Petition for Writ of Certiorari — Chevron Corporation, et al., Petitioners v. San Mateo County, California, et al.

No. __________

IN THE

Supreme Court of the United States

CHEVRON CORP., ET AL.,

Petitioners,

v.

COUNTY OF SAN MATEO, ET AL.,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

THOMAS G. HUNGAR

JOSHUA S. LIPSHUTZ

LOCHLAN F. SHELFER

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

ANDREA NEUMAN

GIBSON, DUNN

& CRUTCHER LLP

200 Park Ave.

New York, NY 10166-0193

THEODORE J. BOUTROUS, JR.

Counsel of Record

WILLIAM E. THOMSON

SAMUEL ECKMAN

GIBSON, DUNN

& CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

Counsel for Petitioners

[Additional counsel listed on signature page]

QUESTION PRESENTED

Whether 28 U.S.C. § 1447(d) authorizes appellate

review of any issue encompassed in a remand order

when removal was premised in part on the federal-officer removal statute, 28 U.S.C. § 1442, or the civilrights removal statute, 28 U.S.C. § 1443.

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioners are Anadarko Petroleum Corporation;

Apache Corporation; BP P.L.C.; BP America Inc.;

Chevron Corporation; Chevron U.S.A. Inc.; CITGO

Petroleum Corporation; ConocoPhillips; ConocoPhillips Company; Devon Energy Corporation; Devon Energy Production Company, L.P.; Eni Oil & Gas Inc.;

Exxon Mobil Corporation; Hess Corporation; Marathon Oil Company; Marathon Oil Corporation; Marathon Petroleum Corporation; Occidental Chemical

Corporation; Occidental Petroleum Corporation;

Ovintiv Canada ULC (fka “Encana Corporation”);

Phillips 66 Company; Repsol Energy North America

Corporation; Repsol Trading USA Corporation; Rio

Tinto Energy America Inc.; Rio Tinto Minerals Inc.;

Rio Tinto Services Inc.; Royal Dutch Shell PLC; Shell

Oil Products Company LLC; Total E&P USA, Inc.;

and Total Specialties USA, Inc.

Petitioner Anadarko Petroleum Corporation is

wholly owned by petitioner Occidental Petroleum Corporation, a publicly traded corporation.

Petitioner Apache Corporation has no parent corporation, and no publicly held corporation holds 10%

or more of its stock.

Petitioner BP PLC has no parent corporation, and

no publicly held company holds 10% or more of its

stock.

Petitioner BP America Inc. is a wholly owned indirect subsidiary of petitioner BP PLC.

Petitioner Chevron Corporation has no parent corporation, and no publicly held company holds 10% or

more of its stock.

iii

Petitioner Chevron U.S.A. Inc., is a wholly owned

subsidiary of petitioner Chevron Corporation.

Petitioner CITGO Petroleum Corporation is a

wholly owned indirect subsidiary of Petróleos de Venezuela S.A., which is the national oil company of the

Bolivarian Republic of Venezuela. No publicly held

company owns 10% or more of its stock.

Petitioner ConocoPhillips has no parent corporation, and no publicly held company holds 10% or more

of its stock.

Petitioner ConocoPhillips Company is a wholly

owned subsidiary of petitioner ConocoPhillips.

Petitioner Devon Energy Corporation has no parent corporation, and no publicly held company holds

10% or more of its stock.

Petitioner Devon Energy Production Company,

L.P. is a wholly owned subsidiary of Devon Energy

Corporation.

Petitioner Eni Oil & Gas Inc. is a wholly owned

subsidiary of Eni S.p.A. No publicly held corporation

holds 10% or more of Eni S.p.A.’s stock.

Petitioner Exxon Mobil Corporation has no parent

corporation, and no publicly held corporation owns

10% or more of its stock.

Petitioner Hess Corporation has no parent corporation, and no publicly held corporation holds 10% or

more of its stock.

Petitioner Marathon Oil Corporation has no parent corporation. BlackRock, Inc. disclosed through a

Schedule 13G/A filed with the SEC that, through itself

and as the parent holding company or control person

iv

over certain subsidiaries, it beneficially owns 10% or

more of Marathon Oil Corporation’s stock.

Petitioner Marathon Oil Company is a wholly

owned subsidiary of Marathon Oil Corporation.

Petitioner Marathon Petroleum Corporation has

no parent corporation, and no publicly held corporation holds 10% or more of its stock.

Petitioner Occidental Petroleum Corporation has

no parent corporation, and no publicly held corporation holds 10% or more of its stock.

Petitioner Occidental Chemical Corporation is a

wholly owned subsidiary of Occidental Chemical

Holding Corporation, which is a wholly owned subsidiary of OXY USA Inc. OXY USA Inc. is a wholly

owned subsidiary of Occidental Petroleum Corporation, a publicly traded corporation.

Petitioner Ovintiv Canada ULC (fka Encana Corporation) is a wholly owned indirect subsidiary of

Ovintiv Inc.

