taken a similar

approach to the statute authorizing jurisdiction over appeals of interlocutory orders concerning injunctions, today codified at 28 U.S.C. 1292(a)(1). In Smith v. Vulcan

Iron Works, 165 U.S. 518 (1897), the Court considered

Section 1292(a)(1)’s predecessor, which permitted an

appeal to be taken from an “interlocutory order or decree granting or continuing [an] injunction.” Id. at 524

(quoting Act of Mar. 3, 1891, ch. 517, § 7, 26 Stat. 828).

The Court held that the “grammatical construction and

natural meaning” of the statutory text permitted “an

appeal to be taken from the whole of such interlocutory

order or decree, and not from that part of it only which

grants or continues an injunction.” Id. at 525. That approach still controls; a court reviewing an interlocutory

injunctive order may address “the issues necessary to

determine the propriety of the interlocutory order itself.” 16 Charles Alan Wright et al., Federal Practice

and Procedure § 3921.1, at 23 (3d ed. 2012); see Winter

v. Natural Res. Def. Council, Inc., 555 U.S. 7, 31 (2008)

(confirming that in reviewing an interlocutory order

concerning an injunction, this Court has “authority” to

“address the underlying merits of plaintiffs’ claims”).

This Court has applied a similar approach to 28

U.S.C. 1253, which authorizes a direct appeal to this

Court from “an order granting or denying * * * 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.” Until 1976, such courts were often convened to

enable a district court to enjoin a state statute “upon

the ground of the unconstitutionality of such statute,”

28 U.S.C. 2281 (1970), repealed, Act of Aug. 12, 1976,

Pub. L. No. 94-381, 90 Stat. 1119; see Shapiro v.

McManus, 577 U.S. 39, 40-41 (2015). But even when a

constitutional claim was the trigger for a three-judge

district court (and hence for this Court’s appellate jurisdiction), Section 1253 supplied appellate jurisdiction

“over all grounds of attack against the statute,” including statutory ones. Florida Lime & Avocado Growers,

Inc. v. Jacobsen, 362 U.S. 73, 84 (1960) (emphasis omitted); see Dothard v. Rawlinson, 433 U.S. 321, 324 n.5

(1977) (explaining that the Court had jurisdiction over

an appeal from the injunction of “a state law on federal

statutory grounds” by “a properly convened threejudge court”).

b. This approach to interpreting statutes governing

appellate jurisdiction is consistent with the traditional

role of an appellate court—namely, to determine

whether a “legal error resulted in an erroneous judgment.” Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); see, e.g., McClung v.

Silliman, 19 U.S. (6 Wheat.) 598, 603 (1821) (“The question before an appellate Court is, was the judgment correct, not the ground on which the judgment professes

to proceed.”). Under that framework, if a reviewable

order rests on a legal defect—even when that defect is

separate from the reason the order is reviewable—an

appellate court is ordinarily able to address it.

For example, in reviewing an order certified under

Section 1292(b), a court of appeals (or this Court) may

conclude that it is more appropriate to answer a question different from the one that was certified for interlocutory appeal. In Yamaha itself, the district court

concluded that any damages the plaintiffs might recover from an accident in United States waters “would

be governed exclusively by federal maritime law.” 516

U.S. at 204. In light of that conclusion, it proposed that

the court of appeals decide whether three types of damages were in fact recoverable under federal maritime

law. See id. at 203-204. The court of appeals, however,

“determined that an anterior issue was pivotal” and

held that “state-law remedies” applied, id. at 204, and

this Court agreed with that determination, see id. at

206-216. Had review under Section 1292(b) been limited

to “the particular question” in the order rather than

“the order itself,” id. at 205, however, the court of appeals would have been forced either to address a question resting on an incorrect premise or to decline review

and subject the parties to further litigation on the basis

of the district court’s error about an uncertified question.

Similarly, in exercising its mandatory jurisdiction

under Section 1253 over a direct appeal from an order

granting or denying an injunction in a constitutional

challenge to an apportionment of legislative districts,

28 U.S.C. 2284(a), this Court may wish to dispose of the

appeal on statutory grounds to avoid passing on constitutional questions—even though a statutory challenge

alone would not have triggered Section 1253. Cf. Siler

v. Louisville & Nashville R.R., 213 U.S. 175, 191, 193

(1909) (explaining that the Court had jurisdiction “to

decide all the questions in the case” involving a constitutional challenge to a state statute and resolving the

case “without reference to questions arising under the

Federal Constitution”).

