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

No. 19-1189

In the Supreme Court of the United States

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

v.

MAYOR AND CITY COUNCIL OF BALTIMORE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

PETER D. KEISLER

C. FREDERICK BECKNER III

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

THEODORE J. BOUTROUS, JR.

THOMAS G. HUNGAR

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut

Avenue, N.W.

Washington, DC 20036

DAVID C. FREDERICK

BRENDAN J. CRIMMINS

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

KANNON K. SHANMUGAM

Counsel of Record

WILLIAM T. MARKS

TANYA S. MANNO

E. GARRETT WEST

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

ADAM P. SAVITT

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

(additional counsel on signature page)

TABLE OF CONTENTS

Page

A. A court of appeals may review any ground

for removal encompassed in a remand

order where the defendant premised

removal in part on the federal-officer

or civil-rights removal statutes ............................................. 3

1. The plain text of 28 U.S.C. 1447(d) permits

appellate review of any ground for removal ................. 3

2. The plain-text interpretation of Section 1447(d)

is supported by precedent from this Court

and the courts of appeals .............................................. 10

3. The plain-text interpretation of Section 1447(d)

serves the provision’s purposes .................................... 14

B. The Court should reverse the judgment below................. 16

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 532 U.S. 275 (2001)........................ 9

American Electric Power Co. v. Connecticut,

564 U.S. 410 (2011) .......................................................... 19

Andrus v. Glover Construction Co.,

446 U.S. 608 (1980) ............................................................ 4

Arthur Andersen LLP v. Carlisle,

556 U.S. 624 (2009) ...................................................... 8, 16

Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................ 13

BMW of North America, Inc. v. Gore,

517 U.S. 559 (1996) .......................................................... 19

Boyle v. United Technologies Corp.,

487 U.S. 500 (1988) .......................................................... 19

Bristol-Myers Squibb Co. v. Superior Court,

137 S. Ct. 1773 (2017) ...................................................... 17

Budinich v. Becton Dickinson & Co.,

486 U.S. 196 (1988) ............................................................ 5

(I)

II

Page

Cases—continued:

Carlsbad Technology, Inc. v. HIF Bio, Inc.,

556 U.S. 635 (2009) ............................................................ 6

Caterpillar Inc. v. Williams, 482 U.S. 386 (1987) ............. 20

City of New York v. BP p.l.c.,

325 F. Supp. 3d 466 (S.D.N.Y. 2018),

appeal pending, No. 18-2188 (2d Cir.) ........................... 19

City of Oakland v. BP p.l.c.,

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

petition for cert. filed (Jan. 8, 2021) .............................. 17

Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974) .......... 13

Food Marketing Institute v. Argus Leader Media,

139 S. Ct. 2356 (2019) ........................................................ 3

Forest Grove School District v. T.A.,

557 U.S. 230 (2009) ............................................................ 9

Fourth Estate Public Benefit Corp.

v. Wall-Street.com, LLC, 139 S. Ct. 881 (2019) .............. 3

Franchise Tax Board v. Construction Laborers

Vacation Trust, 463 U.S. 1 (1983) ................................. 21

Goodyear Atomic Corp. v. Miller, 486 U.S. 174 (1988) .... 10

Henry Schein, Inc. v. Archer & White Sales, Inc.,

139 S. Ct. 524 (2019) ........................................................ 16

Horne v. Department of Agriculture,

135 S. Ct. 2419 (2015) ...................................................... 17

Jama v. Immigration & Customs Enforcement,

543 U.S. 335 (2005) .......................................................... 10

Kakarala v. Wells Fargo Bank, N.A.,

136 S. Ct. 1153 (2016) ........................................................ 6

Lightfoot v. Cendant Mortgage Corp.,

137 S. Ct. 553 (2017) ........................................................ 10

Maracich v. Spears, 570 U.S. 48 (2013) ............................... 4

McCoy v. Louisiana, 138 S. Ct. 1500 (2018)...................... 17

McKennon v. Nashville Banner Publishing Co.,

513 U.S. 352 (1995) .......................................................... 16

Microsoft Corp. v. i4i Limited Partnership,

564 U.S. 91 (2011) .............................................................. 9

III

Page

Cases—continued:

Milwaukee v. Illinois, 451 U.S. 304 (1981) ........................ 20

Mohawk Industries, Inc. v. Carpenter,

558 U.S. 100 (2009) .......................................................... 13

Moore v. Permanente Medical Group, Inc.,

981 F.2d 443 (9th Cir. 1992) ............................................. 5

Murdock v. Memphis, 87 U.S. (20 Wall.) 590 (1875) ........ 12

Nichols v. United States, 136 S. Ct. 1113 (2016) ................. 4

Ortiz v. Jordan, 562 U.S. 180 (2011)................................... 10

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542 (2010)..... 17

Pereira v. Sessions, 138 S. Ct. 2105 (2018) .......................... 7

Piper v. Chris-Craft Industries, Inc.,

430 U.S. 1 (1977) ........................................................ 17, 18

Rivet v. Regions Bank of Louisiana,

522 U.S. 470 (1998) .......................................................... 21

Texas Department of Housing & Community

Affairs v. Inclusive Communities Project, Inc.,

135 S. Ct. 2507 (2015) ........................................................ 9

Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 (1981) .......................................................... 20

Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976) ............................................................ 6

United States v. Keitel, 211 U.S. 370 (1908) ................ 13, 14

United States v. Sisson, 399 U.S. 267 (1970) ..................... 14

United States v. Standard Oil Co.,

332 U.S. 301 (1947) .................................................... 19, 20

Wilkie v. Robbins, 551 U.S. 537 (2007) .............................. 13

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

516 U.S. 199 (1996) .......................................................... 11

Constitution and statutes:

U.S. Const. Amend. VI ........................................................ 17