Petitioner Phillips 66 Company has no parent corporation, and no publicly held corporation holds 10%

or more of its stock.

Petitioner Repsol Energy North America Corporation is a subsidiary whose ultimate parent corporation

is Repsol, S.A. Petitioner Repsol Trading USA Corporation is a subsidiary whose ultimate parent corporation is also Repsol, S.A. Repsol, S.A. has no parent

corporation, and no publicly held company owns 10%

or more of Repsol, S.A.’s stock.

Petitioners Rio Tinto Minerals Inc., Rio Tinto Energy America Inc., and Rio Tinto Services Inc. are

wholly owned indirect subsidiaries of Rio Tinto plc.

Rio Tinto plc is a publicly held corporation. Shining

v

Prospect Pte. Ltd, a subsidiary of Aluminum Corporation of China, owns more than 10% of Rio Tinto plc’s

stock.

Petitioner Royal Dutch Shell PLC has no parent

corporation, and no publicly held corporation owns

10% or more of its stock.

Petitioner Shell Oil Products Company LLC is a

wholly owned indirect subsidiary of Petitioner Royal

Dutch Shell plc.

Petitioner Total E&P USA, Inc. states that TOTAL

Delaware, Inc. owns 76.39% of the stock of TEPUSA,

and Elf Aquitaine, Inc. owns the remaining 23.61% of

the stock of TEPUSA. TOTAL Delaware, Inc. owns

100% of the stock of Elf Aquitaine, Inc. TOTAL Holdings USA, Inc. owns 100% of the stock of TOTAL Delaware, Inc. TOTAL GESTION USA owns 100% of the

stock of TOTAL Holdings USA, Inc. TOTAL, S.A.

owns 100% of the stock of TOTAL GESTION USA.

TOTAL, S.A. is a publicly held corporation that indirectly holds more than 10% of TOTAL E&P USA’s

stock.

Petitioner Total Specialties USA, Inc. states that

TOTAL MARKETING SERVICES S.A. owns 100% of

the stock of Total Specialties USA Inc. TOTAL S.A.

owns 100% of the stock of TOTAL MARKETING SERVICES S.A. TOTAL, S.A. is a publicly held corporation that indirectly holds more than 10% of Total Specialties USA. Inc.’s stock.

Respondents are the County of San Mateo; the City

of Imperial Beach; the County of Marin; the County of

Santa Cruz; the City of Santa Cruz; and the City of

Richmond.

vi

RULE 14.1(b)(iii) STATEMENT

United States District Court (N.D. Cal.):

County of San Mateo v. Chevron Corp., et al.,

No. 17-cv-04929 (Mar. 16, 2018).

City of Imperial Beach v. Chevron Corp., et al.,

No. 17-cv-04934 (Mar. 16, 2018).

County of Marin v. Chevron Corp., et al.,

No. 17-cv-04935 (Mar. 16, 2018).

County of Santa Cruz v. Chevron Corp., et al.,

No. 18-cv-00450 (July 10, 2018).

City of Santa Cruz v. Chevron Corp., et al.,

No. 18-cv-00458 (July 10, 2018).

City of Richmond v. Chevron Corp., et al.,

No. 18-cv-00732 (July 10, 2018).

United States Court of Appeals (9th Cir.):

County of San Mateo v. Chevron Corp., et al.,

No. 18-15499 (May 26, 2020).

City of Imperial Beach v. Chevron Corp., et al.,

No. 18-15502 (May 26, 2020).

County of Marin v. Chevron Corp., et al.,

No. 18-15503 (May 26, 2020).

County of Santa Cruz, et al. v. Chevron Corp.,

et al., No. 18-16376 (May 26, 2020).

vii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...........................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT .......................................... ii

RULE 14.1(b)(iii) STATEMENT ................................ vi

TABLE OF APPENDICES ..................................... viii

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

STATEMENT OF THE CASE .................................... 3

A. Proceedings In The District Court .......... 4

B. Pesroceedings In The Ninth

Circuit ....................................................... 5

REASONS FOR GRANTING THE PETITION ......... 6

I.

The Ninth Circuit’s Holding That

Section 1447(d) Confers Jurisdiction

Over Only Two Specified Grounds For

Removal Conflicts With This Court’s

Precedent And Further Entrenches A

Circuit Conflict ............................................... 7

A. The Decision Below Conflicts With

This Court’s Decision In Yamaha

And Is Wrong As A Textual Matter ........ 8

B. The Decision Below Further

Entrenches A Mature Circuit Split ......... 9

II. The Court Should Hold This Petition

Pending Resolution Of Baltimore ................ 11

CONCLUSION .......................................................... 13

viii

TABLE OF APPENDICES

Page

APPENDIX A: Opinion of the United States

Court of Appeals for the Ninth Circuit

(May 26, 2020) ..................................................... 1a

APPENDIX B: Order of the United States

District Court for the Northern District of

California Granting Motions to Remand

(Mar. 16, 2018) .................................................. 35a

APPENDIX C: Order of the United States

District Court for the Northern District of

California Granting Motions to Remand

(July 10, 2018) ................................................... 42a

APPENDIX D: Order of the United States

Court of Appeals for the Ninth Circuit

Denying Rehearing En Banc

(Aug. 4, 2020) .................................................... 44a

ix

TABLE OF AUTHORITIES

Page(s)

Cases

Alabama v. Conley,

245 F.3d 1292 (11th Cir. 2001) ............................ 10

Appalachian Volunteers, Inc. v. Clark,

432 F.2d 530 (6th Cir. 1970) ................................ 10

Bd. of Cty. Comm’rs of Boulder Cty. v.

