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

NO. 19-1189

IN THE

Supreme Court of the United States

_______________________________________________

BP P.L.C., et al.,

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

_______________________

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

_________________________________________________

BRIEF FOR STATE AND LOCAL

GOVERNMENT GROUPS AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

_________________________________________________

Lisa Soronen

Robert S. Peck

STATE & LOCAL LEGAL CENTER

Counsel of Record

444 N. Capitol Street, N.W.

CENTER FOR

CONSTITUTIONAL

Suite 515

LITIGATION, P.C.

Washington, DC 20001

2117 Leroy Place, NW

(202) 434-4845

Washington, DC 20008

lsoronen@sso.org

(202) 944-2874

robert.peck@cclfirm.com

Counsel for Amici Curiae

TABLE OF CONTENTS

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

INTERESTS OF AMICI CURIAE ............................. 1

SUMMARY OF ARGUMENT .................................... 6

ARGUMENT ............................................................... 8

I.

FEDERALISM PRINCIPLES REQUIRE

THAT APPELLATE REVIEW OF A DISTRICT

COURT’S REMAND ORDER BE LIMITED TO

THE ISSUE CONGRESS EXPRESSLY

AUTHORIZED. ................................................. 8

A.

Applicable Canons of Statutory Construction

Support the Result Reached by the Fourth

Circuit, and Congress Ratified that

Interpretation in Adding Federal-Officer

Removal to the Statute. ................................ 9

B.

Federalism Principles Add a Heavy Thumb

on the Scale, Supporting the Fourth Circuit’s

Decision. ....................................................... 13

C.

Practical Reasons and the Unquestioned

Fairness and Competence of State Courts

Also Support Remand.................................. 15

II.

THE CONSTRUCTION GIVEN § 1447(d) BY

PETITIONERS AND THEIR AMICI DEFIES

CONGRESSIONAL INTENT AND COMMON

SENSE AND WOULD OPEN THE DOOR TO

GAMESMANSHIP.......................................... 18

ii

III.

THERE ARE NO “UNIQUELY FEDERAL

INTERESTS” AT STAKE IN THIS CASE S

UFFICIENT TO REQUIRE CONVERSION OF

PLAINTIFF’S STATE LAW CLAIMS INTO

FEDERAL LAW CLAIMS OR TO CONFER

FEDERAL JURISDICTION........................... 23

A.

The Case Presents Issues that Properly Arise

under State Law. ......................................... 23

B.

The Case Presents No Issues that Arise

under Federal Law. ..................................... 25

IV.

THE DISPLACEMENT OF A FEDERAL

COMMON LAW CAUSE OF ACTION FOR

NUISANCE BY STATUTE REQUIRES THE

STATE LAW CAUSE OF ACTION BE

TREATED ON ITS OWN TERMS. ................ 29

CONCLUSION ......................................................... 32

iii

TABLE OF AUTHORITIES

Cases

Abramski v. United States, 573 U.S. 169

(2014) ............................................................... 18, 19

Alessi v. Raybestos–Manhattan, Inc., 451 U.S. 504

(1981) ..................................................................... 13

Alexandria Resident Council, Inc. v. Alexandria

Redevelopment & Hous. Auth., 11 Fed. App’x 283

(4th Cir. 2001) ....................................................... 30

Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008) . 10

American Elec. Power Co., Inc. v. Connecticut, 564

U.S. 410 (2011) ...................................................... 27

Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530

(6th Cir. 1970) ....................................................... 11

Arizona v. United States, 567 U.S. 387 (2012) ........ 24

Babbitt v. Sweet Home Chap. of Communities for a

Great Oregon, 515 U.S. 687 (1995) ....................... 10

BFP v. Resolution Trust Corporation, 511 U.S. 531

(1994) ..................................................................... 13

Bond v. United States, 572 U.S. 844 (2014) ............ 13

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ... 28

City of Greenwood v. Peacock, 384 U.S. 808

(1966) ..................................................................... 14

City of Milwaukee v. Illinois, 451 U.S. 304 (1981) .. 29

City of Walker v. Louisiana through Dep't of Transp.

& Dev., 877 F.3d 563 (5th Cir. 2017).................... 19

Comer v. Murphy Oil USA, 585 F.3d 855 (5th Cir.

2009), petition for writ of mandamus denied sub

nom. In re Comer, 562 U.S. 1133 (2011) .............. 31

iv

Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir.

2010) ...................................................................... 31

Detroit Police Lieutenants & Sergeants Ass’n v. City

of Detroit, 597 F.2d 566 (6th Cir. 1979) ............... 11

Empire Healthchoice Assur., Inc. v. McVeigh, 547

U.S. 677 (2006) ...................................................... 27

Estate of Maglioli v. Andover Subacute Rehab. Ctr. I,

No. CV 20-6605 (KM)(ESK), 2020 WL 4671091

(D.N.J. Aug. 12, 2020), appeal pending, No. 202834 (3d Cir.)......................................................... 21

Forest Grove Sch. Dist. v. T.A., 557 U.S. 230

(2009) ..................................................................... 12

Franchise Tax Bd. v. Constr. Laborers Vacation Tr.

for S. Calif., 463 U.S. 1 (1983) ........................ 25, 31

Gregory v. Ashcroft, 501 U.S. 452 (1991) ................. 13

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564

(1982) ..................................................................... 10

Healy v. Ratta, 292 U.S. 263 (1934) ......................... 14

Hertz Corp. v. Friend, 559 U.S. 77 (2010) ............... 22

Huron Portland Cement Co. v. Detroit, 362 U.S. 440

(1960) ..................................................................... 24

Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261

(1997) ..................................................................... 17

Illinois v. City of Milwaukee, 406 U.S. 91 (1972) .... 26

Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ..... 29

Jacks v. Meridian Res. Co., LLC, 701 F.3d 1224 (8th

Cir. 2012) ............................................................... 19

Jackson v. Birmingham Bd. of Ed., 544 U.S. 167

(2005) ..................................................................... 12

Lake Country Estates, Inc. v. Tahoe Reg’l Planning

Agency, 440 U.S. 391 (1979) ................................. 23

v

Levin v. Commerce Energy, Inc., 560 U.S. 413 (2010)

............................................................................... 13

Little v. Louisville Gas & Elec. Co., 805 F.3d 695 (6th

Cir. 2015) ............................................................... 29

Lorillard v. Pons, 434 U.S. 575 (1978)..................... 12

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

2015) ................................................................ 19, 20

Maracich v. Spears, 570 U.S. 48 (2013) ................... 19

McKesson v. Doe, No. 19-1108, 2020 WL 6385692

(U.S. Nov. 2, 2020) ................................................ 17

Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804

(1986). ........................................................ 25, 26, 27

Merrick v. Diageo Ams. Supply, Inc., 805 F.3d 685

(6th Cir. 2015) ....................................................... 29

Merrill Lynch, Pierce, Fenner & Smith Inc. v.

