The United States Supreme Court is expected to resolve a critical circuit split this term concerning a defendant’s right to appeal orders of remand based on several grounds when removal from state to federal court is triggered by federal officer or civil rights jurisdiction. To do this, the Court must examine the plain language and legislative intent of at least six different provisions contained in Title 28 of the United States Code, clarify the duties of the Courts of Appeal, and potentially even redefine the meaning of an “order” that is issued by a U.S. district court.

On January 19, 2021, the Court heard oral argument in BP P.L.C., et al. v. Mayor and City Council of Baltimore.  This case – which garnered the attention of nearly two dozen amici curiae, including the United States government and the United States Chamber of Commerce – was originally filed in Maryland state court by the City of Baltimore (the “City”).  Mayor and City Council of Baltimore v. BP P.L.C., et al., 388 F.Supp.3d 538, 568 (D. Md. 2019).  The City alleged that the defendant energy companies caused the City to sustain injuries related to climate change.  Id. at 548.  Two of the defendants removed the case to the United States District Court for the District of Maryland on several grounds, including federal officer jurisdiction.  Id. at 567.  The defendant energy companies asserted that they were acting under the direction of federal officers in light of their alleged contractual obligations with the U.S. government to supply fuel to the U.S. Navy.[1]  Id. at 568.

The City moved to remand the case from the district court to Maryland state court by arguing that the federal court lacked subject matter jurisdiction.  Id. at 549, 568-69.  The District of Maryland agreed with the City and entered an order of remand which held, in part, that federal officer jurisdiction was lacking.  Id. at 567-69. Specifically, the district court determined that the defendant energy companies failed to demonstrate that their “conduct [to invoke federal officer jurisdiction] was carried out ‘for or relating to’ the alleged official authority” and that they failed to show that “a federal officer controlled their total production and sales of fossil fuels . . . or that the federal government directed them to conceal the hazards of fossil fuels or prohibited them from providing warnings to consumers.”  Id. at 568.

The defendants immediately attempted to secure a stay of the remand order from both the district judge and Fourth Circuit Court of Appeals.  Id. at 549; Mayor and City Council of Baltimore v. BP P.L.C., et al., 452 F.3d 452, 458 (4th Cir. 2020).  However, both efforts failed.  Mayor and City Council of Baltimore, 452 F.3d at 458; Mayor and City Council of Baltimore, 388 F.Supp.3d 549.  In denying the defendants’ application for a stay and appeal of the remand order, 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.”  Mayor and City Council of Baltimore, 452 F.3d at 459 (citing Noel v. McCain, 538 F.2d 633 (4th Cir. 1976))[2].  The Fourth Circuit’s decision was based on its interpretation of 28 U.S.C § 1447(d), which it found, similarly to a number of its sister circuits, permits appellate review of remand orders only when the grounds for remand are based on a finding of no federal officer or civil rights jurisdiction, pursuant to 28 U.S.C. §§ 1442 and 1443, respectively.  Id. at 459; see also § 1447(d) (Westlaw).  Defendants had relied on a different interpretation of the statute – one held by the Seventh Circuit – that the statute permits appellate review of a remand decision as long as the case was removed pursuant to §§ 1442 and 1443, federal officer or civil rights jurisdiction. See Lu Junhong v. Boeing Co., 792 F.3d 805, 810–13 (7th Cir. 2015).

As such, litigants and federal courts are reading the “plain language” of § 1447(d) in two different ways. Thus, it is now up to the Supreme Court to determine whether the exception language contained in § 1447(d) governs the whole provision or serves only as a discrete sub-issue conferring limited appellate review.  This is not an uncomplicated task.

The text of § 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 State court from which it was removed pursuant to section 1442 or 1443 of this title shall be reviewable by appeal or otherwise.

