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.,
v.
Petitioners,
MAYOR AND CITY COUNCIL OF BALTIMORE,
Respondent.
ON WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
BRIEF FOR STATES OF NEW YORK, RHODE ISLAND,
CALIFORNIA, CONNECTICUT, DELAWARE, HAWAI‘I,
ILLINOIS, MAINE, MASSACHUSETTS, MICHIGAN,
MINNESOTA, NEVADA, NEW JERSEY, NEW MEXICO,
NORTH CAROLINA, OREGON, VERMONT, VIRGINIA,
AND WASHINGTON, AND THE DISTRICT OF COLUMBIA
AS AMICI CURIAE IN SUPPORT OF RESPONDENT
PETER F. NERONHA
Attorney General
State of Rhode Island
NEIL F.X. KELLY
Assistant Attorney General
TRICIA O’HARE JEDELE
Special Assistant
Attorney General
ALISON B. HOFFMAN
Special Assistant
Attorney General
150 South Main St.
Providence, RI 02903
LETITIA JAMES
Attorney General
State of New York
BARBARA D. UNDERWOOD*
Solicitor General
STEVEN C. WU
Deputy Solicitor General
MATTHEW W. GRIECO
Assistant Solicitor General
28 Liberty Street
New York, NY 10005
(212) 416-8020
barbara.underwood@ag.ny.gov
*Counsel of Record
(Counsel list continues on signature pages.)
i
QUESTION PRESENTED
Section 1447(d) of Title 28 of the United States
Code reads: “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.” Section 1442
concerns removal of cases against federal officers.
Section 1443 concerns removal of certain cases implicating civil rights.
When a defendant has removed a case to federal
court based on multiple grounds that include federalofficer jurisdiction (28 U.S.C. § 1442) or civil-rights
jurisdiction (28 U.S.C. § 1443), and the district court
remands the case to state court, eight courts of appeals
(including the Fourth Circuit in this case) have held
that § 1447(d) authorizes appellate review only of the
district court’s rejection of the federal-officer or civilrights grounds for removal. One court of appeals has
held that § 1447(d) authorizes review of each and
every ground for removal addressed by the district
court, including grounds that would not be reviewable
on appeal standing alone.
The question presented is:
Whether 28 U.S.C. § 1447(d) authorizes a court of
appeals to review a remanding court’s rejection of each
and every ground asserted for removal, when removal
was premised in part on either federal-officer jurisdiction (28 U.S.C. § 1442) or civil-rights jurisdiction
(28 U.S.C. § 1443).
ii
TABLE OF CONTENTS
Page
Table of Authorities ................................................... iv
Interest of the Amici States ........................................ 1
Statement of the Case ................................................. 3
Summary of the Argument ......................................... 6
Argument ..................................................................... 8
I.
Congress’s Strict Limitation on Appellate
Review of Remand Orders Protects
Important Federalism Principles ...................... 8
A. In Enacting 28 U.S.C. § 1447(d),
Congress Reinforced States’ Sovereign
Power and Restricted Federal Appellate
Jurisdiction Over Remand Orders. .............. 8
B. The Plain Text of § 1447(d) Permits a
Court of Appeals to Review Only the
Two Grounds for Removal Enumerated
in the Subsection. ....................................... 13
II. Expanding the Scope of Review Authorized
by § 1447(d) Would Frustrate State Law
Enforcement and Unduly Burden the
States. ............................................................... 16
A. Adopting Petitioners’ Interpretation
Would Embolden Defendants to
Frustrate State Law Enforcement
Through Improper Removals. .................... 18
B. Petitioners and Similar Defendants
Have Already Caused Profound Delays
to Claims by States and Localities in
State Courts Similar to Respondent’s
Claims Here. ............................................... 23
iii
Page
III. If This Court Were to Review Petitioners’
Argument for Removal Based on 28 U.S.C.
§ 1441, the Court Should Reject That
Argument as Meritless. ................................... 27
CONCLUSION .......................................................... 30
iv
TABLE OF AUTHORITIES
Cases
Page(s)
A. H. Phillips, Inc. v. Walling, 324 U.S. 490 (1945) ....13
American Elec. Power Co. v. Connecticut, 564 U.S.
410 (2011) .............................................................. 7,28
Animal Science Prods., Inc. v. Hebei Welcome
Pharm. Co., 138 S. Ct. 1865 (2018) .........................16
Atlantic Coast Line R.R. v. Brotherhood of
Locomotive Eng’rs, 398 U.S. 281 (1970) ...................8
Avco Corp. v. Aero Lodge No. 735, Int’l Ass’n of
Machinists, 390 U.S. 557 (1968) .............................29
Beneficial Nat’l Bank v. Anderson, 539 U.S. 1
(2003) .........................................................................28
Board of Cty. Comm’rs v. Suncor Energy (U.S.A.)
Inc., 965 F.3d 792 (10th Cir. 2020) ..................... 5,23
Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987).. 18,29
Commissioner of Internal Revenue v. Clark, 489
U.S. 726 (1989) .........................................................13
County of San Mateo v. Chevron Corp., 294 F.
Supp. 3d 934 (N.D. Cal. 2018) .................................29
County of San Mateo v. Chevron Corp., 960 F.3d
586 (9th Cir. 2020)......................................................5
Davis v. Michigan Dep’t of Treasury, 489 U.S. 803
(1989) .........................................................................13
Environmental Def. v. Duke Energy Corp., 549
U.S. 561 (2007) .........................................................15
Ex parte Pennsylvania Co., 137 U.S. 451 (1890) ...........3
Franchise Tax Bd.v. Construction Laborers
Vacation Trust for So. Cal., 463 U.S. 1 (1983) .......17
v
Cases
Page(s)
Home Depot U.S.A., Inc. v. Jackson, 139 S. Ct.
1743 (2019)............................................................ 9,10
Huffman v. Pursue, Ltd., 420 U.S. 592 (1975).............18
Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261 (1997) .............................................................. 9,18
In re Matthew Addy S.S. & Commerce Corp., 256
U.S. 417 (1921) ...........................................................3
In re Volkswagen “Clean Diesel” Mktg., Sales
Practices, & Prods. Liab. Litig., MDL No. 2672,
2017 WL 2258757 (N.D. Cal. May 23, 2017) .... 20,22
Jacks v. Meridian Res. Co., 701 F.3d 1224 (8th
Cir. 2012).....................................................................5
Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir.
2015) ...................................................................... 5,22
Martin v. Franklin Cap. Corp., 546 U.S. 132
(2005) .........................................................................22
Massachusetts v. Fremont Inv. & Loan, No. 07-cv11965, 2007 WL 4571162 (D. Mass. Dec. 26,
2007) ..........................................................................19
Mayor of Baltimore v. BP p.l.c., 388 F. Supp. 3d
538 (D. Md. 2019) .....................................................24
Mayor of Baltimore v. BP p.l.c., 952 F.3d 452
(4th Cir. 2020) .................................................. 5,15,28
Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58
(1987) .........................................................................28
Murdock v. City of Memphis, 87 U.S. 590 (1874) ........16
New York v. Charter Commc’ns, Inc., No. 17-cv1428, 2017 WL 1755958 (S.D.N.Y. Apr. 27,
2017) ..........................................................................21
vi
Cases
Page(s)
Oregon v. Monsanto Co., No. 18-cv-238 (D. Ore.
