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.
In denying the stay, the Fourth Circuit held “that when a case is removed on several grounds, appellate courts lack jurisdiction to review any ground other than the one specifically exempted from § 1447(d)’s bar on review.” In reaching this decision, the Fourth Circuit considered only the grounds for remand, as opposed to the grounds for removal. Accordingly, the Fourth Circuit took a very narrow view of 28 U.S.C. § 1447(d), interpreting the statute to permit appellate review of remand orders only when the grounds for remand are based on a finding that there is no federal officer or civil rights jurisdiction.
A number of other circuits have adopted this same narrow interpretation of 28 U.S.C. § 1447(d). The defendants had attempted to rely on the Seventh Circuit Court of Appeals’ interpretation of the same statute that, instead, analyzed the grounds for removal — not remand — to allow appellate review of a remand decision as long as the case was removed under §§ 1442 or § 1443, federal officer or civil rights jurisdiction, as in Lu Junhong v. Boeing Co., 792 F.3d 805 (7th Cir. 2015).
The Supreme Court granted certiorari to resolve the split in the circuits’ analysis of the appellate rights afforded by 28 U.S.C. § 1447(d), which states:
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 State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.
The Supreme Court based its decision on the plain language of this statute, and sided with the defendants, holding that an appeals court can review a remand “order,” including all grounds for remand, when a case is removed based on 28 U.S.C. § 1442 or § 1443, federal officer or civil rights jurisdiction.
The court began its analysis of the statute by deciphering the word “order,” which it defined as a “written direction or command delivered by … a court or judge,” as noted in Black’s Law Dictionary 1322 (2019). This makes an “order remanding a case” a formal command from a district court that returns a case to the state court, and the remand order from the district court in this case rejected all of the defendants’ grounds for removal. The court reasoned that the plain language of the statute requires that “when a district court’s removal order rejects all of the defendant’s grounds for removal, § 1447(d) authorizes a court of appeals to review each and every one of them.”
The court then construed the phrase “removed pursuant to section 1442 or 1443,” as meaning that to remove a case “pursuant to” these sections simply means that the defendant’s notice of removal must argue that “the case is removable ‘in accordance with or by reason of’ one of those provisions,” as said in Black’s Law Dictionary 1402 (1968). Accordingly, once the defendants removed the case pursuant to § 1442, the entire remand order, including every ground for remand, became reviewable on appeal.
The court concluded its interpretation by finding that §1447(d) contains no language that limits appellate review to the propriety of federal officer or civil rights jurisdiction, stating, “[i]nstead and again, § 1447(d) permits appellate review of the district court’s remand order — without any further qualification.”
In basing its holding on the plain language of the statute to reach its conclusion, the Court’s majority rejected the city’s public policy and statutory interpretation arguments, finding: (1) “‘even the most formidable’ policy arguments cannot ‘overcome’ a clear statutory directive,” quoting Kloeckner v. Solis (2012); and (2) that it has “no license to give statutory exemptions [such as those provided by §1447] anything but a fair reading,” per Food Marketing Institute v. Argus Leader Media (2019). It explained that its task is to interpret and apply the law’s plain meaning as faithfully as it can rather than “to assess the consequences of each approach and adopt the one that produces the least mischief,” as noted in Lewis v. Chicago (2010).
The Supreme Court’s interpretation of 28 U.S.C. § 1447(d)’s exception to allow appellate review of remand “orders” when removed pursuant to §§ 1442 and 1443 rejects the narrow view held by a majority of circuit courts and potentially expands defendants’ access to federal courts, particularly those that contract to provide goods and services to the federal government. Armed with greater certainty of their appellate rights upon remand, defendants may more frequently avail themselves of removal and the appellate review available to them. But, while the Supreme Court’s more expansive view of the scope of appellate review may now allow for the review of remand orders based on a number of grounds that heretofore were barred from review, defendants would be wise to refrain from frivolously including federal officer and/or civil rights jurisdiction as a basis for removal just to ensure appellate review of any remand orders. As the Supreme Court warned, “a district court may order a defendant to pay the plaintiff’s costs and expenses (including attorney’s fees) if it frivolously removes a case from state court. Id. at 13.