Act of Feb. 5, 1867, ch. 28, § 2, 14 Stat. 386 ....................... 12

Act of Mar. 3, 1887, ch. 373, § 2, 24 Stat. 553 ....................... 6

Clean Air Act, 42 U.S.C. 7401-7671q ............................ 19, 20

Criminal Appeals Act, Pub. L. No. 59-223,

34 Stat. 1246 (1907) ................................................... 13, 14

IV

Page

Statutes—continued:

IDEA Amendments of 1997, Pub. L. No. 105-17,

§ 101, 111 Stat. 37 .............................................................. 9

Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 86 ..................... 12

Omnibus Crime Control Act of 1970,

Pub. L. No. 91-644, § 14, 84 Stat. 1890 .......................... 13

Removal Clarification Act of 2011,

Pub. L. No. 112-51, § 2(d), 125 Stat. 546 ......................... 9

9 U.S.C. 3................................................................................. 8

9 U.S.C. 16............................................................................... 8

28 U.S.C. 1257 ....................................................................... 12

28 U.S.C. 1291 ................................................................... 3, 13

28 U.S.C. 1292(b) .................................................................. 11

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

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

28 U.S.C. 1446(a) .................................................................... 7

28 U.S.C. 1446(d) .................................................................... 7

28 U.S.C. 1447 ......................................................................... 7

28 U.S.C. 1447(c) .......................................................... 5, 6, 16

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

28 U.S.C. 2106 ......................................................................... 8

Miscellaneous:

Black’s Law Dictionary (1st ed. 1891)................................. 6

Black’s Law Dictionary (4th ed. 1951) ................................ 7

Black’s Law Dictionary (11th ed. 2019) ...................... 6, 7, 8

Jonathan F. Mitchell, Reconsidering ‘Murdock’:

State-Law Reversals As Constitutional

Avoidance, 77 U. Chi. L. Rev. 1335 (2010) ................... 12

Antonin Scalia & Bryan A. Garner,

Reading Law (2012) .......................................................... 4

Webster’s Third New International

Dictionary (1961) .............................................................. 7

Charles Alan Wright et al., Federal Practice

and Procedure (2d ed. 1992) .................................... 13, 16

In the Supreme Court of the United States

No. 19-1189

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

v.

MAYOR AND CITY COUNCIL OF BALTIMORE

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

The plain language of 28 U.S.C. 1447(d) authorizes appellate review of all of a removing defendant’s asserted

grounds for removal where one of the grounds was the

federal-officer or civil-rights removal statute. Section

1447(d) permits review of the “order remanding the case,”

and a remand “order” necessarily disposes of all of the

grounds for removal asserted in the notice of removal. An

appeal of such an order thus necessarily entails review of

all of the defendant’s grounds for removal.

Try as it might, respondent cannot overcome the plain

statutory language. Respondent makes various appeals

to statutory “context” and “structure,” but its argument

really rests on what it perceives to be the overall purpose

of Section 1447(d). Respondent then attempts to make a

(1)

2

strained textual argument by positing that a case is removed “pursuant to” the federal-officer or civil-rights removal statutes only when the federal-officer or civil-rights

ground for removal turns out to be meritorious. But that

alternative interpretation is also flawed, and no court has

adopted it. Respondent’s resort to congressional ratification fares no better, for reasons petitioners have already

explained.

Respondent next turns to the case law, but the cases

respondent cites do not move the needle. Tellingly, the

only examples that offer respondent any modicum of support come from the bygone era when statutory text played

second fiddle to perceived statutory purpose. In any

event, the plain-text interpretation of Section 1447(d)

fully comports with the provision’s purposes. When all is

said and done, the Court should read Section 1447(d) to

mean what it says: a court of appeals has jurisdiction to

review all of the asserted grounds for removal when one

of those grounds was the federal-officer or civil-rights removal statute.

After resolving that question, the Court should exercise its discretion to consider whether respondent’s claims

necessarily arise under federal common law and are thus

removable. That additional ground for removal is relevant to determining the appropriate disposition after deciding the question presented, and its resolution here is

warranted in light of the sheer number of climate-change

cases in which that ground for removal is currently being

litigated—including several in which petitions for writs of

certiorari have recently been filed in this Court. In line

with its longstanding precedents, the Court should hold

that claims based on the effects of global climate change

arise under federal law, not state law. The judgment of

the court of appeals should therefore be reversed.

3

A. A Court Of Appeals May Review Any Ground For Removal Encompassed In A Remand Order Where The

Defendant Premised Removal In Part On The FederalOfficer Or Civil-Rights Removal Statutes

1. The Plain Text Of 28 U.S.C. 1447(d) Permits Review Of Any Ground For Removal

a. Respondent contends (Br. 14-19) that the phrase

“order remanding a case” in the second clause of Section

1447(d) is best read to mean the district court’s reasoning

rejecting the federal-officer or civil-rights ground for removal. Yet respondent does not dispute that a remand

“order” necessarily resolves all of the asserted grounds

for removal, or that appellate review of such an order

would ordinarily extend to all of those grounds. Indeed,

respondent does not even dispute that its reading requires the phrase “order remanding a case” to have different meanings in the first and second clauses of Section

1447(d). Respondent nevertheless argues that statutory

“context” and “structure” mandate such an “improbable

construction.” Fourth Estate Public Benefit Corp. v.

Wall-Street.com, LLC, 139 S. Ct. 881, 889 (2019) (citation

omitted). Respondent is mistaken.

i. Respondent contends (Br. 15, 17) that the second

clause of Section 1447(d) should be construed narrowly

because it is an “exception” to the first clause, which generally prohibits appellate review of remand orders. As a

preliminary matter, the first clause could itself be characterized as an exception to the rule that a remand order

would ordinarily be appealable under 28 U.S.C. 1291. See

U.S. Br. 16. But regardless of which clause is the “exception,” courts “normally have no license to give [statutory]

exemption[s] anything but a fair reading.” Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2366

(2019) (internal quotation marks and citation omitted).

