Justice Traynor writing for a unanimous, en banc court, ruled that former Town of Newport (“Newport”) Police Chief Michael Capriglione could take office as a Newport Town Commissioner in Capriglione v. State of Delaware, Ex. Rel. Kathleen Jennings, Attorney General, No. 138, 2021 (Del. Oct. 1, 2021).  The Court overruled a Superior Court decision that prevented him from taking office.  The Superior Court ruled Town Commissioner Capriglione was ineligible for the office because his prior conviction for misdemeanor Official Misconduct was an infamous crime under Article II, Sec. 21 of the Delaware Constitution.  The Supreme Court held, however, that “under Section 21, only felonies can be disqualifying ‘infamous’ crimes.

Background

As previously discussed here on April 5, 2021, Newport elected Michael Capriglione to serve as a Commissioner.  Newport has a Council-Manager form of government with five Commissioners forming the town council, including the Mayor.  On May 19, 2018, while serving as Police Chief and on his way to teach a defensive driving course, Mr. Capriglione backed his police car into a parked car in the police department’s parking lot.  A surveillance camera recorded the collision, and Mr. Capriglione later ordered the deletion of the surveillance video capturing the collision.  As a result, a grand jury indicted him, and he eventually pleaded guilty to Careless or Inattentive Driving and Official Misconduct (resulting from the deletion of the surveillance video), both misdemeanor convictions.

The Constitution

The Delaware Constitution provides:

No person who shall be convicted of embezzlement of the public money, bribery, perjury or other infamous crime, shall be eligible to a seat in either House of the General Assembly, or capable of holding any office of trust, honor or profit under this State.

The Delaware Supreme Court’s Interpretation

In interpreting this provision, the Supreme Court analyzed the text, historic intent, and precedent.  The Court homed in on two portions of the text.  First, the Court noted that the provision did not include reference to “or misdemeanor,” as the impeachment provision does elsewhere in the Constitution.  Second, the Court noted the delineated crimes were all felonies or punishable by more than one year when the provision was drafted in 1987.  The Court also looked to the convention debates and found that the discussion focused on felonies.  The Court found “the constitutional text and the historical evidence of its understanding strongly suggest that Section 21’s ‘infamous crimes’ bar did not encompass offenses that were not felonies or punishable by more than one year in prison.” However, the Court did not find this dispositive and went on to analyze the existing case law interpreting the provision.

The Court discussed and analyzed numerous decisions from both the Supreme Court and the Superior Court that applied Section 21.  The Court concluded “before this case, Delaware’s Section 21 jurisprudence uniformly indicated that only felonies can be infamous crimes.  And although we have never explicitly announced this rule as a holding, we do so today.”  It is important to note, however, that not all felonies are necessarily infamous crimes.  The Court indicated “the totality of the circumstances” test is still good law in determining whether the felony is an infamous crime, because the section is a “character provision” with a “demanding norm.”[1]

Newly Added Importance

This decision and the Supreme Court’s discussion of the precedents took on added importance on October 11, 2021, when a grand jury indicted Delaware State Auditor Kathleen McGuiness on two felony and three misdemeanor counts.[2]  Auditor McGuiness pleaded not guilty to all charges.  These charges appear to represent the first time a statewide elected official has been indicted on felony charges while in office.

How does this decision impact the State Auditor?

  • First, the decision notes “that Section 21 only applies to final judgements of conviction.” This suggests the State Auditor may remain in office under this provision, while her charges are pending.
  • Second, should the parties seek to resolve the matter with a plea, a guilty plea solely on the misdemeanor charges would be insufficient to invoke Section 21. But a guilty plea or conviction on the felony charges would trigger the totality of the circumstances analysis. Additionally, the theft charge, related to her daughter’s state paychecks allegedly being deposited into a joint account owned by the two of them, could be considered embezzlement under the constitutional provision.
  • Third, this decision could inform analysis of another Delaware Constitutional provision using the term “infamous crime.”[3] The Constitution further provides that “[a]ll public officers shall hold their offices on condition that they behave themselves well. The Governor shall remove from office any public officer convicted of misbehavior in office or of any infamous crime.”

