Amicus Curiae Brief — Syngenta Crop Protection, Inc. v. Henson

I Supreme Coust, (3.

iio} FILED

No. 01-757 | JUN 4 am

a

ICE OF THE CLERK |

Jn The LW rll

Supreme Court of the Anited States

¢

SYNGENTA CROP PROTECTION, INC., ROBERT BABB,

EDEE TEMPLET, and KENNETH A. DEVUN,

Petitioners,

V.

HURLEY HENSON,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

¢

BRIEF OF AMICUS CURIAE

TRIAL LAWYERS FOR PUBLIC JUSTICE

IN SUPPORT OF RESPONDENT

¢

ARTHUR H. BRYANT ADAM SAMAHA

TRIAL LAWYERS FOR PUBLIC Counsel of Record

JUSTICE ROBERTA B. WALBURN

One Kaiser Plaza MARTHA K. WIVELL

Suite 275 ROBINS, KAPLAN, MILLER

Oakland, CA 94612 & CIRESI, L.L.P.

Telephone: (510) 622-8150 2800 LaSalle Plaza

800 LaSalle Ave.

MICHAEL J. QUIRK Minneapolis, MN

TRIAL LAWYERS FOR PUBLIC 55402-2015

JUSTICE Telephone: (612) 349-8500

1717 Massachusetts Ave. NW

Suite 800

Washington, DC 20036

Telephone: (202) 797-8600

Attorneys for Amicus Curiae

BEST AVAILABLE COPY sana

TABLE OF CONTENTS

Page

Table of Authorities .............:ccceceseeeeeeeeeeesnnnnneserseneeees ii

Interest of Amicus CUTiae.........cccceeeeeereeeerneeeseresereees 1

Statement of the Case ............cccceeeeeeeeeeeeneneneeserseeenees 2

Introduction ............csssseecceeeeeeeeeeeeeeeenerensnennnsssseneeeees 3

Summary of Argument ...........ssscssseresseeneeersseeesenteees 6

LPYUMENE .........eeereeesecercrsreeeeereesnnsenssessenecsnrnnssnsesen ees 7

I. The Removal Statutes Prohibit Removal

Under These Circumstances ...........::sssessereeees 7

A. Petitioners Invoked the Advantages, But

Failed to Satisfy the Conditions, of the

Removal Statutes ..........::ccceeceeeereeeeeeeeeees 7

B. The All Writs Act Is No Cure for the Ab-

sence of Original Jurisdiction...............++ 9

C. Ancillary Enforcement Jurisdiction Is No

CBHI cccncccccccccccccccccccosoceccccoscessvcscosececsooscees 10

Il. The All Writs Act Does Not Provide Any

Removal Authority. ...........:cccseseeseeeeeeeeseeeenenees 13

A. Evidence of Original Intent Bars Re-

SnEIWO. ..ccccocccccccccccccsccvcccccoseccssosesesoososcsosers 14

B. Contemporary Law Confirms the Conclu-

BEOTD..cccccocccccccccccccccosecescconscosonceecosecoososseoces 16

C. Removal Is Unnecessary to Protect the

Federal Judiciary Or Defendants’ Inter-

WOBD ...ccccccccccccccccescosccscccesccssccvcoscoconsoososcooes 19

1. State-court defense ............cseeeeeeereeeees 20

2. Anti-suit injunctions .............eeereeees 21

ConclusiON ............ccecesescccssseeereeeeccsensssseeeeeeesessannneneees 26

ii

TABLE OF AUTHORITIES

Page

CASES:

Adams v. United States ex rel. McCann, 317 US.

6) | | ee 18

Ahearn v. Charter Township of Bloomfield, 100 F.3d

PC + 2} | ns ee 12

Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33

(1960) (per Cts bette) ...cccccecececcecccesessscevuionsnsnmnesnnnnnaennnne 19

Amalgamated Clothing Workers of Am. v. Richman

Bree. , 948 UB. G11 (2GBE).cceccscsceseessesvssesesmnsinmmnnnna 20

Amchem Prods., Inc. v. Windsor, 521 U.S. 591

0; reer enevsceouseusnssielieiielaial 4,18

Atlantic Coast Line R. Co. v. Brotherhood of Loco-

motive Eng’rs, 398 U.S. 281 (1970).......... 5, 20, 21, 22, 25

Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807)...............04 5

Carlisle v. United States, 517 U.S. 416 (1996) ............ 17, 18

Caterpillar, Inc. v. Williams, 482 U.S. 386 (1987)......... 8, 16

Chicago & A.R. Co. v. Wiggins Ferry Co., 108 U.S.

Tt! | EEE 21

Chick Kam Choo v. Exxon Corp., 486 U.S. 140

¢) | a 3, 20, 21, 22, 23

City of Chicago v. International College of Surgeons,

GBB UB. 106 (1607) .ccccosssssssessssien 12

Clinton v. Goldsmith, 526 U.S. 529 (1998).............ccc00e- 9,19

Cohen v. Reed, 868 F. Supp. 489 (E.D.N.Y. 1994).............. 12

County of Imperial v. Munoz, 449 U.S. 54 (1980).............. 25

TABLE OF AUTHORITIES — Continued

Page

Dietzsch v. Huidekoper, 103 U.S. (13 Otto) 494

ater trerararerrersnsnnetensesncnsenseoess 10

Donovan v. City of Dallas, 377 U.S. 408 (1964).............000+ 5

Dugas v. American Surety Co. of N.Y., 300 U.S. 414

EEE ee -10

In re Federal Skywalk Cases, 680 F.2d 1175 (CA8),

cert. denied, 459 U.S. 988 (1982) .............ccccsesereerrereeeeees 25

Franchise Tax Bd. of Cal. v. Construction Laborers

Vacation Trust for S. Cal., 463 U.S. 1 (1983)..............++. 8

FTC v. Dean Foods Co., 384 U.S. 597 (1966)......... 18, 19, 20

In re Glenn W. Turner Enterprises Litig., 521 F.2d

aici etarererrcrncrmnrnansnenscasesees 25

Harris v. Nelson, 394 U.S. 286 (1969) ..........ccccccccccereeeeeeees 18

Henson v. Ciba-Geigy Corp., 261 F.3d 1065 (CA11

ESS ALTE EE EEE 12

Julian v. Central Trust Co., 193 U.S. 93 (1904) ................ 11

Kline v. Burke Constr. Co., 260 U.S. 226 (1922) ............ 5, 25

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

ee 3, 5, 10, 20

Kulko v. Superior Court, 436 U.S. 84 (1978) ..............0.00000 5

La Buy v. Howes Leather Co., 352 U.S. 249 (1957)........... 18

Lexecon Inc. v. Milberg Weiss Bershad Hynes &

I, Be We BO Ce cccecccccccccccccscececscccccsccececceees 4,18

Local Loan Co. v. Hunt, 292 U.S. 234 (1934) ........ 10, 12, 21

McClellan v. Carland, 217 U.S. 268 (1910) ............ccceeeeeees 18

McClelland v. Longhitano, 140 F.Supp. 2d 201

Se 12

iv

TABLE OF AUTHORITIES -— Continued

Page

Mesa v. California, 489 U.S. 121 (1990) ............cccccceeeeeeeees 16

Milwaukee & Minn. R.R. Co. v. Soutter, 69 U.S. (2

Ia icesinnruitaliniencinininieniiiaieieaniariastidantaieaiiieatitaaietatitats 11

Missouri v. Jenkins, 495 U.S. 33 (1990) ............cccccccceeeeeees 11

Mitchum v. Foster, 407 U.S. 225 (1972)........cccccccccccccsceceeee 21

Oklahoma Tax Comm’n v. Graham, 489 U.S. 838

I oii isniisientciiiminieiaianaiaaieiaiiie ....8, 17

Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999)....... 4, 21, 25

Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518

Eien hirsicstecscssninciseshistenteiachatapaemnttinataidaeiibieitihitiatsinianitatisinnaiaal 20, 23