2. The court of appeals nevertheless concluded that

it should not give “the word ‘order’ the same meaning in

the § 1447(d) context” that it has elsewhere. Pet. App.

9a. The reasons for that deviation given by the court

and respondent are unpersuasive.

a. The court of appeals reasoned that it should not

apply the ordinary meaning of the word “order” to Section 1447(d) because that would “mandate review of issues that are ordinarily unreviewable.” Pet. App. 9a. In

the court’s view, other appellate-review statutes such as

Section 1292(b) govern “when an appellate court may

review a particular question,” while Section 1447(d) limits “which issues are ‘reviewable on appeal or otherwise.’ ” Ibid. The premise of that argument is incorrect.

Section 1447(d) renders certain remand orders, not

particular legal issues, unreviewable. Had the district

court denied the motion to remand, the court of appeals

would be able to address all of the asserted grounds of

removal at respondent’s behest—either through a certified interlocutory order, see Watson v. Philip Morris

Cos., 551 U.S. 142, 146-147 (2007), or upon review of a

final judgment, see Quackenbush, 517 U.S. at 712.

Thus, in City of Oakland v. BP PLC, 969 F.3d 895

(9th Cir. 2020), the district court denied a motion to remand in a lawsuit filed by the City of Oakland and the

City and County of San Francisco, asserting a publicnuisance claim under California law against five of petitioners here. Id. at 901-903. The court found that it had

federal-question jurisdiction and later granted the defendants’ motion to dismiss the complaint. Ibid. The

plaintiffs appealed, and the Ninth Circuit reviewed the

viability of the federal-question ground of removal and

remanded to allow the district court to address additional grounds of removal. Id. at 903-908, 911.

Of course, when a district court grants a motion to

remand, the first and second clauses of Section 1447(d)

dictate whether the resulting remand order is appealable. But Congress has drawn the line between different

cases, and it has divided appealable and nonappealable

orders on the basis of the grounds on which the cases

were initially removed from state court. There is nothing in the text suggesting that, in cases with appealable

remand orders, Congress further sought to distinguish

between reviewable and unreviewable issues.

b. Respondent also contends (Br. in Opp. 24-26) that

when Congress added the federal-officer removal statute to the second clause of Section 1447(d) in 2011, it

implicitly endorsed the narrower reading of “order”

that had previously been applied by some courts of appeals to cases that were removed under the civil-rights

removal statute.

This Court, however, has “no warrant to ignore clear

statutory language on the ground that other courts have

done so,” even when they have done so for decades.

Milner v. Department of the Navy, 562 U.S. 562, 576

(2011). And even if the text were open to debate, this

Court may presume that Congress adopted a gloss

added by lower courts only where the weight of authority is so substantial that Congress “would have surveyed the jurisprudential landscape and necessarily

concluded that the courts had already settled the question.” Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553,

564 (2017); see Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 325

(2012) (“The criterion ought to be whether the uniform

weight of authority is significant enough that the bar

can justifiably regard the point as settled law.”). Here,

there is no evidence that the 2011 Congress would have

assumed that the narrower reading of “order” would

prevail. To the contrary, since at least 1992, a leading

treatise had clearly articulated the plain-text argument.

Noting that some cases had “held that review is limited

to removability under § 1443,” the treatise explained

that, because the provision “allows review of the ‘order

remanding’ the case, * * * [r]eview should instead be

extended to all possible grounds for removal.” 15A

Wright § 3914.11, at 706 (2d ed. 1992) (emphasis added;

footnote omitted). That reading was then bolstered by

this Court’s 1996 decision in Yamaha. See p. 17, supra.

“[O]nly the most compelling evidence” should convince this Court “that Congress intended * * * identical language” in provisions addressing related subjects

“to have different meanings.” Communications Workers of America v. Beck, 487 U.S. 735, 754 (1988). Such

evidence does not exist here.

