JURIST Guest Columnist Arthur Hellman of the University of Pittsburgh School of Law says the Federal Courts Jurisdiction and Venue Clarification Act significantly clarifies the law of federal court jurisdiction and venue but was passed after removing some beneficial but controversial provisions…

Around this time of year, many newspapers publish articles listing the laws that take effect on January 1. It’s unlikely that any of them will take note of a federal law that becomes effective on January 6, 2012. But for litigators in state as well as federal courts, that is an important date, because that is when the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (JVCA), Public Law No. 112-63, takes effect.

In an article published last week in JURIST, I described some of the major elements of the JVCA, with particular emphasis on provisions governing removal jurisdiction and procedure. Here I will say something about the process that preceded the enactment of the law and also about some provisions that were dropped from the bill along the way.

The JVCA has a long and somewhat convoluted history. I need not recount all of that history here, because it is nicely summarized on pages 2-3 of the House Judiciary Committee Report [PDF]. But three aspects of the process warrant note.

First, the new law is the product of a collaboration between Congress and the federal judiciary. The bill was sponsored by Representative Lamar Smith (R-TX), the Chairman of the House Judiciary Committee, who gave it his wholehearted — and essential — support. But it was largely drafted by a little-known committee of the Judicial Conference of the United States, the Committee on Federal-State Jurisdiction. The initial public version of the bill (minus the venue provisions, which were added later) was unveiled at a hearing of the House Judiciary Committee in 2005.

Second, there were no hearings on the bill after 2005. Instead, an informal process was used, primarily during the 111th Congress (2009-2010), to shape the final content of the measure. As the House Report explains, the Administrative Office of US Courts (AO) functioned “as a clearinghouse to vet the bill and newly-developed revisions to it with the Judicial Conference’s Federal-State Jurisdiction Committee, academics, and interested stakeholders.” The central player in this process was Mark W. Braswell, Counsel to the Office of Legislative Affairs of the AO.

Third, with unusual candor, the House Report acknowledges that the purpose of the vetting process was “to identify and delete those provisions that were considered controversial by prominent legal experts and advocacy groups.” Basically, any provision that generated any controversy was simply dropped from the bill. That was necessary because opposition from “interested stakeholders” would have made it impossible for the legislation to move forward.

I particularly regret the deletion of two provisions that would have allowed a plaintiff to avoid removal based on diversity by filing a “declaration” (i.e. stipulation) reducing the amount in controversy below the minimum specified in 28 USC § 1332(a). What made these proposals so attractive was that they offered a way of avoiding satellite litigation, with concomitant increases in litigation costs, in cases where the amount at stake will often be modest by today’s standards. One of the provisions would have applied in state courts to forestall removal; the other would have operated in federal courts to encourage remand. The latter would have abrogated decisions like that by the US Court of Appeals for the Sixth Circuit in Rogers v. Wal-Mart Stores, Inc. Perhaps these provisions will resurface in future jurisdictional legislation.

A more surprising casualty of the vetting process was a provision dealing with “derivative jurisdiction.” Long ago, the Supreme Court came up with the rule that the jurisdiction of a district court on removal is “derivative”: if the state court from which a case was removed had no jurisdiction, the federal court also lacked jurisdiction. This rule means that if the defendant removes a case within the exclusive jurisdiction of the federal courts (for example, a patent case), the district court is required to remand the case to the state court. That makes no sense, and Congress finally abrogated the rule. But the current version of the abrogation statute, 28 USC § 1441(f), is limited to removals under the general removal statute, § 1441(a). Other removals are still governed by the derivative jurisdiction rule unless Congress specifies otherwise. (Congress did specify otherwise in the intellectual property removal provision added in 2011 and discussed below.)

When the JVCA was introduced in the 111th Congress, it included a provision abrogating the derivative jurisdiction rule for all removal cases. (The provision would have applied to removals under any section of Title 28 or “other applicable law.”) That seemed like an obviously desirable change. But when the bill was reintroduced in the 112th Congress, the provision on derivative jurisdiction had disappeared. Why? Because the Department of Justice (DOJ) did not want it. On this point too the House Report is unusually candid. It turns out that the derivative jurisdiction rule “is sometimes invoked by [DOJ attorneys] when suits involving Federal officers and agencies are removed to Federal court.” The full explanation can be found in the House Report; suffice it to say that the DOJ wanted to keep the statute as it is, and opposition by DOJ would have stopped the bill in its tracks. So out went the derivative jurisdiction provision.

Even with the extensive vetting in the 111th Congress, the JVCA did not experience smooth sailing in the 112th. Senate passage of the bill — HR 394 — was delayed by the need to resolve a conflict with the “Holmes Group fix” enacted as part of the Leahy-Smith America Invents Act (AIA) that President Obama signed in September. The AIA added a new § 1454 to Chapter 89 authorizing removal of state-court actions involving patent and copyright claims. By a remarkable coincidence, HR 394 also added a new § 1454, this one specifying the procedure for removing criminal cases. (The contents of the new section were previously included in § 1446.) A Senate amendment to HR 394 changed the number of the criminal removal section to 1455.

Even then, the JVCA’s lengthy journey was not finished. At the last minute, someone discovered that the bill also intersected with another piece of jurisdictional legislation passed by Congress this fall. That was HR 368, the Removal Clarification Act of 2011, which was signed into law on November 9 and became Public Law No. 112-51. The Act’s title is somewhat misleading; it deals only with removal of actions against federal officers. A final House amendment to HR 394 corrected a cross-reference in a new subsection of § 1446 added by Public Law 112-51. Of course, with the House amendment the bill had to be returned to the Senate for final action. That occurred on November 30. A week later, the President signed the bill.

This history suggests one final thought. In this and the preceding article, I have called attention to some imperfections in the JVCA. There may well be others. But these imperfections should not detract from the very real accomplishment that the JVCA represents. It took six years to get the bill enacted into law, and that does not include the initial drafting work in the Judicial Conference committee. While there were periods when the bill remained on the back burner (in fact, it was not even introduced in the 110th Congress (2007-2008)), the JVCA reached the President’s desk only after many people (primarily the very able and dedicated staff counsels at the House Judiciary Committee and the Administrative Office of US Courts) spent hundreds of hours negotiating text and putting out fires when one stakeholder or another found some language to object to. The product of their labors is a law that, whatever its flaws, significantly clarifies the law of jurisdiction and venue in the federal courts.

Arthur Hellman is a Professor of Law at the University of Pittsburgh School of Law. He worked with Congress and the judiciary on the Jurisdiction and Venue Clarification Act at several stages. The views expressed in this article are his own. The author thanks Thomas Rowe for comments on previous versions of the article.

Suggested citation: Arthur Hellman, The Federal Courts Jurisdiction and Venue Clarification Act: Some Missing Pieces, JURIST – Forum, Jan. 4, 2012, http://jurist.org/forum/2012/01/arthur-hellman-jvca-ii.php.