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

$upreute Taurt of the thtitetr ,*tates

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

Petitioners,

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

On Writ of Certiorari to the United States Court of

Appeals for the Fourth Circuit

BRIEF OF BOULDER COUNTY,

SAN MIGUEL COUNTY, AND THE CITY OF

BOULDER, COLORADO, AS AMICI CURIAE

IN SUPPORT OF RESPONDENT

KEVIN S. HANNON

THE HANNON LAW

FIRM, LLC

1641 Downing Street

Denver, CO 80218

DAVID BOOKBINDER

NISKANEN CENTER

820 First Street NE,

Ste. 675

Washington, DC 20002

MARCO B. SIMONS

Counsel of Record

RICHARD L. HERZ

MICHELLE C. HARRISON

SEAN POWERS

NAOMI GLASSMAN-MAJARA

LINDSAY BAILEY

EARTHRIGHTS

INTERNATIONAL

1612 K St. NW, Ste. 800

Washington, DC 20006

(202) 466-5188

marco@earthrights.org

Counsel for amici curiae

December 23, 2020

QUESTION PRESENTED

The text of 28 U.S.C. § 1447(d) allows appellate

review of district court orders remanding cases to

state courts only where removal was premised either

on the federal-officer removal statute, 28 U.S.C. §

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

1443. In Board of County Commissioners of Boulder

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

(10th Cir. 2020), the Tenth Circuit ruled that this

language "does not expressly contemplate the

situation in which remand is granted regarding . . .

mixed grounds for removal," i.e., an appeal from both

a Section 1442 or 1443 ground and another, nonenumerated ground. Id. at 805. Since the statute does

not expressly address such appeals, the question

presented is:

1. Does a party's mere assertion of 28 U.S.C. § 1442

or 1443 in a Notice of Removal entitle that party to

appellate review of all asserted grounds for removal?

TABLE OF CONTENTS

QUESTION PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

iii

IDENTITY AND INTEREST OF AMICI CURIAE

INTRODUCTION AND SUMMARY OF

ARGUMENT

I. The Tenth Circuit found Section 1447(d) to be

ambiguous — and any ambiguity is best resolved

in favor of limited appellate review

The Tenth Circuit found the language of the

"except" clause to be ambiguous

If there is any ambiguity in the statute,

canons of construction confirm limited

appellate review

II. This Court should refuse Petitioners' invitation

to create a new basis for removal and vastly

expand the preemptive scope of federal common

law

Petitioners previously argued that federal

common law cannot apply to a case such

as this

Petitioners cannot remove a case to federal

court based on unpled federal common law

that affords Respondent no cause of action

This dispute is not governed by the federal

common law of interstate pollution

CONCLUSION

111

TABLE OF AUTHORITIES

Federal Cases

American Electric Power v. Connecticut,

564 U.S. 410 (2011)

Atherton, v. FDIC,

519 U.S. 213 (1997)

Avco Corp. v. Machinists,

390 U.S. 557 (1968)

Bell v. Cheswick Generating Station,

734 F.3d 188 (3d Cir. 2013)

Ben. National Bank v. Anderson,

539 U.S. 1 (2003)

Board of Commissioners of Boulder County v

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

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

passim

19, 23- 24

19, 22, 24

passim

Board of County Commissioners of Boulder

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

405 F. Supp. 3d 947 (D. Colo. 2019)

Calder v. Jones,

465 U.S. 783 (1984)

Cannon v. University of Chicago,

441 U.S. 667 (1979)

Carpenter v. Wichita Falls Indep. Sch. Dist.,

44 F.3d 362 (5th Cir. 1995)

Caterpillar, Inc. v. Williams,

482 U.S. 386 (1987)

17, 18, 19

Chickasaw Nation v. United States,

534 U.S. 84 (20011985)

City & Cty. of San Francisco v. Purdue Pharma L.P.,

No. 3:18-cv-07591, 2020 U.S. Dist. LEXIS

181274 (N.D. Cal. Sept. 30, 2020)

City of N.Y. v. Bob Moates' Sports Shop,

253 F.R.D. 237 (E.D.N.Y. 2008)

City of Oakland v. BP PLC,

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

Empire Healthchoice Assurance, Inc. v. McVeigh,

396 F.3d 136 (2d Cir. 2005)

Estate of Cowart v. Nicklos Drilling Co.,

505 U.S. 469 (1992)

7, 10

Franchise Tax Bd. v. Constr. Laborers Vacation

Tr., 463 U.S. 1 (1983)

Gregory v. Ashcroft,

501 U.S. 452 (1991)

Hinderlider v. La Plata River & Cherry Creek

Ditch Co., 304 U.S. 92 (1938)

In re "Agent Orange" Prod. Liab. Litig.,

635 F.2d 987 (2d Cir. 1980)

25-26, 28

In re Methyl Tertiary Butyl Ether ("MTBE")

Prods. Liab. Litig.,725 F.3d 65 (2d Cir. 2013)

In re Nat'l Prescription Opiate Litig.,

440 F. Supp. 3d 773 (N.D. Ohio 2020)

Int'l Paper Co. v. Ouellette,

479 U.S. 481 (1987)

Jackson v. Johns-Manville Sales Corp.,

750 F.2d 1314 (5th Cir. 1985)

19-20

Key v. Doyle,

434 U.S. 59, 65 (1977)

Lu Junhong v. Boeing Co.,

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

Massachusetts v. Exxon Mobil Corp.,

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

McCarthy v. Bronson,

500 U.S. 136 (1991)

7, 9

Merrell Dow Pharm., Inc. v. Thompson,

478 U.S. 804 (1986)

Metro. Life Ins. Co. v. Taylor,

481 U.S. 58 (1987)

Middlesex Cty. Sewerage Auth. v. Nat'l Sea

Clammers Ass'n, 453 U.S. 1 (1981)

Milwaukee v. Illinois,

451 U.S. 304 (1981)

Nat'l Audubon Soc. v. Dep't of Water,

869 F.2d 1196 (9th Cir. 1988)

18, 21

19, 23

26- 27

Native Village of Kivalina v. ExxonMobil Corp.,

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

O'Melveny & Myers v. FDIC,

512 U.S. 79 (1994)

Pinney v. Nokia, Inc.,

402 F.3d 430 (4th Cir. 2005)

Public Citizen v. United States Dep't of Justice,

491 U.S. 440 (1989)

Rhode Island v. Massachusetts,

37 U.S. 657 (1838)

6- 7, 9

Rhode Island v. Shell Oil Products Co.,

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

7, 10

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997)