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

965 F.3d 792 (10th Cir. 2020) .............................. 11

City of Walker v. Louisiana,

877 F.3d 563 (5th Cir. 2017) ................................ 10

Davis v. Glanton,

107 F.3d 1044 (3d Cir. 1997) ............................... 11

Decatur Hosp. Auth. v. Aetna Health, Inc.,

854 F.3d 292 (5th Cir. 2017) .................................. 9

Detroit Police Lieutenants & Sergeants Ass’n

v. City of Detroit,

597 F.2d 566 (6th Cir. 1979) ................................ 10

Direct Mktg. Ass’n v. Brohl,

575 U.S. 1 (2015) .................................................. 12

Grable & Sons Metal Prods., Inc. v. Darue

Eng’g & Mfg.,

545 U.S. 308 (2005) ................................................ 4

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ................................................ 12

Jacks v. Meridian Res. Co.,

701 F.3d 1224 (8th Cir. 2012) .............................. 10

Lawrence ex rel. Lawrence v. Chater,

516 U.S. 163 (1996) .............................................. 12

x

Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015) ........................ 5, 9, 10

Mayor & City Council of Baltimore v. BP

P.L.C.,

952 F.3d 452 (4th Cir. 2020) ............................ 6, 10

Mays v. City of Flint,

871 F.3d 437 (6th Cir. 2017) ................................ 10

Patel v. Del Taco, Inc.,

446 F.3d 996 (9th Cir. 2006) .................................. 5

Rhode Island v. Shell Oil Prods. Co.,

979 F.3d 50 (1st Cir. 2020) .................................. 11

Robertson v. Ball,

534 F.2d 63 (5th Cir. 1976) .................................. 10

State Farm Mut. Auto. Ins. Co. v. Baasch,

644 F.2d 94 (2d Cir. 1981) ................................... 11

United States v. Sisson,

399 U.S. 267 (1970) .............................................. 12

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

516 U.S. 199 (1996) ........................................ 3, 7, 8

Statutes

28 U.S.C. § 1292(b) .............................................. 3, 7, 8

28 U.S.C. § 1441 .............................................. 2, 10, 11

28 U.S.C. § 1442 ................................ 2, 3, 5, 7, 8, 9, 10

28 U.S.C. § 1443 ............................................ 3, 7, 9, 11

28 U.S.C. § 1447(d) .............. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11

43 U.S.C. § 1349 .......................................................... 5

PETITION FOR A WRIT OF CERTIORARI

Petitioners Chevron Corporation, Chevron U.S.A.,

Inc., BP p.l.c., BP America Inc., ConocoPhillips, ConocoPhillips Company, Exxon Mobil Corporation, Royal

Dutch Shell plc, Shell Oil Products Company LLC,

Anadarko Petroleum Corporation, Phillips 66, Apache

Corporation, Eni Oil & Gas Inc., Rio Tinto Energy

America Inc., Rio Tinto Minerals Inc., Rio Tinto Services Inc., Devon Energy Corporation, Devon Energy

Production Company, L.P., Total E&P USA, Inc., Total Specialties USA, Inc., Ovintiv Canada ULC,

CITGO Petroleum Corporation, Hess Corporation,

Repsol Energy North America Corporation, Repsol

Trading USA Corporation, Marathon Oil Company,

Marathon Oil Corporation, Marathon Petroleum Corporation, Occidental Petroleum Corporation, and Occidental Chemical Corporation respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The opinion of the Ninth Circuit is reported at 960

F.3d 586. App. 1a–34a. The order denying petitioners’ timely petition for rehearing en banc is not reported. App. 44a–46a. The district court’s order in

County of San Mateo v. Chevron Corp. is reported at

294 F. Supp. 3d 934. App. 35a–41a. The district

court’s order in County of Santa Cruz v. Chevron Corp.

is not reported. App. 42a–43a.

JURISDICTION

The Ninth Circuit issued its opinion on May 26,

2020, and denied rehearing en banc on August 4,

2

2020. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. § 1331 provides: “The district courts

shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the

United States.”

28 U.S.C. § 1441(a) provides: “[A]ny civil action

brought in a State court of which the district courts of

the United States have original jurisdiction, may be

removed by the defendant or the defendants, to the

district court of the United States for the district and

division embracing the place where such action is

pending.”

