952 F.3d 452
4th Cir.2020Background
- In July 2018 the Mayor and City of Baltimore sued 26 oil and gas companies in Maryland state court, alleging that defendants produced, promoted, and concealed the climate risks of fossil fuels and thereby caused climate-change-related injuries; all claims were state-law tort and consumer-protection causes of action seeking money and equitable relief.
- Chevron (and other defendants) removed the case to federal court asserting eight separate removal grounds, including federal-question removal, OCSLA/admiralty/ bankruptcy jurisdiction, and removal under the federal-officer statute, 28 U.S.C. § 1442.
- The district court remanded, rejecting each asserted basis for federal jurisdiction and removal. Several defendants appealed the remand order.
- 28 U.S.C. § 1447(d) bar on appellate review of remand orders contains a narrow exception for remands of cases removed under § 1442 or § 1443; the Fourth Circuit therefore first analyzed whether § 1442 removal applied.
- The Fourth Circuit held Noel v. McCain controlling: when multiple removal grounds are asserted, appellate review is confined to the § 1447(d)–enumerated ground (here § 1442); the court then analyzed § 1442’s requirements and concluded defendants failed to establish the necessary "acting under" relationship or a sufficient causal nexus for the challenged contractual relationships (NEXCOM fuel contracts, OCSLA leases, and the Elk Hills unit agreement). The remand was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of appellate review under 28 U.S.C. § 1447(d) | Baltimore: Noel remains binding; appellate review is limited to § 1442/§1443 grounds only. | Defendants: Yamaha and the Removal Clarification Act permit plenary review of remand orders and thus review of all removal grounds. | Court: Noel binding in this Circuit; appellate jurisdiction limited to § 1442 ground; other grounds dismissed for lack of jurisdiction. |
| Whether Yamaha/Removal Clarification Act abrogated Noel | Noel still controls; Yamaha interpreted a different statute (§1292(b)). | Yamaha and the 2011 Act show Congress intended broader review of remand "orders." | Court: Yamaha is distinguishable; the statutory context differs; the 2011 amendment did not abrogate Noel. |
| NEXCOM fuel-supply contracts (Citgo) — "acting under" federal officer | Baltimore: contracts are ordinary commercial supply agreements; selling off-the-shelf fuel to the government is not helping the government perform its duties. | Defendants: contract specs, inspection rights, branding/advertising rules and other terms show government control and supervision. | Court: Contracts are typical commercial terms and do not show the unusually close government-contractor relationship required; not "acting under." |
| OCSLA leases — "acting under" and nexus to Baltimore’s claims | Baltimore: leases and regulation are supervisory/regulatory, not assistance to federal duties; claims focus on misleading promotion and concealment, not OCS production. | Defendants: OCSLA gives the Secretary extensive authority and imposes lease conditions that show government control. | Court: Regulation and lease terms alone do not meet "acting under" standard; even if borderline, the connection between OCS production and Baltimore’s concealment/promotion-based claims is too attenuated to support § 1442 removal. |
| Elk Hills 1944 Unit Plan Contract (UPC) and 1976 Act — acting under and nexus | Baltimore: UPC did not require Standard to produce oil for the Navy; production required congressional authorization and the UPC could be satisfied without Navy-directed production. | Defendants: UPC granted Navy control over operation and rate; 1976 Act authorized production and disposal, and Standard/Chevron carried out production on Navy’s behalf. | Court: Declined to decide definitively whether UPC establishes "acting under" (factual record insufficient), but held any production connection is too remote from Baltimore’s marketing/concealment claims to satisfy § 1442 nexus; removal fails. |
Key Cases Cited
- Noel v. McCain, 538 F.2d 633 (4th Cir. 1976) (when multiple removal grounds are asserted, appellate review is limited to the §1447(d)–enumerated ground).
- Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996) (interpreting "order" under §1292(b); courts may address issues fairly included within certified orders).
- Watson v. Philip Morris Co., 551 U.S. 142 (2007) ("acting under" requires more than regulatory compliance; private contractors must assist the government in carrying out its duties).
- Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224 (2007) (statutory limits on appellate review of remand orders).
- Sawyer v. Foster Wheeler LLC, 860 F.3d 249 (4th Cir. 2017) (framework for §1442 removal: acting under, colorable federal defense, and sufficient nexus).
- In re MTBE Prods. Liab. Litig., 488 F.3d 112 (2d Cir. 2007) (discussing collapse of acting-under and nexus inquiries and the need for candid, specific allegations of federal direction).