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

Supreme Court briefDec 16, 2020

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No. 19-1189

In The

Supreme Court of the United States

BP p.l.c., et al.,

Petitioners,

Mayor & City Council of Baltimore,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR RESPONDENT

MAYOR & CITY COUNCIL OF BALTIMORE

Dana P. Moore

altimore City Law

Department

100 N. Holliday Street,

Suite 109

Baltimore, MD 21202

Victor M. Sher

Counsel of Record

Matthew K. Edling

Michael Burger

Martin D. Quiñones

Quentin C. Karpilow

her Edling LLP

100 Montgomery St.,

Ste. 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

Mosaic - (301) 927-3800 - Cheverly, MD

49261_Ltrhd.indd

6/11/08

12:44:0

QUESTION PRESENTED

Whether 28 U.S.C. 1447(d) entitles a defendant, by

including a meritless federal-officer or civil-rights

ground for federal jurisdiction in a removal petition,

to appellate review of every ground for removal

rejected by the district court’s remand order.

iii

TABLE OF CONTENTS

INTRODUCTION.............................................

Page

STATEMENT....................................................

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

ARGUMENT.....................................................

I. The Text, Context, and Structure of

Section 1447(d) Limit Appellate Review

of Removal Grounds to Those

Enumerated in the Exception Clause.....

A. The Exception Clause of Section

1447(d) Authorizes Appellate Review

Only to the Extent Remand Was

Denied on an Enumerated Removal

Ground................................................

B. This Case Was Not Removed

“Pursuant to” Section 1442 or

1443.....................................................

II. In 2011, Congress Ratified Five Decades

of Unanimous Judicial Authority that

Construed the Exception Clause as

Authorizing Review Only of Its

Enumerated Removal Grounds..............

III. Limiting Review Under the Exception

Clause to Section 1442 and 1443

Removal Grounds Best Advances the

Purposes of Section 1447(d)....................

IV. The Court Should Not Reach

Petitioners’ “Arising-Under”

Jurisdiction Arguments...........................

TABLE OF CONTENTS—Continued

Page

A. Petitioners Have Not Preserved

Their “Arising-Under” Jurisdiction

Arguments..........................................

B. Petitioners Mischaracterize

Respondent’s State-Law Claims

and Federal Law................................

CONCLUSION..................................................

TABLE OF AUTHORITIES

Page

Cases

Abney v. United States,

431 U.S. 651 (1977)..................................

5, 13, 37

Alabama v. Conley,

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

Alden v. Maine,

527 U.S. 706 (1999)..................................

7, 25, 26

All. Envtl., Inc. v. Harrison W. Constr. Corp.,

94 F.3d 644 (6th Cir. 1996)...........................

Am. Elec. Power Co. v. Connecticut,

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

Andrus v. Glover Constr. Co.,

446 U.S. 608 (1980).......................................

Appalachian Volunteers, Inc. v. Clark,

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

Ario v. Underwriting Members of Syndicate 53,

618 F.3d 277 (3d Cir. 2010)..........................

Atl. Richfield Co. v. Christian,

140 S. Ct. 1335 (2020)...................................

Ballard’s Serv. Ctr., Inc. v. Transue,

865 F.2d 447 (1st Cir. 1989).........................

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

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

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

9, 21, 37, 44

Behrens v. Pelletier,

516 U.S. 299 (1996).......................................

5, 13

Bell v. Hood,

327 U.S. 678 (1946).......................................

TABLE OF AUTHORITIES—Continued

Beneficial Nat’l Bank v. Anderson,

539 U.S. 1 (2003)...........................................

Page

Bolivarian Republic of Venezuela v. Helmerich

& Payne Int’l Drilling Co.,

137 S. Ct. 1312 (2017).............................. 7, 28, 29

Bragdon v. Abbott,

524 U.S. 624 (1998).......................................

Burt v. Titlow,

571 U.S. 12 (2013).........................................

Calabro v. Aniqa Halal Live Poultry Corp.,

650 F.3d 163 (2d Cir. 2011)..........................

Caraco Pharm. Labs., Ltd. v. Novo Nordisk A/S,

566 U.S. 399 (2012).......................................

Carlsbad Tech., Inc. v. HIF Bio, Inc.,

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

17, 20

Carroll v. United States,

354 U.S. 394 (1957).......................................

Caspari v. Bohlen,

510 U.S. 383 (1994).......................................

Caterpillar Inc. v. Williams,

482 U.S. 386 (1987).......................................

Chadbourne & Parke LLP v. Troice,

571 U.S. 377 (2014).......................................

5, 15

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981).......................................

City of Oakland v. BP, PLC,

969 F.3d 895 (9th Cir. 2020).........................

42, 45

vii

TABLE OF AUTHORITIES—Continued

Page

City of Waco v. U.S. Fidelity & Guaranty Co.,

293 U.S. 140 (1934).......................................

Client Prot. Fund of Bar of Maryland v. Hollis,

412 F. App’x 597 (4th Cir. 2011)..................

Coleman v. Thompson

501 U.S. 722 (1991).......................................

Collins v. Virginia,

138 S. Ct. 1663 (2018)...................................

Comm’r v. Clark,

489 U.S. 726 (1989).......................................

6, 17

Cooter & Gell v. Hartmarx Corp.,

496 U.S. 384 (1990).......................................

Crawford-El v. Britton,

523 U.S. 574 (1998).......................................

Cty. of San Mateo v. Chevron Corp.,

294 F. Supp. 3d 934 (N.D. Cal. 2018)..........

Cty. of San Mateo v. Chevron Corp.,

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

8, 21, 44

Davila v. Davis,

137 S. Ct. 2058 (2017)...................................

Davis v. Glanton,

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

Detroit Police Lieutenants & Sergeants Ass’n

v. City of Detroit,

597 F.2d 566 (6th Cir. 1979).........................

Ex parte Pennsylvania Co.,

137 U.S. 451 (1890).......................................

viii

TABLE OF AUTHORITIES—Continued

Expressions Hair Design v. Schneiderman,

137 S. Ct. 1144 (2017)...................................

Page

F.C.C. v. Fox Television Stations, Inc.,

556 U.S. 502 (2009).......................................

Fay v. Noia,

372 U.S. 391 (1963).......................................

Food Mktg. Inst. v. Argus Leader Media,

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

17, 34

Forest Grove Sch. Dist. v. T.A.,

557 U.S. 230 (2009).......................................

Fuller v. Oregon,

417 U.S. 40 (1974).........................................

5, 12

Georgia v. Rachel,

384 U.S. 780 (1966).......................................

3, 15

Gordon v. United States,

117 U.S. 697 (1864).......................................

Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg.,

545 U.S. 308 (2005).......................................

Greenwich Fin. Servs. Distressed Mortg.

Fund 3 LLC v. Countrywide Fin. Corp.,

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

Gregory v. Ashcroft,

501 U.S. 452 (1991).......................................

Harbison v. Bell,

556 U.S. 180 (2009).......................................

Harper v. AutoAlliance Int’l, Inc.,

392 F.3d 195 (6th Cir. 2004).........................

TABLE OF AUTHORITIES—Continued

Helsinn Healthcare S.A. v. Teva Pharm.

USA, Inc.,

139 S. Ct. 628 (2019).....................................

Page

Hertz Corp. v. Friend,

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

10, 37

Hillman v. Maretta,

569 U.S. 483 (2013).......................................

Home Depot U.S.A., Inc. v. Jackson,

139 S. Ct. 1743 (2019)...................................

IBP, Inc. v. Alvarez,

546 U.S. 21 (2005).........................................

Idaho v. Coeur d’Alene Tribe of Idaho,

521 U.S. 261 (1997).......................................

6, 19

In re Green Hills Dev. Co., L.L.C.,

741 F.3d 651 (5th Cir. 2014).........................

Izumi Seimitsu Kogyo Kabushiki Kaisha v.

U.S. Philips Corp.,

510 U.S. 27 (1993).........................................

41, 42

Johnson v. United States,

559 U.S. 133 (2010).......................................

K Mart Corp. v. Cartier, Inc.,

486 U.S. 281 (1988).......................................

Kircher v. Putnam Funds Tr.,

547 U.S. 633 (2006).................................. 11, 20, 29

Kirtsaeng v. John Wiley & Sons, Inc.,

568 U.S. 519 (2013).......................................

Knop v. Mackall,

645 F.3d 381 (D.C. Cir. 2011).......................

TABLE OF AUTHORITIES—Continued

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994).......................................

Page

Lamar, Archer & Cofrin, LLP v. Appling,

138 S. Ct. 1752 (2018)...................................

Lawson v. FMR LLC,

571 U.S. 429 (2014).......................................

Legg v. Wyeth,

428 F.3d 13170 (11th Cir. 2005)...................

Leocal v. Ashcroft,

543 U.S. 1 (2004)...........................................

Levin v. Commerce Energy, Inc.,

560 U.S. 413 (2010).......................................

Lorillard v. Pons,

434 U.S. 575 (1978)..................................

8, 31, 34

Lu Junhong v. Boeing Co.,

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

9, 37, 40

Maracich v. Spears,

570 U.S. 48 (2013).........................................

Martin v. Franklin Capital Corp.,

546 U.S. 132 (2005)............................

6, 18, 35, 38

Massachusetts v. Exxon Mobil Corp.,

462 F. Supp. 3d 31 (D. Mass. 2020).............

Mayo v. Bd. of Educ. of Prince George’s Cty.,

713 F.3d 735 (4th Cir. 2013).........................

McCleskey v. Zant,

499 U.S. 467 (1991).......................................

McKesson v. Doe,

No. 19-1108, slip op. (U.S. Nov. 2, 2020).....

6, 19

TABLE OF AUTHORITIES—Continued

Page

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987).........................................

Microsoft Corp. v. i4i Ltd. P’ship,

564 U.S. 91 (2011).........................................

Milavetz, Gallop & Milavetz, P.A. v.

United States,

559 U.S. 229 (2010).......................................

Miranti v. Lee,

3 F.3d 9258 (5th Cir. 1993)...........................

Missouri v. Jenkins,

515 U.S. 70 (1995).........................................

Mohawk Indus., Inc. v. Carpenter,

558 U.S. 100 (2009).......................................

Moore v. Permanente Med. Grp., Inc.,

981 F.2d 4435 (9th Cir. 1992).......................

Murdock v. City of Memphis,

87 U.S. 590 (1874)....................................

5, 12, 37

Nat’l Credit Union Admin. v. First Nat’l

Bank & Trust Co.,

522 U.S. 479 (1998).......................................

Native Village of Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012).........................

Noel v. McCain,

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

Osborn v. Haley,

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

Patel v. Attorney Gen.,

599 F.3d 295 (3d Cir. 2010)..........................

xii

TABLE OF AUTHORITIES—Continued

Patel v. Del Taco, Inc.,

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

Pennsylvania ex rel. Gittman v. Gittman,

451 F.2d 155 (3d Cir. 1971)..........................

Pereira v. Sessions,

138 S. Ct. 2105 (2018)..............................

Pierce v. Underwood,

487 U.S. 552 (1988).......................................

Page

7, 26, 27

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

551 U.S. 224 (2007)....................................... passim

Price v. Medicaid Dir.,

838 F.3d 739 (6th Cir. 2016).........................

Printz v. United States,

521 U.S. 898 (1997).......................................

Proctor v. Vishay Intertechnology Inc.,

584 F.3d 1208 (9th Cir. 2009).......................

Quackenbush v. Allstate Ins. Co.,

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

Reid v. Covert,

354 U.S. 1 (1957)...........................................

RES-GA Cobblestone, LLC v. Blake Constr.

& Dev., LLC,

718 F.3d 1308 (11th Cir. 2013).....................

Ret. Plans Comm. of IBM v. Jander,

140 S. Ct. 592 (2020).....................................

Rhode Island v. Shell Oil Prods. Co, LLC,

979 F.3d 50 (1st Cir. 2020)...........................

21, 45

xiii

TABLE OF AUTHORITIES—Continued

Rivet v. Regions Bank of La.,

522 U.S. 470 (1998).......................................

Page

Robertson v. Ball,

534 F.2d 63 (5th Cir. 1976)...........................

Robinson v. Pfizer, Inc.,

855 F.3d 893 (8th Cir. 2017).........................

Rodriguez v. Fed. Deposit Ins. Corp.,

140 S. Ct. 713 (2020).....................................

Rosado v. Wyman,

397 U.S. 397 (1970).......................................

Roxbury Condo. Ass’n, Inc. v. Anthony S.

