FILED
United States Court of Appeals
Tenth Circuit
July 29, 2010
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
BP AMERICA, INC.; BP
CORPORATION NORTH AMERICA,
INC.; BP PRODUCTS NORTH
AMERICA, INC.; and BP AMERICA
PRODUCTION COMPANY,
Petitioners,
No. 09-705
v.
STATE OF OKLAHOMA, ex rel.,
W.A. DREW EDMONDSON,
Attorney General of Oklahoma,
Respondent.
Appeal from the United States District Court
for the Western District of Oklahoma
(D.C. No. 5:09-CV-00945-M)
David J. Zott, Kirkland & Ellis LLP, Chicago, IL (Andrew A. Kassof, Katheleen
A. Ehrhart, and Matthew S. Buckley, Kirkland & Ellis LLP, Chicago, IL; and D.
Kent Meyers and Miles Tolbert, Crowe & Dunlevy PC, Oklahoma City, OK, with
him on the petition), for Petitioners.
William A. Isaacson, Boies, Schiller & Flexner LLP, Washington, D.C. (Brian K.
Herrington, Herrington Law, PA, Jackson, MS; Thomas A. Bates and Jeremiah L.
Streck, Assistant Attorneys General, Office of the Attorney General for the State
of Oklahoma, Oklahoma City, OK; Henry A. Meyer, III, PLLC, Oklahoma City,
OK; James F. Kelly, Brent Coon & Associates, St. Louis, MO; Carlos M. Sires,
Boies, Schiller & Flexner LLP, Fort Lauderdale, FL; and Preston A. Trimble,
Trible Law Office, P.C., Norman, OK, with him on the response), for Respondent.
Before BRISCOE, Chief Judge, TACHA, and GORSUCH, Circuit Judges.
GORSUCH, Circuit Judge.
Drew Edmondson, the Attorney General of Oklahoma, sued the petitioners
in this case (collectively “BP”) in Oklahoma state court, alleging that they
manipulated propane gas prices in violation of various provisions of the
Oklahoma Consumer Protection Act. BP responded by removing the case to
federal district court, arguing that it qualified for federal jurisdiction because it
was a “mass action” under the Class Action Fairness Act of 2005 (“CAFA”), Pub.
L. No. 109-2, 119 Stat. 4. Ultimately, however, the district court disagreed with
BP’s analysis, held the lawsuit was not a “mass action,” and ordered it remanded
to state court. BP now seeks leave to appeal the district court’s remand order.
As a general rule, remand orders aren’t appealable. But like so many rules,
this one has its exceptions. Relevant for our purposes, CAFA expressly provides
that “a court of appeals may accept an appeal from an order of a district court
granting or denying a motion to remand a class action [including a mass action] to
the State court from which it was removed.” 28 U.S.C. § 1453(c)(1). Of course,
this statute says only that we may hear remand appeals in mass actions. The
question remains when we should exercise the discretion afforded to us by
Congress to “accept” such an appeal. In what follows, we identify certain
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considerations relevant to that question and, applying those considerations, grant
BP’s petition for leave to appeal.
I
In 2009, Attorney General Edmondson filed suit against BP in Oklahoma
state court, claiming that, from approximately 2003 to 2006, BP deceptively
manipulated prices for propane. The alleged upshot was that Oklahoma
consumers paid higher prices for propane than they otherwise would (or should)
have paid. And all this, the Attorney General asserted, violated several
provisions of Oklahoma’s consumer protection laws. Asserting the right to bring
suit “under his common law powers as parens patriae,” Attorney General Pet., BP
Pet. for Leave to Appeal an Order of Remand (“BP Petition”) Ex. 2 at 16, by way
of remedy the Attorney General sought restitution, civil penalties, and injunctive
relief, including the revocation of BP’s license to do business in Oklahoma. *
In reply, BP removed the state court action to the United States District
Court for the Western District of Oklahoma, invoking CAFA. Among other
things, that statute affords a federal forum for “mass action[s],” which the statute
proceeds to define as civil actions that involve, among other things, “monetary
*
The term parens patriae, literally “parent of the country,” derives from
the historical right of the English monarch to sue to enforce the “royal
prerogative.” Hawaii v. Standard Oil Co. of Cal., 405 U.S. 251, 257 (1972)
(quotation marks omitted). In the United States, it refers to the “right of a State
to sue . . . to prevent or repair harm to its ‘quasi-sovereign’ interests.” Id. at 258.
See generally Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S.
592, 600-07 (1982).