28 U.S.C.A § 1447(d) (West 2011).

The defendant energy companies argue that the federal officer exception to the § 1447(d) prohibition on reviewing remand orders encompasses the whole order.   See Petition for Writ of Certiorari at 11, 17-20, BP P.L.C., et al. v. Mayor and City Council of Baltimore, No. 19-1189 (4th Cir. May 31, 2020).  That is, because they removed the case pursuant to § 1442, the appeals court has authority to review the whole order of removal as issued by the district court, including all bases for the remand decision.  Id. at 5, 17-20.  The City (as affirmed by the District of Maryland and Fourth Circuit), conversely, maintains that only the part of the district court’s order concerning federal officer jurisdiction is reviewable.  See Brief for Respondent in Opposition at 20-26, BP P.L.C., et al. v. Mayor and City Council of Baltimore, No. 19-1189 (4th Cir. June 29, 2020).

Both positions are well reasoned and are backed by intricate arguments.  On the one hand, the energy defendants rely on the plain language of the statute, which provides 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.”  28 U.S.C.A § 1447(d) (emphasis added).  In support of this argument, defendants point to Yamaha Motor Corp., U.S.A., v. Calhoun, where the Supreme Court held that orders certified for appellate review pursuant to the federal interlocutory decisions statute (28 U.S.C. § 1292) are reviewable by circuit courts to “address any issue fairly included within the certified order.”[3] See Petition for Writ of Certiorari at 11-12, Mayor and City Council of Baltimore, No. 19-1189 (quoting Yamaha Motor Corp., U.S.A., v. Calhoun, 516 U.S. 199, 205 (1996)).  Adopting this approach would mean that the whole order of remand entered by the District of Maryland, including all bases for the decision to remand, are reviewable by the Fourth Circuit, and not just the federal officer jurisdiction component.  Simply diagraming the sentence or the syntax of § 1447(d) seemingly favors the energy defendants.  The phrase “removed pursuant to section 1442 or 1443 of this title” naturally addresses the basis for a case’s removal, and not the form of the order of remand—it reads to exclude federal officer and civil rights actions from any jurisdictional limitations on reviewability.

On the other hand, the Fourth Circuit reasoned that the word “order” carries with it a different context depending on the type of interlocutory appeal sought. Mayor and City Council of Baltimore, 452 F.3d at 458-61.  Thus, the Fourth Circuit restricted its jurisdiction to the review of the “district court’s conclusion that removal was improper under the federal officer statute” because § 1447(d) commands “review of issues that are ordinarily unreviewable,” as opposed to § 1292(b), which “only affects the timing of review.” Id. at 460-61.  Consequently, the Fourth Circuit, in limiting its review to a portion of the district court’s order relating to federal officer jurisdiction and not the remaining bases for the order, held that the energy defendants lacked sufficient contractual relationships with the U.S. government to properly invoke federal officer jurisdiction and upheld the district court’s remand.  Id. at 452.

At the Supreme Court, the City seeks the uniform adoption of the Fourth Circuit’s holding that “the only ground for removal that is made reviewable by § 1447(d) here is federal officer removal under § 1442.”  Brief for Respondent in Opposition at 20-26, Mayor and City Council of Baltimore, No. 19-1189 (quoting Mayor and City Council of Baltimore, 452 F.3d at 459).  The City’s argument is predicated on the Supreme Court’s long-standing precedent that exception clauses (such as the second clause of § 1447(d)) must be “narrowly construed.”  See e.g., United States v. Scharton, 285 U.S. 518, 521-22 (1935)).  Read closely, a fair case can be made that the only exceptions to the prohibition of appellate review of remand orders extend to a district court’s reasoning in rejecting federal officer or civil rights jurisdiction.  Additionally, the legislative history of the 2011 amendments to § 1447(d), which added the § 1442 exception, omit any discussion of appellate jurisdictions.  H.R. Rep. No. 112-17, at 1-7 reprinted in Removal Clarification Act of 2011, at 420-25 (2011).

As mentioned above, the Fourth Circuit is not alone in its view. It arguably is joined by a majority of appeals courts including the Second, Third, Fourth, Fifth, Sixth, Eight, Ninth, and Eleventh Circuits.  See Cty. of San Mateo, 960 F. 3d at 597, n.8 (collecting cases).  But precedent from the Seventh Circuit supports the energy defendants’ arguments.  See e.g., Lu Junhong v. Boeing, 792 F.3d 805 (7th Cir. 2015).[4]  Putting legislative history and methods of narrow construction aside, Justice Scalia’s now famous quip that “[w]ords have meaning. And their meaning doesn’t change”[5] will almost certainly find their way into a majority or dissenting opinion in this case.