Cupo Agency,

316 F.3d 224 (3d Cir. 2003)..........................

Samantar v. Yousuf,

560 U.S. 305 (2010).......................................

4, 11

Sanchez v. Onuska,

2 F.3d 1160 (10th Cir. 1993).........................

SAS Inst., Inc. v. Iancu,

138 S. Ct. 1348 (2018)..............................

7, 24, 25

Shamrock Oil & Gas Corp. v. Sheets,

313 U.S. 100 (1941).......................................

6, 19

Stallworth v. Greater Cleveland Reg’l

Transit Auth.,

105 F.3d 252 (6th Cir. 1997).........................

State Farm Mut. Auto. Ins. Co. v. Baasch,

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

Swint v. Chambers Cty. Comm’n,

514 U.S. 35 (1995).........................................

11, 37

xiv

TABLE OF AUTHORITIES—Continued

Syngenta Crop Prot., Inc. v. Henson,

537 U.S. 28 (2002).........................................

Page

Tafflin v. Levitt,

493 U.S. 455 (1990).......................................

Taniguchi v. Kan Pac. Saipan, Ltd.,

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

Tenner v. Zurek,

168 F.3d 328 (7th Cir. 1999).........................

Texas Dep’t of Hous. & Cmty. Affairs v.

Inclusive Communities Project, Inc.,

576 U.S. 519 (2015)..................................

8, 32, 33

Thermtron Prods., Inc. v. Hermansdorfer,

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

Things Remembered, Inc. v. Petrarca,

516 U.S. 124 (1995).......................................

10, 16

Thornton v. Holloway,

70 F.3d 522 (8th Cir. 1995)...........................

Topeka Hous. Auth. v. Johnson,

404 F.3d 1245 (10th Cir. 2005).....................

United States v. Borden Co.,

308 U.S. 188 (1939).......................................

5, 14

United States v. Brockamp,

519 U.S. 347 (1997).......................................

United States v. Copeland,

381 F.3d 1101 (11th Cir. 2004).....................

United States v. DeCay,

620 F.3d 534 (5th Cir. 2010).........................

TABLE OF AUTHORITIES—Continued

United States v. Fabrizio,

385 U.S. 263 (1966).......................................

Page

United States v. Haymond,

139 S. Ct. 2369 (2019)...................................

United States v. Keitel,

211 U.S. 370 (1908).......................................

5, 14

United States v. Lee,

659 F.3d 619 (7th Cir. 2011).........................

United States v. Rice,

327 U.S. 742 (1946).......................................

United States v. Ruiz,

536 U.S. 622 (2002).......................................

7, 28

United States v. Stevenson,

215 U.S. 190 (1909).......................................

Univ. of Texas Sw. Med. Ctr. v. Nassar,

570 U.S. 338 (2013).......................................

Wood v. Allen,

558 U.S. 290 (2010).......................................

Wood v. Milyard,

566 U.S. 463 (2012).......................................

Yamaha Motor Corp. v. Calhoun,

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

4, 21

Yee v. City of Escondido,

503 U.S. 519 (1992).......................................

24, 42

Zivotofsky ex rel. Zivotofsky v. Clinton,

566 U.S. 189 (2012).......................................

xvi

TABLE OF AUTHORITIES—Continued

Page

Statutes

5 U.S.C. 1508.....................................................

8 U.S.C. 1229.....................................................

8 U.S.C. 1252(a)(2)(C).......................................

12 U.S.C. 85.......................................................

12 U.S.C. 86.......................................................

15 U.S.C. 77p.....................................................

15 U.S.C. 78aa...................................................

7, 30

15 U.S.C. 78bb(f)(1)(A)......................................

18 U.S.C. 3595(c)(1)..........................................

18 U.S.C. 3742(a)(1)..........................................

25 U.S.C. 3013...................................................

7, 30

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

21, 22

28 U.S.C. 1257........................................

5, 11, 12, 14

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

5, 12, 13, 14

28 U.S.C. 1292........................................

11, 21, 22

28 U.S.C. 1331........................................ 39, 41, 44, 46

28 U.S.C. 1332(d)(9)(C).....................................

28 U.S.C. 1338(b)..............................................

7, 30

28 U.S.C. 1354...................................................

7, 30

28 U.S.C. 1441.............................................. 32, 33, 39

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

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

xvii

TABLE OF AUTHORITIES—Continued

Page

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

28 U.S.C. 1453(d)(3)..........................................

28 U.S.C. 1605...................................................

28, 29

29 U.S.C. 185.....................................................

29 U.S.C. 1132(a)..............................................

33 U.S.C. 1320...................................................

35 U.S.C. 314(b)................................................

38 U.S.C. 7104...................................................

42 U.S.C. 2297h-8(a)(7)(C)...............................

7, 30

44 U.S.C. 2204(e)..............................................

7, 30

Removal Clarification Act of 2011,

Pub. L. 112-51, § 2(d),

Nov. 9, 2011, 125 Stat. 546...........................

Act of March 3, 1887, § 2, 24

Stat. 552 .......................................................

Act of May 24, 1949, ch. 139, § 84, 63

Stat. 89, 102 .................................................

Constitutional Provisions

U.S. Const., art. VI ...........................................

25, 26

Rules

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

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

28, 38

United States Supreme Court Rule 14.1(a).....

United States Supreme Court Rule 24............

xviii

TABLE OF AUTHORITIES—Continued

Other Authorities

13D Wright & Miller, Fed. Prac. & Proc. Juris.

§ 3564 (3d ed. 2020)......................................

Page

15A Wright & Miller, Fed. Prac. & Proc. Juris.

§ 3911.2 (2d ed.)............................................ 13, 37

T. Hrdlick, Appellate Review of Remand

Orders in Removed Cases: Are They

Losing A Certain Appeal?,

82 Marq. L. Rev. 535 (1999).........................

House Judiciary Committee Report,

H.R. Rep. No. 112-17....................................

A. Scalia & B. Garner,

Reading Law: The Interpretation of Legal

Texts (2012) ..................................................

14, 34

INTRODUCTION

The Fourth Circuit correctly concluded that 28 U.S.C.

1447(d) does not authorize appellate courts to review

every otherwise unreviewable ground for removal

rejected by a district court, just because a defendant

has included a meritless claim for federal-officer or

civil-rights jurisdiction as one ground for removal. This

Court has never declared that appellate review of a

district court order necessarily entails review of all

issues addressed in the order. And it has not hesitated

to limit appellate review to particular issues where

doing so is consistent with the text, context, history,

and purpose of the statute granting such review.

All tools of statutory interpretation point in the same

direction here: Section 1447(d) authorizes review of a

remand order only insofar as it addresses federalofficer and civil-rights removal. This construction gives

due regard to the statute’s textual focus on Sections

1442 and 1443; is consistent with courts’ interpretation

of identical language in Section 1447(c); respects the

federalism-based principle that statutes conferring

federal jurisdiction should be narrowly construed; and

furthers the strong congressional policy against

prolonged litigation on non-merits issues.

Respondent prevails for another, independent

reason: this case was not removed “pursuant to”

Section 1442 or 1443. In this context, “pursuant to”

means “in compliance with,” “in conformance to,” or

“in accordance with,” and therefore a case is removed

“pursuant to” Section 1442 or 1443 only if it satisfies

the removal requirements of either provision. Section

1447(d) is one of many statutes that entwine

jurisdiction and merits. Once an appellate court

determines that a defendant’s claims to federal-officer

or civil-rights jurisdiction lack merit, its inquiry ends.

The history of Section 1447(d) in Congress and the

Courts confirms that the scope of appellate review

under its exception clause is limited to Section 1442

and 1443 grounds for removal. Between 1964, when

Congress created the civil-rights exception to the

provision’s appellate bar, and 2011, the nine circuits

to consider this question all held that their review was

limited to the civil-rights removal ground. When

Congress amended Section 1447(d) as part of the

Removal Clarification Act of 2011 to add the federalofficer exception, it ratified five decades of appellate

authority construing the scope of review as limited to

the enumerated removal grounds.

The Court should affirm the judgment below.

STATEMENT

For more than 130 years, Congress has

prohibited nearly all appellate review of district

court remand orders. The Judiciary Act of 1887 made

such orders unreviewable and required their “imme

diate[]” execution upon issuance. Act of March 3,

1887, § 2, 24 Stat. 552, 553; see Ex parte Pennsylvania

Co., 137 U.S. 451, 454 (1890); United States v. Rice,

327 U.S. 742, 752 (1946). In 1949, one year after

codifying Title 28 of the United States Code (which

omitted that longstanding prohibition, apparently

inadvertently), Congress enacted 28 U.S.C. 1447(d):

“An order remanding a case to the State court from

which it was removed is not reviewable on appeal or

otherwise.” Act of May 24, 1949, ch. 139, § 84, 63

Stat. 89, 102.

That statutory bar on appellate jurisdiction

remained absolute until the Civil Rights Act of 1964,

which carved out a narrow exception for remand

orders in cases removed pursuant to Section 1443,

the civil-rights removal statute, “to give the federal

reviewing courts a new opportunity to consider the

meaning and scope of [that] removal statute.”

Georgia v. Rachel, 384 U.S. 780, 786–87 & n.7 (1966).

That narrow exception remained unchanged for

more than 50 years. Every circuit to consider the

issue concluded that the exception to Section 1447(d)

authorized review of the civil-rights ground for removal only. In 2011, Congress amended Section

1447(d) again, adding just two words, “1442 or,”

without modifying the language or statutory structure courts had relied upon in construing the scope

of appellate review authorized by Section 1447(d).

See Removal Clarification Act of 2011, Pub. L. 11251, § 2(d), Nov. 9, 2011, 125 Stat. 546.

2. Respondent, the Mayor and City Council of Bal

timore, brought this action in Maryland state court,

alleging exclusively state-law causes of action (in

cluding public and private nuisance and failure to

warn) based on petitioners’ decades-long campaigns

to promote fossil-fuel products while wrongfully

concealing the destructive impacts on public

infrastructure they knew would result from using

those products as directed. J.A. 23, 26–29, 87–131,

155–182. As the Fourth Circuit noted, respondent’s

complaint “seeks to challenge the promotion and sale

of fossil fuel products without warning and abetted by

a sophisticated disinformation campaign.” Pet. App.

21a. Respondent does “not seek to impose liability on

Defendants for their direct emissions of greenhouse

gases [or] to restrain Defendants from engaging in

their business operations.” J.A. 29.

Petitioners removed on eight separate grounds. J.A.

187–242. The district court rejected all eight, Pet.

App. 31a–81a, including petitioners’ “attenuated”

theory of federal-officer jurisdiction, id. 70a–71a, and

remanded the case to state court. The Fourth Circuit

affirmed the remand order, concluding that petitioners’

allegations did not support federal-officer removal

jurisdiction and that Section 1447(d) limited its review

to that issue only. Id. 2a, 6a–30a.

SUMMARY OF ARGUMENT

Section 1447(d)’s first clause (the Non-Reviewability

Clause) strips appellate courts of jurisdiction to

entertain appeals from remand orders. Its second

clause (the Exception Clause), enacted in 1964 and

amended in 2011, contains a limited exception for “an

order remanding a case . . . removed pursuant to

section 1442 or 1443 . . . .” The language of the

Exception Clause, by its terms and in the context of

the statute as a whole, limits appellate review to its

expressly enumerated grounds for removal. Between

1964 and 2015, nine circuits unanimously and

correctly construed the provision that way.

I. The text, context, and structure of Section 1447(d)

limit appellate review of removal grounds to those

enumerated in the Exception Clause.

A. Petitioners focus on the word “order” in isolation,

Pet. Br. 12, but courts read statutes as “a whole.”

Samantar v. Yousuf, 560 U.S. 305, 319 (2010). So read,

the Exception Clause makes a remand order reviewable

only insofar as the order addresses Section 1442 and

1443 removal grounds.

Although this Court has construed some statutes as

authorizing plenary review of lower court decisions,

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

(1996), it has never said that appellate review of a

lower court ruling necessarily means review of all

issues raised therein. The Court has often interpreted

appellate jurisdiction statutes as limiting review to

particular issues in an order, judgment, or decision.