July 19, 2018)............................................................21
Osborn v. Haley, 549 U.S. 225 (2007) ..................... 10,14
Powerex Corp. v. Reliant Energy Servs., Inc., 551
U.S. 224 (2007) ..................................................... 5,13
Rhode Island v. Chevron Corp., 393 F. Supp. 3d
142 (D.R.I. July 16, 2018) ........................................25
Rhode Island v. Shell Oil Prods. Co., 979 F.3d
50 (1st Cir. 2020) ............................................. 5,25,26
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100
(1941) ...........................................................................9
Soto v. Bushmaster Firearms Int’l, LLC, 331 Conn.
53 (2019) ....................................................................28
North Carolina ex rel. Stein v. Tinted Brew Liquid
Co., No. 19-cv-886, 2019 WL 5839184
(M.D.N.C. Nov. 7, 2019) ...........................................20
Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28
(2002) ...........................................................................8
Tafflin v. Levitt, 493 U.S. 455 (1990) ...........................18
Thermtron Prods., Inc. v. Hermansdorfer, 423 U.S.
336 (1976) ....................................................................3
Trainor v. Hernandez, 431 U.S. 434 (1977) .................18
United States v. Rice, 327 U.S. 742 (1946) .....................3
Washington v. Monsanto Co., 274 F. Supp. 3d
1125 (W.D. Wash. 2017) ..........................................21
West Virginia ex rel. Morrisey v. McKesson Corp.,
No. 16-cv-1772, 2017 WL 357307 (S.D. W. Va.
Jan. 24, 2017)............................................................19
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199 (1996) ............................................................ 14,15
vii
Laws
Page(s)
Act of Mar. 3, 1887, Ch. 373, 24 Stat. 552 .................. 3
Act of May 24, 1949, Ch. 139, 63 Stat. 89................... 4
28 U.S.C.
§ 1257 .................................................................... 16
§ 1292 ............................................................... 14,15
§ 1441 ................................................................. 7,27
§ 1442 ............................................................ passim
§ 1443 ............................................................ passim
§ 1447(c) ........................................................... 10,22
§ 1447(d) ....................................................... passim
Miscellaneous Authorities
110 Cong. Rec.
6,739 (Apr. 6, 1964) .............................................. 10
7,551 (Apr. 13, 1964) ............................................ 11
14C Charles Alan Wright et al., Federal Practice
and Procedure § 3739 (4th ed. Oct. 2020
update) .................................................................. 27
H.R. Rep. No. 81-352 (1949) ........................................ 4
H.R. Rep. No. 112-17 (2011) ................................. 11,12
INTEREST OF THE AMICI STATES
Congress enacted the general statutory prohibition
against appeals of remand orders in 28 U.S.C.
§ 1447(d) to prevent undue federal judicial interference with state-court proceedings and state-law
enforcement. It thus authorized appellate review of
remand orders only when the district court was
rejecting one of two grounds for removal that implicate
particularly sensitive issues of federal-state relations:
suits against federal officers, or suits against persons
unable to enforce in state court the laws providing for
equal civil rights. To ensure that these exceptions
remain appropriately cabined, every court of appeals
but one that has considered the issue has held that an
appeal from a remand order is limited to the question
of whether the district court properly rejected one of
the two grounds for removal that are expressly exempted from the no-appeal rule.
This carefully circumscribed right of appeal
reflects the foundational presumption that state
courts are fully competent to adjudicate disputes, that
state-court litigation should not be diverted to the
federal courts at all except in narrowly defined circumstances, and that federal appellate review of remand
orders should be even more limited. But petitioners
ask this Court to interpret § 1447(d)’s two narrow
exceptions to the no-appeal rule in a way that would
create a major loophole in the rule and severely undermine important federalism principles.
Amici States of New York, Rhode Island,
California, Connecticut, Delaware, Hawai‘i, Illinois,
Maine, Massachusetts, Michigan, Minnesota, Nevada,
New Jersey, New Mexico, North Carolina, Oregon,
Vermont, Virginia, Washington, and the District of
2
Columbia have a compelling interest in protecting the
ability of all States to enforce their own laws in their
own courts. That state interest is implicated here
because petitioners’ argument, if accepted, would
permit defendants to engage in artful pleading to
obtain federal appellate review of every aspect of every
remand decision, thereby prolonging federal litigation
over threshold removal issues, improperly delaying
state-court proceedings by months or even years, and
upsetting the careful balance established by Congress
between state and federal courts.
As respondent has persuasively argued, Congress
enacted § 1447(d) to restrict the jurisdiction of the
federal courts, and to guard against removal’s inherent interference with States’ authority by ensuring the
prompt return of matters to state court once a federal
district court has found no basis for removal. Petitioners, by contrast, would construe the statute to permit
appellate review of any ground for removal rejected by
a district court, so long as the request for removal
invoked as well a federal-officer or civil-rights basis.
Such an interpretation of the statute, if adopted by
this Court, would provide a road map for the complete
evisceration of the no-appeal rule: a party could ensure
appellate review of every possible claim for removal
simply by adding federal-officer or civil-rights grounds,
however tenuous, to a notice of removal. Such a reading of the statute would impede state-court litigation
in precisely the manner Congress intended to prohibit,
and would undermine the States’ efforts to enforce
their own laws in their own courts.
In short, petitioners ask this Court to transform
an exception clause that Congress created to ensure
appellate scrutiny of potentially meritorious assertions
of § 1442 and § 1443 removal into a statute that would
3
open appellate review to all other grounds listed for
removal despite meritless assertions of § 1442 or § 1443
removal. This Court should decline petitioners’ invitation to expand the exceptions in § 1447(d) beyond the
two that are explicitly recognized.
STATEMENT OF THE CASE
1. In 1887, Congress enacted the earliest version
of what is now 28 U.S.C. § 1447(d). Congress provided
that, whenever a case is removed from state court to a
federal district court and then remanded, “such remand
shall be immediately carried into execution, and no
appeal or writ of error from the decision . . . so remanding such cause shall be allowed.” Act of Mar. 3, 1887,
Ch. 373, § 2, 24 Stat. 552, 553. This Court confirmed
that Congress’s purpose was to make the district
court’s remand order “final and conclusive” and “to
contract the jurisdiction of the federal courts.” Ex
parte Pennsylvania Co., 137 U.S. 451, 454 (1890).
Indeed, this Court held that the appellate bar was so
absolute that even certiorari review by this Court was
unavailable to resolve a circuit split in a case where the
bar applied, because “Congress alone” had authority
to expand appellate jurisdiction over removal orders.
In re Matthew Addy S.S. & Commerce Corp., 256 U.S.
417, 420 (1921); see also Thermtron Prods., Inc. v.
Hermansdorfer, 423 U.S. 336, 343 (1976) (§ 1447 was
created to bar all review of remand orders “whether
erroneous or not”). By denying any form of appellate
review of remand orders, Congress established a rule
to bar the interruption of “the litigation of the merits
of a removed cause by prolonged litigation of questions
of jurisdiction of the district court to which the cause
[had been] removed.” United States v. Rice, 327 U.S.
742, 751 (1946).
