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St. Thomas Law Review

First Page

289

Document Type

Article

Abstract

It is an axiomatic principle of law that federal courts are courts of limited jurisdiction. Hence, a congressional enactment that purports to grant the federal district courts subject matter jurisdiction over state law claims absent diversity of citizenship or supplemental jurisdiction should not survive an Article III case or controversy analysis. Inexplicably, however, the application of the present separate and independent claim removal statute does just that. It allows a federal district court to exercise jurisdiction over state law claims absent any federal jurisdictional justification. In United Mine Workers of America v. Gibbs,3 the Supreme Court of the United States defined the outer limits of original federal jurisdiction. Section 1367 of title 28 of the United Code codified Gibbs and its progeny while simultaneously reaching the outer limits of a federal court's subject matter jurisdiction under Article III. Because section 1441(a) of the removal statute permits removal of cases that qualify for supplemental jurisdiction under section 1367, "leftover matters"-or matters that do not qualify for supplemental jurisdiction-are beyond constitutional authority and therefore cannot be removed to federal court. Ironically, this is exactly what section 1441(c) of the removal statute authorizes the federal district courts to do. Accordingly, the exercise of removal pursuant to section 1441(c) violates Article III of the United States Constitution. This article highlights the constitutional dilemma raised by the separate and independent claim removal statute.4 First, a brief historical analysis provides the foundation necessary to understand the constitutional issue. Second, an overview of the 1990 Federal Courts Study Committee's Report and Recommendation illustrates the basis for the 1990 Congressional amendment that rendered the statute unconstitutional. Third, before testing the constitutionality of the statute, the article traces

and highlights the United States Supreme Court's interpretation of Article III of the United States Constitution and the resulting limitations on Congressional power. Fourth, the article explains and sets forth the definition of a separate and independent claim, required to trigger removal under section 1441(c). Fifth, the article develops and explains why the statute confers federal subject matter jurisdiction beyond the constitutional limit imposed by Article III. Sixth, the article examines the post-1990 judicial interpretation of the statute. In doing so, it will refute any policy justifications for the validity of the statute. Finally, the article suggests the only possible constitutional application of the statute, and the better alternative-legislative repeal of section 1441(c).

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