Amicus Curiae Brief — BP p.l.c., et al., Petitioners v. Mayor and City Council of Baltimore
Supreme Court briefDec 23, 2020
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No. 19-1189
IN THE
Supreme Court of the United States
_________________________
BP, P.L.C., ET AL.,
Petitioners,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE,
Respondent.
_______________________
On Writ of Certiorari
To the United States Court of Appeals
For the Fourth Circuit
_______________________
BRIEF OF AMICI CURIAE ERWIN
CHEMERINSKY, ANDREW D. BRADT,
HELEN HERSHKOFF, LONNY HOFFMAN,
E. FARISH PERCY, MICHAEL E.
SOLIMINE, ADAM N. STEINMAN, JOAN
STEINMAN, STEPHEN I. VLADECK,
RHONDA WASSERMAN AND ANNE
BLOOM IN SUPPORT OF RESPONDENT
AND AFFIRMANCE
______________________
WILLIAM A. ROSSBACH
Counsel of Record
Rossbach Law, P.C.
P. O. Box 8988
Missoula, MT 59807
(406) 543-5156
bill@rossbachlaw.com
i
TABLE OF CONTENTS
INTERESTS OF AMICI CURIAE ............................ 1
INTRODUCTION ....................................................... 4
SUMMARY OF ARGUMENT .................................... 6
ARGUMENT ............................................................... 9
A. Federal Courts are Courts of
Limited Jurisdiction. Only
Congress Can Expand Federal
Appellate Jurisdiction Over
Remand Orders...................................... 9
B. The Plain Text of the Statute
Precludes Federal Appellate
Subject Matter Jurisdiction in
this Case. ............................................. 12
1. The Relevant Issue is Not
The Meaning of the Word “Order”
but Rather the Scope of
Congressionally Authorized
Federal Appellate Review. ............ 14
2. Whatever Meaning One
Ascribes to The Word “Order”
in Section 1447(d), It Cannot Be
That Petitioners’ Non-Colorable
Listing of an Exception in Their
Notice of Removal Creates
ii
Appellate Power to Review NonReviewable Grounds. ..................... 19
3. Allapattah Supports a Narrow
Reading of Section 1447(d)’s
Exceptions to the General
Prohibition on Federal Appellate
Review of District Court Remand
Orders. ............................................ 24
C.
Petitioners’ Federal Common Law
Arguments Would Effectuate a
Significant Shift in Decisional
Authority from State to Federal
Courts. ................................................. 28
CONCLUSION ......................................................... 30
iii
TABLE OF AUTHORITIES
Cases
Arbaugh v. Y & H Corp.,
546 U.S. 500 (2006) ............................................... 9
Bell v. Hood,
327 U.S. 678 (1946) ............................................. 22
Beneficial Nat’l Bank v. Anderson,
539 U.S. 1 (2003) .............................................. 7,21
Carlsbad Tech., Inc. v. HIF Bio, Inc.,
556 U.S. 635 (2009) ........................................ 16,19
Caterpillar Inc. v. Williams,
482 U.S. 386 (1987) ............................................... 7
Exxon Mobil Corp. v. Allapattah Servs.,
Inc., 545 U.S. 546 (2005) ..................... 6,9,24,25,26
Gunn v. Minton,
568 U.S. 251 (2013) ............................................. 29
Healy v. Ratta,
292 U.S. 263 (1934) ............................................. 21
Kircher v. Putnam Funds Trust,
547 U.S. 633 (2006) ............................................. 27
iv
Kokkonen v. Guardian Life Ins.,
511 U.S. 375 (1994) .......................................... 9,26
Louisville & Nashville Railroad v.
Mottley, 211 U.S. 149 (1908) ............................... 29
Merrell Dow Pharmaceuticals Inc. v.
Thompson, 478 U.S. 804 (1986) .......................... 29
Merrill Lynch, Pierce, Fenner & Smith
Inc., v. Manning,
136 S. Ct. 1562 (2016) .................................... 20,21
Osborn v. Haley,
549 U.S. 225 (2007) ......................... 13,19,26,27,28
Owen Equip. & Erection Co. v. Kroger,
437 U.S. 365 (1978) ............................................... 9
Powerex Corp. v. Reliant Energy
Services, Inc., 551 U.S. 224 (2007) ....... 12,13,18,30
Quackenbush v. Allstate Ins. Co.,
517 U.S. 706 (1996) ............................................. 18
Ruhrgas AG v. Marathon Oil Co.,
526 U.S. 574 (1999) ............................................... 9
Shamrock Oil & Gas Corp. v. Sheets,
313 U.S. 100 (1941) ........................................ 20,21
Thermtron Prod., Inc. v.
Hermansdorfer, 423 U.S. 336 (1976) ........ 11,15,19
v
Things Remembered, Inc. v. Petrarca,
516 U.S. 124 (1995) ......................... 12,13,15,16,18
United States v. Rice,
327 U.S. 742 (1946) ........................................ 11,16
Waco v. United States Fidelity &
Guaranty Co., 293 U.S. 140 (1934) ..................... 27
Yamaha Motor Corp., U.S.A. v.
Calhoun, 516 U.S. 199 (1996) ........................ 16,17
Statutes
28 U.S.C. 1331 .......................................................... 28
28 U.S.C. 1442 .................................................. passim
28 U.S.C. 1443 .................................................. passim
28 U.S.C. 1447(d) .............................................. passim
Constitutional Provisions
U.S. Const., Art. III ............................................... 9,30
Other Authorities
15A Charles Alan Wright, et al,
Federal Practice & Procedure,
§ 3914.11 (2d ed. 1992) ...................................... 17
15A Edwin H. Cooper, Wright & Miller
Federal Practice & Procedure § 3914.11
(2014 rev.) ............................................................ 17
vi
A. Bradt, Grable on the Ground: Mitigating
Unchecked Jurisdictional Discretion, 44 U.C.