Peacock v. Thomas, 516 U.S. 349 (1996)..........ccccccccccceseeee 10

Pennsylvania Bureau of Corrections v. United

States Marshals Serv., 474 U.S. 34 (1985) .............. 16, 17

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987).................. 20

Phillips Petroleum Co. v. Shutts, 472 U.S. 797

Er arcecincsecarnsinnsnseeernncinintnceaieinaaitiaainaidiatiaiaeithaaiiaiaiiainahineaiiaitiatinasil 21

Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995)........ 10

Rivet v. Regions Bank of La., 522 U.S. 470

Fire a eli nnersnasanatsincininsennmmntiapiematienmmatiitiatisemniiaes 4, 8, 9, 20, 23

Roche v. Evaporated Milk Ass’n, 319 U.S. 21 (1948)......... 17

Root v. Woolworth, 150 U.S. 401 (1893).............000.cccccceeeee 11

Rosenbaum v. Bauer, 120 U.S. 450 (1887)..............cccccccceee- 9

Sampson v. Murray, 415 U.S. 61 (1974).........cccccccceseeeeseees 18

Sebring Homes Corp. v. T.R. Arnold & Assocs., 927

F. Supp. 1098 (N.D. Ind. 1995) ................eccsccccsrsssssesssees 12

Vv

TABLE OF AUTHORITIES -— Continued

Page

Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S.

ff Ee 21

Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

en 8

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83

0 ea 13

Stone v. Powell, 428 U.S. 465 (1976)............cccessseeseeeeeeneees 20

Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356

0 Ee 10

In re Estate of Tabas, 879 F. Supp. 464 (E.D. Pa.

oe 12

Tafflin v. Levitt, 493 U.S. 455 (1990) ...........ccseeeeeeeeseeeees 20

Toucey v. New York Life Ins. Co., 314 US. 118

a 5, 23

United States v. FMC Corp., 84 S.Ct. 4 (1963)

(Goldberg, J., in chambers).............:cc-esesssseeeeeneeeneneennes 17

United States v. Morgan, 346 U.S. 502 (1954)...............00+ 18

United States v. New York Tel. Co., 434 U.S. 159

a passim

United States Alkali Export Ass’n v. United States,

fl Ble) | ae 17

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623 (1977)........ 25

World-Wide Volkswagen Corp. v. Woodson, 444 U.S.

C—O), (EE 5

Younger v. Harris, 401 U.S. 37 (1971) .........cceeseeeeeeeeneeeees 21

Zenith Radio Corp. v. Hazeltine Research, Inc., 395

OU 21

vi

TABLE OF AUTHORITIES -— Continued

Page

STATUTES:

An Act to establish the Judicial Courts of the

United States, ch. 20, 1 Stat. 73 (1789) .........ccccceccseseeee 15

| SEER SE ARR ek ees eee ET Te 17

ET EE NTE EE IR: 17

TEES ea ae ee LOR 17

EE ae ee ee ee 17

AE EE ee Ne 12, 14

i passim

TEER a ae Oe De mS 17

SEER ORR eA re aa ee 14

ESE NE tee or re OR MR! 17

ET a ee ae an Se 17

REET acme sree Re RO Re: 17

ee ee passim

2B U.S.C. $1447 .ccceecccccccseccccceecccccvccesececscceececssecseeseen 8, 14,17

EER aR aN ae ae eRe EF 17

I 17

| EEE EEE T eE: 17

| ERT ene ce ee ee mR 17

i 17

TE RT a TR 3, 17, 13, 16, 17

EATER en aoe ane 18, 21, 22, 25

clay,

Vii

TABLE OF AUTHORITIES - Continued

Page

I eee 17

ee 17

RULES:

eee ree 4

QS eT 21

Supreme Court Rule 37.3 ...........:ccsssscsessseeerseeereeeeeeneeeneees 1

BILLs:

ye 6

yy 6

OTHER SOURCES:

J. Coffee, Class Wars, 95 Colum. L. Rev. 1343

SETI icaotininitserresdinditcenecematali sini alta ineteamennnueenietaaammmameaeniats 4

R. Fallon, Jr., et al., Hart and Wechsler’s The

Federal Courts and the Federal System (4th ed.

ITT anata isin ian dahltindhaedncasinaintaiaiaiaiea eens 14, 16

F. Frankfurter & J. Landis, The Business of the

Daapwamnd Cast (ROBE D...ccccscccsccscecscecssssccccssssccnvesccneesescnee 14

D. Hensler, Revisiting the Monster, 11 Duke J.

Comp. & Int'l L. 179 (2001)....................0ressccssssrreseereees 4

L. Hoffman, Removal Jurisdiction and the All Writs

Act, 148 U. Pa. L. Rev. 401 (1999) ...........ccccccececeeeeeeeeeees 16

H. Monaghan, Antisuit Injunctions and Preclusion

Against Absent Nonresident Cless Members, 98

I ee 4, 21

1

TABLE OF AUTHORITIES — Continued INTEREST OF AMICUS CURIAE

: Page | Trial Lawyers for Public Justice (TLPJ) is a national

C. Warren, New Light on the History of the Federal public interest law firm that specializes in precedent-

Judiciary Act of 1789, 37 Harv. L. Rev. 49 (1923).......... 14 setting and socially significant civil litigation. TLPJ is

www.classactionreports.com/classactionreports/ dedicated to using trial lawyers’ skills and strategies to

A RAT L ALIS ARETE —— 4 advance the public good. Litigating throughout the federal

' and state courts, TLPJ prosecutes cases designed to

www.uscourts.gov/judbususc/judbus. html .....................000. 4 | advance consumers’ and victims’ rights, environmental

protection and safety, civil rights and civil liberties,

occupational health and employees’ rights, the preserva-

tion and improvement of the civil justice system, and the

protection of the poor and the powerless. TLPJ has filed

dozens of amicus briefs in support of those objectives.

As part of its effort to ensure the proper working of

the civil justice system, TLPJ has fought to preserve

injury victims’ claims from unconstitutional encroachment,

federal preemption, and class action abuse. In fact, TLPJ

is the only national public interest law firm that both

prosecutes class actions on a broad range of issues and has

a special project dedicated to fighting class action abuse.

One danger posed by large-scale federal class actions

involves the temptation for lower federal courts to improp-

erly extend their jurisdiction and interfere with pending

state judicial proceedings in the interest of “global peace.”

We submit this brief to explain why, under our Constitu-

tion, laws, and federal system of government, this Court

should affirm the judgment of the Court of Appeals and

reject petitioners’ attempt to manufacture removal juris-

diction.

—

* Counsel for a party did not author this brief in whole or in part

and no person or entity, other than the amicus curiae, its members or

its counsel, have made a monetary contribution to the preparation or

submission of the brief. The parties have consented to the filing of this

brief under Supreme Court Rule 37.3(a). Copies of those consents have

been filed with the Clerk of the Court.

2

STATEMENT OF THE CASE

Respondent and others filed a tort suit against peti-

tioners in a Louisiana state trial court in 1993. A putative

class action, the suit sought compensation for exposure to

chemicals at a particular Louisiana facility. The claims

arose under state law and the individual defendants

defeated complete diversity of citizenship. In 1994, an-

other putative class action involving similar chemical

exposures was filed in an Alabama state trial court.

However, that suit ultimately satisfied complete diversity

and was removed to an Alabama federal district court

later that year. Respondent subsequently intervened in

the federal suit, and the Louisiana state cov « stayed

respondent’s state suit. J.A. 79. In 1995, th Jlabama

federal district court simultaneously certified a .ionwide

class and approved a class-wide settlement. . 1. 88-89.

