Federal Removal, the Eleventh Amendment, State Remand, and Other Exercises in Futility

Abstract

This article previews the issues and arguments in Wisconsin Dept. of Corrections v. Schacht, on the Supreme Court’s 1197-98 appellate docket. The primary issue on appeal asks whether a federal district court has removal jurisdiction over a lawsuit involving claims against a state and state officers subject to the Eleventh Amendment's immunity defense or must the district court remand the entire case to state court for disposition, even if remand would be futile because the state court would inevitably dismiss the immunized claims?

Continuing a fascination with federal removal jurisdiction, the Supreme Court for the third time this Term considers a technical problem relating to the principles governing removal. See also City of Chicago v. International College of Surgeons, 118 S. Ct. 523 (1997); Rivet v. Regions Bank, 66 U.S.L.W. 4132 (U.S. Feb. 24, 1998). Rounding out the trilogy, this case gives the Court a third opportunity to expound on the contours of federal removal jurisdiction.

Federal removal jurisdiction represents a way for a defendant in a state-court lawsuit to get the case into federal court. As a general matter, a plaintiff may file a lawsuit either in state or federal court. If the plaintiff chooses state court, the defendant may elect to remove: take the case from state court to federal district court if the federal court has jurisdiction over the case. See 28 U.S.C. § 1441(b).

Federal courts, unlike most state courts, are courts of limited jurisdiction and, as a general rule, may not hear purely state-law claims. Accordingly, a defendant in a state-court case can get the case into federal court only if the plaintiffs complaint alleges a claim under federal law (federal-question jurisdiction under 28 U.S.C. § 1331, or the parties to the dispute are citizens of different states or countries (federal diversity jurisdiction under 28 U.S.C. § 1332). The removal statutes also provide that "if at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded." 28 U.S.C. § 1447(c).

Complicating matters is the Eleventh Amendment and the various cases construing the amendment, which together immunize states, state agencies, and, in certain circumstances, state officers acting in their official capacity against federal court lawsuits brought by citizens of the state being sued or by citizens of other states. Eleventh Amendment immunity, however, does not extend to officers who act in an individual capacity rather than on behalf of state government or an entity of state government.

The present case concerns the right of state defendants to remove a lawsuit from state to federal court when the plaintiff's complaint alleges claims against which the state would have federal-court immunity under the Eleventh Amendment requiring dismissal of the claims once in federal court. The case also concerns the proper scope of removal and whether the so-called futility doctrine renders remand of a removed case to state court a waste of time when the state court would dismiss the same claims as the federal court would dismiss.