Appellate Decisions

Frivolous Federal-Officer Removal

The Seventh Circuit suggested that an invocation of federal-officer removal—which permitted a plenary appeal from a remand order—was frivolous and thus sanctionable.

April 12, 2024

By Bryan Lammon

In Roberts v. Smith & Wesson Brands, Inc., the Seventh Circuit affirmed a district court order remanding an action to state court. Although remand orders are generally not reviewable on appeal, the defendants in Roberts had invoked federal-officer removal and thus could obtain plenary review. But the Seventh Circuit seemed to think that this invocation of federal-officer removal was frivolous. The court accordingly suggested that the district court consider ordering the defendants to pay the plaintiffs’ fees and costs.

The Roberts Removal & Remand

Simplifying a bit, Roberts stemmed from the horrific mass shooting that took place in Highland Park, Illinois on July 4, 2022. The plaintiffs—victims of the shooting and their estates—sued several defendants, including the companies that manufactured and sold the gun used in the shooting.

The plaintiffs filed in Illinois state court. Some of the defendants then removed the action to federal court. They offered two grounds for removal: and federal-question removal under 28 U.S.C. § 1441(c) and federal-officer removal under 28 U.S.C. § 1442. (Although not all of the defendants consented to removal, that was unnecessary given the grounds for removal.)

The district court remanded the action. Some of the defendants then sought review in the Seventh Circuit. And in that appeal, they sought review of both proffered grounds for removal.

The Scope of Remand Reviews

28 U.S.C. § 1447(d) generally bars review from remand orders. But it includes two exceptions. One is federal-officer removal under § 1442. And the Supreme Court held in BP P.L.C. v. Mayor & City Council of Baltimore that when a defendant invokes § 1442, a court can review all proffered grounds for removal.

The Seventh Circuit could thus review both grounds for removal. And it quickly rejected both. (The opinion came down four days after oral argument.) Though regulated by the federal government, the defendants were not federal agents. Federal-officer removal thus did not apply. Nor did § 1441(c). Removal under that subsection requires multiple claims. And while the plaintiffs presented multiple theories of relief, they pleaded only one claim.

Discouraging Frivolous Invocations of Federal-Officer Removal

When the Supreme Court decided BP, I worried that defendants would make weak arguments for federal-officer removal (or civil-rights removal, § 1447(d)’s other exception) to obtain plenary appellate review:

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. . . . 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.

The Supreme Court said in BP that other tools would prevent the abuse of § 1447(d)’s exceptions. Section 1447(c) authorizes district courts to require removing defendants to pay the plaintiff’s fees and costs. Sanctions under Federal Rule of Civil Procedure 11 are also available.

I had my doubts as to how often courts would order the payment of fees and costs under § 1447(c) or Rule 11. I was accordingly pleased when the Seventh Circuit ended its opinion in Roberts with a suggestion that the district court require the defendants to pay “the plaintiffs’ costs and fees occasioned by the unjustified removal and appeal.”

This is the first time I’ve seen a court do so after BP. And if defendants continue making frivolous federal-officer-removal arguments, I hope it’s not the last.

Roberts v. Smith & Wesson Brands, Inc., 2024 WL 1506835 (7th Cir. Apr. 8, 2024), available at the Seventh Circuit and Westlaw

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