The stipulation of settlement stated that c ss counsel

agreed that respondent’s state suit would ~ dismissed

with prejudice. J.A. 36, 38. The court’s judgment stated

the court would retain jurisdiction over “future perform-

ance of, and any claims related to performance of, the

Settlement agreement and judgment.” J.A. 88.

Three years later, in 1998, class counsel for the federal

plaintiffs finally asked the Louisiana state trial court to

dismiss respondent’s suit. J.A. 75. Respondent’s attorney

replied that the federal settlement had not settled all of

the claims asserted in state court. J.A. 80-85. The trial

court stated that it would dismiss respondent’s claims

regarding one chemical and product, but it granted re-

spondent permission to file an amended petition that

would include only unsettled claims. See J.A. 86. Respon-

dent’s counsel filed an amended petition in September

1998. J.A. 60.

Dissatisfied with the state court’s failure to immedi-

ately dismiss the entire suit, petitioners were faced with at

least four strategies. The first two were proper; the others

were not: (1) argue in state court that the federal decree

required dismissal of all claims and, if necessary, appeal;

_—

3

(2) return to the Alabama federal district court, invoke its

ancillary jurisdiction to enforce its prior judgment, see

Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375

(1994), and request declaratory relief or an injunction

ordering respondent to dismiss the state suit, see Chick

Kam Choo v. Exxon Corp., 486 U.S. 140, 145-148 (1988);

(3) return to the Alabama federal district court, invoke its

ancillary enforcement jurisdiction, and request or*-ight

removal of the state suit under the All Writs Act, 2: .S.C.

§1651(a); or (4) file a notice of removal in a Louisiana

federal district court in accord with the removal statutes,

id. §§1441 et seg., receive an automatic stay of the state

proceedings, see id. §1446(d), and assert the All Writs Act

and/or ancillary jurisdiction as a cure for jurisdictional

and procedural deficiencies.

Petitioners chose strategy (4). On October 13, 1998,

they filed a notice of removal in a Louisiana federal

district court and a motion for transfer to Alabama, J.A.

58, 65 — even though the parties lacked complete diver-

sity of citizenship, no federal question was presented in

the complaint, the state suit commenced years before the

notice of removal, and petitioners had not requested a

remedy from the federal district court that had approved

the settlement.

INTRODUCTION

Although not at historic highs, class actions have

become an important part of the federal docket. They can

be appropriate and efficient vehicles for resolving disputes

involving countless injuries, particularly when each

individual injury is relatively small. But there is the

potential for abuse at the expense of the “inventory” of

individuals who are injured, and those who are not yet

injured at all. Class counsel can be too eager to settle on

the cheap, provided that attorney fees are sufficiently

+

attractive.’ To prevent abuse and to ensure that Congress

is involved in any further centralizing of federal litigation,

this Court has been sensitive to existing rules and juris-

dictional limits. See Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach, 523 U.S. 26, 40 (1998) (extension of

multi-district litigation transferee court authority is for

Congress); Ortiz, 527 U.S., at 842, 861-864; Amchem, 521

U.S., at 597, 620-622, 628-629 (refusing to extend Fed. R.

Civ. P. 23 despite the district court’s attempt to help settle

“an asbestos-litigation crisis”).

This case likewise involves the scope of federal judicial

power over class actions, but after a settlement rather

than before. Specifically, petitioners and defendants like

them are trying to find a way to route back to federal court

disputes over whether a prior federal judgment precludes

pending state suits. This case is not simply about the

authority of a federal court to interpret and enforce its

own decrees, however, because defendants are demanding

more. What they want is a removal procedure that will

immediately, without prior judicial involvement, oust state

courts of jurisdiction over state-law claims against non-

diverse defendants when a preclusion defense is alleged —

at least if a federal court has retained jurisdiction over a

settlement of “complex” litigation. Their preferred removal

scheme runs into immediate difficulties, of course, because

the removal statutes that Congress enacted forbid it, Rivet

* See, e.g., J. Coffee, Class Wars, 95 Colum. L. Rev. 1343 (1995),

cited in Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 621 (1997); D.

Hensler, Revisiting the Monster, 11 Duke J. Comp. & Int’ L. 179, 189-

190 (2001); H. Monaghan, Antisuit Injunctions and Preclusion Against

Absent Nonresident Class Members, 98 Colum. L. Rev. 1148, 1149, n. 1,

1155-1156 (1998); see also Ortiz v. Fibreboard Corp. , 527 U.S. 815, 846—

847, and n. 23 (1999). For statistics on federal class action filings dating

back to 1972, visit www.classactionreports.com/classactionreports/stats.

htm. More recent data indicating an increase in federal filings is

available at www.uscourts.gov/judbususc/judbus.html, in Tables X-4

and X-5 of the posted reports. There is no centralized clearinghouse for

data on state court class actions.

5

v. Regions Bank of La., 522 U.S. 470 (1998), and because of

the rather dramatic impact it would have on state proceed-

ings and the claimants therein.

In addition to more specific concerns, three general

principles counsel affirmance. First, adherence to the

principle of separation of powers requires a narrower

scope of federal jurisdiction. Federal courts are tribunals

of limited rather than general jurisdiction. Kokkonen, 511

U.S., at 377. That jurisdiction is confined both by Article

III of the Constitution and by acts of Congress. “[CJourts

which are created by written law, and whose jurisdiction is

defined by written law, cannot transcend that jurisdic-

tion.” Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93 (1807)

(Marshall, C.J.). Federal jurisdiction thereby requires an

affirmative statutory grant from Congress. Kokkonen, 511

U.S., at 377. And the burden of persuasion rests with the

party asserting jurisdiction. Jbid. It may not be manufac-

tured by judicial creativity or litigant convenience.

Second, American federalism mandates respect for

state judicial proceedings, even when a “duty of ‘hands off’

by the federal courts,” Toucey v. New York Life Ins. Co., 314

U.S. 118, 132 (1941), seems inefficient. Parallel litigation

is an accepted consequence of our dual court system and

concurrent jurisdiction. “Each system proceeds independ-

ently of the other with ultimate review in this Court of the

federal questions raised in either system.” Atlantic Coast

Line R. Co. v. Brotherhood of Locomotive Eng’rs, 398 U.S.

281, 286 (1970); accord Kline v. Burke Constr. Co., 260 U.S.

226, 234-235 (1922). Absent congressionally conferred

removal jurisdiction or an exception to the Anti-Injunction

Act, neither system may order the other to halt. See

Donovan v. City of Dallas, 377 U.S. 408, 412-414 (1964);

Kline, 260 U.S., at 234-235.

Third, individuals claiming ir? ury and seeking judicial

redress have a legitimate interest in selecting an appro-

priate forum to adjudicate their grievances, see World-

Widz Volkswagen Corp. v. Woodson, 444 U.S. 286, 292

(1980); Kulko v. Superior Court, 436 U.S. 84, 92 (1978)

6

(due process analysis), which should have particular force

when wholly state-law claims are asserted in a state court.

There may be legitimate policy arguments for expand-

ing the federal docket to reach more class actions involving

state-law claims. Congress is considering legislation along

these lines. See H.R. 2341, 107th Cong. (2001); S. 1712,

107th Cong. (2001). But there is no need or authority for

this Court to redraw jurisdictional boundaries. The risk of

vexatious litigation and erroneous state court decisions

under the present system is at least offset by the potential

for abuse when grounds for removal are added to the

statutes, even if the new grounds are less vague than

petitioners’ proposal; and it is overwhelmed by respect for

Congress as the proper venue for reform proposals, com-

bined with respect for state courts in their duty to adjudi-

cate state-law claims and federal defenses.

