I posted yesterday about a fascinating jurisdictional argument about CAFA that appears in an amicus curiae brief filed by Jones Day on behalf of the National Association of Manufacturers in Standard Fire v. Knowles. I continue to think that the brief represents strong lawyering. But having considered the details of the argument in some depth, I am unpersuaded. In what follows, I try to “show my work” leading up to this (provisional) conclusion. The argument is a bit rough and the language is unpolished. I should also caution that I never paid careful attention to the relevant provision of CAFA until yesterday. Nevertheless, I have found the question of how to interpret 28 U.S.C. § 1453 to be very interesting and have thus far enjoyed trying to work through it. So, here goes . . .
The brief argues that Section 5 of CAFA, codified at 28 U.S.C. § 1453, provides federal-court jurisdiction to hear removed cases regardless of whether those cases could have been filed in federal court originally. The claim is that § 1453 provides stand-alone authority for removal, similar to the federal officer removal provision in § 1442.
The basic problem with this interpretation is that it reads § 1453 as a stand-alone provision notwithstanding textual and structural reasons to read the provision together with a few other jurisdictional provisions.The better interpretation is to understand § 1453 as operating in conjunction with § 1332 (the general diversity provision), § 1441 (the general removal provision) and § 1446 (the provision governing the procedures for removal). Properly read, § 1453 does nothing more than relax a few restrictions on removal that would otherwise be operative in diversity cases removed under § 1441 by means of the procedures set forth in § 1446.
Let’s begin with the text. The principal subsection of § 1453 states: “A class action may be removed to a district court of the United States in accordance with section 1446 (except that the 1-year limitation under section 1446(c)(1) shall not apply), without regard to whether any defendant is a citizen of the State in which the action is brought, except that such action may be removed by any defendant without the consent of all defendants.” 28 U.S.C. § 1453(b).
By its terms, this provision operates in conjunction with § 1446–“[a] class action may be removed to a district court of the United States in accordance with section 1446 . . . .” Having authorized removal in accordance with § 1446, the provision then goes on to relax some of the requirements imposed by § 1446 and § 1441 that would otherwise stand in the way of removal: the 1-year limitation on removal (imposed by § 1446(c)(1)), the prohibition against removing when there is an in-state defendant (imposed by § 1441(b)(2)), and the requirement to gain the consent of all defendants (imposed by § 1446(b)(2)(A)).
When one follows the textual reference in § 1453 to § 1446, another feature of the overall jurisdictional structure comes into focus. Namely, § 1446 deals only with the procedures for removal while explicitly recognizing that the jurisdictional basis for removal would be supplied by other sections (such as § 1441 and § 1332). Take, for example, the all-defendant-consent requirement imposed by § 1446(b)(2)(A) and eliminated for class actions by § 1453. That requirement applies only “[w]hen a civil action is removed solely under section 1441(a).” 28 U.S.C. § 1446(b)(2)(A). Because the requirement applies only when a civil action is removed “under section 1441(a),” it would make no sense for Congress to eliminate the all-defendant-consent requirement in § 1453 unless Congress contemplated that the removal of class actions addressed in § 1453 would take place pursuant to the jurisdictional grant in § 1441. Similarly, the one-year limitation imposed by § 1446(c)(1) and removed for class actions by § 1453 applies only to cases removed “on the basis of jurisdiction conferred by section 1332.” If Congress intended § 1453 as a stand-alone basis for removal jurisdiction, then removal under § 1453 would not trigger the one-year limitation of § 1446 (because the removal would be pursuant to the jurisdiction granted by § 1453 rather than by § 1332) and Congress would not have had to exempt class actions from that limitation. Finally, the prohibition against removal when there is an in-state defendant is imposed by § 1441(b)(2), and § 1453‘s removal of that prohibition for class actions only makes sense in light of Congress’s belief that the removal authorized by § 1453 depended on the application of § 1441 in conjunction with § 1332, rather than on § 1453 as a stand-alone provision.
Thus far, this examination of the text of § 1453 within the pre-existing jurisdictional structure set forth in §§ 1332, 1441, and 1446 yields the sensible interpretation that § 1453 simply removes for class actions some of the restrictions on removal that would otherwise stand in the way under §§ 1441 and 1446. This removal-restriction-removal interpretation is a much more plausible interpretation than reading § 1453 as a stand-alone jurisdictional grant. As the Jones Day brief recognizes, interpreting § 1453 as a stand-alone jurisdictional grant raises a constitutional difficulty. If understood as a stand-alone jurisdictional grant, § 1453 would be unconstitutional unless atextually limited in some way to situations in which there was minimal diversity (thus coming within the Article III grant of diversity jurisdiction) or to situations in which a federal defense was asserted (thus coming within the Article III grant of “arising under” jurisdiction). Generally speaking, a court should shy away from interpreting a statute in a way that would render it unconstitutional when there is a readily available interpretation that does not raise a constitutional problem.
And now we return back to what makes the Jones Day interpretation so interesting at first–its surprising boldness. There is nothing wrong with legal arguments having such a quality. Indeed, there is something admirable about them, for surprising legal arguments show the capacity of legal materials and legal reasoning to upset pre-analytic expectations through the deployment of agreed-upon modes of argument. Seen in this light, the fact some surprising legal arguments work is a testament to legal reason. But when making a surprising argument, it is essential to have a convincing explanation of why nobody else has seen the argument before. In the case of § 1453, the Jones Day brief pins blame on prior interpreters having carelessly adopted the assumption that removal jurisdiction must be parasitic on original jurisdiction. This assumption holds true as a general matter because of § 1441, but it is not universally applicable (as stand-alone removal statutes like the federal officer removal provision in § 1442 reveal). The surprise in the argument comes from the brief-induced recognition that perhaps § 1453 is an example of a provision in which removal jurisdiction does not depend on original jurisdiction. Unfortunately for the argument, however, careful analysis does not bear out the interpretation. The foregoing textual and structural analysis shows the assumption that removal jurisdiction is derivative of original jurisdiction to be baked into § 1453 itself by virtue of its relationship to § 1446, and through § 1446 to § 1441.
Finally, one anticipatory counterargument. The NAM/Jones Day brief argues that interpreting § 1453 as a stand-alone provision makes sense of the exceptions set forth from the grant of removal jurisdiction in § 1453(d). That subsection renders inapplicable in three categories of cases the relaxed rules for removal set forth in § 1453(b). The NAM/Jones Day brief argues that the inclusion of these exceptions in § 1453(d) shows that “Congress did not envision importing the substantive requirements of § 1332(d) [expanding original jurisdiction] into the removal provision.” That is because § 1453(d)’s exceptions to the expansion of removal in § 1453 are identical to the exceptions in § 1332(d)(9) from the expansion of original jurisdiction in § 1332(d)(2). If § 1453 already implicitly incorporates the provisions of § 1332(d), then the exceptions in §1453(d) are redundant with the exceptions in § 1332(d), and an interpretation that renders language redundant is disfavored. This is a clever argument, but it does not succeed because the exceptions in § 1453(d) can have legal effect to bar the relaxation of removal rules for class actions when diversity jurisdiction over a class action does not depend on the jurisdictional expansion in § 1332(d)(2) (and thus original jurisdiction is not barred by § 1332(d)(9)).