Ackerman v. Exxonmobil Corp.

DUNCAN, Circuit Judge,

concurring in the judgment:

I admire the majority’s deft circumnavigation of serious errors of fact and law in pursuit of an ultimately defensible result. I write separately because the district court’s errors were so many and of such significance that I cannot share the majority’s confidence that they did not contribute to that result. More importantly, I believe that leaving those errors not only unaddressed but unacknowledged will allow, if not encourage, their repetition.

My fundamental concern with the majority’s opinion is that in its magnanimity to a profoundly flawed disposition below, it omits critical facts at the expense of our well-established obligation to exercise the jurisdiction that we have. See Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (federal courts have a “virtually unflagging obligation” to exercise jurisdiction absent “exceptional circumstances”). For example, it fails to recognize the significance of the Energy Policy Act of 2005 in its analysis; it cites the Act only once, and even then merely in passing in explaining the procedural history of the case. See Majority Op. at 247.

By way of further example, I fully agree with the majority’s conclusion that the removal statute, 28 U.S.C. § 1446(d), is not self-acting, and that the Koch amendment was not void ab initio. See Majority Op. at 249-50. However, I feel compelled to point out what the majority does not: the futility of Defendants’ seeking an injunction to bar the amendment, when the district court erroneously believed it lacked authority to grant one. Indeed, Defendants had no reason to request such an injunction in advance of Plaintiffs’ motion, and instead had every reason to believe there was no need to seek one because the state court action had been stayed.

I concur in the judgment because of my respect both for my colleagues and for our deferential standard of review. However, I set forth the district court’s errors in some detail here because I believe it to be incumbent upon us to provide such guidance and in the hope that it will discourage their reoccurrence.

I.

A. Error of Fact

I believe the district court’s finding of fact regarding the propriety of Plaintiffs’ amendment of the Koch complaint is clearly erroneous. The district court concluded that “[t]he primary purposes of amending Koch were not to fraudulently defeat this Court’s jurisdiction, but to comply with the state court’s instructions and to ease administration of the litigation after class decertification.” 821 F.Supp.2d 811, 818 (D.Md.2012). However, Plaintiffs conceded all that need be shown to establish *256an improper intent by stating that they filed the amendment “to blunt the perceived dilatory tactics of the Defendants,” — i.e., to subvert Defendants’ proper removal of the Ackerman action. See id. Regardless of any other asserted purposes, Plaintiffs have acknowledged that they acted with the intent to defeat federal jurisdiction over their claims. This error is particularly significant because of the stringency with which abstention analysis is to be applied.

B. Errors of Law

1.

I fully understand the majority’s preference for avoiding dealing with the district court’s view of its authority (or lack thereof) under the Anti-Injunction Act, 28 U.S.C. § 2283 (the “AIA”). I am far less sanguine that the court’s confusion in that regard did not contribute to its ultimate conclusion. I therefore feel the issue requires consideration.

To start, nothing in the text of the AIA requires that a defendant request an injunction issued under one of its exceptions. Rather, the AIA states simply: “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S.C. § 2283 (emphasis added). The plain meaning of this language is that one circumstance in which the district court may enjoin a state court proceeding arises when the court has been “expressly authorized” to do so by Congress,1 which generally has nothing to do with whether or not a party explicitly sought the injunction.

As the Supreme Court has explained, the AIA “is a necessary concomitant of the Framers’ decision to authorize, and Congress’ decision to implement, a dual system of federal and state courts. It represents Congress’ considered judgment as to how to balance the tensions inherent in such a system.” Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 146, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988). It would seem to me inconsistent with this careful scheme to render a federal court’s authority to enjoin a state proceeding entirely dependent on strategic decisions made by the parties, rather than on the “considered judgment” of Congress embodied in the AIA.

Furthermore, interpreting the AIA in other contexts, the Supreme Court has made clear that, where it is not barred by the Act, a federal court’s authority to enjoin a state court proceeding is bounded only by the court’s sound discretion, not by the precise procedural mechanism employed by a party to the action. See McFarland v. Scott, 512 U.S. 849, 858, 114 S.Ct. 2568, 129 L.Ed.2d 666 (1994) (affirming the district court’s discretion to issue a *257stay of execution under the AIA’s “expressly authorized” exception even where the defendant had not filed a formal habe-as corpus petition, because 28 U.S.C. § 2251 provides the requisite express authorization).2 Accordingly, unlike the district court, I would not find Defendants’ failure to explicitly request an injunction in opposing Plaintiffs’ motion determinative, or even persuasive, on the facts of this case.