The potential application of the Supreme Court’s decision to the Auditor’s indictment could become in a moot point if the General Assembly seeks to remove the Auditor under Article III, Section 13 of the Delaware Constitution for “any reasonable cause.”  This provision gives the Governor power to remove an officer from office for any reasonable cause upon a 2/3 vote of both Houses of the General Assembly.  Accordingly, there may be a political resolution to this issue before a resolution of the criminal matter.

[1]   In re Request of the Government (Pupukayi), 950 A.2d 651, 657 (Del. 2008). However, 15 Del. C. § 7555(c)(1) prevents felons from holding municipal offices as a default rules unless a town’s charter says otherwise.

[2]   The charged crimes relate to allegations that the Auditor hired and supervised her daughter, whose state pay checks went into a joint bank account owned by the two of them, and alleged procurement violations for contracts with a political consulting group.  Additionally, she was charged for alleged conduct surveilling the conduct of potential witnesses against her.

[3]   Art. XV, Sec. VI.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On October 1, 2021, the Ninth Circuit Court of Appeals ruled in favor of MG+M client The Boeing Company (“Boeing”) in an appeal of an order that remanded the case to state court. The Ninth Circuit reversed the district court’s remand order and adopted Boeing’s argument that the thirty day removal clock is not triggered until “an amended pleading, motion, order, or other paper” makes the grounds for removal “unequivocally clear and certain.”[1]

The federal officer removal statute is codified at 28 U.S.C. § 1442 and permits removal if: (1) the removing party is a “person”; (2) a causal nexus exists between the plaintiff’s claims and defendant’s actions taken at the direction of a federal officer; and (3) the removing party has a colorable federal defense.[2] 28 U.S.C. § 1446 governs the corresponding procedure for such removal and allows two pathways for perfecting removal:  (1)  if the basis for removal is clear from the initial pleading, the case must be removed within thirty days from receipt of that pleading; or (2)  if the case stated by the initial pleading is not removable, the case must be removed within thirty days of receipt of “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”[3]

In the underlying case, Plaintiff sued Boeing and other defendants in Los Angeles Superior Court, alleging that she developed mesothelioma as a result of exposure to asbestos. Plaintiff’s Complaint failed to state any basis for removal, but Plaintiff later alleged that she was exposed to asbestos through the work her husband allegedly performed on Boeing aircraft while serving in the U.S. Marine Corps, thus triggering federal officer jurisdiction.  Boeing removed the case, pursuant to 28 U.S.C. § 1446(b)(3), within thirty days of ascertaining that the case was removable.[4]  Nevertheless, the district court, relying on its interpretation of Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1253 (9th Cir. 2006), rejected the “unequivocally clear and certain” standard for triggering removal argued by Boeing, and concluded that Boeing’s removal was untimely because it was in possession of “sufficient facts” to justify removal prior to receiving Plaintiff’s amended discovery responses.  Accordingly, the district court granted Plaintiff’s motion to remand and awarded attorneys’ fees to Plaintiff, finding that Boeing’s removal was objectively unreasonable. Boeing appealed.

The Ninth Circuit reversed the district court, finding that Boeing removed the case within thirty days of ascertaining that the case was removable.  Dietrich v. The Boeing Company, et al., No. 19-56409 (Ninth Circuit 2021) at 14.  The Court explained that the district court’s reliance on Durham’s statement that the removal clock begins to run when “sufficient facts” are disclosed was misplaced because it “does not tell us when the facts disclosed” are sufficient.  Id. at 13 (emphasis in original).  Its reliance equated “facts sufficient to allow removal with facts sufficient to require removal.” Id.  (emphasis in original).  To avoid such confusion in the future, and in furtherance of the “bright line” approach announced in Harris v Bankers Life & Cas. Co., 425 .3d 689, 694 (9th Cir. 2005), the Court adopted the “unequivocally clear and certain” standard, thus requiring the basis for removal contained in “an amended pleading, motion, order, or other paper” be unequivocally clear and certain before the removal clock is triggered.[5]