Manning, 136 S. Ct. 1562 (2016) .......................... 17

Mesa v. California, 489 U.S. 121 (1989) .................. 10

Metro. Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) ... 28

National Collegiate Athletic Ass’n v. Smith, 525 U.S.

459 (1999) .............................................................. 23

Native Vill. of Kivalina v. ExxonMobil Corp., 663 F.

Supp. 2d 863 (N.D. Cal. 2009), aff’d 696 F.3d 849,

857 (9th Cir. 2012) ................................................ 30

Native Vill. of Kivalina v. ExxonMobil Corp., 696

F.3d 849 (9th Cir. 2012) .................................. 29, 30

Noel v. McCain, 538 F.2d 633 (4th Cir. 1976) ..... 9, 11

Patel v. Del Taco Inc., 446 F.3d 996

(9th Cir. 2006) ....................................................... 11

Pennsylvania ex rel. Gittman v. Gittman, 451 F.2d

155 (3d Cir. 1971).................................................. 11

vi

Riggs v. Airbus Helicopters, Inc., 939 F.3d 981 (9th

Cir. 2019), cert. denied, No. 19-1158, 2020 WL

3492671 (U.S. June 29, 2020) ......................... 20, 21

Robertson v. Ball, 534 F.2d 63 (5th Cir. 1976) ........ 11

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

(1941) ............................................................... 14, 18

Tafflin v. Levitt, 493 U.S. 455 (1990) ....................... 17

Tex. Indus., Inc. v. Radcliff Materials, Inc., 451 U.S.

630 (1981) .............................................................. 24

United States v. Williams, 553 U.S. 285 (2008) ...... 10

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

Watson v. Philip Morris Cos., Inc., 551 U.S. 142

(2007) ..................................................................... 21

Willingham v. Morgan, 395 U.S. 402 (1969) ........... 10

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

199 (1996) ................................................................ 9

Younger v. Harris, 401 U.S. 37 (1971) ..................... 14

Statutes

28 U.S.C. § 1331 ....................................................... 25

28 U.S.C. § 1443 ......................................................... 9

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

Anti-Injunction Act, 28 U.S.C. § 2283 ..................... 14

Removal Clarification Act of 2011, Pub. L. No. 11251, 125 Stat. 545 ..................................................... 9

Other Authorities

Andrew Kragie, “Key Senators Want to Add New

Federal Judgeships This Year,” Law360 (Jun. 30,

2020) ................................................................ 15, 16

Antonin Scalia, A Matter of Interpretation

(1997) ............................................................... 19, 20

vii

Federal Judicial Caseload Statistics 2020, available

at https://www.uscourts.gov/statisticsreports/federal-judicial-caseload-statistics-2020. 16

H.R. Rep. 112-17, at 7 (2011), reprinted in 2011

U.S.C.C.A.N. 420............................................. 11, 15

National Center for State Courts Court Statistics

Project, State Court Caseload Digest 2018 Data

(2020) ..................................................................... 16

Treatises

2A Sutherland Statutory Construction (7th ed.) .... 11

6A McQuillin Mun. Corp. (3d ed. 2015) ................... 24

1

IN THE

Supreme Court of the United States

_______________________________________________

No. 19-1189

_____________________

BP P.L.C., et al.,

Petitioners,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent

______________________

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

_________________________________________________

BRIEF OF STATE AND LOCAL GOVERNMENT

GROUPS AS AMICI CURIAE IN SUPPORT OF

RESPONDENT

_________________________________________________

INTERESTS OF AMICI CURIAE 1

State and Local Government Amici comprise

seven of the nation’s leading state or local government

associations.

The National Conference of State Legislatures

(NCSL) is a bipartisan organization that serves the

legislators and staffs of the Nation’s 50 States, its

Commonwealths, and Territories. NCSL provides

1 Pursuant to S. Ct. Rule 37.6, counsel for all parties have

consented to the filing of this brief. No counsel for a party

authored this brief in whole or in part and no person or entity

other than amicus, its members, or counsel made a monetary

contribution to its preparation or submission..

2

research, technical assistance, and opportunities for

policymakers to exchange ideas on pressing issues.

NCSL advocates for the interests of state governments

before Congress and federal agencies, and regularly

submits amicus briefs in cases, like this one, that raise

issues of vital state concern.

The Council of State Governments (CSG) is the

nation’s only organization serving all three branches

of state government. CSG is a region-based forum that

fosters the exchange of insights and ideas to help state

officials shape public policy. It offers regional,

national, and international opportunities for its

members to network, develop leaders, collaborate, and

create problem-solving partnerships.

The National Association of Counties (NACo) is

the only national association that represents county

governments in the United States. Founded in 1935,

NACo serves as an advocate for county governments

and works to ensure that counties have the resources,

skills, and support they need to serve and lead their

communities.

The National League of Cities (NLC) is the oldest

and largest organization representing municipal

governments throughout the United States. Its

mission is to strengthen and promote cities as centers

of opportunity, leadership, and governance. Working

in partnership with forty-nine State municipal

leagues, NLC serves as a national advocate for more

than 19,000 cities and towns, representing more than

218 million Americans.

3

The U.S. Conference of Mayors (USCM) is the

official non-partisan organization of U.S. cities with a

population of more than 30,000 people (approximately

1,400 cities in total).

The International City/County Management

Association (ICMA) is a nonprofit professional and

educational organization of more than 9,000

appointed chief executives and assistants serving

cities, counties, towns, and regional entities. ICMA’s

mission is to create excellence in local governance by

advocating

and developing

the

professional

management of local governments throughout the

world.

The International Municipal Lawyers Association

(IMLA) is a nonprofit, nonpartisan professional

organization consisting of more than 2,500 members.

The membership is composed of local government

entities, including cities and counties, and

subdivisions thereof, as represented by their chief

legal officers, state municipal leagues, and individual

attorneys. IMLA serves as an international

clearinghouse of legal information and cooperation on

municipal legal matters. Established in 1935, IMLA is

the oldest and largest association of attorneys

representing United States municipalities, counties,

and special districts.

State and Local Government Amici’s members

appear in court both as plaintiffs and defendants. As

a result, they have an acute understanding of the

4

different interests parties may have depending on

which side of the “v.” they occupy in any particular

case. When appearing as a plaintiff, like other

claimants, Amici’s members have a sincere interest in

serving as masters of their complaint, both choosing

the claims that they seek to litigate and the forum

most appropriate to the matter.