4
In 1949, when Congress reorganized Title 28, it
preserved the same appellate bar by enacting
§ 1447(d), which provided in full: “An order remanding
a case to the State court from which it was removed is
not reviewable on appeal or otherwise.” Act of May 24,
1949, Ch. 139, § 84, 63 Stat. 89, 102. A contemporaneous report from the House Judiciary Committee
noted that the purpose of adding the subsection was
“to remove any doubt that the former law as to the
finality of an order of remand to a State court is
continued.” H.R. Rep. No. 81-352, at 15 (1949).
Since 1949, Congress has added just two
exceptions to the statutory bar on appeals of remand
orders. First, in the Civil Rights Act of 1964, Congress
added the following text to the end of § 1447(d):
“except that an order remanding a case to the State
court from which it was removed pursuant to section
1443 of this title shall be reviewable by appeal or
otherwise.” Section 1443 authorizes removal of certain
“civil actions or criminal prosecutions, commenced in
a State court,” when such proceedings are brought
against a person “who is denied or cannot enforce” in
state court “a right under any law providing for the
equal civil rights of citizens of the United States,” or
when they concern “any act under color of authority
derived from any law providing for equal rights.” 28
U.S.C. § 1443.
Second, in the Removal Clarification Act of 2011,
Congress allowed for appeals of remand orders under
28 U.S.C. § 1442. That statute authorizes removal of
certain state-court actions brought against federal
officers or agencies.
5
2. This Court has long recognized that § 1447(d)
establishes a policy of “avoiding prolonged litigation
on threshold nonmerits questions” and promptly
returning matters to state court once a federal district
court has determined that there is no basis for
removal. Powerex Corp. v. Reliant Energy Servs., Inc.,
551 U.S. 224, 237 (2007). Consistent with that
principle, nearly every circuit to consider the question
has narrowly construed the scope of appeals under
§ 1447(d)’s exceptions to nonappealability. Because
appellate jurisdiction extends only to remand orders
under either § 1442 (federal-officer removal) or § 1443
(civil-rights removal), the courts have consistently
held that the only question presented on appeal is
whether removal on these two enumerated grounds
was proper. See Rhode Island v. Shell Oil Prods. Co.,
979 F.3d 50, 58-59 (1st Cir. 2020); Board of Cty.
Comm’rs v. Suncor Energy (U.S.A.) Inc., 965 F.3d 792,
802 (10th Cir. 2020); County of San Mateo v. Chevron
Corp., 960 F.3d 586, 595-96 (9th Cir. 2020); Mayor of
Baltimore v. BP p.l.c., 952 F.3d 452, 459 (4th Cir.
2020) (decision below); Jacks v. Meridian Res. Co., 701
F.3d 1224, 1229 (8th Cir. 2012). These courts have
specifically rejected litigants’ attempts to raise on
appeal other grounds for federal removal.
Only the Seventh Circuit has held otherwise. That
court concluded that a defendant who has removed a
case to federal court under § 1442 or § 1443 as well as
other grounds may raise any arguments for removal
on appeal from the remand order—even when those
grounds for remand would not by themselves be sufficient to confer appellate jurisdiction. See Lu Junhong
v. Boeing Co., 792 F.3d 805, 810-13 (7th Cir. 2015).
6
SUMMARY OF THE ARGUMENT
I.A. Section 1447(d) reflects Congress’s choice to
respect federalism by prioritizing the sovereignty of
States and the autonomy of state courts over the availability of federal appellate review over remand orders.
The history of § 1447(d) reflects that Congress has
consistently chosen to require immediate remand of
cases to state courts rather than allow appellate
review of the remand order, despite several occasions
on which Congress could have made, or was urged to
make, a different choice.
B. The plain text of § 1447(d) implements this background principle by providing that the only question a
court of appeals may review on appeal from a remand
order is whether the district court erred in rejecting a
claim for removal under § 1442 or § 1443. Because the
statute’s main clause prohibits all appeals of remand
orders, the secondary clause containing the exceptions
must be read narrowly to preserve the effect of the
main clause.
II.A. The States’ experiences with defendants’
removal practices demonstrate the disruption to state
sovereignty created by petitioners’ reading of § 1447(d).
States bring a wide variety of enforcement proceedings
under their own laws in their own courts, including
financial regulation, drug enforcement, environmental
protection, and more. A common tactic of defendants
is to remove these enforcement actions to federal
court, no matter how tenuous the basis for removal, in
order to delay the state-court proceedings and any
resulting adverse judgments. If § 1447(d) were reinterpreted to allow appellate review of all grounds for
removal, defendants would have a powerful new tool
to further prolong federal litigation over threshold
7
removal issues and thus impede the States’ efforts to
obtain relief for serious wrongdoing.
B. Such delays have been particularly disruptive
in lawsuits brought by States and localities to address
fraud and other misconduct by fossil-fuel companies.
Like Baltimore in this case, States have sought to
enforce their own laws by bringing lawsuits under
state law in state courts against fossil-fuel companies
for their decades-long campaigns to conceal their
knowledge of climate change and the central role their
products play in causing climate change. As the Fourth
Circuit and other courts have rightly concluded, there
is no serious claim that these cases involve federal
officers or civil rights in a way that would warrant
removal under § 1442 or § 1443; indeed, petitioners do
not even attempt to make such an argument to this
Court. Nonetheless, state-court defendants like petitioners have leveraged their meritless invocations of
§ 1442 or § 1443 removal to confer reviewability on
other removal grounds for which Congress never
contemplated appellate review.
III. Because Congress did not authorize the courts
of appeals to review any bases for removal other than
those under § 1442 and § 1443, this Court should
decline to review petitioners’ claims that the case was
removable under the general removal statute, 28
U.S.C. § 1441. In any event, petitioners’ § 1441 argument is meritless. Petitioners invoke the completepreemption doctrine to assert that Baltimore’s statelaw claims necessarily arise under federal law because
they implicate interstate air pollution. But this Court
has already said that the Clean Air Act displaces
federal common law in this context, see American Elec.
Power Co. v. Connecticut, 564 U.S. 410, 423-25 (2011),
and petitioners have conspicuously failed to identify
8
any provision of the Clean Air Act that would preclude
Baltimore’s state-law claims here.
ARGUMENT
I.
Congress’s Strict Limitation on Appellate
Review of Remand Orders Protects
Important Federalism Principles.
A core reserved power of the States under the
Constitution is their sovereign prerogative to maintain
“state judicial systems for the decision of legal
controversies.” Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng’rs, 398 U.S. 281, 285 (1970).
Because removal of state-law claims to federal courts
necessarily interferes with that sovereign interest,
this Court has long held that “‘[d]ue regard for the
rightful independence of state governments’” demands
that removal statutes “be strictly construed.” Syngenta
Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002)
(quoting Healy v. Ratta, 292 U.S. 263, 270 (1934)).
Petitioners denigrate the States’ sovereign powers and
disregard these important federalism concerns in
urging this Court to endorse expansive appellate
review that goes beyond the limits of § 1447(d).
A. In Enacting 28 U.S.C. § 1447(d), Congress
Reinforced States’ Sovereign Power and
Restricted Federal Appellate Jurisdiction
Over Remand Orders.
