Defendants who invoke federal-officer or civil-rights removal can now appeal a remand and obtain review of all asserted grounds for removal.
May 19, 2021
In BP P.L.C. v. Mayor & City Council of Baltimore, the Supreme Court adopted the broad reading of the exceptions to 28 U.S.C. § 1447(d): if a defendant invokes the federal-officer removal statute (28 U.S.C. § 1442) or the civil-rights removal statute (28 U.S.C. § 1443) in removing a case, the defendant can appeal a remand order and obtain review of all proffered grounds for removal. In doing so, the Court rejected the narrow position that most courts of appeals had adopted, which limited remand appeals to the two expressly excepted grounds. Dissenting, Justice Sotomayor would have gone with that narrow reading.
I think the Court got it wrong. The majority’s opinion relies almost entirely on its conclusion that § 1447(d)’s text is plain. I disagree. The text doesn’t clearly say what to do when a case is removed on multiple grounds. While the text doesn’t answer the question, § 1447(d)’s context and purpose do. The Court should have read the statute to further the dual purposes of generally prohibiting remand appeals while allowing for review of certain, special issues.
The majority’s opinion also invites mischief. Defendants now have every incentive to raise any weak (though non-frivolous) argument they have for federal-officer or civil-rights removal. That way if the district court court remands the suit, these defendants can appeal and argue all of their grounds for removal. Indeed, it appears that a defendant taking such an appeal can abandon any argument for federal-officer or civil-rights removal and still obtain plenary review on appeal.
To prevent this mischief—and to preserve the policy of generally barring remand appeals—Congress should amend § 1447(d) to abrogate BP and narrow the scope of any appeals under that provision’s exceptions.
The Climate-Change Litigation Underlying BP
Several years ago, Baltimore sued dozens of oil and gas companies in Maryland state court. Simplifying a bit, the city alleged that the oil and gas companies substantially contributed to climate change and sought to mislead the public about those contributions. The defendants removed the case to federal court. In doing so, they invoked eight different grounds for removal, including the federal-officer removal statute.
The district court rejected all proffered bases for federal jurisdiction and remanded the case. The oil and gas companies then appealed that order. And in that appeal, they asked the Fourth Circuit to review several of the proffered bases for federal jurisdiction.
The Split Over the Scope of Remand Appeals
The defendants’ request for plenary review raised a problem. 28 U.S.C. § 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 the quoted language shows, § 1447(d) contains two exceptions: when the defendant invokes the federal-officer removal statute (28 U.S.C. § 1442) or the civil-rights removal statute (28 U.S.C. § 1443). So parties that remove a case under either of those statutes can appeal an order remanding the case to state court.
The courts have split, however, on the scope of those appeals. Everyone agrees that the court of appeals can address the two expressly excepted grounds for removal. But what else, if anything, can the court review? Is the entire order remanding the action appealable, including every rejected ground for removal, or just the grounds for removal that § 1447(d) excepts from the general bar on appellate review? Most courts have held that the scope of review extends to only the express exceptions. But the Seventh Circuit has held otherwise, and two (or maybe three) other courts of appeals had inconsistent caselaw on the issue.
The Fourth Circuit ultimately sided with the narrow reading: the scope of the appeal was limited to the federal-officer removal issue. A trio of decisions in similar climate-change suits—from the First, Ninth, Tenth Circuits—followed, all agreeing with the Fourth Circuit.
The Supreme Court granted cert to resolve this split.
The Supreme Court Adopted the Broader Reading of § 1447(d)’s Exceptions
The Court went with the broad reading of § 1447(d). The decision is largely textual, focusing on § 1447(d)’s use of the word “order.” Recall that the exceptions clause provides that the courts of appeals can review “an order remanding a case” when it was removed under § 1442 or § 1443. So jurisdiction exists over the order. And an order, the Supreme Court explained, is “a ‘written direction or command delivered by . . . a court or judge.’” Review of a remand order thus means review of the propriety of the remand, not just some of the proffered bases for removal that the district court rejected in the course of remanding. So the court of appeals can address every proffered ground for removal, not just those that § 1447(d) expressly excepts.
The Court found support for this conclusion in Yamaha Motor Corp., U.S.A. v. Calhoun. 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 same reasoning, the BP majority thought, applied to § 1447(d).
The Supreme Court also rejected several of the city’s arguments against a broad reading of § 1447(d). I won’t cover them all here, but two are worth noting.
First, the Court rejected the argument that Congress had implicitly ratified the narrow reading of § 1447(d). Congress amended that provision in 2011 to add the exception for federal-officer removal. At that time, the statute already excepted civil-rights removal, and the courts of appeals were unanimous in reading § 1447(d) to limit appeals to that expressly excepted ground. Congress’s 2011 amendments did not alter that narrow reading. The city accordingly argued that Congress agreed with the narrow reading of § 1447(d).
The Court found this unpersuasive. It doubted that “a smattering of lower court opinions” could ever constitute a consensus that Congress knew of and endorsed when it amended a statute. And even if it could, the Court thought that the text of § 1447(d) was too clearly to the contrary.
Second, the Court dismissed concerns about the consequences of its decision. It was not troubled that remand appeals with an expansive scope might delay litigation. It instead suggested that this broadened scope might sometimes expedite appeals—a court of appeals could reverse a remand on a straightforward federal-question issue instead of tangling with a difficult federal-officer removal issue. The Court also saw little to worry about in defendants’ manipulating the broad scope of remand appeals—that is, making a weak federal-officer or civil-rights removal argument to ensure plenary review of other grounds for removal. Frivolous invocations of § 1442 or § 1443, the Court noted, could be met with sanctions.
