The Newest Frontier of Judicial Activism: Removal Under the All Writs Act

Despite a dearth of precedent, in recent years some federal courts have permitted defendants to remove cases from state to federal court by virtue of authority found in the All Writs Act. This seems a questionable development. Federal statutes that expressly authorize removal seem to be the exclusive grants of authority to federal courts to obtain jurisdiction over cases commenced in state court, and federalism and harmonious relations between the federal and state courts seem to militate against judicial creation of additional vehicles for removal. The commentators who have mentioned this new development have found it remarkable, usually in a pejorative sense, but courts have continued to embrace these removals. Their reach for such an innovation makes one wonder whether established mechanisms governing federal-state judicial relations are insufficient. When is there a need for proceedings to be adjudicated in federal court? When there is such a need, do traditional vehicles and generally accepted doctrines not suffice to get the cases there, if they originally were filed in state court? Do the ordinary provisions for removal, federal injunctions of state court proceedings under the circumstances authorized by the Anti-Injunction Act, and notions of supplemental or ancillary jurisdiction, even cumulatively, sometimes fail to sufficiently protect the interests of parties to proceedings in federal courts and of the federal courts themselves? If so, is interpreting the All Writs Act to authorize removal the solution or would a new and clear statutory authorization of removal be preferable? This Article examines these issues.Part I, Section I of this Article provides background on the All Writs Act and the Anti-Injunction Act. Section II discusses the cases in which courts have either upheld removal pursuant to the All Writs Act or have expressly refused to do so. Section III addresses two threshold questions: why parties have sought All Writs removal, rather than anti-suit injunctions, and why we should be concerned if the “wrong” vehicle is used to bring cases into federal court.Section IV then elaborates a multi-faceted argument that interpreting the All Writs Act to authorize removal is erroneous and undesirable. This section explains why considerations of both comity and federalism caution against loose interpretation of the All Writs Act, and argues that removal is more disruptive of federal-state judicial relations than are injunctions against state court proceedings. The section concludes that, because removal necessarily encompasses the injunction of state court proceedings, All Writs removal should be permissible, if at all, only when an injunction of those proceedings would be proper under the Anti-Injunction Act. The propriety of such an injunction, however, would not alone suffice to justify All Writs removal.With this larger perspective in mind, Section IV then approaches the issue of All Writs removal from the perspective of proper statutory interpretation. It articulates why courts should eschew All Writs removal and base removal on ordinary removal statutes such as 28 U.S.C. § 1441 et seq. where that course is available. The section invokes evidence that Congress did not intend the All Writs Act to authorize or legitimate removal under any circumstances.Section V supplements the foregoing arguments by showing that no need for removal under the All Writs Act has been demonstrated. Focusing on the cases in which federal courts of appeals have upheld All Writs removal, Section V discusses whether an injunction of the state court proceedings would have been authorized by the Anti-Injunction Act, and if so, whether such an injunction, followed by the exercise of ancillary jurisdiction over proceedings then commenced in federal court, would sufficiently have protected the interests of the federal courts and of the parties. Finding overwhelmingly that the combination of these mechanisms would have protected the relevant interests, Section V concludes that none of the decided cases demonstrates a genuine need for removal under the All Writs Act.Finally, Section VI of Part I of the Article reviews and proposes possible amendments to the Anti-Injunction Act that are intended to ratify the decisional law authorizing injunction of state court proceedings that would interfere with federal disposition of some multi-district and class actions. With those amendments (or even without them, assuming the correctness of the referenced case law), Part I of the Article concludes that some combination of independent bases of federal jurisdiction, ordinary removal, injunctions of state proceedings, and ancillary or supplemental jurisdiction always will furnish a basis for federal adjudication of matters that it is important be adjudicated in federal court. As a result, removal pursuant to the All Writs Act is unnecessary and never should be permitted. For the same reasons, there is no need for a new, clearer, statutory authorization of removal for the kinds of situations in which courts have removed under the All Writs Act. The Article nonetheless suggests some language that Congress could use if it desired to expand removal authority to help ensure the effectiveness of federal jurisdiction over pending federal actions or to ensure the effectiveness of federal judgments and consent decrees.Part II of the Article analyzes the special considerations that apply to anti-suit injunctions issued to protect federal class actions. It focuses, first, on the need for personal jurisdiction over the persons enjoined. It considers what is required for a class action court to exercise personal jurisdiction to enjoin absent members of opt out and mandatory classes from commencing or prosecuting related litigation. It then focuses on personal jurisdiction to enjoin absent class members who collaterally attack class action judgments, applying the principles thus far discussed to the class actions that have been removed pursuant to the All Writs Act. Part II of the Article then concentrates on the "right" of class members to collaterally attack a class action judgment, and on policies favoring and disfavoring the injunction of such collateral attacks. It illustrates the murky distinction between collateral attacks and other litigation that is transactionally related to class actions, through reference to the class action cases in which All Writs removal was purportedly effectuated. Having made these explorations, Part II concludes that if injunctions are available against litigation related to federal class actions and collateral attacks on class action judgments, then All Writs removal is wholly unnecessary. Part II further concludes that if, for various policy reasons, injunctions against collateral attacks should not be available, All Writs removal of such suits would be equally inappropriate.