Special Removal Statutes

The opening words of § 1441(a), “Except as otherwise expressly provided by Act of Congress,” let other statutes override the removal rules, and those statutes push in two directions.¹ Until now this chapter has run each case through the general framework of § 1441(a), which governs the removal of federal-question and diversity cases.² Under that framework, a defendant may remove a state-court action over which the federal district courts have original jurisdiction, and the defendant starts by filing a notice of removal under § 1446(a).³ The notice is due within 30 days after the defendant receives the initial pleading, and every defendant properly joined and served must join in or consent to the removal.⁴ A diversity case that becomes removable only later cannot be removed under subsection (b)(3) more than one year after it began, unless the plaintiff acted in bad faith to prevent removal.⁵ Those rules settle most removal problems, so an exam answer should start with them.

Congress, not the courts, has the last word on these rules. In Finley the Supreme Court emphasized that whatever it says about the scope of jurisdiction conferred by a particular statute can of course be changed by Congress, and in 1990 Congress accepted the invitation by enacting § 1367, which overturned the result in Finley.⁶ Special removal statutes show the same power at work. Some widen removal by relaxing a condition of the general framework, and others withdraw removal from cases that satisfy § 1441(a) on their own terms.⁷

On an exam, a special statute usually announces itself through one unusual fact about a party or a claim. Run the general analysis first, then ask whether a statute changes the result in either direction. If one applies, ask again who may remove and when the notice is due, because the general answers may not carry over. The statutes that widen removal come first below, followed by those that bar it.

Statutes Broadening Removal

Each statute that widens removal is easiest to recognize by the single fact that triggers it and by the condition of the general framework that it relaxes.

A foreign state, as defined in § 1603(a), that is sued in state court may remove the action under § 1441(d) to the district court for the district and division embracing the place where the action is pending.⁸ The subsection changes two features of ordinary procedure. The removed action is tried by the court without a jury, and the time limits of § 1446(b) may be enlarged at any time for cause shown.⁹ The time rule is the sharper departure. An ordinary defendant must file within 30 days after receiving the initial pleading and waives removal if the period passes, while a foreign state that files late can ask the court to enlarge the period and obtain relief by showing cause.¹⁰ The no-jury rule travels with removal, so a foreign state that removes receives a bench trial.

Section 1441(e) departs from the removal premise itself. It operates notwithstanding subsection (b), which includes the rule that diversity actions cannot be removed if any defendant is from the forum state,¹¹ and it lets a defendant remove in either of two situations. In the first, the action could have been brought in a district court under § 1369.¹² In the second, the defendant is a party to an action that is or could have been brought, in whole or in part, under § 1369 and that arises from the same accident as the state action.¹³ Section 1369 is the federal jurisdiction statute for multiparty, multiforum accident litigation, and its own requirements belong to the materials that treat it. The second situation is the unusual one, because it permits removal “even if the action to be removed could not have been brought in a district court as an original matter.”¹⁴ That clause sets aside the premise on which this chapter began, and its evident design is to let a defendant bring a state action tied to the same accident before the federal court that already has the connected case. The filing period is also special. Besides the ordinary periods of § 1446, the notice may be filed before trial in state court within 30 days after the defendant first becomes a party to a § 1369 action in a district court that arises from the same accident, or at a later time with leave of the district court.¹⁵

Hypothetical Illustration

A federal action arising from a single accident is pending under § 1369, and Corvane Shipping, a citizen of the forum state, became a party to it twenty days ago. A local plaintiff has sued Corvane in state court over the same accident on a state-law claim, and nothing about that suit would have supported original federal jurisdiction. Corvane may remove. The suit arises from the same accident as a § 1369 action to which Corvane is a party, the statute applies notwithstanding the forum defendant rule, and the notice falls within 30 days after Corvane became a party to the federal action.¹⁶ A second local plaintiff sues Corvane in the same state court over an unrelated incident, and no § 1369 action arises from it. The special statute has nothing to attach to, so the ordinary analysis controls, and without a federal question or diversity the case stays in state court.

Federal officer removal reverses a rule taught earlier in this chapter. A federal defense ordinarily cannot support removal, because the well-pleaded complaint rule that governs § 1331 cases looks only to the plaintiff's own claim, yet § 1442 allows a federal officer to remove a state-court action on the strength of a federal affirmative defense alone.¹⁷ The right carries a screen. Removal must rest on the allegation of a colorable federal defense, which is what the “color of office” requirement means.¹⁸ The officer need not admit the acts charged or establish innocence, but must be “candid, specific and positive” in explaining a relation to the transaction that was confined to acts as an officer.¹⁹

A federal employee charged with a traffic violation shows the failing side of the same rule. Removal is unavailable where federal employees are charged with traffic violations and other crimes for which they would have no federal defense in immunity or otherwise.²¹ The employee and the inspector share an employer and differ in one respect, whether any federal defense answers the claim, and that difference decides the removal question.

Section 1443 allows removal of enumerated civil rights claims, but the cases that define its reach show how narrow it is.²² Those cases arose from state prosecutions, and the test is demanding. The vindication of a defendant's federal rights is left to the state courts except in the rare situations where it can be clearly predicted, by reason of the operation of a pervasive and explicit state or federal law, that those rights will inevitably be denied by the very act of bringing the defendant to trial in state court.²³ That is the rule of City of Greenwood v. Peacock, and its companion case, Georgia v. Rachel, illustrates the rare situation. Removal was permitted in Rachel because the relevant federal civil rights statute “specifically and uniquely” barred “any prosecution” and thereby granted immunity from the institution of a state prosecution based on the petitioners' sit-in activities.²⁴ The prediction must therefore rest on law that itself forbids the prosecution, as in Rachel, and not on a guess about how a particular state court or its officials will behave.