Russell Corp. v. Am. Home Assur. Co.,

264 F.3d 1040 (11th Cir. 2001)

Smith v. United States,

507 U.S. 197 (1993)

Syngenta Crop Prot., Inc. v. Henson,

537 U.S. 28, 32 (2002)

Things Remembered v. Petrarca,

516 U.S. 124 (1995)

United States v. Standard Oil Co.,

332 U.S. 301 (1947)

23- 24

Va. Uranium, Inc. v. Warren,

139 S. Ct. 1894 (2019)

Vaden v. Discover Bank,

556 U.S. 49 (2009)

West Virginia University Hospitals, Inc. v. Casey,

499 U.S. 83 (1991)

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

516 U.S. 199 (1996)

Yates v. United States,

574 U.S. 528 (2015)

Young v. Masci,

289 U.S. 253 (1933)

vii

State Cases

In re Tobacco II Cases,

207 P.3d 20 (Cal. 2009)

People v. ConAgra Grocery Prods. Co.,

227 Cal. Rptr. 3d 499 (Cal. Ct. App. 2017)

Federal statutes and rules

28 U.S.C. § 1442

passim

28 U.S.C. § 1447

passim

Removal Clarification Act of 2011,

Pub. L. No. 112-51, § 2(d),

Nov. 9, 2011, 125 Stat. 546

Briefs & Other Court Filings

Answering Brief for Defendants-Appellees,

Native Village of Kivalina v. ExxonMobil

Corp., No. 09-17490

(9th Cir. filed June 30, 2010)

15-16

Appellants' Opening Brief, Mayor & City

Council of Baltimore v. BP P.L. C.,

No. 19-1644 (4th Cir. filed July 29, 2019)

Petition for Writ of Certiorari, Board of

Commissioners of Boulder County v. Suncor

Energy (U.S.A.), Inc., No. 19-1330

(filed Dec. 8, 2020)

Plaintiffs-Appellees' Response Brief, Mayor &

City Council of Baltimore v. BP P.L. C.,

No. 19-1644 (4th Cir. filed Aug. 27, 2019)

IDENTITY AND INTEREST OF AMICI CURIAE

Amici curiae are three Colorado jurisdictions —

Boulder County, San Miguel County, and the City of

Boulder — which have been severely harmed by an

altered climate. These communities have suffered, and

will suffer, significant economic losses responding to

climate impacts including heat waves, wildfires,

droughts, floods, loss of snowpack, and destruction of

forests by insects. Impacts such as these will only get

worse as the Earth continues to warm — a scientifically

certain outcome based on greenhouse gas emissions

already in the atmosphere.'

In 2018, these communities filed suit against oil

companies Suncor Energy, Inc., Exxon Mobil, Inc., and

several Suncor subsidiaries, in Colorado state court.

Their suit, Board of County Commissioners of Boulder

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

the defendants bear their relative share of

responsibility for their role in causing the harms these

communities have incurred and will incur responding to

the altered climate. While amici do not contend that the

oil companies bear sole responsibility for climate

change, they believe that they are entitled to have a

Colorado jury determine the degree of responsibility

that results from producing and selling enormous

amounts of fossil fuels while knowingly

misrepresenting their dangers. State law is well suited

to adjudicate whether amici's claims have merit. Their

1 No counsel for a party authored this brief in whole or in

part, and no person other than amici curiae or their counsel made

a monetary contribution to its preparation or submission. The

parties have filed blanket consents to the filing of any amicus

brief.

suit, like others filed by cities, counties, and States, does

not seek to regulate emissions of greenhouse gases in

any way. And because their case involves injuries to

Colorado property and public resources, suffered in

Colorado, based on activities perpetrated by private

corporations, and does not invoke or implicate any

federal statutes, they are entitled to proceed in

Colorado state court.

Amici are prejudiced by protracted fights over

federal vs. state court jurisdiction. Already, their suit

was delayed by a year and a half due to the defendants'

removal to federal court — rejected as meritless by the

federal district court, which remanded to state court.

Allowing greater appealability of remand orders would

increase - the likelihood that removals are used as a

delay tactic in a broad array of cases, potentially leading

to years of litigation over federal jurisdiction before the

merits of a case are considered — contrary to Congress'

purpose.

Amici also have a direct stake in the outcome of this

proceeding. The remand order in their case was

appealed to the U.S. Court of Appeals for the Tenth

Circuit; that court affirmed the remand, finding that

appeal was limited to the federal-officer statute, 28

U.S.C. § 1442, and soundly rejecting the application of

this statute. Bd. of County Comm'rs of Boulder County

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

2020) ("Boulder County'). The defendants in this case

have recently filed a petition for a writ of certiorari, see

Pet. for Writ of Certiorari, No. 19-1330 (filed Dec. 8,

2020), arguing that the Boulder County case presents

the same question as this proceeding, and should be

disposed of accordingly.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Title 28 U.S.C. § 1447(d) only allows appeals from

lamn order remanding a case to the State court from

which it was removed" if the case was removed

"pursuant to section 1442 or 1443 of this title." Amici

agree with Respondent that the plain meaning of this

language, interpreted in context, unambiguously

indicates that only the Section 1442 or 1443 grounds

should be reviewable on appeal. Resp. Br. 10-23.

Because the language is clear and does not produce an

absurd result, that should be the end of the inquiry.

If, however, the Court does not agree that this

language, read in context, clearly indicates limited

review, then Section 1447(d) must be considered

ambiguous. The Tenth Circuit held in Boulder County

that the statute "does not expressly contemplate the

situation in which remand is granted regarding . . .

mixed grounds for removal." 965 F.3d at 805. Boulder

County noted that Section 1447(d) does not explain

either whether review would be of the entire remand

order or of the order relating to Section 1442 or 1443

nor does it explain whether a removal done pursuant

to Section 1442 or 1443 and other grounds is

considered "pursuant to section 1442 or 1443." Id.