Based on the fact that complaints require only a short and plain statement of the grounds for each claim, a defendant may not have reasonable grounds to remove a case from state to federal court based on a plaintiff’s initial pleading.  As a result, 28 U.S.C. § 1446(b)(3) provides a second pathway for removal where a defendant receives “an amended pleading, motion, order or other paper from which it may first be ascertained that the case is . . . removable.”  The Ninth Circuit’s adoption of the “unequivocally clear and certain standard” provides clarity to all litigants moving forward with respect to this second pathway for removal by addressing when facts are sufficient to trigger removal, and will “’bring[] certainty and predictability’ . . . ‘avoid[] gamesmanship in pleading,’” and avoid litigation over whether facts were sufficient or the defendant’s investigation was sufficient to trigger removal.  Id. at 12, quoting Harris, 425 .3d 689 at 697.

[1] 28 U.S.C. § 1446(b)(3) states, in pertinent part, that “if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable.”

[2] 28 U.S.C. § 1442; see Durham v. Lockheed Martin Corp., 445 F.3d 1247, 1251 (9th Cir. 2006) (citing Jefferson County v. Acker, 527 U.S. 423, 431 (1999)); Mesa v. California, 489 U.S. 121, 124–25, 131–35 (1989).

[3] 28 U.S.C. § 1446(b)(3).

[4] It was not until Plaintiff provided amended responses to discovery, and for the first time confirmed that she alleged asbestos exposure from military aircraft manufactured by Boeing pursuant to government contracts, that Boeing could ascertain that the case was removable.

[5] The Fifth and Tenth Circuits previously adopted the “unequivocally clear and certain” standard.  Bosky v. Kroger Tex., LP, 288 F.3d 208, 211 (5th Cir. 2002); Paros Props. LLC v. Colo. Cas. Ins. Co., 835 F.3d 1264, 1269 (10th Cir. 2016).  The Ninth Circuit found that other circuit courts have also used this same standard, if not by the same name.  Id. at 11-12; see Romulus v. CVS Pharmacy, Inc., 770 F.3d 67, 75 (1st Cir. 2014) (requiring “a clear statement of the damages sought or . . . [a] paper set[ting] forth sufficient facts from which the amount in controversy can easily be ascertained by the defendant by simple calculation” for removal based on diversity jurisdiction); Moltner v. Starbucks Coffee Co., 624 F.3d 34, 38 (2d Cir. 2010) (per curiam) (requiring “a paper that explicitly specifies the amount of monetary damages sought” for removal based on diversity jurisdiction); Berera v. Mesa Med. Grp., PLLC, 779 F.3d 352, 364 (6th Cir. 2015) (requiring “solid and unambiguous information that the case is removable,” which “is akin to actual notice”); Walker v. Trailer Transit, Inc., 727 F.3d 819, 825 (7th Cir. 2013) (requiring “specific and unambiguous notice that the case satisfies federal jurisdictional requirements and therefore is removable”).

On October 1, 2021 Governor Newsom approved Senate Bill Number 447 (“SB 447”) amending the California Code of Civil Procedure to permit damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest. Like many States, in California a cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent’s successor in interest and an action may be commenced by the decedent’s personal representative or, if none, by the decedent’s successor in interest. As previously reported by the Defense Litigation Insider in September 2021 here, prior to the enactment of SB 447, California law limited the damages recoverable in such an action or proceeding to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived. Specifically, California law prohibited the recovery of damages for the decedent’s pain, suffering, or disfigurement in that action or proceeding.

SB 447, now codified as California Code of Civil Procedure (“CCP”) Section 377.34 as amended, permits damages for a decedent’s pain, suffering, or disfigurement to be recovered in an action brought by the decedent’s personal representative or successor in interest if the action or proceeding was granted a specified preference under CCP Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026. The amendment requires plaintiffs recovering under this statute to report their awards to the Judicial Council and the Judicial Council will provide this information to the Legislature. We anticipate that after a period of collecting this data the Legislature will revisit whether to maintain CCP Section 337.34 in its current iteration or consider amendments to same.

