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

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No. 01-757 JUN 4 2002

———_———— EE

IN THE oe

Supreme Court of the United States

SYNGENTA CROP PROTECTION, INC., ROBERT BABB,

EDEE TEMPLET, AND KENNETH A. DEVUN,

Petitioners,

Vv.

HURLEY HENSON,

) Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE STATE OF TEXAS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

JOHN CORNYN LONNY S. HOFFMAN *

Attorney General of Texas UNIV. OF HOUSTON LAW CENTER

P.O. Box 12548 Teaching Unit II], Room 128

Austin, Texas 78711-2548 Houston, Texas 77204-6060

(512) 463-2191 (713) 743-5206

GREGORY S. COLEMAN

WEIL GOTSHAL & MANGES LLP

8911 Capital of Texas Hwy

Suite 4140

Austin, Texas 78759

* Counsel of Record (512) 349-1937

WiLSON-EPES PRINTING Co., INC. — (202) 789-0096 — WASHINGTON, D.C. 20001

BEST AVAILABLE COPY

QUESTION PRESENTED

Does the All Writs Act, 28 U.S.C. § 1651(a), authorize the

removal of civil actions to federal district court?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED...................csccsrccssssesssesseeseess

INTEREST OF AMICUS CURIAE.........000000000eeeeeeeeeees

Il.

THE PLAIN, UNAMBIGUOUS LANG-

UAGE OF THE ALL WRITS ACT DOES

NOT VEST DISTRICT COURTS WITH

AUTHORITY TO EXERCISE JURIS-

DICTION OVER A CASE REMOVED

SPEED ©) SOI OD ceceenvercsscessccsenseescencsecceensecsses

A. The Language of the All Writs Act is

Plain and Unambiguous and Does Not

Confer Original Jurisdiction on_ the

B. Further Proof of the All Writs Act’s Plain

Meaning Is Evident in the Absence of

Specific Details, Procedures and Limits

for Removal in § 1651(a). ...........cccccccceeeeeees

LEGISLATIVE AND JUDICIAL HISTORY

CONFIRM THAT THE ALL WRITS ACT

DOES NOT AUTHORIZE REMOVAL...........

A. Statutory Antecedents of § 1651(a). ..........

B. Interpreting Legislative Intent....................

REMOVAL UNDER THE ALL WRITS

ACT IS NOT AUTHORIZED SO LONG

AS OTHER REMEDIES EXIST FOR

AIDING FEDERAL JURISDICTION AND

PROTECTING FEDERAL JUDGMENTB.......

(iii)

TABLE OF CONTENTS—Continued

A. Writs Under § 1651(a) May Not

Issue When Adequate Alternative

ep iecrenununinnemennnmnniinanininaness

B. Preclusion Defenses and _ Injunctive

Relief Adequately Aid Federal Jurisdiction

and Protect and Effectuate Federal

re nnnsintiniiarmeementnmnens

1. Adequacy of Preclusion Defenses to

Protect and Effectuate Federal

2. Injunctive Relief Adequately Aids

Federal Jurisdiction and Protects and

Effectuates Federal Judgments. ............

IV. THE EXERCISE OF ANCILLARY

JURISDICTION WILL NOT VALID-

ATE REMOVAL UNDER THE ALL

SS oe

a Oicrrnscensconnnscumsensmnensenssnnemetiiateenaseapttiminemes

Page

TABLE OF AUTHORITIES

CASES Page

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

an 16

Atlantic Coast Line R. Co. v. Locomotive

Engineers, 398 U.S. 281 (1970).........ccccsee0s 19, 21, 28

Bender v. Williamsport Area Sch. Dist., 475 U.S.