Section 1447(d) promotes the independence of state
courts—not just judicial economy within the federal
courts, as the States supporting petitioners propose
(see Br. for Amici Curiae Indiana et al. 11 (“Indiana
Amicus Br.”); see also Pet’r Br. 37). The removal juris-
9
diction of federal courts has always been strictly construed out of respect for the “power reserved to the
states under the Constitution to provide for the determination of controversies in their courts.” Shamrock
Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108-09 (1941).
The judicial power reserved to the States by the Constitution to decide controversies regarding state laws in
state courts “may be restricted only by the action of
Congress in conformity to the Judiciary Articles of the
Constitution.” Id. at 109. Because § 1447(d) expresses
the historic respect that Congress has for the independence of state courts, the exception established for
appellate review must be read with this traditional
constraint in mind.
In contrast to the plenary role of state courts,
“federal courts are courts of limited jurisdiction,” and
the Constitution constrains the lower federal courts to
exercise only the jurisdiction specifically conferred on
them by statute. Home Depot U.S.A., Inc. v. Jackson,
139 S. Ct. 1743, 1746 (2019) (quotation marks omitted).
Indeed, the Constitution does not require Congress to
confer general federal-question jurisdiction on the
federal courts, and Congress chose not to do so until
the 1870s. See Idaho v. Coeur d’Alene Tribe of Idaho,
521 U.S. 261, 275 (1997). The presence of important
federal issues in a case thus has never been enough, by
itself, to demand a federal forum, because the Constitution contemplates the availability of this Court’s review
of final judgments from both state and federal courts
as the mechanism to ensure consistent application of
federal law. See id.
Adhering to this principle in the removal context,
this Court has recognized that removal is permissible
only when “Congress has clearly extended the reach of
10
the statute.” Home Depot, 139 S. Ct. at 1749. This principle applies not just to removal itself, but to appeals
of remand orders finding removal improper. Upon such
a finding, a state court is entitled to promptly resume
adjudication of the claims that had originally been
brought before it. See 28 U.S.C. § 1447(c) (case “shall
be remanded” when “at any time” it becomes apparent
that federal jurisdiction is lacking). Broader appellate
review of such remand orders delays state-court review
and thus prevent the States from resuming the exercise
of their sovereign prerogative to adjudicate state-law
claims. And Congress intended to promptly return such
matters to state court even when the federal district
court may have incorrectly denied removal. (Cf. Indiana
Amicus Br. 5, 16 (contending that claims arose under
federal law).) “[O]ur precedents make abundantly clear
that § 1447(d)’s appellate-review bar applies with full
force to erroneous remand orders.” Osborn v. Haley,
549 U.S. 225, 265 (2007) (Scalia, J., dissenting). “Determination of an order’s lawfulness can only be made
upon review—and it is precisely review that § 1447(d)
forbids.” Id. (Scalia, J., dissenting).
Congress has long been aware of the various policy
arguments in favor of expanded appellate review but
has chosen to create only specific, narrowly drawn
exceptions to the no-appeal rule. Those exceptions do
not support petitioners’ broad theory of the scope of
appellate review under § 1447(d) because Congress
enacted them for narrow purposes that are irrelevant
to petitioners’ position here. In 1964, Congress added
the provision allowing appeals of civil-rights removal
claims as part of a landmark law to provide an important check against remands to state courts where a
party’s civil rights may not be protected. 110 Cong.
Rec. 6,739 (Apr. 6, 1964) (statement of Senator Thomas
11
Dodd). Congress was well aware of the objection that
such appeals would interfere with the independence of
state courts and delay state judicial proceedings. See,
e.g., id. at 7,551 (Apr. 13, 1964) (statement of Senator
George Smathers) (“Thus the jurisdiction of the State
courts—in these cases alone—could be nullified for
months by the simple filing of a petition to remove,
followed by an adverse order of the U.S. district court,
even though followed by an adverse judgment of the
U.S. court of appeals upon the appeal.”). Congress
resolved those concerns by limiting appeals to those
cases where civil-rights concerns were directly presented, and where Congress had explicitly determined
that the federal interest in protecting those rights
outweighed the substantial concerns about interference with state sovereignty. But when a district court
has correctly rejected a claimed civil-rights predicate
for removal, there is no similar interest in appellate
review of the district court’s rejection of additional,
unrelated grounds for removal.
When Congress amended § 1447(d) for the second
and final time in the Removal Clarification Act of
2011, it once again did so with a specific and targeted
purpose: to extend the protection of appellate review
to federal officers sued or prosecuted in state courts.
Congress allowed appeals specifically to circumscribe
the proliferation of pre-suit discovery proceedings
against federal officers in state courts—including
proceedings against sitting members of Congress. See
H.R. Rep. No. 112-17, at 3-4 (2011). The federal interest
it sought to vindicate was the federal government’s
unique and “indefeasible power to hold a Federal
officer or agent criminally or civilly liable for an act
allegedly performed in the execution of their Federal
duties.” See id. at 3. Congress explained that federal
12
officers “should not be forced to answer for conduct
asserted within their Federal duties in a state forum
that invites ‘local interests or prejudice’ to color outcomes.” Id. The 2011 amendment to § 1447(d), like the
1964 amendment, thus addressed a specific situation
in which the federal government’s interest in retaining
jurisdiction in the federal courts was uniquely strong—
and sufficiently so to overcome the powerful arguments
in favor of returning jurisdiction promptly to state
courts upon a finding that removal was improper. And
again, when a district court has correctly rejected the
claimed federal-officer ground for removal, there is no
similar interest in appellate review of the district
court’s rejection of other unrelated grounds for removal.
Petitioners’ argument here wrenches the exceptions in § 1447(d) from their context. According to
petitioners, so long as a state-court defendant identifies
§ 1442 or § 1443 as a basis for removal—no matter
how tenuous that claim—that defendant is then
entitled to raise on appeal any ground for removal,
even when the case indisputably lacks the unique
federal interests implicated by § 1442 and § 1443.
Such an interpretation of § 1447(d) is divorced from
foundational principles of federalism and disregards
Congress’s careful efforts to respect and preserve each
sovereign’s unique powers and prerogatives. Congress
had strong reasons for providing appellate review of
remand determinations rejecting federal-officer or
civil-rights removal; its goal was to reinforce those
particular grounds for removal where those specific
federal interests exist. But Congress had no reason to
make the meritless assertion of such grounds for removal into a free ticket for review of all other grounds for
removal, and it did not do so in § 1447(d). While
Congress, like this Court, has long been “well aware”
13
of various policy arguments that § 1447(d)’s bar on
appellate review sometimes has “undesirable consequences,” that “policy debate . . . belongs in the halls of
Congress, not in the hearing room of this Court.”
Powerex Corp., 551 U.S. at 237.
B. The Plain Text of § 1447(d) Permits a
Court of Appeals to Review Only the Two
Grounds for Removal Enumerated in the
Subsection.
The plain text of § 1447(d) forecloses petitioners’
arguments. Nearly every circuit to consider the question presented in this case has held that § 1447(d)’s
exception clause should be read narrowly to be consistent with the core purpose of that statute: to prohibit
review of remand orders. Petitioners purport to rely on
a plain-text reading (Br. 16), yet they ignore the
primary prohibition of § 1447(d). Petitioners’ argument implausibly transforms a statute that by its very
nature and through its limited exceptions safeguards
the reserved sovereign power of the States into a
broad, federal-jurisdiction-granting provision.
