The Tenth Circuit held that when an exception to § 1447(d) applies, the court can review only the expressly excepted grounds for removal.
July 10, 2020
Another court of appeals has weighed in on the scope of remand appeals. 28 U.S.C. § 1447(d) generally prohibits appellate review of orders remanding an action to state court. But it includes two express exceptions: when an action is removed under the federal-officer or civil-rights removal statutes. Recent climate-change litigation has required the courts of appeals to address the scope of remand appeals when one of those exceptions applies. And they’ve held that the scope of appellate review includes only the exceptions; the court of appeals cannot address any other proffered ground for removal.
This week, the Tenth Circuit reached the same conclusion in its own climate-change appeal. In Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., the court held that it could review only whether removal was proper under the federal-officer removal statute and not any other ground for removal. The opinion is probably the most thorough (and, in my opinion, convincing) recent analysis of the issue. The court walked through § 1447(d)’s text and context, similar statutes, cases interpreting those statutes, the presumption against jurisdiction, practical considerations, and § 1447(d)’s underlying purpose. But like the other recent decisions on the scope of remand appeals, we should expect a petition for rehearing en banc or cert (or both) in the near future.
The Split on the Scope of Remand Appeals
I’ve recently covered the split on the scope of § 1447(d) remand appeals in posts about the Fourth and Ninth Circuit’s decisions in similar climate-change suits:
Briefly,§ 1447(d) generally prohibits appellate review when a district court remands a suit for lack of subject-matter jurisdiction:
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.
The statute also 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. So parties that remove a case under either of those statutes can immediately appeal an order remanding the case to state court.
The courts have split on the scope of these appeals. Everyone agrees that the court of appeals can address the two expressly excepted grounds for removal: federal-officer and civil-rights removal. But what about other grounds for removal? That is, is the entire order remanding the action appealable, or just the grounds for removal that § 1447(d) excepts from the bar on appellate review? Most courts hold that the scope of review is limited to the express exceptions. But the Seventh Circuit holds otherwise, and two (or maybe three) other courts of appeals have inconsistent caselaw on the issue.
The issue has come up a few times recently in climate-change litigation. Municipalities have sued oil and gas companies for climate-change harms in state court. The defendants have tried to remove these actions to federal court. And if the district court remands the actions, the defendants have sought plenary appellate review, arguing that their invocation of the federal-officer removal statute means the general bar on remand appeals doesn’t apply. The Fourth and Ninth Circuits have each rejected this argument, holding that remand appeals are limited to the express exceptions in § 1447(d).
The Decision in Suncor Energy
This week, the Tenth Circuit did the same.
The Colorado Climate-Change Litigation
The plaintiffs in Suncor Energy are three counties in Colorado. They brought several climate-change-related claims against Suncor Energy and ExxonMobil in Colorado state court:
The complaint asserts that the Counties face substantial and rising costs to protect people and property within their jurisdictions from the threat of global warming, including from increasing and intensified heat waves, wildfires, droughts, and floods across Colorado. The Counties allege that Defendants have substantially contributed to this local environmental harm by engaging in unchecked fossil fuel activity—producing, promoting, refining, marketing, and selling—which has resulted in excess greenhouse gas emissions.
The plaintiffs did not seek to regulate or stop the defendants’ activities but instead wanted the defendants to “pay a pro rata share of the costs the Counties have incurred and will incur based on Defendants’ averred contribution to climate alteration, and to help remediate the harm the Counties claim has been and will be caused by Defendants’ allegedly tortious and illegal conduct.”
The defendants quickly removed the case to federal court. They asserted a slew of different grounds for federal jurisdiction, including jurisdiction under the federal-officer removal statute. The district court eventually rejected all of these proffered grounds for federal jurisdiction and remanded the case to state court. The defendants then tried to appeal. And in that appeal, they sought review of six different grounds for removal, including federal-officer removal.
The Tenth Circuit on the Scope of Remand Appeals
The Tenth Circuit ultimately held that it had jurisdiction to review only the specified exceptions in § 1447(d). In reaching that conclusion, the court methodically walked through a variety of tools for interpreting § 1447(d).
Text
The Tenth Circuit began its analysis with § 1447(d)’s text. It noted that the word “order” could not be interpreted in isolation. The word was in § 1447(d)’s “except” clause—“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.” This clause’s language—particularly its reference to actions “removed pursuant to section 1442 or 1443”—expressly envisioned actions that were removed only under those two sections. It did not envision actions removed under those sections and some other ground for federal jurisdiction:
Because the “except” clause refers to removals “pursuant to section 1442 or 1443,” not pursuant to those sections in part, it does not expressly contemplate the situation in which removal is done pursuant to one of these sections and other grounds. And as a result, it also does not expressly contemplate the situation in which remand is granted regarding such mixed grounds for removal.