For example, the Court reviews state-court judgments

under 28 U.S.C. 1257 only to the extent they rest on

dispositive questions of federal law. See Murdock v.

City of Memphis, 87 U.S. 590, 607–08, 627, 630–32

(1874); Fuller v. Oregon, 417 U.S. 40, 48 n.9 (1974). It

reviews collateral orders under 28 U.S.C. 1291 only

insofar as they address questions “collateral to, and

separable from the principal issue” in the case. See

Abney v. United States, 431 U.S. 651, 659, 662–63

(1977); Behrens v. Pelletier, 516 U.S. 299, 312–13

(1996). And for more than 60 years, it reviewed certain

“decision[s] or judgment[s]” under the Criminal

Appeals Act, 34 Stat. 1246, only as to certain statutory

challenges expressly described in the Act. See United

States v. Borden Co., 308 U.S. 188, 192–93 (1939);

United States v. Keitel, 211 U.S. 370, 397–99 (1908).

The Exception Clause similarly authorizes review

only of its two enumerated removal grounds. Substantial textual evidence confirms this conclusion.

When Congress carved out exceptions to Section

1447(d)’s blanket prohibition against reviewability,

it tethered review to federal-officer and civil-rights

jurisdiction, which are the “basic focus” of the

Exception Clause. Chadbourne & Parke LLP v.

Troice, 571 U.S. 377, 387 (2014). Under petitioners’

construction, however, a reviewing court need not

even consider Section 1442 or 1443 if another, otherwise unreviewable ground supports removal. See

Pet. Br. 31.

The Exception Clause’s limited scope of review is

also consistent with courts’ interpretation of Section

1447(c), which provides that an “order remanding the

case may require” the removing defendant to pay the

plaintiff’s fees and costs in seeking remand. 28 U.S.C.

1447(c). Eleven circuits agree that the fee portion of a

remand order is reviewable, even when the remand

decision is not. See also Martin v. Franklin Capital

Corp., 546 U.S. 132, 141 (2005). Under petitioners’

“entire order” construction, though, an award or denial

of fees would be appealable if and only if Section 1442

or 1443 were among the defendant’s asserted grounds

for removal—an anomalous result.

Structural features of Section 1447(d) also support

reading the Exception Clause as authorizing review

only of its enumerated removal grounds. As an

exception to the general rule of non-reviewability, the

Exception Clause must be construed narrowly to

preserve the primary operation of the NonReviewability Clause. See Comm’r v. Clark, 489 U.S.

726, 739 (1989). A narrow construction also supports

“[o]ur system of ‘cooperative judicial federalism,’ ”

McKesson v. Doe, No. 19-1108, slip op. at 4 (U.S. Nov.

2, 2020), which presumes that state courts are

competent and unbiased and which requires a strict

construction of removal statutes, see Shamrock Oil &

Gas Corp. v. Sheets, 313 U.S. 100, 109 (1941); Idaho v.

Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 275 (1997).

Petitioners’ construction turns these structural

considerations on their head, mandating appellate

review of jurisdictional determinations that Congress

has declared unreviewable since 1887.

B. Respondent should also prevail for an independent reason: Even if petitioners’ interpretation of “order”

as allowing appellate review of all issues in the order

were otherwise correct, Section 1447(d) by its terms

limits appellate jurisdiction to cases removed “pursuant

to section 1442 or 1443.” Where, as here, the defendants’

asserted grounds for removal under Section 1442 or

1443 lack merit, the removal is not “pursuant to” those

grounds, and the appellate court’s jurisdiction ends.

The ordinary meaning of “pursuant to” is “in accordance with,” “in conformance to,” or “in compliance with.” The Exception Clause therefore grants

appellate jurisdiction to review a remand order only

in cases that accord, conform, or comply with the requirements of either of the two designated removal

provisions. That common-sense conclusion is supported by this Court’s interpretation of “pursuant to”

and similar language in other statutes and in the

Constitution. See, e.g., SAS Inst., Inc. v. Iancu, 138

S. Ct. 1348, 1355–56 (2018); Alden v. Maine, 527 U.S.

706, 731 (1999); Pereira v. Sessions, 138 S. Ct. 2105,

2117 (2018).

Thus, where a defendant asserts multiple grounds

for removal, the court of appeals must first determine

whether the purported removal under Section 1442

or 1443 was proper. If it was not, the NonReviewability Clause bars review and the court can

go no further. Section 1447(d) is thus consistent

with other jurisdictional statutes that require courts

to address the merits of an issue or claim in

determining their own jurisdiction. See, e.g.,

Bolivarian Republic of Venezuela v. Helmerich &

Payne Int’l Drilling Co., 137 S. Ct. 1312, 1319 (2017);

United States v. Ruiz, 536 U.S. 622, 626–28 (2002).

Had Congress intended to grant appellate jurisdiction

to review remand orders whenever a defendant

merely alleges Section 1442 or 1443 removal grounds,

it could have said so, as it has often done. See, e.g.,

15 U.S.C. 78aa; 42 U.S.C. 2297h-8(a)(7)(C); 28 U.S.C.

1338(b); 28 U.S.C. 1354; 25 U.S.C. 3013; 44 U.S.C.

2204(e).

II. The history of Section 1447(d) confirms that the

Exception Clause limits review to its enumerated

removal grounds. From 1964 until 2015, appellate

courts unanimously interpreted Section 1447(d) as

“permitting review of only the grounds for removal

identified in the exception clause.” Cty. of San Mateo

v. Chevron Corp., 960 F.3d 586, 597 (9th Cir. 2020).

When Congress amended Section 1447(d) as part of

the Removal Clarification Act of 2011, it ratified that

settled interpretation by “perpetuating the wording”

of the provision. Texas Dep’t of Hous. & Cmty. Affairs

v. Inclusive Communities Project, Inc., 576 U.S. 519,

536 (2015); see also Lorillard v. Pons, 434 U.S. 575,

580–81 (1978).

III. Limiting appellate review to the two specific

grounds identified by Congress in the Exception

Clause also advances Section 1447(d)’s purposes.

Petitioners’ interpretation of Section 1447(d) would

undermine Congress’s policy of “avoiding prolonged

litigation” of non-dispositive jurisdictional issues.

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S.

224, 237 (2007). As this case shows, the burdens of

adjudicating additional remand grounds on appeal

are far from marginal.

Petitioners’ expansive reading of the Exception

Clause would also encourage jurisdictional games

manship. By invoking Section 1442 or 1443, a

defendant could use a meritless assertion of federalofficer or civil-rights jurisdiction to obtain appellate

review, as of right, of every otherwise unreviewable

removal theory rejected by the district court. The

perverse incentives created by petitioners’ con

struction cannot be prevented by the threat of

sanctions, which are rare; by Section 1447(c) feeshifting, which cannot be imposed if any ground for

removal has facial plausibility; or by a non-textual

judicial exception to the Exception Clause for

frivolous or bad-faith assertions of Section 1442 or

1443 jurisdiction, which would prove far more

difficult to enforce than the clear standard for

applying the Exception Clause actually included in

the text.

IV. The Court should not consider petitioners’

novel “federal common law” theory of “arising-under”

jurisdiction. The issue is not properly before this

Court. It was not included in the Question Presented

nor seriously argued in the briefs supporting

certiorari. The Fourth Circuit never addressed it—

and could not have addressed it—because petitioners’

Fourth Circuit briefing waived the principal basis for

that argument.

Petitioners’ federal-common-law theory of removal

also fails on its merits. Petitioners mischaracterize

respondent’s complaint and relevant precedent. Their

novel theory would, moreover, require the Court to

create a new body of federal common law and reject

decades of precedent applying the “complete pre

emption” doctrine to complaints pleading state-law

claims.

Petitioners’ request illustrates the danger in their

construction of Section 1447(d): it would create a

loophole allowing defendants to avoid the statute’s

appellate bar by asserting a dubious federal-officer

or civil-rights removal argument when “all they

really want is a hook to allow appeal of some different

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

813 (7th Cir. 2015); Bd. of Cty. Comm’rs of Boulder

Cty. v. Suncor Energy (U.S.A.) Inc., 965 F.3d 792,

818–19 (10th Cir. 2020) (“no lawyer would neglect to

find a defensible, if inadequate, way to assert” Section

1442 or 1443 grounds “to avoid the bar . . . for all

other[s]”).

ARGUMENT

I. The Text, Context, and Structure of Section

1447(d) Limit Appellate Review of Removal

Grounds to Those Enumerated in the

Exception Clause.

The first clause of Section 1447(d) (the NonReviewability Clause) strips appellate courts of

jurisdiction to entertain appeals from remand orders.

See Things Remembered, Inc. v. Petrarca, 516 U.S.

124, 127–28 (1995); Hertz Corp. v. Friend, 559 U.S. 77,

83 (2010); Powerex Corp., 551 U.S. at 226. The second

clause (the Exception Clause) carves out an exception

to this general rule of non-reviewability, granting

appellate jurisdiction to review a remand order in

“case[s] . . . removed pursuant to section 1442 or 1443.”

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

Petitioners’ argument founders for at least two

independent reasons. First, the text, context, and

structure of Section 1447(d) make clear that the

Exception Clause authorizes review only of its two

enumerated removal grounds. Second, this case was

not removed “pursuant to” Section 1442 or 1443,

meaning that it does not fall within the Exception

Clause’s jurisdictional grant.

A. The Exception Clause of Section 1447(d)

Authorizes Appellate Review Only to the

Extent Remand Was Denied on an

Enumerated Removal Ground.

Petitioners stake their interpretation on the meaning

of one word, “order,” insisting that appellate review of

an order necessarily entails review of all issues in that

order. The Court has never imposed such a bright-line

rule of construction, however. Instead, as with all

statutory interpretation, “context determines meaning,”

Johnson v. United States, 559 U.S. 133, 139 (2010);

statutes are not construed “in little bites,” Kircher v.

Putnam Funds Tr., 547 U.S. 633, 643 (2006). The Court

has thus not hesitated to limit review of a “decision,”

“judgment,” or “decree” where the structure and

context of the statute so requires.1

Here, the Exception Clause—when read as a

whole—authorizes review of a remand order only

insofar as it rejects Section 1442 and 1443 removal

grounds. See Samantar, 560 U.S. at 319 (“[W]e do not

construe statutory phrases in isolation; we read

statutes as a whole.” (cleaned up)).

1. Three statutes refute petitioners’ assertion that if

an “order” is reviewable on appeal, the appellate court

must have authority to review every issue therein.

a. The Court has long construed 28 U.S.C. 1257

as cabining its review of a state-court judgment to a

narrow universe of federal-law rulings incorporated

into the judgment. Section 1257(a) provides that

“[f]inal judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

There is no relevant distinction between those terms and

“order” for purposes of defining the scope of review. See, e.g.,

U.S. Br. 12 (noting that early versions of Section 1447(d) “used

‘order’ and ‘decision’ interchangeably”) (quoting 1887 Act § 2, 24

Stat. 553); see also 28 U.S.C. 1292 (entitled “Interlocutory

decisions,” and authorizing appeal of various interlocutory

“orders”); Swint v. Chambers Cty. Comm’n, 514 U.S. 35, 45–46

(1995) (Section 1292 covers “interlocutory decisions”). Indeed,

“judgments,” “decrees,” and “decisions” are simply categories of

judicial “orders.” Decision, Black’s Law Dictionary (11th ed.

2019) (“esp., a ruling, order, or judgment”); Judgment, id.

(“includes an equitable decree and any order from which an

appeal lies.”); Decree, id. (“a judicial decision,” “[a] court’s final

judgment,” “[a]ny court order”).

be reviewed by the Supreme Court” in cases that raise

questions of federal law concerning the validity of a

statute or the assertion of federal rights. Under

petitioners’ theory, the Court would have jurisdiction

to review all issues resolved by a state-court judgment.

For nearly 150 years, however, the Court has

reviewed only the federal-law questions specified by

Congress in Section 1257, explaining that this

interpretation represents not only “a fair construction”

of the statutory language, but the best construction in

light of the context, congressional purpose, and

federalism principles underpinning that provision.

