Chapter 27-2 Removal on Federal Question Grounds

• Jurisdiction: United States

27-2 Removal on Federal Question Grounds

A case may be removed from state to federal court if it presents a federal question because district courts have original (though not exclusive) jurisdiction over federal question cases.²

27-2:1 Federal Question Jurisdiction Defined

District courts have federal question jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States."³ To determine whether or not a case "arises under" federal law, federal courts apply the well-pleaded complaint rule.⁴ Under this rule, the existence of a federal question is determined by resort to the face of the plaintiff's well-pleaded complaint and to the statement of the plaintiff's cause of action.⁵ Federal question jurisdiction may not be predicated upon the existence of a federal defense or federal response to a defense.⁶ Instead, the cause of action itself must raise a federal question.

As a general rule, the cause of action arises under the law that creates it.⁷ Thus, federally created causes of action present federal questions. State created causes of action, as a general rule, do not. The vast majority of cases can be resolved with application of this straightforward test, also known as the Holmes Test.⁸

In relatively rare cases, a state created cause of action may arise under federal law, thereby presenting a federal question. These rare cases occur when an issue of federal law is an element of the plaintiff's state created cause of action.⁹ It is not enough, however, merely for the federal issue to be an element of the state cause of action.¹⁰ Though federal courts, including the Supreme Court, have had difficulty articulating a satisfactory and predictable definition of this strain of federal question jurisdiction, for a state cause of action to constitute a federal question, resolution of the federal issue must be (1) necessary to resolution of the dispute, (2) the federal issue must be substantial in that there is a substantial interest in providing a federal forum for resolution of such disputes, and (3) declaring the state cause of action a federal question will not disrupt the division of labor between the state and federal courts.¹¹

27-2:2 Joinder of Federal and State Law Claims

Where a civil action includes both a claim that constitutes a federal question and an otherwise non-removable claim (e.g., state law claim), the entire action may be removed so long as the action would have been removable in the absence of the...