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relief claims of 100 or more persons [that] are proposed to be tried jointly on the
ground that the plaintiffs’ claims involve common questions of law or fact.” 28
U.S.C. § 1332(d)(11)(B)(i); see also 28 U.S.C. § 1441(a). According to BP, it is
individual Oklahoma propane purchasers — and not the State of Oklahoma or the
Attorney General — who are the “real parties in interest” in this litigation. BP
Notice of Removal, BP Petition Ex. 12 at 1. And it is these plaintiffs whose
“claims” Attorney General Edmondson’s lawsuit “propose[s] to be tried jointly.”
28 U.S.C. § 1332(d)(11)(B)(i). Because there are more than 100 such “real”
plaintiffs, and because their claims indisputably meet CAFA’s other requirements
for federal jurisdiction, BP took the view in removing this case that it properly
belonged in federal district court.
On arriving in federal court, Attorney General Edmondson responded with
a motion to remand the case to state court. He maintained that his lawsuit was a
parens patriae action, with the Attorney General acting in a quasi-sovereign
capacity to represent “the State only — not . . . any particular Oklahoma
consumers.” Attorney General Mot. to Remand, BP Petition Ex. 13 at 1. And
because he, as the State’s representative, is the sole plaintiff, he argued there
aren’t the 100 or more plaintiffs needed to sustain federal jurisdiction under
CAFA’s terms. Even if all that weren’t the case, the Attorney General added,
BP’s removal was still inappropriate because CAFA eschews federal jurisdiction
over cases in which “all of the claims in the action are asserted on behalf of the
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general public (and not on behalf of individual claimants or members of a
purported class) pursuant to a State statute specifically authorizing such action.”
28 U.S.C. § 1332(d)(11)(B)(ii)(III). Here, the Attorney General argued, the
Oklahoma Consumer Protection Act specifically authorized his action on behalf
of the “general public” of Oklahoma. See Okla. Stat. tit. 15, §§ 751-764.1.
At the end of it all, the federal district court agreed with Attorney General
Edmondson. Holding federal jurisdiction lacking under CAFA, the court ordered
the case remanded to Oklahoma state court. And so it is that BP now petitions us
for leave to appeal that remand order. Before we can consider the merits of BP’s
application, though, we must first address a question about our authority to do so.
II
Generally speaking, federal courts of appeals may not review district court
remand orders. This is by dint of 28 U.S.C. § 1447(d), which provides that “[a]n
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 1443 of this title
[which concerns civil rights violations] shall be reviewable by appeal or
otherwise.” See Carlsbad Tech., Inc. v. HIF Bio, Inc., 129 S. Ct. 1862, 1865-66
(2009); see also In re C&M Props., L.L.C., 563 F.3d 1156, 1166 (10th Cir. 2009).
But CAFA affords an exception to this general rule. “[N]otwithstanding
section 1447(d),” the statute tells us, “a court of appeals may accept an appeal
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from an order of a district court granting or denying a motion to remand a class
action [including a mass action] to the State court from which it was removed if
application is made to the court of appeals not less than 7 days after entry of the
order.” 28 U.S.C. § 1453(c)(1) (version operative until Nov. 30, 2009); see also
Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005) (holding
that “not less than 7 days” is a “typographical error” and that the “statute should
read that an appeal is permissible if filed ‘not more than’ seven days after entry of
the remand order”). Because the district court judgment presented for our review
is an order to remand a purported mass action, and because BP’s application for
leave to appeal was filed within the seven-day window, as the Attorney General
concedes, § 1453(c)(1) would seem to put to rest any reasonable doubt as to our
jurisdiction to consider BP’s application.
With this conclusion, however, Attorney General Edmondson begs to
differ. To be sure, he acknowledges that § 1453(c)(1) exempts CAFA cases from
§ 1447(d) and its concomitant bar against appellate review of remand orders. But
CAFA doesn’t do anything to diminish the force of § 1447(c), and that
subsection, he says, is sufficient unto itself to extinguish our jurisdiction in this
case. Subsection 1447(c) provides that, “[i]f at any time before final judgment it
appears that the district court lacks subject matter jurisdiction, the case shall be
remanded.” 28 U.S.C. § 1447(c). In such cases, “[a] certified copy of the order
of remand shall be mailed by the clerk to the clerk of the State court,” and “[t]he
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State court may thereupon proceed with such case.” Id. It is undisputed here that
the clerk of the federal court mailed the remand order to the clerk of the state
court several days before BP filed its petition with us. And that action, Attorney
General Edmondson urges, divested all federal courts — including our court — of
jurisdiction to consider any issue in the case. See Opposition to BP Petition at 3-
6.
