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As usual, the federal courts continue to confront myriad issues when determining the scope of the removal statute. Even the U.S. Supreme Court has become preoccupied with removal issues. During the prior five terms, the Supreme Court decided six cases governing removal standards and procedures. During the current term, the Court decided another removal question, and granted certiorari to resolve another. It is fair to say that practice under the removal statute — “the judicial curiosity” that allows defendants to remove an action properly brought by the plaintiff in a state court to a federal district court — will continue to take interesting twists and turns. Tinney v. McClain, 76 F. Supp. 694, 698 (N.D. Texas 1948). A QUICK LOOK AT THE HIGH COURT’S LAST FIVE TERMS Let’s take a quick look at what the Supreme Court decided over the prior five terms. First, the Court determined that even if a case should not have been removed because of a lack of subject-matter jurisdiction, judgment may be entered if the defect is cured prior to final judgment. Caterpillar Inc. v. Lewis, 519 U.S. 61, 117 S. Ct. 467 (1996). Next, in City of Chicago v. International College of Surgeons, 522 U.S. 156, 118 S. Ct. 523 (1997), the Supreme Court held that a case raising federal claims and state claims calling for deferential review of administrative findings was a “civil action” within the meaning of the removal statute. The third decision involved the axiom that a defense raising federal claims is insufficient to confer federal-question jurisdiction under 28 U.S.C. 1331. Thus, a state court case raising a federal law defense may not be removed. The Supreme Court affirmed that rule even when the defense in an action filed in state court was that a prior federal judgment has preclusive effect. Rivet v. Regions Bank of Louisiana, 522 U.S. 470, 118 S. Ct. 921 (1998). However, there is no need to remove such an action because under the relitigation exception to the Anti-Injunction Act, 28 U.S.C. 2283 ( see generallyMoore’s Federal Practice, Chapter 121), the defendant may seek from the federal court that rendered the judgment an injunction restraining the plaintiff from prosecuting the state court action. The next problem the Court resolved was whether a state court action in which at least one claim is subject to 11th Amendment immunity is removable. In Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 118 S. Ct. 2047 (1998), the Supreme Court resolved a split in the courts of appeals on the above question, and held that such an action is removable. Two of the Court’s opinions dealt with procedural issues. In the first of these cases, the Court resolved a dispute in the lower federal courts over what � 1446(b) means when it states that the 30-day period of time to remove begins to run after notice of the case “through service or otherwise.” In Murphy Bros. Inc. v. Michetti Pipe Stringing Inc., 526 U.S. 344, 119 S. Ct. 1322 (1999), the Court held that the 30-day removal period began to run not when a defendant received a faxed, file-stamped copy of the complaint, but rather, when the defendant was later formally served. Formal service was required in order to prevent unfairness to defendants. Finally, the Court dealt with an important, but divided, 9-7 en banc opinion, issued by the 5th U.S. Circuit Court of Appeals that held that in a removed case the district court must decide the question of whether subject-matter jurisdiction exists rather than determine a possibly analytically less difficult motion to dismiss for lack of personal jurisdiction. Marathon Oil Co. v. Ruhrgas A.G., 145 F.3d 211 (5th Cir. 1998). This decision was contrary to years of practice in the federal courts, which routinely decided easier forum-dispositive issues rather than grapple with difficult subject-matter jurisdiction issues that often arise in removed cases. Fortunately, the Supreme Court overturned the en banc decision, unanimously holding that the district court had discretion to decide whether the personal-jurisdiction inquiry should precede a more difficult subject-matter jurisdiction inquiry. Ruhrgas A.G. v. Marathon Oil Co.,526 U.S. 574 (1999). Now, let’s turn to the case that the Court decided this term. A complete discussion of the case, in turn, requires discussion of another Supreme Court case decided this term. In keeping with the Supreme Court’s preoccupation with federalism issues, perhaps it is no surprise that both of these decisions involve the intersection of federal subject-matter jurisdiction and the 11th Amendment. On the other hand, the removal decision marks a bit of a reversal of the state-protective trend emanating from most of the Court’s recent federalism decisions. In Lapides v. Board of Regents of the University System of Georgia, 122 S. Ct. 1640 (2002), the Supreme Court held that a state’s removal of a suit to federal court constitutes a waiver of the state’s 11th Amendment immunity. In Lapides, a University of Georgia professor filed a state court action against the Board of Regents, indisputably an arm of the state for 11th Amendment purposes, and several state officials. The professor alleged that the defendants violated his federal civil rights, as well as state tort law, when they placed sexual harassment allegations in his personnel files. All of the defendants joined in removing the case to federal court, and then sought dismissal. The district court found that the removal waived the immunity of the board, but the 11th Circuit reversed, finding that state law was unclear on whether the state attorney general, who obtained the approval of all the defendants and removed the action, had the legal authority to waive the immunity. The