Under the police and other powers they hold,

Amici’s members have direct responsibilities for

understanding the risks to and planning for the wellbeing of the American public. It is their discharge of

those responsibilities that can sometimes take them to

court – sometimes as defendants based on a person’s

objections to what they have done; sometimes as

plaintiffs based on the need for court intervention to

address an obstacle to their work.

Regardless of the role they play in any particular

piece of litigation, as representatives of state and local

governments nationwide, Amici are particularly

sensitive to the need to maintain a balanced federalstate judicial system. This case, which seeks a

determination of a local government’s rights under

state law, raises a critical federalism issue: the

appropriate scope of appellate review of a district

court’s remand order under 28 U.S.C. § 1447(d).

Allowing any defendant to obtain plenary review of all

aspects of a remand order just by including an

argument

for

federal-officer

removal

would

fundamentally disrupt state and local governments’

ability to litigate claims brought under state law in

state courts and incentivize defendants in those

actions to include meritless federal-officer removal

5

claims and increase attempts to appeal remand orders

due to that inclusion.

Should the Court extend its review beyond this

limitation, State and Local Government Amici have a

unique interest in the Court’s proper recognition of

state-court jurisdiction over distinctively state law

claims. The district court here properly found that it

lacked subject-matter jurisdiction over Plaintiff’s state

law claims. Judicial conversion of a variety of wellpleaded state law claims into vaguely defined federal

common law or arising-under claims, and the exercise

of federal jurisdiction over them that Petitioners seek,

would threaten to fundamentally intrude upon state

and local governments’ authority within our federalist

system to rely on state law and state courts to seek

redress for localized harms. Moreover, State and Local

Amici assert that any suggestion that state courts

cannot handle these issues fairly and appropriately is

misplaced.

The lower court’s decision in this case is fully

consistent with essential federalism principles and

recognizes the right of local governments to bring

state-law claims in state courts. State and Local

Government Amici respectfully urge this Court to

limit the scope of its review to the sole issue properly

before it, concerning Defendants’ meritless claim that

an assertion of federal-officer removal justifies

plenary review of all asserted grounds for removal.

Should the Court conduct a review beyond that

question, it should affirm the decision to remand for

lack of subject-matter jurisdiction and sustain the

viability of Plaintiff’s state law claims.

6

SUMMARY OF ARGUMENT

Properly construed, Section 1447(d) makes

federal-officer removal alone subject to appeal from an

order remanding a case to state court after removal.

Statutory

text,

congressional

ratification

of

preexisting interpretations, legislative intent, and the

principles animating our federalist system all drive

that conclusion and support affirmance of the Fourth

Circuit’s decision in this case.

Words in a statute take their meaning from

context, preexisting interpretations when Congress

adopts it without change when adding to a statute,

and from legislatively declared purposes, rather than

attempting to divine their meaning in isolation. Each

of those metrics point to a single answer consistent

with the decision below.

Still, another background principle critical to the

interpretive enterprise is the federal-state balance

struck by our Constitution. Respect for state

sovereignty requires that the historic relationship

between state and federal courts in the administration

of justice continue unimpaired so that state courts

may try state cases free from federal court

interruption. It further counsels that intrusion in

state law issues adjudicated in state courts may only

occur when Congress has explicitly authorized it.

Here, that authorization is wanting.

Nor should a departure from those venerable

principles be authorized on the basis of imagined

concerns about the bias or competence of state courts.

This Court has repeatedly rejected suggestions that

7

state courts cannot operate fairly and independently

for good reason. Modern experience in state courts

demonstrate their professionalism, neutrality, and

impartiality. More importantly, disrespect for state

courts, which handle the overwhelming majority of the

Nation’s disputes, runs counter to the balance struck

by the Constitution.

Practical reasons also support keeping the limits

on interlocutory appeals intact when a district court

orders a remand. No reasonably competent lawyer

would fail to find a federal-officer hook to assure

immediate appeal of a remand order where some other

ground provides a more colorable basis for removal.

Sanctions are wholly inadequate to deter this type of

gamesmanship, as experience demonstrates. Given

that Petitioners’ only rationale for a more plenary

appeal focuses myopically on the word “order” in

splendid isolation from the remainder of the statute, a

ruling based on the word “order” would encourage

federal district court judges to issue separate decisions

on federal-officer removal and on all other asserted

bases for removal in an unnecessary series of judicial

gymnastics as a means of responding in kind to the

type of abuse Petitioners’ approach would encourage.

Petitioners have also briefed the other issues that

they believe would allow them to remain in federal

court, though they did not include those issues in any

Question Presented. Their absence in the Petition and

the Fourth Circuit’s decision ought to encourage this

Court to decline to address them.

8

However, if this Court were to take up the other

claimed bases for removal, State and Local

Government Amici suggest that they lack merit.

Petitioners and their amici recognize that the Clean

Air Act supplanted their assertion of federal common

law, yet still hold out a false hope that its one-time

existence might render the plainly state law issues

presented in this lawsuit to be “uniquely federal” so

that it might be said that they arise under federal law.

However, as this Court has acknowledged, the

displacement of federal common law has provided a

space that state law may properly fill, if not otherwise

preempted. Here, that preemption is lacking, as the

Congress respected the federal-state balance

demanded by the Constitution.

In the end, neither the federal issues raised,

insubstantial at best or nonexistent at worst, and the

attenuated claims of preemption provide no warrant

to justify the assertion of federal jurisdiction. This

Court should affirm the Fourth Circuit.

ARGUMENT

I.

FEDERALISM PRINCIPLES REQUIRE

THAT APPELLATE REVIEW OF A

DISTRICT COURT’S REMAND ORDER BE

LIMITED TO THE ISSUE CONGRESS

EXPRESSLY AUTHORIZED.

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

§ 1447(d) makes federal-officer removal alone (or, in

other cases, the civil-right removal alone) subject to

appellate review, not the seven other grounds for

9

removal raised by Petitioners, even though the district

court rejected them all in a single remand order. Pet.

App. 10a. Although the Fourth Circuit relied on its

own precedent, Noel v. McCain, 538 F.2d 633 (4th Cir.

1976), and found that neither this Court’s decision in

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

(1996), nor the Removal Clarification Act of 2011, Pub.

L. No. 112-51, 125 Stat. 545 (codified in various

sections of 28 U.S.C.), impaired Noel, State and Local

Government Amici suggest that the principles

animating our federalist system also support the same

conclusion in light of the statutory text and legislative

history.

A. Applicable

Canons

of

Statutory

Construction

Support

the

Result

Reached by the Fourth Circuit, and

Congress Ratified that Interpretation in

Adding Federal-Officer Removal to the

Statute.