We must disagree. When we interpret a statute we begin, of course, with
its plain terms. And here, as we’ve mentioned, the text of § 1453(c)(1) provides
that a court of appeals “may accept an appeal” from an order of remand “if
application is made to the court of appeals not [more] than 7 days after entry of
the order.” 28 U.S.C. § 1453(c)(1). In other words, if a party petitions this court
for leave to appeal within seven days of the entry of the remand order, then the
determination whether to allow the appeal rests in our discretion. The statute
doesn’t place any other conditions on our discretion.
Neither does § 1447(c) have the purchase that the Attorney General
purports. That subsection merely directs the district court clerk to mail an order
of remand to the state court; it does not, by its terms, operate to deny the circuit
courts of jurisdiction over appeals of district court remand orders. That work is
ordinarily done, instead, by § 1447(d) and its direction that remand orders
generally are “not reviewable on appeal.” 28 U.S.C. § 1447(d). Yet Congress has
specifically and explicitly suspended the operation of § 1447(d) with respect to
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CAFA remand orders arising, like this one, under § 1453(c)(1). See id.
§ 1453(c)(1) (“a court of appeals may accept an appeal from an order of a district
court granting or denying a motion to remand a class action [including a mass
action] to the State court from which it was removed”). So it is that reading
§ 1447 as a whole, together with § 1453, hurts rather than helps the Attorney
General’s cause. And this is surely what the Second Circuit had in mind when it
held that § 1453(c)(1) does not condition appellate jurisdiction on whether the
district court stays its order of remand. See Estate of Pew v. Cardarelli, 527 F.3d
25, 28 (2d Cir. 2008); see also 14C Charles Alan Wright et al., Federal Practice
and Procedure § 3739, at 907 (4th ed. 2009) (“[A] remand is effective when the
district court mails a certified copy of the remand order to the state court . . . .
The effectiveness of a remand order under the principles stated above does not,
however, prevent a federal appellate court from reviewing a remand order that is
appealable.”).
To operate as the Attorney General would have it, § 1453(c)(1) would have
to read very differently than it does, providing instead that the court of appeals
may accept an appeal if application is made within seven days and if the court
accepts that application before the clerk of the district court sends the remand
order to the state court pursuant to 28 U.S.C. § 1447(c). That second, italicized
condition, however, appears nowhere in the statute, and we are not at liberty to
take our editing pencils to what Congress has written. “Where, as here, the
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statute’s language is plain and plainly satisfied, ‘the sole function of the courts’
can only be ‘to enforce it according to its terms.’” United States v. Adame-
Orozco, 607 F.3d 647, 652 (10th Cir. 2010) (quoting United States v. Ron Pair
Enters., Inc., 489 U.S. 235, 241 (1989)).
Finding no shelter in the language of the statute, Attorney General
Edmondson seeks refuge in case law. But here, as well, his arguments miss their
intended mark. All of the authority he cites simply holds that the transmission of
the remand order from the federal district court clerk to the state court, as
contemplated by § 1447(c), operates to divest federal district courts of further
jurisdiction over the case. See Opposition to BP Petition at 3-5; see also 14C
Wright et al., supra, § 3739 at 902 & n.102. None of his cited authorities speaks
to the jurisdiction of the federal courts of appeals. See, e.g., Migis v. AutoZone,
Inc., 2009 WL 690627, at *2 (D. Or. Mar. 6, 2009) (“When a district court
certifies a remand order to state court under § 1447(c), the district court no longer
has jurisdiction . . . .” (emphasis added)); Asperger v. Shop Vac Corp., 2007 WL
4247423, at *1 (S.D. Ill. Nov. 30, 2007) (“[O]nce a federal district court remands
a case and mails a certified copy of its order to the state court, the district court
loses all jurisdiction . . . .” (emphasis added) (quotation marks omitted)); Coy
Chiropractic Health Ctr., Inc. v. Travelers Cas. & Sur. Co., 2007 WL 2219102, at
*2 (S.D. Ill. July 27, 2007) (same). In fact, one of the cases on which the
Attorney General relies actually confirms that “CAFA allows appellate review of
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the remand ruling notwithstanding § 1447(d).” Migis, 2009 WL 690627, at *2
(emphasis added). Thus, the Attorney General has not directed our attention to
any case law casting doubt on our appellate jurisdiction, and our independent
research likewise has uncovered none.