As the above illustrates, a circuit split exists that the Supreme Court must resolve by determining the proper scope of the word “order.”  If the City prevails, “order” will mean only a portion of a court’s directive, and may entirely preclude appellate review of many cases removed pursuant to §§ 1442 and 1443.  For the energy defendant companies and the Seventh Circuit, a win means that “order” is the full document, from caption to judge’s signature, thus allowing appellate review for any case removed pursuant to §§ 1442 and 1443, no matter the basis for remand.   In short, the outcome of this case will determine whether the § 1447(d) appellate review exception clause applies to a case removed on federal officer or civil rights grounds, as opposed to those limited portions of the remand order that discusses the district court’s jurisdictional reasoning.

The impact of the Court’s decision will be significant.  As the Chamber of Commerce argues, allowing complete appellate review of remand orders:

[E]nables the courts of appeal to correct otherwise-dispositive errors.  For example, if a defendant removes a case on federal-officer and federal-question grounds, and the district court correctly rejects the first but wrongly rejects the second, complete review will ensure that the case is ultimately litigated in federal court, where it belongs.  Conversely, under the decision below, the case will be litigated in state court even though the district court had federal-question jurisdiction and the defendant had a statutory right to defend the case in federal court.

Brief for the Chamber of Commerce of the United States of America as Amicus Curiae at 5, BP P.L.C., et al. v. Mayor and City Council of Baltimore, No. 19-1189 (4th Cir. April 30, 2020).  In determining the proper scope of appellate review, the Court must weigh the plain meaning of the words contained within that statute, while remaining ever mindful of Congress’ intent.  It should not acknowledge an appellate right of review where one should not exist.  It also must be careful not to invite removals asserting improper federal officer or civil rights actions to achieve “back door” federal court review.  Diagraming sentences, parsing statutory provisions, and divining congressional meaning is the stock of Supreme Court review; and we likely will know what “order” means in June 2021.




[1] A removing defendant is not required to submit evidence to support its Notice of Removal.  In fact, the statute that governs removal of actions requires only that the Notice of Removal contain “a short and plain statement of the grounds of removal.” 28 U.S.C. § 1446(a); Betzner v. The Boeing Company, 910 F.3d 1010, 1016 (7th Cir. 2018) (quoting Dart Cherokee Operating Basin Co. v. Owens, 135 S.Ct. 547, 551 (2014).

[2] The Fourth Circuit’s holding is in line with decisions of a majority of federal circuit courts that have addressed this issue. See e.g., State Farm Mut. Auto. Ins. Co. v. Baasch, 664 F.2d 94 (2d Cir. 1981) (per curiam); Claus v. Trammell, 773 F. App’x 103, 103 (3rd Cir. 2019); Robertson v. Ball, 534 F.2d 63, 66 & n.5 (5th Cir. 1976); Detroit Police Lieutenants & Sergeants Ass’n v. City of Detroit, 597 F.2d 566, 567 (6th Cir. 1979); Jacks v. Meridian Res. Co., 701 F.3d 1224, 1229 (8th Cir 2012); Cty. of San Mateo v. Chevron Corp., 960 F.3d 586 (9th Cir. 2020); Alabama v. Conley, 245 F.3d 1292, 1293 n.1 (11th Cir. 2001); Dixit v. Dixit, 769 F. App’x 879, 880 (11th Cir. 2019).

[3] There is no dispute that the energy defendants’ appeal to the Fourth Circuit was interlocutory.  § 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such 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, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, that application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.

[4] The issue also is under consideration by the First and Tenth Circuits.  See Rhode Island v. Cheron Corp., 393 F. Supp. 3d 142 (D.R.I. 2019), appeal docketed, No. 19-1818 (1st Cir. Aug. 20, 2019); Board of County Commissioners of Boulder County v. Suncor Energy (U.S.A.) Inc., 405 F. Supp. 3d 947, (D. Colo. 2019), appeal docketed, No. 19-1330 (10th Cir. Sep. 9, 2019).

[5] Jennifer Senior, In Conversation: Antonin Scalia, New York Magazine (Oct. 4, 2013),