The fairest reading here is the one mandated by the plain

4

text: that the second clause of Section 1447(d) permits review of the entire remand “order.”

To be sure, courts should not “impl[y]” “additional exceptions” to a “general” statutory provision “[w]here Congress explicitly enumerates certain exceptions.” Andrus

v. Glover Construction Co., 446 U.S. 608, 616-617 (1980).

But the question here is not whether to imply additional

exceptions; it is how to construe the “exception” that Congress “explicitly enumerate[d].” Id. at 616. Nor does the

plain-text reading of the second clause of Section 1447(d)

“undermine” the first clause in a “substantial way.” Maracich v. Spears, 570 U.S. 48, 60 (2013). It merely permits

normal appellate review in the narrow class of cases that

Congress has indisputably exempted from the prohibition

on appellate review of other remand orders.

ii. Respondent further argues that its interpretation

is preferable because the “primary operation” of Section

1447(d) “as a whole” is to limit appellate review of remand

orders. Br. 14, 16. That is not a “proper use” of the wholetext canon of construction. Antonin Scalia & Bryan A.

Garner, Reading Law § 24, at 168 (2012). Instead, that

argument rests on what respondent perceives to be Section 1447(d)’s overarching purpose. But “even the most

formidable argument” based on statutory purpose cannot

“overcome” clear statutory language. Nichols v. United

States, 136 S. Ct. 1113, 1119 (2016). In any event, the

plain-text interpretation is wholly consistent with the apparent purposes of Section 1447(d): namely, to reduce the

volume of appeals and to avoid delay in remanded cases

while protecting the federal interests at issue in federalofficer and civil-rights cases. See Pet. Br. 26-31.

iii. Respondent next contends (Br. 17-18) that the

plain-text interpretation of the phrase “order remanding

a case” would cause the first clause of Section 1447(d) to

preclude appellate review of a fee award under Section

5

1447(c). That does not necessarily follow. Review of such

an award may not constitute impermissible “review[]” of

the remand order, 28 U.S.C. 1447(d), because the fee

award is collateral to the merits of the order. See, e.g.,

Moore v. Permanente Medical Group, Inc., 981 F.2d 443,

447 (9th Cir. 1992). That interpretation would be consistent with the broader treatment of fee awards as discrete from merits proceedings. See, e.g., Budinich v. Becton Dickinson & Co., 486 U.S. 196, 200 (1988). Even if the

plain-text interpretation were to render Section 1447(c)

fee awards unreviewable, however, that interpretation is

vastly preferable to respondent’s, which would unquestionably give the phrase “order remanding a case” different meanings in a single statutory provision.

iv. Invoking general “federalism principles,” respondent argues that “respect for the autonomy and authority

of state courts” requires a narrower construction of Section 1447(d). Br. 19. But Congress crossed the federalism

bridge when it made cases removable from state to federal court; the division of labor among Article III courts

in determining removability does not significantly implicate federalism concerns. And because a remand order is

not automatically stayed, an appeal will not necessarily

delay proceedings in state court. Cf. N.Y. Br. 10.

The primary effect of respondent’s interpretation is

that cases erroneously remanded would remain in state

court. But in those cases, Congress has already determined that a federal forum is appropriate. Permitting appellate review in those cases thus preserves the federalstate balance that Congress initially struck in authorizing

removal.

v. Finally on this score, respondent contends that the

phrase “order remanding a case” in the second clause of

Section 1447(d) must refer to the “specific reasons for the

remand” because the Court has construed the first clause

6

as limited to remand orders “based on a ground specified

in [Section] 1447(c).” Br. 20 (citation omitted). While not

citing the case by name, respondent is describing the

holding of Thermtron Products, Inc. v. Hermansdorfer,

423 U.S. 336 (1976)—a decision criticized by several Justices. See, e.g., Kakarala v. Wells Fargo Bank, N.A., 136

S. Ct. 1153, 1153 (2016) (Thomas, J., dissenting from the

denial of certiorari); Carlsbad Technology, Inc. v. HIF

Bio, Inc., 556 U.S. 635, 642 (2009) (Stevens, J., concurring); see ibid. (Scalia, J., concurring). In any event,

Thermtron provides respondent with little assistance; respondent cannot prevail unless the phrase “order remanding a case” has a different, narrower meaning in the

second clause of Section 1447(d).

b. Respondent next pivots (Br. 23-31) to an alternative interpretation of Section 1447(d) that it has never before articulated (at least in any detail, see Br. 23-24 n.3).

Under that interpretation, a case is not “removed pursuant to” the federal-officer or civil-rights removal statutes

unless jurisdiction is actually present under one of those

statutes. That novel interpretation—which no court of appeals has adopted—is equally flawed.

The second clause of Section 1447(d) provides that “an

order remanding a case to the [s]tate court from which it

was removed pursuant to [28 U.S.C. 1442 or 1443] shall be

reviewable by appeal or otherwise.” The preposition

“pursuant to” modifies the verb phrase “was removed.”

And to “remove” a case is to “transfer” it from state to

federal court. See Black’s Law Dictionary 1550 (11th ed.

2019); Black’s Law Dictionary 1021 (1st ed. 1891); Act of

Mar. 3, 1887, ch. 373, § 2, 24 Stat. 553 (using the word “removed” in the predecessor to Section 1447(d)).

When a defendant’s notice of removal asserts that a

case is removable based on the elements set forth in either

the federal-officer or the civil-rights removal statute, the

7

defendant has “removed” the case “pursuant to” that statute. The statutory text makes clear that the act of removal is complete before any remand “order” is issued.