Murdock, 87 U.S. at 627, 630–32. The Court in

Murdock noted that if the rule were otherwise, a party

to a state-court proceeding could, “by the aid of a

sagacious lawyer,” present a federal defense that “he

may well know will be decided against him the moment

it is stated,” to obtain review by this Court of statelaw questions raised in the case. Id. at 629. Despite

the unmodified statutory reference to “[f]inal

judgments or decrees,” the Court has long held that

Section 1257 does not authorize it to “decide questions

of state law in cases also raising federal questions.”

Fay v. Noia, 372 U.S. 391, 429 (1963), abrogated on

other grounds by Coleman v. Thompson, 501 U.S. 722

(1991); see also Fuller, 417 U.S. at 48 n.9; Murdock, 87

U.S. at 627–33.

b. The Court’s construction of 28 U.S.C. 1291

similarly limits review to specific issues in a decision

or order. Section 1291 grants appellate courts

“jurisdiction of appeals from all final decisions,”

including collateral orders that are effectively final.

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106

(2009). Under petitioner’s approach, every issue

adjudicated in a collateral order would be reviewable

under Section 1291 if any issue in that order were

reviewable. Yet the Court regularly limits appellate

review to a particular portion of the lower court’s

collateral order. See 15A Wright & Miller, Fed. Prac.

& Proc. Juris. § 3911.2 (2d ed.1996) (“Courts . . . keep[]

close limits on the scope of appeal” of collateral orders).

In Abney, 431 U.S. at 662–63, for example, the Court

held that an order denying a motion to dismiss was

reviewable insofar as it rejected the criminal

defendants’ double-jeopardy challenge, but not insofar

as it disposed of their challenge to the sufficiency of

the indictment. The Court reasoned that “[a]ny other

rule” would encourage defendants to assert “frivolous

double jeopardy claims in order to bring more serious,

but otherwise nonappealable questions” before the

court of appeals. Id. at 663. In Behrens, 516 U.S. at

312–13, the Court restricted appellate jurisdiction

even more narrowly, holding that appellate review

from an order denying qualified immunity extends to

“issue[s] of law relating to qualified immunity,” but

not to “determinations of evidentiary sufficiency at

summary judgment.”

c. The Court’s interpretation of its direct

appellate jurisdiction under the Criminal Appeals Act

likewise confirms a limited scope of review where, as

here, appellate jurisdiction is defined by reference to

specific issues. Before 1907, the government had no

right to appeal any judgment terminating a criminal

prosecution in a defendant’s favor. See Carroll v.

United States, 354 U.S. 394, 399–403 (1957). The

Criminal Appeals Act created, inter alia, a right of

direct appeal in this Court “[f]rom a decision or

judgment” dismissing any portion of an indictment,

“where such decision or judgment is based upon the

invalidity or construction of the statute upon which

the indictment is founded.” See Keitel, 211 U.S. at 398

n.† (quoting Act of March 2, 1907, 34 Stat. 1246).

The Court held its review was “strictly limited” to

the statutory challenges specified in the Act, and that

it was “not at liberty to go beyond the question of the

correctness of that construction and consider other

objections to the indictment.” Borden Co., 308 U.S. at

192–93. Even where the lower court dismissed a single

count in an indictment “upon two grounds, one of

which concerned the construction of the statute, the

other of which decided the invalidity of the indictment

upon general principles of criminal law,” the Court

held it could not review the latter, which fell outside

“the classes named in the statute giving a right of

review in this court.” United States v. Stevenson, 215

U.S. 190, 195–96 (1909). The Court retained that

construction until Congress repealed the direct appeal

provision in 1970. See, e.g., United States v. Fabrizio,

385 U.S. 263, 266 (1966).

d. The Exception Clause therefore does not, as

petitioners insist, unambiguously authorize plenary

review of a remand order simply because it says that

“an order . . . shall be reviewable.” Section 1257,

Section 1291, and the Criminal Appeals Act used

similar language to create appellate jurisdiction over

a lower court’s ruling, yet the Court nevertheless

cabined the scope of appellate review to specific issues.

2. Substantial textual evidence reveals that the

Exception Clause, when read as a whole, authorizes

review of its enumerated removal grounds—and those

grounds only. See K Mart Corp. v. Cartier, Inc., 486

U.S. 281, 291 (1988); Harbison v. Bell, 556 U.S. 180,

196 (2009) (Roberts, C.J., concurring) (statutory inter

pretation requires “reading sentences as a whole”); A.

Scalia & B. Garner, Reading Law § 24 (2012).

a. The scope of review of an “order” in the

Exception Clause is defined by the participial phrase

“remanding a case . . . removed pursuant to section

1442 or 1443.” 28 U.S.C. 1447(d); see also Nat’l Credit

Union Admin. v. First Nat’l Bank & Trust Co., 522

U.S. 479, 502 (1998) (“[P]articipial phrases can narrow

the relevant universe in an exceedingly effective

manner.”). When Congress carved out exceptions to

Section 1447(d)’s blanket prohibition, it tethered the

scope of appellate review to the federal-officer and

civil-rights removal statutes. See Georgia, 384 U.S. at

786. “Where Congress explicitly enumerates certain

exceptions to a general prohibition, additional

exceptions are not to be implied, in the absence of a

contrary legislative intent.” Andrus v. Glover Constr.

Co., 446 U.S. 608, 616–17 (1980); Hillman v. Maretta,

569 U.S. 483, 496 (2013); United States v. Brockamp,

519 U.S. 347, 352 (1997). Accordingly, the Exception

Clause authorizes review of the enumerated removal

grounds, and no others.

Petitioners’ proposed construction of the Exception

Clause “attributes to Congress a strange design.”

Lawson v. FMR LLC, 571 U.S. 429, 443 (2014).

Sections 1442 and 1443 are the only grounds for

removal identified in the Exception Clause. Yet

petitioners insist that if a defendant’s removal petition

cites one of those provisions, an appellate court may

review all grounds presented for removal, and if it

finds any one of them valid, it need not consider

Section 1442 or 1443 at all. See Pet. Br. 31. That result

is inconsistent with the Exception Clause’s “basic

focus” on federal-officer and civil-rights removal

grounds, the basis for the statutory carve-outs from

Section 1447(d)’s jurisdictional bar. Chadbourne &

Parke, 571 U.S. at 387 (construing 15 U.S.C. 78bb(f)

(1)(A)). By focusing the Exception Clause on Sections

1442 and 1443, Congress evidenced a “targeted

purpose” to authorize appellate review of those two

removal grounds only. Milavetz, Gallop & Milavetz,

P.A. v. United States, 559 U.S. 229, 245–46 (2010)

(adopting a “narrow reading” where “no other solution

yields as sensible a result” (cleaned up)); Things

Remembered, 516 U.S. at 136 (Ginsburg, J., concurring)

(“Courts serve the legislature’s purpose best by

reading” clauses like Section 1447(d) “to make sense

and avoid nonsense.”).

b. The structure of Section 1447(d) also supports reading the Exception Clause as authorizing

appellate review of federal-officer and civil-rights

grounds only. See Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1748 (2019) (statutory language

must be construed “in light of the structure of the

statute and our precedent”). As this Court has repeatedly stated, the primary operation of Section 1447(d)

is to “place[] broad restrictions on the power of federal

appellate courts to review district court orders

remanding removed cases to state court.” Things Remembered, 516 U.S. at 127. That “structural choice[]”

is evidenced by the sweeping language of the NonReviewability Clause, which prohibits review of an

order remanding a case for lack of subject-matter

jurisdiction by appeal, writ, or otherwise. Univ. of

Texas Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353

(2013) (“Just as Congress’ choice of words is presumed

to be deliberate, so too are its structural choices.”). It

is reinforced by the narrow framing of the Exception

Clause, which references two specific grounds for

removal and thus provides compelling textual evidence that Congress intended not to eviscerate the

longstanding “strong congressional policy against of

remand orders.” Things Remembered, 516 U.S. at 136

(Ginsburg, J., concurring).

Petitioners’ interpretation would upend this carefully

calibrated design “through an expansive reading of a

somewhat ambiguous exception.” Comm’r v. Clark, 489

U.S. 726, 739 (1989). Although exceptions—like all

statutory provisions—must be given “a fair reading,”

Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 2356,

2366 (2019), “[a]n exception to a ‘general statement of

policy’ is ‘usually read . . . narrowly in order to preserve

the primary operation of the provision,’ ” Maracich v.

Spears, 570 U.S. 48, 60 (2013) (quoting Clark, 489 U.S.

at 739) “Unless commanded by the text,” an exception

“ought not operate to the farthest reach of [its] linguistic

possibilities if that result would contravene the statutory

design.” Maracich, 570 U.S. at 60. Here, textual

indications favor a narrow reading, and no construction

of the Exception Clause could be more expansive than

mandating plenary appellate review of remand orders

whenever a defendant asserts Section 1442 or 1443 as a

basis for removal, regardless of merit.

c. The consistent judicial construction of Section

1447(c) further confirms that Section 1447(d) permits

review of some parts of a remand order, but not others.

Section 1447(c) provides in relevant part: “An order

remanding the case may require payment of just costs

and actual expenses, including attorney fees, incurred

as a result of the removal.” Because Section 1447(d)

must be read “in pari materia with § 1447(c),” Carlsbad

Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 638 (2009),

the “order remanding the case” in Section 1447(c)

should have the same meaning as the “order remanding

a case” in Section 1447(d).

Under petitioners’ construction of that language, a

grant or denial of fees or costs under Section 1447(c)

would be reviewable if and only if the underlying

removal order were reviewable under the Exception

Clause—that is, if the defendant cited Section 1442 or

1443 as one basis for removal. Otherwise, the fee

determination would be unreviewable because, under

petitioners’ view, it is part of the “order remanding a

case” and thus unreviewable by operation of the NonReviewability Clause.

Yet, every circuit court to consider the issue (all except

the Federal Circuit) has held that Section 1447(d) does

not preclude appellate review of the portion of a remand

order that awards or denies fees or costs, even where

the decision to remand is, itself, unreviewable. See, e.g.,

Knop v. Mackall, 645 F.3d 381, 382 (D.C. Cir. 2011)

(Kavanaugh, J.); Ballard’s Serv. Ctr., Inc. v. Transue,

865 F.2d 447, 448 (1st Cir. 1989); Calabro v. Aniqa

Halal Live Poultry Corp., 650 F.3d 163, 165 (2d Cir.

2011); Roxbury Condo. Ass’n, Inc. v. Anthony S. Cupo

Agency, 316 F.3d 224, 226–27 (3d Cir. 2003); Client Prot.

Fund of Bar of Maryland v. Hollis, 412 F. App’x 597,

597 (4th Cir. 2011) (unpublished); Miranti v. Lee, 3 F.3d

925, 927–28 (5th Cir. 1993); Stallworth v. Greater

Cleveland Reg’l Transit Auth., 105 F.3d 252, 255 (6th

Cir. 1997); Tenner v. Zurek, 168 F.3d 328, 329 (7th Cir.

1999); Robinson v. Pfizer, Inc., 855 F.3d 893, 896 (8th

Cir. 2017); Moore v. Permanente Med. Grp., Inc., 981

F.2d 443, 445 (9th Cir. 1992); Topeka Hous. Auth. v.

Johnson, 404 F.3d 1245, 1248 (10th Cir. 2005); Legg v.

Wyeth, 428 F.3d 1317, 1319–20 (11th Cir. 2005). See

also Martin, 546 U.S. at 134–35, 141 (assuming

jurisdiction to review a district court’s denial of a fee

award under Section 1447(c) where removal was not

premised on Section 1442 or 1443). As these cases

demonstrate, the word “order” in Section 1447 refers to

a district court’s resolution of particular issues—such as

whether to award fees, or whether a case is removable

under Section 1442 or 1443—not to every ruling expressly

or impliedly rendered in a document entitled “order.”

d. The federalism concerns underpinning re

moval and remand statutes also favor this commonsense construction of the Exception Clause. It is a

bedrock principle of “[o]ur system of cooperative judicial federalism” that state courts are adequate forums for adjudicating questions of both state and

federal law. McKesson, slip op. at 4; see also Atl.

Richfield Co. v. Christian, 140 S. Ct. 1335, 1351

(2020); Burt v. Titlow, 571 U.S. 12, 19 (2013). To

hold otherwise would “denigrate . . . coequal sovereigns.” Tafflin v. Levitt, 493 U.S. 455, 466 (1990).

