Supreme Court Decides BP P.L.C., et al. v. Mayor and City Council of Baltimore

On May 17, 2021, the Supreme Court held in BP P.L.C., et al. v. Mayor and City Council of Baltimore that when a remand order is appealable under 28 U.S.C. § 1447(d), the court of appeals may review the entire remand order, not just the grounds for removal giving rise to the order’s appealability.

This case involves claims by local government officials in the City of Baltimore that energy companies concealed the alleged environmental impact of their fossil fuels. But the sole focus of the Supreme Court’s decision is a point of procedure — the scope of review of a district court’s order remanding a case to state court.

The Mayor of Baltimore and the City Council sued various energy companies in Maryland state court for marketing fossil fuels without adequately disclosing their influence on climate change. The defendants removed the case to federal court, urging 28 U.S.C. § 1442(a)(1) (the federal officer removal statute) as a basis for removal, as well as several other bases for federal jurisdiction. The federal district court granted plaintiffs’ motion to remand the case back to Maryland state court, rejecting all of the proffered bases for federal jurisdiction. The energy companies appealed the remand order to the Fourth Circuit.

Typically, a remand order is not reviewable on appeal, but Section 1447(d) expressly allows appeal from a remand order where removal was sought under Sections 1442 or 1443. The Supreme Court granted certiorari to resolve a circuit split between the Seventh Circuit (holding Section 1447(d) authorized review of the entire remand order) and this decision (and those of several other Circuits), holding that review was available only insofar as the order rejected removal based on Sections 1442 and 1443.

The Court held that the entire order was reviewable. The plain language of Section 1447(d) — “an order remanding a case to the State court [pursuant to § 1442 or § 1443] shall be reviewable by appeal” — permits appellate review of the district court’s remand “order” without qualification. Because the district court’s remand order encompassed all of the asserted grounds for removal, the court of appeals had jurisdiction to review “each and every one of them.”

The Court rejected the notion that Congress had implicitly endorsed the limited review position of the Circuit courts that predated its 2011 amendment of Section 1447(d). Disagreeing with the dissenting opinion, the Court found it “most unlikely” that Congress intended to adopt the holding of a “smattering” of lower court opinions, especially given the plain meaning of the statutory language.

The Court found additional support in its “most analogous precedent,” Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199, 204 (1996). There the Court addressed the scope of review of an “order” under 28 U.S.C. § 1292(b), which permits interlocutory review of an order certified to involve a controlling question of law. A grant of review under that statute was held to permit review of the entire order, including “any issue fairly included within the certified order because it is the order that is appealable, and not the controlling question identified by the district court.” The Court rejected plaintiffs’ argument that use of the word “involving” in Section 1292(b) and the lack of any similar term in Section 1447(d) distinguished Calhoun. It also rejected plaintiffs’ reliance on other decisions, which the Court found “unique to their statutory contexts.”

The Court rejected all of plaintiffs’ counter-arguments as insufficient to overcome this plain reading. First, the Court declined to read this “exception” broadly, questioning the notion that it was an exception at all and observing that it owed exceptions only a “fair reading.” Second, the court responded to the parties “fencing” over statutory examples that Congress knows how to expand and limit the scope of review when it so desires, finding this drafting flexibility only confirms “that we are best served by focusing on the language it did employ.” Third, the Court rejected the argument that there was no appellate jurisdiction because the district court had not allowed the case to be removed under Section 1442, as novel, mistaken, and not raised below.

Finally, the Court found none of the policy arguments advanced by plaintiffs — the potential for delays and gamesmanship — could overcome the plain reading of the statute. Congress apparently viewed any marginal delays as an acceptable trade-off and had already addressed potential abuse by permitting sanctions for frivolous removal arguments. Moreover, Congress is free to revisit these issues and revise the Section 1447(d) anytime.

Accordingly, the Court reversed and remanded to the Fourth Circuit to review the entire remand order.

Justice Gorsuch delivered the opinion of the Court, in which Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Kavanaugh, and Barrett joined. Justice Alito took no part in the decision. Justice Sotomayor dissented, finding the Fourth Circuit’s reading of the statute was the more sensible one.