SUMMARY OF ARGUMENT

The removal statutes afford particular advantages to

those seeking relief, at the expense of orderly state pro-

ceedings. But those statutes also impose conditions on

removal, at least one of which cannot be satisfied here: a

federal defense based on a prior federal decree does not

provide the original jurisdiction required for removal

under 28 U.S.C. §1441 (Part IA.). The All Writs Act,

petitioners now concede, cannot mend that deficiency

(Part I.B.). Nor can ancillary enforcement jurisdiction,

which provides federal jurisdiction over certain supple-

mental enforcement proceedings (Part I.C.).

The analysis can end there, but it is also apparent

that the All Writs Act lacks any removal authority. That

was surely true as of the Judiciary Act of 1789 (Part II.A.),

and later developments and contemporary legal values

reenforce the conclusion that the removal statutes govern

removal (Part II.B.). Any doubts can be resolved with

regard to federalism principles and the adequacy of state

court jurisdiction to assess federal defenses to state claims

(Part II.C.1.). Finally, the Anti-Injunction Act imposes a

7

ceiling on any residual removal authority; and although

the Act might permit a district court to consider issuing a

stay of state proceedings in a case like this, it is a remedy

that should always be preferred to the intrusion of peti-

tioners’ removal proposal (Part IT.C.2.).

ARGUMENT

I. THE REMOVAL STATUTES PROHIBIT RE-

MOVAL UNDER THESE CIRCUMSTANCES.

The question on which this Court granted certiorari

tied the outcome of the case to the removal statutes:

“Whether the All Writs Act, 28 U.S.C. §1651(a), vests

federal district courts with authority to exercise removal

jurisdiction under 28 U.S.C. $1441 ....” Pet. for Cert. i

(emphasis added). The answer is no, and it is no longer

clear that petitioners disagree.

A. Petitioners Invoked the Advantages, But

Failed to Satisfy the Conditions, of the

Removal Statutes.

The general removal statutes are exceptional for the

procedural advantages that they confer upon those seek-

ing relief. Within the confined class of cases to which they

apply, Congress’ policy is to grant relief first and permit

state court plaintiffs to ask questions later. First, the

statutes provide that the federal district court in which

the notice of removal is filed assumes jurisdiction immedi-

ately upon proper filing and service of the notice. 28 U.S.C.

§1446(a)-(b), (d). Unlike attempts to remove state criminal

prosecutions, §1446(c)(4), the statute does not provide for

federal judicial screening as state civil actions are re-

moved. Second, proper filing and service of a removal

notice triggers an automatic stay of state civil proceedings.

The state court from which the action has been removed

“shall proceed no further unless and until the case is

remanded.” §1446(d); see also §1447(c). Finally and conse-

quently, the onus is on the plaintiff to file a motion seeking

8

remand to state court. See §1447(c). But cf. ibid. (recogniz-

ing district courts’ obligation to remand for lack of subject

matter jurisdiction); §1447(d) (limiting appellate review of

remand orders). Invoking the removal statutes is therefore

an attractive option for state court defendants like peti-

tioners who desire federal judicial involvement. But cf.

§1447(c) (remand orders may include an award of attorney

fees).

Yet accompanying these advantages are certain

conditions, which must be honored. Any circumvention of

these conditions disturbs the federal-state balance that

Congress selected, permits federal courts to assume

jurisdiction that is the legislature’s to give, and inappro-

priately extinguishes state jurisdiction over state claims.

See, e.g., Shamrock Oil & Gas Corp. v. Sheets, 313 U.S.

100, 108 (1941) (referring to removal as “a right which can

only be conferred by Act of Congress”); see also Oklahoma

Tax Comm’n v. Graham, 489 U.S. 838, 841-842 (1989) (per

curiam); Franchise Tax Bd. of Cal. v. Construction Labor-

ers Vacation Trust for S. Cal., 463 U.S. 1, 10 (1983). As

much as or more than any issue of federal jurisdiction, the

removal statutes are rightly subject to a rule of strict

construction. Shamrock Oil, 313 U.S., at 108-109.

Most important for present purposes, only civil actions

of which the federal district courts have “original jurisdic-

tion” are potentially removable under §1441(a). See also

§1441(b). In other words, §1441 reaches only those state

suits that could have been filed in federal district court in

the first place. Caterpillar Inc. v. Williams, 482 U.S. 386,

392-393 (1987). That condition cannot be satisfied here.

Diversity of citizenship was incomplete, a federal question

did not appear on the face of respondent’s well-pleaded

complaint, and federal defenses are incapable of satisfying

the original-jurisdiction condition in §1441. See Rivet, 522

U.S., at 472, 475-478 (distinguishing cases where federal

law completely preempts state-law claims and replaces

them with federal claims); Caterpillar, 482 U.S., at 392-

393, 398-399.

9

A tight analogue is Rivet. The state court defendants

in that case contended that removal was justified because

a prior federal judgment assertedly extinguished the

plaintiffs’ claims in their entirety. 522 U.S., at 472. But the

“fundamental [rule] under currently governing legislation”

is that federal defenses cannot provide jurisdiction for

removal under §1441. Id., at 478. The same result should

obtain in this case. Rivet’s holding and congressional! policy

would be flouted if simple citation of the All Writs Act

made any difference; and, as explained below, ancillary

enforcement jurisdiction is no answer either. Finally, the

Rivet Court wisely simplified and hardened the limits on

§1441 removal. See id., at 477-478. As such, there can be

no exception for prior adjudication of “complex” litigation,

or state suits that “threaten the integrity” of prior federal

rulings. Brief for Petitioners i. Considering the potential

for abuse and the interference with pending state litiga-

tion, this Court should maintain relatively clear and clean

boundaries for the removal statutes. Petitioners’ position

sacrifices that clarity along with the principle of limited

federal jurisdiction.

B. The All Writs Act Is No Cure for the Ab-

sence of Original Jurisdiction.

At times petitioners have suggested that the All Writs

Act provides the necessary original jurisdiction. See J.A.

60-62. But petitioners have commendably disavowed any

such position here. See Brief for Petitioners 6, 9 (acknow!l-

edging that the Act is not an independent basis for federal

jurisdiction). The All Writs Act only grants certain writ

authority when “in aid of” a federal court’s existing juris-

diction conferred by Congress. See, e.g., Clinton v. Gold-

smith, 526 U.S. 529, 534-535 (1999); Rosenbaum v. Bauer,

120 U.S. 450, 456-459 (1887) (involving removal); United

States v. New York Tel. Co., 434 U.S. 159, 188, n. 19 (1977)

(Stevens, J., dissenting). There can be no rational argu-

ment, then, that the All Writs Act somehow repeals the

10

original-jurisdiction condition for those proceeding under

§1441. Removal under that provision was improper.

C. Ancillary Enforcement Jurisdiction Is No

Cure.

Petitioners now contend that the Alabama federal

district court obtained ancillary enforcement jurisdiction

over respondent’s Louisiana state suit once the federal

settlement was approved and incorporated into the district

court’s judgment. Even if that argument was properly

preserved for review here, it could not justify removal.

Precedent understandably confirms that federal

courts possess authority to enforce their judgments.

Peacock v. Thomas, 516 U.S. 349, 356 (1996). Whatever

other purposes the federal courts may serve, they must at

least be able to adjudicate individual disputes; and adjudi-

cation implies resolution with some degree of finality and

practical effect. See Plaut v. Spendthrift Farm, Inc., 514

U.S. 211, 218-219 (1995); see also New York Tel., 434 US.,

at 188-189 (Stevens, J., dissenting). Federal courts accord-

ingly may retain jurisdiction to exercise this enforcement

authority in post-judgment supplementary we

Peacock, 516 U.S., at 356-357; see Kokkonen, 511 U.S.,

379-381.