“[T]he words of a statute must be read in their
context and with a view to their place in the overall
statutory scheme.” Davis v. Michigan Dep’t of Treasury, 489 U.S. 803, 809 (1989). In the case of a statute
like § 1447(d) that contains a main rule and exceptions, a contextual reading means that this Court will
“usually read the exception[s] narrowly in order to
preserve the primary operation of the provision.” See
Commissioner of Internal Revenue v. Clark, 489 U.S.
726, 739 (1989); see also A. H. Phillips, Inc. v. Walling,
324 U.S. 490, 493 (1945) (“To extend an exemption to
other than those plainly and unmistakably within its
terms and spirit is to abuse the interpretative process
14
and to frustrate the announced will of the people.”).
“Few statutes read more clearly” than § 1447(d)’s main
clause, which contains a comprehensive bar on appellate review of remand orders. Osborn, 549 U.S. at 26263 (Scalia, J, dissenting). That appellate bar remains
§ 1447(d)’s main function, and an appropriately contextual reading of the two explicitly defined exceptions
requires them to be construed narrowly to avoid undermining § 1447(d)’s principal command.
The contrary interpretation by petitioners and
their amici (Pet’r Br. 16-18; Indiana Amicus Br. 6-10)
rely on their overreading of the word “order” in the
exception clause. Petitioners argue that every part of
“an order remanding a case to the State court” is
reviewable on appeal if, as a matter of procedural
history, the state-court defendant had merely cited
“the federal-officer or civil-rights removal statutes” in
its notice of removal (Pet’r Br. 11)—no matter how
tenuous those grounds for removal might be, and even
when, as here, the defendant has abandoned those
grounds for removal on appeal. But that argument
subverts the interpretive principle that a statute’s
main purpose takes priority over its exceptions by
allowing Congress’s narrow exceptions to the noappeal rule to swallow § 1447(d)’s appeal bar.
The amici States supporting petitioners attempt to
bolster this argument by relying on Yamaha Motor
Corp., U.S.A. v. Calhoun, 516 U.S. 199, 205 (1996),
which construed 28 U.S.C. § 1292(b). Indiana Amicus
Br. 11-12. But § 1292(b) is starkly different from
§ 1447(d) in ways that preclude the superficial conflation of their texts proposed by the petitioners’ amici
States. Section 1292(b) governs interlocutory appeals
in cases where a matter unquestionably is being litigated in federal court and there is no competing state
15
court from which the case has temporarily been
removed. See Yamaha Motor, 516 U.S. at 205. Section
1292(b) thus does not implicate the federalism values
that lie at the heart of § 1447(d) because the sole effect
of the statute is to regulate when the federal court of
appeals may review matters still pending in the
federal district courts. By contrast, a broad reading of
§ 1447(d) necessarily expands federal judicial review
at the expense of state sovereignty by delaying the
prompt return of a legal dispute to the state court
where it originated—a categorically different harm,
which implicates interests deeper than mere judicial
economy.
The same conclusion follows from comparing the
texts of the two statutory provisions. Section 1292(b)
is at its core a provision that creates a right to appeal.
It is preceded by a subsection stating that “the courts
of appeals shall have jurisdiction of appeals” from
specific types of interlocutory orders. 28 U.S.C.
§ 1292(a) (emphasis added). And subsection (b) then
further authorizes interlocutory appeal of certain
orders that “involve[] a controlling question of law”
worthy of immediate review. Id. § 1292(b). By contrast,
§ 1447(d) is at its core a provision that prohibits
appeals. It provides by default that a remand order “is
not reviewable on appeal or otherwise,” and only thereafter provides exceptions to that general rule. Those
exceptions, moreover, are enumerated by subject
matters that, as discussed, related to specific unique
federal interests. As the Fourth Circuit thus correctly
held below, there is no basis to read the word “order”
in § 1447(d) identically to the same word in § 1292(b),
given the two statutes’ fundamentally different purposes and context. Mayor of Baltimore, 952 F.3d at
460; see also Environmental Def. v. Duke Energy Corp.,
16
549 U.S. 561, 574 (2007) (“A given term in the same
statute may take on distinct characters from association with distinct statutory objects calling for different
implementation strategies.”).
Petitioners’ argument, if followed to its logical
conclusion, would upend the balance of power between
state and federal courts. As respondent points out
(Resp. Br. 11-12), if petitioners were correct that review
of an “order” in § 1447(d) must mean review of every
issue decided by that order, then it would follow that
review of a “judgment” likewise entails review of every
issue decided by that judgment. On that reasoning,
when this Court reviews a final judgment of a state
court of last resort, this Court should review all issues
decided in that judgment, including not only federal
questions of law presented by the case but any statelaw questions as well. See 28 U.S.C. § 1257 (conferring
jurisdiction on this Court to review “[f]inal judgments
or decrees” of state high courts whenever “the validity
of a treaty or statute of the United States is drawn in
question”). But this Court has never claimed that power. See Animal Science Prods., Inc. v. Hebei Welcome
Pharm. Co., 138 S. Ct. 1865, 1874 (2018); Murdock v.
City of Memphis, 87 U.S. 590, 627-28 (1874). Respect
for federalism demands a narrower construction of both
statutes, restricting review to the grounds specified in
the statutory text.
II. Expanding the Scope of Review Authorized
by § 1447(d) Would Frustrate State Law
Enforcement and Unduly Burden the States.
Petitioners’ incorrect interpretation of § 1447(d), if
adopted, would interfere with the States’ prerogative
to enforce their laws in state courts. “[C]onsiderations
of comity make us reluctant to snatch cases which a
17
State has brought from the courts of that State, unless
some clear rule demands it.” Franchise Tax Bd.v.
Construction Laborers Vacation Trust for So. Cal., 463
U.S. 1, 21 n.22 (1983). Petitioners’ interpretation
would allow defendants to obstruct state law enforcement in a variety of matters. And such obstruction has
imposed serious costs on the States, and unacceptable
delays in the States’ abilities to obtain relief for their
respective citizens and to protect their sovereign and
quasi-sovereign interests. Litigation over removal
consumes resources; unduly burdens federal courts;
risks prolonged disputes over threshold jurisdictional
issues; defers adjudication on the merits of defendants’
liability; and delays a sovereign State’s resolution of
their state-law matters.
These harms would be magnified if this Court
were to agree with petitioners here and vastly expand
appellate review of remand orders. Such a holding
would encourage all defendants seeking removal to
invoke federal-officer or civil-rights jurisdiction, however tenuous such a claim might be, in order to ensure
the appellate reviewability of other, unrelated grounds
for removal. And such reviewability would significantly raise the risk of delay by increasing the work of
both the courts of appeals and the States, which would
have to consider and argue a whole host of potentially
complex removal issues on appeal rather than the
limited removal grounds that Congress authorized the
federal courts of appeals to consider. That result is
flatly inconsistent with Congress’s express intent to
generally prohibit appellate jurisdiction over remands
in order to promptly return jurisdiction of state-law
claims to the state courts where they originated.
18
A. Adopting Petitioners’ Interpretation
Would Embolden Defendants to
Frustrate State Law Enforcement
Through Improper Removals.
