Appellate Decisions

The Ninth Circuit on the Scope of Remand Appeals

The Ninth Circuit expressed some openness to the other side of the split on the scope of remand appeals. But it stood by an earlier decision.

May 28, 2020

By Bryan Lammon

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.

recent posts

No Perlman Appeals When the Same Issues Could Be Raised via Contempt
The Eleventh Circuit held that a privilege claimant cannot take a Perlman appeal when the claimant could have raised the same issues via its own contempt appeal.
A Rule 4 Conflict: The Prison-Mailbox Rule v. the Mistaken-Filing Rule
The Fifth Circuit held that when an imprisoned appellant mistakenly mails a notice of appeal to the court of appeals, the notice is deemed filed when deposited in the prison mail system.
The Month in Federal Appellate Jurisdiction: September 2024
Another split on pure Bivens appeals, no equitable exceptions for Rule 4(a)(4), another failure to apply the Rule 3(c) amendments, and more.
Serving, Filing, and Equitable Exceptions to Rule 4(a)(4)
The Second Circuit reiterated its rule that a post-judgment motion must be timely filed—not merely served—to reset the appeal clock. The court added that Rule 4(a)(4) does not allow for equitable exceptions and addressed an order-designation issue, too.
Yet Another Split Rejection of Pure Bivens Appeals
The Ninth Circuit joined the Third and Tenth Circuits in rejecting pure Bivens appeals. But like those courts, the Ninth’s decision was split.

related posts

No Remand Appeals in Naturalization Proceedings
The Fourth Circuit applied the administrative-remand rule to a district court order that remanded a long-pending naturalization application to the Citizenship and Immigration Services.
Appealing Waiver-Based Remands
The courts of appeals have split on whether they can review a remand order based on waiver, and the Fifth Circuit doubts that it’s on the correct side.
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.
Appealable Orders, Not Appealable Documents
Just because the entirety of an “order” is appealable does not mean that other orders in the same document are appealable, too.
Appealing § 1447(e) Remands, Genuine & Otherwise
The Second Circuit tackled a series of issues concerning remand appeals, including whether § 1447(d)’s bar on appeals applies to § 1447(e) remands and whether an appellate court can inquire into the true grounds for a remand.