News & Events

Supreme Court’s Grant of Certiorari Could Signal Change in Scope of Review for Remand Orders to State Courts

The removal of a state court action to federal court is often conceptualized in the context of 28 U.S.C. § 1441, where, but for the plaintiff’s choice of venue, the matter could have been filed in federal court pursuant to the district court’s original jurisdiction.  There are, however, other specialized removal doctrines, such as “federal officer removal,” that permit certain defendants to remove their cases.  See 28 U.S.C § 1442; see also 28 U.S.C § 1443 (civil rights removal).  The purpose of the “federal officer removal” doctrine is to prevent states from meddling with federal operations that may occur if states were permitted to prosecute state officials for the execution of their official federal duties.  See 28 U.S.C. § 1442(a)(1) (“The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity” is authorized to remove a state court action to federal court where that action is “against or directed” the federal official.)  Regardless of the basis of removal, a plaintiff can challenge the removal in district court and seek remand to state court.

Recently, the extent to which a remand order can be reviewed on appeal has come into question.   On October 2, 2020, the United States Supreme Court granted certiorari to address the issue.  The specific question is whether 28 U.S.C. § 1447 permits an appellate court to review any issue in a district court’s remand order where removal was predicated, in part, on the federal officer or civil rights removal statutes, 28 U.S.C. §§ 1442 and 1443, respectively.  See Mayor & City Council of Baltimore v. BP P.L.C., 952 F.3d 452 (4th Cir. 2020), cert. granted, No. 19-1189, 2020 WL 5847132 (U.S. Oct. 2, 2020); see also SCOTUS QPReport, Case No. 19-118, https://www.supremecourt.gov/qp/19-01189qp.pdf.  Ultimately, the Court’s decision on this question could significantly impact a plaintiff’s ability to keep certain defendants in state court.

The context of the case in which the question arises “is about whether a climate-change lawsuit against oil and gas companies belongs in federal court.”  Baltimore, 952 F.3d at 456–57.  Plaintiffs filed suit in Maryland state court against 26 multi-national oil and gas companies, including BP P.L.C., Chevron Corp., ExxonMobil Oil Corp., and others.  Plaintiffs allege these companies “substantially contributed to climate change by producing, promoting, and (misleadingly) marketing fossil fuel products long after learning the dangers associated with them.”  Id. at 457.

As a result, Plaintiffs seek to recover costs that the City of Baltimore incurred due to the various manifestations of climate change: rising sea levels, heatwaves, droughts, extreme precipitation, etc.  Plaintiffs alleged eight causes of action under Maryland state law: public nuisance (Counts I and II), strict liability failure to warn and design defect (III and IV), negligent failure to warn and design defect (V and VI), trespass (VII), and violations of the Maryland Consumer Protection Act (VIII).

Chevron removed the case to Maryland federal court, asserting eight separate grounds for removal, only one of which relied on the federal officer removal statute, 28 U.S.C. § 1442.  Ultimately, the District Court denied each of Defendants’ eight grounds for removal, and it remanded that matter to Maryland state court.  The Fourth Circuit affirmed, finding that Defendants failed to meet the three-part test for a private entity to qualify for this means of removal.  See Baltimore,  952 F.3d at 461–62 (“[T]o remove a case under § 1442(a)(1), a private defendant must show: ‘(1) that it “act[ed] under” a federal officer, (2) that it has “a colorable federal defense,” and (3) that the charged conduct was carried out for [or] in relation to the asserted official authority.’”) (quoting Sawyer v. Foster Wheeler LLC, 860 F.3d 249, 254 (4th Cir. 2017)); see also id. at 463 (“[W]e agree with Baltimore that none of [Defendants arguments] are sufficient to justify removal under the federal officer removal statute in this case . . .”).

In large part, the Fourth Circuit’s decision to affirm the remand order was predicated on its perceived lack of subject matter jurisdiction.  Section 1447(d) 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 the State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

Based on its holding in Noel v. McCain, 538 F.2d 633 (4th Cir. 1976) (appellate court lacked jurisdiction to review district court’s dismissal for failure to raise federal question), the Fourth Circuit reasoned that § 1447 only permitted review of Defendants’ removal based on the federal officer removal statute.

“Because the only ground for removal that is made reviewable by § 1447(d) here is federal officer removal under § 1442, Noel teaches that our jurisdiction is confined to this ground alone; it does not extend to the seven other grounds for removal raised by Defendants, even though the district court rejected them in the same remand order.”  Baltimore, 952 F.3d at 459.  However, the Fourth Circuit also recognized an alternative reading of the statute, i.e., that an appellate court reviews the entire remand order–not just a subset of it.  See Baltimore, 952 F.3d at 460 n.4 (collecting cases from other appellate circuits reaching the opposite conclusion).  The granting of cert by the Supreme Court is likely based on what appears to be a developing circuit court split on this issue.  See id.

The significance of this case extends far beyond climate change litigation.  If the Supreme Court sides with Defendants/Appellants, then a federal appeals court could review any grounds addressed in a district court’s remand order—so long as a defendant also sought removal under § 1442 and/or § 1443.  That result could, in theory, give defendants “another bite at the removal apple”—once at the district court and then again on appeal, and may incentivize litigants to more aggressively assert §§ 1442–1443 as grounds for removal.  Stay tuned.