Reversing a Wayward Trend: Why Courts Using the Functional Test For Removal Are Right

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Perry Thomas Klauber

The federal courts are divided concerning the interpretation of the general, federal removal statute 28 U.S.C. § 1441(a). The statute states that a defendant can remove any civil action from state court to a federal district court so long as the federal court has original jurisdiction. Some courts use a functional test to interpret the meaning of “state court,” while other courts use the plain meaning test and exclude state administrative courts from the “state court” definition. Thus, in some jurisdictions certain cases can be removed from a state administrative court to a federal district court if the federal court applies the functional test and finds that the administrative court functions as a “court” that provides judicial, binding, enforceable decisions. In contrast, other jurisdictions require cases to continue in administrative court until adjudication is complete, before there is any chance of removal to federal court. This Article analyzes the two approaches and concludes that courts should use only the functional test. Leaving this circuit split unresolved is detrimental to defendants and many cannot afford to be forced to adjudicate a matter through administrative court, only to face a subsequent appeal to a federal court. Furthermore, federal courts are better qualified to interpret federal issues of high interest than state administrative tribunals. The United States Supreme Court or Congress should promptly resolve this issue to prevent further nationwide inconsistencies in interpreting section 1441(a).

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