Davis L. Rev. 1153 (2010) ............................ 8,11,29
E. Chemerinsky, Federal
Jurisdiction 11 (7th ed. 2016) .............................. 10
T. Eisenberg, T. Morrison, Overlooked
In the Tort Reform Debate: The
Growth of Erroneous Removal, 2 J.
Empirical Legal Stud. 551 (2005) ....................... 23
R. Fallon, Jr., et al., Hart and
Wechsler’s, The Federal Courts
and the Federal System 780
(7th ed. 2015) .................................................. 10,11
E. Farish Percy, Inefficient Litigation
Over Forum: The Unintended
Consequence of the JVCA’s “Bad
Faith” Exception to the Bar on
Removal of Diversity Cases After
One Year, 71 Okla. L. Rev. 595
(2019).................................................................... 23
E. Farish Percy, The Tedford
Equitable Exception Permitting
Removal of Diversity of Cases
After One Year: A Welcome
Development or the Opening of
Pandora’s Box?, 63 Baylor L.
Rev. 146 (2011) .................................................... 23
vii
M. Solimine, Removal, Remands, and
Reforming Federal Appellate
Review, 58 Mo. L. Rev. 287 (1993) ........................ 8
J. Steinman, Removal, Remand and
Review in Pendent Claim and
Pendent Party Cases, 41 Vand. L.
Rev. 923 (1988) ...................................................... 8
C. Terranova, Erroneous Removal as a
Tool for Silent Tort Reform: An
Empirical Analysis of Fee Awards
And Fraudulent Joinder, 44
Williamette L. Rev. 799 (2008) ........................... 23
R. Wasserman, Rethinking Review
Of Remands: Proposed Amendments
To the Federal Removal Statute,
43 Emory L.J. 83 (1994) ..................................... 10
1
INTERESTS OF AMICI CURIAE 1
Dean Erwin Chemerinsky is the Jesse H.
Choper Distinguished Professor of Law and Dean at
the University of California, Berkeley, where he
teaches Constitutional Law and Federal Courts. He
is the author of Federal Jurisdiction (Aspen Law &
Business 7th ed. 2016), a one-volume treatise on the
jurisdiction of the federal courts, as well as several
books on constitutional law.
Professor Andrew D. Bradt is a Professor of
Law at the University of California, Berkeley, where
he teaches Civil Procedure, Complex Litigation,
Conflict of Laws, and Remedies.
Professor Helen Hershkoff is the Herbert
M. and Svetlana Wachtell Professor of Constitutional
Law and Civil Liberties at New York University
School of Law where she teaches Civil Procedure and
Federal Courts. She is a co-author of a leading civil
procedure casebook and of Volume 14 of Wright &
Miller's Federal Practice and Procedure (4th ed.
2015).
Professor Lonny Hoffman is the Law
Foundation Professor at the University of Houston
Law Center, where he teaches and writes about civil
1 Letters of consent to the filing of this brief have been filed with
the Court. Pursuant to this Court’s Rule 37.6, counsel states
that this brief was not authored in whole or in part by counsel
for a party and that no one other than amici and their counsel
made a monetary contribution to the preparation or submission
of this brief.
2
procedure in federal and state courts. He is a
member of the American Law Institute and has
served as Chair of the Civil Procedure
Section of the American Association of Law Schools.
Professor E. Farish Percy is the Jamie L.
Whitten Chair of Law and Government at the
University of Mississippi School of Law. She teaches
civil procedure and has written extensively on
removal jurisdiction.
Professor Michael E. Solimine is the
Donald P. Klekamp Professor of Law at the
University of Cincinnati College of Law. He teaches
and writes on civil procedure, federal courts, and
appellate procedure.
Professor Adam N. Steinman is the
University Research Professor of Law at the
University of Alabama School of Law. He teaches and
writes in the areas of civil procedure and complex
litigation and has authored numerous articles on
appellate jurisdiction and appellate practice.
Professor Joan Steinman is the University
Distinguished Professor Emerita and Professor of
Law Emerita at the Chicago-Kent College of Law,
Illinois Tech. She has taught and written in the
areas of civil procedure, complex litigation, and
appellate courts for over 41 years. For many years,
she was responsible for two volumes of the Wright, et
al., Federal Practice and Procedure treatise, and coauthored a casebook on appellate courts.
3
Professor Stephen I. Vladeck holds the
Charles Alan Wright Chair in Federal Courts at the
University of Texas School of Law and has written
extensively about appellate jurisdiction in the federal
courts, in particular.
Professor Rhonda Wasserman is
a Professor of Law and John E. Murray Faculty
Scholar at the University of Pittsburgh School of
Law. She teaches Civil Procedure and Conflict of
Laws.
Anne Bloom is the Executive Director of the
Civil Justice Research Initiative at Berkeley Law.
She teaches and writes on civil procedure, complex
litigation, and torts.
Having devoted their careers to teaching and
writing about civil procedure and the federal courts,
and working for their improved administration, amici
have a keen interest in seeing that federal courts
function fairly and efficiently. It is equally important
that the lower federal courts function only as
Congress has authorized. If the court below is
reversed, appellate panels will entertain appeals that
Congress has specifically prohibited, upsetting a
careful balance of federal and state judicial interests.
The institutional affiliations of the signatories
are for identification purposes only.
4
INTRODUCTION
This case involves a lawsuit under Maryland
law by the City of Baltimore against 26 oil and gas
companies. It seeks damages and other relief
stemming from the Petitioners’ allegedly deceptive
communications about the environmental impacts of
their products. J.A. 23, 27-29, 87-131, 155-182.
After the City of Baltimore filed suit in state court,
two of the Petitioners removed the case to federal
court, citing multiple grounds for removal including
28 U.S.C. 1442 (federal officer removal). J.A. 187242. The federal trial court remanded the case to
state court following a determination that there was
no basis for federal subject matter jurisdiction,
pursuant to Section 1442 or otherwise. Pet. App. 31a
-81a.
