The Ninth Circuit on the Scope of Remand Appeals

In County of San Mateo v. Chevron Corp., the Ninth Circuit held that energy companies could not remove several climate-change suits to federal court via 28 U.S.C. § 1442, the federal-officer removal statute. The court also reaffirmed the narrow scope of remand appeals under 28 U.S.C. § 1447(d). The Ninth Circuit held in 2006 that the scope of these appeals is limited to the express exceptions in § 1447(d); the court lacks jurisdiction to review any other proffered grounds for removal. San Mateo saw no reason to deviate from that holding.

The Fourth Circuit recently reached the same conclusion as San Mateo. But a circuit split exists on this issue. The San Mateo opinion acknowledged this split and expressed some receptiveness to the other side. And a recent cert petition from the Fourth Circuit’s decision asks the Supreme Court to resolve the matter.

The San Mateo climate-change litigation

Several California municipalities sued several energy companies in California state court. The municipalities alleged that the energy companies’ conduct “is a substantial factor in causing the increase in global mean temperature and consequent increase in global mean sea surface height.” The energy companies removed these suits to federal court, invoking a variety of grounds for federal jurisdiction. Among them was federal-officer removal under § 1442. The district court rejected all proffered grounds for federal jurisdiction and remanded the suits back to state court. The energy companies then appealed to the Ninth Circuit.

The dispute over the scope of remand appeals

The Ninth Circuit first had to address the scope of its appellate jurisdiction. I discussed the scope of remand appeals in some depth when the Fourth Circuit recently addressed it; see my post A Deepened Split on the Scope of Remand Appeals. Briefly, § 1447(d) generally prohibits appellate review when a district court remands a suit for lack of subject-matter jurisdiction. But the statute contains two exceptions: when removal was based on 28 U.S.C. § 1442—the federal-officer removal statute—or on 28 U.S.C. § 1443—the civil-rights removal statute.

In removing the municipalities’ suits, the energy companies had invoked the federal-officer removal statute. So the Ninth Circuit had jurisdiction to address that ground for removal. But what about the other grounds? The energy companies argued that once appellate jurisdiction exists to review one ground of removal, review of the district court’s remand order was plenary. After all, § 1447(d) speaks of reviewing “an order” remanding a case that was removed under the federal-officer removal statute.

The Ninth Circuit sticks with the narrow scope

The Ninth Circuit rejected this argument and held that the scope of its review extended only to the express exceptions in § 1447(d). The court accordingly lacked jurisdiction to review the other grounds for removal. The Ninth Circuit had held as much in 2006’s Patel v. Del Taco, Inc. And the San Mateo court saw no reason to deviate from that decision. The energy companies’ main argument was that the Removal Clarification Act of 2011—which added § 1447(d)’s exemption for federal-officer removal—abrogated Patel. But Congress passed the Act at a time when every court of appeals to address the issue had adopted the narrow view of § 1447(d)’s scope:

[W]hen Congress amended § 1447(d) to insert “1442 or” before “1443,” it was against a backdrop of unanimous judicial interpretation of § 1447(d) as permitting review of only the grounds for removal identified in the exception clause. Congress did not give any indication that it intended to overrule the then-unanimous interpretation of § 1447(d) as limiting judicial review of a remand order to the grounds listed in the exception clause.

This led the Ninth Circuit to conclude that Congress did not abrogate Patel. Instead, Congress had incorporated “Patel’s (and six other circuits’) interpretation of § 1447(d).”

A split and a cert petition

The Ninth Circuit also noted that the circuits had split on this issue. In Lu Junhong v. Boeing Co., for example, 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. And the Ninth Circuit expressed some receptiveness to this alternative:

Were we writing on a clean slate, we might conclude that Lu Junhong provides a more persuasive interpretation of § 1447(d) than Patel.

But the court was bound by Patel.

San Mateo adds further grist to a recent cert petition on the scope of remand appeals under § 1447(d). The petition comes from the recent Fourth Circuit decision mentioned above. The defendants in that case filed for cert at the end of March, and the response is due June 29, 2020.

County of San Mateo v. Chevron Corp., 2020 WL 2703701 (9th Cir. May 26, 2020), available at the Ninth Circuit and Westlaw.