28 U.S.C. § 1442(a) provides: “A civil action or

criminal prosecution that is commenced in a State

court and that is against or directed to any of the following may be removed by them to the district court

of the United States for the district and division embracing the place wherein it is pending: (1) The

United States or any agency thereof or any officer (or

any person acting under that officer) of the United

States or of any agency thereof, in an official or individual capacity, for or relating to any act under color

of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. . . .”

28 U.S.C. § 1447(d) provides: “An order remanding

a case to the State court from which it was removed is

not reviewable on appeal or otherwise, except that an

order remanding a case to the State court from which

it was removed pursuant to section 1442 or 1443 of

this title shall be reviewable by appeal or otherwise.”

3

STATEMENT OF THE CASE

This petition presents the same question already

pending before this Court in BP p.l.c. v. Mayor and

City Council of Baltimore, No. 19-1189 (cert. granted

Oct. 2, 2020): Whether 28 U.S.C. § 1447(d) empowers

a court of appeals to review any issue contained in a

district court’s order remanding a removed case to

state court when the defendant premised removal in

part on 28 U.S.C. § 1442 (the federal-officer removal

statute), or 28 U.S.C. § 1443 (the civil-rights removal

statute).

Section 1447(d) provides that “[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal . . . except that an

order remanding a case to the State court from which

it was removed pursuant to section 1442 [federal-officer removal] or 1443 [civil-rights removal] of this title shall be reviewable by appeal.” Some circuit courts

have held that when a case has been remanded following removal on one of the enumerated grounds, appellate jurisdiction extends to the entire “order.” In so

holding, these courts have drawn on Yamaha Motor

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

which this Court interpreted 28 U.S.C. § 1292(b)’s

grant of appellate jurisdiction over an interlocutory

“order” containing a certified question to extend to the

entire order. But the court below and multiple other

circuit courts have disagreed. Those courts have held

that a court of appeals may review only the precise

grounds specified in Section 1447(d), and may not consider any other bases for removal.

Accordingly, petitioners respectfully request that

the Court hold this petition pending its forthcoming

decision in Baltimore. And for the reasons set forth in

the petitioners’ merits brief in Baltimore, the Court

4

should hold in Baltimore that Section 1447(d) authorizes a court of appeals to review the district court’s entire remand order, including all asserted grounds for

removal, in a case removed in part on federal-officer

or civil-rights grounds. See Pet. Br. at 16–37, Baltimore, supra. The Court should then grant the petition

in this case and dispose of it in a manner consistent

with its ruling in Baltimore.

A. Proceedings In The District Court

Respondents filed six separate actions against

more than 30 energy companies in California state

court, alleging that “the dominant cause of global

warming and sea level rise” is worldwide “greenhouse

gas pollution,” C.A. E.R. 216, and that petitioners,

“through their extraction, promotion, marketing, and

sale of their fossil fuel products, caused approximately

20% of global fossil fuel product-related CO2 between

1965 and 2015, with contributions currently continuing unabated,” C.A. E.R. 247. Asserting numerous

causes of action under California state tort law, including for public and private nuisance, respondents

demanded compensatory and punitive damages, disgorgement of profits, abatement of the alleged nuisances, and other relief. C.A. E.R. 312.

Petitioners removed the actions to the U.S. District

Court for the Northern District of California. App.

15a. The notices of removal asserted numerous bases

for removal, including that respondents’ claims are

necessarily governed by and thus arise under federal

common law, raise disputed and substantial federal

questions under Grable & Sons Metal Products, Inc.

v. Darue Engineering & Manufacturing, 545 U.S. 308,

314 (2005), are completely preempted by federal statutes such as the Clean Air Act, as well as by the

5

United States Constitution, arise out of or in connection to oil and gas operations on the Outer Continental Shelf and therefore fall under the broad grant of

federal jurisdiction under the Outer Continental Shelf

Leasing Act, 43 U.S.C. § 1349, and involve conduct

undertaken at the direction of federal officers under

28 U.S.C. § 1442(a)(1). App. 36a–39a.

The district court rejected all of petitioners’ bases

for removal and remanded the cases to state court.

App. 41a, 43a.

B. Proceedings In The Ninth Circuit

The Ninth Circuit affirmed the district court’s remand order. But before reaching the merits of that

order, it considered whether and to what extent it had

jurisdiction over the appeal.

Citing 28 U.S.C.