Petitioners appealed to the Court of Appeals
for the Fourth Circuit, which upheld the trial court’s
order of remand. Mayor & City Council of Balt. v. BP
P.L.C., 952 F.3d 452 (4th Cir. 2020). In accordance
with the conclusion of nearly every federal court of
appeals to consider the issue, the Fourth Circuit
found, under 28 U.S.C. 1447(d), that it lacked
authority to review any of the trial court’s
conclusions other than whether removal was
appropriate under Section 1442. The Fourth Circuit
then went on to affirm the trial court’s conclusion
that removal was not authorized in this case.
Petitioners have now abandoned their arguments for
federal officer removal under Section 1442. Instead,
Petitioners filed a petition for certiorari in this Court,
seeking review of the Fourth Circuit’s conclusion that
5
federal appellate courts lack subject matter
jurisdiction to review a district court’s remand
decision insofar as it is based on the district court’s
rejection of alternative grounds on which Petitioners
purported to remove.
Amici file this brief as law professors and
scholars who teach or have taught Civil Procedure
and Federal Courts. Removal is a mechanism that
allows a federal court to assume power over some
actions that originally were filed in state court. The
appropriate exercise of jurisdiction after removal
holds important consequences for the balance of state
and federal judicial power and Congress consistently
has imposed limits upon the lower federal courts’
power under this grant of authority. Congress also
has made clear that removed actions that lack a
legitimate basis of original federal subject matter
jurisdiction must be remanded back to the state court
in which the action was first filed. Relatedly, and
significant to the question before this Court,
Congress consistently has authorized appellate
courts to exercise only limited review of district court
orders that remand an action to state court. In
particular, congressionally enacted limitations on
federal subject matter jurisdiction prohibit any
federal appellate court, including this Court, from
revisiting a district court’s order of remand except
when the federal appellate court has been granted
explicit authority to review the remand order.
As we explain below, Section 1442 (federal
officer removal) and 1443 (civil rights removal)
represent limited exceptions to Congress’s general
6
prohibition of review of remand orders, on appeal or
otherwise, as set out in Section 1447(d). When a
defendant removes a case to federal court on the
basis of Sections 1442 or 1443 along with other
grounds for federal jurisdiction, and when the district
court remands the case, the court of appeals has
power to review only whether removal was proper
under Sections 1442 or 1443. A defendant’s inclusion
of a contention under Sections 1442 or 1443 in its
removal notice does not create power for the
appellate court to review a non-reviewable ground for
removal. Petitioners in this case no longer seek
removal on the sole relevant ground for which
appellate review is permitted by Section 1447(d), i.e.,
as a case removable under Section 1442. The
decision of the Fourth Circuit must be affirmed and
the case remanded to the state court in which it was
filed.
SUMMARY OF THE ARGUMENT
Subject matter jurisdiction of federal courts is
limited and can be granted only by the Constitution
and Acts of Congress. Exxon Mobil Corp. v.
Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). An
Act of Congress specifically addresses and limits the
subject matter jurisdiction of all federal appellate
courts to review remand orders. See 28 U.S.C.
1447(d). With respect to review of remand orders,
the statute provides that federal courts of appeals,
including this Court, have subject matter jurisdiction
only as to two limited grounds—known as federal
officer and civil rights removal—under Sections 1442
7
and 1443, respectively. Neither of these narrow
exceptions apply here.
As Petitioners’ brief on the merits appears to
concede, there is no plausible argument in this case
for removal on either of these jurisdictional
provisions. See Pet. Br. 28-29. Instead, Petitioners
now seek to overturn the district court’s order of
remand on a theory that federal common law
preempts the Plaintiff’s state law claims. See Pet.
Br. 38-45. It is axiomatic, under the well-pleaded
complaint rule, that defendants cannot “magically
transform[]” a plaintiff’s complaint into one that
involves federal claims. Beneficial Nat’l Bank v.
Anderson, 539 U.S. 1, 12, 15 (2003) (Scalia, J.,
dissenting) (“The [well-pleaded-complaint] rule
makes the plaintiff the master of the claim; he or she
may avoid federal jurisdiction by exclusive reliance
on state law.” (quoting Caterpillar Inc. v. Williams,
482 U.S. 386 (1987))). Assuming for the sake of
argument, however, that Petitioners’ recharacterization of Respondent’s complaint would be
permissible and would illuminate the existence of a
claim arising under federal law, it would not change
the fact that Congress did not confer jurisdiction
upon federal appellate courts, including this Court, to
review non-reviewable grounds for removal of the
action.
Petitioners’ brief on the merits brushes past
these congressionally enacted limits on the subject
matter jurisdiction of federal appellate courts,
focusing instead on a blinkered interpretation of the
word “order” in an attempt to bootstrap non-
8
reviewable grounds for removal into this appeal.
But the issue in this case is not the meaning of the
word “order.” The issue, as is stated clearly in the
question presented, is the scope of federal appellate
review over remand orders. Whatever a trial court’s
order of remand may contain, it cannot confer
jurisdiction on appellate courts to review grounds for
remand that Congress has not given federal appellate
courts authority to review.
At bottom, Petitioners seek to rewrite Section
1447(d) to significantly expand the authority of
federal courts of appeals (including this Court) to
review a trial court’s decision remanding a case to
state court. As some of us have argued elsewhere,
there may be good policy reasons to expand federal
appellate jurisdiction of remand decisions. See, e.g.,
Joan Steinman, Removal, Remand, and Review in
Pendent Claim and Pendent Party Cases, 41 Vand. L.
Rev. 923, 1004-11 (1988); Andrew D. Bradt, Grable on
the Ground: Mitigating Unchecked Jurisdictional
Discretion, 44 U.C. Davis L. Rev. 1153 (2010);
Michael E. Solimine, Removal, Remands, and
Reforming Federal Appellate Review, 58 Mo. L. Rev.
287 (1993). But, at present, the relevant statute does
not permit review of the remand order in this case.