Out of respect for the autonomy and authority of

state courts, this Court has long required that

“[s]tatutes conferring federal jurisdiction . . . be

read with sensitivity to ‘federal-state relations,’ ”

Levin v. Commerce Energy, Inc., 560 U.S. 413, 423

(2010), and that removal statutes “be strictly construed,” Syngenta Crop Prot., Inc. v. Henson, 537

U.S. 28, 32 (2002); see also Shamrock, 313 U.S. at

108–09.

Petitioners upend these federalism principles,

questioning the competence of state courts to adjudicate cases remanded by federal district courts and

suggesting that the speculative harms from a potentially mistaken remand ruling justify requiring federal appellate review of every theory of removal. Petitioners even propose that Congress intended the

Exception Clause to protect defendants who are not

federal officers and who are not enforcing civil-rights

laws out of a generalized fear that these types of defendants may “face significant local prejudice.” Pet.

Br. 29. Petitioners’ speculation, however, presume

“the inherent inadequacy of state forums,” contrary

to this Court’s repeated expressions of “confidence” in

state courts’ ability to “uphold federal law.” Coeur

d’Alene, 521 U.S. at 275.

3. Petitioners’ remaining arguments fare no better.

a. Petitioners contend that the Non-Reviewability

Clause’s “reference to the ‘order remanding a case’ . . .

is to the entire order,” and that the Exception Clause’s

reference to “order” must be construed the same way.

Pet. Br. 31. This Court has never held, however, that

when the Non-Reviewability Clause governs an

appeal, it bars review of all issues raised in the remand

order. Cf. Part I.A.2.c, supra (award of fees and costs

is reviewable). Indeed, the Court has tied the scope of

the Non-Reviewability Clause to specific reasons for

the remand, holding that Section 1447(d)’s

jurisdictional bar applies only to remand orders that

are “based on a ground specified in § 1447(c).” Carlsbad

Tech., 556 U.S. at 638. Petitioners themselves construe

the word “order” in the Exception Clause as not

including orders that reject frivolous or bad-faith invocations of Section 1442 or 1443 as a basis for remand. See Part III.3.c, infra.2

b. Petitioners contend that if Congress wanted

to limit appellate review under the Exception Clause

Amicus United States suggests that this Court has already

determined that an “order,” as used in the Non-Reviewability

Clause, “ ‘cannot be disaggregated’ into reviewable and unreviewable rulings.” U.S. Amicus Br. 13–14 (quoting Kircher, 547

U.S. at 644 n.13 and Powerex, 551 U.S. at 236). Not so. The

quoted language actually comes from the Court’s application of

City of Waco v. U.S. Fidelity & Guaranty Co., 293 U.S. 140 (1934),

which permits review of certain district court determinations

that precede a remand order “in logic and in fact,” id. at 143.

Kircher and Powerex merely concluded that the order being appealed did not qualify as a Waco order because it was not separate from the remand order. See Kircher, 547 U.S. at 644 n.13;

Powerex Corp., 551 U.S. at 236. Those cases did not hold that

review of a remand order must be coextensive with the four corners of that order.

to particular issues, it could have done so with greater

clarity. See Pet. Br. 18. But that argument cuts against

petitioners: if Congress wanted to make all issues

raised in an appeal reviewable, it knows how to do so.

See, e.g., 18 U.S.C. 3595(c)(1) (“The court of appeals

shall address all substantive and procedural issues

raised on the appeal of a sentence of death.”); 5 U.S.C.

1508 (“The court shall review the entire record

including questions of fact and questions of law.”); 38

U.S.C. 7104(a) (“All questions in a matter . . . shall be

subject to one review on appeal to the Secretary.”); 33

U.S.C. 1320(f) (“The district court . . . shall consider

and determine de novo all relevant issues.”). The best

interpretation of what Congress wrote in Section

1447(d) is that the Exception Clause authorizes review

only of its enumerated removal grounds. See Caraco

Pharm. Labs., Ltd. v. Novo Nordisk A/S, 566 U.S. 399,

416 (2012) (“[T]he mere possibility of clearer phrasing

cannot defeat the most natural reading of a statute.”).

c. Finally, petitioners cite several decisions by

this Court that construed 28 U.S.C. 1292 and 1253 as

authorizing plenary appellate review—most notably,

Yamaha’s construction of Section 1292(b). See Pet. Br.

21–23. None of these cases, however, set forth a

universal rule governing the scope of appellate review.

See Pet. App. 9a (Yamaha did not “purport to establish

a general rule governing the scope of review for every

statute” that uses the word “order.”); Boulder, 965

F.3d at 807 (same); Rhode Island v. Shell Oil Prods.

Co, LLC, 979 F.3d 50, 58 (1st Cir. 2020) (same); San

Mateo, 960 F.3d at 596–97 (same). They illustrate that

some grants of appellate jurisdiction provide for

plenary review—not that all do so.

Context, moreover, distinguishes these statutes

from Section 1447(d). Section 1292(b), for example,

provides a discretionary right of appeal from an

interlocutory order that “involves a controlling question

of law as to which there is a substantial ground for

difference of opinion.” 28 U.S.C. 1292(b). By using the

word “involves,” Congress signaled that a Section

1292(b) “order” is broader than the “controlling

question of law,” meaning that appellate review of the

“order” may entail review of issues other than the

certified question. Section 1447(d), by contrast, does

not contain similar language indicating that review of

remand orders extends beyond the two enumerated

removal grounds in the Exception Clause.

Section 1292(b) also vests the district and circuit

courts with discretion to disallow the appeal; the district

court must “be of the opinion” that review is appropriate,

and the court of appeals “may thereupon, in its discretion,

permit an appeal . . . .” Section 1447(d) has no discretionary

component, and petitioners’ construction would thus not

only allow, but mandate plenary review whenever

removal is alleged under Section 1442 or 1443.

Moreover, Sections 1292 and 1253 authorize review

of interlocutory decisions, whereas remand orders

function as final decisions that result in “the district

court disassociat[ing] itself from the case entirely.”

Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 713–14

(1996). When the Court construed Sections 1292 and

1253 to authorize plenary review of issues not

enumerated in the statutes themselves, it simply

permitted review of issues that would eventually be

reviewable on appeal from final judgment—a sensible

construction that avoids piecemeal appellate review

and accelerates a final determination on the merits.

If, however, the Court read Section 1447(d) to authorize

plenary review of removal grounds not identified in

the Exception Clause, it would permit review of issues

that are generally unreviewable—a construction that

risks expanding the “limited jurisdiction” of federal

courts “by judicial decree.” Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994).

Thus, reading the Exception Clause to authorize

review of its enumerated removal grounds (and no

others) is not only supported by the language, context,

and structure of Section 1447(d). It is entirely

consistent with this Court’s precedent.

B. This Case Was Not Removed “Pursuant

to” Section 1442 or 1443.

Respondent should also prevail for an independent

reason: Even if petitioners’ interpretation of “order” as

allowing appellate review of all issues in the order were

otherwise correct, Section 1447(d) by its terms limits

appellate jurisdiction to cases removed “pursuant to

section 1442 or 1443.” Where, as here, the defendants’

asserted grounds for removal under Section 1442 or

1443 lack merit, the removal is not “pursuant to” those

grounds, and the appellate court’s jurisdiction ends.

Petitioners gloss over this precondition for obtaining

appellate jurisdiction under the Exception Clause,

asserting that any case in which a defendant merely

cites an enumerated ground in its removal petition

qualifies. Pet. Br. 12. That interpretation, however,

conflicts with the plain meaning of “pursuant to,” which

carves out a narrow exception from Section 1447(d)’s

jurisdictional bar for cases removed “in compliance

with,” “in accordance with,” and “in conformance to”

the requirements set forth in Section 1442 or 1443.3

Respondent has never conceded that a case has been removed “pursuant to” Section 1442 or 1443 any time a “notice of

removal asserts that the case is removable” on one of those

grounds. Pet. Br. 12; see also U.S. Amicus Br. 10; Br. of State

1. By its terms, the Exception Clause grants appellate jurisdiction only in cases “removed pursuant to

section 1442 or 1443.” 28 U.S.C. 1447(d). Any other

case is covered by the Non-Reviewability Clause and

is therefore “not reviewable.” Id. Thus, before an

appellate court can invoke the Exception Clause as a

jurisdictional basis for reviewing the remand order, it

must first determine whether removal was in fact

accomplished “pursuant to” either of the two

enumerated provisions.

2. Congress did not define “pursuant to” in the

removal statutes, but the term ordinarily means “ ‘in

accordance with’ or ‘in conformance to.’ ” SAS Inst.,

138 S. Ct. at 1355–56 (brackets omitted). When

Congress added the civil-rights exception to Section

1447(d) in 1964, contemporary dictionaries defined

the term to mean: “in conformance to,” Webster’s

Seventh New Collegiate Dictionary 694 (1963); “in

accordance with,” American Heritage Dictionary 1062

(1969); and “in accordance,” Black’s Law Dictionary

1401 (4th ed. 1951). The same was true when Congress

passed the 2011 Removal Clarification Act, with

Black’s Law Dictionary listing the first two definitions

of “pursuant to” as “[i]n compliance with” and “in

accordance with.” Black’s Law Dictionary 1431 (10th

ed. 2014); see also Pursuant, Oxford Dictionary of

English Online (3d ed. 2010) (“in accordance with”).

Amici for Pet. 5, 9–10. Respondent argued to the contrary in the

court below. See Fourth Cir. Tr., 22:11–16 (Dec. 11, 2019)

(“1447(d) refers to an order ‘pursuant to’ the two enumerated

sections. So it’s limited to those grounds.”) Even if respondent

had not raised this argument below, it would be free to do so

here: it falls within the Question Presented, see Pet. I, and parties—especially respondents—“are not limited to the precise arguments they made below.” Yee v. City of Escondido, 503 U.S.

519, 534 (1992).

The Court likewise uses this definition when construing

statutory and constitutional provisions. See SAS Inst.,

138 S. Ct. at 1356 (35 U.S.C. 314); Alden, 527 U.S. at 731

(U.S. Const., art. VI). So do lower courts. See, e.g., Patel

v. Attorney Gen., 599 F.3d 295, 298 (3d Cir. 2010); Price

v. Medicaid Dir., 838 F.3d 739, 749 (6th Cir. 2016);

United States v. Lee, 659 F.3d 619, 622 (7th Cir. 2011);

United States v. DeCay, 620 F.3d 534, 544 (5th Cir.

2010); United States v. Copeland, 381 F.3d 1101, 1107

(11th Cir. 2004); All. Envtl., Inc. v. Harrison W. Constr.

Corp., 94 F.3d 644 (Table) (6th Cir. 1996) (unpublished).

3. Given its ordinary meaning at the time of

enactment, the phrase “a case . . . removed pursuant to

section 1442 or 1443” means a case that in fact accords,

conforms, or complies with the requirements set forth in

one of those removal statutes. The Court’s interpretation

of the same or indistinguishable terms in three legal

provisions supports this plain-meaning construction.

a. In SAS Institute, the Court considered 35

U.S.C. 314(b), which requires the Director of the Patent

Office to “decide ‘whether to institute an inter partes

review [of patent claims] . . . pursuant to a petition.’ ”

138 S. Ct. at 1355–56. “[B]y using the term ‘pursuant

to,’ ” the Court explained, Congress limited the scope of

an inter partes review of a petitioner’s patent claims

by requiring it to “proceed[] ‘in accordance with’ or ‘in

conformance to’ the petition” filed. Id. (quoting Oxford

English Dictionary (3d ed., Mar. 2016)). That meant

the Director had no “license to depart from the petition

and institute a different inter partes review of his own

design.” Id. at 1356. The Court thus read the phrase

“pursuant to a petition” as requiring inter partes

review to conform to a petition’s substantive contents,

not as authorizing a freewheeling inquiry by the

Director any time a petition is filed.

b. In Alden, 527 U.S. 731–32, the Court reached

a similar conclusion construing the Supremacy Clause,

which declares that “the Laws of the United States . . .

made in Pursuance [of the Constitution] . . . shall be

the supreme Law of the Land,” U.S. Const., art. VI,

cl. 2 (emphasis added). The Court read “in pursuance

of” to mean “consistent with” or “accord[ing] with.”