Thus, if the context does not conclusively indicate

limited review, three possibilities are present: 1) such

a mixed-ground removal is not considered a removal

"pursuant to section 1442 or 1443," and thus not

appealable; 2) such a mixed-ground removal is, in its

entirety, considered a removal "pursuant to section

1442 or 1443"; or 3) such a mixed-ground removal is

considered a removal "pursuant to section 1442 or

1443" only as to the portion of it that concerns Section

1442 or 1443, and thus appealable only as to that

portion.

Any such ambiguity can, however, easily be

resolved by reference to the purpose of the statute,

supported by the fact that Congress, in adding a

reference to Section 1442 in the Removal Clarification

Act, ratified the then-universal approach of the federal

courts of appeals. That approach was, and is, to allow

appeal only of the portion of the remand order

concerning Section 1442 or 1443. Indeed, allowing

review of the entire remand order would create a

strong incentive to invoke a baseless Section 1442 or

1443 argument in order to open the door to a timeconsuming appeal.

Petitioners' brief starkly illustrates the problem

with their argument. While they claim that their

invocation of federal-officer removal jurisdiction opens

the door to their appeal, they do not even bother to

argue that removal is proper under the federal-officer

statute — nor did they even present this question to

this Court. Thus they effectively concede that

jurisdiction is not warranted under the federal-officer

statute. Instead, they argue that federal jurisdiction is

actually proper because the Respondent's claims arise

under federal common law. Nearly half their amici

echo this argument. None of them makes more than a

cursory argument that federal-officer jurisdiction is

actually proper here.

Instead, it is clear that Petitioners' real goal is for

the Court to consider their radical arguments

regarding removal based on federal common law. To

entertain such arguments would require this Court to

determine whether broad swathes of law can be

federalized on the basis of vague "federal interests"

advanced by Petitioners. It would also require this

Court to consider, for the first time, whether federal

common law provides a basis for "complete

preemption," rather than ordinary preemption that

does not allow removal. And it would require this

Court to make either an unprecedented ruling that

complete preemption is possible even where a federal

cause of action is not present, or decide whether a

federal cause of action is actually available here —

which in turn requires resolving several novel

questions left open by American Electric Power v.

Connecticut ("AEP"), 564 U.S. 410 (2011).

None of Petitioners' arguments on these points is

sound. Regardless of their merit, however, even if the

Court were to agree with Petitioners that appellate

jurisdiction lies over all removal arguments, it should

not decide whether federal common law creates

jurisdiction here. Petitioners themselves previously

argued against the application of federal common law

in this context, demonstrating that — at a minimum —

that question raises novel, complex issues of law that

should not be decided without the benefit of

consideration by the lower courts and full briefing by

the parties in response to a clearly-articulated

question presented.

ARGUMENT

The Tenth Circuit found Section 1447(d) to

be ambiguous - and any ambiguity is best

resolved in favor of limited appellate

review.

Petitioners' argument is premised on the flawed

notion that the "plain text" of Section 1447(d) provides

that, whenever Section 1442 or 1443 is asserted in a

Notice of Removal alongside other grounds for removal,

any resulting remand order is — in its entirety — "an

order remanding a case" which was "removed pursuant

to section 1442 or 1443" and thus entirely reviewable on

appeal. Petr. Br. 16-20. Amici agree with Respondent

that this language, interpreted in context,

unambiguously restricts appellate review to Section

1442 or 1443. Resp. Br. 10-23. But if it does not, Section

1447(d) must be considered ambiguous, as the Tenth

Circuit found in Boulder County. Assuming this

ambiguity, the meaning of this provision can only be

resolved by reference to the statute's structure,

Congress' purpose, and the context in which it was

enacted.

This Court has repeatedly determined that "[t]he

plainness or ambiguity of statutory language is

determined by reference to the language itself, the

specific context in which that language is used, and the

broader context of the statute as a whole." Robinson v.

Shell Oil Co., 519 U.S. 337, 341 (1997) (finding that

"employees" was ambiguous in the context of the

statute); see also Yates v. United States, 574 U.S. 528,

537-38 (2015) (listing cases). A word or phrase is

unambiguous when it has "a clearly accepted meaning

in both legislative and judicial practice," W. Va. Univ.

Hosps., Inc. v. Casey, 499 U.S. 83, 98 (1991), while a

word or phrase is ambiguous when it is "capable of

being understood in two or more possible senses or

ways." Chickasaw Nation v. United States, 534 U.S. 84,

90 (2001) (quoting Webster's Ninth New Collegiate

Dictionary 77 (1985)).

When a word or phrase is ambiguous, the Court then

looks to the statute's "purposes and origins." Pub.

Citizen, v. United States Dep't of Justice, 491 U.S. 440,

454-55 (1989); see also, e.g., McCarthy v. Bronson„ 500

U.S. 136, 142-43 (1991) (interpreting ambiguity by

looking at the policy behind the statute); Estate of

Cowart v. Nicklos Drilling Co., 505 U.S. 469, 482 (1992)

(interpreting ambiguity through the "purposes and

structure" of the statute). As Respondent outlines, and

as the Tenth Circuit found, the structure, history, and

policy behind Section 1447(d) show that only the portion

of the order that addresses the question of removal

pursuant to Section 1442 or Section 1443 is reviewable.

A. The Tenth Circuit found the language of

the "except" clause to be ambiguous.

The Tenth Circuit in Boulder County found that

Section 1447(d)'s "except" clause was ambiguous,

because it "does not expressly contemplate the situation

,in which remand is granted regarding . . . mixed

grounds for removal." 965 F.3d at 805; see also Rhode

Island v. Shell Oil Prods. Co., 979 F.3d 50, 57 (1st Cir.

2020) (endorsing this interpretation). In particular, the

Tenth Circuit held that the word "order" viewed in the

context of the "except" clause is ambiguous as to

whether the review extends to grounds other than

federal officer or civil rights. Boulder County, 965 F.3d

at 804-05; see also Rhode Island, 979 F.3d at 57.

Instead, Section 1447(d), on its face, assumes that a

case was either "removed pursuant to section 1442 or

1443" or not. In either of those circumstances, the result

is clear; but in a case such as the one at bar, where

removal was done on multiple grounds, the Tenth

Circuit held that Section 1447(d) is ambiguous. Boulder

County, 965 F.3d at 805.

