The Week in Federal Appellate Jurisdiction: September 27–October 3, 2020

Last week was relatively uneventful in the world of federal appellate jurisdiction. The Supreme Court granted cert on the scope of remand appeals when an exception to § 1447(d) applies, an issue I’ve been following for a while. Beyond that, there’s not much to report. A divided Tenth Circuit discussed the propriety of hearing a § 1292(b) appeal. The Third Circuit addressed its jurisdiction over a case that touched on patent issues. And the Fifth Circuit discussed applying the collateral-order doctrine in Administrative Procedure Act cases.

• Cert Grant on the Scope of § 1447(d) Appeals
• Quick Notes

Cert Grant on the Scope of § 1447(d) Appeals

On Friday, the Supreme Court granted cert in BP P.L.C. v. Mayor & City Council of Baltimore. The underlying suit involves Baltimore’s climate-change-related claims against oil and gas companies. The issue for the Court, however, is one of appellate jurisdiction, namely the scope of remand appeals under 28 U.S.C. § 1447(d).

Section 1447(d) generally bars appellate review of orders remanding a removed action to state court. It includes two exceptions: the courts of appeals can review a remand order when the case was removed under the federal-officer or civil-rights removal statutes. The courts of appeals have split on what else (if anything) courts can address when one of these exceptions applies: is the appeal limited to the expressly excepted grounds for removal (federal officer and civil rights), or can the court of appeals review other grounds for removal?

BP P.L.C. is one of several climate-change suits that has required the courts of appeals to answer this question. In a trio of recent decisions, three courts—the Fourth, Ninth, and Tenth Circuits—have held that the scope of appellate review includes only the exceptions. That is, the court of appeals can address only whether removal was proper under the federal-officer or civil-rights removal statutes; it lacks jurisdiction to review any other ground for removal. (The First Circuit was also set to weigh in on this issue in another climate-change suit, Rhode Island v. Shell Oil Products Co., No. 19-1818, though any decision in that case will probably be put off pending the Supreme Court’s decision.) These decisions conflict with some earlier court of appeals decisions, primarily those of the Seventh Circuit. The Supreme Court is now poised to resolve this split.

For more in-depth discussions of the issue and the recent climate-change appeals that have addressed it, see the following posts:

• A Deepened Split on the Scope of Remand Appeals discusses the Fourth Circuit decision underlying Friday’s cert grant.
• The Ninth Circuit on the Scope of Remand Appeals discusses the Ninth Circuit’s recent opinion on the issue, which expressed some sympathy for the other side of the split.
• The Tenth Circuit on the Scope of § 1447(d) Remand Appeals discusses the Tenth Circuit’s recent decision, which provides what is probably the most thorough (and, in my opinion, convincing) recent analysis of the issue.

Quick Notes

There were a few appellate-jurisdiction decisions worth mentioning from last week.

First, in United States v. Abouselman, the Tenth Circuit divided over the propriety of a certified appeal under 28 U.S.C. § 1292(b). The appeal came in a decades-long water-rights dispute, and it asked whether Spain had extinguished water rights half a millennium ago. The majority and dissent disagreed over (among other things) the propriety of an interlocutory appeal in a case that has been pending for decades and looks to be nowhere near its end.

In FTC v. AbbVie Inc., the Third Circuit held that it—not the Federal Circuit—had jurisdiction to review antitrust claims involving a patented drug. The claims at issue (involving theories of both reverse payments and sham litigation) did not necessarily involve patent law. Nor did they present substantial patent issues.

And in Louisiana Real Estate Appraisers Board v. FTC, the Fifth Circuit entertained the possibility that the collateral-order doctrine applied to judicial review under the Administrative Procedure Act. It held, however, that the order at issue (involving the denial of state-action immunity) did not meet all of the doctrine’s requirements.

United States v. Abouselman, 2020 WL 5792100 (10th Cir. Sep. 29, 2020), available at the Tenth Circuit and Westlaw.

FTC v. AbbVie Inc., 2020 WL 5807873 (3d Cir. Sep. 30, 2020), available at the Third Circuit and Westlaw.

Louisiana Real Estate Appraisers Board v. FTC, 2020 WL 5869072 (5th Cir. Oct. 2, 2020), available at the Fifth Circuit and Westlaw.