Removal Jurisdiction

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Scott Dodson

FAYETTEVILLE, Ark. — A University of Arkansas law professor has developed a new legal framework for resolving certain questions of jurisdiction that are confounding federal courts across the nation and sometimes resulting in nullification of months or even years of progress in federal court. The framework deals with federal jurisdiction in “removal,” the word used to describe the rules for transferring a case from state court to federal court for adjudication.

“The issue is critical because defects in removal procedure must be raised within 30 days of removal,” said Scott Dodson, the assistant professor of law who developed the framework. “In contrast, defects in jurisdiction can be raised at any time, even after years of litigation in the federal court. A defect in jurisdiction forces a mandatory transfer of the case back to state court, which may lead to wasted time, money and effort.”

Jurisdiction is generally understood as the power or authority of a court to issue legitimate, binding and enforceable orders. Procedure is the regulation of that power and authority once it is obtained. Procedure may be thought of as how cases should proceed rather than whether they should proceed or in which court. The problem arises when trial courts try to determine which requirements of removal are procedural and which are jurisdictional, which is no easy task, as differences between the two are often unclear from the language of the statutes governing removal.

Dodson emphasizes that confusion between what is jurisdictional and what is procedural has been further compounded by the ubiquitous and casual use of the word “jurisdiction.” Many legal scholars agree that the word has too many uses. Lawyers and judges, even U.S. Supreme Court justices, sometimes use the word when they actually mean procedural or something else.  

“The Supreme Court and other courts are using the term 'jurisdiction’ without thought and without guidance,” Dodson said. “That leaves lower courts perplexed as to what is jurisdictional and what is not.”

By denying hearings of several appeals, including one in which Dodson was one of the attorneys, the Supreme Court has declined to clarify how to resolve the jurisdictional/procedural issue in removal. Dodson proposes to fill this void with a four-part test, which he discusses in his article “In Search of Removal Jurisdiction,” to be published in Northwestern University Law Review.

First, he argues that if Congress specifies a requirement as jurisdictional, it should be presumed to be jurisdictional because “Congress — and no one else — has the constitutional authority to restrict the jurisdiction of the lower courts.” Second, Dodson argues that courts should consider the functions of the requirement. He reasons that these rules directed to jurisdictional purposes, such as those separating classes of cases or those directed at the power of the court, should be characterized as jurisdictional. By contrast, a rule regulating the process or mode of the case and directed to the rights and obligations of the parties serves procedural purposes and should be characterized as procedural.

As the third part of the test, Dodson advocates for consideration of the effects of one characterization or the other. For example, a jurisdictional characterization should be preferred over a procedural characterization if the procedural characterization would lead to unfair or anomalous results. And finally, Dodson suggests that courts seek analogies to similar issues in other areas of the law to ensure cross-doctrinal consistency among similar legal requirements.

“Characterizing similar requirements in a similar fashion makes good common sense and fosters doctrinal consistency in jurisdictional determinations,” he said.

Dodson hopes his test will bring clarity to an area of the law that is in a state of confusion. Other legal experts agree.

“This article really needed to be written,” said Philip Pucillo, associate professor of law at Ave Maria School of Law in Ann Arbor, Mich. “I’m certain that the bench and bar will find it to be extremely helpful, especially since it offers an intelligent, systematic approach to apply to the removal rules.”

“It is an important development in an important area of the law,” said Jeremy Counseller, professor at Baylor Law School in Waco, Texas. Counseller recently featured Dodson’s work on his Civil Procedure Prof Blog. The interview may be heard online at http://lawprofessors.typepad.com/civpro/2007/03/the_thursday_in.html.

Dodson has written and published extensively on civil procedure and federal jurisdiction. He has been a commentator on CNN Radio.