Some more cases that your successors will see in oral arguments next fall. But they illustrate the analysis and interaction of many of the doctrines from our last two sections of class. Worth skimming through both.
Sherod v. Comprehensive Healthcare (3d Cir.) held (based on controlling on-all-fours circuit precedent) that a nursing home could not remove a state negligence claim arising from a patient's COVID death under either § 1442, complete preemption by a federal COVID-response statute, or Grable. Every circuit to consider such cases has rejected removal.
Connecticut v. Exxon-Mobil (2d Cir.) is the latest case rejecting removal of state or local government suits against oil companies over climate change. Again, the court discusses § 1442, Grable, and complete preemption. It also offers a handy way of explaining the three situations in which a non-federal cause of action can be removed--where Congress provides for removal of state-law claims (e.g., § 1442), complete preemption, and Grable; it frames the first two as falling under the "artful pleading" doctrine.
Both cases illustrate a point not discussed in the reading and which I neglected to mention in class. Section 1447(d)'s bar on appeals of remand orders makes an exception for removal based on §§ 1442 and 1443. But what happens if a defendant removes based on § 1442 and § 1441 and the district court decides that neither ground supports removal? Obviously the defendant can appeal the portion of the order rejecting § 1442. Can it also appeal the rest of the order, rejecting § 1441 removal (i.e., deciding that the well pleaded complaint rule does not support federal question jurisdiction)? BP v. Mayor and City Council of Baltimore said it can. Section 1447(d) speaks of appealing an "order remanding a case;" that includes everything the district court addressed in the order. We thus have seen a dramatic increase in appellate review of remand orders, as large businesses assert (often dubious) § 1442 removal along with § 1441, then appeal the whole. Justice Sotomayor warned of this problem in her solo dissent. That happened in both of these cases.