The new law goes into effect in January 2022 and reads, as amended, in full as follows:

(a) In an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable are limited to the loss or damage that the decedent sustained or incurred before death, including any penalties or punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived, and do not include damages for pain, suffering, or disfigurement.
(b) Notwithstanding subdivision (a), in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.
(c) A plaintiff who recovers damages pursuant to subdivision (b) between January 1, 2022, and January 1, 2025, inclusive, shall, within 60 days after obtaining a judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages, submit to the Judicial Council a copy of the judgment, consent judgment, or court-approved settlement agreement, along with a cover sheet detailing all of the following information:
(1) The date the action was filed.
(2) The date of the final disposition of the action.
(3) The amount and type of damages awarded, including economic damages and damages for pain, suffering, or disfigurement.
(d) (1) On or before January 1, 2025, the Judicial Council shall transmit to the Legislature a report detailing the information received pursuant to subdivision (c) for all judgements, consent judgements, or court-approved settlement agreements rendered from January 1, 2022, to July 31, 2024, inclusive, in which damages were recovered pursuant to subdivision (b). The report shall comply with Section 9795 of the Government Code.
(2) This subdivision shall become inoperative on January 1, 2029, pursuant to Section 10231.5 of the Government Code.
(e) Nothing in this section alters Section 3333.2 of the Civil Code.
(f) Nothing in this section affects claims brought pursuant to Chapter 11 (commencing with Section 15600) of Part 3 of Division 9 of the Welfare and Institutions Code.

Code Civ. Proc., § 377.34 (amendments emphasized).

Senate Bill 447 (“S.B. 447”), which proposes a change to the current California law to allow recovery of noneconomic damages, such as pain and suffering, after a plaintiff dies is headed to the governor’s desk after the state Senate approved amendments by the Assembly.[1] Currently, California Code of Civil Procedure Section 377.34 limits damages solely to economic damages if a plaintiff dies before judgment enters.[2] As amended, the bill attempts to alter Section 377.34 and would no longer exclude noneconomic damages if the cause of action or proceeding was granted a preferential trial date before 2022, or if it was filed between January 1, 2022, and January 1, 2026. The call for change in procedure comes after lobbying from interest groups primarily consisting of plaintiff attorneys, who stand to benefit if this proposed legislation is enacted.

After passing in the state Senate, the Assembly revised the bill to further limit the scope of S.B. 447 and added a reporting requirement for plaintiffs who received noneconomic damages between January 1, 2022, and January 1, 2025. In such cases, the plaintiff must submit to the Judicial Council, the policymaking body of the California courts, the amount and type of damages received. The Judicial Council will, in turn, create a report detailing the information for the state Legislature. On September 3, 2021, the Senate voted in concurrence with the Assembly’s amendments and ordered the bill to be proofread and prepared for Governor Gavin Newsom to either veto or approve.

DISCUSSION

Introduced by California State Senator John Laird (D), S.B. 447 has some compelling arguments in its favor and has received enough votes to advance.  The bill, however, also has dozens of registered opponents with several arguments against it. Proponents of the bill note that most states allow a decedent’s personal representative or successor in interest to collect damages currently barred by Section 377.34, and claim that defendants take advantage of the present law, which contributes to the influx of cases awaiting trial in California. Opponents cite the longstanding rules in California and argue that such changes in legislation are unnecessary, as there are alternative means to recoup noneconomic damages.

While proponents attempt to refute economic concerns that may materialize if the bill is enacted by arguing that similar legislation exists in a majority of states, California, having the fifth largest economy globally, has a complex economic system that may not necessarily be comparable to most states. According to the fiscal impact report by the Assembly Appropriations Committee, the bill could cost state agencies, including Cal Fire and CalTrans, hundreds of thousands, if not millions, of dollars. Additionally, concerns over the impact the bill may have in driving businesses out [3] of California, while not formally addressed by registered opponents, certainly are valid considerations.[4]

Arguments in Support of S.B. 447

There are essentially three arguments made in support of S.B. 447: (1) that California is among the minority of states in the country that prohibit recovery for intangible damages or damages not economic in nature; (2) the current legislation provides a “death discount” that incentivizes defendants to delay trials in bad faith; and (3) the current law creates a burden on the court through these delays.