Petitioners’ arguments to the contrary suggest a
fundamental misunderstanding of the limitations of
federal court jurisdiction. Petitioners’ interpretation
of the congressionally enacted limitations on
appellate review turn Section 1447 on its head and
are expressly in conflict with the plain command of
Congress.
9
ARGUMENT
A. Federal Courts Are Courts of
Limited Jurisdiction. Only
Congress Can Expand Federal
Appellate Jurisdiction Over
Remand Orders.
In our federal system, state courts have wide
authority to exercise subject matter jurisdiction.
Federal courts, in contrast, are courts of limited
jurisdiction. Owen Equip. & Erection Co. v. Kroger,
437 U.S. 365, 374 (1978). They may hear only cases
expressly authorized by the Constitution or
Congress. See U.S. Const. Art. III, § 2; Allapattah,
545 U.S. at 552. Without an express grant of
authority from Congress, a case is presumed to lie
outside a federal court’s jurisdiction. Kokkonen v.
Guardian Life Ins., 511 U.S. 375, 377 (1994).
Because of these limitations, parties cannot confer
federal subject matter jurisdiction through consent,
objections to subject matter jurisdiction cannot be
waived, and federal courts have a duty to raise
concerns as to subject matter jurisdiction on their
own. Arbaugh v. Y & H Corp., 546 U.S. 500, 514
(2006) (citing Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 583 (1999)).
In the early years of our nation, Congress was
extremely cautious about exercising its Article III
power to confer federal jurisdiction, primarily for
reasons of federal-state comity. For example,
although the Judiciary Act of 1789 authorized
removal of some cases to federal court, it did not
10
authorize federal subject matter jurisdiction over
cases arising under the federal Constitution or other
federal laws and treaties. Richard H. Fallon, Jr., et.
al., Hart and Wechsler’s The Federal Courts and the
Federal System 780 (7th ed. 2015); Erwin
Chemerinsky, Federal Jurisdiction 11 (7th ed. 2016).
Federal appellate jurisdiction also was extremely
limited. For example, under the Judiciary Act of
1789, federal court review was not permitted of state
court decisions ruling in favor of a person raising a
federal law issue. Chemerinsky, supra, at 11.
The expansive reach of current federal subject
matter jurisdiction is relatively new and was adopted
largely in response to conflicts between federal and
state officials after the Civil War. Fallon, supra, at
781. This expansion of federal court jurisdiction
reached its peak in the 1875 Judiciary Act, which
gave federal trial courts concurrent jurisdiction with
that of State courts over a wide variety of cases and
authorized either party to remove a case. Fallon,
supra, at 782; Chemerinsky, supra, at 293.
In the years that followed, many more cases
were filed in federal courts, raising concerns about
the capacity of federal courts to manage the case
load. Fallon, supra, at 782. Congress reacted by
taking steps to narrow federal subject matter
jurisdiction by, among other things, eliminating
removal by plaintiffs. See Rhonda Wasserman,
Rethinking Review of Remands: Proposed
Amendments to the Federal Removal Statute, 43
Emory L.J. 83, 100 (1994). It was also at this time
that Congress determined that orders remanding
11
removed cases to the state courts could not be
appealed. Fallon, supra, at 782.
Today, the general restriction on appeals of
trial court orders remanding removed cases to state
courts still stands, with limited exceptions. See 28
U.S.C. 1447(d). Perhaps not surprisingly, these
limited exceptions reflect some of the concerns about
federal interests, including potential bias against
federal officers, that initially prompted Congress to
significantly expand subject matter jurisdiction in
the late 1800s. At the same time, the extremely
narrow nature of the exceptions recall the ongoing
concerns about comity and parity, which initially
prompted Congress to be very restrictive in setting
the scope of federal subject matter jurisdiction. See
Thermtron Prod., Inc. v. Hermansdorfer, 423 U.S.
336, 354-55 (1976) (Rehnquist, J., dissenting) (noting
that Section 1447(d) reflects a “balanced concern”
about the availability of a federal forum, on the one
hand, and the interruption and delay caused by
appellate review, on the other hand); see also United
States v. Rice, 327 U.S. 742, 752 (1946) (noting that
the statutory bar on review of remand orders serves
“the Congressional policy of avoiding interruption of
the litigation of the merits of removed causes,
properly begun in state courts”); Bradt, supra, at
1198.
While Congress’s approach to balancing
federal and state interests in the context of federal
subject matter jurisdiction has changed over time,
the basic principles governing federal subject matter
12
jurisdiction have not changed. As was the case at
our nation’s founding, a federal court today cannot
hear a case it is not authorized to consider by the
Constitution and federal statute. And, in the context
of removal, “Congress has placed broad restrictions
on the power of federal appellate courts to review
district court orders remanding removed cases to
state court.” Things Remembered, Inc. v. Petrarca,
516 U.S. 124, 127 (1995); see also Powerex Corp. v.
Reliant Energy Services, Inc., 551 U.S. 224, 229
(2007) (“The authority of appellate courts to review
district-court orders remanding removed cases to
state court is substantially limited by statute.”).
B. The Plain Text of the Statute Precludes
Federal Appellate Subject Matter
Jurisdiction in this Case.
Under 28 U.S.C. § 1447(d), trial courts are
given nearly exclusive authority to determine
whether federal subject matter jurisdiction is present
and supports removal of the action from state court,
or whether the action should be returned to state
court. Section 1447(d) provides:
“An order remanding a case to the State
court from which it was removed is not
reviewable on appeal or otherwise,
except that an order remanding a case to
the State court from which it was removed
pursuant to section 1442 or 1443 of this
title shall be reviewable by appeal or
otherwise.”
