Removal and Remand Everywhere

Some more cases that your successors will see in oral arguments next fall. But they illustrate the analysis and interaction of many of the doctrines from our last two sections of class. Worth skimming through both.

Sherod v. Comprehensive Healthcare (3d Cir.) held (based on controlling on-all-fours circuit precedent) that a nursing home could not remove a state negligence claim arising from a patient's COVID death under either § 1442, complete preemption by a federal COVID-response statute, or Grable. Every circuit to consider such cases has rejected removal.

Connecticut v. Exxon-Mobil (2d Cir.) is the latest case rejecting removal of state or local government suits against oil companies over climate change. Again, the court discusses § 1442, Grable, and complete preemption. It also offers a handy way of explaining the three situations in which a non-federal cause of action can be removed--where Congress provides for removal of state-law claims (e.g., § 1442), complete preemption, and Grable; it frames the first two as falling under the "artful pleading" doctrine.

Both cases illustrate a point not discussed in the reading and which I neglected to mention in class. Section 1447(d)'s bar on appeals of remand orders makes an exception for removal based on §§ 1442 and 1443. But what happens if a defendant removes based on § 1442 and § 1441 and the district court decides that neither ground supports removal? Obviously the defendant can appeal the portion of the order rejecting § 1442. Can it also appeal the rest of the order, rejecting § 1441 removal (i.e., deciding that the well pleaded complaint rule does not support federal question jurisdiction)? BP v. Mayor and City Council of Baltimore said it can. Section 1447(d) speaks of appealing an "order remanding a case;" that includes everything the district court addressed in the order. We thus have seen a dramatic increase in appellate review of remand orders, as large businesses assert (often dubious) § 1442 removal along with § 1441, then appeal the whole. Justice Sotomayor warned of this problem in her solo dissent. That happened in both of these cases.

District Court Papers

Here, here, here, here, here, here, here, and here.

For Monday

Tuesday audio (first 31 minutes only, sorry about that).

We continue with Declaratory Judgments. Download Medimmune from the Additional Materials post; read the facts and procedural posture for now. Why would Medimmune seek a DJ rather than waiting for the lawsuit and defending--what benefits does it get? Why would Genentech seek a DJ of validity rather than suing for infringement? Why is a DJ (without an injunction) sufficient in the Genentech/Medimmune dispute? What happens if a DJ issues or not in each case? What are the possible actions arising from the Skelly Oil facts? How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

Then move to Non-Article III Courts, including the additional statutes on the blog. What do we mean by "non-Article III courts?" What are the four types of non-Article III bodies? What is the public rights doctrine and how does it explain non-Article III jurisdiction? What is the argument, grounded in Marbury, for and against SCOTUS power to review the Court of Appeals for the Armed Forces? Would it be different if review was in the courts of appeals?

18 year SCOTUS retirements

Jack Balkin is a professor at Yale and a supporter of the regular-appointments plan. Here he elaborates on a way to impose 18-year limits on current justices--He limits the junior-most nine plan to appellate cases, thereby using the exceptions-and-regulations clause as the hook for the limitation. All justices would hear original cases (the few that arise). But because most of the action is on the appellate docket, this achieves what everyone wants--rotation in the Court's core functions.

Pathways to Federal Clerkships

The Wilkie D. Ferguson, Jr. Bar Association (the federal bar association for South Florida) is sponsoring Pathways to Federal Clerkships, a panel discussion on federal clerkships. Speakers are Judges Bloom, Gayles, and Maynard of S.D. Fl. The event is 5:30 p.m. on Tuesday, October 3 at Stearns Weaver Miller. Registration link on the event web site.

Fed Courts is the essential class for a federal (or, frankly, state) clerkship. I encourage everyone to consider clerking at some level and I encourage everyone to attend this event.

Shadow Docket Watch

A new blog that tracks and updates emergency motions and applications to SCOTUS (the "shadow docket").

For Tuesday

Tuesday audio. No class Monday. District Court Reax Papers due at the beginning of class on Tuesday.