C. Reading Section 1447(d) To Allow Appellate Review Of

The Entire Remand Order Is Consistent With The Policy Balance Struck In That Provision

Reading Section 1447(d)’s second clause as permitting review of remand orders, rather than restricting

review to certain conclusions underlying those orders,

also furthers that provision’s careful policy balance

among competing interests.

1. As this Court has explained, Section 1447(d)’s

appellate-review bar “reflects Congress’s longstanding

‘policy of not permitting interruption of the litigation of

the merits of a removed case by prolonged litigation of

questions of jurisdiction.’ ” Powerex Corp., 551 U.S. at

238 (citation omitted). But like any other law, Section

1447(d) does not “pursue[] its purposes at all costs.”

Cyan, Inc. v. Beaver Cnty. Emps. Ret. Fund, 138 S. Ct.

1061, 1073 (2018) (citation omitted). Instead, the provision “specifically excepts” orders remanding particular

“actions from its bar,” Kircher, 547 U.S. at 640 n.7—

namely, those cases removed pursuant to the federalofficer and civil-rights removal statutes. For those two

categories of cases, which present a particular risk of

state-court prejudice, Congress has determined that

the delay associated with an appeal over the question of

the propriety of a federal forum is an acceptable price

to pay in order to help ensure that a case is not erroneously remanded to state court.

a. By authorizing review of “an order” remanding “a

case,” rather than “questions” involving the civil-rights

or federal-officer removal statutes, Section 1447(d) indicates a desire to protect particular defendants from

erroneous remands. When the House Judiciary Committee reported the Removal Clarification Act of 2011,

it explained that Section 1442 was being added to the

second clause of Section 1447(d) in response to concern

that “[r]emand orders under § 1447 are reviewable if

the suit involves civil rights,” but that was not true for

“suits involving Federal officers and § 1442.” H.R. Rep.

No. 17, 112th Cong., 1st Sess. Pt. 1, at 4 (2011). Thus,

special treatment was to be accorded to a case that “involves” civil rights or federal officers, without any suggestion that the concern about an erroneous remand in

such cases was limited to the proper application of Section 1442 and Section 1443 alone.

b. On the other side of the ledger, once a remand order has been appealed under Section 1447(d)’s second

clause, “there is very little to be gained by limiting review” to a particular conclusion in the order. 15A

Wright § 3914.11, at 706 (2d ed. 1992). At that point,

Congress has already authorized the court of appeals

“to take the time necessary to determine the right forum,” and “[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). And where, as here, a court determines

that it is unlikely to reverse the remand order, it can

deny a stay motion so that “the case can continue without delay” in state court. Ibid.; see Pet. App. 95a-96a.

If anything, permitting appellate review of the entire

remand order could expedite the resolution of an appeal

under Section 1447(d). As this Court has recognized in

other contexts, reading jurisdictional statutes to give

“an appellate court * * * jurisdiction to rule on only

part of [a] decision” could “needlessly complicate appellate review.” Abbott v. Perez, 138 S. Ct. 2305, 2321

(2018); see Ex parte National Enameling & Stamping

Co., 201 U.S. 156, 162 (1906) (explaining that if an appellate court “is of [the] opinion that the patent is on its

face absolutely void, it would be a waste of time and an

unnecessary continuance of litigation to simply enter an

order setting aside the injunction and remanding the

case for further proceedings”). The same is true here.

If an appellate court with jurisdiction to review a remand order concludes that removal is justified for a reason other than the ones set forth in Sections 1442 and

1443, it may reverse the district court on that basis

without having to wade into more difficult issues.

c. This case illustrates the potential benefits of applying the traditional approach to appellate review of

an “order” that rests on multiple grounds. The question

of federal-officer removal may be complex or factintensive. Here, the court of appeals devoted over 20

pages of analysis to that question alone. Pet. App. 10a30a. Acknowledging that “[t]his is a complex case,” id.

at 19a n.9, the court considered a variety of contractual

relationships between petitioners and the federal government spanning over 60 years before ultimately concluding that “none of these relationships” justified removal under Section 1442. Id. at 14a; see id. at 14a-30a.

Courts of appeals should have the option of avoiding

that type of lengthy inquiry when there is a more

straightforward jurisdictional ground.