The district court went on to say that even if it had the authority to grant an injunction, it would not have done so. Here, the district court’s analysis, although perhaps ultimately defensible in its conclusion, is troubling because it misconstrues the removal statute and ignores the policy goals behind that statute.

2.

This brings me to a second legal error apparent in the district court’s reasoning. As part of its misreading of the removal statute, the district court concluded, in my view erroneously, that the Ackerman claims as amended to the Koch action would not be removable. This was apparently relevant to the district court’s analysis because it allowed the court to distinguish the Koch amendment from what it “may appear to be,” that is, “ ‘an end run around 28 U.S.C. § 1446(d),’” 821 F.Supp.2d at 818 (citation omitted), and to downplay the import of federal jurisdiction over the properly removed Ackerman action. The court thus attributed this case’s presence in federal court to bad luck, or perhaps bad strategy: “Had the Plaintiffs merely amended Koch — rather than filing this separate action — the Defendants would not have been able to remove these claims.” Id.

The district court’s statements do not comport with my reading of the Energy Policy Act of 2005, which the majority does not address at all. As it relates to MTBE cases, the Act memorializes certain Congressional findings regarding the role of the Clean Air Act Amendments of 1990 in causing the fuel industry to make investments in MTBE production capacity and delivery of MTBE-containing gasoline to consumers. See Pub.L. No. 109-58, § 1502, 119 Stat. 594. The Act also allows for the removal of MTBE-related “claims and legal actions filed after the date of enactment.” Id. § 1503 (emphasis added).3 This right of removal must apply to the Ackerman claims because they are MTBE-related claims filed after August 8, 2005, which is all that § 1503 requires. If Congress intended to provide removal only *258for independent legal actions filed after the date of enactment, it would not have included the word “claims” in the text of the Act, which is otherwise redundant given that any claim that is removable must be contained within some sort of legal action.

As soon as the class of property owners in Koch was decertified, all of the non-named class members — the future Acker-man Plaintiffs — were effectively severed from any involvement in that action. Whether these individuals subsequently chose to file their claims as an amendment to the Koch action, as more than 750 individual actions, or as one separate action later consolidated with Koch, does not change the fact that these were newly filed claims.

3.

Though the limitations period for the Ackerman Plaintiffs’ claims was tolled by the pendency of the putative class action in Koch, their claims do not relate back to the original Koch filing. On this point the district court erred yet again. See 821 F.Supp.2d at 818-19. The Ackerman Plaintiffs’ claims are new causes of action seeking distinct damages based on individualized harm. See Grand-Pierre v. Montgomery Cnty., 97 Md.App. 170, 627 A.2d 550, 553-54 (1993) (“When amendment is sought to add a new party to the proceedings ... any cause of action as to that party is, of course, a new action.... Unless the additional plaintiff[s] will merely be sharing in the damage award, and not ‘pyramiding’ the original amount requested, relation back will not be applied[.]”). Given that the new claims were first filed as an independent legal action in Acker-man, it is difficult to see how the district court could justify its finding that they merely sought to share in the Koch Plaintiffs’ damages request.

Indeed, pursuant to 28 U.S.C. § 1446(b)(3), the thirty-day removal window is revived for circumstances such as these, in which it may be ascertained from a party’s filing that a case has become newly removable. Thus, the plain language of both the Energy Policy Act of 2005 and the removal statute bolsters the conclusion that the post-amendment Koch action would be removable. This in turn supports the exercise of federal jurisdiction over the Ackerman Plaintiffs’ claims.

Consequently, contrary to the district court’s determination, we cannot blame the creation of this procedural quagmire on Plaintiffs’ accidental misstep, nor some instruction of the state court, nor Defendants’ failure to explicitly request an injunction. Rather, responsibility lies with Plaintiffs’ deliberate manipulation of federal jurisdiction, which we ultimately permit, but unfortunately without an explanation of the serious concerns implicated.