§ 1447(d), the Ninth Circuit concluded that it “ha[d]

jurisdiction to review [petitioners’] appeal to the extent the remand order addresses § 1442(a)(1) [which

governs federal-officer removal], but [it] lack[ed] jurisdiction to review their appeal from the portions of the

remand order considering the seven other bases for

subject-matter jurisdiction.” App. 19a. The court

acknowledged that the Seventh Circuit had reached

the opposite conclusion in Lu Junhong v. Boeing Co.,

792 F.3d 805 (7th Cir. 2015)—and even stated that,

“[w]ere [it] writing on a clean slate, [it] might conclude

that Lu Junhong provides a more persuasive interpretation of § 1447(d)”—but deemed itself “bound by”

prior Ninth Circuit precedent “until abrogated by intervening higher authority.” App. 22a–23a (citing Patel v. Del Taco, Inc., 446 F.3d 996 (9th Cir. 2006)). Citing the Fourth Circuit’s decision that is now pending

before this Court, the Ninth Circuit then affirmed the

district court’s conclusion that petitioners had not

“carried their burden of proving by a preponderance of

6

the evidence that they were ‘acting under’ a federal

officer.” App. 33a–34a (citing Mayor & City Council

of Baltimore v. BP P.L.C., 952 F.3d 452, 461 (4th Cir.

2020)).

Petitioners filed a timely petition for rehearing en

banc on July 9, 2020. App. 46a. On August 4, 2020,

the Ninth Circuit denied the petition. Ibid.

REASONS FOR GRANTING THE PETITION

This Court has already granted certiorari in BP

p.l.c. v. Mayor and City Council of Baltimore, No. 191189 (cert. granted Oct. 2, 2020), to decide whether

appellate review of an order remanding a case removed in part on federal-officer or civil-rights grounds

extends to the entire order or only those particular

grounds. This petition, which also involves climatechange cases removed on federal-officer and other

similar grounds, raises the exact same question—one

that has divided the courts of appeals. The Ninth Circuit below refused to examine any part of the district

court’s remand order other than the federal-officer removal ground, concluding that its hands were tied by

a prior Ninth Circuit case that had simply assumed

without analysis that 28 U.S.C. § 1447(d) extended

not to the entire “order” on review but only to certain

parts of that order. This Court should therefore hold

this petition pending its decision in Baltimore, and

then dispose of this case in a manner consistent with

its ruling in that case.

7

I. The Ninth Circuit’s Holding That Section

1447(d) Confers Jurisdiction Over Only Two

Specified Grounds For Removal Conflicts

With This Court’s Precedent And Further Entrenches A Circuit Conflict.

Section 1447(d) prohibits appellate courts from reviewing most remand orders, but contains an express

exception for “an order remanding a case to the State

court from which it was removed pursuant to section

1442 or 1443 of this title.” 28 U.S.C. § 1447(d). This

case was removed pursuant to Section 1442, the federal-officer removal statute. Yet the Ninth Circuit

held that it lacked jurisdiction to review the remand

order, and instead had jurisdiction to review only the

issue of federal-officer removal. App. 23a.

As explained in greater detail in Baltimore, see,

e.g., Pet. Br. 16–37, No. 19-1189, the Ninth Circuit’s

holding conflicts with the plain text of the statute, as

confirmed by this Court’s interpretation of a closely

analogous jurisdictional statute, 28 U.S.C. § 1292(b),

see Yamaha, 516 U.S. at 205. It also further deepens

a conflict among the federal courts of appeals—a conflict that the Ninth Circuit acknowledged. See App.

19a–20a.

The Ninth Circuit’s error led the court to disregard

substantial grounds for removal, resulting in a remand of six cases that address issues of national—and

international—energy and environmental policy. If

the Ninth Circuit’s decision is not reversed, petitioners will be deprived of their right to have these inherently federal issues heard in federal court.

8

A. The Decision Below Conflicts With This

Court’s Decision In Yamaha And Is Wrong

As A Textual Matter.

In Yamaha, this Court confronted a question remarkably similar to the one here: Whether, “[u]nder

28 U.S.C. § 1292(b), . . . the courts of appeals [may]

exercise jurisdiction over any question that is included within the order that contains the controlling

question of law identified by the district court,” or

whether they may address only the precise issue certified by the district court. 516 U.S. at 204. Applying

a straightforward textual analysis, the Court adopted

the former interpretation: “As the text of § 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and is not tied to the particular question formulated by the district court.” Id.

at 205. Thus, the court of appeals “may address any

issue fairly included within the certified order because

it is the order that is appealable, and not the controlling question identified by the district court.” Ibid.

(internal quotation marks omitted).

This Court’s textual analysis of Section 1292(b) applies equally to Section 1447(d). Section 1292(b) provides that “[w]hen a district judge, in making in a civil

action an order not otherwise appealable under this

section,” certifies a question for interlocutory review,

“[t]he Court of Appeals . . . may thereupon, in its discretion, permit an appeal to be taken from such order.”

28 U.S.C. § 1292(b) (emphasis added).

Section

1447(d), meanwhile, provides that “[a]n 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

9

or 1443 of this title shall be reviewable by appeal or

otherwise.” 28 U.S.C. § 1447(d) (emphases added).

The Ninth Circuit’s decision is thus incorrect and

irreconcilable with Yamaha and the plain text of Section 1447(d).

B. The Decision Below Further Entrenches A

Mature Circuit Split.