Appellate review of remand orders is generally

barred with two strictly limited exceptions. 28 U.S.C.

§ 1447(d). Under those exceptions, an appellate court

has jurisdiction to review whether a case was properly

removed under 28 U.S.C. § 1443 (civil rights removal

provision) or 28 U.S.C. § 1442(a)(1) (federal officer

removal provision). The federal-officer removal

provision was added in the Removal Clarification Act

of 2011, although removal on these grounds has a long

pedigree. 2 The 2011 Act simply added the words “1442

or” into Section 1447(d) so that the section now reads:

2 Federal officer removal was brought into being in 1815 as a

“congressional response to New England’s opposition to the War

10

An order remanding a case to the State

court from which it was removed is not

reviewable on appeal or otherwise, except that

an order remanding a case to the State court

from which it was removed pursuant to

section 1442 or 1443 of this title shall be

reviewable by appeal or otherwise.

When undertaking to construe a statute, this

Court seeks to read the statutory scheme as “coherent

and consistent.” Ali v. Fed. Bureau of Prisons, 552 U.S.

214, 222 (2008). Doing so avoids “interpretations of a

statute which would produce absurd results,”

particularly when “alternative interpretations

consistent with the legislative purpose are available.”

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575

(1982). In order to render a coherent and consistent

interpretation, one canon of statutory construction,

noscitur a sociis, “holds that a word is known by the

company it keeps.” Babbitt v. Sweet Home Chap. of

Communities for a Great Oregon, 515 U.S. 687, 694

(1995). It is a “commonsense canon,” “which counsels

that a word is given more precise content by the

neighboring words with which it is associated.” United

States v. Williams, 553 U.S. 285, 294 (2008). In that

sense, it “applies to sections and sentences in a

manner similar to how the doctrine of in pari materia

of 1812,” was expanded “in response to South Carolina’s 1833

threats of nullification” and again during the Civil War era, and

finally “took its present form encompassing all federal officers” in

the Judicial Code of 1948. Mesa v. California, 489 U.S. 121, 12526 (1989). Removal to federal court seeks to avoid potential statecourt hostility to federal authority. Willingham v. Morgan, 395

U.S. 402, 405 (1969).

11

applies to statutes covering the same subject matter.”

2A Sutherland Statutory Construction § 47:16 (7th

ed.).

Here, Congress intended the new addition,

federal-officer removal, to be treated identically to the

preexisting civil rights exception. H.R. Rep. 112-17, at

7 (2011), reprinted in 2011 U.S.C.C.A.N. 420, 425

(“Section 2(d) amends Section 1447 by permitting

judicial review of Section 1442 cases that are

remanded, just as they are with civil rights cases.”)

(emphasis added).

That explicit expression of identical treatment has

critically important meaning for application of the

statute. Although this Court has not had occasion to

address it, the circuits have uniformly held that

review of civil-rights removal was limited to that

ground alone and not to other bases for the remand

order. See Patel v. Del Taco Inc., 446 F.3d 996, 998

(9th Cir. 2006); Detroit Police Lieutenants & Sergeants

Ass’n v. City of Detroit, 597 F.2d 566, 567-68 (6th Cir.

1979); Robertson v. Ball, 534 F.2d 63, 65-66 (5th Cir.

1976); Noel, 538 F.2d at 635; Appalachian Volunteers,

Inc. v. Clark, 432 F.2d 530, 533-34 (6th Cir. 1970);

Pennsylvania ex rel. Gittman v. Gittman, 451 F.2d

155, 156–57 (3d Cir. 1971).

The consistent construction of when a remand

order may be reviewed under the civil-rights exception

informs and mandates the same interpretation of

federal-officer removal. This Court presumes that

Congress is aware of a “judicial interpretation of a

statute and . . . adopt[s] that interpretation when it re-

12

enacts a statute without change.” Lorillard v. Pons,

434 U.S. 575, 580 (1978). Moreover, “[w]hen Congress

amend[s an Act] without altering the text of [the

relevant provision], it implicitly adopt[s this Court’s]

construction” of that provision. Forest Grove Sch. Dist.

v. T.A., 557 U.S. 230, 244 n.11 (2009). See also Jackson

v. Birmingham Bd. of Ed., 544 U.S. 167, 176 (2005)

(holding it “not only appropriate but also realistic to

presume that Congress was thoroughly familiar with

[earlier precedent] and . . . expected its enactment . . .

to be interpreted in conformity with it.”).

The presumption of reenacting an existing

interpretation also applies when “Congress adopts a

new law incorporating sections of a prior law,” so that

the “interpretation given to the incorporated law, at

least insofar as it affects the new statute,” continues.

Lorillard, 434 U.S. at 581. In this instance, the

underlying law was not changed. Instead, another

exception was added to the preexisting one with the

addition of two simple words, clearly and indisputably

signaling congressional intent to treat federal-officer

removal precisely the same way as the civil-rights

exception was treated, just as it declared in the House

Report. There is every reason to adhere to the prior

interpretation by the circuits, having both survived

the test of time and having received subsequent

congressional ratification.

13

B. Federalism Principles Add a Heavy

Thumb on the Scale, Supporting the

Fourth Circuit’s Decision.

Another of the “background principles of

construction that our cases have recognized are those

grounded in the relationship between the Federal

Government and the States under our Constitution.”

Bond v. United States, 572 U.S. 844, 857-58 (2014).

This Court has mandated 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) (citation omitted).

Respecting that relationship, this Court has insisted

on the “well-established principle” that Congress be

explicit in conveying its intent to change the “usual

constitutional balance of federal and state powers” or

“‘radically readjust[ ] the balance of state and national

authority,’” Bond, 572 U.S. at 858 (quoting Gregory v.

Ashcroft, 501 U.S. 452, 460 (1991) and BFP v.

Resolution Trust Corporation, 511 U.S. 531, 544

(1994)).

Not only has Congress not expressed any such

intent, it plainly indicated the opposite. The limited

review explicitly authorized by § 1447(d) preserves the

federalism balance Congress sought to maintain when

it authorized appellate review of federal-officer

removal under 28 U.S.C. § 1442. Just as preemption

analysis “must be guided by respect for the separate

spheres of governmental authority preserved in our

federalist system,” Alessi v. Raybestos–Manhattan,

Inc., 451 U.S. 504, 522 (1981), removal of a case from

the authority of a state court must demonstrate a high

14

degree of deference to the sovereign authority that

resides in the States.