In this case, there may well be a valid alternative basis for federal jurisdiction. Petitioners have focused

(Br. 37-45) on their contention that respondent’s tort

claims necessarily arise under federal common law. As

the United States explained in an amicus brief filed in

City of Oakland—another case brought by localities alleging tort claims against fossil-fuel-producing companies in response to climate-change-related injuries—

claims may be removable under 28 U.S.C. 1441(a) on the

ground that, although nominally couched as state-law

claims, they are inherently and necessarily federal in

nature. See U.S. Amicus Reh’g Br. at 6-12, City of Oakland, supra (No. 18-16663).

Under this Court’s precedents, state law can be

wholly displaced in “matters essentially of federal character,” even when “Congress has not acted affirmatively about the specific question.” United States v.

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

Oil, for instance, this Court held that an action by the

government to recover medical expenses from a company whose truck had harmed a United States soldier

was governed exclusively by federal common law because “the scope, nature, legal incidents and consequences of the relation between persons in service and

the Government are fundamentally derived from federal sources and governed by federal authority.” Id. at

305-306.

As this Court explained in American Electric Power

Co. v. Connecticut, 564 U.S. 410 (2011) (AEP), certain

cross-boundary tort claims associated with air and water pollution involve a subject that “is meet for federal

law governance.” Id. at 422. Before the enactment of

comprehensive federal environmental statutes such as

the Clean Air Act, 42 U.S.C. 7401 et seq., tort claims

“brought by one State to abate pollution emanating

from another State” arose under federal common law.

AEP, 564 U.S. at 421 (collecting cases). Where federal

common law would govern, it ousts state law: “if federal

common law exists, it is because state law cannot be

used.” City of Milwaukee v. Illinois, 451 U.S. 304, 313

n.7 (1981).

Although the enactment of “the Clean Air Act displace[d] federal common law” in that area, AEP, 564

U.S. at 429, that alone does not mean the door was

opened for tort claims based on the common law of an

affected State targeting conduct in another State. This

Court has said “the only state suits that remain available are those specifically preserved by the Act” in its

saving clause—namely, those brought “pursuant to the

law of the source State.” International Paper Co. v.

Ouellette, 479 U.S. 481, 492, 497 (1987) (applying a

nearly identical saving clause under the Clean Water

Act, 33 U.S.C. 1251 et seq.); see AEP, 564 U.S. at 429

(suggesting that Ouellette’s analysis would govern

state-law claims under the Clean Air Act). Any putative

tort claims that seek to apply the law of an affected

State to conduct in another State, by contrast, continue

to arise under “federal, not state, law” for jurisdictional

purposes, given their inherently federal nature, Ouellette, 479 U.S. at 488—even if such claims may be displaced by the Clean Air Act. See AEP, 564 U.S. at 422423, 429; cf. Standard Oil, 332 U.S. at 314 (holding that

an action by the government to secure indemnity from

company that injured a United States soldier was inherently federal but federal courts should not impose that

indemnity in the absence of action by Congress).

In rejecting a similar argument in this case, the district court reasoned that removal was foreclosed by the

“well-pleaded complaint rule,” Pet. App. 44a—the rule

that in the absence of diversity jurisdiction, a statecourt action involving state-law claims ordinarily may

not be removed even when the merits of a federal defense may be the dispositive issue in the litigation. See

Vaden v. Discover Bank, 556 U.S. 49, 59-60 (2009). But

this Court has long recognized that when a plaintiff “has

‘artfully pleaded’ claims” by “ ‘omitting to plead necessary federal questions,’ ” a court “may uphold removal

even though no federal question appears on the face of

the plaintiff ’s complaint.” Rivet v. Regions Bank, 522

U.S. 470, 475 (1998) (citation omitted). Although the

district court suggested that the artful-pleading doctrine is confined to “complete preemption” under federal statutes, Pet. App. 45a, this Court has never limited

that doctrine in that manner.

In cases like this one, where defendants have advanced multiple plausible grounds for removal and the

court of appeals plainly has jurisdiction over a remand

order, there is no reason to blinker the court’s field of

view. The presence of multiple grounds of removal only

increases the likelihood that there is a federal interest

in providing a federal forum for the suit. In such circumstances, courts of appeals should not only be able to

avail themselves of their customary flexibility to choose

among different dispositive issues when reviewing an

order that rests on multiple grounds; they should also

ensure that a case implicating many potential federal

interests really should be remanded to state court because none of the asserted grounds of removal is valid.