Petitioners' leading case, the Seventh Circuit's

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

Cir. 2015), effectively concedes this point. As Boulder

County notes, Lu Junhong holds that Section 1447(d)

"authorizes review of the remand order, because the

case was removed (in part) pursuant to §1442." 792 F.3d

at 811. But the need for this parenthetical addition

undermines the argument for an unambiguous plaintext interpretation:

[T]o convey its point that the plain

language of § 1447(d) creates plenary

review of a remand order upon invocation

of a federal officer removal basis, the

Seventh Circuit was forced to modify that

language with a clarifying parenthetical

entirely absent from the statutory text.

Boulder County, 965 F.3d at 805. Similarly, Petitioners

quote Lu Junhong stating that "the whole order" is

removable, again showing the need to add qualifying

language that the statute's plain text does not contain.

Petr. Br. 17 (quoting Lu Junhong, 792 F.3d at 811).

Petitioners reject any textual ambiguity in Section

1447(d), simply asserting that "pursuant to" cannot be

read to mean "pursuant only to." Petr. Br. 20. This is so,

they claim, because the alternative would "prove too

much: whenever a defendant raises alternative bases

for removal, even the federal-officer or civil-rights

ground would become unreviewable." Id. Their own

argument, of course, has a similar flaw: whenever a

defendant raises a federal-officer or civil-rights ground,

even alternative bases for removal become reviewable.

Indeed, it is Petitioners' own argument that proves

too much. Their objection to the "pursuant only to"

interpretation can only be understood as an appeal to

Congress' purpose in allowing appellate review of

Section 1442 and 1443 grounds. But by urging

consideration of Congress' purpose, Petitioners

effectively concede that the statute does not

unambiguously support their position. Looking to the

policy behind a statute is typically only necessary to

resolve ambiguity. E.g., Pub. Citizen, 491 U.S. at 45455; McCarthy, 500 U.S. at 142-43.

Divorced from its context, the language of Section

1447(d)'s "except" clause admits at least three

possibilities. First, that clause could be read to mean

"except that an order remanding a case to the State

court from which it was removed [only] pursuant to

section 1442 or 1443 of this title shall be reviewable by

appeal." Second, it could be read to mean "except that

an order remanding a case to the State court from which

it was removed [in part] pursuant to section 1442 or

1443 of this title shall be reviewable by appeal [in its

entirety]." Third, it could be read to mean "except that

an order remanding a case to the State court from which

it was removed [in part] pursuant to section 1442 or

1443 of this title shall be reviewable by appeal [with

respect to the section 1442 or 1443 issue]." The

statutory context clearly points to the latter

interpretation; if any ambiguity remains, however, then

the Court should proceed to consider other tools of

statutory interpretation.

B. If there is any ambiguity in the statute,

canons of construction confirm limited

appellate review.

When the plain text of a statute is ambiguous,

canons of construction suggest reference to the

structure and purpose of the statute, as well as any

underlying presumptions and congressional actions.

Estate of Cowart, 505 U.S. at 477-82 (interpreting

statutory text based on the structure, purpose, and

congressional actions regarding the statute); see also

Smith v. United States, 507 U.S. 197, 203-04 (1993)

(applying presumptions as part of the canons of

statutory construction).

As noted above, Petitioners themselves appeal to

Congress' purpose by arguing that the first

interpretation — providing no review in mixed-ground

cases — is absurd. Petr. Br. 20. But Petitioners then

reject any further consideration of Congress' purpose or

the other aids that guide this Court in determining the

meaning of a statute. They assert that the second

interpretation — plenary review in mixed-ground cases

— must follow if the first is rejected, claiming that they

are engaged in a plain-text interpretation when they

have already departed from that approach in order to

resolve statutory ambiguity. Petitioners are correct to

look beyond the statutory text to reject the first

interpretation, but mistaken to ignore additional aids

to decide between the remaining alternatives.

After finding ambiguity in the text of Section

1447(d), the Tenth Circuit found that "the 'except'

clause must be narrowly construed" to fulfill Congress's

purpose of maintaining only limited, enumerated

removal grounds that are reviewable. Boulder County,

965 F.3d at 805-07; Rhode Island, 979 F.3d at 57-59.

When viewing "order" in the context of the statute as a

whole, the structure and purpose is to limit review of

remand orders to only the explicitly excepted grounds.

Resp. Br. 16; Things Remembered v. Petrarca, 516 U.S.

124, 127 (1995).

The Tenth Circuit additionally found that the

presumption against jurisdiction further strengthened

the narrow construction of the removal statute. Boulder

County, 965 F.3d at 813-14. While this Court does not

appear to have previously considered what presumption

applies to statutes regarding appellate review of

removal, two related presumptions provide guidance.

This Court has recognized a presumption in favor of

narrowly construing removal statutes, Syngenta Crop

Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002), and a

narrow construction of statutes providing appeals as of

right to this Court, Key v. Doyle, 434 U.S. 59, 65 (1977).

Similar principles should extend to appellate review of

removal decisions, as the Tenth Circuit correctly

determined.

The Tenth Circuit again found that the expanded

scope of jurisdiction Petitioners argue for would lead to

"protracted litigation" and "prolong the interference"

that the statue aimed to avoid. Boulder County, 965

F.3d at 816-18 (internal quotation marks omitted). The

statutory purpose to avoid delays from over-litigating

removal decisions further supports a narrow reading of

Section 1447(d). Resp. Br. 35-37.

Finally, the narrow construction of Section 1447(d)

best comports with the congressional ratification of

existing jurisprudence that had narrowly understood

the exception clause. Resp. Br. 31-35. As the Tenth

Circuit stated, the "minor change evidence [d]

Congress's intent to adopt the existing appellate

consensus" that the appellate jurisdiction was only over

the specific section "basis for removal, not the entire

remand order." Boulder County, 965 F.3d at 815.

Indeed, Petitioners previously agreed that, when it

added Section 1442 to the "except" clause via the

Removal Clarification Act of 2011, Pub. L. No. 112-51, §

2(d), 125 Stat. 545, Congress was aware of — and

intending to incorporate — relevant jurisprudence. They

claimed that Congress, in adding the words "1442 or" to

the statute but not changing the word "order," intended

to incorporate this Court's decision in Yamaha Motor

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

interpreting "order" in 28 U.S.C. § 1292(b). See

Appellants' Opening Br. 12, Mayor & City Council of

Balt. v. BP P.L.C., No. 19-1644 (4th Cir. filed July 29,

2019). Petitioners even raised this argument in their

petition for certiorari, noting that the "the Removal

Clarification Act of 2011 . . . added the provision

permitting removals under the federal-officer removal

statute to section 1447(d) without altering the

subsection's reference to remand 'orders."' Pet. 19. In

this argument they relied on Cannon v. University of

Chicago, 441 U.S. 667 (1979), which holds that it is

"appropriate to assume" that Congress was "aware of

prior interpretations" of the same language. Id. at 69798.