For that reason, Congress only intrudes upon the

“power reserved to the states under the Constitution

to provide for the determination of controversies in

their courts,” through the most explicit exercise of its

authority over federal jurisdiction. Shamrock Oil &

Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941). The

required “‘[d]ue regard for the rightful independence

of state governments, which should actuate federal

courts, requires that they scrupulously confine their

own jurisdiction to the precise limits which the statute

has defined.’” Id. at 109 (quoting Healy v. Ratta, 292

U.S. 263, 270 (1934)). See also City of Greenwood v.

Peacock, 384 U.S. 808, 831 (1966) (“[T]he provisions of

§ 1443(1) do not operate to work a wholesale

dislocation of the historic relationship between the

state and the federal courts in the administration of

the . . . law.”).

Indeed, “[s]ince the beginning of this country’s

history Congress has, subject to few exceptions,

manifested a desire to permit state courts to try state

cases free from interference by federal courts.”

Younger v. Harris, 401 U.S. 37, 43 (1971). The Younger

Court detailed that Anti-Injunction Act, 28 U.S.C.

§ 2283, had a 1793 predecessor, reflecting a

constitutional predisposition 3 to allow state courts to

3 “Early congressional enactments provid[e] contemporaneous

and weighty evidence of the Constitution’s meaning.” Printz v.

United States, 521 U.S. 898, 905 (1997) (citation and internal

quotation marks omitted; ellipsis in orig.).

15

operate without significant intrusion by federal

judicial authority.

The same federalism principles motivated the

Removal Clarification Act of 2011, through which

Congress specifically sought to protect federal officers

from being haled into state courts under state law.

H.R. Rep. 112-17, at 3, 2011 U.S.C.C.A.N. at 422 (“The

purpose of the law is to take from state courts the

indefeasible power to hold a Federal officer or agent

criminally or civilly liable for an act allegedly

performed in the execution of their Federal duties.”).

Far from expanding the scope of appellate review to

entire remand orders, an expansion that would tip the

federalist scale in significant and unpredictable ways,

Congress’s amendment of the removal procedure

statute was concerned with preserving the existing

balance of power between state and federal courts in

cases involving federal officers.

C. Practical Reasons and the Unquestioned

Fairness and Competence of State Courts

Also Support Remand.

While preserving the federal-state balance is

sufficient as a constitutional matter to affirm the

decision below, practical reasons also support the

distinction Congress drew and the Fourth Circuit

understood. Congress has long understood that the

federal courts operate under extraordinarily heavy

caseloads. See Andrew Kragie, “Key Senators Want to

Add New Federal Judgeships This Year,” Law360

(Jun. 30, 2020). Still, the most recent omnibus

judgeship bill was the Federal Judgeship Act of 1990,

16

P.L. 101-650, which created 61 permanent and 13

temporary district court judgeships. The federal

judiciary recommended in 2019 that 73 new district

court judgeships be created to address the

proliferation of federal litigation. See Kragie, supra.

The federal caseload continues to increase. The

Administrative Office of the Courts, in its 2020 report,

noted that civil filings increased 16 percent (up 46,443

cases) to 332,732. Federal Judicial Caseload Statistics

2020, available at https://www.uscourts.gov/statisticsreports/federal-judicial-caseload-statistics-2020.

Diversity jurisdiction accounted for 140,812 new

filings, a 49 percent increase. Id. The increase in

federal district court cases that could result from

appellate review of remand decisions further supports

a reading of § 1447(d) that presumes Congress would

not have impliedly added to federal litigation burdens,

particularly given that it is something that

traditionally has required conscious and explicit

legislative action.

At the same time, the vast bulk of the Nation’s

judicial business is handled properly and well in the

state courts. For 2018, the most recent year for which

data is available, the National Center for State Courts

reports that civil filings increased by more than

500,000. National Center for State Courts Court

Statistics Project, State Court Caseload Digest 2018

Data, at 9 (2020). This constitutes a more than tenfold

increase as compared to the federal caseload – and an

increase by itself that is larger than the entire existing

federal caseload.

17

Just recently, this Court again discussed the

existing “system of ‘cooperative judicial federalism,’

[which] presumes federal and state courts alike are

competent to apply federal and state law.” McKesson

v. Doe, No. 19-1108, 2020 WL 6385692, at *2 (U.S.

Nov. 2, 2020) (citation omitted). Indeed, this Court has

held that there is no inherent incompatibility between

state court jurisdiction and federal interests. Tafflin v.

Levitt, 493 U.S. 455, 464 (1990). While Petitioners and

their amici urge this Court to look askance at state

courts’ capability of handling potentially complex

litigation, a “doctrine based on the inherent

inadequacy of state forums would run counter to basic

principles of federalism.” Idaho v. Coeur d’Alene Tribe

of Idaho, 521 U.S. 261, 275 (1997). Any suggestion of

inability or prejudice should be rejected as

presumptively invalid.

As separate sovereigns and with “[d]ue regard [to]

the rightful independence of state governments,” this

Court has repeatedly recognized “the power of the

States to provide for the determination of

controversies in their courts.” Merrill Lynch, Pierce,

Fenner & Smith Inc. v. Manning, 136 S. Ct. 1562, 1573

(2016) (citations and internal quotation marks

omitted). For that reason, this Court has expressed a

“deeply felt and traditional reluctance . . . to expand

the jurisdiction of federal courts through a broad

reading of jurisdictional statutes.” Id. (citations and

internal quotation marks omitted). It is an

“interpretive stance [that] serves, among other things,

to keep state-law actions . . . in state court, and thus

to help maintain the constitutional balance between

state and federal judiciaries.” Id. And it is an

18

interpretative stance fully

accomplish the same purpose.

applicable

here

to

Petitioners and their amici denigrate state courts

without basis, but their speculative claims of “local

prejudice,” Pet. Br. 29, provide no warrant for

removal. Congress has not sought to deny state courts

their authority to determine disputes by explicit

legislation on that basis, see Shamrock Oil, 313 U.S.

at 108-09. The complaint expressed generically by

Petitioners runs counter to modern experience with

state courts. More importantly, it runs counter to the

balance struck by the Constitution.

II. THE CONSTRUCTION GIVEN § 1447(d) BY

PETITIONERS AND THEIR AMICI DEFIES

CONGRESSIONAL INTENT AND COMMON

SENSE AND WOULD OPEN THE DOOR TO

GAMESMANSHIP.

Petitioners and their amici focus myopically on

the word “order” to render Congress’s expressed

purpose and the traditional canons of construction a

nullity, while also turning their backs on the

important federal-state balance that necessarily

informs the interpretative exercise. It is nonsensical

to allow the purposes of the limitation on appeals of

remand orders to be defeated in its entirety by taking

a single word out of its established context.

