In Baltimore’s climate-change litigation, the Fourth Circuit deepened the split on the scope of appeals from remand orders.
March 9, 2020
In last week’s Mayor and City Council of Baltimore v. BP P.L.C., the Fourth Circuit held that Baltimore’s climate-change lawsuit against oil and gas companies must proceed in state (not federal) court. The court also deepened an existing split on the scope of remand appeals under 28 U.S.C. § 1447(d). That statute generally prohibits review of decisions remanding a case to state court. But the statute includes two exemptions to that prohibition—when removal was based on the federal-officer removal statute or the civil-rights removal statute.
The Fourth Circuit held that the scope of remand appeals is limited to the express exemptions to § 1447(d). That is, the court of appeals can address only whether removal was proper under the federal-officer or civil-rights removal statutes; the court lacks jurisdiction to review any other ground for removal. Other courts disagree. Focusing on § 1447(d)’s reference to appeals from a remand “order,” these courts have held that the scope of appeal includes every aspect of the district court’s order.
Baltimore’s climate-change litigation
The Mayor and City of Baltimore sued dozens of oil and gas companies in Maryland state court. Baltimore alleged that the oil and gas companies “substantially contributed to climate change by producing, promoting, and (misleadingly) marketing fossil fuel products long after learning the dangers associated with them”:
Specifically, Baltimore alleges that, despite knowing about the direct link between fossil fuel use and global warming for nearly fifty years, [the companies] have engaged in a “coordinated, multi-front effort” to conceal that knowledge; have tried to discredit the growing body of publicly available scientific evidence by championing sophisticated disinformation campaigns; and have actively attempted to undermine public support for regulation of their business practices, all while promoting the unrestrained and expanded use of their fossil fuel products.
The oil and gas companies thereby injured Baltimore, causing “an increase in sea levels, storms, floods, heatwaves, droughts, and extreme precipitation.”
Two defendants removed the case to the District of Maryland. In doing so, they invoked eight different grounds for removal. They contended that Baltimore’s claims arose under federal law—giving the district court federal-question jurisdiction under 28 U.S.C. § 1331—because Baltimore’s claims:
- Were governed by federal common law, rather than state law;
- Raised disputed and substantial issues of federal law under the Supreme Court’s decision in Grable & Sons Metal Products, Inc. v. Darue Engineering & Manufacturing;
- Were completely preempted by the Clean Air Act and the foreign affairs doctrine; and
- Were based on conduct or injuries that occurred on federal enclaves.
The oil and gas companies also invoked four additional jurisdictional and removal statutes: “(1) the jurisdictional grant in the Outer Continental Shelf Lands Act; (2) the admiralty jurisdiction statute; (3) the bankruptcy removal statute; and”—of particular importance to the appellate-jurisdiction issue—“(4) the federal-officer removal statute, 28 U.S.C. § 1442.” (Some citations omitted.)
The district court eventually rejected every proffered basis for federal jurisdiction and remanded the action back to Maryland state court. The oil and gas companies then sought to appeal that remand order.
The scope of the remand appeal
Once they were in the Fourth Circuit, the parties disputed the scope of the appeal. Section 1447(d) generally prohibits appeals from orders remanding an action to state court:
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.
But (as can be seen in the quoted language) the statute contains two exemptions from the general prohibition: an order remanding an action that was removed under § 1442—the federal-officer removal statute—and § 1443—the civil-rights removal statute. The oil and gas companies had invoked the federal-officer removal statute in removing the case to federal court. So everyone agreed that the Fourth Circuit had jurisdiction to review that issue. But the oil and gas companies argued that the scope of appeal also included the seven other non-§ 1442 grounds for removal that the district court had rejected.
The Fourth Circuit disagreed and held that the scope of the appeal was limited to the federal-officer removal issues. Indeed, the court had already decided this issue. In 1976’s Noel v. McCain, the Fourth Circuit held “that when a case is removed on several grounds, appellate courts lack jurisdiction to review any ground other than the one specifically exempted from § 1447(d)’s bar on review.” And according to the Fourth Circuit, neither the Supreme Court’s intervening decision in Yamaha Motor Corp. v. Calhoun, nor the Removal Clarification Act of 2011 had undermined that decision.