13
28 U.S.C. § 1447(d) (emphasis added).
As Petitioners concede, this language
unambiguously precludes the exercise of appellate
jurisdiction to review an order remanding a removed
case to state court, unless one of two narrow
exceptions applies —i.e., that the case involves
federal officers or defendants acting under federal
officers (Section 1442) or arises out of civil rights
violations (Section 1443). Section 1447(d) otherwise
imposes a broad bar on appellate jurisdiction to
review a district court’s remand decisions. See
Things Remembered, 516 U.S. 124. Section 1442 and
1443 represent narrow exceptions to the bar on
review. It is difficult to imagine how Congress could
have expressed itself more clearly. See Osborn v.
Haley, 549 U.S. 225, 262 (2007) (Scalia, J.,
dissenting) (“Few statutes read more clearly than 28
U.S.C. § 1447(d)”).
As Justice Scalia explained in Powerex:
“Section 1447(d) reflects Congress’s
longstanding policy of not permitting
interruption of the litigation of the merits
of a removed case by prolonged litigation
of questions of jurisdiction of the district
court to which the cause is removed.
Appellate courts must take that
jurisdictional prescription seriously,
however pressing the merits of the appeal
might seem.”
Powerex, 551 U.S. at 238-39 (cleaned up).
14
Nevertheless, Petitioners read the statute to
achieve a result that is the opposite of the plain
language of the statute, arguing that the narrow
exceptions should allow Petitioners to overcome the
broad bar on review and permit federal appellate
courts to review on appeal all of the grounds for
removal that the district court rejected. This reading
subverts the clear purpose of Section 1447(d) to
withhold appellate jurisdiction and narrowly limit
the reviewability of remand orders except as to
specific and limited jurisdictional grants. The whole
point of these statutory provisions was to make
Sections 1442 and 1443 provide exceptions to the
Section 1447(d) bar on federal appellate review of
subject matter determinations by trial courts; they do
not open a door to general appellate review of all
other grounds for removal that the district court
rejected. Petitioners’ argument would turn the
statutory prohibition on review upside down and
effect a vast and impermissible expansion of federal
appellate jurisdiction. This Court should not accept
Petitioners’ invitation to supplement the express
statutory exceptions with additional, judicially
created exceptions to Congress’s no-appeal rule.
1. The Relevant Issue Is Not the Meaning
of the Word “Order” But Rather the
Scope of Congressionally Authorized
Federal Appellate Review.
Petitioners’ textual argument turns on an
expansive reading of the word “order.” Petitioners
took a “kitchen sink” approach to removal, referring
15
to multiple different potential bases for jurisdiction,
some of which they later abandoned. They maintain
that this Court has authority to hear this appeal
because the trial court’s remand “order” rejected both
reviewable and non-reviewable grounds of
jurisdiction. But the district court’s order cannot
create appellate jurisdiction that Congress has not
conferred, and Congress did not authorize appellate
jurisdiction to review the non-reviewable grounds of
jurisdiction set out in the order. Contrary to
Petitioners’ assertion, the question is not the scope of
the order, but rather the scope of the authority of
federal courts of appeal to review the order. See
Thermtron, 423 U.S. at 353-54 (1976) (Rehnquist, J.,
dissenting) (noting that the “principal” issue is
whether the Court has jurisdiction). And, here, the
statute could not be clearer: federal courts of appeals
have power to review a trial court’s order of remand
only to the extent it raises one of the two narrow
grounds for jurisdiction set out in Sections 1442 and
1443.
Section 1447(d) is fundamentally about a
limitation on appellate review. As Justice Thomas
explained in Things Remembered, if a district court’s
remand is based on lack of subject matter jurisdiction
“a court of appeals lacks jurisdiction to entertain an
appeal.” Things Remembered, 516 U.S. at 127-28.
Just as in Things Remembered, Ҥ 1447(d) bars
appellate review of the remand order in this case,”
unless the remand was based on a lack of jurisdiction
under Sections 1442 or 1443— and Petitioners in this
case concede that these bases for jurisdiction are not
at issue in the appeal. See id. At 128; see also
16
Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635,
638 (2009).
Nothing about the subsequent legislative
history of Section 1447(d) changes this fundamental
analysis. Justice Thomas wrote the opinion of this
Court in Things Remembered in 1995. Then, as now,
Section 1447(d) included an exception to the general
bar to appellate review for cases removed pursuant to
Section 1443. Subsequently, in 2011, Congress
amended Section 1447(d) to add a second exception
for cases removed pursuant to Section 1442, with the
addition of “1442 or” to Section 1447. Section
1447(d), as articulated by this Court in Things
Remembered, continues to unambiguously bar
appellate review of remand orders in most instances.
See Things Remembered, 516 U.S. at 128 (noting
that, “[a]bsent a clear statutory command to the
contrary, [this Court assumes] that Congress is
aware of the universality of the practice of denying
appellate review of remand orders when Congress
creates a new ground for removal” (cleaned up)
(citing United States v. Rice, 327 U.S. 742 (1946))).
This Court’s holding in Yamaha Motor Corp.,
U.S.A. v. Calhoun did not change the plain meaning
of Section 1447(d). See 516 U.S. 199 (1996). It is
true that Yamaha involved an “order” and that this
Court held, in that instance, that the appellate court
could address any issue fairly included within that
order. Id. at 205. But Yamaha involved the meaning
of 28 U.S.C. § 1292(b), which authorizes review of
otherwise unreviewable interlocutory orders in cases
in which the subject matter jurisdiction of federal
17
courts has already been established. This case, in
contrast, involves a question about whether federal
subject matter jurisdiction at the appellate level
exists at all, after it was found not to exist at all at
the district court level. And, Section 1447 makes
clear that Congress intended for district courts to
make that initial subject matter determination, with
express limitations on appellate review. As the
United States notes in its brief, Section 1447(d)’s
appellate review bar is an exception to ordinary
principles of appellate review. See Brief of the U.S.
at 16. Yamaha is inapposite.