Instead, this Court has insisted that courts

“interpret the relevant words not in a vacuum, but

with reference to the statutory context, ‘structure,

history, and purpose.’” Abramski v. United States, 573

19

U.S. 169, 179 (2014) (quoting Maracich v. Spears, 570

U.S. 48, 76 (2013)). Those well-used tools of statutory

construction combine with common sense to assure

that statutory terms are construed fairly. Id.

In contrast, Petitioners and its amici, rely heavily

on the Lu Junhong v. Boeing Co., 792 F.3d 805 (7th

Cir. 2015), to give the word “order” the broader scope

they favor. Yet, Lu Junhong did not undertake the

contextual, structural, historical, and purposeful

analysis this Court has mandated. Instead, it looked

to extraneous statutes for the meaning of the term,

ignoring the most obvious references points that come

from the interpretation and application of the civilrights exception in the same statute.

For example, Lu Junhong, like Petitioners and its

amici, read the Class Action Fairness Act (CAFA),

which “authorizes appellate review of remands of

cases that had been removed under its auspices,” to

permit review of all bases for federal jurisdiction. Id.

at 811. While some circuits have read CAFA to allow

for broader review, other courts have correctly

determined that “jurisdiction to review a CAFA

remand order stops at the edge of the CAFA portion of

the order.” City of Walker v. Louisiana through Dep't

of Transp. & Dev., 877 F.3d 563, 567 (5th Cir. 2017).

See also Jacks v. Meridian Res. Co., LLC, 701 F.3d

1224, 1229 (8th Cir. 2012).

Lu Junhong proclaimed its approach “entirely

textual.” 792 F.3d at 812. Yet, as Justice Scalia once

noted that, “while the good textualist is not a literalist,

neither is he a nihilist.” Antonin Scalia, A Matter of

20

Interpretation 24 (1997). Lu Junhong, remarkably,

achieves both disfavored labels in the service of

textualism. It makes “order” the whole document that

contains the order, ignoring context, usage,

congressional intent, and ratification, thereby

adopting a literalism that simultaneously destroys the

statutory scheme Congress plainly put in place.

Nevertheless, Lu Junhong recognizes that its

construction could be problematic. It understands that

“[s]ome litigants may cite § 1442 or § 1443 in a notice

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

appeal of some different subject.” Lu Junhong, 792

F.3d at 813. It then confidently posits that “a frivolous

removal leads to sanctions, potentially including feeshifting,” which it deems sufficient to deter that type

of gamesmanship. Id.

Experience, however, has demonstrated that the

court’s confidence was misplaced. The defendant, a

private aircraft manufacturer, claimed it became a

federal officer because it had received a designation

from Federal Aviation Administration that allowed it

to self-certify the airworthiness of its planes. The

Seventh Circuit not only had little difficulty in

rejecting the argument that self-certification

transforms a private actor into a federal officer, but

deemed it “frivolous for Boeing or a similarly-situated

defendant to invoke § 1442 as a basis of removal” “after

today.” Id. (emphasis added). Yet, that explicit

admonition has not stopped the exact same argument

that the Seventh Circuit deemed a frivolous attempt

to assert federal-officer removal from being repeated

in other courts. See, e.g., Riggs v. Airbus Helicopters,

21

Inc., 939 F.3d 981 (9th Cir. 2019), cert. denied, No. 191158, 2020 WL 3492671 (U.S. June 29, 2020).

Sanctions have not followed. Courts are

understandably reluctant to impose sanctions, so the

remedy the Seventh Circuit imagined is actually a

toothless deterrent. In fact, in this Court’s leading

case on the basis for federal-officer removal, it made

clear that this category of removal was unavailable

just because the private party is part of a heavily

regulated industry. Watson v. Philip Morris Cos., Inc.,

551 U.S. 142, 153 (2007) (“a highly regulated firm

cannot find a statutory basis for removal in the fact of

federal regulation alone.”). Despite that clarion

declaration more than a decade ago, a defendant in a

case now on appeal to the Third Circuit has indeed

argued that, as a nursing home, it is “required to

comply with detailed federal regulations when

operating these facilities and when providing care,”

and that “by providing medical treatment for patients,

complying with Medicare and Medicaid regulations,

and therefore receiving Medicare and Medicaid

payments from the federal government, they were

assisting a federal officer in the performance of an

official duty.” Estate of Maglioli v. Andover Subacute

Rehab. Ctr. I, No. CV 20-6605 (KM)(ESK), 2020 WL

4671091, at *12 (D.N.J. Aug. 12, 2020), appeal

pending, No. 20-2834 (3d Cir.). The district court had

no difficulty applying Watson to reject the contention

that the nursing home was a federal officer because of

regulatory compliance. Id. at *13. Nonetheless, an

appeal, not sanctions, followed.

22

Prudential reasons, then, further support limiting

review to the federal-officer grounds. If alleging

federal-officer removal opens the door to appellate

review of all other asserted bases for removal, no

lawyer would neglect to find a defensible, if

inadequate, way to assert that peculiar form of

removal to avoid the bar on interlocutory appeal for all

other justifications for removal. As a result, the

exception (federal-officer removal) would swallow the

rule against interlocutory review of removal generally,

highlighting the concerns articulated by the various

circuits about appellate delay.

Finding a faintly colorable ground to assert federal

officer removal under those circumstances is a form of

gamesmanship that this Court has discouraged for,

among other things, its sapping of judicial resources,

Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010). In

response, it would encourage similar ploys by district

court judges. Under Petitioners’ approach to the word

“order,” divorced from all context, a district court

judge seeing no real colorable grounds for federalofficer removal, could defeat plenary review by issuing

separate orders. One “order” would deny the appeal on

the non-federal-officer grounds asserted, while noting

a further motion is pending. A second “order’ could

then find federal-officer removal wanting and remand

the case to state court. Under Petitioners’ literalist

approach, the order rejecting federal-officer removal

stands alone and would not admit of an appeal on any

other ground.

Still, there is no reason why district court judges

should need to jump through such unseemly hoops,

23

because Congress made clear its intent to limit

appellate review to federal-officer grounds, rather

than make clear its insistence that all grounds be

reviewable immediately when mentioned in a single

document. When Congress wants immediate appellate

review, it knows how to do so. It did not do so here.

III. THERE ARE NO “UNIQUELY FEDERAL

INTERESTS” AT STAKE IN THIS CASE

SUFFICIENT TO REQUIRE CONVERSION

OF PLAINTIFF’S STATE LAW CLAIMS INTO

FEDERAL LAW CLAIMS OR TO CONFER

FEDERAL JURISDICTION.