Supreme Court unanimously reversed, finding that the removal waived the immunity. Accordingly, the case was properly before the federal court. First, however, the Court made clear that it limited its holding to the context of state law claims with respect to which the state has explicitly waived immunity from state court proceedings. The professor sought money damages, but such a claim under the civil rights statute, 42 U.S.C. 1983, is not cognizable against a state. The Court had previously held that a state is not a “person” for the purpose of � 1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66, 109 S. Ct. 2304 (1989). Thus, the only viable claim that the professor had against the state was under Georgia state tort law. And this case presented a relatively easy case because there was no question that Georgia waived its immunity for tort claims in state courts. The Court declined to say what it would do in terms of the waiver of immunity by removal in the cases of states that did not waive their immunity for the purpose of state claims in state court. The key contribution that the Court makes is to obviate the need to get into the difficult question of who may waive the immunity. Instead of adopting a test that required the federal court to look at state law to determine who may waive the immunity, the Court adopted a bright-line rule. The state had argued that the attorney general did not have the authority to waive the state’s immunity. Moreover, it argued that the recent Supreme Court federalism cases have made clear that a state waives its immunity only when there is a “clear” indication of a state’s intent to waive its immunity. The Court refused to join issue on the grounds offered by the state. The Court noted that the state “voluntarily” invoked the federal judicial power. According to the Court, the 11th Amendment does not apply when the state voluntarily invokes federal jurisdiction. The purpose of the 11th Amendment is to protect states from being dragged involuntarily into federal court. Another point made by the Court bears mention. Recall that the professor asserted claims against the State Board of Regents and several individual defendants that he sued in their individual or official capacities. Recall further, as discussed above, that the professor lacked a viable claim against the state board. What, then, was the basis for federal jurisdiction in the first place? The Court said there was no federal claim against the state. And there clearly was no other independent basis for federal jurisdiction over the Georgia plaintiff’s state law claims against the Georgia Board of Regents. Recall finally, as also discussed above, that the Supreme Court held in Wisconsin Department of Corrections v. Schacht, 524 U.S. 381, 118 S. Ct. 2047 (1998), that a case against a state defendant and state officials is removable. ONE REMOVABLE DOESN’T NECESSARILY LEAD TO ANOTHER The fact that the claim against the state or state entity may not be removable does not mean that the claims against the individuals are not removable. In other words, the federal civil rights claims under � 1983 supply the federal question that makes the case removable in the first place, and then supplemental jurisdiction under 28 U.S.C. 1367(a) supports federal jurisdiction over the state law claims against all the defendants. Applying this analysis to the Lapidescase, it would be the federal � 1983 claims against the individual defendants that supplied federal jurisdiction over the case, thereby making the case removable under Schacht. Supplemental jurisdiction supported the viable state law claims against both the individual defendants and the state Board of Regents. Although the Supreme Court found that the federal court had removal jurisdiction over the state board, it also noted — twice, in fact — that because the state law claims against the board were supported only by � 1367 supplemental jurisdiction, they were subject to remand or dismissal under � 1367(c). Section 1367(c) provides the district court with discretion to remand or dismiss supplemental claims on various grounds, such as when state law predominates. The fact that the Court mentions the remand possibility twice seems to invite the district court to exercise its discretion in favor of remand. Practitioners need to note on this point another case the Supreme Court decided this term. The Supreme Court held that the tolling provision of the supplemental jurisdiction statute, 28 U.S.C. 1367(d), does not contain a sufficiently clear statement of congressional intent to make the tolling provision applicable to claims against nonconsenting states that are dismissed on 11th Amendment grounds. Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 122 S. Ct. 999 (2002). Section 1367(d) provides a 30-day tolling period, or longer if the state has a longer tolling period, to re-file the claims in state court. If the Supreme Court had decided that Georgia had not waived its immunity on the state law claims, Raygor suggests that the professor would not be able to take advantage of the tolling provision. In the time between when the professor filed the federal action and the federal court decided to dismiss the state law claims against the board on immunity grounds, the professor would not be able to re-file the action in state court. The plaintiff should think about filing concurrent actions in state and federal court to ensure that there will be no statute-of-limitations issues if the federal court dismisses the claims against the state. Georgene M. Vairo is a professor of law and William M. Rains fellow at Loyola Law School at Los Angeles. She can be reached at [email protected].

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