More fundamentally, the Court said that concerns over efficiency and abuse were misplaced. Neither consequence permitted the Court to disregard what it thought was the plain meaning of § 1447(d).
Justice Sotomayor’s Dissent
Justice Sotomayor dissented. Unlike the majority, Justice Sotomayor thought that § 1447(d) was ambiguous when it came to the scope of an appeal when an exception applied. The statute simply does not address what to do when a defendant removes a case on one of the excepted grounds and on other grounds. That distinguished BP from Yamaha Motors. By allowing for appeals from orders that “involve” an issue that warrants an immediate appeal, § 1292(b) accounted for orders involving multiple issues, some of which do not warrant an immediate appeal. There is no comparable language in § 1447(d). So the statute was ambiguous as to the scope of a permissible remand appeal.
Given that ambiguity, the Court should have sought “an interpretation of § 1447(d) that not only respects its carveout for arguments under § 1442 and § 1443 but also preserves its general bar on appellate review.” That would mean jurisdiction over only the expressly excepted grounds for removal. All other grounds would remain barred. Justice Sotomayor also thought that Congress ratified this narrow reading in 2011, when it amended § 1447(d) against the backdrop of unanimous circuit court opinions limiting the scope of remand appeals.
The majority thus placed too much weight on § 1447(d)’s text. And its interpretation undermined the limits on remand appeals:
The problem with this interpretation is that it stretches the exception in § 1447(d) too far. It allows defendants to bootstrap their entire case for removal into the court of appeals simply by tacking on an argument under § 1442 or § 1443. Indeed, under this interpretation, a defendant could formally abandon its argument under § 1442 or § 1443 and seek an appeal exclusively of other grounds for removal.
The majority’s interpretation thus invited mischief whereby defendants raise borderline frivolous removal arguments under § 1442 and § 1443. Sanctions are hardly a reliable deterrent; defendants need avoid only frivolous arguments, not merely weak ones. So the majority’s broad reading of § 1447(d) might “reward defendants for raising strained theories of removal under § 1442 or § 1443 by allowing them to circumvent the bar on appellate review entirely.”
Amend § 1447(d)
I’m with Justice Sotomayor on this one.
The majority’s opinion relies largely (if not entirely) on its conclusion that § 1447(d)’s text is plain, which was the Court’s response to nearly every argument against a broad reading of the statute. But I don’t think the text is plain. The majority’s reading is a plausible one. There is, however, another plausible reading. Note that the exception clause refers to actions “removed pursuant to section 1442 or 1443.” A fair reading of this clause is that it refers to actions removed under only § 1442 or § 1443. After all, the statute does not say that appellate courts can review remand orders in actions “removed in part pursuant to section 1442 or 1443.” And under this reading of § 1447(d), the statute does not envision—and thus does not clearly govern—actions in which a case is removed on multiple grounds.
The text accordingly does not resolve this issue. But context and purpose do. The exceptions are part of a general prohibition on reviewing remands, which exists to expedite litigation. Congress created exceptions for when a remand involves certain, special issues. Limiting the scope of an appeal serves both the general purpose of expediting litigation and the special interest in appellate review of certain issues.
A broad reading of the exception clause can (and perhaps will) swallow the general prohibition. All defendants need to do to avoid § 1447(d)’s bar is to include a non-frivolous argument for federal-officer or civil-rights removal. That opens the door to plenary appellate review. Indeed, defendants need not even pursue the federal-officer or civil-rights removal issues in their appeal; they can abandon them and argue other grounds for removal. So we can expect more—and more complicated—appeals from remand orders, which will undermine § 1447(d)’s general prohibition on remand appeals and its purpose of expediting litigation. And when a federal-officer or civil-rights removal argument is weak, appellate review does little to further the interests that underlie the exceptions. When defendants abandon those arguments to argue other grounds for removal, no legitimate purpose is furthered. A broad reading of § 1447(d) thus does little of any worth.
Yamaha Motors does not require a different conclusion. That case interpreted § 1292(b), which governs when—not whether—an issue can be appealed. And appeals under § 1292(b) are at an appellate court’s discretion. A broader scope of review for § 1292(b) appeals thus makes some sense, as the court of appeals can control what it’s reviewing. And every issue the court of appeals addresses could eventually make its way to that court.
Section 1447(d) is different. It says that some orders should never make their way to the courts of appeals. It then provides some exceptions to that prohibition, specifying what kinds of issues can be reviewed. Unlike § 1292(b), § 1447(d) says what sorts of issues are (and are not) appealable. In other words, § 1292(b) is about the timing of an appeal, while § 1447(d) concerns scope.
There’s also no concern here about giving the same word a different meaning. Although a word used throughout a single statute should generally have the same meaning, § 1292(b) and § 1447(d) come from different statutes. Section 1292(b) was added in 1958, in Public Law 85-919. The exception in § 1447(d) for civil-rights removal came six years later, in Public Law 88-352. The two provisions are simply codified near each other.
Now that the Supreme Court has weighed in on the scope of § 1447(d) remand appeals, the ball is in Congress’s court. Congress should amend § 1447(d) to return to the narrow scope of remand appeals that most courts had adopted before BP.
BP P.L.C. v. Mayor & City Council of Baltimore, 2021 WL 1951777 (May 17, 2021), available at the Supreme Court and Westlaw.