Section 1447(d) refers to removal in the past tense (“was

removed”). Section 1447 is headed “[p]rocedures after removal” (emphasis added). Section 1446(a) requires the

notice of removal to provide only a “short and plain statement of the grounds for removal.” And Section 1446(d)

makes clear that the removal becomes “effect[ive]” as

soon as the defendant notifies the state court of the filing

of the notice of removal.

Because the act of removal occurs before any adjudication of the “merits” of the removing defendant’s jurisdictional arguments, it makes little sense to construe the

phrase “was removed pursuant to” as requiring the removal to be meritorious. Whether that ground for removal ultimately proves to be a valid basis for federal jurisdiction does not affect the removal; it affects whether

the case will be remanded to state court. To say that a

case is “removed pursuant to” the federal-officer or civilrights removal statutes is merely to say that the defendant asserted one of those statutes as the basis for removal

in its notice of removal.

That interpretation is entirely consistent with the ordinary meaning of the preposition “pursuant to”—which

is variously defined as “in accordance with or by reason

of,” Black’s Law Dictionary 1401 (4th ed. 1951); “according [to],” Webster’s Third New International Dictionary

1848 (1961); “as authorized by,” Black’s Law Dictionary

1493 (11th ed. 2019); or—as respondent suggests—simply

legalese for “under,” ibid.; see Resp. Br. 26-27 (discussing

Pereira v. Sessions, 138 S. Ct. 2105 (2018)). It is perfectly

natural to say, “pursuant to Rule 56, the plaintiff moves

for summary judgment,” Black’s Law Dictionary 1493

8

(11th ed. 2019), even if the motion is denied on the merits.

So too here.

This Court’s decision in Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009), proves the point. At issue there

was 9 U.S.C. 16, which permits appeal of an order “refusing a stay * * * under [S]ection 3” of the Federal Arbitration Act. The Court rejected the argument that a stay

motion was not “under” Section 3 if it lacked merit; the

Court instead held that Section 16 “unambiguously makes

the underlying merits irrelevant,” such that “even utter

frivolousness of the underlying request” for a stay would

not preclude appellate jurisdiction. 556 U.S. at 628-629.

Respondent’s interpretation presents yet another

problem. Under respondent’s view, in every case and as

a matter of law, appellate jurisdiction under Section

1447(d) is coextensive with the merits of the decision being reviewed—namely, federal-officer or civil-rights removal. That is, if the ground for removal is meritorious,

the court of appeals would have jurisdiction and must reverse; if the ground lacks merit, the court of appeals

would lack jurisdiction and must dismiss the appeal. The

court of appeals would therefore lack the ability to affirm

the remand order (or reverse on an alternative ground,

see Pet Br. 31; U.S. Br. 25)—a power ordinarily incidental

to appellate review. Cf. 28 U.S.C. 2106.

If Congress had actually intended to achieve that bizarre result, it would have provided not for the remand

order to be “reviewable,” but rather for it to be “reversed,” since that would be the only possible outcome under respondent’s improbable reading. Unsurprisingly, no

court of appeals has adopted respondent’s interpretation;

in fact, all of the cases on respondent’s side of the circuit

conflict affirmed remand orders rejecting the federal-officer or civil-rights ground. See Resp. Br. 32-33.

9

c. Respondent’s final interpretive argument (Br. 3135) is that Congress ratified its interpretation of Section

1447(d) when it enacted the Removal Clarification Act in

2011. In that act, however, Congress merely added the

words “1442 or” to Section 1447(d); it did not affirmatively

reenact the entire provision. See Pub. L. No. 112-51,

§ 2(d), 125 Stat. 546. As the Court has explained, Congress’s “failure to act” when making “only isolated

amendments” to a statute does not demonstrate “affirmative congressional approval of [a prior judicial] interpretation.” Alexander v. Sandoval, 532 U.S. 275, 292 (2001)

(internal quotation marks and citation omitted).

The cases respondent cites (Br. 32, 35) do not prove

otherwise. In Forest Grove School District v. T.A., 557

U.S. 230, 244 n.11 (2009), Congress had reenacted the relevant statutory language in full. See IDEA Amendments

of 1997, Pub. L. No. 105-17, § 101, 111 Stat. 92. In Texas

Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2519-2520

(2015), the Court focused on legislative history specifically

showing that Congress had considered the relevant judicial precedent when it amended the statute at issue. And

in Microsoft Corp. v. i4i Limited Partnership, 564 U.S.

91, 113 (2011), the Court declined to weigh competing policy arguments where Congress had repeatedly amended

the relevant statute over the course of decades but had

“allowed” the Federal Circuit’s “correct” interpretation to

remain in effect. None of those cases is even remotely on

point here.

Respondent contends (Br. 33-34) that, for purposes of

its ratification argument, this Court’s decisions interpreting similar statutes (Pet. Br. 20-26) cannot overcome the

court of appeals decisions interpreting this one. But Congress is “generally presume[d]” to be “knowledgeable

about existing law pertinent to the legislation it enacts,”

10

not merely prior interpretations of the particular statute

being amended. Goodyear Atomic Corp. v. Miller, 486

U.S. 174, 184-185 (1988) (emphasis added). And contrary

to respondent’s suggestion (Br. 34), the Court has indicated that decisions with only conclusory reasoning provide little support for an inference of congressional ratification. See, e.g., Lightfoot v. Cendant Mortgage Corp.,

137 S. Ct. 553, 563 (2017); Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 351 (2005). Given the

concededly conclusory reasoning in the cases on which respondent’s ratification argument relies, the argument for

congressional ratification here is exceedingly weak.

