Tuesday, 13 December 2011

An interesting Legislative History

Last night I received this email as a member of APSA's Legislative Studies Section - and I thought it might be of interest

I'm happy to post the message below at the request of Prof. Arthur Hellman (law, Pittsburgh), who thought legislative studies scholars might be interested in what he has to report. Like a relatively recent previous post, this concerns statutes involving court jurisdiction, not exactly the sort of thing that legislative studies scholars usually study, but what Prof. Hellman has to say about the process involved makes it very relevant, and it expands as well the topics at which we look.  Prof. Hellman modestly fails to point out that this is the second time this year in which legislation containing some of his ideas has been enacted; most of us would feel fortunate to have that happen once in our lifetime.  If you wish further details or havequestions for Prof. Hellman, e-mail him at hellman@pitt.edu.   

Steve Wasby

(Stephen L. Wasby, professor emeritus, University at Albany; residing at Eastham, Mass.)

* * * * * * * * * 

President Obama has just signed H.R. 394, the Federal Courts Jurisdiction and Venue Clarification Act of 2011 (JVCA). The new law – officially Pub. L. No. 112-63 – embodies the most far-reaching package of revisions to the Judicial Code since the Judicial Improvements Act of 1990. The amendments deal primarily with removal and venue. From a legislative studies perspective, the bill’s greatest interest may lie in its long and convoluted history and particularly in the unconventional process that shaped its final content. It’s also noteworthy that the new law is the product of a collaboration between Congress and the Federal Judiciary.

The bill was sponsored by Rep. Lamar Smith, the Chairman of the House Judiciary Committee, but it was largely drafted by a committee of the Judicial Conference of the United States. The history is nicely summarized on pp. 2-3 of the House Judiciary Committee Report (linked below). The following are some highlights of the legislation, which will apply to newly filed actions starting 30 days after enactment.

-- The Act revises the statutory provision dealing with the removal of civil actions that include both federal and unrelated state claims.  To protect the defendant’s right to remove the federal claims – and to avoid constitutional problems that some courts have perceived – the new provision requires severance and remand of claims not within the original or supplemental jurisdiction of the district court.

-- The Act codifies the judicially created “rule of unanimity” for removal in cases involving multiple defendants and gives each defendant 30 days to initiate removal. This resolves resolving a longstanding conflict in the lower courts over the deadline for removal when different defendants are served at different times. (Within the last year, three circuits have issued published opinions on the question, dividing two circuits to one.)

-- It resolves several issues relating to the determination of the amount in controversy when the defendant removes a civil action based on diversity.

-- It adopts a carefully-crafted “bad faith” exception to the statutory provision prohibiting removal of a diversity case more than one year after filing.

-- It completely rewrites the statute's venue chapter, finally abolishing a the hairsplitting distinction between backup venue in diversity and federal-question cases and also doing away with a separate provision dealing with “local” as opposed to “transitory” actions.  It will be of interest to political scientists that this change partially abrogates the Supreme Court decision in Hoffman v. Blaski, 363 U.S. 335 (1960), by authorizing transfer of venue to a district where the action could not have been brought initially, as long as all parties consent.

-- As to the original jurisdiction of the district courts, the Act revises the resident-alien proviso to avoid the interpretative and even constitutional problems generated by the current language, added by a 1988 amendment to the Judicial Code. With unusual candor, the House Judiciary Committee Report acknowledges that the purpose of the vetting process in the latter stages of the bill’s evolution was “to identify and delete those provisions that were considered controversial by prominent legal experts and advocacy groups.” 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 statutory minimum, now $75,000. One of the provisions would have applied in state courts to forestall removal; the other would have operated in federal courts to encourage remand. Perhaps these provisions will resurface in future jurisdictional legislation.

For those who are interested in the technicalities of legislation: Final passage of H.R. 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 section 1454 to Chapter 89 authorizing removal of state-court actions involving patent and copyright claims. H.R. 394 also added a new section 1454, this one specifying the procedure for removing criminal cases.
 (The contents of the new section are currently included in section 1446.) A Senate amendment to H.R. 394 changed the number of the criminal removal section to 1455. Link to House Report on H.R. 394: