U.S. Supreme Court Nixes Remand of Environmental Suit Against Oil Company For Now

BP P.L.C. v. Mayor of Baltimore, 2021 U.S. LEXIS 2586 *; _ S.Ct. _; 2021 WL 1951777 (S.Ct. May 17, 2021)

An appeal of an order granting a Motion to Remand is generally not permitted except when removal is sought based on the Federal Officer Removal Statute¹ or the Civil Rights Act of 1964 (not relevant in this matter). Either statute permits a party then to appeal the order to remand to the appropriate federal court of appeals. Removal from state the federal court is often sought asserting several bases for federal jurisdiction. The issue in this case was whether the Fourth Circuit Court of Appeals committed error affirming the trial court’s order of remand when it only addressed one basis for federal jurisdiction claimed by the defendant. In granting certiorari, the Court resolved a split between the Fourth Circuit and the Sixth Circuit (Lu Junhong v. Boeing Co., 792 F.3d 805, 811 [2015]) in the interpretation of 28 U.S.C. §1447(d).

After the City of Baltimore filed suit against BP P.L.C. (BP) and other major oil companies in state court alleging various violations of state law predominantly alleging a failure to warn about the dangers of the products the defendants make, BP filed to remove the suit to federal court asserting several grounds for removal: federal question (28 U.S.C. §1331), the Outer Continental Shelf Lands Act (43 U.S.C. §1349[b]), admiralty jurisdiction (28 U.S.C. §1333), the bankruptcy removal statute (28 U.S.C. §1452) and the Federal Officer Removal Statute (28 U.S.C. §1441[a], hereinafter FORS). As the basis for FORS jurisdiction, BP maintained that “some of their challenged exploration, drilling, and production operations took place at the federal government’s behest.” (2021 U.S LEXIS 2586 *7)

The trial court in its order remanding the case addressed each allegation of federal jurisdiction advanced to support removal and granted the Motion to Remand. On appeal, the U.S. Fourth Circuit Court of Appeals affirmed but only based on the Federal Officer Removal Statute.

The Supreme Court, in an opinion by Justice Gorsuch (Justice Sotomayor was the sole dissenter, and Justice Alito took no part in the opinion), noted that FORS along with the Civil Rights Act of 1964 allow for appeal of orders of remand. (28 U. S. C. §1447[d]). The Fourth Circuit erred in its failure to address all bases of federal jurisdiction asserted in the removal complaint by only addressing the removal based on the FORS. In this case, the order of the trial court addressed every basis of federal jurisdiction alleged by the defendant. It is not uncommon for a removing party to assert many statutory bases for removal. “[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.” (2021 U.S. LEXIS 2586 *11)

BP requested the Supreme Court to address all the bases it asserted for removal. But, the Court declined stating that the circuit split was limited to the sole issue before the Court and that it would be wiser for the Fourth Circuit to address those issues. The judgment of the Fourth Circuit Court of Appeals was vacated; the case was remanded for further proceedings in accordance with the opinion.

The full opinion may be reached at this hyperlink:  

https://www.supremecourt.gov/opinions/20pdf/19-1189_p86b.pdf

¹ “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.” 28 U. S. C. §1447(d).