The policy recommendations of a leading civil
procedure treatise also provide no support for
Petitioners’ interpretation of the word “order” in this
case. See Pet. Br. 18 (citing Edward H. Cooper, 15A
Charles Alan Wright et al, Federal Practice &
Procedure § 3914.11, at 706 (2d ed. 1992) (Wright &
Miller). While Petitioners claim this treatise
“agrees” with their interpretation, it is more accurate
to say that the treatise is recommending that
appellate review should be expanded to all grounds of
appeal, rather than endorsing Petitioners’ expansive
interpretation of the plain text of Section 1447(d).
See Edward H. Cooper, 15A Wright & Miller Federal
Practice & Procedure § 3914.11 (2014 rev.)
(suggesting that “review should . . . be extended”
(emphasis added) and providing a list of policy
reasons in support of this recommendation). A
number of law professors agree with this view,
including some of the professors who have joined this
brief, but that does not change Section 1447(d)’s
current unambiguous prohibition on review.
18
It is true that there have been times when this
Court has interpreted Section 1447(d) “to cover less
than its words alone suggest.” Powerex, 551 U.S. at
229. For example, when an earlier version of Section
1447(c) was in effect, the Court “interpreted § 1447(d)
to preclude review only of remands for lack of
subject-matter jurisdiction and for defects in removal
procedure.” Id. at 229 (citing Quackenbush v. Allstate
Ins. Co, 517 U.S. 706, 711-712 (1996)); Things
Remembered, 516 U.S. at 127-128). But despite
these expansions of the universe of remand orders
that may be reviewed on appeal, the Court has
steadfastly maintained Section 1447(d)’s prohibition
of appellate review of remands based on lack of
subject matter jurisdiction. See Powerex, 551 U.S.
224.
As this Court’s jurisprudence has recognized,
while defendants have the right to remove various
cases, Congress did not regard defendants’ right to a
federal forum as so valuable as to overcome the
values of immediate adjudication in a State court and
conservation of federal appellate resources. Indeed,
the Court has indicated that appellate review is
unavailable so long as the district court’s
determination that the removed case was outside
federal subject matter jurisdiction was “colorable.”
Powerex, 551 U.S. at 234 (holding that when “the
district court relied upon a ground that is colorably
characterized as subject-matter jurisdiction,
appellate review is barred by § 1447(d)”).
19
The remand order from the district court in
this case was clearly based on lack of subject matter
jurisdiction. Under these circumstances, Section
1447 still means what it says. See Carlsbad Tech.,
556 U.S. at 643 (Scalia, J., concurring) (“[I]t would
not be unreasonable to believe that 28 U.S.C. §
1447(d) means what it says; and what it says is no
appellate review of remand orders.” (cleaned up)
(citing Thermtron, 423 U.S. at 354 (Rehnquist, J.,
dissenting)). Appellate courts do not have authority
to review the district court’s decision to remand for
lack of jurisdiction on grounds other than the
subsequently withdrawn section 1442 removal. See
Osborn v. Haley, 549 U.S. at 240 (noting that remand
orders issued under Section 1447(c) and
invoking lack of subject matter jurisdiction “are
immune from review”).
2. Whatever Meaning One Ascribes to the
Word “Order” in Section 1447(d), It
Cannot Be That Petitioners’ NonColorable Listing of an Exception in
Their Notice of Removal Creates
Appellate Power to Review NonReviewable Grounds.
Petitioners’ brief on the merits does not
seriously dispute any of the foregoing. Instead, it
encourages the Court to adopt what is essentially an
upside-down interpretation of Section 1447(d).
According to Petitioners’ view, appellate review of
remand orders is triggered—and applies to every
remand order in its entirety—whenever a district
court rejects Petitioner’s efforts to remove under
20
Section 1442 or 1443 and the trial court’s remand
order simultaneously rejects other asserted grounds
to remove. Moreover, according to Petitioners, this
expansive approach to appellate review of remand
should be permitted, even when the defendant has
abandoned any serious argument in favor of removal
on the grounds of either of the statutorily created
exceptions.
Petitioners’ argument runs contrary to
accepted rules governing the interpretation of
jurisdictional statutes. First, Petitioners’
interpretation ignores the general prescription to
read statutes conferring federal jurisdiction
narrowly. Merrill Lynch, Pierce, Fenner & Smith Inc.
v. Manning, 136 S. Ct. 1562, 1573 (2016). Second,
the proposed interpretation would effect an end-run
around Section 1447(d)’s general bar on appellate
review of remand orders based on subject matter
jurisdiction, and in so doing would burden federal
courts of appeals with the often complex issues of
subject matter jurisdiction that Congress sought to
avoid imposing on the federal appeals courts.
Petitioners’ proposed interpretation would allow
defendants to effect these results by simply
asserting—and then abandoning—meritless, if not
frivolous, invocations of federal officer or civil rights
removal authorizations.
We underscore that these rules of
interpretation reflect important concerns of
federalism, which support a strict construction of
federal jurisdictional statutes in order to maintain
respect for state judicial authority. Shamrock Oil &
21
Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941). As this
Court has explained, “Out of respect for state courts,
[the] Court has time and again declined to construe
federal jurisdictional statutes more expansively than
their language, most fairly read, requires. . . . That
interpretive stance serves . . . to help maintain the
constitutional balance between state and federal
judiciaries.” Merrill Lynch, 136 S. Ct. at 1573; Healy
v. Ratta, 292 U.S. 263, 270 (1934) (“Due regard for
the rightful independence of state governments,
which should actuate federal courts, requires that
they [the federal courts] scrupulously confine their
own jurisdiction to the precise limits which the
statute has defined.”); see also Beneficial Nat’l Bank
v. Anderson, 539 U.S. at 18 (Scalia, J., dissenting)
(noting the “long tradition of respect for the
autonomy and authority of state courts). Particularly
in light of this rule of strict construction of federal
jurisdictional statutes, it would strain credulity to
adopt Petitioners’ broad reading of the word “order”
to all but eviscerate Section 1447(d)’s general bar on
appellate review of remand orders based upon lack of
subject matter jurisdiction.