Alden, 527 U.S. at 731–32 (observing that its construction was made “evident from [the] text”); see also

Printz v. United States, 521 U.S. 898, 924–25 (1997)

(laws made “in Pursuance of the Constitution” must

“accord with the Constitution” (cleaned up)). For purposes of the Supremacy Clause, then, a federal statute

qualifies as “the supreme Law of the Land” only if it

conforms to, and does not violate, the Constitution’s

restrictions on Congress’s lawmaking authority—i.e.,

the statute must be a valid exercise of Congress’s enumerated powers and not transgress any constitutional

prohibitions. See, e.g., Alden, 527 U.S. at 731–32;

Printz, 521 U.S. at 925–26; Gregory v. Ashcroft, 501

U.S. 452, 460 (1991) (under the Supremacy Clause,

“Congress may impose its will on the States,” “[a]s

long as it is acting within the powers granted it under

the Constitution”); Reid v. Covert, 354 U.S. 1, 16 (1957)

(plurality) (Supremacy Clause requires treaties to

“comply with the provisions of the Constitution”);

Collins v. Virginia, 138 S. Ct. 1663, 1679 (2018)

(Thomas, J., concurring); Gordon v. United States, 117

U.S. 697, 705 (1864).

c. Construing Congress’s use of the word “under”

to mean “ ‘in accordance with’ or ‘according to,’ ” the

Court made clear in Pereira, 138 S. Ct. at 2117, that an

action taken “ ‘in accordance with’ or ‘according to’ ” a

particular statute ordinarily refers to an action that

complies with the statute’s requirements. Pereira

concerned “the so-called ‘stop-time rule’ ” in 8 U.S.C.

1229b(d)(1)(A), which provides that a noncitizen’s period

of continuous presence in the United States ends when

the government serves the noncitizen with “ ‘a notice to

appear under section 1229.’ ” Id. at 2109. Section 1229(a),

in turn, requires the government to serve a noncitizen

subject to removal proceedings with a “notice to appear”

that specifies, among other things, “[t]he time and place

at which the proceedings will be held.” 8 U.S.C. 1229(a).

Reading the statutes together, the Court in Pereira

concluded that the government could not “trigger the

stop-time rule” by serving “a noncitizen with a document

that is labeled ‘notice to appear,’ but . . . [that] fails to

specify either the time or place of the removal

proceedings.” 138 S. Ct. at 2110. Instead, the government

must serve “a ‘notice to appear’ ‘[i]n accordance with’ or

‘according to’ the substantive time-and-place

requirements set forth in § 1229(a).” Id. at 2117. That

meant, the Court explained, that “[a] putative notice to

appear” only qualifies as “a notice to appear under

section 1229(a)” if it actually satisfies Section 1229(a)’s

time-and-place requirements. Id. at 2113–14.

d. The Court’s analysis in those cases applies

with equal force here. To invoke the Exception Clause,

a defendant must do more than merely assert Section

1442 or 1443 removal grounds; it must show that the

removal in fact satisfies the “substantive [removal]

requirements set forth in § [1442 or 1443].” Id. at 2117.

Accordingly, if the court of appeals concludes that a

case satisfies the removal requirements in Section

1442 or 1443, then it has jurisdiction under the

Exception Clause and can reverse the remand order.

If, however, the appellate court concludes that the case

is not removable under Section 1442 or 1443, then the

court may not address any other grounds for removal

because the case was not removed “pursuant to”

Section 1442 or 1443.

4. This plain-meaning interpretation of “pursuant

to” also accords with how Congress used that term

elsewhere in the removal statutes. For example, Section

1446(a) states that “defendants desiring to remove any

civil action from a State court shall file . . . a notice of

removal signed pursuant to Rule 11 of the Federal

Rules of Civil Procedure.” There, “pursuant to” Rule 11

can only mean “in compliance with” the signature

requirements of Rule 11(a) and the good-faith

requirements of Rule 11(b). See, e.g., Mayo v. Bd. of

Educ. of Prince George’s Cty., 713 F.3d 735, 742 (4th

Cir. 2013); Harper v. AutoAlliance Int’l, Inc., 392 F.3d

195, 201–02 (6th Cir. 2004); RES-GA Cobblestone, LLC

v. Blake Const. & Dev., LLC, 718 F.3d 1308, 1311 n.1

(11th Cir. 2013); Proctor v. Vishay Intertechnology Inc.,

584 F.3d 1208, 1225 (9th Cir. 2009). Because “identical

words used in different parts of the same statute are

generally presumed to have the same meaning,” IBP,

Inc. v. Alvarez, 546 U.S. 21, 34 (2005), Congress

presumably used “pursuant to” in Section 1447(d) to

mean “in compliance with” the requirements set forth

in the civil-rights and federal-officer removal statutes.

5. It is not uncommon for jurisdictional statutes to

require courts to address the merits of an issue or

claim in determining their own jurisdiction, as the

Exception Clause does here. See, e.g., Bolivarian

Republic of Venezuela, 137 S. Ct. at 1319 (to determine

whether 28 U.S.C. 1605 grants jurisdiction, courts

must first decide whether property was “taken in

violation of international law”); Ruiz, 536 U.S. at

626–28 (to determine whether 18 U.S.C. 3742(a)(1)

authorized criminal defendant’s appeal, appellate

court must evaluate merits of constitutional claim);

Leocal v. Ashcroft, 543 U.S. 1, 3–4, 5 n.3 (2004) (to

determine whether 8 U.S.C. 1252(a)(2)(C) precluded

review of a final order of removal, appellate court

had to decide whether petitioner was removable by

reason of having committed certain criminal

offenses); Kircher, 547 U.S. at 643–44 (to determine

whether 15 U.S.C. 77p(c) authorized removal

jurisdiction, district court had to determine whether

15 U.S.C. 77p(b) precluded the action from being

maintained in any state or federal court); Greenwich

Fin. Servs. Distressed Mortg. Fund 3 LLC v.

Countrywide Fin. Corp., 603 F.3d 23, 27–28 (2d Cir.

2010) (to determine whether 28 U.S.C. 1453(d)(3)

precluded appellate review of remand order, appellate

court had to decide whether district court properly

remanded the case for lack of jurisdiction under 28

U.S.C. 1332(d)(9)(C)).

When a statute intertwines “merits and jurisdiction”

federal courts can and must decide the merits to

assure themselves of jurisdiction. Bolivarian

Republic, 137 S. Ct. at 1319. This point is illustrated

by 28 U.S.C. 1605(a)(3), which carves out an exception

to foreign sovereign immunity and “grants jurisdiction

only where there is a valid claim that ‘property’ has

been ‘taken in violation of international law.’ ” Id. at

1318 (emphasis added). Under that provision, a

“nonfrivolous argument” that the requisite taking

has occurred—or even a “good argument” to that

effect—is “insufficient to confer jurisdiction.” Id. at

1316, 1324. Instead, the plaintiff must “show (not just

arguably show) a taking of property in violation of

international law.” Id. at 1324. The courts, for their

part, must “answer th[is] jurisdictional question,”

even if doing so “inevitably decide[s] some, or all, of

the merits issues” in the case. Id. at 1319.

Similarly here, the plain text of Section 1447(d)

requires an appellate court to decide the merits of

any asserted Section 1442 and 1443 basis for removal

to determine its jurisdiction. Had Congress intended

to authorize jurisdiction based on mere allegations of

legal authority, it could have said so, as it has often

done. See, e.g., 15 U.S.C. 78aa(b); 42 U.S.C. 2297h-8(a)

(7)(C); 28 U.S.C. 1338(b); 28 U.S.C. 1354; 25 U.S.C.

3013; 44 U.S.C. 2204(e). That Congress chose not to

use “allegation” language in the Exception Clause

underscores its intent to limit appellate jurisdiction

to valid assertions of Section 1442 or 1443 as a basis

for removal. See City of Milwaukee v. Illinois &

Michigan, 451 U.S. 304, 329 n.22 (1981) (“We prefer

to read the statute as written.”).

6. Petitioners invoke two definitions of “pursuant

to,” neither of which helps them. First, they

acknowledge that “pursuant to” generally means “in

accordance with.” Pet. Br. 19. As explained above,

applying that definition of “pursuant to” means that

the Exception Clause extends appellate jurisdiction

only to cases that satisfy the requirements in Section

1442 or 1443. See Part I.B.2, supra; see also Accordance,

Oxford Dictionary of English Online (3d ed. 2010) (“in

accordance with” means “in a manner conforming

with”). Second, Petitioners cite a secondary definition

of “pursuant to” as meaning “by reason of.” Pet. Br. 19.

But just because a definition may be “acceptable” does

not make it the “ordinary” or “most common meaning”

of a term, much less the proper statutory meaning.

Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 568

(2012). Here, “by reason of” is not the most common

definition of “pursuant to,” as a review of the parties’

cited dictionaries reveals. See Part I.B.2, supra; Pet.

Br. 19. It is not the definition that Congress relied on

when it used “pursuant to” in Section 1446(a). See

Part I.B.4.a, supra. And it is not the definition that

this Court has used when interpreting “pursuant to”

in other statutory and constitutional provisions. See

Part I.B.3, supra. Petitioners fail to identify a single

instance in which the Court has construed “pursuant

to” to mean “by reason of” in a statute.

In short, this Court should read “pursuant to” to

mean “in accordance with,” “in conformance to,” or “in

compliance with.” Guided by that ordinary-meaning

interpretation, it should conclude that the court of

appeals’ jurisdiction ended once it held that petitioners

did not satisfy the removal requirements of Section

1442 or 1443. That construction of the Exception

Clause “makes word-by-word linguistic sense.”

Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519,

530 (2013). It fits the statutory context. It avoids the

anomalous results that, as discussed above, follow

from reading the Exception Clause to swallow the

Non-Reviewability Clause. See Part I.A.2, supra. And

it accords with the purpose of Section 1447(d), as

shown below.

II. In 2011, Congress Ratified Five Decades of

Unanimous Judicial Authority That

Construed the Exception Clause as

Authorizing Review Only of Its

Enumerated Removal Grounds.

When Congress enacted the Removal Clarification

Act of 2011 and added two words (“1442 or”) to the

Exception Clause, it ratified the circuit courts’ uniform

construction of that clause as limiting the scope of

appellate review to the grounds for removal expressly

identified in Section 1447(d).

1. This Court generally assumes that “Congress is

. . . aware of an administrative or judicial interpretation

of a statute.” Lorillard v. Pons, 434 U.S. at 580. Thus,

“[i]f a [statutory] word or phrase has been given a

uniform interpretation by inferior courts, a later version

of that act perpetuating the wording is presumed to

carry forward that interpretation.” Texas Dep’t, 576

U.S. 536 (cleaned up). Contrary to petitioners’

insistence, see Pet. Br. 34–35, this canon is not limited

to the enactment of new statutes or the wholesale

reenactment of old ones. It applies with full force where,

as here, Congress has amended a statutory provision

without changing the language at issue. See, e.g., Texas

Dep’t, at 536; Forest Grove Sch. Dist. v. T.A., 557 U.S.

230, 243 n.11 (2009); Microsoft Corp. v. i4i Ltd. P’ship,

564 U.S. 91, 113–14 (2011).

By the time Congress amended Section 1447(d) in

the Removal Clarification Act, five decades of unbroken

appellate court holdings had settled the meaning of

the Exception Clause. Between 1964 and 2011, nine

circuits concluded that by its terms, and in the context

of Section 1447(d) as a whole, the Exception Clause

limited the scope of review to the civil-rights removal

statute. See, e.g., Appalachian Volunteers, Inc. v.

Clark, 432 F.2d 530, 533–34 (6th Cir. 1970) (declining

to review non-designated removal grounds “[b]ecause

of the limited scope of appellate review of remand

orders authorized” by Section 1447); Pennsylvania ex

rel. Gittman v. Gittman, 451 F.2d 155, 156–57 (3d Cir.