But these concepts fall far short of this case. Ancillary

“enforcement” jurisdiction permits a federal court to

entertain enforcement proceedings.’ Thus the Alabama

* See, e.g., Peacock, 516 U.S., at 356-357; Kokkonen, 511 U.S., at

381 (posing a hypothetical in which the federal district court would

have had jurisdiction “to enforce” the settlement agreement); Dugas v.

American Surety Co. of N.Y., 300 U.S. 414, 420-422, 427-429 (1937)

(involving a supplemental bill to enjoin a litigant from further prosecut-

ing an unremovable state suit that would have imposed liability

foreclosed by prior federal interpleader decrees); Local Loan Co. v.

Hunt, 292 U.S. 234, 238-242, 244 (1934); Supreme Tribe of Ben Hur v.

Cauble, 255 U.S. 356, 357-358, 367 (1921); Dietzsch v. Huidekoper, 103

U.S. (13 Otto) 494 (1880); see also New York Tel., 434 U.S., at 171-178;

(Continued on following page)

eeeatitilineeiteita ie ee. — oc “Sees

11

federal district court retained jurisdiction to consider a

motion by petitioners for declaratory relief, or for an

injunction ordering respondent to dismiss his state suit.

But petitioners incorrectly equate federal jurisdiction over

efforts to enforce a federal court’s judgment with federal

jurisdiction over lawsuits that happen to violate that

judgment. Whatever the arguable limits to ancillary

enforcement jurisdiction, respondent’s state suit is obvi-

ously not an enforcement action. That the federal district

court in this case might have issued orders to halt state

litigation does not convert that federal tribunal into a

state-court substitute. Under petitioners’ theory, could

respondent or other parties to the settlement now choose

to file non-diverse state-law exposure suits against the

federal defendants in Alabama federal district court? If a

federal settlement precludes certain administrative claims

or requires certain executive branch actions, is the district

court then permitted to appropriate those claims or itself

discharge those duties? Cf. Missouri v. Jenkins, 495 U.S.

33, 50-51, 55 (1990) (addressing district court authority to

order local property tax increases). The answer must be

no.

That petitioners sought removal of the state suit only

makes matters worse. Neither petitioners nor their amicus

identify precedent for solely ancillary removal jurisdiction.

There is no such beast. For the reasons just stated,

§1441(a)’s original-jurisdiction demand could not have

been satisfied. Ancillary enforcement jurisdiction at most

permits the Alabama federal court to consider whether to

halt, not whether to adjudicate, a state suit over which it

otherwise lacks jurisdiction.

id., at 188 (Stevens, J., dissenting); Julian v. Central Trust Co., 193

U.S. 93, 112-114 (1904); Root v. Woolworth, 150 U.S. 401, 411-412

(1893); Milwaukee & Minn. R.R. Co. v. Soutter, 69 U.S. (2 Wall.) 609,

631-635 (1865).

12

In addition, §1441 is best read to prohibit removal if

subject matter jurisdiction depends on a separate federal

suit that is already pending in a particular federal district

court.‘ It is the “civil action brought in a State court” over

which the district courts must have “original jurisdiction.”

§1441(a). But by definition ancillary jurisdiction is de-

pendant rather than “original” in the sense that the

statute uses that term. As well, §1441(a) demands extant

original jurisdiction in “the district courts,” plural. Accord

§1441(b). That phrasing at least implies that the state suit

must fall within the subject matter jurisdiction of any

federal district court. In contrast, the ancillary enforce-

ment jurisdiction decisions indicate that such jurisdiction

resides, if at all, in the one district court with a decree to

enforce. See, e.g., Local Loan, 292 U.S., at 239. And in

cases like this, where the state suit was filed in a place

outside the geographic boundaries of the federal district

court with asserted ancillary jurisdiction, §1441 removal

would require the local federal district court to assume

jurisdiction that even defendants would not argue has

been retained. See §1441(a) (directing removal to “the

district court” (singular) “for the district and division

embracing the place where such action is pending”);

§1446(a). Transfer can be requested, as it was here. But

* This conclusion is regularly followed by lower federal courts in an

analogous context: attempts to remove a state suit on the theory that

the suit falls within the supplemental jurisdiction attendant to an

already pending federal suit. 28 U.S.C. §1367; see, e.g., Henson v. Ciba-

Geigy Corp., 261 F.3d 1065, 1068, n. 3 (CA11 2001) (case below); Ahearn

v. Charter Township of Bloomfield, 100 F.3d 451, 456 (CA6 1996);

Sebring Homes Corp. v. T.R. Arnold & Assocs., 927 F. Supp. 1098, 1101-

1102 (N.D. Ind. 1995); In re Estate of Tabas, 879 F. Supp. 464, 467 (E.D.

Pa. 1995); see also McClelland v. Longhitano, 140 F. Supp. 2d 201, 202-

203 (N.D.N.Y. 2001) (state court defendants filed a federal action and

simultaneously sought removal under $1367 of the pending state suit);

cf. City of Chicago v. International College of Surgeons, 522 U.S. 156,

165 (1997) (§1367(a) applies when other, federal claims are removed).

But see Co’en v. Kved, 868 F. Supp. 489, 494 (E.D.N.Y. 1994) (neverthe-

less remanding).

13

that exercise of judicial authority is hardly a substitute for

jurisdiction to do so in the first place. Cf. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 93-95 (1998)

(rejecting hypothetical jurisdiction).

Recognizing a difference between jurisdiction to

consider enforcement measures and jurisdiction over state

suits alleged to violate prior federal decrees is not splitting

hairs. The former maintains the traditional authority of

the federal courts to adjudicate requests for relief when

otherwise permitted by law. But under petitioners’ theory,

mere allegations of preclusion in a removal petition can

trigger immediate and wholesale interference with ongo-

ing state-court business. Yet defendants cannot be trusted

to assert only valid enforcement claims. Granted, in some

situations the statutorily authorized grounds for removal

may be doubtful. But that situation was one that Congress

created. Judicially minted and amorphous extensions of

removal jurisdiction, whether under ancillary enforcement

jurisdiction or otherwise, should not be tolerated.

Il. THE ALL WRITS ACT DOES NOT PROVIDE

ANY REMOVAL AUTHORITY.

Petitioners’ revision of the question presented does not

refer to the removal statutes at all, see Brief for Petition-

ers i, and their new question might better fit their current

theory of the case. Petitioners now assert that the All

Writs Act is an additional statutory mechanism with

which federal courts may obtain removal jurisdiction over

suits within some federal court’s ancillary enforcement

jurisdiction — at least when that court retained post-

judgment jurisdiction over “complex” litigation. As dis-

cussed above, federal district courts do not possess ancil-

lary enforcement jurisdiction over state lawsuits that

allegedly violate prior decrees. But in addition to that

jurisdictional deficiency, there is no unwritten removal

mechanism in §1651(a) or anywhere else.

14

As an initial matter, it is not clear which portions of

the removal statutes petitioners are willing to follow and

which would be superseded by the All Writs Act. In fact,

the All Writs Act was not the (only) “mechanism” that they

used. Petitioners relied on the grant of removal jurisdic-

tion to the local federal district court in Louisiana under

§1441(a) and they filed their removal notice there, see

§1446(a); but they do not explain why that particular court

possessed jurisdiction. See Argument Part I.C., supra.

Likewise, petitioners enjoyed the automatic stay of state

proceedings in §1446(d); but they do not explain how

defendants in their position can ever file a timely removal

notice under §1446(b). Cf., e.g., §§1441(d), 1442a (express

exceptions to the timing provision in §1446(b)). Nor do we

know whether §1447(c) will govern the procedure for

remand motions and orders for attorney fees, or whether

such remands will be appealable despite §1447(d).