2. The Plain-Text Interpretation Of Section 1447(d) Is

Supported By Precedent From This Court And The

Courts Of Appeals

In a phalanx of cases, this Court and the courts of appeals have interpreted statutes permitting appellate review of an “order” to authorize review of the entire “order.” Respondent argues that this Court’s cases are distinguishable (ignoring the court of appeals cases altogether), see Br. 21-23, and that other of the Court’s cases

support its interpretation, see Br. 11-14. Respondent errs

on both scores.

a. Respondent contends that the cases from this

Court cited by petitioners are distinguishable because the

statutes at issue authorize interlocutory review of issues

that would “eventually be reviewable on appeal from final

judgment,” whereas petitioner’s interpretation of Section

1447(d) would “permit review of issues that are generally

unreviewable.” Br. 22-23. But interlocutory review is

permitted of some orders that cannot be reviewed later

(for example, where a district court denies summary judgment). See Ortiz v. Jordan, 562 U.S. 180, 183-184 (2011).

And appellate courts routinely review issues of subjectmatter jurisdiction on appeals from final judgments (for

11

example, where a district court denies a motion to remand

and the defendant subsequently prevails on the merits).

See U.S. Br. 21-22. There is no reason to believe that Congress wanted to insulate those same issues from review in

situations where the remand order is appealable. It

simply does not follow from the fact that Congress chose

to permit review of certain otherwise unreviewable orders

that Congress simultaneously intended to preclude review of particular issues in those orders.

Respondent makes two additional attempts to distinguish this Court’s decision in Yamaha Motor Corp.,

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

notes that, in 28 U.S.C. 1292(b), Congress paired the word

“order” with the verb “involves,” showing that the reviewable issues on appeal must be broader than the certified

“controlling question of law.” See Br. 21-22. Second, respondent observes that a court of appeals has discretion

under Section 1292(b) to deny review of a certified order,

whereas a court of appeals has no similar discretion under

Section 1447(d). See Br. 22. The problem for respondent,

however, is that the Court did not rely on either of those

features in Yamaha; instead, the Court based its decision

on Congress’s use of the word “order,” which signified

that appellate review extends to “any issues fairly included” in the order. 516 U.S. at 205. And of course, neither of those asserted distinctions applies to the other

cases from this Court that petitioners cited. See Pet. Br.

22-23.

b. To argue that appellate review of an “order” does

not necessarily entail review of the entire order, respondent points to this Court’s interpretation of three statutes

that govern appellate jurisdiction using the terms “judgment” and “decision.” See Br. 11-14. Respondent’s examples are inapposite.

12

i. Respondent first invokes this Court’s interpretation of its own jurisdiction under 28 U.S.C. 1257, which

authorizes review of a state-court judgment that involves

issues of federal law. Congress first authorized such review in the Judiciary Act of 1789, but the relevant provision allowed the Court to reverse only if the state court

erroneously decided the federal question. See ch. 20, § 25,

1 Stat. 86-87. In 1867, Congress enacted a similar provision but omitted that limiting language. See Act of Feb.

5, 1867, ch. 28, § 2, 14 Stat. 386-387. Despite the omission,

a divided Court held in Murdock v. Memphis, 87 U.S. (20

Wall.) 590 (1875), that Congress had not intended to authorize the Court to decide questions of state law.

The decision in Murdock is not generalizable to other

jurisdictional statutes, because it was driven by federalism concerns unique to the context of Section 1257 (as opposed to merely the statutory text and history, which

pointed in the opposite direction, see, e.g., Jonathan F.

Mitchell, Reconsidering ‘Murdock’: State-Law Reversals

As Constitutional Avoidance, 77 U. Chi. L. Rev. 1335,

1351-1352 (2010)). In particular, the Court emphasized

the “fundamental principle” that “the appellate power of

this [C]ourt over the courts of the States” was “limited to

the correction of errors relating solely to Federal law.” 87

U.S. (20 Wall.) at 630. The Court explained that, if Congress had intended to deviate from that principle when it

amended the Judiciary Act of 1789 (and thereby to alter

the relationship between the federal and state courts), “it

is reasonably to be expected that Congress would use

plain, unmistakable language in giving expression to such

intention.” Id. at 619. Indeed, the Court left open the

question whether Congress would even have the constitutional power to do so. See id. at 633. That unique context

renders Murdock of limited utility here, where such concerns are not implicated. See p. 5, supra.

13

ii. Respondent next invokes the collateral-order doctrine, which stems from a “practical” construction of the

phrase “final decision” in 28 U.S.C. 1291. See Mohawk

Industries, Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (citation omitted). If anything, the collateral-order doctrine

favors the plain-text interpretation, not respondent’s, because review under that doctrine is not limited to the particular issue that permitted the appeal. See, e.g., Ashcroft

v. Iqbal, 556 U.S. 662, 672-675 (2009); Wilkie v. Robbins,

551 U.S. 537, 549 n.4 (2007); Eisen v. Carlisle & Jacquelin,

417 U.S. 156, 172-177 & n.10 (1974). While review may not

necessarily extend to every issue in an appealable collateral order, see Resp. Br. 13, any limitations appear to be

a matter of judicial discretion rather than statutory mandate. See 15A Charles Alan Wright et al., Federal Practice & Procedure § 3911.2, at 395 (2d ed. 1992) (Wright &

Miller).

In fact, respondent’s reliance on Section 1291 affirmatively undermines its position. The ordinary “final judgment” rule under Section 1291 is that appellate jurisdiction extends to a district court’s entire judgment and all

issues encompassed in it. See Pet. Br. 24. If, as respondent contends, there is “no relevant distinction” between

the terms “decision” in Section 1291 and “order” in Section 1447(d), Br. 11 n.1, then review under Section 1447(d)

should logically extend to the entire remand order.

iii. Respondent’s final example is the now-repealed

Criminal Appeals Act, which permitted the government to

seek direct review in this Court of a district court’s “decision or judgment” in a criminal case addressing certain

enumerated issues. Pub. L. No. 59-223, 34 Stat. 1246

(1907); see Omnibus Crime Control Act of 1970, Pub. L.