The Ninth Circuit’s decision reaffirms a circuit

conflict on which nearly every circuit has taken a position. Some courts of appeals have issued decisions

interpreting Section 1447(d) to confer appellate jurisdiction over the entire remand order so long as removal was based in part on one of the enumerated

grounds, while others agree with the Ninth Circuit

that a court of appeals may not review the order but

must instead consider only the Section 1442 or 1443

ground for removal.

1. Several Circuits have issued decisions holding

that appellate jurisdiction under Section 1447(d) extends to the entire remand “order,” provided that the

case was removed in part on one of the enumerated

grounds. The Seventh Circuit in Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015), “appli[ed] . . .

Yamaha . . . to the word ‘order’ in § 1447(d)” to conclude that “if appellate review of an ‘order’ has been

authorized, that means review of the ‘order.’ Not particular reasons for the order, but the order itself.” Id.

at 812. Other courts have followed the Seventh Circuit’s lead. See Decatur Hosp. Auth. v. Aetna Health,

Inc., 854 F.3d 292, 296 (5th Cir. 2017) (noting that the

court’s appellate jurisdiction includes not only “ ‘particular reasons for [the] order, but the order itself ’”)

10

(quoting Lu Junhong, 792 F.3d at 812); 1 Mays v. City

of Flint, 871 F.3d 437, 442 (6th Cir. 2017) (“Our jurisdiction to review the remand order also encompasses

review of the district court’s decision on the alternative ground for removal under 28 U.S.C. § 1441.” (citing Lu Junhong, 792 F.3d at 811–13)). 2

2. Other courts, meanwhile, have held that Section 1447(d) does not confer appellate jurisdiction over

the remand “order,” but only over the particular civilrights or federal-officer ground for removal. The majority of these courts have done so without providing

any analysis to support their atextual reading. See

Mayor & City Council of Baltimore v. BP P.L.C., 952

F.3d 452, 459–61 (4th Cir. 2020) (construing circuit

precedent to compel the conclusion that its appellate

jurisdiction “does not extend to the non-§ 1442

grounds that were considered and rejected by the district court”); Jacks v. Meridian Res. Co., 701 F.3d

1224, 1229 (8th Cir. 2012) (“[The court] lack[s] jurisdiction to review the district court’s determination

concerning the availability of federal common law to

resolve this suit[.]”); Alabama v. Conley, 245 F.3d

1292, 1293 n.1 (11th Cir. 2001) (per curiam) (“[T]he

only question presently before us is whether the district court properly remanded Conley’s action based

But cf. City of Walker v. Louisiana, 877 F.3d 563, 566 n.2 (5th

Cir. 2017) (suggesting that it had “rejected . . . in the past” the

argument that Section 1447(d) permits review of the entire remand order); Robertson v. Ball, 534 F.2d 63, 65 (5th Cir. 1976)

(per curiam) (limiting appellate review to federal-officer removal

issue).

1

But cf. Detroit Police Lieutenants & Sergeants Ass’n v. City of

Detroit, 597 F.2d 566, 567 (6th Cir. 1979) (limiting review to enumerated statutory grounds for removal); Appalachian Volunteers, Inc. v. Clark, 432 F.2d 530, 534 (6th Cir. 1970) (same).

2

11

on a finding that removal jurisdiction under § 1443

did not exist.”); Davis v. Glanton, 107 F.3d 1044, 1047

(3d Cir. 1997) (“[I]nsofar as the [defendants’] appeal

challenges the district court’s rulings under 28 U.S.C.

§ 1441, we must dismiss the appeal for want of appellate jurisdiction.”); State Farm Mut. Auto. Ins. Co. v.

Baasch, 644 F.2d 94, 97 (2d Cir. 1981) (per curiam)

(“Insofar as the appeal challenges denial of removal

under 28 U.S.C. § 1441, it is dismissed for want of appellate jurisdiction.”).

Thus, until the Tenth Circuit’s recent decision in

Board of County Commissioners of Boulder County v.

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

2020), cert. pet. filed, No. 20-783 (Dec. 4, 2020), the

cases “refusing to extend the review granted by the

§ 1447(d) exceptions to” the entire remand order had

“employed mostly summary analysis,” in stark contrast with the Seventh Circuit’s thorough reasoning.

Id. at 802–03. The Tenth Circuit ultimately disagreed

with the Seventh Circuit, finding what it deemed a latent “ambiguity” in the statutory text and then resolving that alleged ambiguity based on extratextual considerations such as purported statutory purpose. See

id. at 813–19. Most recently, the First Circuit followed the Tenth Circuit’s decision. Rhode Island v.

Shell Oil Prods. Co., 979 F.3d 50, 57 (1st Cir. 2020).

Rejecting the Seventh Circuit’s “textual” analysis and

concluding that Section 1447(d)’s use of the term “order” was “ambiguous,” the court relied on what it

viewed as the “overall purpose of the statute” to adopt

the narrow reading of Section 1447(d). Ibid.