TO 26

Carlisle v. United States, 517 U.S. 416 (1996)...... 16

Caterpillar Inc. v. Williams, 482 U.S. 386

ee 6, 25

Clinton v. Goldsmith, 526 U.S. 529 (1999) ........... 5, 16

Connecticut National Bank v. Germain, 503 U.S.

po 9

Covington & Cincinnati Bridge Co. v. Hager,

OO 6

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

ND | 4

Federated Dep't Stores, Inc. v. Moitie, 452 U.S.

|, 18

Kokkonen v. Guardian Life Insurance Co., 511

Oe 23, 26-27

Oklahoma Trex Comm'n v. Graham, 489 U.S.

ee 6,7, 25

Parsons Steel, Inc. v. First Alabama Bank, 474

CAD, SEB CRD ccscccssssenssmsssssscesemsesrmnscsssnsesseasess 21

Peacock v. Thomas, 516 U.S. 349 (1996).........0-++ 23, 24

Pennsylvania Bureau of Correction v. United

States Marshals Service, 474 US. 34

ee 6, 11, 16, 20

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

(BGGS) nccescecscesssscsssecersssevessrsvecssosssevessosssseesssssessees 27

Richards v. Jefferson County, 517 U.S. 793

(DGD Gp cccessecssscsssscecsssrssesecsessusssssessssssssssssssessssseses 27

Rivet v. Regions Bank, 522 US. 470

ee 3, 7, 18-19, 21, 25

TABLE OF AUTHORITIES—Continued

Roche v. Evaporated Milk Ass'n, 319 U.S. 21

(SEP nncessessccsasesensonnssnsenesesnsesccceamantonimmmecmpvessats

Sable v. General Motors Corp., 90 F.3d 171

GE Sele CED censnscsesssnsssnsenenseenssesmsnanntenmeninen

Texas v. Real Parties in Interest, 259 F.3d 387

GPa SD crnsnresenenemecememenemmmenstennes

United States Alkali Export Ass'n v. United

ee en

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623

Yonkers Racing Corp. v. City of Yonkers, 858

F.2d 855 (CA2 1988), cert. denied, 489 U.S.

SP Qe rcccscsennerentmenssecsssenereemmamansncnmmmennnens

Younger v. Harris, 401 U.S. 37 (1971)..........00000+-

STATUTES

Judiciary Act of 1789, ch. 20, § 12, 1 Stat. 73,

Judiciary Act of 1789, ch. 20, § 14, 1 Stat. 73,

Act of March 3, 1911, ch. 231, 36 Stat. 1156,

PAA § Bip ccsesssnessssssessscenarssesnssnesnemeneasmessesass

BB TENG © SERGI ccssescesnesensvansvsssseeesssseee

GD is & Fa cccnsnnsscsnsnsscsscmeemmnccmnenssnsmecasenen

BD Dl lie © SEG cccnensecsscsnnscsnssecsecsmnsssensssanenescesens

BD Dc, CR ecscnencssnnsnssmpscemmnssrsssssssesemnnmnnanse

gD) Oe

28 U.S.C. § 1337(a) ecsseecsesse

28 U.S.C. § 1338(a) ........cccceeceecerseees

MAA UAUAA WA Oo oo

vii

TABLE OF AUTHORITIES—Continued

REESE aa a 5

SAE AE RE ERIE 5

TE RRR 5

a 5

EERIE 5

a icleaeeee 5

TE TI 5

LL TAA 5

LAA TTT 5

ES ARR ES REET 5

tle EER EET 5

TET ELIS 5

EEE 5

EAE TT 5

ATT 5

MATTER 5

i 5

EN: MEET 5

SE ERE SER 5

OS EATEN 5

ES ETRE TE 5

SS LATE TI 2

Sa 7

LEE TT 7

i RTE 7

ea 3,8

RS TIT passim

Sa a aaa 4, 19, 28

~ YS 2 RTP 5

Class Action Fairness Act, H.R. 2341, 107th

Cong. (2001); S. 1712, 107th Cong. (2001) ...... 25, 26

Viii

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES

4 The Documentary History of the Supreme

Court of the United States, 1789-1800,

Organizing the Federal Judiciary: Legislation

and Commentaries (Maeva Marcus et al. eds.,

Amar, Marbury, Section 13 and the Original

Jurisdiction of the Supreme Court, 56 U. Chi.

SE ee

Fallon et al., Hart and Wechsler’s The Federal

Courts and the Federal System (4th ed. 1996)...