No. 91-644, § 14, 84 Stat. 1890. Soon after its enactment,

in United States v. Keitel, 211 U.S. 370 (1908), the Court

14

interpreted the Act to permit review of only the issues

enumerated in the statute.

The decision in Keitel is of limited significance outside

its particular context. There, the Court concluded that

the Criminal Appeals Act permitted review only of the

enumerated issues because it viewed “the purpose of the

statute” as permitting review of “the subjects embraced

within the clauses of the statute” and not of “the whole

case.” 211 U.S. at 398. The Court reasoned that such a

narrow interpretation was warranted because the ability

of the government to appeal in a criminal case was “exceptional.” Id. at 399. The Court later explained that the

Act’s “background and legislative history” justified the

application of a “principle of strict construction,” because

the history “reveal[ed] a strong current of congressional

solicitude for the plight of a criminal defendant exposed to

additional expense and anxiety by a government appeal.”

United States v. Sisson, 399 U.S. 267, 291, 298 (1970).

Again, Section 1447(d) does not implicate those unusual

considerations—regardless of whether the Court’s interpretation of the Criminal Appeals Act, made at a time

when statutory text carried little weight, was defensible

as an original matter.

3. The Plain-Text Interpretation Of Section 1447(d)

Serves The Provision’s Purposes

Respondent contends (Br. 35-40) that the plain-text interpretation undermines, rather than advances, the purposes of Section 1447(d). That is incorrect.

a. Respondent asserts that there is “no basis” to believe that Congress authorized review of remand orders

for “defendants who allege, wrongly, that they are entitled to remov[al]” under the federal-officer or civil-rights

removal statutes. Br. 40. But respondent does not appear

to dispute that significant and related federal interests

15

are often present even when the argument for removal

under those statutes is ultimately unsuccessful. See Pet.

Br. 26-29; U.S. Br. 28-29; Chamber Br. 19-22.

Instead, respondent believes that, because Congress

has not authorized appellate review of remand orders in

all cases that “implicate federal concerns,” it must not

have done so in Section 1447(d). Br. 39 (internal quotation

marks omitted). But Congress is not required to pursue

a policy objective at all costs. Given the particular federal

interests implicated in cases removed on federal-officer or

civil-rights grounds, it makes good sense that Congress

would want appellate review of those cases in order to determine whether any basis for federal jurisdiction exists.

b. Respondent next contends that allowing appellate

review of an entire remand order would cost courts and

litigants “considerable time and resources.” Br. 35. But

respondent’s only support for that proposition is the

length of the briefing on respondent’s motion to remand

in this case. See Br. 36. The fact that this case involves

multiple grounds for removal is a direct result of respondent’s novel theory of liability under state law for global climate change. In a more typical case, the time to brief and

argue an additional ground for removal is likely to be insignificant—and it may even lead to a more efficient resolution of the appeal. See U.S. Br. 25.

c. In addition, respondent raises the specter of

gamesmanship. See Br. 36-39. To begin with, respondent

cannot seriously contend that petitioners’ argument for

federal-officer removal—to which the court of appeals devoted over 20 pages of analysis in its opinion, see Pet. App.

10a-30a—was frivolous and designed only to secure a

right to an appeal. See Pet. Br. 8; API Br. 6-28; Former

Joint Chiefs Br. 3-21. Nor has respondent identified a single example of a case in which a defendant has engaged in

such gamesmanship in any court subject to the plain-text

16

interpretation. See DRI Br. 20. Notably, the leading

treatise on federal jurisdiction rejected that very concern

when endorsing petitioners’ interpretation of Section

1447(d). See 15A Wright & Miller § 3914.11, at 706.

Respondent disputes that cost-shifting mechanisms

and sanctions will have a “significant deterrent effect” in

the removal context because such awards are rare and reserved for truly frivolous claims. Br. 38. That could be

said about sanctions in any context, yet this Court has repeatedly recognized the power of sanctions to deter improper conduct by litigants. See, e.g., Henry Schein, Inc.

v. Archer & White Sales, Inc., 139 S. Ct. 524, 531 (2019);

Arthur Andersen, 556 U.S. at 629; McKennon v. Nashville Banner Publishing Co., 513 U.S. 352, 363 (1995).

And the fact that respondent cites cases from every regional circuit involving fee awards under Section 1447(c)

demonstrates they are readily available as an option to deter any gamesmanship. See Br. 18.

B. The Court Should Reverse The Judgment Below

Once the Court resolves the question presented, it

should proceed to reverse the judgment below on the

ground that removal was proper because respondent’s

claims necessarily arise under federal common law.

1. While respondent does not contend that the Court

lacks the power to reach the federal-common-law ground

for removal if the Court decides the Section 1447(d) question in petitioners’ favor, it argues (Br. 41-44) that the

Court should decline to consider that ground because it is

not fairly included in the question presented and because

the court of appeals below did not decide it.

The Court has the discretion to address the federalcommon-law ground for removal, and it would be entirely

appropriate to do so here. If the Court agrees with petitioners on the question presented, whether respondent’s

17

claims necessarily arise under federal common law affects

whether reversal or vacatur is the appropriate disposition. The Court has often decided issues separate from

the question on which it granted review in order to determine the correct disposition once that question has been

resolved. For example, in McCoy v. Louisiana, 138 S. Ct.

1500 (2018), the Court resolved the Sixth Amendment

question on which it granted review and proceeded to decide whether the trial court’s error was structural in nature in order to determine whether a new trial was required on remand. See id. at 1510-1512 & n.4. The Court

did so after the petitioner raised the issue in his opening

brief and the respondent “explicitly chose not to grapple

with it.” Id. at 1511 n.4. Other cases are to the same effect. See, e.g., Bristol-Myers Squibb Co. v. Superior

Court, 137 S. Ct. 1773, 1781-1782 (2017); Horne v. Department of Agriculture, 135 S. Ct. 2419, 2431-2433 (2015);

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 557-559

(2010); Piper v. Chris-Craft Industries, Inc., 430 U.S. 1,

47 & n.34 (1977).