The following hypothetical illustrates just how
problematic Petitioners’ interpretation of Section
1447(d) is from the standpoint of ordinary textual
interpretation. Imagine that a judge instructs her
clerks, “While I’m on my family vacation, phone calls
to my cell phone are not allowed under any
circumstances, except that calls are allowed if there
is a problem with the Johnson case.” Any clerk who
called the judge about the Johnson case would not
dare raise other additional issues. Although the
22
judge technically authorized “calls,” the scope of any
call is clearly limited to the Johnson case. Yet the
interpretation that Petitioners advocate here is even
worse. Petitioners take the position of a clerk who
calls saying, “There’s not actually a real problem
with the Johnson case, but while I have you on the
phone . . .” Such a call would be unacceptable to the
judge, and in the same way, Petitioners should not be
permitted to use a non-meritorious claim of federal
officer jurisdiction to expand the limited scope of
appellate jurisdiction set out in Section 1447(d).
While Petitioners deny that their citation of
the federal officer exception in their notice of removal
was frivolous in this case, they do not appear at this
point to be seriously arguing for removal on this
ground. Petitioners devoted only a fraction of their
briefing in the Fourth Circuit to the federal officer
argument, and they have all but abandoned their
federal officer argument here. Instead, nearly all of
the discussion in support of removal contained in
Petitioners’ Brief on the merits focuses on arguments
related to federal common law and the preemption of
state common law claims. Whatever the word “order”
means, it cannot permit Petitioners to bootstrap nonreviewable grounds for remand into an appeal
through the frivolous or otherwise non-meritorious
inclusion of reviewable grounds in its Notice of
Removal. See Bell v. Hood, 327 U.S. 678, 682 (1946)
(“a suit may sometimes be dismissed for want of
jurisdiction where the alleged claim under the
Constitution or federal statutes clearly appears to be
immaterial and made solely for
23
the purpose of obtaining jurisdiction or where such a
claim is wholly insubstantial and frivolous”).
It is not enough to say, as Petitioners claim,
that the problem could be solved by the aggressive
use of sanctions against parties that seek to remove
on frivolous grounds. Numerous studies have
demonstrated that the threat of sanctions has not
deterred defendants from erroneously removing cases
to federal court. 2
Petitioners’ proposed solution—relying on
satellite sanction litigation—would increase costs for
2 See E. Farish Percy, Inefficient Litigation Over Forum: The
Unintended Consequence of the JVCA’s “Bad Faith” Exception to
the Bar on Removal of Diversity Cases After One Year, 71 Okla.
L. Rev. 595, 602-03 (2019) (empirical study demonstrated that
the remand rate for cases removed pursuant to the “bad faith”
exception to the bar on removal of diversity cases after one year
was 85%); E. Farish Percy, The Tedford Equitable Exception
Permitting Removal of Diversity of Cases After One Year: A
Welcome Development or the Opening of Pandora’s Box?, 63
Baylor L. Rev. 146, 154-56 (2011) (empirical study revealed a
remand rate of more than 83% in cases removed pursuant to the
Tedford equitable exception to the one-year bar on removal of
diversity cases); Theodore Eisenberg & Trevor W. Morrison,
Overlooked in the Tort Reform Debate: The Growth of Erroneous
Removal, 2 J. Empirical Legal Stud. 551, 568-76 (2005)
(concluding that the empirical evidence of numerous erroneous
removals in some jurisdictions can be attributed to defendants'
increasingly abusive removal tactics, at least in part);
Christopher Terranova, Erroneous Removal as a Tool for Silent
Tort Reform: An Empirical Analysis of Fee Awards and
Fraudulent Joinder, 44 Willamette L. Rev. 799, 831 (2008)
(empirical study demonstrated that the remand rate for cases in
which the removing defendant asserted fraudulent joinder was
more than 59%).
24
plaintiffs, drain resources from the district and
appellate courts, and create administrative problems
(among other things, although federal courts may
impose sanctions even after an action has been
dismissed on jurisdictional grounds, federal sanction
rules do not apply to state courts or state judges).
Nor does this proposal give due respect to Congress
and the clear limitations that it placed on appellate
review of remand orders.
The plain language of Section 1447(d)
expressly bars federal courts from reviewing remand
orders except as to civil rights or federal officer
grounds for removal. Sections 1442 and 1443
represent limited exceptions to the otherwise
nonexistent subject matter jurisdiction for appellate
review of remand orders under Section 1447(c).
These exceptions should not be permitted to expand
federal appellate subject matter jurisdiction to
matters as to which Congress manifestly intended to
deny it.
3. Allapattah Supports a Narrow
Reading of Section 1447(d)’s
Exceptions to the General Prohibition
on Federal Appellate Review of
District Court Remand Orders.
In its Brief in Support of Petitioners, the
United States makes several arguments in favor of a
broad reading of the word “order.” For example, the
United States suggests that orders granting remand
should be treated the same as orders denying
remand. See Brief of the U.S. at 21. But in light of
25
the general principles governing federal subject
matter jurisdiction, these arguments make no sense.
Exxon Mobil Corp. v. Allapattah Servs., Inc., a
case involving issues of supplemental jurisdiction, is
instructive on this point. See 545 U.S. at 556.
Allapattah involved an interpretation of Section
1367(a)’s provision for supplemental jurisdiction “in
any civil action of which the district courts have
original jurisdiction.” Id. at 558. Citing the general
principle that statutes involving subject matter
jurisdiction must not be construed expansively, this
Court emphasized that we must look closely at the
text of the statute, including what claims are barred
from federal subject matter jurisdiction by Section
1367(b). Id. (“[W]e must examine the statute's text
in light of context, structure, and related statutory
provisions.”).
In Allapattah, the Court concluded that the
presence of a single claim in a complaint that is
within the original jurisdiction of the federal court
could provide the basis for the court’s exercise of
power over a “related” claim that forms a part of the
same constitutional case but that otherwise would
fall outside original federal jurisdiction. See id. At
559. As the Court emphasized, its holding resulted
from a close reading of Section 1367(a), which
provided a “broad jurisdictional grant.” Id. at 559,
561. But, contrary to the contentions of
Petitioners and the United States, the opposite is
true in this case.