Monaghan, Antisuit Injunctions and Preclusion

Against Absent Nonresident Class Members,

98 Colum. L. Rev. 1148 (1998) .0.........ccccseeseees

Pfander, Marbury, Original Jurisdiction and the

Supreme Court’s Supervisory Powers, 101

Colum. L. Rev. 1515 (2001) ..........ccccesceseseeeeseees

Redish, Abstention, Separation of Powers, and

the Judicial Function, 94 Yale L. J. 71 (1985)...

Steinman, The Newest Frontier of Judicial

Activism: Removal Under the All Writs Act,

80 B.U. L. Rev. 773, 794-814 (2000)............0...

Warren, New Light on the History of the Fed-

eral Judiciary Act of 1789, 37 Harv. L. Rev.

SF CRP esnecssentessessereemernitnicnntsmganemeninens

Wechsler, The Political Safeguards of Fed-

eralism: The Role of the States in The

Composition and Selection of the National

Government, 54 Colum. L. Rev. 543 (1954).....

13 C. Wright, A. Miller, & E. Cooper, Federal

Practice and Procedure § 3503 (2d ed. 1996)...

Page

IN THE

Supreme Court of the Anited States

No. 01-757

SYNGENTA CROP PROTECTION, INC., ROBERT BABB,

EDEE TEMPLET, AND KENNETH A. DEVUN,

Petitioners,

Vv.

HURLEY HENSON,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE STATE OF TEXAS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

Texas appears in support of Respondent, see Sup. CT.

R. 37.4, urging the Court to affirm the judgment of the

Eleventh Circuit and hold that the All Writs Act, 28 U.S.C.

§ 1651(a), does not authorize the removal of civil actions to

federal district court. Texas has been involved in litigation in

which the All Writs Act has been invoked repeatedly as a

means of removing proceedings initiated by the state and in

contravention of the state’s Eleventh Amendment immunity.

See, e.g., Texas v. Real Parties in Interest, 259 F.3d 387

(CA5 2001). While the Fifth Circuit has expressed consider-

able doubt about the propriety of a removal under the All

Writs Act, it has not yet been willing to reject categorically a

federal court’s power to exercise jurisdiction over a case

removed solely on the basis of the All Writs Act. Texas has

expended substantial time and resources litigating this issue

and has a strong interest in having it fully resolved.

In some, but not all of the circuit and district court

decisions approving removal under the All Writs Act, the

asserted basis for removal has been the existence of a prior

feceral judgment said to be preclusive of a subsequent state

court action. The present case raises the All Writs Act

removal question in this preclusion context. Other courts

have upheld removal under § 1651(a) on the assertion that a

subsequent state case threatened to interfere with a federal

court's jurisdiction before judgment in separate, on-going

proceedings. Although this case raises the All Writs Act

removal question in the preclusion context, the question on

which this Court granted certiorari touches both contexts and

thereby implicates Texas’s broader interests. Texas believes

it is appropriate for the Court to declare, consistent with the

text, structure, and history of the All Writs Act, that under no

circumstances mav the All Writs Act be invoked to remove

civil actions to federal district court.

~- SUMMARY OF ARGUMENT

The All Writs Act may not be relied upon to remove civil

actions to federal district court.

A. The plain and unambiguous language of 28 U.S.C.

§ 1651(a) does not confer original jurisdiction on the district

courts. This is significant because in the general removal

statute, 28 U.S.C. § 1441, Congress has authorized removal

only of civil actions of which the federal court would have

had “original jurisdiction” had suit been commenced in the

federal forum. The Court has insisted on strict adherence to

the § 1441 original jurisdiction requirement and recently

reiterated that although Congress possesses the power to

a tpn

authorize removal without an accompanying grant of original

jurisdiction to the federal courts, it must do so expressly.

Rivet v. Regions Bank, 522 U.S. 470, 474 (1998).

Further proof that the statute plainly and unambiguously

does not vest district courts with authority to exercise

jurisdiction over a case removed under the All Writs Act

may be found by comparing § 1651(a) to other statutes that

expressly authorize removal. Not only has Congress specific-

ally granted a right of removal in a number of statutory

provisions, but on every occasion it has done so, Congress

has either included particular procedures to govern removal in

the specific statute itself or incorporated by reference the

general procedural rules on removal contained in 28 U.S.C.

