Monday, May 17, 2021
Today the Supreme Court issued a 7-1 decision in BP P.L.C. v. Mayor and City Council of Baltimore (covered earlier here). Justice Gorsuch writes the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Kavanaugh, and Barrett. Justice Sotomayor dissents, and Justice Alito did not participate.
At issue in the case is 28 U.S.C. § 1447(d), which forbids appellate review of a district court’s remand order “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.” Justice Gorsuch’s opinion begins:
This case began when Baltimore’s mayor and city council sued various energy companies for promoting fossil fuels while allegedly concealing their environmental impacts. But the merits of that claim have nothing to do with this appeal. The only question before us is one of civil procedure: Does 28 U. S. C. §1447(d) permit a court of appeals to review any issue in a district court order remanding a case to state court where the defendant premised removal in part on the federal officer removal statute, §1442, or the civil rights removal statute, §1443?
The answer to that question is: Yes. Justice Gorsuch’s opinion emphasizes in particular the use of the word “order” in § 1447(d): “[W]hen a district court’s removal order rejects all of the defendants’ grounds for removal, §1447(d) authorizes a court of appeals to review each and every one of them. After all, the statute allows courts of appeals to examine the whole of a district court’s ‘order,’ not just some of its parts or pieces.”
The majority does not, however, consider the merits of the defendants’ arguments in favor of removal:
The Fourth Circuit erred in holding that it was powerless to consider all of the defendants’ grounds for removal under §1447(d). In light of that error, the defendants ask us to consider some of those additional grounds ourselves. That task, however, does not implicate the circuit split that we took this case to resolve and we believe the wiser course is to leave these matters for the Fourth Circuit to resolve in the first instance.
Justice Sotomayor dissents. Her opinion concludes:
Section 1447(d) places “broad restrictions on the power of federal appellate courts to review district court orders remanding removed cases to state court.” Things Remembered, Inc. v. Petrarca, 516 U. S. 124, 127 (1995). After today’s decision, defendants can sidestep these restrictions by making near-frivolous arguments for removal under §1442 or §1443. Congress, of course, can amend §1447(d) to make even clearer that appellate review of a district court remand order extends to only §1442 or §1443. Because I believe §1447 already bears that meaning, I respectfully dissent.