We begin with Ex parte Young, as discussed in Pfander. What happened in the case and how did it create a new way for constitutional rights to be litigated? What is the "rule" of EpY and what sorts of lawsuits does it allow. What are the criticisms of this way of adjudicating rights? What are the benefits to the federal rights-holder?

We then turn to Three-Judge Courts and Declaratory Judgments. Both reflect ways to address objections to and criticisms of EpY--how does each do that?

What is the complete process for 3-judge courts in § 2284(b), Shapiro, and § 1253? Why allow those 3 classes of cases to still be heard by 3-judge courts? What does "when otherwise required by Act of Congress" mean in § 2284(a)? When might Congress require a 3-judge court, how, and why?

Then move to Declaratory Judgments. What is a declaratory judgment and how does it differ from an injunction? Consider the enforcement and anticipatory/pre-enforcement actions for DJ that could arise from the following circumstances:

    • 2017 MGM mass shooting: Victims have tort claims against MGM; MGM believes it is protected by a federal statute immunizing property owners from claims arising from terrorist activities. The statute provides a federal right of action against the third-party hired by the property owner to provide security services; no claim lies against the property owner.

    • I insures Dr. X against malpractice; Dr. X injures A, one of his patients.

    • Mottley

    • Medimmune v. Genentech (facts discussed in Pfander pp. 80-81)

    • Skelly Oil (discussed in Chemerinsky)

How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

Why would Medimmune seek a DJ rather than waiting for the lawsuit and defending--what benefits does it get? Why would Genentech seek a DJ of validity rather than suing for infringement? Why is a DJ (without an injunction) sufficient in the Genentech/Medimmune dispute? What happens if a DJ issues or not in each case? What are the possible actions arising from the Skelly Oil facts? How is federal-question jurisdiction determined in these anticipatory actions and is there jurisdiction in the above cases?

Do not move on to Non-Article III Courts. We will get there the following week.

For Tuesday

Monday audio.

We continue with Arising Under and embedded federal issues. Discuss whether there is jurisidction in Grable, Gunn, and Trump's removal of the Colorado lawsuit invoking § 3 of the Fourteenth Amendment.

Move to Complete Preemption and Customary International Law (you may have covered this material in ICL). What is the "rule against artful pleading" and how is it a counterpart to the rule that plaintiff is master of the complaint? What is complete (or "transformative" preemption), how does it affect jurisdiction, and when does it apply? To what does preemption apply and does the doctrine make sense? Review the Notice of Removal in Rodriguez--what is the preemption argument there? What does § 1350 do according to Sosa and what sorts of claims are possible in federal court?

We then move to the next panel. For tomorrow, know the basics of Ex parte Young (discussed in Pfander). How does EpY allow plaintiffs to assert constitutional rights. Without EpY, how would defendants (such as the railroad) assert constitutional rights?

We then move to Panel # 5 towards the end of class. Prep Three-Judge District Courts. Know the basics of Ex parte Young (discussed in Pfander, pp. 257-62); disregard the Eleventh Amendment piece for now.  How does EPY allows plaintiffs to assert constitutional rights; before EPY, how would defendants (such as the railroad) assert their rights?

Court of Appeals Reax Papers

Here, here, here, here, here, here, here, here, and here.

Meadows removal

As we know, former Trump chief of staff Mark Meadows removed the Georgia prosecution under § 1442; the district court ordered remand. As your preparation of § 1447(d) tells you, that is appealable. Meadows appealed and requested that it be expedited; argument will take place this Friday morning, via zoom. Also, the court of appeals ordered the parties to brief whether a former federal office holder (one not in office at the time the action commences) can remove. Recording of the argument may be available as early as Friday afternoon; check the 11th Circuit web site.

When I said the material in this class makes the news, I was not kidding.

For Monday

Tuesday audio. Court of Appeals papers due Monday.

What is the purpose of allowing removal (of, by definition, state-law cases) under § 1442 and § 1443--why allow removal in these situations? Review §§ 1455, 1446, and 1447 on the process of removal, including appealability of remand. When a defendant files a notice of removal, where is the case? What happens then? Again, skim the the order remanding in Meadows.