Apparently realizing that Congress was more likely

aware of, and intending to ratify, the then-unanimous

judicial interpretation of the very provision they were

amending, rather than intending to incorporate the

interpretation of the same word from a very different

statute, Petitioners now drop this argument entirely.

They now argue that "the prior-construction canon has

little force here" because, they claim, the meaning of

Section 1447(d) was not "settled" in 2011. Petr. Br. 34.

This rejection of the prior-construction canon is the

opposite of what they argued previously and, as

Respondent has amply demonstrated, it is obviously

incorrect. Resp. Br. 32-33.

If the statute is ambiguous, the structure, purpose,

policy concerns, relevant presumptions, and

congressional ratification all support a narrow

construction of Section 1447(d) to only permit review of

the removal bases under Section 1442 or Section 1443.

Only that reading prevents parties from using meritless

Section 1442 or 1443 arguments as a basis for reviewing

other grounds, review that Congress intended to

foreclose.

II.

This Court should refuse Petitioners'

invitation to create a new basis for

removal and vastly expand the preemptive

scope of federal common law.

Petitioners' invitation for this Court to consider

their "arising under" federal common law argument

illustrates exactly the problem with their favored

interpretation of Section 1447(d). While they invoked

Section 1442 to open the door to appellate review, they

do not bother to argue that the Fourth Circuit's

rejection of that basis for removal — the only basis the

court below actually considered — was erroneous.

Instead, they invite this Court to consider an entirely

different ground for federal jurisdiction which is not

encompassed by the question presented and was not

addressed below. This Court should not adopt such a

breathtaking expansion of federal removal jurisdiction,

let alone do so where the issue is not within the question

presented.

Amici do not attempt to fully address the errors in

Petitioners' federal common law argument, which

would require a far more exhaustive treatment than is

possible or appropriate here. Instead, amici write to

expose the radical result of Petitioners' argument, and

the complexity of the issue that makes it unsuitable for

decision in this case. The rub of Petitioners' argument

is that federal common law is vital enough to pull all

climate cases out of State court based on "federal

interests," but too moribund to provide a viable cause of.

action.

Petitioners' federal common law argument is setting

up a game of three-card Monte, where they simply can

never be sued. First, federal common law strips state

law and state courts of all authority; then federal

statutes displace federal common law; and when the

last card is finally turned over, those federal statutes

neither provide Respondent relief nor address the

tortious conduct for which Petitioners were sued.

At every step, Petitioners' argument would require

resolution of complex issues, often contrary to this

Court's prior case law. This Court has never previously

ruled that federal common law applies to a pollution

dispute that does not involve one State ,attempting to

enjoin actors in another State. It has never previously

ruled that federal common law can provide any basis for

removal to federal court. It has never previously ruled

that the Clean Air Act displaces federal common law

claims for damages based on production, sales, and

deceptive marketing of fossil fuels. And it has never

previously ruled that a claim may be considered

inherently federal, and thus removable on that basis,

where federal law provides no cause of action.

Indeed, Petitioners' argument turns this Court's

prior federal common law decisions on their head. Those

cases recognized that federal common law is necessary

in some inter-state pollution disputes because,

otherwise, an injured State might be unable to enjoin

an out-of-state nuisance without also sacrificing its

sovereignty by submitting to the jurisdiction of a

neighboring State. Petitioners' federal common law, in

contrast, forecloses damages remedies that state law

can amply provide, and offers no relief to injured parties

in return. While Petitioners are surely entitled to

contest their liability on the merits and raise federal

defenses, the federal common-law rule they press does

not resolve a controversy involving conflicting States'

rights — it just shuts it down.

A. Petitioners previously argued that

federal common law cannot apply to a

case such as this.

Petitioners suggest that their federal common law

argument is so undisputable it would "break little new

ground" to endorse it, despite its absence from the

question presented here. Petr. Br. 37. Regardless of

whether their argument is correct (it is not), however, it

is clearly not obvious — and this is shown most clearly

by the fact that many of the same Petitioners previously

argued exactly the opposite.

In Native Village of Kivalina v. ExxonMobil Corp.,

696 F.3d 849 (9th Cir. 2012), seven of the present

Petitioners2 argued that federal common law could not

apply to nuisance claims for damages from climate

change. Answering Br. for Defs.-Appellees 56-61,

Kivalina, No. 09-17490 (9th Cir. filed June 30, 2010)

("Kivalina Br."). They argued that "a federal common

2 BP America, Inc.; BP Products North America, Inc.; Chevron

Corp.; Chevron U.S.A., Inc.; ConocoPhillips Company; Exxon

Mobil Corp.; and Shell Oil Co.

law nuisance claim cannot seek damages." Id. at 56.

This distinguishes claims such as those at bar from the

Court's decision in AEP, which concerned injunctive

relief against out-of-state actors. 564 U.S. at 418-19.

Petitioners also previously argued that state

sovereignty, which local governments such as

Respondent do not possess, "is the sine qua non of access

to the federal common law of public nuisance," Kivalina

Br. 61.

The Supreme Court has made clear that

the basis for States' access to a federal

common law remedy of abatement of a

nuisance rests on the States'

relinquishment, in exchange for entering

the Union and receiving statehood, of

sovereign warmaking powers that would

otherwise be used to redress

infringements on their territory. See, e.g.

Missouri v. Illinois, 200 U.S. 496, 520-21

(1906).

Id. at 60-61. Petitioners specifically rejected the idea

that damages claims, not brought by States, "raise

`uniquely federal interests' of the type that justify

applying federal common law." Id. at 57 n.23.

This Court should not reject Petitioners' own prior

arguments in a case where the issue has neither been

addressed by the opinion below nor included in the

questions presented.

B. Petitioners cannot remove a case to

federal court based on unpled federal

common law that affords Respondent no

cause of action.

