423 F.Supp.3d 1066
D. Colo.2019Background
- Plaintiffs (Boulder County, San Miguel County, and City of Boulder) sued major fossil-fuel companies in Colorado state court alleging public/private nuisance, trespass, unjust enrichment, CCPA violations, and civil conspiracy based on defendants’ fossil-fuel production, marketing, and alleged concealment of climate risks.
- Defendants removed to federal court asserting six bases for federal jurisdiction: federal common law (federal-question/Grable), complete preemption, federal enclave, federal-officer removal (28 U.S.C. § 1442), Outer Continental Shelf jurisdiction, and bankruptcy-related jurisdiction (28 U.S.C. § 1452).
- The district court granted plaintiffs’ motion to remand and concluded defendants failed to carry their burden on the asserted federal-jurisdiction grounds.
- Defendants filed a notice of appeal and moved to stay the remand pending appeal, arguing (inter alia) appellate conflict among circuits on federal-common-law removability and that a stay was needed to protect appellate rights and avoid duplicative/state-court proceedings.
- The district court denied the stay: it explained § 1447(d) generally bars appellate review of remand orders except narrow exceptions (notably § 1442), found defendants unlikely to succeed on federal-officer jurisdiction, found no irreparable harm from remand, and concluded the balance of harms and public interest favored remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether appellate review of the remand may extend beyond the § 1447(d) exceptions (i.e., allow review of the entire remand order) | Remand not reviewable except for narrow statutory exceptions (e.g., § 1442) | Tenth Circuit should review the entire remand order because an appeal is permitted as to § 1442 and precedent (Coffey/Yamaha) allows broader review | Court: Likely appellate review is limited to issues tied to § 1442; Coffey and Yamaha do not compel full-order review here |
| Whether a stay of the remand pending appeal should issue (Nken factors) | Opposes stay; stresses prompt state-court adjudication and § 1447(d) bar to review | Stay needed to protect appeal rights, avoid duplicative litigation, and allow appellate development on complex climate-jurisdiction issues | Court: Denied stay; defendants failed to show likelihood of success or irreparable harm; public interest and plaintiffs’ interest in timely resolution weigh against stay |
| Whether defendants are likely to succeed on appeal on federal-officer removal (§ 1442) | Remand appropriate; federal-officer exception inapplicable | Federal-officer statute provides a basis for removal because defendants’ actions were at direction of federal authorities | Court: Defendants did not show the requisite strong likelihood; precedents require a high degree of federal control and causal nexus absent here |
| Whether defendants will suffer irreparable harm without a stay | Remand harmless; litigation in state court may proceed and federal courts can control return if needed | Risk of duplicative proceedings, burdensome discovery, and possible mootness of appeal if state court proceeds first | Court: Monetary/time burdens and speculative duplicative litigation do not constitute irreparable harm; harms to plaintiffs/public from delay weigh against stay |
Key Cases Cited
- Grable & Sons Metal Prods. v. Darue Eng'g & Mfg., [citation="545 U.S. 308"] (2005) (federal-question jurisdiction under Grable)
- Powerex Corp. v. Reliant Energy Servs., [citation="551 U.S. 224"] (2007) (§ 1447(d) bar to appellate review of remand orders)
- Nken v. Holder, [citation="556 U.S. 418"] (2009) (standard for stays pending appeal and four-factor test)
- Yamaha Motor Corp. v. Calhoun, [citation="516 U.S. 199"] (1996) (scope of appellate review of certified interlocutory orders)
- Sampson v. Murray, [citation="415 U.S. 61"] (1974) (litigation expense alone does not constitute irreparable harm)
- Renegotiation Bd. v. Bannercraft Clothing Co., [citation="415 U.S. 1"] (1974) (financial cost is not irreparable harm)
- Am. Elec. Power Co. v. Connecticut, [citation="564 U.S. 410"] (2011) (federal common-law limits in climate-change context)
- Kivalina v. Exxon Mobil Corp., [citation="696 F.3d 849"] (9th Cir. 2012) (climate-related claims and federal-common-law issues)
- Coffey v. Freeport-McMoRan Copper & Gold, [citation="581 F.3d 1240"] (10th Cir. 2009) (CAFA context and appellate discretion)
- Diné Citizens Against Ruining Our Env't v. Jewell, [citation="839 F.3d 1276"] (10th Cir. 2016) (rejecting relaxed stay standards)
- Mainstream Mktg. Servs. v. FTC, [citation="345 F.3d 850"] (10th Cir. 2003) (stay/appeal standards referenced)