The Class Action Fairness Act (CAFA) changes the jurisdictional basis as well as the removal mechanics. A class that relies only on state law cannot invoke federal question jurisdiction and must establish diversity.²⁵ CAFA grants federal courts diversity jurisdiction over a class action when three criteria are met: the putative class has 100 or more members, there is “minimal diversity” between the parties, and the amount in controversy exceeds $5 million in the aggregate.²⁶ Minimal diversity asks for less than the complete diversity that § 1332(a) demands, because diversity between one class member and one defendant is enough. The Act also gives a court of appeals discretion to grant immediate review of an order granting or denying a motion to remand, and an appeal that is accepted must be completed within 60 days of filing, subject to one ten-day extension for good cause on the agreement of all parties.²⁷ The remaining details of the Act belong to the class action materials.

These statutes loosen the general framework at identifiable points: the premise that the plaintiff could have filed federally and the forum defendant rule (§ 1441(e)), the well-pleaded complaint rule (§ 1442), the time limits (§ 1441(d)), and the complete diversity requirement (CAFA). Statutes that move the other way, withdrawing removal from cases that satisfy § 1441(a), come next.

Key Exam Rule

Statutes broadening removal

Statutes outside the general framework widen removal by relaxing one or more of its conditions:

A foreign state sued in state court may remove under § 1441(d), the action is tried without a jury, and the § 1446(b) time limits may be enlarged for cause shown.³⁰
Notwithstanding subsection (b), § 1441(e) lets a defendant remove an action that could have been brought under § 1369, or that arises from the same accident as a § 1369 action to which the defendant is a party, even if the state action could not have been filed in federal court originally.³¹
A federal officer may remove under § 1442 on a colorable federal defense for acts under color of office, even though the complaint pleads only state law.³²
Section 1443 requires a pervasive and explicit law showing that federal rights will inevitably be denied by the act of trial itself.³³
A class action that has 100 or more putative members, minimal diversity, and more than $5 million in the aggregate falls within CAFA diversity jurisdiction, and an order on a remand motion may be appealed in the court of appeals' discretion.³⁴

Statutes Barring Removal

The opening words of § 1441(a) also let Congress withdraw removal from a case that would otherwise qualify.³⁵ Congress did so in § 1445, which prohibits the removal of certain claims even if they would arise in diversity jurisdiction, most notably workers' compensation claims.³⁶ The best-known application covers claims under the Federal Employers' Liability Act (FELA), which gives injured railroad employees a federal claim: a FELA claim commenced in state court is not removable.³⁷ The Jones Act adopts the FELA, and courts have read that adoption to carry the FELA's bar with it. A Jones Act claim commenced in state court therefore cannot be removed even when diversity supplies federal jurisdiction independently.³⁸ The bar also reaches claims joined to the Jones Act claim. General maritime claims such as maintenance and cure and unseaworthiness are not removable when joined with a Jones Act claim, because of their close relationship with traditional seamen's remedies.³⁹

Each of these bars has the same structure. A FELA claim arises under federal law, and the parties may also be diverse, so a federal court would have had original jurisdiction if the plaintiff had filed there, and the case meets the premise on which this chapter began. What the statute takes away is the defendant's power to move the case. Removal exists only because a statute grants that power, and the opening clause of § 1441(a) allows another statute to withdraw it without touching the underlying federal jurisdiction. Original jurisdiction is necessary for removal but is not enough where Congress has expressly made a category of claims nonremovable. Under a statutory bar, the plaintiff alone decides whether the case stays in state court.

The two suits share a defendant, a court, a dollar figure, and a plaintiff from another state, so the claim being asserted decides the answer and the identity of the defendant does not. The bar takes away the right to remove and leaves untouched what the district court could have heard had the plaintiff filed there. A removal that violates it is therefore a defect other than lack of subject matter jurisdiction, and the plaintiff must raise it by a motion to remand within 30 days after the notice of removal is filed.⁴² A true jurisdictional defect is different, because the court must remand if at any time before final judgment it appears that subject matter jurisdiction is lacking. The order of remand may also require payment of just costs and actual expenses, including attorney fees, incurred as a result of the removal, so removing a barred claim carries a price.⁴³

Exam writers tend to surround these cases with facts that invite a long analysis of complete diversity, the amount in controversy, the forum defendant rule, and unanimity, and none of that analysis matters if the claim is in a barred category. The sound habit is to scan the fact pattern first for a railroad employee's injury, a seaman's claim, or a workers' compensation action, and to run the general rules only when none appears.

Plaintiffs know the value of a bar, and some plead around removal. Because a Jones Act claim is not removable, a state-court plaintiff may allege a frivolous seaman's claim and an alternative § 905(b) claim. Courts generally avoid deciding the worker's status on the motion to remand, and they place a heavy burden on the defendant to prove that the Jones Act claim is frivolous.⁴⁴ Fraudulent joinder follows a similar pattern in diversity cases. A defendant who believes the plaintiff joined another defendant, without any viable claim against that party, to prevent removal should remove and argue that the joinder was fraudulent, meaning the plaintiff cannot state a reasonable or colorable claim against the party whose presence would destroy jurisdiction. If the federal court agrees, it dismisses the fraudulently joined defendant and takes jurisdiction.⁴⁵