BP p.l.c. v. Mayor and City Council of Baltimore
When a defendant removes a case to federal court on multiple grounds — including the federal officer removal statute — and the district court remands the case back to state court, may the appellate court review all of the defendant's grounds for removal, or only the federal officer removal ground?
The Decision
7-1 decision · Opinion by Neil Gorsuch · 2021
Majority Opinion— Neil Gorsuchconcurring ↓dissent ↓
In a 7–1 decision authored by Justice Neil Gorsuch, the Supreme Court reversed the Fourth Circuit and held that when a case is removed to federal court under the federal officer removal statute and the district court remands, the appellate court may review the remand order in its entirety — including all grounds the defendant raised for removal, not just the federal officer ground.
The majority focused closely on the statutory text. Section 1447(d) states 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 reasoned that the phrase 'removed pursuant to section 1442' modifies the word 'removed' and describes the whole case, not individual grounds for removal. Since the energy companies did in fact remove the case pursuant to § 1442 — among other statutes — the entire remand order qualifies for appellate review. As the Court put it, cases are removed and remanded as units; they are not divisible into discrete, independently reviewable parts.
The Court rejected Baltimore's argument that this reading would effectively gut the general rule barring appeals of remand orders. Justice Gorsuch acknowledged that a defendant might add a federal officer removal claim to gain broader appellate review, but noted that this concern did not change the plain meaning of the statute. The Court emphasized that Congress chose the words it used, and the judiciary's role is to apply the text, not to re-engineer it based on policy concerns about strategic behavior. The Court also pointed out that the 2011 amendments to § 1447(d), which broadened the exception to include § 1442 cases, reflected Congress's deliberate choice to expand appellate review in this context.
Importantly, the Court did not decide whether the energy companies actually had valid grounds for removal on any theory. It addressed only the threshold question of whether the Fourth Circuit had the authority to consider all of those grounds. Having answered yes, the Court sent the case back to the Fourth Circuit to evaluate each of the removal arguments on the merits.
Concurring Opinions
Justice Alito joined the majority opinion in full but did not write a separate concurrence. Justice Barrett took no part in the consideration or decision of the case, having recused herself.
Dissenting Opinions
Sonia Sotomayor
Justice Sotomayor argued that the majority's broad reading of § 1447(d) undermined the longstanding rule that remand orders are generally unreviewable. She contended that the exception for federal officer removal cases should be limited to reviewing only the federal officer ground itself, because that is the specific concern Congress sought to address when it amended the statute.
- The general non-reviewability rule for remand orders exists to prevent delay and keep litigation moving; allowing full appellate review whenever a defendant invokes the federal officer removal statute, even alongside many other grounds, threatens to swallow this rule.
- The majority's reading creates a perverse incentive for defendants to assert federal officer removal claims — even weak or frivolous ones — as a strategic tool to unlock appellate review of their entire removal petition, effectively circumventing Congress's careful limitation on remand appeals.
- The phrase 'removed pursuant to section 1442' is best read to limit appellate review to the question of whether removal was proper under that specific statute, not to open the floodgates to review of entirely unrelated removal grounds.
Background & Facts
In 2018, the Mayor and City Council of Baltimore filed a lawsuit in Maryland state court against BP and more than two dozen other major energy companies. Baltimore alleged that these companies had long known their fossil fuel products contributed to climate change but engaged in campaigns to conceal those dangers from the public. The city claimed this conduct caused substantial harm — including flooding, extreme heat, and infrastructure damage — and brought claims under Maryland state law, including public nuisance, private nuisance, trespass, and failure to warn.
The energy companies removed the case from state court to federal court, arguing that a federal court was the proper forum. They cited a wide array of grounds for federal jurisdiction: the federal officer removal statute (arguing they had acted under the direction of federal officers in producing fossil fuels), the Outer Continental Shelf Lands Act, federal enclave jurisdiction, federal common law preemption of state claims related to interstate pollution, bankruptcy removal, and general federal question jurisdiction. In total, the companies raised roughly eight distinct bases for keeping the case in federal court.
The federal district court rejected every single one of these arguments and ordered the case sent back — or 'remanded' — to Maryland state court. The companies then appealed to the U.S. Court of Appeals for the Fourth Circuit. Under federal law, remand orders are generally not appealable. However, Congress carved out an exception in 28 U.S.C. § 1447(d) for cases removed under the federal officer removal statute (§ 1442) or the civil rights removal statute (§ 1443). The Fourth Circuit interpreted this exception narrowly: it agreed it could review whether federal officer removal was proper, but refused to consider any of the other removal grounds. It then affirmed the remand on the federal officer ground alone.
The Supreme Court agreed to hear the case to resolve whether an appellate court reviewing a remand order under the § 1447(d) exception is limited to examining only the federal officer removal ground, or whether it may examine the entire remand order, including all other bases the defendants offered for removal. This question had significant practical importance for a wave of climate change lawsuits filed by cities and states against energy companies in state courts across the country.
The Arguments
BP argued that when Congress made remand orders appealable in federal officer removal cases, it meant the entire remand order is reviewable — including every ground for removal the defendants raised, not just the federal officer ground. They contended that a 'case' is removed as a whole, and the remand order likewise sends back the whole case, so it cannot logically be split into separate parts for review purposes.
- The text of § 1447(d) refers to 'an order remanding a case' removed pursuant to § 1442, not an order remanding a particular ground for removal — suggesting the entire order is reviewable.
- There is no principled way to split a single remand order into reviewable and non-reviewable components, because cases are removed and remanded as indivisible units.
- Limiting appellate review to just the federal officer removal ground would undermine Congress's purpose in allowing appeal in these cases, because parties could lose federal jurisdiction on easily reviewable grounds that the appellate court would be powerless to correct.
Baltimore argued that the exception to the bar on appellate review of remand orders should be read narrowly, allowing review only of the specific removal ground — federal officer removal — that Congress singled out for special treatment. Allowing review of all removal grounds would swallow the general rule that remand orders are not appealable.
- The general rule in § 1447(d) is that remand orders are not reviewable, and exceptions to that rule should be construed narrowly to preserve Congress's intent to prevent delay in returning cases to state court.
- A defendant could strategically add a frivolous federal officer removal claim simply to unlock full appellate review of every other removal ground, effectively nullifying the bar on remand appeals.
- The phrase 'removed pursuant to section 1442' should be read to mean that only the § 1442 ground is reviewable, because that is the specific statutory basis Congress chose to exempt from the general non-reviewability rule.