1971) (reviewing appeal of Section 1443 removal

grounds while holding “a decision on removal under

§ 1441 is not appealable”); Noel v. McCain, 538 F.2d

633, 635 (4th Cir. 1976) (“Jurisdiction to review

remand of a § 1441(a) removal is not supplied by also

seeking removal under § 1443(1).”); Robertson v. Ball,

534 F.2d 63, 65 (5th Cir. 1976) (“appeal must be

dismissed” as to Section 1441 but “[t]he removal

effected under § 1443 stands in a different posture”);

Detroit Police Lieutenants & Sergeants Ass’n v. City of

Detroit, 597 F.2d 566, 567–68 (6th Cir. 1979) (Section

1441 grounds not reviewable, but “Section 1447(d)

expressly permits review of a remand order where the

removal is based upon Section 1443”); State Farm

Mut. Auto. Ins. Co. v. Baasch, 644 F.2d 94, 96–97 (2d

Cir. 1981) (dismissing appeal “for want of appellate

jurisdiction” as to Section 1441 but reviewing Section

1443 grounds because Section 1447(d) “expressly

mak[es] such orders reviewable”); Sanchez v. Onuska,

2 F.3d 1160 (Table), 1993 WL 307897 (10th Cir. 1993)

(unpublished) (same); Thornton v. Holloway, 70 F.3d

522, 524 (8th Cir. 1995) (same); Davis v. Glanton, 107

F.3d 1044, 1047 (3d Cir. 1997) (same); Alabama v.

Conley, 245 F.3d 1292, 1293 (11th Cir. 2001) (same);

Patel v. Del Taco, Inc., 446 F.3d 996, 998 (9th Cir.

2006) (same); see also Opp. Cert. 11–14 (collecting

cases). Not one court during those 47 years deviated

from this common-sense construction.

Against the backdrop of nine circuit courts’

consistent construction, Congress’s decision in 2011 to

amend the Exception Clause by adding a reference to

federal-officer jurisdiction, “while still adhering to the

operative language” and structure of Section 1447(d),

provides “convincing support for the conclusion that

Congress accepted and ratified the unanimous

holdings of the Courts of Appeals.” Texas Dep’t, 576

U.S. at 536. The amendment reaffirms Congress’s

intent to limit appellate review only to those grounds

specifically designated in the Exception Clause.

2. Petitioners contend that the meaning of Section

1447(d) was not “settled” in 2011 because courts had

“interpreted the term ‘order’ in other statutes” to

authorize review of an entire order. Pet. Br. 34

(emphasis added). As this Court has recently

reconfirmed, however, “the ratification canon . . . derives

from the notion that Congress is aware of a definitive

judicial interpretation of a statute when it reenacts the

same statute using the same language.” Food Mktg.

Inst., 139 S.Ct. at 2365. Judicial interpretations of

other statutes cannot unsettle the longstanding,

unanimous construction of Section 1447(d).

Petitioners also suggest that Congress could not

have intended to ratify the circuit courts’ uniform

construction of the Exception Clause because the

courts’ decisions were, in petitioners’ view, too

“conclusory.” Pet. Br. 34. But the fact that nine circuits

across five decades uniformly found the meaning of the

statute obvious does not detract from their conclusion.

In any event, this Court has never suggested that

ratification turns on the length of judicial opinions;

instead, it turns on whether “the uniformity” of “judicial

interpretations” has sufficiently “settled the meaning”

of the disputed statutory language. Bragdon v. Abbott,

524 U.S. 624, 645 (1998); see also Lamar, Archer &

Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762 (2018);

Lorillard, 434 U.S. at 580; Scalia & Garner, § 54 (“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, the

meaning of the Exception Clause was settled when

Congress amended Section 1447(d).

Petitioners’ argument that congressional inaction is

insufficient to ratify judicial construction of a statute,

Pet. Br. 34–35, is inapposite. Congress affirmatively

amended Section 1447(d) to add a second exception to

non-reviewability, while leaving the operative

language (“except that an order remanding a case . . .

removed pursuant to”) intact. By 2011, that language

had been consistently construed by every circuit court

that examined it. Had Congress intended to impose a

different construction, it would have given some

indication. “Quite obviously, reenacting precisely the

same language would be a strange way to make a

change.” Pierce v. Underwood, 487 U.S. 552, 567

(1988); cf. Helsinn Healthcare S.A. v. Teva Pharm.

USA, Inc., 139 S. Ct. 628, 633–34 (2019).

III. Limiting Review under the Exception

Clause to Section 1442 and 1443 Removal

Grounds Best Advances the Purposes of

Section 1447(d).

Section 1447(d) read as a whole reflects Congress’s

strong “interest in avoiding prolonged litigation on

threshold nonmerits questions” of removability.

Powerex, 551 U.S. at 237. Congress’s longstanding

prohibition of most appellate review of remand orders

“reduce[s] the high cost of litigation.” Osborn v. Haley,

549 U.S. 225, 268 (2007) (Scalia, J., dissenting)

(Section 1447(d) is “an all-too-rare effort to reduce the

high cost of litigation”). It decreases docket congestion

in the federal appellate courts. See Pet. Br. 30 (citing

evidence that Congress enacted Section 1447(d) to

reduce judicial “backlog”); Thomas R. Hrdlick,

Appellate Review of Remand Orders in Removed Cases:

Are They Losing A Certain Appeal?, 82 Marq. L. Rev.

535, 542 (1999) (same); cf. Martin, 546 U.S. at 140

(Section 1447(c)’s fees provision reflects Congress’s

concern that unjustified removal “delays resolution of

the case, imposes additional costs on both parties, and

wastes judicial resources”). And it furthers important

principles of federalism. The Fourth Circuit’s

construction of Section 1447(d) advances each of these

important goals. Petitioners’ does not.

1. Petitioners’ proposed construction of the Excep

tion Clause would require litigants to devote consid

erable time and resources to briefing multi-issue

remand appeals and would force appellate courts to

expend “scarce federal judicial resources” adju

dicating those appeals. McCleskey v. Zant, 499 U.S.

467, 491 (1991). Petitioners assert that those

additional burdens will be “marginal (at most).” Pet.

Br. 30. The facts and history of this case demonstrate

otherwise.

Petitioners advanced eight separate grounds for

removal jurisdiction in the district court, including

not only federal-officer jurisdiction and a novel theory

of arising-under jurisdiction based on federal common

law, but also theories based on admiralty jurisdiction,

bankruptcy jurisdiction, federal enclave jurisdiction,

the Outer Continental Shelf Lands Act, and others.

J.A. 203–41. The parties devoted 180 pages to briefing

those grounds for remand in the district court

(petitioners’ brief dedicated six pages to federal-officer

removal), based on petitioners’ 49-page Notice of

Removal, four supporting declarations, and 43

exhibits, comprising 1,103 pages of materials. The

district court required 46 pages to analyze and reject

each of petitioners’ “proverbial ‘laundry list’ of

grounds for removal.” See Pet. App. 34a–35a. It

disposed of federal-officer removal in under four. Id.

at 68a–72a. Construing the Exception Clause to give

disappointed defendants the statutory right to

appellate review of every argument for removal

rejected by the district court, simply because one

asserted ground was federal-officer or civil-rights

jurisdiction, would impose substantial burdens on

the appellate courts and necessarily result in

considerable delays. See, e.g., Davila v. Davis, 137 S.

Ct. 2058, 2069 (2017) (recognizing that the burdens of

litigation are often a function of the number and

complexity of appellate issues).

2. Petitioners’ expansive construction, if accepted,

would also increase the number of appeals taken from

remand orders by encouraging defendants to add

federal-officer or civil-rights grounds to their removal

notices to secure an otherwise-unavailable pathway to

appeal, as petitioners have done.

This Court has always assessed with clear eyes the

risks of jurisdictional “gamesmanship.” Hertz, 559

U.S. at 94; Abney, 431 U.S. at 663 (noting risk that

alternate construction of jurisdictional statute “would

encourage criminal defendants to seek review of, or

assert, frivolous double jeopardy claims in order to

bring more serious, but otherwise non-appealable

questions to the attention of the courts of appeals

prior to conviction and sentence”); Swint, 514 U.S. at

49–50; Murdock, 87 U.S. at 629. The Seventh Circuit

acknowledged this very risk in Lu Junhong, conceding

that under its construction of Section 1447(d), “[s]ome

litigants may cite § 1442 or § 1443 in a notice removal

when all they really want is a hook to allow appeal of

some different subject,” 792 F.3d at 813—precisely

what happened here. See Boulder, 965 F.3d at 818–19

(“no lawyer would neglect to find a defensible, if

inadequate, way to assert” 1442 or 1443 grounds “to

avoid the bar . . . for all other[s]”); 15A Wright & Miller,

Fed. Prac. & Proc. Juris. § 3911.2 (2d ed. 1996) (noting

in the context of the collateral order doctrine, “[t]his

fear has genuine substance.”)

3. Petitioners offer several suggestions for how appellate courts could ameliorate the burdens that would

result from adopting petitioners’ construction of the

Exception Clause. None have practical utility, however, and there is no evidence Congress gave them

any weight either in 1964 or 2011.

a. Petitioners suggest that appellate courts could

avoid difficult questions of federal-officer or civil-rights

removal jurisdiction simply by “resolving the appeal

based on an alternative ground for removal that is more

clearly meritorious.” Pet. Br. 31. But under petitioners’

construction, which directs courts to review the precise

issues Congress has prohibited them from reviewing,

appellate courts would still have to analyze each issue

to evaluate which is most “clearly meritorious”; and if

none of those issues were sufficiently meritorious to

require reversal, the appellate court would have to

address every ground advanced by the defendants

before affirming the district court.

b. Next, petitioners assert that the fee-shifting

authority provided by 28 U.S.C. 1447(c), the goodfaith obligations imposed by Federal Rule of Civil

Procedure 11, and the courts’ “inherent authority to

sanction” bad faith litigation conduct would dissuade

defendants from using Section 1442 or 1443 as a

jurisdictional hook to gain appellate review of more

meritorious removal grounds. Pet. Br. 35.

None of these provisions would have significant

deterrent effect. A defendant that makes a frivolous

Section 1442 or 1443 argument can avoid an award

of Section 1447(c) fees merely by asserting another

removal ground that is “objectively reasonable.”

Martin, 546 U.S. at 141. As for sanctions under Rule

11 or its appellate counterpart, courts “rarely” impose

them. In re Green Hills Dev. Co., L.L.C., 741 F.3d

651, 660 (5th Cir. 2014); see also Ario v. Underwriting

Members of Syndicate 53, 618 F.3d 277, 297 (3d Cir.

2010). The standard for such sanctions is extremely

demanding, and in practice, courts reserve sanctions

for the most “extreme cases.” Crawford-El v. Britton,

523 U.S. 574, 600 (1998); see also Cooter & Gell v.

Hartmarx Corp., 496 U.S. 384, 393 (1990) (“Rule 11

. . . deter[s] baseless filings”); Fed. R. App. P. 38. Rule

11, moreover, requires a 21-day safe-harbor period

before a plaintiff may move for sanctions, further

exacerbating the pre-remand delay that Congress

sought to minimize. See Fed. R. Civ. Proc. 11(c)(2).

c. Petitioners suggest that appellate courts could

dismiss appeals for lack of jurisdiction where an

asserted federal-officer or civil-rights ground for

removal is “wholly insubstantial and frivolous.” Pet.

Br. 36. That “nonfrivolous-argument standard” does

not derive from the text of Section 1447(d), however.

Instead, it would be a judge-made standard similar to

that applied to some jurisdictional statutes, most

notably the federal-question jurisdiction statute, 28

U.S.C. 1331. See Rosado v. Wyman, 397 U.S. 397, 404

(1970); Bell v. Hood, 327 U.S. 678, 682–83 (1946). There

is no need to create such a difficult to police, implied

restriction on the scope of the Exception Clause, because

the statutory language already limits appellate review

to cases where removal was in fact “pursuant to”

Sections 1442 or 1443. See 13D Wright & Miller, Fed.

Prac. & Proc. § 3564 (3d ed. 2020) (collecting critiques

of the nonfrivolous-argument standard).

4. Petitioners speculate that Congress meant the

Exception Clause to authorize plenary appellate

review because any case in which a defendant asserts

a federal-officer or civil-rights ground for removal,

even erroneously, “may implicate vital federal

interests” for some other reason. Pet. Br. 28. That

cannot be right. Many categories of removable cases

“implicate” federal concerns, for example because

they involve foreign sovereign defendants, 28 U.S.C.

1441(d), or necessarily raise a substantial and

disputed question of federal law, Grable & Sons Metal

Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312

(2005). But for more than 130 years, the law has been

settled that when a defendant removes in reliance on

such grounds and the district court remands, the

remand is unreviewable “whether erroneous or not

and whether review is sought by appeal or by

extraordinary writ.” Thermtron Prods., Inc. v.