Prep Arising Under, then prep Removal and Exclusive Jurisdiction and Complete Preemption. How would removal work (if at all) for the following actions in state court, in light of § 1441 and § 1454:

    1) A sues X on state law claims; X asserts a counterclaim for Trademark infringement

    2) A sues X on state law claims; X asserts a counterclaim for antitrust violations

    3) A sues X on state law claims; X asserts a counterclaim for Copyright infringement

When does an action on the face of the WPC arise under, under Mims and American Well Works? Why extend it beyond that core? How is the core expanded in Grable and Gunn? What is the difference between subject matter jurisdiction and the merits of a claim? Was there jurisdiction in Morrison? What about in a Title VII case against an entity that does not qualify as an "employer" (because it has fewer than 15 employees) or by a person who is not an "employee" (because an independent contractor?

Last week, a lawsuit was filed in Colorado state court seeking to exclude Donald Trump from the ballot there because he engaged or supported insurrection, making him ineligible for federal office under § 3 of the Fourteenth Amendment and thus unable to qualify for the ballot under Colorado law. Trump removed to federal court. What is the argument for and against jurisduction under Grable and Gunn?

Please note that some of the provisions in the Chemerinsky appendix are old or inaccurate. I am checking and will provide updated versions if they are wrong. The appendix in Pfander is more up-to-date but does not include many provisions.

What if the District Court refuses to certify under § 1292(b)

Alex asked. Part III of this (fairly short) opinion gives the general answer. Your successors in this class next fall are likely to face this as an oral argument case. A deeper analysis is fair game for a reaction paper.

For Monday

Monday audio. Court of Appeals papers due next Monday.

We move to District Courts; prep Structure, Overview, Removal, and Arising Under: Arising Under (just Chemerinsky 305-18 and Pfander 133-44; and all the assigned statutes). Add Chemerinsky, 842-53.

How are the district courts organized? Why do federal courts have federal-question jurisdiction-what are the three policies behind it? What is the process for removal? What is the Well-Pleaded Complaint Rule, what are the arguments for and against it, and how does it limit jurisdiction? How do cases governed by the WPC get a federal forum for federal issues? What does "arising under" mean for Article III, § 1257, and § 1331 purposes? Why give district courts "arising under" jurisdiction? What are the three types of statutes through which Congress gives district courts "arising under" jurisdiction (based on §§ 1331, 1337, 1338, 1121, and 2000e-5(f))? Know the facts and procedure of Mottley and how that affected jurisdiction.

For the removal section, current events require broader discussion of federal-officer removal under § 1442. Why allow federal officials (or those they supervise) to remove? Read Mark Meadows' (former Trump chief of staff) notice of removal under § 1442 of the Georgia RICO prosecution and skim the order remanding. See also 28 U.S.C. § 1455.

SCOTUS Reax Papers

Here, here, here, here, here, here, here, here, here, and here.

For Monday

Tuesday audio.

Prep all of Courts of Appeals, which I hope to finish (or mostly finish) Monday. We pick up with that final question--how does the availability of interlocutory-appeal rules (especially from SCOTUS in § 1292(e) affect the scope of COD? Why are injunctions immediately appealable under § 1292(a) and how does that relate to our discussion of the shadow (emergency) docket? What is the argument that denial of class certification (allowing a named plaintiff to sue on behalf of thousands of unnamed, similarly situated persons) should be reviewable under COD? Where does 23(f) come from and how does it reflect a response to Coopers & Lybrand?

Consider the following two cases in district court

    1)  A and B v. X; A asserts one antitrust claim while B asserts one antitrust claim and one state law claim.

    2) A v. X, asserting one antitrust claim. B v. X asserting one antitrust claim and one state law claim. The cases are consolidated under FRCP 42 because they share common questions of law or fact.

What is the process and standard for mandamus? Given Marbury, how can SCOTUS issue a writ of mandamus in cases such as Cheney?

Panel # 4 (District Courts) should be ready to go for Tuesday.