Respondent filed its case in state court and pled no

federal claims. Petitioners were only entitled to remove

it to federal court if Respondent could have filed it there

originally. Caterpillar, Inc. v. Williams, 482 U.S. 386,

392 (1987). If federal law merely precludes liability by

preempting state law, it does not provide jurisdiction or

a basis for removal. Id. at 393. Rather than breaking

little new ground, to hold otherwise would be a

substantial departure from Congress' and this Court's

approach to removal jurisdiction. It would also

contravene the decisions of every court to consider the

question in the context of climate change litigation. See

City of Oakland v. BP PLC, 969 F.3d 895, 906-08 (9th

Cir. 2020); see also Massachusetts v. Exxon Mobil Corp.,

462 F. Supp. 3d 31, 39-41 (D. Mass. 2020) (collecting

cases).

Here, Petitioners' argument that this case "arises

under" unpled federal common law is both wrong as to

the scope of federal common law, and wrong as a matter

of removal doctrine. Even if they were correct that

federal common law governs these claims and precludes

liability — and they are not — that would not be a basis

for removal. Their elaborate chain of reasoning — that

federal common law exclusively governs these claims,

yet is displaced by a federal statute that provides no

cause of action — results in the end to simply arguing

that federal law preempts state law.

1. Federal removal jurisdiction "raises significant

federalism concerns," and is therefore construed

narrowly. Carpenter v. Wichita Falls Indep. Sch. Dist.,

44 F.3d 362, 365-66 (5th Cir. 1995); see also Pinney v.

Nokia, Inc., 402 F.3d 430, 442 (4th Cir. 2005); Russell

Corp. v. Am. Home Assur. Co., 264 F.3d 1040, 1049

(11th Cir. 2001). Two primary aspects of removal

doctrine guard against expansive removal jurisdiction.

First, the plaintiff is "master of the claim" and "may

avoid federal jurisdiction by exclusive reliance on state

law." Caterpillar, 482 U.S. at 392. Under this "well

pleaded complaint" rule, courts do not look behind the

face of the complaint, and a defendant cannot re-write

the allegations or claims to manufacture a federal case.

Id. at 396-97 (holding that defendant cannot "ignor[e]

the set of facts . . . presented by respondents, along with

their legal characterization of those facts, and argu[e]

that there are different facts respondents might have

alleged that would have constituted a federal claim");

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

809 n.6 (1986) ("Jurisdiction may not be sustained on a

theory that the plaintiff has not advanced.").

Second, federal defenses do not create federal

question jurisdiction. While state courts are bound

under the Supremacy Clause to apply federal law, the

fact that federal law preempts or bars liability under

state law is not a cause for federal jurisdiction. See

Caterpillar, 482 U.S. at 392-93. Thus, the fact that

Respondents did not plead a federal claim ends the

matter, even if their state law claims are ultimately

preempted.

This Court has recognized but two rare exceptions

where claims pled under state law nevertheless arise

under federal law and can be removed, but neither

applies here. The first is where an essential element of

the state law claim turns on a substantial and disputed

question of federal law. Franchise Tax Bd. v. Constr.

Laborers Vacation Tr., 463 U.S. 1, 13-14 (1983).

Consistent with the "well pleaded complaint rule," the

disputed federal issue must be invoked by the plaintiff

as a necessary component of their right to relief; an

obstacle raised by the defendant will not suffice. Id.

The second is where a "federal statute completely

pre-empts the state-law cause of action." Ben. Nat'l

Bank v. Anderson, 539 U.S. 1, 8 (2003). This too is

exceedingly rare. A court must find that Congress

intended to create an exclusive cause of action for the

complained-of conduct; and then that the state law

claims falls squarely within that preempted field. Id.at

8-9 & n.5. This Court has only found such extraordinary

congressional intent in three statutes. Avco Corp. v.

Machinists, 390 U.S. 557, 560-61 (1968) (§ 301 of the

Labor Management Relations Act of 1947); Metro. Life

Ins. Co. v. Taylor, 481 U.S. 58, 63-67 (1987) (§ 502 of the

Employee Retirement Income Security Act of 1974),

Ben. Nat'l Bank, 539 U.S. at 10-11 (actions for usury

against national banks under the National Bank Act).

And even there, it has been loath to broadly construe

the scope of the preempted field covered by the federal

cause of action. See Caterpillar, 482 U.S. at 394-98

(holding that collective bargaining agreement governed

exclusively under federal law did not preclude claim

under state law for rights under individual contract).

2. Petitioners' "arising under" federal common law

argument does not fall within either exception.

Moreover, the contention that federal common law

supplants the state law pled in this dispute is an

ordinary preemption defense, and not a basis for federal

jurisdiction. See Int'l Paper Co. v. Ouellette, 479 U.S.

481, 488 (1987) (if a case "should be resolved by

reference to federal common law" then "state common

law [is] preempted"); accord Empire Healthchoice

Assurance, Inc. v. McVeigh, 396 F.3d 136, 142 (2d Cir.

2005) (if state law "conflicts with federal interests and

requires the application of federal common law," this is

"insufficient to confer federal jurisdiction"). The words

that Petitioners use to make their argument — such as

that "federal law necessarily supplies the exclusive

source of law governing th[e] claims," Petr. Br. 44

(emphasis omitted) — do not change the substance of

their contention.

Petitioners repeatedly cite the Milwaukee line of

cases for the proposition that these claims "necessarily

arise under federal law," Petr. Br. 39, because "if federal

common law exists, it is because state law cannot be

used." Milwaukee v. Ill., 451 U.S. 304, 313 n.7 (1981).

But these decisions say nothing about the scope of

removal based on unpled federal common law, because

"Milwaukee was . . . filed in federal court and invoked

federal jurisdiction such that the well-pleaded

complaint rule was not at issue." Bd. of County Comm'rs

of Boulder County v. Suncor Energy (U.S.A.), Inc., 405

F. Supp. 3d 947, 961-62 (D. Colo. 2019). Even if

Petitioners were right about the scope of federal

common law, the proposition that "state law cannot be

used" provides, at most, an ordinary preemption

defense in state court.

Petitioners allude to the doctrine of complete

preemption by suggesting that Respondent was

"artfully pleading" by omitting a federal common-law

cause of action. See Petr. Br. 44. Petitioners admit that

this Court "has applied the artful-pleading principle

primarily in complete-preemption cases involving

federal statutes," but they assert there is no reason not

to extend it to common-law claims. Id. In fact, this

Court has exclusively applied this doctrine in statutory

complete preemption cases, and extending it to federal

common law would not be a trivial matter. There is a

world of difference between finding that Congress

intended to simultaneously preempt state law and strip

State courts of jurisdiction — intent this Court has

rarely found — and empowering federal courts to do so

on their own accord.