Defendants attempt to wedge the federal door

open with federal-officer removal to allow appeal of

removal grounds that are not reviewable and argue

those other issues here, but this Court should consider

only the meritless claim of whether other grounds for

removal are appealable under Section 1447(d). This

Court normally does not reach other issues not fairly

embraced by the Question Presented, Lake Country

Estates, Inc. v. Tahoe Reg’l Planning Agency, 440 U.S.

391, 398 (1979), or that were not decided by the court

below. National Collegiate Athletic Ass’n v. Smith, 525

U.S. 459, 470 (1999) (“[W]e do not decide in the first

instance issues not decided below”). It should not

undertake to decide either here.

A. The Case Presents Issues that Properly

Arise under State Law.

If this Court does reach the other grounds for

removal, Petitioner presents no other proper basis to

24

be in federal court. The state authority that Baltimore

seeks to advance in its lawsuit “falls within the

exercise of even the most traditional concept of what

is compendiously known as the police power.” Huron

Portland Cement Co. v. Detroit, 362 U.S. 440, 442

(1960). Municipal police power, as exercised here,

embodies a local government’s ability to issue

regulations and take actions for the benefit of the

public’s health, safety, and welfare. See generally 6A

McQuillin Mun. Corp. § 24:1 (3d ed. 2015). The

“‘historic police powers of the States’ are not

superseded ‘unless that was the clear and manifest

purpose of Congress.’” Arizona v. United States, 567

U.S. 387, 400 (2012) (citation omitted). No such

congressional purpose is articulated here on any of the

grounds advanced by Petitioners or its amici.

Despite some transboundary aspects of the

underlying issue, no “uniquely federal interests” arise

in this case that require that the traditional basis for

the state law claims be transmuted into a federal one

by some act of alchemy. This Court has described cases

involving such “uniquely federal interests” as those

“narrow areas [that are] . . . concerned with the rights

and obligations of the United States, interstate and

international disputes implicating the conflicting

rights of States or our relations with foreign nations,

and admiralty cases.” Tex. Indus., Inc. v. Radcliff

Materials, Inc., 451 U.S. 630, 641 (1981) (citation

omitted). This case invokes none of those concerns.

25

B. The Case Presents No Issues that Arise

under Federal Law.

This conclusion that no federal concerns arise

holds true even as Petitioners seek to reframe

Baltimore’s claims as “arising under” federal common

law, as raising disputed and substantial federal

issues, or as being completely preempted. The first two

arguments are masks for more straightforward

preemption arguments properly addressed by state

courts, see Franchise Tax Bd. v. Constr. Laborers

Vacation Tr. for S. Calif., 463 U.S. 1, 14 (1983)

(ordinary preemption provides no basis for removal,

even if it is the only issue); and the last argument is

simply wrong.

Federal-question jurisdiction is premised on cases

“arising under the Constitution, laws, or treaties of

the United States.” 28 U.S.C. § 1331. Its purpose is a

practical one, allowing federal courts to fashion a

uniform law for what is indisputably federal in nature.

Under the test this Court adopted, the focus remains

on the plaintiff’s “well-pleaded complaint.” Franchise

Tax Bd., 463 U.S. at 9-10. The “vast majority of cases”

qualifying as “arising under” “are those in which

federal law creates the cause of action.” Merrell Dow

Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986).

“Arising under” jurisdiction may also exist “where the

vindication of a right under state law necessarily

turned on some construction of federal law.” Franchise

Tax Bd., 463 U.S. at 9. Here, the complaint raises no

federal issue of any kind, and Petitioner points to no

explicit invocation of federal law.

26

Petitioner instead asserts that the lawsuit

implicates federal common law as its justification for

removal. While federal common law can provide a

basis for removal, Illinois v. City of Milwaukee, 406

U.S. 91, 100 (1972), Baltimore’s public nuisance claim

exists entirely under state law and does not implicate

federal law. See Pet. App. 44a. Instead, Petitioner’s

assertion that “uniquely federal interests” are

implicated (Pet. Br. 38), seems reminiscent of some

aspects of the argument this Court heard and rejected

in Thompson. There, a drug manufacturer argued that

unique federal interests in regulating pharmaceutical

products required removal a lawsuit in which the state

cause of action made a violation of a federal statute

one of its elements.

In evaluating the claim, this Court reiterated that

the “mere presence of a federal issue in a state cause

of action does not automatically confer federalquestion jurisdiction.” Thompson, 478 U.S. at 813

(footnote omitted). The Court went on to state that,

because Congress chose “no federal remedy for the

violation of this federal statute,” that was

“tantamount to a congressional conclusion” that the

“claimed violation of the statute as an element of a

state cause of action is insufficiently ‘substantial’ to

confer federal-question jurisdiction.” Id. at 814.

To the manufacturer’s argument that federal

jurisdiction was necessary to serve purposes of

uniformity in determining violations of federal law,

this Court said that that was nothing more than a

preemption argument, ultimately reviewable in this

Court, and that is cannot overcome the fact that

27

Congress did not establish original jurisdiction for

such claims in federal court. Id. at 815. Finally, this

Court held that the novelty of the federal issue in the

state lawsuit was also “not sufficient to give it status

as a federal cause of action; nor should it be sufficient

to give a state-based FDCA claim status as

a jurisdiction-triggering federal question.” Id. at 817

(footnote omitted).

Here, as in this ruling in Thompson, federal

common law was displaced by statute, in this instance

by the Clean Air Act. American Elec. Power Co., Inc. v.

Connecticut, 564 U.S. 410, 424 (2011) (AEP). The AEP

Court understood that the state law claims were

potentially subject to preemption under the federal

statute, but were not supplanted and thus provided no

basis for federal removal. Id. at 429. No federal

common law basis for removal thus exists.

Federalism concerns should also guide this

Court’s decision on “arising under” jurisdiction. This

Court, in denying another “arising under” claim, made

an apt observation: “it is hardly apparent why a proper

‘federal-state balance,’ would place such a

nonstatutory issue under the complete governance of

federal law, to be declared in a federal forum.” Empire

Healthchoice Assur., Inc. v. McVeigh, 547 U.S. 677,

701 (2006). In fact, the reasoning underlying

Petitioners’ argument that “uniquely federal

interests” justify removal would, if adopted by this

Court, pose a risk to States, counties, and cities across

the country. If endorsed, such reasoning could

empower federal common law to hold dominion over a

broad swath of policy areas committed to the States

28

and their subdivisions, and federal courts to claim

jurisdiction over a wide array of state law claims,

subverting state and local governments’ ability to rely

on traditional legal tools in state courts to pursue

remedies for harms they are obliged to address for

their citizenry. As this Court stated in McVeigh, the

“state court in which th[is] . . . suit was lodged is

competent to apply federal law, to the extent it is

relevant.” Id. There is no appropriate role in it for a

federal district court.