Respondent protests that petitioners have “smuggl[ed]” the federal-common-law ground for removal into

the case. See Br. 41. But in the petition for a writ of certiorari, petitioners plainly signaled their intention to argue that the Court should “address the remaining

grounds for removal and reverse the judgment below.”

Pet. 20. Consistent with that representation, petitioners

briefed the issue in their opening merits brief, see Pet. Br.

37-46; so too did the United States, which has agreed with

petitioners that removal is proper because climatechange-related claims necessarily arise under federal law,

see U.S. Br. 26-28; U.S. Reh’g Br. at 6-12, City of Oakland

v. BP p.l.c., 969 F.3d 895 (9th Cir. 2020) (No. 18-16663);

and respondent and its amici have responded in kind, see

18

Resp. Br. 44-46; NRDC Br. 4-23; Boulder Br. 13-28; see

also Resp. C.A. Br. 21-28.

The Court’s “[e]xercise of [its] discretion” to reach the

federal-common-law ground for removal is particularly

“called for under th[e] unusual circumstances” here.

Piper, 430 U.S. at 47 n.34. That ground for removal is currently being litigated in 19 similar climate-change cases in

federal courts across the country. See Pet. Br. 7 n.1. Indeed, since petitioners filed their opening brief in this

case, four petitions for writs of certiorari have been filed

that present the federal-common-law ground for removal

either directly or indirectly. See Suncor Energy (U.S.A.)

Inc. v. Board of County Commissioners of Boulder

County, No. 20-783 (filed Dec. 4, 2020); Chevron Corp. v.

County of San Mateo, No. 20-884 (filed Dec. 30, 2020);

Shell Oil Products Co. v. Rhode Island, No. 20-900 (filed

Dec. 30, 2020); Chevron Corp. v. City of Oakland (filed

Jan. 8, 2021). Respondent does not seriously dispute that

there would be significant efficiency gains, for the judiciary and the parties alike, in resolving that ground for removal now, rather than after months or even years of

pointless litigation in both the federal and state courts.

2. This Court’s longstanding precedents dictate the

common-sense conclusion that federal law, not state law,

governs claims alleging injury caused by global climate

change. Respondent’s contrary arguments are unpersuasive.

a. Respondent first contends that its claims do not

arise under federal law because “ ‘[i]nterstate pollution’ is

not the wrongful conduct challenged” by the common-law

claims alleged. Br. 44. Yet respondent’s alleged harms—

the effects of global climate change—all flow from interstate and international greenhouse-gas emissions. See

J.A. 25, 58-87, 145-155. Because respondent’s claims are

“ultimately based on the ‘transboundary’ emission of

19

greenhouse gases,” the structure of our constitutional

system requires federal law to govern those claims. City

of New York v. BP p.l.c., 325 F. Supp. 3d 466, 472

(S.D.N.Y. 2018), appeal pending, No. 18-2188 (2d Cir.); see

American Electric Power Co. v. Connecticut, 564 U.S.

410, 422 (2011).

b. Respondent next contends that the Court would

need to “create a new category of federal common law” in

order to permit removal on that basis. Br. 45. Not so. As

petitioners have already explained (Br. 40), this Court has

applied uniform federal rules of decision to common-law

claims seeking redress for interstate air and water pollution for more than a century. That is the same category

of federal common law that governs respondent’s claims

here.

To be sure, this case is being brought by a local government, not a State. But federal common law can apply

even in suits in which neither the federal government nor

a State is a party. See, e.g., Boyle v. United Technologies

Corp., 487 U.S. 500, 511 (1988). Regardless of the identity

of the parties, our constitutional structure does not permit

one State (much less one municipality) to “impos[e] its

regulatory policies on the entire Nation.” BMW of North

America, Inc. v. Gore, 517 U.S. 559, 585 (1996).

c. Respondent also argues that, even if the “federal

common law of interstate emissions” governs its claims,

the case is not removable because the Clean Air Act has

“displaced” that law. Br. 45. That argument conflates the

jurisdictional question (whether a claim arises under federal law) with the merits question (whether the claimant

has a valid cause of action under federal law)—questions

this Court has made clear are distinct. See, e.g., American Electric Power, 564 U.S. at 422.

The Court’s decision in United States v. Standard Oil

Co., 332 U.S. 301 (1947), demonstrates the appropriate

20

two-step analysis. There, the Court first held that federal

law, not state law, controlled the “essentially federal”

question of whether the government could recover for the

hospital costs and lost services of a soldier hurt in a traffic

accident. Id. at 307. But then, emphasizing its “modest”

capacity to “create new common-law liabilities,” the Court

proceeded to hold that establishing a cause of action was

a task for Congress. Id. at 313, 316. The claim in Standard Oil thus arose under federal law even though no federal cause of action existed. The same is true here: respondent’s claims arise under federal law even if federal

law does not ultimately provide a remedy.

It is also incorrect to say that, if a federal statute displaces any remedy available under federal common law,

state law fills the void. In cases that involve “interstate

and international disputes implicating the conflicting

rights of States or our relations with foreign nations,” only

federal law can apply, because “our federal system does

not permit the controversy to be resolved under state law”

at all. Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630, 641 (1981). There is therefore no state law

for the Clean Air Act (or any other federal statute) to resurrect. See U.S. Br. 27.

d. Finally, respondent invokes the well-pleaded complaint rule. See Br. 45-46. But in doing so, respondent

misunderstands the relationship between state law and

federal common law. To be sure, plaintiffs can usually

avoid removal by pleading only state-law claims, even if

federal claims are available. See Caterpillar Inc. v. Williams, 482 U.S. 386, 392 (1987). But in an area that the

Constitution instructs is governed exclusively by federal

law, state law cannot apply: “if federal common law exists, it is because state law cannot be used.” Milwaukee

v. Illinois, 451 U.S. 304, 313 n.7 (1981); see U.S. Br. 27.