§§ 1446-50. By comparison, the All Writs Act contains no

reference to removal, let alone any specific procedural

guidelines that would apply to a removal effected under

§ 1651(a). Congress did not intend to vest district courts with

authority to exercise jurisdiction over cases removed under

§1651(a). The Court should not read into the statute what

Congress has declined to write into it.

B. Two centuries of history of the All Writs Act demon-

strates that the drafters of the original “all other Writs” clause

of § 14 of the Judiciary Act of 1789 did not intend the

Statutory provision to vest the lower federal courts with

original jurisdiction or to be used to authorize the removal of

civil actions. The drafters’ purpose in enacting § 14 solely

was to grant power to enforce the limited jurisdiction the

lower federal courts were accorded in other statutory

provisions of the Act. Neither the First Congress nor any

since have intended the All Writs Act to carry additional,

unstated and expansive powers to authorize removal beyond

those removal rights narrowly enumerated in other statutory

provisions.

-C. Even if the plain and unambiguous language of the

statute and its legislative history are ignored, removal under

the All Writs Act is not authorized because the exercise of

writ power is neither “necessary” nor “appropriate.” In a

long line of cases, the Court has insisted that where adequate,

alternative remedies exist, resort may not be made to the All

Writs Act to fashion “ad hoc” relief. Long before the Second

Circuit first read additional removal authority into the All

Writs Act, federal judgments were protected adequately by

State courts applying preclusion law to determine the

preclusive effect of prior federal judgments. A district court’s

jurisdiction both before and after judgment may also be

protected through the issuance of injunctive relief by the

federal court. Because preclusion law and injunctive relief

are adequate alternatives to removal, § 1651(a) may not be

invoked to remove a civil action to federal court.

D. The exercise of ancillary jurisdiction will not validate

removal under the All Writs Act of a civil action lacking an

independent basis of federal subject matter jurisdiction. The

right of removal is entirely a matter of legislative prerogative,

and it is one that Congress has narrowly accorded since 1789.

Drawing on a federal court’s ancillary jurisdiction to justify

removal under the All Writs Act invites judicial usurpation of

the legislature’s authority to define the scope of the privilege

of removal. Additionally, Congress has set forth in the Anti-

Injunction Act, 28 U.S.C. § 2283, three narrow and limited

exceptions to the general rule of non-interference in state

judicial proceedings. To read the All Writs Act as an

independent source of removal authority substitutes the

stringent standards in the Anti-Injunction Act for an inchoate,

ill-defined measure of “extraordinary circumstances” that

pays no heed to the strict limits of § 2283. As the Eleventh

Circuit observed in its opinion in the present case, permitting

removal based exclusively on the All Writs Act “perverts”

§ 1651(a) “from a tool for effectuating Congress’s intent into

a device for judicially reequalibrating a state-federal balance

that is Congress’s to strike.” Henson v. Ciba-Geigy Corp.,

261 F.3d 1065, 1071 (CA11 2001).

ARGUMENT

I. THE PLAIN, UNAMBIGUOUS LANGUAGE OF

THE ALL WRITS ACT DOES NOT VEST

DISTRICT COURTS WITH AUTHORITY TO

EXERCISE JURISDICTION OVER A CASE

REMOVED UNDER § 1651 (a).

A. The Language of the All Writs Act is Plain

and Unambiguous and Does Not Confer

Original Jurisdiction on the District Courts.

The plain and unambiguous language of § 1651(a) does not

confer original jurisdiction on the federal district courts. In

the All Writs Act, the Supreme Court and lower federal

courts are given authority to issue writs “in aid of their

respective jurisdictions.” This contrasts sharply with the

language of numerous other statutory provisions in Title 28

in which Congress specifically has conferred “original

jurisdiction” on the federal courts.’ The plain and_unam-

biguous language of the All Writs Act demonstrates, then,

that Congress did not confer original subject matter juris-

diction on the federal district courts in the Act.