Finally, complete preemption plainly does not

apply. Under complete preemption, a complaint

purporting to rest on state law . . . can be

recharacterized as one ‘arising under’ federal law if

the law governing the complaint is exclusively

federal.” Vaden v. Discover Bank, 556 U.S. 49, 61

(2009). It exists in only rare circumstances where “the

pre-emptive force of a statute is so ‘extraordinary’ that

it ‘converts an ordinary state common-law complaint

into one stating a federal claim for purposes of the

well-pleaded complaint rule.’” Caterpillar Inc. v.

Williams, 482 U.S. 386, 393 (1987) (citing Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). That

unusually powerful form of preemption requires the

“clearly manifested intent of Congress.” Metro. Life,

481 U.S. at 67. That intent is plainly absent here.

29

IV. THE DISPLACEMENT OF A FEDERAL

COMMON LAW CAUSE OF ACTION FOR

NUISANCE BY STATUTE REQUIRES THE

STATE LAW CAUSE OF ACTION BE

TREATED ON ITS OWN TERMS.

All parties acknowledge that the federal common

law still claimed by Petitioners was displaced by the

Clean Air Act, as this Court held in AEP, 564 U.S. at

424. When that type of displacement occurs it “extends

to all remedies,” including damages. Native Vill. of

Kivalina v. ExxonMobil Corp., 696 F.3d 849, 857 (9th

Cir. 2012). Neither AEP, nor its further explication in

Kivalina, made any suggestion that a public nuisance

claim based on state law was foreclosed, or that state

courts were not available to adjudicate such a claim.

Rather, they did just the opposite. This Court’s

express view is that the existence of a federal common

law claim that has been displaced by federal

legislation does not erase the possibility of state law

claims; rather, it converts the availability of state

claims into an ordinary question of statutory

preemption. See City of Milwaukee v. Illinois, 451 U.S.

304, 327-29 (1981); Int’l Paper Co. v. Ouellette, 479

U.S. 481 (1987). Accordingly, the unanimous AEP

court, held, “[i]n light of our holding that the Clean Air

Act displaces federal common law, the availability vel

non of a state lawsuit depends, inter alia, on the

preemptive effect of the federal Act.” AEP, 564 U.S. at

429. See also Merrick v. Diageo Ams. Supply, Inc., 805

F.3d 685, 690 (6th Cir. 2015), and Little v. Louisville

Gas & Elec. Co., 805 F.3d 695, 698 (6th Cir. 2015)

30

(state common law nuisance for interstate pollution

not preempted by Clean Air Act).

Kivalina further supports proceeding with the

state law claims in state court. Discussing the

supplemental state law claims filed there, the Ninth

Circuit noted that the district court had declined to

exercise supplemental jurisdiction and dismissed the

claim without prejudice to re-file in state court. 696

F.3d at 854-55. See also Native Vill. of Kivalina v.

ExxonMobil Corp., 663 F. Supp. 2d 863, 882 (N.D. Cal.

2009) (stating that a federal court “may decline to

exercise supplemental jurisdiction over a claim if it

has dismissed all claims over which it has original

jurisdiction”), aff’d 696 F.3d 849, 857 (9th Cir. 2012);

Alexandria Resident Council, Inc. v. Alexandria

Redevelopment & Hous. Auth., 11 Fed. App’x 283, 287

(4th Cir. 2001) (“Although a federal court has

discretion to assert pendent jurisdiction over state

claims

even

when

no

federal

claims

remain, . . . certainly if the federal claims are

dismissed before trial ... the state claims should be

dismissed without prejudice. . . . For, when all federal

claims are dismissed early in the litigation, the

justifications

behind

pendent

jurisdiction—

considerations of judicial economy, convenience and

fairness to litigants—are typically absent.” (citations

omitted)).

The concurrence in Kivalina stated unequivocally

that “[d]isplacement of the federal common law does

not leave those injured . . . without a remedy,” and

suggested state nuisance law as “an available option

to the extent it is not preempted by federal law.” 696

31

F.3d at 866 (Pro, J., concurring). Here, preemption

does not exist. Yet, even if it did, state courts are

perfectly capable of adjudicating that issue.

Preemption is a defense to state law claims and cannot

provide the basis for federal-court jurisdiction.

Franchise Tax Bd, 463 U.S. at 14.

The clear differences between federal law and

state public nuisance law is also evident in the original

Fifth Circuit panel’s 2009 opinion in Comer v. Murphy

Oil USA, 585 F.3d 855, 860 (5th Cir. 2009) (Comer I),

petition for writ of mandamus denied sub nom. In re

Comer, 562 U.S. 1133 (2011). In Comer I, plaintiffs

seeking damages for injuries suffered as a result of

Hurricane Katrina had invoked federal jurisdiction

based on diversity. The Fifth Circuit panel found that

a diversity suit brought under state law for damages

was materially distinguishable from public nuisance

claims brought under federal law and sustained the

claims. Id. at 878-79. (The decision was subsequently

vacated when the Fifth Circuit granted rehearing en

banc; the Fifth Circuit then failed to muster a quorum

for the rehearing, thereby effectively reinstating the

district court’s decision as a matter of law. Comer v.

Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010)

(Comer II)).

The weight of precedent is overwhelming that

Baltimore has stated a plainly state law claim over

which state courts hold jurisdiction. Petitioners’

argument that state law claims challenging one set of

behaviors (failure to warn and deceptive marketing

coupled with a disinformation campaign) should be

converted into a federal law claim challenging another

32

set of behaviors (combustion of the product and

emission of greenhouse gases) should be rejected.

Even if this Court were to accept that there is a federal

common law claim that could apply in this context, its

displacement by statute would demand the state law

claims be heard on their own terms, and that all

arguments about preemption, other than the inapt

assertion of complete preemption, be heard in state

court.

CONCLUSION

For the foregoing reasons, State and Local

Government Amici urge this Court to affirm the

Fourth Circuit’s decision that federal-officer removal

does not provide plenary review of all grounds for

removal and, if reaching other issues, that the case

should be remanded to state court.

Respectfully submitted,

Lisa Soronen

Robert S. Peck

STATE & LOCAL LEGAL CENTER

Counsel of Record

444 N. Capitol Street, N.W.

CENTER FOR

CONSTITUTIONAL

Suite 515

LITIGATION, P.C.

Washington, DC 20001

2117 Leroy Place, NW

(202) 434-4845

Washington, DC 20008

lsoronen@sso.org

(202) 944-2874

robert.peck@cclfirm.com

Counsel for Amici Curiae