II.

The removal process utilized by Defendants on the Ackerman Plaintiffs’ claims is consistent with the principles of comity embodied in the AIA, as well as the preference inherent in the Energy Policy Act of 2005 to allow defendants to litigate MTBE claims filed after August 8, 2005 in federal court if they so choose. We have explained that this right of removal resulted from extensive Congressional negotiations, and represents a concerted effort to provide some benefit to MTBE defendants in recognition of Congress’s prior role in facilitating the widespread use of MTBE as a gasoline additive.

Unlike the majority, I am unable to conclude that these errors in the district court’s analysis played no role in its decision to abstain, or in “the issues raised on appeal.” Majority Op. at 254. At the very least, if — as the majority asserts — “this is *259a case about abstention, not the Anti-Injunction Act,” Majority Op. at 254, then abstention ought to be analyzed thoroughly and with due consideration for the presumptions that guide it. After such an analysis, I believe the district court would have exercised its discretion soundly by declining to abstain from exercise of federal jurisdiction.

Nonetheless, as the majority recognizes, the issuance of an anti-suit injunction is highly discretionary. See Chick Kam Choo, 486 U.S. at 151, 108 S.Ct. 1684 (“Of course, the fact that an injunction may issue under the Anti-Injunction Act does not mean that it must issue.”). I concur in the result here because I do not feel comfortable ordering the district court to grant an injunction, despite its flawed analysis. Cf. Bryan v. BellSouth Commc’ns, Inc., 492 F.3d 231, 242 (4th Cir.2007) (“Because the decision to enjoin a state court proceeding ... is a discretionary one, our disagreement with the manner in which the district court approached the question ... given the particular circumstances of this case, [does not] prevent[ ] us from affirming the court’s decision[.]”) (citation omitted).

Given the district court’s decision not to enjoin the amendment in state court, I cannot conclude that its decision to abstain constitutes an abuse of discretion. Because of the narrow scope of our appellate review, I would affirm on the narrowest possible grounds, and join only in the judgment of the majority.

. As the majority explains, it is well established that the removal statute provides the necessary express authorization in certain circumstances. See Majority Op. at 250-51. By establishing that removal is effected by a defendant’s filing a notice of removal in state court, and ordering that "the State court shall proceed no further unless and until the case is remanded,” 28 U.S.C. § 1446(d) expressly authorizes a federal court to enjoin the continued prosecution of the same case in state court after it is removed. See Mitchum v. Foster, 407 U.S. 225, 234 & n. 12, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972); Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 640, 97 S.Ct. 2881, 53 L.Ed.2d 1009 (1977) (plurality opinion). The majority also acknowledges, as did the district court (ostensibly), that many courts have extended this express authorization to "copycat” actions filed in state court after removal, permitting injunctions to prevent a plaintiff from filing exactly the same case in state court after it is removed, particularly where the latter is filed with the intent to subvert federal jurisdiction. See Majority Op. at 250-51.

. Further support for viewing the district court’s authority to enjoin a state proceeding, where the court is "expressly authorized,” as inherent and independent rather than subservient to a party’s request, may be found in the All-Writs Act, which affirmatively grants federal courts license to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a). In this context, courts have recognized that injunctions exist outside of the traditional injunction framework governed by Fed.R.Civ.P. 65. See In re Baldwin-United Corp., 770 F.2d 328, 338-39 (2d Cir.1985) (contrasting the concerns motivating ordinary injunctions with those underlying injunctions issued under the All-Writs Act "to prevent ... parties from thwarting the court's ability to reach and resolve the merits of the federal suit before it”).

. Initial drafts also included “a safe harbor provision retroactively limiting or even eliminating liability for MTBE producers and distributors.” In re MTBE Prods. Liab. Litig., 674 F.Supp.2d 494, 498 (S.D.N.Y.2009) (citing 149 Cong. Rec. S15212 (daily ed. Nov. 20, 2003) (statement of Sen. Diane Feinstein)). Following objections from members of Congress, a compromise was attained whereby the safe harbor was replaced by § 1503’s right of removal. Id.