In Search of Removal Jurisdiction

I. INTRODUCTION "Jurisdiction," it has been bemoaned, "is a word of many, too many, meanings."1 For some, it means nothing more than any other authorization or limit.2 For others, the term denotes something more fundamental and represents the legitimate power of a court.3 The latter is the traditional view,4 and the Supreme Court has long adhered to it.5 The classification of statutes as jurisdictional or procedural-what this Article calls "jurisdictional characterization"-has important consequences for litigants. Questions of subject matter jurisdiction in federal court, unlike merits questions or procedural irregularities, can be raised by any party or the court sua sponte; may not be consented to by the parties; are not subject to principles of estoppel, forfeiture, or waiver; and may be raised at any time, including for the first time on appeal.6 In the common first-year civil procedure case of Capron v. Van Noorden,7 for example, the Supreme Court, on an appeal by the plaintiff, reversed a judgment against the plaintiff for lack of diversity jurisdiction because the plaintiff had failed to allege his own diverse citizenship.8 Of additional importance for my purposes here, the distinction has specific statutory implications in the removal context. If a federal district court determines at any time prior to final judgment that it lacks subject matter jurisdiction over a removed case, the case must be remanded.9 Nonjurisdictional defects in removal, however, must be raised within thirty days of removal or are forfeited.10 This particular feature of removal pressures plaintiffs who prefer to litigate in state court to discover procedural defects in removal quickly, as opposed to jurisdictional defects, which can be raised at a later stage. Thus, whether a particular question is jurisdictional or not means a great deal. The problem is that determining whether a particular issue is jurisdictional is often difficult. And the ubiquitous and somewhat careless use of the term jurisdictional by the Supreme Court and lower courts" has spawned confusion over what is and is not jurisdictional.12 Perhaps partly in response to this confusion, the Court, in recent years, has begun resolving jurisdictional characterization issues outside the removal context. For example, the Court has held that the time to file a notice of appeal is jurisdictional,13 whereas generic time bars in rules promulgated under the Rules Enabling Act14 or in substantive statutes are not jurisdictional.15 The Court also has held that the definition of "employer" in Title VII is an element of proof of the substantive claim rather than a jurisdictional condition.16 The Court's clarifications in these areas, however, do not extend comfortably to the removal statutes.17 Unlike the time limit for filing a notice of appeal, the removal provisions are a convoluted scheme that lacks a single, uniform historical pedigree of consistent jurisdictional treatment.18 Unlike the Federal Rules, the removal statutes are not constrained by the limitations in the Rules Enabling Act, but rather are themselves quasijurisdictional.19 Unlike time bars, statutes of limitations, and merits elements, which generally run with the substantive merits or are tied to historical considerations of equity, the removal statutes generally are not tied to the merits of a claim and implicate significant federalism concerns.20 In addition, the characterization of removal provisions contains a unique consequence: all defects in removal other than a lack of subject matter jurisdiction must be raised within thirty days of removal or be forfeited.21 In short, the Court's recent pronouncements in these specific areas do not answer conclusively the jurisdictional characterization issues in the removal statutes. Yet the Court continues to avoid addressing the removal issues. Indeed, earlier this year, the Court denied certiorari in a case that would have addressed a jurisdictional characterization issue in the removal statute22-the "forum defendant rule," the very issue that I showcase later in this Article. …