26
As in Allapattah, the Court here must look
closely at Congressional language to determine how
Section 1447(d) fits within the broader statutory
framework, including Section 1447(c), which
authorizes trial courts to issue remand orders. While
Section 1367(a) provides a broad jurisdictional grant,
Section 1447(d) imposes a broad appellate
jurisdictional bar.
Petitioners’ proposed interpretation of Section
1447(d) would essentially turn the analysis of
Allapattah upside down and is completely at odds
with the basic principles of federal subject matter
jurisdiction. See Kokkonen v. Guardian Life Ins. 511
U.S. at 377 (noting that, without an express grant of
authority from Congress, a case is presumed to lie
outside a federal court’s jurisdiction). In Allapattah,
an express grant of authority was present. But, in
this case, the opposite is true—an express and broad
prohibition of appellate review of remand orders is
what one finds.
Remarkably, the United States also claims
that no one has offered a “persuasive defense” for a
narrow construction of Section 1447(d). See Brief of
the U.S. at 13. Once again, the argument is upside
down. It is not necessary for Respondent or this
Court to offer policy arguments in favor of a narrow
reading of the statute; the basic principles of federal
subject matter jurisdiction require a narrow reading.
Moreover, in Osborn v. Haley, Justice Scalia provided
a very persuasive explanation for why this Court is
not permitted to construe Section 1447(d) broadly, as
Petitioners and the United States urge. See 549 U.S.
27
225. After first noting that “few statutes read more
clearly than 28 U.S.C. § 1447(d),” Justice Scalia
emphasized that the bar on appellate review is “not
just hortatory; it is jurisdictional.” Id. at 262-63.
Justice Scalia then urged the Court to refrain from
“eviscerat[ing]” what remains of “Congress’s Courtlimiting command,” and reminded us that Section
1447(d)’s Court-limiting command “applies with full
force” even to “erroneous remand orders.” Id. at 263,
265.
For similar reasons, the United States’
contention that orders “‘cannot be disaggregated’ into
reviewable and unreviewable rulings” also is offtrack. See Brief of the United States at 13-14. The
United States’ argument cites Kircher v. Putnam
Funds Trust, 547 U.S. 633, 646 n. 13 (2006), but
actually relies on Waco v. United States Fidelity &
Guaranty Co., 293 U.S. 140 (1934) (permitting review
of certain district court determinations that precede
a remand order). However, as Justice Scalia noted
in Osborn v Haley, the “continuing vitality of Waco is
dubious in light of more recent precedents.” 549 U.S.
at 266 (citing Kircher). More fundamentally, as
Justice Scalia emphasized, Waco can be
distinguished from those cases, such as the instant
one, where appellate court interference would
subvert the remand order. Id. at 267. The reason for
this is clear. Congress has determined that, absent
very narrow exceptions, remand
orders are exclusively the province of the district
court.
28
Notably, Justice Scalia’s discussion in Osborn
also presciently addressed the United States’
suggestion that, if Congress does not like the results
of the more expansive reading of the statute
Petitioners are encouraging the Court to adopt,
Congress can simply amend the statute again. See
Brief of the United States at 30 (arguing that “if
experience reveals” that the proposed interpretation
“results in gamesmanship” or “undo delays,” the
solution will lie with Congress). But, as Justice
Scalia commented, “it is hard to imagine new
statutory language accomplishing the desired result
any more clearly than § 1447(d) already does.”
Osborn v. Haley, 549 U.S. at 268-69.
C. Petitioners’ Federal Common Law
Arguments Would Effectuate a
Significant Shift in Decisional Authority
from State to Federal Courts.
Petitioners’ brief on the merits all but concedes
that there is no plausible argument in this case for
removal on the grounds of either of the two
permissible exceptions allowing appellate review
under Section 1447(d). See Pet. Br. 28-29. Instead,
Petitioners now seek to overturn the district court’s
order of remand alleging a basis for jurisdiction
under 28 U.S.C. § 1331 (federal question jurisdiction)
on a theory that federal common law preempts the
plaintiff’s state law claims. See Pet. Br. 38-45.
Petitioners’ arguments would effectuate a significant
shift in decisional authority from state to federal
courts, with potentially far-reaching implications for
29
federal-state comity, and would expand the defense of
preemption far beyond current precedent.
Petitioners’ arguments would also implicate the
well-pleaded complaint rule. See Bradt, supra, at
1161 (“The Court has long endorsed numerous
limitations on statutory federal-question jurisdiction,
most prominently the well-pleaded complaint rule,
which requires that the basis for federal jurisdiction
appear on the face of the plaintiff’s complaint and not
in ‘some anticipated defense to his cause of action.’”
(quoting Louisville & Nashville R.R. v. Mottley, 211
U.S. 149, 152 (1908))). On the face of the complaint
in this case, all of the claims in this case sound in
Maryland law. See Pet. Br. at 44 (urging the Court to
look beyond the pleadings). It is well established
that it must be clear from the face of the plaintiff’s
complaint that there is a federal question. Louisville
& Nashville Railroad v. Motley, 211 U.S. 149.
Although the Court has recognized a narrow basis for
the exercise of federal jurisdiction over claims that
are created by state law, Gunn v. Minton, 568 U.S.
251 (2013), “[j]urisdiction may not be sustained on a
theory that the plaintiff has not advanced.” Merrell
Dow Pharmaceuticals Inc. v. Thompson, 478 U.S.
804, 809 n.6 (1986).
Finally, and most fundamentally from a civil
procedure perspective, Petitioners have not properly
raised the issue of jurisdiction under § 1331 for
review. For these reasons, and particularly in light
of the potentially far-reaching implications for
federal-state comity, we urge the Court to decline
Petitioners’ invitation to consider these issues now.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.