Regardless of the procedural edifice that petitioners

would have federal courts fabricate to answer such ques-

tions, the removal statutes represent the sum total of the

judiciary’ removal authority. This was true from the

beginning.

A. Evidence of Original Intent Bars Remov-

al.

We can be quite certain that the initial grant of

residual writ authority in 1789 did not include unwritten

removal authority. The first Judiciary Act exercised

Congress’ then-controversial authority to establish lower

federal tribunals,’ and granted all federal courts “power to

* See R. Fallon, Jr., et al., Hart and Wechsler’s The Federal Courts

and the Federal System 19-20, 28-29, 31 (4th ed. 1996) (hereinafter

Hart & Wechsler); F. Frankfurter & J. Landis, The Business of the

Supreme Court 2, 4, 11-12 (1928); C. Warren, New Light on the History

of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 53-57, 61-70,

81, 90-92, 119-127, 130-132 (1923).

15

issue writs of scire facias, habeas corpus, and all other

writs not specially provided for by statute, which may be

necessary for the exercise of their respective jurisdictions,

and agreeable to the principles and usages of law.” An Act

to establish the Judicial Courts of the United States, ch.

20, §14, 1 Stat. 73, 81-82 (1789).

At the very same time, the Judiciary Act also created

federal removal jurisdiction, id., §12, 1 Stat. 79-80, an

innovation within our unique system of co-existing state

and federal power. As now, the founding era removal

jurisdiction included several significant limitations, which

are understandable in light of its novelty and intrusion

into state prerogatives. Thus removal was confined to a

specified class of cases, such as those involving a plaintiff

suing an out-of-state defendant in the plaintiff’s home

state if the amount in controversy exceeded $500. Id., at

79. As well, removal was proper only to the local circuit

court (excepting Maine and Kentucky, which had no

separate circuit courts), rather than to a district court or

to this Court. Ibid. Removal premised on federal questions

was not authorized at all.

It is inconceivable that removal authority beyond §12

was lodged in §14. The former provision specifically and

metictlously addressed the subject of removal, the classes

of cases eligible therefor, and the procedure by which

removal would be effectuated. Having described the

eligible cases, Congress could not have intended the same

Act to extend this novel ouster of state jurisdiction by

mere ambiguity. Cf. id., §§9, 11, 1 Stat. 76~79 (providing

instances of exclusive jurisdiction in the lower federal

courts). Furthermore, if any removal authority existed in

§14, could removal have been premised on a federal

question despite Congress’ decision to withhold general

federal question jurisdiction (whether by removal or

otherwise)? And which federal courts could have exercised

it and by what procedure? The All Writs authority was

granted to every federal court, while Congress made

16

conscious decisions to restrict removal venue and proce-

dure. Nothing in the original statute or its context sug-

gests that these legislative choices could be trumped by

the residual writ authority included in the same piece of

legislation. Indeed our system survived for nearly two

centuries without a single federal court assuming removal

authority under the All Writs Act. See L. Hoffman, Re-

moval Jurisdiction and the All Writs Act, 148 U. Pa. L.

Rev. 401, 401-402 (1999).

B. Contemporary Law Confirms the Conclu-

sion.

No intervening event suggests that All Writs removal

authority has sprouted since 1789. The All Writs statutory

phrasing has changed only slightly over that period; since

1948 it has granted federal courts authority to issue “all

writs necessary or appropriate in aid of their respective

jurisdictions and agreeable to the usages and principles of

law.” 28 U.S.C. §1651(a); see Pennsylvania Bureau of

Corrections v. United States Marshals Serv., 474 U.S. 34,

40-42 (1985) (concluding that the 1948 recodification did

not “mark a congressional expansion of the powers of

federal courts to authorize issuance of any ‘appropriate’

writ”).

As for removal, over time Congress has expanded and

contracted the authority depending on contemporary

necessities. Responding to acute threats to federal power

while cognizant of the impact on state and federal dockets,

the Legislative brarch has been the prime arbiter of

removal authority. And this Court’s consideration of

removal authority has been bounded by those statutes.

See, e.g., Mesa v. California, 489 U.S. 121, 125-126, 135,

139 (1989) (addressing federal officer removal); Caterpil-

lar, 482 U.S., at 399 (addressing §1441’s original-

jurisdiction condition); see generally Hart & Wechsler,

supra, at 951-952, 1615-1616 (providing a history of

legislative amendments to the removal statutes).

_——— ~ ————

. it

a .

er

17

The better conclusion, therefore, is that Congress has

exhausted the mechanisms for removal by statute. The

United States Code is now littered with statutory provi-

sions expressly addressing removal of cases from state to

federal court in a variety of circumstances. The All Writs

Act is not one of them. See, e.g., 9 U.S.C. §205; 12 U.S.C.

§§632, 1819(b)(2)(B)4D); 22 U.S.C. §286g; 28 U.S.C.

§§1441-1452, 2679(d)(2)(3); 39 U.S.C. §409(a). As signifi-

cant, petitioners cite no case in which this Court has

implied removal authority from a statute that did not

expressly provide for it. Accord Oklahoma Tax Comm'n,

489 U.S., at 841 (“Congress has expressly provided by

statute for removal when it desired federal courts to

adjudicate defenses based on federal immunities”).

With congressional policy ascertained, All Writs

analysis must end. The All Writs Act cannot trump con-

gressional intent to limit removal authority. And, in

addition, writs otherwise “‘covered’” by statute are not

available under §1651(a). Carlisle v. United States, 517

U.S. 416, 429 (1996) (quoting Pennsylvania Bureau, 474

U.S., at 43); see also Roche v. Evaporated Milk Ass’n, 319

U.S. 21, 29-32 (1943); United States v. FMC Corp., 84

S.Ct. 4, 5-6, 8 (1963) (Goldberg, J., in chambers); cf.

United States Alkali Export Ass’n v. United States, 325

U.S. 196, 202-204 (1945) (enforcing by writ a congres-

sional policy limiting federal jurisdiction). “Where a

statute,” let alone a bevy of them, “specifically addresses

the particular issue at hand, it is that authority, and not

the All Writs Act, that is controlling.” Pennsylvania Bu-

reau, 474 U.S., at 43.

Finally, federalism concerns should resolve any doubts

against All Writs authority. Not only are the removal

statutes sufficiently comprehensive to foreclose supple-

mentation, but judicial expansion of removal authority

improperly impinges on state judicial business. Removal

does not just obstruct state courts in their obligations to

timely adjudicate state-law claims. It utterly and (under

18

§1446(d) or some phantom All Writs companion) immedi-

ately deprives them of jurisdiction. Congress and the

Court are well aware of that consequence, and in defining

the scope of the removal statutes both institutions have

respected the interests of state judiciaries and their

claimants.‘ An alleged “crisis” is no occasion for the judici-

ary to re-mark boundaries on its own power. See Lexecon,

523 U.S., at 40; Amchem, 521 U.S., at 628-629.

There may be no simple and comprehensive way to

state exactly when resort to the All Writs Act is appropri-

ate. But essential elements in the equation must include

deference to congressional choices and respect for state

judiciaries. Petitioners’ argument devalues both.

* Authorities cited by petitioners and their amicus do not confront

these concerns. See, e.g., New York Tel., 434 U.S., at 161 (pen-register

order to an in-state telephone company); FTC v. Dean Foods Co., 384

U.S. 597 (1966) (preliminary injunction against private parties’ merger

in part to preserve status quo for agency resolution and subsequent

judicial review); La Buy v. Howes Leather Co., 352 U.S. 249 (1957)

(supervisory authority over lower federal courts); Adams v. United

States ex rel. McCann, 317 U.S. 269, 272-274 (1943) (habeas corpus

after a federal conviction); United States v. Morgan, 346 U.S. 502 (1954)

(coram nobis after a federal conviction); McClellan v. Carland, 217 U.S.