States routinely seek to enforce their own statutes
and common law in state courts. Such enforcement
actions may involve claims that affect national
interests or implicate federal law, but those factors
present no impediment to state-court jurisdiction. See
Caterpillar, Inc. v. Williams, 482 U.S. 386, 392-93
(1987). To the contrary, “state courts have inherent
authority, and are thus presumptively competent, to
adjudicate” such claims, consistent with the longstanding principle that “the States possess sovereignty concurrent with that of the Federal Government.”
Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Arguments
alleging that state plaintiffs are wrongly attempting
to influence national policy, or that “[s]tate courts have
no business deciding” issues with national import
(Indiana Amicus Br. 24), improperly denigrate our system of dual sovereignty. See Trainor v. Hernandez, 431
U.S. 434, 445 (1977). “A doctrine based on the inherent
inadequacy of state forums would run counter to basic
principles of federalism.” Idaho, 521 U.S. at 275.
By contrast, undue federal “interference with a
state judicial proceeding prevents the state . . . from
effectuating its substantive policies,” Huffman v.
Pursue, Ltd., 420 U.S. 592, 604 (1975). It also undermines the functionality of the well-pleaded complaint
rule, which allows a State as plaintiff to choose its own
claims and its own forum. See Caterpillar, Inc., 482
U.S. at 392. In recent years, an increasingly common
tactic for defendants facing state-law enforcement
actions in state court is to remove the matter to federal
court based on tenuous reasoning, thus miring these
19
cases in prolonged jurisdictional litigation and, when
the plaintiff is a State, frustrating the State’s role as
enforcer of its laws. For example:
• State enforcement actions were critical to
revealing the scope of the subprime mortgage lending
practices that contributed to the global 2008 financial
crisis. In a representative case, Massachusetts brought
an action in its state courts alleging unfair or deceptive practices under the Massachusetts Consumer
Protection Act. The defendant bank sought unsuccessfully to remove the case to federal court on the grounds
that a cease-and-desist order from the Federal Deposit
Insurance Corporation limited the relief available to
the State. See Massachusetts v. Fremont Inv. & Loan,
No. 07-cv-11965, 2007 WL 4571162 (D. Mass. Dec. 26,
2007).
• States have relied on their own laws regarding
controlled substances to combat the ongoing prescription drug abuse crisis. West Virginia brought one such
action against a pharmaceutical company in state
court, alleging that the State had been forced to
expend substantial amounts of money to deal with the
consequences of the company’s practices regarding
their highly addictive drugs. Although the claims were
based on West Virginia’s consumer protection, deceptive practices, unjust enrichment, and controlled substances laws, the defendant company tried unsuccessfully to remove the action to federal court on the
grounds that West Virginia’s state law claims made
numerous references to the defendants’ violation of
federal law. See West Virginia ex rel. Morrisey v.
McKesson Corp., No. 16-cv-1772, 2017 WL 357307
(S.D. W. Va. Jan. 24, 2017).
20
• State enforcement actions are essential to protect
consumers from faulty products and services in a wide
array of industries. In one group of cases consolidated
after removal, twelve States sued Volkswagen in their
respective state courts for using “defeat devices” to
evade Environmental Protection Agency (EPA) emissions test procedures. Volkswagen unsuccessfully
sought removal of all of the cases on the grounds that
the concept of a “defeat device” was defined by federal
law and that the cases would require the court to
construe EPA emission regulations. In granting the
States’ motions to remand, the district court noted that
proving an emissions violation was not an element of
any State’s claim; instead, the cases were about
whether Volkswagen had deceived consumers about
the characteristics of their cars. See In re Volkswagen
“Clean Diesel” Mktg., Sales Practices, & Prods. Liab.
Litig., MDL No. 2672, 2017 WL 2258757 (N.D. Cal.
May 23, 2017).
• States have taken action to prevent the deceptive
and misleading practices that lead to the sale of tobacco products, such as e-cigarettes, to minors. North
Carolina brought such a case in its state court based
on its deceptive practices law and age-verification law.
The defendant unsuccessfully claimed that the State’s
cause of action was completely subsumed by the Family
Smoking Prevention and Tobacco Control Act. See
North Carolina ex rel. Stein v. Tinted Brew Liquid Co.,
No. 19-cv-886, 2019 WL 5839184 (M.D.N.C. Nov. 7,
2019).
• States have sued to protect their residents from
unfair practices by communications providers, many
of whom are also federally regulated. New York sued
Internet service providers for promising customers
reliable service and Internet speeds that the providers
21
knew they would not be able to deliver. New York relied
on state-law claims for fraud, deceptive business
practices, and false advertising. The defendants unsuccessfully sought removal on the grounds that the case
necessarily raised a federal question about the application of Federal Communications Commission regulations. See New York v. Charter Commc’ns, Inc., No. 17cv-1428, 2017 WL 1755958 (S.D.N.Y. Apr. 27, 2017).
• States have sued to protect their residents from
the effect of harmful environmental contamination.
The States of Washington and Oregon each filed
complaints in their respective state courts alleging
that Monsanto Company produced products containing polychlorinated biphenyls (PCBs) that contaminated water, land, and wildlife—and that Monsanto
intentionally concealed the toxicity of PCBs. Monsanto
unsuccessfully attempted to remove the lawsuits to
federal court under § 1442 on the grounds that the
federal government bought and directed the production of some PCBs. The cases were remanded because
the federal government had merely purchased a
product off the shelf and had not directed Monsanto to
conceal the toxicity of PCBs. See Washington v.
Monsanto Co., 274 F. Supp. 3d 1125 (W.D. Wash.
2017), aff’d, 738 F. App’x 554 (9th Cir. 2018); Oregon
v. Monsanto Co., No. 18-cv-238, Tr. at 56-62 (D. Ore.
July 19, 2018), ECF No. 57.
Absent a properly confined interpretation of
§ 1447(d), there are few adequate safeguards that
federal courts could use in a consistent and uniform
way to prevent a party from simply citing § 1442 or
§ 1443 in its notice of removal and thus opening the
door to appellate review of every ground for removal.
Petitioners dismiss concerns about delay by arguing
that federal courts will prevent dilatory tactics by
22
requiring defendants to pay the States’ attorneys’ fees
for improper removal. See Pet’r Br. 35-36; see also Lu
Junhong, 792 F.3d at 813. But fees under § 1447(c) are
available only if the defendant had no objectively
reasonable basis for removal, Martin v. Franklin Cap.
Corp., 546 U.S. 132, 141 (2005)—a very high threshold
that is difficult to establish, particularly in the case of
a well-counseled defendant; moreover, district courts
often deny fees so long as a single asserted ground for
removal is a close question, even if other asserted
grounds are unreasonable, see, e.g., In re Volkswagen,
2017 WL 2258757, at *13. The prospect of fees thus
cannot meaningfully deter defendants from asserting
marginal claims for removal in order to invoke reviewability under § 1447(d), nor would it protect the States
from the delays and expenditure of resources that are
endemic to adjudication of such claims.
More fundamentally, petitioners’ argument ignores
the fact that fees under § 1447(c) (or sanctions under
any other provision of law) are an independent procedural safeguard—not a replacement for § 1447(d)’s
general prohibition on appeals from remand orders.