(Cleaned up.) So the text alone did not clearly address the situation of a mixed removal and remand, i.e., removals and remands based on both § 1442/1443 and some other ground.
The Context
The court accordingly turned to context. Section 1447(d)’s first clause—“An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise”—necessarily informed the meaning of the “except” clause. Given that the first clause’s general prohibition on reviewing remands, the Tenth Circuit concluded that it must read the “except” clause narrowly. To do otherwise would risk undermining § 1447(d)’s primary clause:
An expansive reading of § 1447(d)’s ambiguous “except” clause to allow for plenary review would risk [eviscerating Congress’s legislative judgment against remand reviewability]: it would let defendants skirt the primary operation of the provision—its absolute prohibition against appeal of the vast majority of subject matter jurisdiction-based remands—by simply including a colorable § 1442 or 1443 basis in their petition for removal. A broad construction would likewise risk the exception swallowing the general rule, by turning § 1447(d)’s secondary clause into a jurisdictional loophole allowing appellants to do indirectly what they cannot do directly.
(Cleaned up.)
If Congress intended for plenary review so long as a defendant invoked § 1442 or 1443, it could have said so. But it didn’t. And there was nothing else in § 1447(d) to suggest that Congress had that intent.
Yamaha Motors & § 1292(b)
The Tenth Circuit also rejected the argument that an “extra-statutory context”—the Supreme Court’s decision in Yamaha Motor Corp., U.S.A. v. Calhoun—determined the scope of remand appeals.
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 defendants argued that the word “order” in § 1447(d) should have the same meaning as the Supreme Court gave the word in § 1292(b). Note, that argument underlies the circuit split on this issue. The Seventh Circuit found this argument convincing in Lu Junhong v. Boeing Corp., which is the major court of appeals decision holding that the scope of remand appeals is plenary once one of § 1447(d)’s exceptions apply.
The Tenth Circuit wasn’t convinced. It agreed with the Fourth Circuit 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 although a word is often given the same meaning when used in different parts of the same statute, that presumption does not apply when a word is used in different statutes. Section 1292(b) and § 1447(d) come from different statutes.
The Tenth Circuit also noted the “contextual differences” between § 1447(d) and § 1292(b). Section 1292(b) addresses when—not whether—parties can appeal a district court decision. Although review would normally come after the end of district court proceedings, § 1292(b) permits an earlier appeal. Section 1447(d), in contrast, addresses whether parties can appeal a district court decision at all. That’s a meaningful difference:
Because § 1292(b) imposes limits on neither the type of order that may be certified for review nor the underlying basis for such order, an appellate court reasonably “may address any issue fairly included within the certified order.” But because § 1447(d) does limit the orders that shall be reviewable by both type (remand) and basis (those removed pursuant to § 1442 or 1443), such limiting language is sensibly read to cabin appellate review to the two enumerated removal bases contemplated by the statute, thereby animating a discrete kind of district court remand order.
(Quoting Yamaha Motor.) The “contextual contrast” of these two statutes led the court “to the natural conclusion that the same word employed in each provision conveys a distinct meaning.”
Coffey & § 1453(c)(1)
The Tenth Circuit also distinguished § 1447(d)’s use of the word “order” from 28 U.S.C. § 1453(c)(1)’s. The latter provision is part of the Class Action Fairness Act, and it gives courts of appeals discretion to review orders remanding (or declining to remand) class actions to state courts:
[N]otwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed . . . .
In Coffey v. Freeport McMoran Copper & Gold, the Tenth Circuit held that § 1453(c)(1) permits discretionary review of all grounds addressed in a removal order, not just removal under the Class Action Fairness Act. Coffey had relied on Yamaha Motor, and the defendants in Suncor argued that Coffey required a similar reading of § 1447(d).
The Tenth Circuit again disagreed. Unlike § 1447(d), § 1453(c)(1) has no limiting language on the scope of the appeal:
While § 1453(c)(1) concerns “an order . . . to remand a class action,” § 1447(d) concerns “an order remanding a case . . . removed pursuant to section 1442 or 1443.” “Class action” identifies a broad category of case, which a defendant can remove to federal court via any number of bases besides those created by CAFA. But “removed pursuant to section 1442 or 1443” identifies specific statutory removal bases that must be addressed in any corresponding remand order.