Put another way, such a plaintiff cannot choose between

21

state and federal law, because no state law exists. See

p. 20, supra. Any claims by the plaintiff, even if “nominally couched as state-law claims,” are “inherently and

necessarily federal in nature.” U.S. Br. 26.

Respondent nevertheless argues (Br. 46) that the artful-pleading doctrine applies only in complete-preemption

cases. But the Court has explained more generally that

an “independent corollary” of the well-pleaded complaint

rule is that a plaintiff “may not defeat removal by omitting

to plead necessary federal questions in a complaint.”

Franchise Tax Board v. Construction Laborers Vacation

Trust, 463 U.S. 1, 22 (1983). A federal question is “necessary” not only where “federal law completely preempts a

plaintiff’s state-law claim,” Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 475 (1998), but also where the constitutional structure mandates the application of federal

law. See U.S. Br. 28.

The court of appeals erred by concluding that it lacked

jurisdiction under 28 U.S.C. 1447(d) to decide whether

this case is removable because respondent’s claims necessarily arise under federal law. Because this case was so

clearly removable on that basis, the Court should reverse

the judgment outright and hold that the case should proceed in federal court.

22

*

*

*

*

*

The judgment of the court of appeals should be reversed. In the alternative, the judgment should be vacated and the case remanded for further proceedings.

Respectfully submitted.

PETER D. KEISLER

C. FREDERICK BECKNER III

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, DC 20005

THEODORE J. BOUTROUS, JR.

THOMAS G. HUNGAR

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut Avenue,

N.W.

Washington, DC 20036

Counsel for Petitioners

Chevron Corporation and

Chevron U.S.A., Inc.

DAVID C. FREDERICK

BRENDAN J. CRIMMINS

DANIEL S. SEVERSON

KELLOGG, HANSEN, TODD,

FIGEL & FREDERICK, P.L.L.C.

1615 M Street, N.W.,

Suite 400

Washington, DC 20036

Counsel for Petitioners

Shell Oil Company and

Royal Dutch Shell plc

JANUARY 2021

KANNON K. SHANMUGAM

WILLIAM T. MARKS

TANYA S. MANNO

E. GARRETT WEST

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20006

(202) 223-7300

kshanmugam@paulweiss.com

THEODORE V. WELLS, JR.

DANIEL J. TOAL

ADAM P. SAVITT

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019

Counsel for Petitioners

Exxon Mobil Corporation and

ExxonMobil Oil Corporation

NANCY G. MILBURN

ARNOLD & PORTER

KAYE SCHOLER LLP

250 West 55th Street

New York, NY 10019

MATTHEW T. HEARTNEY

JOHN D. LOMBARDO

ARNOLD & PORTER

KAYE SCHOLER LLP

777 South Figueroa Street,

44th Floor

Los Angeles, CA 90017

JOHN B. ISBISTER

JAIME W. LUSE

TYDINGS & ROSENBERG LLP

One East Pratt Street,

Suite 901

Baltimore, MD 21202

Counsel for Petitioners

BP p.l.c., BP America Inc.,

and BP Products North

America Inc.

KATHLEEN TAYLOR SOOY

TRACY A. ROMAN

CROWELL & MORING LLP

1001 Pennsylvania

Avenue, N.W.

Washington, DC 20004

HONOR R. COSTELLO

CROWELL & MORING LLP

590 Madison Avenue

New York, NY 10022

Counsel for Petitioners

CNX Resources Corporation,

CONSOL Energy Inc., and

CONSOL Marine Terminals

LLC

NATHAN P. EIMER

PAMELA R. HANEBUTT

LISA S. MEYER

EIMER STAHL LLP

224 South Michigan

Avenue, Suite 1100

Chicago, IL 60604

ROBERT E. DUNN

EIMER STAHL LLP

99 South Almaden

Boulevard, Suite 662

San Jose, CA 95113

RYAN J. WALSH

EIMER STAHL LLP

10 East Doty Street,

Suite 800

Madison, WI 53707

Counsel for Petitioner

CITGO Petroleum

Corporation

MICHELLE N. LIPKOWITZ

THOMAS K. PREVAS

SAUL EWING

ARNSTEIN & LEHR LLP

500 East Pratt Street,

Suite 900

Baltimore, MD 21202

Counsel for Petitioners

Crown Central LLC and

Crown Central New Holdings

LLC

SEAN C. GRIMSLEY

JAMESON R. JONES

DANIEL R. BRODY

BARTLIT BECK LLP

1801 Wewatta Street,

Suite 1200

Denver, CO 80202

Counsel for Petitioners

ConocoPhillips and

ConocoPhillips Company

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

MATTHEW J. PETERS

LATHAM & WATKINS LLP

555 11th Street, N.W.,

Suite 1000

Washington, DC 20004

Counsel for Petitioners

ConocoPhillips,

ConocoPhillips Company,

and Phillips 66

MARTHA THOMSEN

MEGAN BERGE

BAKER BOTTS L.L.P.

700 K Street, N.W.

Washington, DC 20001

SCOTT JANOE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77022

Counsel for Petitioner

Hess Corporation

SHANNON S. BROOME

HUNTON ANDREWS

KURTH LLP

50 California Street

San Francisco, CA 94111

SHAWN PATRICK REGAN

HUNTON ANDREWS

KURTH LLP

200 Park Avenue

New York, NY 10166

ANN MARIE MORTIMER

HUNTON ANDREWS

KURTH LLP

550 South Hope Street,

Suite 2000

Los Angeles, CA 90071

Counsel for Petitioners

Marathon Petroleum Corp.

and Speedway LLC