268 (1910) (certiorari to the federal courts of appeals); cf. Carlisle, 517

U.S., at 429 (recent treatment of coram nobis in light of the modern

rules of criminal procedure); Sampson v. Murray, 415 U.S. 61, 76-78

(1974) (distinguishing Dean Foods). Obviously the All Writs Act may

permit some interference with state interests. See Harris v. Nelson, 394

U.S. 286, 288-292, 299 (1969) (supplementing expressly granted habeas

jurisdiction to adequately assess collateral constitutional claims to

liberty). But see 28 U.S.C. §2283 (limiting authority to interfere with

pending state suits); Argument Part II.C.2., infra. Still, a federal court’s

legitimate power to issue creative writs must be at low tide when beset

by a combination of federalism and separation-of-powers concerns —

especially where there are established alternative avenues for seeking

more traditional and practically effective relief. See Argument Part

IL.C., infra.

——

——~_

19

C. Removal Is Unnecessary to Protect the

Federal Judiciary Or Defendants’ Inter-

ests.

Petitioners and their amicus attempt to convert the

vice of statutory limits into a virtue. They believe that the

conditions in the removal statutes actually justify All

Writs removal, because the exact relief sought cannot

otherwise be obtained.

Precedent indicates that All Writs relief is available

only if “necessary” in some sense, and so it is plainly

unavailable if other “adequate” remedies exist. See Clin-

ton, 526 U.S., at 537; Allied Chem. Corp. v. Daiflon, Inc.,

449 U.S. 33, 35 (1980) (per curiam) (mandamus to an

inferior federal tribunal is barred if the requesting party

has any other adequate means to obtain the requested

relief); see also New York Tel., 434 U.S., at 175 (arguing

necessity from the court’s perspective); Dean Foods, 384

U.S., at 604. But litigant need and restrictions on other

statutory authority cannot be a sufficient condition for

relief. That would be a recipe for disregard of congres-

sional will. Absent a constitutional violation, All Writs

relief must be prohibited when Congress so intends. As

shown above, the best reading of the removal statutes is

that the All Writs Act has been appropriately confined by

Congress. New York Tel., 434 U.S., at 172-173.

Moreover, the All Writs Act is not triggered whenever

a litigant cannot obtain elsewhere the precise remedy that

he has requested. Rough substitutes can bar recourse to

the All Writs Act. See Clinton, 526 U.S., at 537-540; Allied

Chem., 449 U.S., at 36. That petitioners cannot remove

respondent’s state suit should be irrelevant considering

the sole purpose for which they seek relief: to halt a state

suit based on a prior federal judgment. Even if petitioners

are correct on the merits of their preclusion arguments,

there is absolutely no need — from the perspective of

either the litigants or of the federal courts — for removal

to achieve the objective.

20

1. State-court defense. Most important, state

courts retain the ability and duty to fairly adjudicate

defenses like those asserted by petitioners. Indeed, Con-

gress and precedent favor that course to unauthorized

removal. See Rivet, 522 U.S., at 477-478. State courts are

entirely capable of resolving alleged conflicts between

federal judgments and pending state suits. They are just

as obligated to effectuate federal law as are federal courts,

and this Court ordinarily presumes that state courts will

follow rather than flout federal law. See, e.g., Tafflin v.

Levitt, 493 U.S. 455, 458 (1990); Chick Kam Choo, 486

U.S., at 149-150; Pennzoil Co. v. Texaco, Inc., 481 U.S. 1,

15-17 (1987); Stone v. Powell, 428 U.S. 465, 493-494, n. 35

(1976); Amalgamated Clothing Workers of Am. v. Richman

Bros., 348 U.S. 511, 518 (1954). Unlike the situation in

cases such as New York Telephone, 434 U.S., at 175, and

Dean Foods, 384 U.S., at 599-600, the underlying contro-

versy turns on state law and a state judicial forum has

already acquired jurisdiction — with which it is able to

ensure that federal law is vindicated.

While there are legitimate arguments that the court

issuing a judgment is the most efficient place to consider

its scope, such concerns have never been parlayed into

exclusive federal jurisdiction. See Parsons Steel, Inc. v.

First Ala. Bank, 474 U.S. 518, 524—25 (1986) (rejecting an

anti-suit injunction where the state court had already

denied preclusion); see also Kokkonen, 511 U.S., at 381;

Atlantic Coast Line, 398 U.S., at 287. Even when a dispute

over a judgment is close enough in time to the prior

adjudication to warrant a presumption that the first court

is better prepared than a second, but cf. Brief of Product

Liability Advisory Council, Inc. (PLAC) as Amicus Curiae

26-29 (posing questions about back-end opt-outs), differ-

ent judicial systems regularly interpret the preclusive

scope of judgments entered by others. And the preclusive

effect of a federal district court’s judgment when sitting in

diversity is only technically a matter of federal common

law; the actual rule of decision will almost certainly

21

incorporate state preclusion rules. See Semtek Int'l Inc. v.

Lockheed Martin Corp., 531 U.S. 497, 508-509 (2001).

Petitioners are free to defend themselves in state

court, and that is no punishment. Fear that state courts

will not follow federal law is no ground for removal.

Chicago & A.R. Co. v. Wiggins Ferry Co., 108 U.S. 18, 24

(1883).

2. Anti-suit injunctions. Based on the argument

above, the Court need not consider the authority of the

Alabama district court to issue an anti-suit injunction. But

the possibility of an injunction and the presence of the

Anti-Injunction Act can only undermine the argument for

All Writs removal.

First, any authority to remove a case outside of the

removal statutes must not be any broader than the au-

thority to issue a stay of state proceedings. To make

removal effective, a stay of state proceedings is required

(or at least that is what defendants are agitating for). Yet

Congress has imposed express limits on such stays in the

Anti-Injunction Act. 28 U.S.C. §2283. Although there are a

variety of additional restrictions on anti-suit injunctions,’

the demands of the Anti-Injunction Act must be satisfied

or there is no authority to interfere with pending state

proceedings “regardless of how extraordinary the particu-

lar circumstances may be.” Mitchum v. Foster, 407 U.S.

225, 229 (1972); see, e.g., Chick Kam Choo, 486 U:S., at

146; Atlantic Coast Line, 398 U.S., at 286-87 (the bar

applies even when an injunction is directed at a party

rather than a state court). “[S]Jince the statutory pro-

hibition against such injunctions in part rests on the

" These include personal jurisdiction, due process, abstention, and

equitable discretion to deny relief. See, e.g., Ortiz, 527 U.S., at 846-848;

Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 811-812 (1985); Younger

v. Harris, 401 U.S. 37, 43-45 (1971); Zenith Radio Corp. v. Hazeltine

Research, Inc., 395 U.S. 100, 110 (1969); Local Loan, 292 U.S., at 241-

242; Monaghan, supra, at 1149-1155, 1187-1191; see also Fed. R. Civ. P.

65(d).

22

fundamental constitutional independence of the States

and their courts, the exceptions should not be enlarged by

loose statutory construction.” Atlantic Coast Line, 398

U.S., at 287; accord Chick Kam Choo, 486 U.S., at 146.

Doubts about the propriety of an injunction must be

resolved in favor of permitting the state courts to move

forward without delay. Atlantic Coast Line, 398 U.S., at

297.