Hermansdorfer, 423 U.S. 336, 343 (1976); Powerex,

551 U.S. at 236–37 (rejecting argument that “sensitive

foreign-relations implications” can override NonReviewability Clause). There has never been an

exception to the Non-Reviewability clause for cases

the court of appeals believes may implicate federal

interests. There is no basis to conclude Congress

created such an exception for defendants who allege,

wrongly, that they are entitled to remove under

Section 1442 or 1443.4

The structure, context, and purpose of Section

1447(d) all support a single, linguistically sensible

construction of the Exception Clause as permitting

appellate review of a district court remand order only

to the extent the order rejects removal based on Section

1442 or 1443. That was the interpretation that

appellate courts uniformly followed from 1964 until Lu

Junhong was decided in 2015. It was the interpretation

that Congress ratified when it enacted the Removal

Clarification Act of 2011. It is the interpretation the

First, Fourth, Ninth and Tenth Circuits have followed

post-Lu Junhong. And it is the interpretation that this

Court should adopt in this case.

The 2011 legislative history confirms that Congress sought

to protect the narrow class of defendants entitled to assert

federal-officer jurisdiction, not all defendants with generalized

federal interests. See House Judiciary Committee Report, H.R.

Rep. No. 112-17, at 4 (2011) (amendment was necessary because

Section 1447(d)’s Exception Clause “has no application to suits

involving Federal officers and § 1442. This restriction means

remanded cases brought against Federal officers . . . cannot find

their way back to Federal court”).

IV. The Court Should Not Reach Petitioners’

“Arising-Under” Jurisdiction Arguments.

The Question Presented raises one issue: whether

the Fourth Circuit erred in its construction of 28

U.S.C. 1447(d). Petitioners did not seek review of the

lower courts’ rejections of their federal-officer

jurisdiction arguments on the merits, or any of their

other removal theories. Now, in their opening brief,

petitioners ask this Court to decide the merits of one

of those other grounds—“arising-under” jurisdiction

based on federal common law. See Pet. Br. 37–45.

This Court should refuse the request. Section 1447(d)

bars this court, like the Fourth Circuit, from considering

any ground other than federal-officer jurisdiction,

which petitioners chose not to challenge here. If the

Court disagrees with the Fourth Circuit’s construction

of Section 1447(d), it should remand so that court can

review petitioners’ other removal grounds.

A. Petitioners Have Not Preserved Their

“Arising-Under” Jurisdiction Arguments.

Petitioners’ argument that the district court should

have asserted jurisdiction under 28 U.S.C. 1331 is not

properly before this Court.

1. The petition raised a single Question Presented,

and petitioners represented that “as it comes to the

Court, this case presents only that question.” Cert.

Reply Br. 9 (emphasis added). The Court “strongly

disapprove[s of] the practice of smuggling additional

questions into a case after [it] grant[s] certiorari,”

Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S.

Philips Corp., 510 U.S. 27, 34 (1993) (quotation marks

omitted), and should reject petitioners’ effort to do so.

“ ‘[O]nly the questions set forth in the petition, or

fairly included therein, will be considered by the

Court.’ ” Yee, 503 U.S. at 535 (quoting Supreme Court

Rule 14.1(a)); see also Rule 24.1(a) (merits briefs “may

not raise additional questions or change the substance

of the questions already presented” in the petition). A

question is “fairly included” in a petition only if it is a

“necessary predicate to the resolution of the question

presented in the petition,” Caspari v. Bohlen, 510 U.S.

383, 389–90 (1994), or “essential to [the] analysis,”

Missouri v. Jenkins, 515 U.S. 70, 84 (1995). Those

rules establish a “heavy presumption” against

consideration of newly raised issues that the Court

will disregard “only in the most exceptional cases.”

Izumi, 510 U.S. at 32 (quotation marks omitted).

Petitioners did not include their new “arising-under”

argument in their petition or briefs in support of

certiorari (which would have been insufficient

regardless, see Wood v. Allen, 558 U.S. 290, 304

(2010)). Nor is this purported ground for removal a

“necessary predicate” to the Court’s construction of

Section 1447(d) or “essential” to that analysis; it has

no bearing on the Question Presented.

Petitioners nonetheless contend the Court should

reach their arising-under argument because they have

asserted it in other cases. Pet. Br. at 27. That is not an

“exceptional” circumstance. Respondent should have

the right to demonstrate, in response to a properly

presented Question Presented and “in advance of

litigation on the merits,” that petitioners’ theory is

“not worthy of review.” Yee, 503 U.S. at 536. Indeed,

all the lower courts to consider it on the merits have

rejected it. See City of Oakland v. BP, PLC, 969 F.3d

895, 905–08 (9th Cir. 2020) (reversing the only district

court decision to accept petitioners’ jurisdictional

theory in one of these cases); Massachusetts v. Exxon

Mobil Corp., 462 F. Supp. 3d 31, 39–41 (D. Mass. 2020)

(collecting cases).

2. This Court routinely declines to reach issues not

addressed by the courts of appeals below, as is the

case here. See, e.g., Ret. Plans Comm. of IBM v.

Jander, 140 S. Ct. 592, 595 (2020); United States v.

Haymond, 139 S. Ct. 2369, 2385 (2019). Only the

Ninth Circuit has reached the issue here, making

petitioners’ theory particularly inappropriate for this

Court’s review, given the absence of any circuit conflict

or any meaningful consideration by other appellate

courts. Zivotofsky ex rel. Zivotofsky v. Clinton, 566

U.S. 189, 201 (2012); F.C.C. v. Fox Television Stations,

Inc., 556 U.S. 502, 529 (2009).

3. Petitioners’ contention that broad appellate

review does not apply to removal petitions based on “a

bad-faith or frivolous argument for federal-officer or

civil-rights removal,” Pet. Br. 36, provides further

reason for this Court to decline petitioners’ invitation

to go beyond the Question Presented. If petitioners

are correct, respondent would be entitled on remand

to show that petitioners’ federal-officer theory was

bad-faith or frivolous. See Pet. App. 70a–71a (referring

to “attenuated” federal-officer claim); id. 90a (denying

stay pending appeal because federal-officer removal

claim does not “raise[] a complex, serious legal

question”); Cty. of San Mateo v. Chevron Corp., 294 F.

Supp. 3d 934, 939 (N.D. Cal. 2018) (rejecting

defendants’ “dubious assertion of federal officer

removal”), aff’d in part, appeal dismissed in part, 960

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

Accordingly, petitioners’ arising-under argument

comes before this Court in the first instance, and the

Court should decline to address it. See Expressions

Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151

(2017) (“We are a court of review, not of first view.”

(cleaned up)).

B. Petitioners Mischaracterize Respondent’s

State-Law Claims and Federal Law.

Petitioners unfairly and inaccurately describe

respondent’s state-law claims, the law pertaining to

arising-under jurisdiction and the scope of federal

common law, and the reasons why every court that

has considered that jurisdictional argument in this

and related cases has rejected it. Far from requiring

this Court to “break little new ground,” Pet. Br. 37,

petitioners’ assertions ignore the allegations in

respondent’s complaint, conflict with decades of settled

precedent governing the creation of new federal

common law, and seek an unprecedented application

of the “complete preemption” doctrine to complaints

that plead state-law claims only.

1. Petitioners’ arising-under arguments rest on the

thrice-flawed assertion that respondent’s state-law

claims “seek[] redress for interstate pollution” caused

by “the combustion of petitioners’ fossil-fuel products,”

actually assert a federal common law claim in the

guise of Maryland state-law tort claims, and justify

removal under 28 U.S.C. 1331. Pet. Br. at 38–45.

Respondent’s complaint asserts tort claims under

Maryland law, including public and private nuisance

and failure to warn. J.A. 28–29. “Interstate pollution”

is not the wrongful conduct challenged in these

claims, and respondent does not seek a court order

limiting greenhouse gas emissions. See Pet. App.

21a–22a (“references to fossil fuel production in the

Complaint . . . [are] not the source of tort liability.”);

San Mateo, 960 F.3d at 601–03; Boulder, 965 F.3d at

819–27; Rhode Island, 979 F.3d at 59–60; Oakland,

969 F.3d at 907. For this threshold reason, petitioners’

contention that respondent’s claims are “necessarily

and exclusively governed” by a body of federal common

law that regulates disputes over “interstate pollution,”

Pet. Br. at 9, fails.

Moreover, the Court would need to create a new

category of federal common law to encompass the

state common law tort claims at issue, a sweeping

act of judicial lawmaking that could not be reconciled

with the Court’s admonition that “[j]udicial lawmaking

in the form of federal common law plays a necessarily

modest role under a Constitution that vests the

federal government’s ‘legislative Powers’ in Congress

and reserves most other regulatory authority to the

States.” Rodriguez v. Fed. Deposit Ins. Corp., 140 S.

Ct. 713, 718 (2020).

2. Petitioners’ reliance on the federal common law of

interstate emissions independently fails because that

federal common law has been displaced by the Clean

Air Act (“CAA”). See Am. Elec. Power Co. v. Connecticut,

564 U.S. 410, 423–25 (2011) (“AEP ”) (CAA displaces

federal common law public nuisance claims challenging

defendants’ greenhouse gas emissions); Native Village

of Kivalina v. ExxonMobil Corp., 696 F.3d 849 (9th Cir.

2012). As the Court held in AEP, whatever federal

common law might once have applied to disputes over

interstate emissions no longer exists, and cannot

provide a basis for jurisdiction. See 564 U.S. at 429

(“[T]he availability vel non of a state lawsuit depends,

inter alia, on the preemptive effect of the federal

[CAA].”); see also Oakland, 969 F.3d at 906.

3. Petitioners’ jurisdictional arguments also run

counter to the century-old “ ‘well-pleaded complaint

rule[,]’ which provides that federal jurisdiction exists

only when a federal question is presented on the face of

the plaintiff’s properly pleaded complaint.” Rivet v.

Regions Bank of La., 522 U.S. 470, 475 (1998). As the

“master of the claim,” respondent had every right to

“avoid federal jurisdiction by exclusive reliance on state

law” in this case. Caterpillar Inc. v. Williams, 482 U.S.

386, 392 (1987). Because federal preemption, whether

by statute or common law, “is ordinarily a federal

defense,” Metro. Life Ins. Co. v. Taylor, 481 U.S. 58, 63

(1987), a complaint like respondent’s, which does not

on its face plead a federal-law defense, does not arise

under federal law for purposes of 28 U.S.C. 1331. Id.

While the doctrine of “complete preemption” is an

exception to the well-pleaded complaint rule, Pet. Br.

41, petitioners expressly disavowed below any

complete preemption argument based in federal

common law. See Defendants’ Fourth Cir. Reply Br. at

10 (“Defendants did not make a complete-preemption

argument as to federal common law.” (cleaned up));

Wood v. Milyard, 566 U.S. 463, 474 (2012) (standards

governing waiver). The Court has repeatedly expressed

great “reluctan[ce] to find th[e] extraordinary

preemptive power” required for complete preemption,

Metro. Life Ins. Co., 481 U.S. at 65, and has only applied the doctrine to three statutes,5 which “convert[]

an ordinary state common-law complaint into one

stating a federal claim” for removal purposes, Caterpillar, 482 U.S. at 393; see Beneficial Nat’l Bank v.

Anderson, 539 U.S. 1, 8 (2003). The Court has never

found federal common law, let alone displaced federal

common law, completely preemptive.

Section 301 of the Labor Management Relations Act, 29

U.S.C. 185; Section 502(a) of ERISA, 29 U.S.C. 1132(a); and the

National Bank Act, 12 U.S.C. 85, 86.

CONCLUSION

The Court should affirm the judgment of the court

of appeals.

Respectfully submitted,

Dana P. Moore

altimore City Law

Department

100 N. Holliday Street,

Suite 109

Baltimore, MD 21202

Dated: December 16, 2020

VIcTor M. Sher

Counsel of Record

MaTThew K. EdlIng

MIchael Burger

MarTIn D. QuIñones

QuenTIn C. KarpIlow

her Edling LLP

100 Montgomery St.,

Ste. 1410

San Francisco, CA 94104

(628) 231-2500

vic@sheredling.com

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