Yamaha Motor addressed (among other things) the scope of a certified appeal under 28 U.S.C. § 1292(b). That statute permits a district court to certify an “order” for an interlocutory appeal when that order “involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation.” The Supreme Court held that an appeal under § 1292(b) encompasses the entire order certified for an appeal, not just the specific issue that the district court thought warranted immediate review. Courts of appeals could accordingly “address any issue fairly included within the certified order because it is the order that is appealable.”
The Fourth Circuit held that Yamaha Motor’s reasoning did not extend to § 1447(d). The court acknowledged that the text—specifically, § 1447(d)’s use of the word “order”—suggested that the scope of a proper remand appeal encompassed the entire order. But the Fourth Circuit also thought that Yamaha Motor “did not purport to establish a general rule governing the scope of appellate jurisdiction for every statute that uses that word.” And § 1447(d) differs from § 1292(b) in important ways:
Section 1292(b) governs when an appellate court may review a particular question within its discretion. Section 1447(d), by contrast, limits which issues are “reviewable on appeal or otherwise.”
That is, § 1292(b) governs the timing of appellate review that would otherwise come after a final judgment, not whether a particular decision is appealable at all. It thus makes sense for a § 1292(b) appeal to encompass the entire order. Everything being reviewed would eventually be appealable. Interpreting § 1447(d) to also encompass the entire order “would mandate review of issues that are ordinarily unreviewable, period—even following a final judgment.”
The Fourth Circuit added that the Removal Clarification Act did not alter its precedent. The Act added § 1442 to § 1447(d)’s exemptions. The Act came after the Supreme Court’s decision in Yamaha Motor. And the Act did not alter § 1447(d)’s use of the word “order.” The oil and gas companies accordingly argued that Congress’s retention of the word “order” in § 1447(d) after Yamaha Motor showed Congress’s intent to authorize plenary review of certain remand orders. The Fourth Circuit rejected this argument. Yamaha Motor’s reasoning—as the court had just explained—did not apply to § 1447(d). So inferring any Congressional intent was improper.
The Fourth Circuit went on to affirm the district court’s remand order.
A deepened split on remand appeals
Mayor and City Council of Baltimore deepens the circuit split on the scope of remand appeals. At least one circuit has invoked Yamaha Motor in holding that the scope of a remand appeal includes the entire order. In Lu Junhong v. Boeing Co., the Seventh Circuit held that so long as the defendant invoked § 1442 or § 1443, the defendant could appeal the remand and obtain plenary review of all grounds for removal. The Seventh Circuit reasoned that § 1447(d) authorized an appeal from an “order” remanding an action that was removed under those provisions. And Yamaha Motors held, in the context of § 1292(b), that “order” refers to the entire order. The court accordingly took the statute to mean that “if appellate review of an ‘order’ has been authorized, that means review of the ‘order.’ Not particular reasons for an order, but the order itself.”
Federal Practice and Procedure also endorses this plenary-review position on the scope of proper remand appeals:
Although § 1447(d) allows review of the “order remanding” the case, it has been held that review is limited to removability under § 1443. Review should instead be extended to all possible grounds for removal underlying the order. Once an appeal is taken there is very little to be gained by limiting review; the only plausible concern is that an expanded scope of review will encourage defendants to rely on strained arguments under § 1443 in an effort to support appeal on other grounds. Sufficient sanctions are available to deter frivolous removal arguments that this fear should be put aside against the sorry possibility that experience will give it color.
Section 3914.11 (footnotes omitted).
Several other courts have weighed in on the issue, albeit in less depth. Like the Fourth Circuit, the Third, Eighth, and Ninth Circuits have held that remand appeals are limited to those issues specifically exempted from § 1447(d). (A recent Third Circuit decision suggests, however, that the Third Circuit has not yet weighed in on the issue.) One recent Fifth Circuit decision followed the Seventh Circuit in holding that review is plenary, although another recent decision appears to hold otherwise. The Sixth Circuit has similarly inconsistent caselaw. It has recently held that the scope of a remand appeal is plenary, although a Sixth Circuit decision from the 1970s treats the scope of appeal as limited.
Given this split and the high-profile nature of the case, it will be no surprise if the oil and gas companies seek cert.
Mayor and City Council of Baltimore v. BP P.L.C., 2020 WL 1069444 (4th Cir. Mar. 6, 2020), available at the Fourth Circuit and Westlaw.