That the language of the All Writs Act plainly and

unambiguously does not confer original jurisdiction long has

been accepted by this Court. See, e.g., Clinton v. Goldsmith,

526 U.S. 529, 534 (1999)(observing that “[wJhile the All

Writs Act authorizes employment of extraordinary writs, . . .

the express terms of the Act confine the power of the CAAF

to issuing process ‘in aid of” its existing statutory jurisdiction;

' See 28 U.S.C. §§ 1330, 1331, 1332, 1333, 1335, 1337(a), 1338(a),

1339, 1340, 1343, 1344, 1345, 1346(a), 1347, 1348, 1350, 1351, 1352,

1353, 1354, 1355, 1356, 1357, 1361, 1362, 1363, 1365 and 1368. In

addition to these grants of “original jurisdiction” in Title 28, Congress has

also provided the federal district courts with “original jurisdiction” under

other titles of the United States Code. See, e.g., 33 U.S.C. § 466g-1.

the Act does not enlarge that jurisdiction”); Pennsylvania

Bureau of Correction v. United States Marshals Service, 474

U.S. 34, 41 (1985)(remarking that §1651(a) may be used only

for “filling the interstices of federal judicial power when

those gaps threatened to thwart the otherwise proper exercise

of federal courts’ jurisdiction”); Covington & Cincinnati

Bridge Co. v. Hager, 203 U.S. 109, 110 (1906)(observing that

“[iJt has been too frequently decided in this court to require

the citation of cases that the circuit courts of the United States

have no jurisdiction in original cases of mandamus, and have

only power to issue such writs in aid of their jurisdiction in

cases already pending; wherein jurisdiction has been acquired

by other means and by other process”).

Congressional failure to provide for “original jurisdiction”

in the All Writs Act is significant. In the general removal

provision, 28 U.S.C. § 1441, Congress has authorized

removal only of civil actions of which the federal court would

have had “original jurisdiction” had suit been initiated there.

This Court has insisted on close adherence to the require-

ments of § 1441. Caterpillar Inc. v. Williams, 482 U.S. 386,

393 (1987)(“Only state-court actions that originally could

have been filed in federal court may be removed to federal

court by the defendant.”); Oklahoma Tax Comm'n v.

Graham, 489 U.S. 838, 840 (1989)(citing 28 U.S.C.

§ 1441(a) for the general proposition that “‘[e]xcept as

otherwise expressly provided by Act of Congress, a case is

not properly removed to federal court unless it might have

been brought there originally”). Because the unambiguous

language of the All Writs Act does not confer original

jurisdiction on the federal courts, predicating removal on the

All Writs Act impermissibly expands the subject matter

jurisdiction of the federal district courts beyond the maximum

limits authorized by Congress.

While it is true that Congress, in its discretion, may

authorize removal jurisdiction without conferring original

jurisdiction on the district courts, there is no indication that

Congress intended to do so in the All Writs Act. In the few

instances in which Congress has authorized removal of a case

without directly conferring original jurisdiction, it has done

so by conferring the privilege of removal specifically and

expressly in the statutory language. See, e.g., 28 U.S.C.

$1442 (allowing removal of civil or criminal suits and

without regard to whether the claims aris* under federal law

within the meaning of 28 U.S.C. § 1331 or the diversity

requirements of 28 U.S.C. § 1332 have been satisfied);

28 U.S.C. § 1442a (same); 28 U.S.C. § 1443 (allowing

removal of an action seeking to enforce a right under any law

providing for equal Civil rights); see also Oklahoma Tax

Comm'n, 489 U.S., at 841 (holding state tax case against

Indian tribe was improperly removed where district court

lacked original jurisdiction over the case and observing that

“{t}he jurisdictional question in this case is not affected by the

fact that tribal immunity is governed by federal law.

. Congress has expressly provided by statute for removal

when it desired federal courts to adjudicate defenses based on

federal immunities.”). By contrast, § 1651(a) contains no

mention of any removal authority and the Court has

emphasized that, although Congress possesses the power to

authorize removal without an accompanying grant of original

jurisdiction, it must do so expressly. Rivet v. Regions Bank,

522 U.S. 470, 474 (1998).

B. Further Proof of the All Writs Act’s Plain

Meaning Is Evident in the Absence of Specific

Details, Procedures and Limits for Removal

in § 1651 (a).