That prohibition reflects Congress’s careful balancing
of the federal interest in providing a federal forum to
state-court defendants under appropriate circumstances, and the compelling state interest in returning
such matters promptly to state court when a federal
district court has determined that a defendant has
failed to satisfy the narrow grounds for federal removal.
Congress wrote § 1447(d) to require actual immediate
remand, not merely a monetary fee for delay that a
deep-pocketed defendant may treat as a cost of doing
business.
The Seventh Circuit—the only circuit to have
endorsed a position like the one petitioners press
23
here—also understated the consequences of an
approach that would allow defendants to proliferate
the issues on appeal from removal orders, mistakenly
stating that there is little cost to allowing every issue
to be appealed if a single issue is on appeal. As the
Tenth Circuit rightly observed in rejecting the Seventh
Circuit’s approach, a circuit court may summarily
dispose of a weak argument for removal under § 1442
or § 1443, but if circuit courts now must review every
argument for removal, “expanding the scope of
§ 1447(d) review . . . has significant potential to foment
protracted litigation of jurisdictional issues . . . and
prolong the interference with state jurisdiction that
§ 1447(d) clearly seeks to minimize.” Board of Cty.
Comm’rs, 965 F.3d at 816 (quotation marks omitted).
As respondent notes (see Br. 36), the papers the district
court reviewed in deciding the eight removal claims in
this case included 180 pages of briefing and 1,100 pages
of declarations and exhibits. Allowing a defendant to
force a court of appeals to review all of that material
would completely transform the removal dockets of
the circuits.
B. Petitioners and Similar Defendants
Have Already Caused Profound Delays
to Claims by States and Localities in
State Courts Similar to Respondent’s
Claims Here.
As the foregoing examples show, States regularly
enforce their state laws to seek redress in areas with
major national and international interests, and courts
easily turn aside attempts to remove those cases when
a State’s claims arise under state law. And just as
States have been on the front lines of the opioid crisis,
24
the financial crisis, and other problems that simultaneously receive federal attention, States and localities
have been on the front lines of responding to and
addressing the extreme effects of the climate crisis.
Yet the present case and other state and local
climate-response cases provide an illustration of
exactly how defendants can frustrate state enforcement by litigating removal claims. Petitioners made a
token argument for § 1442 removal—on the grounds
that one out of the twenty-six defendants sold fossil
fuels to the federal government, and that the federal
government generally regulates extraction processes.
See Mayor of Baltimore v. BP p.l.c., 388 F. Supp. 3d
538, 568-69 (D. Md. 2019). But in this Court, petitioners abandon this ground for removal, instead asking
this Court to endorse removal on the distinct and
otherwise unreviewable theory that the claims here
necessarily arise under federal common law (Pet’r Br.
37-46)—a claim that this Court did not grant certiorari
to consider, and that is meritless in any event (see
infra at 27-29). If this Court were to endorse such a
strategy, nothing would prevent defendants in future
state enforcement actions from making similarly
tenuous claims for § 1442 or § 1443 removal in order
to litigate their other removal claims up the federal
appellate ladder, delaying the prompt return to state
court that § 1447’s plain text requires.
Amicus Rhode Island has suffered exactly such
delays in its own state-law-based litigation against
fossil-fuel companies. In July 2018, Rhode Island filed
a complaint in state court explaining how such companies, in the 1960s and 1970s, developed sophisticated,
accurate models to predict the consequences of continued use of fossil fuels—but then made a conscious decision in the 1980s and 1990s to sow doubt about the
25
scientific consensus that defendants’ own research
supported. See Compl. ¶¶ 106-174, State v. Chevron
Corp., No. PC-2018-4716 (R.I. Super. Ct. July 2, 2018),
reproduced at Rhode Island v. Chevron Corp., 393 F.
Supp. 3d 142 (D.R.I. July 16, 2018) (No. 1:18-cv-395),
ECF No. 7, pgs. 103-139. The companies’ approach
relied on deceptive and misleading strategies: they
published newspaper ads and radio commercials, and
they employed research analysts to study the most
effective ways of persuading the public that climate
change was speculation rather than an accepted
consensus. Id. ¶ 156, ECF pg. 128. Rhode Island’s suit
seeks to recover for the injuries caused by this
disinformation campaign under exclusively state-law
causes of action for failure to warn, design defect,
nuisance, and other civil torts. Id. ¶¶ 225-315, ECF
pgs. 168-193.
As petitioners here did, the defendants in the
Rhode Island case argued that Rhode Island’s claims
concerned conduct that the defendants had performed
at the direction of federal officers, and thus removed
the case under § 1442 as well as seven other grounds
for removal. See Notice of Removal by Shell Oil
Products Corp., ECF No. 1. Both the district court and
the First Circuit rejected the defendants’ § 1442 argument, recognizing that no federal officer prompted or
oversaw the defendants’ misinformation campaign.
See Chevron Corp., 393 F. Supp. 3d at 152, aff’d sub
nom. Rhode Island v. Shell Oil Prods. Corp., 979 F.3d
at 59-60. As the First Circuit accurately put it, the
defendants’ arguments for removal have “the flavor of
federal officer involvement in the oil companies’ business, but that mirage only lasts until one remembers
what Rhode Island is alleging in its lawsuit.” 979 F.3d
at 59-60.
26
The First Circuit appropriately limited its review
of the remand order to the defendants’ federal-officer
removal arguments, and refused to consider defendants’
other arguments in favor of removal. Id. at 55-59.
Even so circumscribed, the First Circuit did not issue
its decision until October 2020—more than two years
after Rhode Island first filed its complaint in state
court. Appellate review would likely become even more
prolonged if this Court were to adopt petitioners’ broad
interpretation of § 1447(d) and allow parties to assert
on appeal multiple other grounds for removal that the
courts of appeals would then be required to consider
and resolve.
Such extensive procedural delays conflict with the
statutory scheme that Congress designed to constrain
federal appellate jurisdiction over remand orders.
These delays defer desperately needed relief. Baltimore,
Rhode Island, and similar plaintiffs brought these
actions at the time that they did because state and
local governments are incurring costs from climate
change effects now, and it is appropriate for defendants
that engaged in these deliberate deceptions and frauds
to share those costs, or at the very least to have a state
court determine if the plaintiff has met its burden of
proof on the merits. But defendants have been able to
delay any reckoning by endlessly litigating threshold
removal questions. It should not take three years to
determine which court should hear a case—an outcome
that the plain language of § 1447 is designed to avoid
by requiring most cases to be remanded without
appeal.
27
III. If This Court Were to Review Petitioners’
Argument for Removal Based on 28 U.S.C.
§ 1441, the Court Should Reject That
Argument as Meritless.
Because the court of appeals correctly held that it
lacked appellate jurisdiction to review grounds for
removal based on statutes other than § 1442 or § 1443,
this Court should affirm without reaching the arguments for removal under § 1441 presented by petitioners and their amici. If this Court decides to resolve
the § 1441 argument now, then it should reject that
argument because it is without merit. See Pet’r Br. 38.
The party seeking removal has the burden of showing
that removal is proper. See 14C Charles Alan Wright
et al., Federal Practice and Procedure § 3739 (4th ed.
Oct. 2020 update) (Westlaw). Petitioners’ assertion
that Baltimore’s state-law claims here “necessarily
arise under federal common law” (Pet’r Br. 37)—and
thus could be removed to federal court under the
complete-preemption doctrine—do not satisfy this
burden.