Much to the contrary. CAFA is just one of several instances where
Congress has chosen to extend appellate jurisdiction over remand orders. See
14C Wright et al., supra, § 3740, at 977-78 (“There are four other statutory
exceptions” beyond CAFA and bankruptcy court remands “to the restriction on
appellate review set forth in Section 1447(d) . . . .”). The Attorney General’s
(mis)reading of § 1447(c) — as somehow stripping courts of appeals of
jurisdiction after a remand order has been mailed to a state court — presumably
would bar us from hearing all of these sorts of cases. Of course, the Attorney
General cites no authority so holding, nor does he even address the other
exceptions to § 1447(d).
III
Assured of our jurisdiction to consider BP’s petition, we may now proceed
to do just that. As we’ve mentioned, § 1453(c)(1) provides us with discretion to
accept an appeal of a district court’s remand of a purported mass action under
CAFA. See 28 U.S.C. § 1453(c)(1) (“court of appeals may accept an appeal”)
(emphasis added). The question thus becomes when we should exercise that
discretion. Though this is a novel question in our own circuit, happily a number
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of our sister circuits have already confronted it and left behind useful guidance.
Among these cases, we find the First Circuit’s recent exposition in College of
Dental Surgeons of Puerto Rico v. Connecticut General Life Insurance Co., 585
F.3d 33 (1st Cir. 2009), particularly helpful.
There, the First Circuit outlined a number of factors it would consider in
deciding whether to grant leave to appeal under CAFA. That list includes: (1)
“the presence of an important CAFA-related question”; (2) whether the question
is “unsettled”; (3) “whether the question, at first glance, appears to be either
incorrectly decided or at least fairly debatable”; (4) “whether the question is
consequential to the resolution of the particular case”; (5) “whether the question
is likely to evade effective review if left for consideration only after final
judgment”; (6) whether the question is likely to recur; (7) “whether the
application arises from a decision or order that is sufficiently final to position the
case for intelligent review”; and (8) whether “the probable harm to the applicant
should an immediate appeal be refused [outweighs] the probable harm to the other
parties should an immediate appeal be entertained.” Id. at 38-39.
BP and the Attorney General agree that all of these factors are worthy of
our consideration in deciding whether to accept this appeal, and neither party
proposes any addition to the list. We thus perceive no necessary pitfall in
reviewing BP’s application through the lens these factors provide. In so doing,
though, we emphasize that we, like the First Circuit, do not take these factors to
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be necessarily exhaustive considerations or “rigid rules.” Id. at 39. The decision
whether to grant leave to appeal remains a matter “committed to the informed
discretion of the reviewing court,” and the factors we have outlined are no more
than considerations or guides to help inform that analysis, a set of analytical
“buoys to mark [the] channels” of potential inquiry. Id.
Each factor favors granting review in this case. This case raises the
important and unsettled legal questions whether CAFA’s mass action provision
applies to suits by a state attorney general; whether the “general public” exception
covers such suits, see 28 U.S.C. § 1332(d)(11)(B)(ii)(III); and how, if at all, the
“real party in interest” analysis pertains to such suits. The district courts of this
circuit are likely to encounter these questions in future cases and will benefit
from the development of a body of law on them. Cf. Coffey v. Freeport McMoran
Copper & Gold, 581 F.3d 1240, 1247 (10th Cir. 2009) (noting that the “the
purpose of § 1453(c)(1) is to develop a body of appellate law interpreting CAFA”
(brackets and quotation marks omitted)). Under the district court’s remand order,
meanwhile, this case promises to leave the ambit of the federal courts for good,
precluding any other opportunity for BP to vindicate its claimed legal entitlement
— purportedly granted by Congress — to have a federal tribunal adjudicate the
merits. Further leaning in favor of taking this case is the fact that the district
court’s decision is carefully reasoned and the product of thorough adversarial
testing, always a plus to an appellate undertaking. And though we do not mean in
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any way to cast doubt on its rulings, or suggest how we might view the merits of
the case, the district court’s decision indisputably charted novel waters in this
circuit on what appear to be eminently debatable legal questions. Not only do all
these factors favor taking the appeal, in the balance we discern relatively little
concomitant probable harm flowing from doing so. Though any additional
process carries the cost of some delay that cannot be ignored, this case remains in
its nascent stages; no discovery has been taken; and, as of yet, there appear to be
no ongoing proceedings in the Oklahoma state courts with which we might
interfere. The delay imposed by our review, thus, is not at the cost of grinding to
a halt a case already much developed or busily advancing elsewhere.
* * *
For all these reasons, we grant BP’s application for leave to appeal. A
separate order accompanying this opinion outlines the mechanics we will follow
in taking up this appeal, as well as certain questions for the parties to consider in
their briefs.
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