In every instance in which Congress has granted removal

authority it has provided specific criteria to address by whom,

of what, to where, and how removal will be permitted, either

in the specific statute itself, or by making applicable the

general procedural rules on removal contained in 28 U.S.C.

§§ 1446-50. Thus, in 9 U.S.C. §205, Congress promulgated

specific removal authority for matters relating to an arbi-

tration agreement or award under the Convention on the

Recognition ana Enforcement of Foreign Arbitral Awards

but prescribed that the general procedures for removal in

§§ 1446-50 be used. See 9 U.S.C. § 205 (“The procedure for

removal of causes otherwise provided by law shall apply,

except that the ground for removal provided in this section

need not appear on the face of the complaint but may be

shown in the petition for removal.”). In other statutory

enactments in which removal has been authorized, Congress

has chosen to promulgate specific removal procedures to be

followed, rather than cross-reference the general procedures

in §§ 1446-50. See, e.g., 12 U.S.C. § 1819(b)(2)(B).

By comparison, the All Writs Act contains neither refer-

ence to particular removal procedures nor cross-reference to

the general removal procedures in §§ 1446-50. That absence

is significant because the privilege of removal is entirely a

matter of legislative prerogative. No provision in the Consti-

tution allows removal of cases from state to federal court.

While a right of removal has been authorized continuously

from the Judiciary Act of 1789 to the present day, Congress

has never conferred removal authority to the full extent

permissible under Article III, just as it has never conferred on

the federal courts all of the original jurisdiction Article Ill

would allow.’ Consequently, it would be inconsistent with a

> See generally Richard H. Fallon, Jr. et al., Hart and Wechsler’s The

Federal Courts and the Federal System 32 (4th ed. 1996) [hereinafter Hart

& Wechsler|(“When the respective jurisdictions of the district and circuit

courts and the Supreme Court are viewed together, the 1789 Act fell short

of vesting the federal courts in “all Cases” in which Article III would have

permitted jurisdiction based primarily on subject matter); 13 Charles Alan

Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice and

Procedure § 3503, at 9 (2d ed. 1996)(observing that “at no time in history

has the entire judicial power been vested in the federal courts”).

plain and unambiguous reading of the All Writs Act to

maintain that Congress intended to vest district courts with

authority to exercise jurisdiction over a case removed under

§ 1651(a) when it set specific limitations on the privilege of

removal in all other enabling legislation. Congress plainly

has not conferred removal authority in the All Writs Act or

legislated specific procedures for removal under the statute,

and the Court should not read into the statute what Congress

has declined to write into it.

The plain and unambiguous text of the All Writs Act

demonstrates no intent by Congress to confer original

jurisdiction on the district courts or to otherwise sanction

removal under § 1651(a). Where the statutory language is

unambiguous and the “statutory scheme is coherent and

consistent,” no further inquiry is warranted. See Connecticut

National Bank v. Germain, 503 U.S. 249, 253-54 (1992)

(quoting Rubin vy. United States, 449 U.S. 424, 430 (1981))

(“We have stated time and again that courts must presume

that a legislature says in a statute what it means and means in

a statute what it says there. When the words of a statute are

unambiguous, then, this first canon is also the last: ‘judicial

inquiry is complete.’”)(internal citations omitted).

Il. LEGISLATIVE AND JUDICIAL HISTORY

CONFIRM THAT THE ALL WRITS ACT DOES

NOT AUTHORIZE REMOVAL.

The historical record of congressional intent in enacting the

original “all other Writs” provision of the Judiciary Act of

1789 demonstrates the First Congress did not intend it to

serve as an independent source of jurisdiction for the lower

federal courts or to be used to authorize the removal of civil

actions. This evidence of legislative intent is itself further

supported by the widely accepted historical account of

the context in which the First Judiciary Act was enacted.

Section 14 was promulgated by a legislature torn by

conflicting attitudes toward the lower federal courts being

created. The compromises reflected in the Act, which are

reflective of the battles waged between the broad and narrow

pro-Constitution forces, cannot be squared with the belief that

a majority of legislators ceded unbridled and additional

removal authority on the lower federal courts in § 14 to hear

cases otherwise not within the limited jurisdiction accorded

to them.