As an initial matter, petitioners’ completepreemption arguments have no application to
Baltimore’s state-law claims challenging petitioners’
pattern of deceptive conduct. In these claims, Baltimore
is seeking to put an end to petitioners’ practice of
denying and deceiving the public about what the
petitioners actually knew about climate science. No
part of that claim even raises a federal issue, let alone
one that so dominates a field as to support removal
under the complete-preemption doctrine. As courts
have repeatedly recognized (see supra at 19-21), it is a
“core exercise of the states’ police powers” to protect
the people from the “pernicious practices” of deceptive
and false advertising, whether in the context of
28
prescription drugs, Internet speeds, or fossil-fuel
products. Soto v. Bushmaster Firearms Int’l, LLC, 331
Conn. 53, 66 (2019). Such cases seek to put a halt to
fraud and deceit—not to supplant federal regulation.
So too here: Baltimore’s deception claims do not seek
to restrain emissions, but to halt petitioners’ “concealment and misrepresentation of [their fossil fuel]
products’ known dangers—and simultaneous promotion of their unrestrained use,” as the court below
correctly recognized. Mayor of Baltimore, 952 F.3d at
467.
Petitioners and the amici States supporting them
likewise fail to show that Baltimore’s state-law public
nuisance claims necessarily arise under federal law.
Petitioners’ sole argument relies on the asserted application of federal common law to interstate air pollution. (Pet’r Br. 38-40.) But this Court has already held
that the Clean Air Act displaced any such federal
common law. See American Elec. Power, 564 U.S. at
423-25. And petitioners fail to identify any specific
provision of the Clean Air Act that would forbid
Baltimore (or any other State or locality) from relying
on state laws to address the deceptive behavior that
resulted in concrete harms caused by climate change.
In sharp contrast, this Court has previously found
complete preemption, sufficient to warrant removal,
only when the party seeking removal has identified a
specific federal statute that displaces parallel state
regulation. 1 Petitioners’ vague references to the federal
1 See, e.g., Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 11
(2003) (holding that 12 U.S.C. § 86’s cause of action for usury
against a national bank displaces any similar state cause of
action); Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65-67
29
interests at stake in preventing climate change are not
enough under these precedents. “The mere potential”
that issues of federal importance—such as “foreign
policy implications”—will come up in the course of a
case “does not raise the kind of actually disputed, substantial federal issue” required for removal. County of
San Mateo v. Chevron Corp., 294 F. Supp. 3d 934, 938
(N.D. Cal. 2018), aff’d in part & dismissed in part, 960
F.3d 586.
Of course, remand would not preclude petitioners
here from raising in state court any defenses to
Baltimore’s state-law claims that may be available to
them under federal law. But raising federal preemption defenses to state-law claims does not convert
them into federal claims. See Caterpillar, Inc., 482
U.S. at 392-93. And more fundamentally, state courts
are fully equipped to address any and all such defenses. “Usually, state courts are left to decide whether
state law claims are preempted by federal law under
principles of ‘express preemption,’ ‘conflict preemption’
or ‘field preemption.’ And state courts are entirely
capable of adjudicating that sort of question.” Id.
***
Federal law entitled petitioners to present to the
district court any and all grounds for removal. The
district court here carefully considered each of petitioners’ many arguments and rejected them in a thorough
(1987) (holding that 29 U.S.C. § 1132’s cause of action for
improper processing of a claim for benefits under an employee
benefit plan displaces any similar state cause of action); Avco
Corp. v. Aero Lodge No. 735, Int’l Ass’n of Machinists, 390 U.S.
557, 560-61 (1968) (holding that 29 U.S.C. § 185’s cause of action
for a violation of contracts between an employer and a union
displaces any similar state cause of action).
30
decision that remanded the matter to state court.
Under § 1447(d), petitioners were permitted to ask the
court of appeals to review whether the district court
had correctly resolved their claim for removal under
§ 1442, but no other issue. That process—exhaustive
district court review and strictly limited court of
appeals review—is the process that Congress chose to
balance the sovereign interests of the States with
state-court defendants’ desire for a federal forum. This
Court should reject petitioners’ attempt to rewrite that
process in a way that would ignore § 1447(d)’s plain
meaning and undermine the federalism principles
that Congress intended this statute to uphold.
CONCLUSION
The judgment of the court of appeals should be
affirmed.
Respectfully submitted,
PETER F. NERONHA
LETITIA JAMES
Attorney General
State of Rhode Island
Attorney General
State of New York
NEIL F.X. KELLY
BARBARA D. UNDERWOOD*
Assistant Attorney General
Solicitor General
TRICIA O’HARE JEDELE
STEVEN C. WU
Special Assistant
Attorney General
MATTHEW W. GRIECO
ALISON B. HOFFMAN
Special Assistant
Attorney General
December 2020
Deputy Solicitor General
Assistant Solicitor General
barbara.underwood@ag.ny.gov
*Counsel of Record
(Counsel list continues on next page.)
31
XAVIER BECERRA
MAURA HEALEY
Attorney General
State of California
Attorney General
Commonwealth of
Massachusetts
1300 I St.
Sacramento, CA 95814
One Ashburton Pl.
Boston, MA 02108
WILLIAM TONG
DANA NESSEL
Attorney General
State of Connecticut
Attorney General
State of Michigan
P.O. Box 120
55 Elm St.
Hartford, CT 06106
P.O. Box 30212
Lansing, MI 48909
KATHLEEN JENNINGS
KEITH ELLISON
Attorney General
State of Delaware
Attorney General
State of Minnesota
820 N. French St., 6th Fl. 102 State Capitol
Wilmington, DE 19801
75 Rev. Dr. Martin Luther
King Jr. Blvd
Saint Paul, MN 55101
CLARE E. CONNORS
AARON FORD
Attorney General
State of Hawai‘i
Attorney General
State of Nevada
425 Queen St.
Honolulu, HI 96813
100 North Carson St.
Carson City, NV 89701
KWAME RAOUL
GURBIR S. GREWAL
Attorney General
State of Illinois
Attorney General
State of New Jersey
100 W. Randolph St.
Chicago, IL 60601
25 Market St.
Trenton, NJ 08625
AARON M. FREY
HECTOR BALDERAS
Attorney General
State of Maine
Attorney General
State of New Mexico
6 State House Station
Augusta, ME 04333
P.O. Drawer 1508
Santa Fe, NM 87504
32
JOSHUA H. STEIN
MARK R. HERRING
Attorney General
State of North Carolina
Attorney General
Commonwealth of Virginia
114 W. Edenton St.
Raleigh, NC 27603
202 North 9th St.
Richmond, VA 23219
ELLEN F. ROSENBLUM
Attorney General
State of Oregon
1162 Court St. N.E.
Salem, OR 97301
ROBERT W. FERGUSON
Attorney General
State of Washington
800 Fifth Ave., Ste. 2000
Seattle, WA 98104
THOMAS J. DONOVAN, JR.
KARL A. RACINE
Attorney General
State of Vermont
Attorney General
District of Columbia
109 State St.
Montpelier, VT 05609
Suite 630 South
441 4th St., NW
Washington, DC 20001
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