Removal and the Eleventh Amendment: the case for district court remand discretion to avoid a bifurcated suit.

AuthorBerman, Michael N.


A plaintiff files suit in state court alleging a federal cause of action. The suit names two defendants, a private actor and a state actor. The private defendant, noting that the "civil action arises under federal law" and therefore falls within the federal courts' original federal question jurisdiction,(1) seeks to remove the case to federal court pursuant to 28 U.S.C. [sections] 1441(a).(2) In accord with federal procedures, she files a notice of removal in the federal district court for the district in which the state court resides.(3)

The plaintiff, however, prefers that the case remain intact and that the state court adjudicate the claims against both defendants. He files a motion for remand in the federal court to which the private defendant has removed the action. The plaintiff's motion argues that, because the Eleventh Amendment forbids the federal district court from exercising jurisdiction over the state defendant,(4) removal is improper. Federal courts have disagreed as to whether the private defendant can remove the claims against her, thereby bifurcating the plaintiff's suit, or whether the Eleventh Amendment prevents even the private defendant from securing a federal forum. The Fifth Circuit, in McKay v. Boyd Construction Co.,(5) held that the Eleventh Amendment bars removal of all the claims in the case. It directed the district court to remand the claims against both defendants to the state court.(6) The Sixth Circuit, in Henry v. Metropolitan Sewer District,(7) repudiated McKay. The court held that a case naming both state and private defendants was removable in its entirety, but that the federal district court must both remand the claims against the state defendant and adjudicate the claims against the private defendant.

This Note concludes that the Sixth Circuit was half right: when a civil action names both state and private defendants -- what this Note terms a "mixed case" -- and when the claims against private defendants arise under federal law, the district court must grant removal of the case(8) and must remand the claims against the state defendant. However, this Note also observes that the Fifth Circuit probably achieved the better result. After defendants have removed a mixed case to federal court and the district court has remanded the barred claims, the dual court systems and the parties will usually benefit from disposition of the entire case in one proceeding.

Accordingly, the significant question that Henry raises -- but that the court failed to consider -- is whether the district court may remand the claims that it is permitted to hear, along with those claims that the Eleventh Amendment bars, to state court in order to avoid a bifurcated cause of action. This Note argues that, contrary to prevailing wisdom, both the federal removal statutes and relevant Supreme Court precedent grant district courts sufficient discretion to remand such claims even though they fall within the federal courts' jurisdiction.

Part I examines whether a private defendant may remove a case to federal court when the plaintiff's suit also names a state defendant. Part I briefly introduces both Eleventh Amendment jurisprudence and the federal removal statutes. It then demonstrates that no part of a mixed case is removable when the private defendant seeks to rely on the federal courts' diversity jurisdiction. Lastly, it concludes that the presence of barred claims does not render nonremovable a civil action that lies within original federal question jurisdiction. A mixed case is removable in its entirety when the claim against the private defendant arises under federal law.

Part II poses the question whether, after the federal district court remands the claims against the state defendant to state court, the federal court should remand or adjudicate the remaining claims against the private defendant. This Part argues that considerations of judicial economy and fairness will often recommend that the court remand the nonbarred claims as well. It proposes that the proper disposition of the claims against the private defendant can best be realized by investing the district court with ad hoc remand discretion.

Whereas Part II is prescriptive, Parts III and IV arc descriptive. Together, they conclude that the existing legal framework permits a district court to exercise remand discretion to avoid a bifurcated suit. Part III analyzes existing Supreme Court caselaw, focusing in particular on the Court's holding in Carnegie-Mellon University v. Cohill(9) that a district court possesses discretion to remand pendent state law claims when it has assumed jurisdiction over a case via removal and all the federal question claims have been either resolved or dismissed. This Part concludes that Carnegie-Mellon is predicated on the Court's affirmation of inherent district court discretion to remand actions in the interests of judicial economy, convenience, fairness, and comity. Such reasoning would permit remand discretion in Eleventh Amendment actions to prevent a bifurcated suit.

Part IV begins by noting that, however the reasoning in Carnegie-Mellon is characterized, its methodology is clear: the Supreme Court approved of extrastatutory remand discretion as an exercise of its common law power to supplement statutory rules of jurisdiction; it did not engage in statutory interpretation. This Part, consequently, undertakes the oft-bypassed task of interpreting the remand provision, 28 U.S.C. [sections] 1447(c).(10) Employing standard methods of statutory construction, Part IV determines that, properly understood, section 1447(c) authorizes district court discretion to remand nonbarred federal question claims when necessary to avoid a bifurcated suit. This Note concludes that, whether applying the common law reasoning of Supreme Court precedent or undertaking statutory interpretation on its own, a federal district court confronting a removed mixed case can and should assume discretion to remand nonbarred federal question claims when remanding claims barred by the Eleventh Amendment.


    This Part argues that the Eleventh Amendment permits removal of a case that contains federal question claims against private defendants even if the complaint names a state defendant. Sections I.A and I.B respectively provide brief introductions to Eleventh Amendment jurisprudence and the removal statutes. The next two sections explore mixed-case removal. Section I.C examines mixed-case diversity removal. It demonstrates that, aside from considerations of the Eleventh Amendment, the presence of a state defendant destroys complete diversity. Accordingly, actions that name both state and private defendants are not removable on the basis of the federal courts' diversity jurisdiction. Section I.D examines mixed-case federal question removal. It concludes that mixed cases are removable when the barred claims and the nonbarred federal question claims are either "separate and independent" within the meaning of 28 U.S.C. [sections] 1441(c), or part of a single civil action for purposes of section 1441(a).

    1. The Eleventh Amendment

      The passage of the Eleventh Amendment marked the first of what has proven to be that rare event in American democracy, a successful effort to overrule a Supreme Court decision by constitutional amendment.(11) In the offending case, Chisholm V. Georgia,(12) the Supreme Court upheld federal jurisdiction over an action to recover debts brought by a South Carolinian against the State of Georgia. Georgia had objected that sovereign immunity protected an unconsenting state from suit in federal court despite the second section of Article III, which extends the judicial power to "controversies . . . between a State and Citizens of another State."(13) A majority of the Justices, writing separately, adhered to the plain language of the constitutional text and rejected Georgia's arguments that the provision was intended only to govern suits commenced by a state and did not reach actions in assumpsit.(14) Public reaction to Chisholm was so intensely negative -- largely, historians generally agree, due to a fear of an avalanche of suits by British and Tory creditors to recover Revolutionary War debts and seized property(15) -- that Congress proposed and approved the Eleventh Amendment within three weeks of the Chisholm decision. The states ratified it in less than a year.(16) The Amendment provides: "The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."(17)

      Despite this compact history, the meaning and, therefore, the proper doctrinal contours of the Eleventh Amendment have been much debated. Scholars and Justices have advanced at least three distinct theories of the Amendment's intended purpose, each entailing different practical consequences.(18) First, the dominant view in Supreme Court caselaw is that the Amendment constitutionalizes state sovereign immunity, thereby preventing a state from being sued in federal court without its consent.(19) Second, a minority of the Court, initially led by Justice Brennan, has come to view the Amendment solely as a restriction on federal diversity jurisdiction. Under this view, the Amendment does not bar actions based on the federal courts' federal question and admiralty jurisdiction.(20) The third perspective urges that the Amendment was intended merely to reestablish the states' common law immunity that Chisholm had seemingly abrogated. This theory would permit Congress, but not the federal bench, to authorize suits against a state in federal court.(21) Given the impressive number of commentators who have entered the debate in the last several years,(22) a thorough examination of the strengths and weaknesses of each of the theories is beyond the scope of...

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