RULES JOCKS REJOICE! FOURTH CIRCUIT ISSUES OPINION ON COMPLETE PREEMPTION, REMAND APPEALS, AND MORE
On Thursday, August 24, the Fourth Circuit hands down a published opinion that addresses several jurisdictional issues in areas that have received relatively little treatment in past jurisprudence. The decision is In re Blackwater Security, a combined wrongful death action arising out of the murders of four Blackwater employees by insurgents in Iraq in 2004.
Suit was originally filed in state court in North Carolina; Blackwater removed the case to federal court, citing the complete preemption doctrine and contending that the claims presented uniquely federal issues. The district court remanded the case to state court, finding that it had no subject matter jurisdiction. Blackwater appealed.
Now, you already know that I focus on appeals, so this next sentence is going to seem a little obvious: The fact that Blackwater appealed, and that a published opinion resulted, is remarkable. That’s because of the plain language of one subpart of the removal statute: “(d) An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise,“ with one exception not relevant here. Now, that seems like a straightforward provision, as well as one that is calculated to make any district judge smile; here’s a decision she can make that cannot be challenged on appeal.
Well, clarity aside, the Supreme Court of the United States has ruled that this statute does not forbid appellate review of all remand decisions; only some of them. If you take just one step into the swamp of which decisions are and are not reviewable, you will be mired for weeks. That’s why any published opinion on this subject is welcome.
But there’s more. Many lawyers know that there are three grounds for federal jurisdiction (and thus three ways in which a defendant can remove a case to federal court). But only two of those are discussed in great depth in the body of federal caselaw – diversity of citizenship, and federal question. The third ground, the complete preemption doctrine, is little used, and therefore little known. This ruling addresses the doctrine in detail in the context of a removal, which is the only way most trial lawyers will ever encounter it.
And there’s still more – the court adjudicates the suitability of mandamus as an alternative form of review for troublesome removal and remand decisions.
In the end, the appellate court rules that it has no jurisdiction in this case, since the district judge remanded because he perceived that he had no subject matter jurisdiction. The italicized word in that sentence is important; here’s what the court has to say, in language that may surprise you (and will certainly frustrate Blackwater):
“For the purposes of §1447(d), the only relevant aspect of the district court’s decision not to dismiss the case [the case was remanded instead] is that it was grounded upon a perceived lack of subject matter jurisdiction to decide DBA claims. The presence of an error in that analysis does not change its jurisdictional character.”
In other words, even if the district judge was completely wrong on the underlying legal question – and he was, the appellate court rules – he insulates his decision from appellate review by deciding that he doesn’t have subject matter jurisdiction.
This case will be reported in the mainstream media because of the subject of the claim, relating as it does to the Iraq war, and the relatively novel concept of a private security company that performs essentially military functions. But it is readable for trial lawyers because of all the lessons it offers in matters far removed from warfare and gunfire and insurgents. The opinion is like Moby Dick in a way, in that it takes concentration and focus to get all the way through it, but it will reward you for having read it. It’s probably not a page-turner, but it’s important for you to have a sense of the landscape in these seldom-litigated areas.
The panel opinion is authored by Judge Duncan, joined by Judge Shedd and Judge Jones of the Western District of Virginia, sitting by designation. Blackwater can move for en banc rehearing, which I consider to be a likely move, given the likely size of the claim, which involves four deaths, and the prospect of using state rules as opposed to federal. The ruling is unquestionably a victory for the plaintiffs, who get to litigate the case in their chosen forum.