Bp America Prod. Co. v. State Of Okla.

Decision Date29 July 2010
Docket NumberNo. 09-705.,09-705.
Citation613 F.3d 1029
PartiesBP AMERICA, INC.; BP Corporation North America, Inc.; BP Products North America, Inc.; and BP America Production Company, Petitioners, v. State of OKLAHOMA, ex rel., W.A. Drew EDMONDSON, Attorney General of Oklahoma, Respondent.
CourtU.S. Court of Appeals — Tenth Circuit


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, Trimble 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 considerations relevant to that question and, applying those considerations, grant BP's petition for leave to appeal.


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 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 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.


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., --- U.S. ----, 129 S.Ct. 1862, 1865-66, 173 L.Ed.2d 843 (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 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 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 §...

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