Congress, not the courts, should set the proper

balance between federal and state authority. See

Atherton v. FDIC, 519 U.S. 213, 218 (1997) ("Whether

latent federal power should be exercised to displace

state law is primarily a decision for Congress, not the

federal courts." (internal quotation marks omitted));

Merrell Dow Pharm., 478 U.S. at 810 ("We have

consistently emphasized that, in exploring the outer

reaches of § 1331, determinations about federal

jurisdiction require sensitive judgments about

congressional intent, judicial power, and the federal

system."). And even when performing the judicial

function of deciphering statutes, this Court has looked

for clear signs of congressional intent to displace state

law. E.g., Gregory v. Ashcroft, 501 U.S. 452, 460-61

(1991).

The exception Petitioners propose runs counter to

this restrained role and would authorize federal courts

to assume jurisdiction and alter the balance between

federal and state courts with zero guidance from

Congress. It would be a substantial and novel expansion

of federal removal doctrine which is unwarranted under

any circumstances and doubly so in this posture.

3. Even if this Court were to hold that federal

common law could completely preempt state law and

create federal jurisdiction, Petitioners' argument would

also require expanding existing law in other ways.

Complete preemption applies only where Congress

intended federal law to provide an "exclusive cause of

action . . . and remedies governing that cause of action."

Ben. Nat'l Bank, 539 U.S. at 8. Thus the Court would

either need to find that federal common law provides

remedies for Respondent's injuries, or it would need to

hold for the first time that unpled federal law can

preempt even where it provides no relief, as

Respondents urge.

Although amici believe that federal common law

does not apply here, it necessarily could only apply if it

supplies a cause of action. It cannot be "artful pleading"

for Respondent to omit pleading a federal common-law

claim that does not exist — and that Petitioners

themselves previously agreed did not exist. Resolving

this issue would require answering several questions

left open in AEP, which held only that "the Clean Air

Act . . . displace[s] any federal common-law right to seek

abatement of carbon-dioxide emissions from fossil-fuel

fired powerplants." 564 U.S. at 424.3 The Court

3 Below, Respondent argued that, under AEP, "any federal

common law that might have been available to govern Plaintiffs

claims in these cases was displaced by Congress's enactment of

the Clean Air Act." Pls.-Appellees' Resp. Br. 3, Mayor & City

Council of Balt. v. BP P.L.C., No. 19-1644 (4th Cir. filed Aug. 27,

2019). Amici agree that federal common law does not extend to

the claims here, infra Part II(C), and that if any federal common

law claims here were displaced by the Clean Air Act — as

expressly left open the question of "the availability of a

claim under state nuisance law." Id. at 429; see also Bell

v. Cheswick Generating Station, 734 F.3d 188, 197 (3d

Cir. 2013) (holding that "the Clean Air Act does not

preempt state common law claims"). Nor did the Court

consider whether actions for damages, rather than

abatement of emissions, would similarly be displaced,

let alone preempted. Even if the complete preemption

doctrine could theoretically be extended to federal

common law, the Court would need to answer these

questions in order to determine whether the claims here

could be preempted by an exclusive cause of action

under federal common law.

In order to avoid this inquiry, Petitioners seek to

alter .the law in yet another way: they would permit

removal even if federal common law provides no viable

cause of action. Petr. Br. 44 n.6. They rely on Avco

Corp., AEP, and United States v. Standard Oil Co., 332

U.S. 301 (1947), but none of those decisions supports

them.

Avco addressed Section 301 of the Labor

Management Relations Act, a statute that completely

preempts suits arising out of collective bargaining

agreements. Petitioners are presumably relying on the

Court's statement that the "nature of the relief

available after jurisdiction attaches" is distinct from the

question of federal jurisdiction. 390 U.S. at 561. But

although "[t]he relief in § 301 cases varies," the Court

Petitioners argue — then federal common law cannot provide a

basis for federal jurisdiction. Amid do not agree, however, that if

federal common law does provide the exclusive claim to remedy

the injuries here, the Clean Air Act would necessarily displace it.

did not question that some relief was available after

removal. Id. And the Court's more recent statements of

the complete-preemption doctrine make clear that a

federal cause of action is required. E.g., Metro. Life Ins.

Co., 481 U.S. at 65 (noting that complete preemption

"converts an ordinary state common law complaint into

one stating a federal claim"); Ben. Nat'l Bank, 539 U.S.

at 8; Vaden v. Discover Bank, 556 U.S. 49, 61 (2009)

(noting that under complete preemption "a plaintiff's

`state cause of action [may be recast] as a federal claim

for relief" (quoting 14B Wright & Miller § 3722.1, p.

511) (alteration in original)).

Neither AEP nor Standard Oil was a removal case,

and thus cannot support Petitioners argument that

unpled federal common law can wrest jurisdiction from

a state court.4 Thus there is no support for Petitioners'

argument that complete preemption can create federal

jurisdiction and bar a state claim in the absence of a

federal claim. Even if federal common law could provide

a basis for complete preemption, it could only do so if

this Court were to conclude that it provides a cause of

action for Petitioners' claims.

* * *

Federal judges should not be authorized to use their

common-law lawmaking function to strip state courts of

jurisdiction to hear disputes. State courts can be trusted

4 In AEP, the plaintiffs invoked federal jurisdiction and pled

federal common law and the Supreme Court held that federal

common law was displaced by statute. 564 U.S. at 423-29. In

Standard Oil, the United States brought claims under federal

common law. 332 U.S. at 308, 314.

to apply federal law; they have been doing so properly

for decades. If their jurisdiction is to be diminished,

Congress must act.

This would be a particularly poor case through

which to recognize the authority Petitioners claim

because this Court would also need to determine

whether federal common law provides remedies for

Petitioners' claims. If there is no federal common-law

claim for Petitioner to bring, then it cannot be a basis

for removal.

C. This dispute is not governed by the

federal common law of interstate

pollution.

As Petitioners previously argued, this Court has

only recognized federal common law in the narrow

category of interstate pollution disputes where an

injured State sought an injunction to shut down an outof-state source of pollution. This case contains none of

those elements, and creating federal common law out of

the vague "federal interests" now asserted by

Petitioners would vastly expand the scope of the

doctrine.