The first argument presented by the co-sponsors of this bill, Consumer Attorneys of California (“CAOC”) and Consumer Federation of California (“CFC”), states that California is one of only five states that prohibits a decedent’s personal representative or successor in interest from recovering intangible damages. The sponsors argue that this minority status suggests that California’s current legislation is unjust and claim that drawing a line to limit the amount of damages a plaintiff may recover is unfair.  While the proponents of S.B. 447 provided statutes from other states regarding survival damages, the Senate Bill Policy Committee Analysis of S.B. 447 notes that they did not reveal any information regarding how these states’ laws differ from California’s laws in other aspects of survival damages, such as limits to punitive damages which California does not impose.[5] The Committee further describes this prohibition as arbitrary. If a plaintiff dies one day before judgment, pain and suffering damages are not awarded to the plaintiff’s estate, but if a plaintiff dies a day after receiving a judgment, the plaintiff’s estate receives these damages.

The second argument, also made by CAOC and CFC, states that the legislation as it now stands provides a “death discount” to defendants and rewards them when a plaintiff dies. This, they claim, creates an incentive to act in bad faith and delay trials in order to receive such a discount. The co-sponsors add that “unscrupulous defendants take every advantage of these delays, refusing to agree to bench trials and then objecting to virtual trials, in the hopes that the plaintiffs will die before trial.” This appears to be the interests groups’ most compelling argument, as it lays the foundation for their third—that this incentive to delay trials creates a burden on the court system. CFC writes that the existing law serves to protect bad actors, specifically, corporate defendants and insurers who have “despicably . . . sought to exploit the law by purposely delaying court cases in the hopes that the victim will die.” [6] The Senate Bill Policy Committee Analysis addresses these assumptions concerning defendants’ motives, and concludes that the committee “is not privy to, and need not judge, the motives of defense counsel and defendants.” [7] The Committee finds that it is difficult to know the intention behind requests and if a litigation strategy is based on legitimate concerns or purposefully designed to delay trial until a plaintiff dies.[8]

Arguments in Opposition to S.B. 447

There are several arguments made in opposition to S.B. 447, including the economic impact on California should the legislation be enacted, but the most prominent arguments are: (1) intangible damages such as pain and suffering are personal to the plaintiff; (2) intangible damages are not meant to punish the defendant, but compensate the plaintiff and make them whole; (3) other options exist, like accelerating the trial date for ill or elderly plaintiffs; and (4) another cause of action arises that is not available unless the plaintiff dies.

The first argument, made by the California Defense Council (“CDC”), contends that pain and suffering rewards are intended to provide some measure of comfort in the form of compensation to a person who experienced them. The CDC states that, while it makes sense for a decedent’s estate and heirs to collect economic damages on the behalf of the decedent, it does not make sense to do so for intangible damages that are personal to the plaintiff. This argument is noted in the Committee’s analysis to align with the California Supreme Court decision that finds it represents the “Legislature’s reasonable judgment that, once deceased, the decedent cannot in any practical way be compensated for his injuries or pain and suffering, or be made whole.” [9]

The second argument the CDC makes is that damages for pain and suffering are not intended to punish the defendant, but rather to compensate the plaintiff, except in “exceptional cases of willful, despicable conduct.” The CDC argues that even then, California allows a decedent’s estate and heirs to collect punitive damages. The opponents claim that because damages come in essentially two forms, to make a plaintiff whole and to punish defendants for their conduct, compensatory damages in this situation should be limited as it would otherwise be repetitive.

Third, the CDC offers that there are alternative methods in California law to ensure plaintiffs have their day in court. The CDC argues that these methods, such as trial preferences for ill and elderly plaintiffs, make it not only unnecessary, but also unwise to introduce additional recovery by a third party for a plaintiff’s noneconomic harm. Additionally, court involvement to expedite a trial date is preferable, as a defendant would be less likely to arbitrarily delay a trial and plaintiffs may have their day in court.

The fourth and final argument, not made by interest groups but referred to in the Senate Bill Policy Committee’s Analysis of S.B. 447, is that if a plaintiff dies, their loved ones and representatives would have another cause of action available that would not have been if the plaintiff were alive—i.e., a wrongful death action. Although the Committee’s analysis did not fully explore this argument, it purports that it would be unfair to allow a decedent’s estate, heirs, and representatives to recover for pain and suffering because they may now also bring another claim once the plaintiff dies. The damages recoverable in a wrongful death claim may also include pain and suffering personal to these individuals due to the death of the plaintiff. Due to the fact that this cause of action only arises from the plaintiff’s death, allowing for compensation on the plaintiff’s behalf for their personal intangible damages would essentially double the damages recovered should the plaintiff die prior to the entry of judgment.