II. The Court Should Hold This Petition Pending Resolution Of Baltimore.

The Court should hold this petition pending this

Court’s decision in Baltimore. To ensure similar

12

treatment of similar cases, the Court routinely holds

petitions that implicate the same issue as other cases

pending before it and, once the related case is decided,

resolves the held petitions in a consistent manner.

See, e.g., Lawrence ex rel. Lawrence v. Chater, 516 U.S.

163, 166 (1996) (per curiam) (noting that the Court

has “GVR’d in light of a wide range of developments,

including [its] own decisions”); id. at 181 (Scalia, J.,

dissenting) (“We regularly hold cases that involve the

same issue as a case on which certiorari has been

granted and plenary review is being conducted in order that (if appropriate) they may be ‘GVR’d’ when the

case is decided.”) (emphasis omitted).

That procedure is particularly apt here, given that

the cases involve a jurisdictional question that must

be answered in the same way throughout the Nation.

As this Court has frequently emphasized, “jurisdictional rules should be clear.” Direct Mktg. Ass’n v.

Brohl, 575 U.S. 1, 14 (2015) (brackets omitted). “Clarity is to be desired in any statute, but in matters of

jurisdiction it is especially important. Otherwise the

courts and the parties must expend great energy, not

on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case.”

United States v. Sisson, 399 U.S. 267, 307 (1970). Indeed, conflicting and uncertain jurisdictional rules

“produce appeals and reversals, encourage gamesmanship, and, again, diminish the likelihood that results and settlements will reflect a claim’s legal and

factual merits.” Hertz Corp. v. Friend, 559 U.S. 77, 94

(2010).

Because this petition raises the same recurring

question of appellate jurisdiction at issue in Baltimore, the Court should follow its usual practice here

13

to ensure that this petition is resolved in a consistent

manner.

CONCLUSION

The Court should hold this petition pending its disposition of Baltimore, and then dispose of this petition

in a manner consistent with its decision in that case.

14

Respectfully submitted.

JONATHAN W. HUGHES

ARNOLD & PORTER KAYE

SCHOLER LLP

Three Embarcadero Center,

10th Floor

San Francisco, CA 941114024

MATTHEW T. HEARTNEY

JOHN D. LOMBARDO

ARNOLD & PORTER KAYE

SCHOLER LLP

777 South Figueroa Street,

44th Floor

Los Angeles, CA 90017-5844

PHILIP H. CURTIS

NANCY MILBURN

ARNOLD & PORTER KAYE

SCHOLER LLP

250 West 55th Street

New York, NY 10019-9710

Counsel for Petitioners BP

P.L.C. and BP America 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, D.C. 20036

Counsel for Petitioners Shell

Oil Products Company LLC

and Royal Dutch Shell plc

THEODORE J. BOUTROUS, JR.

Counsel of Record

WILLIAM E. THOMSON

SAMUEL ECKMAN

GIBSON, DUNN

& CRUTCHER LLP

333 South Grand Avenue

Los Angeles, CA 90071

(213) 229-7000

tboutrous@gibsondunn.com

THOMAS G. HUNGAR

JOSHUA S. LIPSHUTZ

LOCHLAN F. SHELFER

GIBSON, DUNN

& CRUTCHER LLP

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

ANDREA NEUMAN

GIBSON, DUNN

& CRUTCHER LLP

200 Park Ave.

New York, NY 10166-0193

HERBERT J. STERN

STERN & KILCULLEN, LLC

325 Columbia Turnpike, Ste. 110

Florham Park, NJ 07932-0992

NEAL S. MANNE

SUSMAN GODFREY LLP

1000 Louisiana, Suite 5100

Houston, TX 77002

Counsel for Petitioners

Chevron Corporation and

Chevron U.S.A., Inc.

15

KEVIN ORSINI

VANESSA A. LAVELY

CRAVATH, SWAINE

& MOORE LLP

825 Eighth Avenue

New York, NY 10019

STEPHEN C. LEWIS

R. MORGAN GILHULY

BARG COFFIN LEWIS

& TRAPP, LLP

350 California St., 22nd Fl.

San Francisco, CA 941041435

Counsel for Petitioner

Anadarko Petroleum

Corporation

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 941116538

Counsel for Petitioner

Phillips 66

MORTIMER HARTWELL

VINSON & ELKINS LLP

555 Mission St., Suite 2000

San Francisco, CA 94105

PATRICK W. MIZELL

VINSON & ELKINS LLP

1001 Fannin, Suite 2300

Houston, TX 77002

Counsel for Petitioner

Apache Corporation

DAWN SESTITO

O’MELVENY & MYERS LLP

400 South Hope Street

Los Angeles, CA 90071-2899

KANNON K. SHANMUGAM

WILLIAM T. MARKS

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

2001 K Street, N.W.

Washington, DC 20005

THEODORE V. WELLS, JR.