That wasn’t the only important difference. The Tenth Circuit also noted the discretionary nature of § 1453(c)(1) appeals and the risk of leaving defendants to control the scope of the appeal:
The distinction between granting control over appellate jurisdiction to the court, and ceding such control to the defendant—who is sole master of her petition for removal—further suggests the definition of “order” applied to § 1292(b) in Yamaha and imported to § 1453(c)(1) in Coffey is a poor fit for the unique context of § 1447(d). In other words, a more expansive scope of jurisdiction is sensible when the appellate courts may exercise their discretion as gatekeepers, but not when the defendant holds the key to appellate review.
Other Considerations
The Tenth Circuit accordingly held that, when read in context, the term “order” in § 1447(d) unambiguously referred only to the aspects of an order that addressed federal-officer and civil-rights removal. But given the statute’s arguable ambiguity, the court went on to address several other reasons supporting its narrow reading of § 1447(d).
First was the presumption against jurisdiction. Federal courts are courts of limited jurisdiction. Statutes conferring federal jurisdiction—including those conferring appellate jurisdiction—should be strictly construed. So were there any ambiguity in § 1447(d), the presumption against jurisdiction would require the narrower reading.
Second, the Tenth Circuit noted that Congress appeared to approve of the narrow reading. In 2011, Congress added § 1447(d)’s exception for cases removed under § 1442. (Before that, § 1447(d)’s exception applied only to cases removed under § 1443.) When Congress made this change, “every court of appeals to address the issue in a published opinion interpreted § 1447(d)‘s ’except’ clause to create appellate jurisdiction only over the asserted § 1443 basis for removal, not the entire remand order.” Yet Congress made only a minor change to § 1447(d) and did nothing to suggest a broader scope of appellate review than the court of appeals had given the statute. The Tenth Circuit assumed that Congress was aware of the unanimous interpretation of § 1447(d) and thereby ratified that interpretation by doing nothing.
Third, the Tenth Circuit determined that a narrow scope of appellate review was consistent with § 1447(d)’s purpose. The general bar on appellate review exists to speed along the resolution of a removed case by limiting litigation over federal jurisdiction. A narrow scope of appellate review furthers that purpose.
Along those lines, the Tenth Circuit also rejected the argument—put forth by both the Seventh Circuit in Lu Junhong and the authors of Federal Practice & Procedure—that summary decisions and sanctions would sufficiently deter defendants from dragging out litigation with weak federal-officer or civil-rights removal arguments. A court might quickly resolve a weak federal-officer removal argument but need much more time and effort to resolve other asserted grounds for removal. The litigation in Suncor provided a great example of this:
[E]xpanding review to the entire remand order would force this court to grapple with complex judge-made doctrines of “arising under” jurisdiction—implicating federal common law, contested and substantial embedded federal issues, and the complete preemption doctrine—in addition to more “bespoke jurisdictional law” pertaining to federal enclaves and the outer continental shelf. The pages of the Federal Supplement are rapidly filling with the extended discussions occasioned by application of these doctrines to global warming-based state law actions.
So plenary review could lead to much more than marginal delay. And neither summary decisions nor sanctions would effectively deter parties from using § 1442 and § 1443 to expand the scope of appeals:
[S]hould the scope of § 1447(d) review be expanded, we harbor serious doubt that either tool will prove dexterous enough to prevent the delay of litigation on the merits Congress so clearly sought to avoid. As one Amicus notes, “[i]f alleging federal-officer removal opens the door to appellate review of all other asserted bases for removal, no lawyer would neglect to find a defensible, if inadequate, way to assert that peculiar form of removal to avoid the bar on interlocutory appeal for all other justifications for removal.”
That is, plenary review creates a real risk that lawyers would use any marginal federal-removal or civil-rights removal arguments to ensure plenary appellate review of their more substantial arguments.
The Merits of Federal-Officer Removal
On the merits of federal-officer removal, the Tenth Circuit affirmed the district court’s decision to remand the action to state court.
A Third Cert Petition
The defendants in the Fourth Circuit case have already petitioned for cert. Yesterday, the defendants in the Ninth Circuit decision moved for rehearing en banc. If the Ninth Circuit declines to rehear the case, a cert petition will probably follow. And we can add to that a petition from Suncor. So we might see the Supreme Court address the scope of remand appeals next term.
Board of County Commissioners v. Suncor Energy (U.S.A.) Inc., 2020 WL 3777996 (10th Cir. July 7, 2020), available at the Tenth Circuit and Westlaw.