Other opponents of the bill, such as the Cooperative of American Physicians (“CAP”) and forty other organizations have concerns regarding the scope of the bill. Their arguments are based on a belief that interest groups are taking advantage of the pandemic to pass their agenda, and that the bill should be amended only to include cases that were actually affected by the pandemic. [10]

CONCLUSION

Although S.B. 447 has garnered enough support to advance in both houses, the bill has many registered opponents with several valid arguments against the bill. While the Legislature appeared to be moved by the argument that a prohibition on the recovery of noneconomic damages after a plaintiff dies is arbitrary and not in step with the majority of states, it seems to have failed to consider  how California’s laws differ from other states, and that passage of this bill may allow plaintiffs and their estates a windfall by doubling their recovery.

Governor Newsom has until October 10, 2021 to sign or veto S.B. 447.  In the meantime, it is likely that these same interest groups on both sides of this issue will continue to lobby in an effort to convince Governor Newsom of the wisdom of their position.  It remains to be seen, even if Governor Newsom signs the bill into law, how S.B. 447 may impact case valuation and litigation going forward.

[1] “Bill Text – SB-447 Civil Actions: Decedent’s Cause of Action.” California Legislative Information, 2021, https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB447.

[2] “Code of Civil Procedure. Article 3.” California Legislative Information, 2021, https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CCP&division=&title=3.&part=2.&chapter=4.&article=3.

[3]Schoolov, Katie. “Why Some Tech Companies and Billionaires Are Leaving California.” CNBC, 23 Jan. 2021, www.cnbc.com/2021/01/23/why-companies-are-fleeing-california.html.

[4] “California Proposed Trial Damages Change Threatens Businesses.” The National Law Review, 10 June 2021, www.natlawreview.com/article/california-proposed-trial-damages-change-threatens-businesses.

[5] “Bill Status.” California Legislative Information, 2021, https://leginfo.legislature.ca.gov/faces/billStatusClient.xhtml?bill_id=202120220SB447.

[6]Clark, Thomas. “Bill Analysis.” California Legislative Information, 22 Apr. 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[7]Clark, Thomas. “Bill Analysis.” California Legislative Information, 22 Apr. 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[8] “Bill Analysis.” California Legislative Information, 25 June 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[9] “Bill Analysis.” California Legislative Information, 25 June 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

[10] “Bill Analysis.” California Legislative Information, 25 June 2021, https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=202120220SB447.

Defendants may have greater access to federal appeals courts thanks to a recent Supreme Court decision concerning district court remand orders. The Supreme Court recently settled a circuit split over the authority of federal appeals courts to review district court remand orders, as well as the scope of that review, under 28 U.S.C. § 1447(d). In BP P.L.C., et al. v. Mayor and City Council of Baltimore, the court held that appellate courts have jurisdiction to review all of a district court’s grounds for remand — not just those based on the propriety of federal officer or civil rights jurisdiction — where the case was removed, based at least in part on 28 U.S.C. §§ 1442 and/or 1443.

The case was originally filed in Maryland state court by the City of Baltimore, which alleged that the defendant energy companies caused the city to sustain injuries related to climate change. Two defendants removed the case to the United States District Court for the District of Maryland on several grounds, including federal officer jurisdiction. The defendant energy companies asserted that they were acting under the direction of federal officers in light of their alleged contractual obligations to the U.S. government. The city moved to remand the case, arguing that the federal court lacked subject matter jurisdiction.

The district court agreed with the city and entered an order of remand, saying in part that federal officer jurisdiction was lacking. Immediately after this decision, the defendants attempted to secure a stay of the remand order from both the district court and Fourth Circuit Court of Appeals. Both courts, however, denied defendants’ efforts to stay the remand order pending appeal, finding that defendants were unlikely to prevail on appeal.

Continue Reading Supreme Court settles circuit split over remand orders under 28 U.S.C § 1447(d)