In cases like this, the defendants’ rationale for re-

moval authority (that the state suit is purportedly pre-

cluded by a prior federal decree) may establish authority

to issue an anti-suit injunction. Section 2283 permits

federal courts to consider whether to issue an anti-suit

injunction that is “necessary to protect or effectuate the

court’s judgment.” Chick Kam Choo, 486 U.S., at 146. This

relitigation exception has been narrowly construed: “the

claims or issues which the federal injunction insulates

from litigation in state proceedings [must] actually have

been decided by the federal court,” and an injunction can

rest only on what the federal court’s prior order actually

said, not on what it intended to say. Id., at 148. Neverthe-

less, a preclusion argument like petitioners’ might satisfy

the relitigation exception; and if that argument fails on its

merits, then not even petitioners would contend that

removal is authorized. On this logic, petitioners’ amicus

contends that a meritorious preclusion argument triggers

both injunctive and removal authority, and district courts

should be left with discretion to choose between them.

This argument fails for several reasons. First, in

PLAC’s view, defendants seeking All Writs removal are

apparently entitled to an automatic stay of state proceed-

ings, without prior judicial oversight, upon filing of a

removal notice and allegation of preclusion (at least after

settlement of “complex” federal litigation). Cf. §1446(d).

The “choice” a district court would face after finding that a

preclusion defense is meritorious, therefore, would not be

between an anti-suit injunction and removal, but between

23

remand with an anti-suit injunction and dismissal. Assum-

ing complete preclusion, the only purpose for remand

would be to test whether the state court can obey a federal

diktat. And in those cases where the defendant’s preclu-

sion defense is not meritorious, neither removal nor

injunction will be authorized, and so a straight remand

will be compelled. But in all events the defendant will

have succeeded in obstructing state adjudication and the

plaintiff’s valid forum choice, based on a federal defense.

That is not the way the deck has been stacked by Congress

or this Court. See, e.g., Rivet, 522 U.S., at 477-478; Par-

sons Steel, 474 U.S., at 524—25. !

That aside, removal and anti-suit injunctions are not

equally available choices. As argued above, federal courts

lack subject matter jurisdiction over state suits like this

and the All Writs Act lacks any removal authority. In

addition, the Anti-Injunction Act itself suggests that

injunctions are congressionally preferred to an expanded

removal authority. In amending the Anti-Injunction Act

into its present form, Congress assessed the interests at

stake and the argument for preserving a federal forum for

preclusion defenses. See Toucey, 314 U.S., at 132, 141 (pre-

amendment decision refusing to acknowledge a relitigation

exception absent statutory authorization). Congress well

could have altered the removal statutes too, or made

federal jurisdiction over these defenses exclusive, but it

did not. Moreover, removal is the greater intrusion into

state judicial proceedings, especially if a mere notice of

removal ousts the state court of authority to proceed, or if

the state plaintiff’s case ends up only partly precluded.

Removal deprives state courts of all authority over a case,

while anti-suit injunctions are ordinarily issued to liti-

gants and can (indeed must) be targeted to prevent reliti-

gation of only those issues previously adjudicated. See

Chick Kam Choo, 486 U.S., at 148. So far as we can tell,

petitioners envision wholesale removal of entire state

cases while a federal district court considers whether all or

any of the state case is precluded.

24

Petitioners’ amicus directs attention to federal settle-

ment agreements that contain so-called “back-end opt-

outs” as an example where removal would create less

federal-state friction than anti-suit injunctions. Brief for

PLAC 25-29. Even assuming that such restrictions on

class members are valid, they do not justify removal. First

of all, the friction-free alternative is to permit state pro-

ceedings to progress unhindered by either removal or

injunction. Federal courts are at liberty to withhold All

Writs relief, particularly if a state forum exists to adjudi-

cate preclusion defenses. Second, the hypothetical situa-

tion presented involves state claims that are only partly

precluded by a federal settlement; some of the claims will

go forward. In what sense is it more intrusive to order an

amendment of claims than to assert exclusive jurisdiction

over an entire state case (one that lacks an independent

basis of federal subject matter jurisdiction) only to remand

the remainder of the case? Shuttling cases back and forth

is no boon to federalism either.’ Furthermore, insofar as

PLAC’s hypothetical involves injuries and claims that

arise long after a federal settlement, the rationale for

federal adjudication is undercut. Long lags between

judgment and dispute make it less clear that a federal

court is the better arbiter of aging documents.

Indeed an assurance that a federal court will arbitrate

all disputes over the meaning of its decrees risks excessive

tolerance for vagueness in drafting those decrees. Particu-

larly when the rights of future victims are at stake, federal

settlements must be absolutely plain to any reader. Taking

care up front will better enable state courts to easily and

fairly adjudicate preclusion defenses. Moreover, absent

* It is possible that PLAC believes state cases should remain in

federal court even after they are determined to be partly preserved. But

that would be extraordinary. At that point, the rationale and necessity

for federal jurisdiction would have vanished even under PLAC’s

position. Federal courts would be adjudicating unprecluded state law

25

and unnamed class members have a right to collaterally

challenge a purported judicial resolution of their claims.

See Monaghan, supra, at 1149-1150, and n. 4, 1185-1187,

1197; see also Ortiz, 527 U.S., at 846-848. An opportunity

for non-participants to collaterally challenge in Court B

the fundamental fairness of Court A’s proceedings is a

useful check on judicial authority and on any urge to

sacrifice individual rights while clearing dockets. PLAC’s

proposal would effectively eliminate this check on federal

class actions.”

* In the class-action context, some lower federal courts have

become willing to issue injunctions against state suits before judgment

and to promote the chances of reaching a global federal settlement. See

PLAC Br. 24, n. 7. But see Jn re Federal Skywalk Cases, 680 F.2d 1175,

1182-1183 (CAS), cert. denied, 459 U.S. 988 (1982); In re Glenn W.

Turner Enterprises Litig., 521 F.2d 775, 780 (CA3 1975). These pre-

judgment injunctions are a matter of intense controversy within the

practicing bar. In TLPJ’s view, they conflict with the narrow, traditional

understanding of what is “necessary in aid of [a district court's)

jurisdiction.” 28 U.S.C. §2283; see Atlantic Coast Line, 398 U.S., at 295-

296 (citing Kline); Kline, 260 U.S., at 229-230 (distinguishing in

personum from in rem jurisdiction); see also Vendo Co. v. Lektro-Vend

Corp., 433 U.S. 623, 641-643 (1977) (plurality opinion of Rehnquist, J.);

County of Imperial v. Munoz, 449 U.S. 54, 60, n. 4 (1980). These

injunctions have little to do with the federal judiciary’s ability to

adjudicate the cases properly before them, but they seriously interfere

with state courts’ ability to do the same. But far more importantly, the

necessary-in-aid-of-jurisdiction exception to the Anti-Injunction Act is

not before the Court, and we ask that the excursions of the lower courts

receive no endorsement whatsoever in the Court’s decision.

CONCLUSION

The judgment of the Court of Appeals should be

affirmed.

ARTHUR H. BRYANT

TRIAL LAWYERS FOR PUBLIC

JUSTICE

One Kaiser Plaza

Suite 275

Oakland, CA 94612

Telephone: (510) 622-8150

MICHAEL J. QUIRK

TRIAL LAWYERS FOR PUBLIC

JUSTICE

1717 Massachusetts Ave. NW

Suite 800

Washington, DC 20036

Telephone: (202) 797-8600

R tfully submitted,

ADAM SAMAHA

Counsel of Record

ROBERTA B. WALBURN

MARTHA K. WIVELL

ROBINS, KAPLAN, MILLER

& Crresi, L.L.P.

2800 LaSalle Plaza

800 LaSalle Ave.

Minneapolis, MN

55402-2015

Telephone: (612) 349-8500

Attorneys for Amicus Curiae