1. Federal common law does not govern all

interstate disputes. Assuming they have personal

jurisdiction, States can generally hold out-of-state

actors liable under their own law for "injurious

consequences" suffered within their borders. Young v.

Masci, 289 U.S. 253, 258-59 (1933); Calder v. Jones, 465

U.S. 783, 789 (1984). The ubiquity of such cases — even

where there are substantial federal interests or

involvement in the dispute — cannot be overstated. See

In re "Agent Orange" Prod. Liab. Litig., 635 F.2d 987 (2d

Cir. 1980); Jackson v. Johns-Manville Sales Corp., 750

F.2d 1314 (5th Cir. 1985); In re Nat'l Prescription Opiate

Litig., 440 F. Supp. 3d 773, 799 (N.D. Ohio 2020); In re

Methyl Tertiary Butyl Ether (MTBE") Prods. Liab.

Litig., 725 F.3d 65 (2d Cir. 2013); City of N.Y. v. Bob

Moates' Sports Shop, 253 F.R.D. 237, 242-43 (E.D.N.Y.

2008); People v. ConAgra Grocery Prods. Co., 227 Cal.

Rptr. 3d 499 (Cal. Ct. App. 2017).

2. This Court has recognized a class of interstate

disputes where conflicts between sovereign States

would arise if one State's law were conclusive. In such

cases, a sufficient federal interest exists in mediating

the controversy to justify the creation of federal

common law. The quintessential examples would be

border disputes between States, Rhode Island v.

Massachusetts, 37 U.S. 657 (1838), and conflicts over a

shared resource, Hinderlider v. La Plata River & Cherry

Creek Ditch Co., 304 U.S. 92 (1938).

This class of interstate disputes does encompass

some pollution cases. But as Petitioners previously

argued, those cases had two essential elements that are

missing here: they were actions by States, and they

sought injunctive relief intruding into the territory of

another State. As the Ninth Circuit observed: "It

appears that the Court considers only those interstate

controversies which involve a state suing sources

outside of its own territory because they are causing

pollution within the state to be . . . subject to resolution

according to federal common law." Nat'l Audubon Soc.

v. Dep't of Water, 869 F.2d 1196, 1205 (9th Cir. 1988).

And this Court has expressly not recognized a federal

common-law claim for damages for interstate pollution.

See Middlesex Cty. Sewerage Auth. v. Nat'l Sea

Clammers Ass'n, 453 U.S. 1, 21 (1981). Federal common

law simply does not apply here.

3. Federal common law can preempt state law, but

the scope of that displacement must be tied to a conflict

between the application of state law and the unique

federal interest that justifies the creation of a federal

rule in the first instance. O'Melveny & Myers v. FDIC,

512 U.S. 79, 87-88 (1994). "Invoking some brooding

federal interest . . . should never be enough to win

preemption of a state law; a litigant must point

specifically to 'a constitutional text or a federal statute'

that does the displacing or conflicts with state law." Va.

Uranium, Inc. v. Warren, 139 S. Ct. 1894, 1901 (2019)

(Gorsuch, J., three-justice opinion). While this dispute

involves different parties, different tortious conduct,

and different relief, Petitioners pretend that this case

raises the same issues presented in Milwaukee and

AEP, where States sued to enjoin or cap out-of-state

point sources of pollution. It does not.

In Milwaukee, the State of Illinois was seeking to

enjoin polluting emanating from Wisconsin. If decided

under state law, this would give the laws and orders of

Illinois extraterritorial effect — effectively extending its

governance into another State. Similarly, in AEP, the

remedies sought were cross-border injunctions to abate

emissions.

Conversely, state law routinely applies to questions

of liability for damages for cross-border marketing and

selling products, which do not implicate the same

concerns. For example, governmental lawsuits against

tobacco and opioid companies for deceptive business

practices — that caused public health crises — were and

are not regulation of smokers and opioid users. See, e.g.,

City & Cty. of San Francisco v. Purdue Pharma L.P.,

No. 3:18-cv-07591, 2020 U.S. Dist. LEXIS 181274, at

*91-107 (N.D. Cal. Sept. 30, 2020) (rejecting federal

preemption of opioid nuisance litigation); In re Tobacco

II Cases, 207 P.3d 20 (Cal. 2009). Federal common law

has never supplied a cause of action against a product

seller. Rather, courts have consistently refused to

recognize an expansive federal common law that covers

such conduct, even when national security is involved.

See In re "Agent Orange" Prod. Liab. Litig., 635 F.2d at

993-95.

The kinds of "federal interests" invoked by

Petitioners here are present in all manner of disputes

that have never previously been governed by federal

common law. Instead, federal common law preempts

state law only where absolutely necessary. This is not

such a case.

CONCLUSION

The language of Section 1447(d), read in context,

plainly restricts appellate review to removal

arguments under Section 1442 and 1443. If it does

not, the statute is ambiguous, and the Tenth Circuit

correctly resolved any ambiguity in favor of limited

appellate review. Allowing review of other grounds

would encourage frivolous invocations of Section 1442

and 1443 solely for the purpose of opening the door to

an appeal.

This proceeding demonstrates the danger of

Petitioners' approach; they have jettisoned their

Section 1442 argument in favor of a misguided federal

common law theory. These are the kinds of arguments

that will saddle the Courts of Appeal if the scope of

review of remand orders is expanded beyond

Congress' careful design, further delaying resolution

of cases on their merits. But even if review of other

grounds for removal is permitted, this Court should

not entertain Petitioners' baseless federal common

law argument, which was neither addressed by the

court below nor included in the question presented,

and which Petitioners themselves previously argued

against.

Respectfully submitted,

Kevin S. Hannon

THE HANNON LAW

FIRM, LLC

1641 Downing Street

Denver, CO 80218

David Bookbinder

NISKANEN CENTER

820 First Street NE,

Ste. 675

Washington, DC 20002

December 23, 2020

Marco B. Simons

Counsel of Record

Richard L. Herz

Michelle C. Harrison

Sean Powers

Naomi Glassman-Majara

Lindsay Bailey

EARTHRIGHTS

INTERNATIONAL

1612 K St. NW, Ste. 800

Washington, DC 20006

(202) 466-5188

marco@earthrights.org

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