DANIEL J. TOAL

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON LLP

1285 Avenue of the Americas

New York, NY 10019-6064

Counsel for Petitioner

Exxon Mobil Corporation

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

16

BRYAN A. MERRYMAN

CATHERINE S. SIMONSEN

WHITE & CASE LLP

555 South Flower Street,

Suite 2700

Los Angeles, CA 90071-2433

STEVEN M. BAUER

MARGARET A. TOUGH

LATHAM & WATKINS LLP

505 Montgomery Street,

Suite 2000

San Francisco, CA 94111

Counsel for Petitioner

Eni Oil & Gas Inc.

Counsel for Petitioners

ConocoPhillips, ConocoPhillips

Company, and Phillips 66

GREGORY EVANS

MCGUIREWOODS LLP

Wells Fargo Center

South Tower

355 S. Grand Avenue

Suite 4200

Los Angeles, CA 90071-3103

JOY C. FUHR

BRIAN D. SCHMALZBACH

MCGUIREWOODS LLP

800 East Canal Street

Richmond, VA 23219-3916

Counsel for Petitioners

Devon Energy Corporation

and Devon Energy Production Company, L.P.

DONALD W. CARLSON

A. DAVID BONA

CARLSON, CALLADINE

& PETERSON LLP

353 Sacramento Street,

16th Fl.

San Francisco, CA 94111

Counsel for Petitioners

Marathon Oil Corporation

and Marathon Oil Company

MARK MCKANE, P.C.

KIRKLAND & ELLIS LLP

555 California Street

San Francisco, CA 94104

ANDREW A. KASSOF, P.C.

BRENTON ROGERS

KIRKLAND & ELLIS LLP

300 North LaSalle

Chicago, IL 60654

Counsel for Petitioners

Rio Tinto Energy America Inc.,

Rio Tinto Minerals Inc., and Rio

Tinto Services Inc.

17

MICHAEL F. HEALY

SHOOK HARDY & BACON LLP

One Montgomery St.

Suite 2700

San Francisco, CA 94104

MICHAEL L. FOX

DUANE MORRIS LLP

Spear Tower

One Market Plaza

Suite 2200

San Francisco, CA 941051127

Counsel for Petitioner

Ovintiv Canada ULC

(fka “Encana Corporation”)

KEVIN ORSINI

VANESSA A. LAVELY

CRAVATH, SWAINE

& MOORE LLP

825 Eighth Avenue

New York, NY 10019

STEPHEN C. LEWIS

R. MORGAN GILHULY

BARG COFFIN LEWIS

& TRAPP, LLP

350 California St., 22nd Fl.

San Francisco, CA 941041435

Counsel for Petitioners

Occidental Petroleum Corporation and Occidental

Chemical Corporation

CHRISTOPHER W. KEEGAN

KIRKLAND & ELLIS LLP

555 California Street

San Francisco, CA 94104

ANDREW R. MCGAAN, P.C.

KIRKLAND & ELLIS LLP

300 North LaSalle

Chicago, IL 60654

ANNA G. ROTMAN, P.C.

KIRKLAND & ELLIS LLP

609 Main Street

Houston, TX 77002

BRYAN D. ROHM

TOTAL E&P USA, INC.

1201 Louisiana Street,

Suite 1800

Houston, TX 77002

Counsel for Petitioners

Total E&P USA, Inc. and Total

Specialties USA, Inc.

18

JONATHAN A. SHAPIRO

BAKER BOTTS L.L.P.

101 California Street

Suite 3600

San Francisco, CA 94111

CRAIG A. MOYER

PETER DUCHESNEAU

MANATT, PHELPS & PHILLIPS, LLP

11355 West Olympic Boulevard

Los Angeles, CA 90064-1614

SCOTT JANOE

BAKER BOTTS L.L.P.

910 Louisiana Street

Houston, TX 77002

STEPHANIE A. ROESER

MANATT, PHELPS & PHILLIPS, LLP

One Embarcadero Center,

30th Floor

San Francisco, CA 94111

MEGAN BERGE

BAKER BOTTS L.L.P.

701 K Street, NW

Washington, DC 20004

Counsel for Petitioners

Hess Corporation, Repsol

Energy North America Corporation, and Repsol Trading USA Corporation

SHANNON S. BROOME

ANN MARIE MORTIMER

HUNTON ANDREWS KURTH

LLP

50 California Street, Suite

1700

San Francisco, CA 94111

SHAWN PATRICK REGAN

HUNTON ANDREWS KURTH

LLP

200 Park Avenue

New York, NY 10166-0136

Counsel for Petitioner Marathon Petroleum Corporation

December 30, 2020

NATHAN P. EIMER

LISA S. MEYER

PAMELA R. HANEBUTT

EIMER STAHL LLP

224 South Michigan Avenue

Ste. 1100

Chicago, IL 60604

ROBERT E. DUNN

EIMER STAHL LLP

99 S. Almaden Blvd., Suite 662

San Jose, CA 95113

Counsel for Petitioner CITGO

Petroleum Corporation