Providing that reassurance to the defendants who were

able to remove their cases on the grounds specified by

Congress is consistent with the policy balance that Congress struck by allowing appellate review in those cases.

2. Respondent contends (Br. in Opp. 29) that Congress could not have intended to allow defendants with

“meritless” arguments for removal under Section 1442

or Section 1443 to rely on those provisions “as a hook

for obtaining appellate review of all other asserted

grounds for federal jurisdiction,” and respondent further predicts that allowing review of the entire remand

order will “inevitably” lead to abuses of the appellate

process. Those concerns do not justify a departure from

the most natural reading of the statutory text

a. With respect to the first concern, the traditional

understanding of “order” will not benefit only those defendants who raise “a baseless civil-rights or federalofficer removal argument to obtain appellate” review.

Br. in Opp. 29. As explained above, even when a defendant has a meritorious argument for removal under Section 1442 or Section 1443, it could still be more efficient

or otherwise appropriate for the court of appeals to uphold the removal on another ground rejected by the district court. See pp. 23-25, supra.

b. Nor is there reason to conclude that broader appellate review of remand orders could create incentives

for defendants to make bad-faith or frivolous assertions

of federal-officer or civil-rights removal grounds,

simply to expand the potential for future appellate review of their alternative grounds for removal. That

does not describe this case, as evidenced by the court of

appeals’ lengthy discussion of the federal-officer removal statute. Pet. App. 10a-30a. And, more generally,

“[s]ufficient sanctions are available to deter frivolous

removal arguments” in this area, 15A Wright § 3914.11,

at 706 (2d ed. 1992)—including the ability of a remanding court to “require payment of 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., Fed. R.

Civ. P. 11(b)-(c).

In addition, as petitioners suggest (Br. 36), an assertion of federal-officer or civil-rights removal may be insufficient to sustain the court of appeals’ own jurisdiction if that assertion “clearly appears to be 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). That would be analogous to this Court’s conclusion that a wholly insubstantial and frivolous constitutional claim would not trigger

a mandatory referral to a three-judge district court under 28 U.S.C. 2284(a). Shapiro, 577 U.S. at 45-46.

3. Finally, if experience reveals that the plainmeaning interpretation of Section 1447(d) results in

gamesmanship with non-frivolous, but weak, invocations of the federal-officer or civil-rights removal statutes, or that it results in undue delays in appeals of remand orders in certain cases, the solution will lie with

“Congress, which—unlike the courts—is both qualified

and constitutionally entitled to weigh the costs and benefits of different approaches and make the necessary

policy judgment.” Azar v. Allina Health Servs., 139

S. Ct. 1804, 1816 (2019).

Congress is charged with defining the extent of, and

exceptions to, appellate jurisdiction in the courts of appeals and this Court. See U.S. Const. Art. I, § 8, Cl. 9;

Art. III, § 1; Art. III, § 2, Cl. 2. It could amend Section

1447(d) to adopt respondent’s view, limiting appellate

review to certain issues supporting a reviewable remand order. Or it could provide for accelerated or discretionary review, as it has done in CAFA with respect

to certain orders granting or denying motions to remand in class actions, 28 U.S.C. 1453(c). But until it has

done so, the possibility of undesirable consequences is

no basis for this Court to adopt the court of appeals’ unduly narrow construction of Section 1447(d)’s second

clause. “As far as the Third Branch is concerned, what

the text of § 1447(d) indisputably does prevails over

what it ought to have done.” Powerex Corp., 551 U.S. at

237-238.

CONCLUSION

The judgment of the court of appeals should be vacated or reversed, and the case remanded for further

proceedings.

Respectfully submitted.

JEFFREY B. WALL

Acting Solicitor General

JEFFREY BOSSERT CLARK

Assistant Attorney General

CURTIS E. GANNON

Deputy Solicitor General

JONATHAN D. BRIGHTBILL

ERIC GRANT

Deputy Assistant Attorneys

General

BRINTON LUCAS

Assistant to the Solicitor

General

JENNIFER SCHELLER NEUMANN

AVI M. KUPFER

Attorneys

NOVEMBER 2020

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.