A. Statutory Antecedents of § 1651 (a).

The All Writs Act had its beginning in §§ 13 and 14 of the

Judiciary Act of 1789. See Judiciary Act of 1789, ch. 20,

§§ 13 and 14, | Stat. 73, 81-2.° When Congress enacted the

1948 codification of the Judicial Code, it consolidated

$§ 342, 376, and 377 of the Judicial Code of 1940 into 28

U.S.C. § 1651(a). Sections 342, 376 and 377 of the 1940

Code, in turn, had been derived from §§ 234, 261, and 262 of

the Judicial Code of 1911. See Act of March 3, 1911,

ch. 231, 36 Stat. 1156, 1162. Prior to 1911, §§ 13 and 14 of

the 1789 Act were the sole sources of power for the Supreme

Court and lower federal courts to issue extraordinary writs.

The statutory language of §1651(a) promulgated in the 1948

codification remains unchanged. See 28 U.S.C. § 1651(a)

(1994) (amending 28 U.S.C. § 1651(a) (1948)).

The 1948 codification of § 1651(a) deleted the phrase “not

specially provided for by statute,” originally found in § 14 of

the First Judiciary Act. The legislative history indicates,

however, that the recodification made only “necessary

* Section 13 authorized the Supreme Court to issue writs of prohibition

to the district courts “when proceeding as Courts of admiralty and

maritime jurisdiction; and writs of mandamus in cases warranted by the

principles and usages of law, to any Courts appointed, or persons holding

office, under the authority of the United States.” See Judiciary Act of

1789, ch. 20, § 13, 1 Stat. 73, 81.

changes in phraseology” and not substantive modifications to

the prior statutory sections. See 28 U.S.C. §1651(a) (1994)

(reviser’s note). Section 1651(a) continued to be limited by

the pre-existing statutory requirement that writs may issue

only after a federal court’s jurisdiction otherwise has been

established. See id. The legislative history of §1651(a) also

reveals that the new section was intended to codify the

holding of the Supreme Court in United States Alkali Export

Ass'n v. United States, 325 U.S. 196 (1945). See 28 U.S.C.

§ 1651(a) (1994) (reviser’s note). In Alkali, the Court

reversed the district court’s use of the All Writs Act power,

observing that the “writs may not be used as a substitute for

an authorized appeal; and where, as here, the statutory

scheme permits appellate review of interlocutory orders

only on appeal from the final judgment, review by certiorari

or other extraordinary writ is not permissible.” Alkali,

325 U.S., at 203.*

As a result of the revisions made by Congress to the

Judicial Code in 1948, the All Writs Act is now the only

statutory authority on which the issuance of extraordinary

writs (excluding writs of habeas corpus) may be based. See

Hart & Wechsler, at 343 (noting that “the only statutory

authority for the issuance of the extraordinary writs... is...

the famous all-writs section—now 28 U.S.C. §1651(a)”).

B. Interpreting Legislative Intent.

Although there is “scant” historical evidence of legislative

intent regarding §§ 13 and 14 of the Judiciary Act of 1789,

see Pennsylvania Bureau of Correction, 474 U.S., at 41, it is

still possible to determine legislative intent (i) by considering

the structure of the statutory language and (ii) by comparing

* This latter portion of § 1651(a)’s legislative history is especially

relevant to the argument that, where adequate, alternative remedies exist,

resort to the All Writs Act is unwarranted. See infra Part Ill.

this evidence with what is known about the period generally

in terms of legislative attitudes in the First Congress toward

the lower federal courts that were being created in the 1789

Act. Together, this evidence demonstrates that in promulgat-

ing § 14 the First Congress did not intend to confer original

jurisdiction on the lower federal courts beyond the limited

jurisdiction given in other provisions of the Act.

Section 14, drafted by Oliver Ellsworth,’ was not discussed

at any length in the debates in the First Congress regarding

enactment of the Judiciary Act of 1789. Only one change to

$14 was recorded.° The final version, as reflected in the Act’s

enrolled version, provided in relevant part:

{A]ll the before mentioned Courts of the United States

shall have power to 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.’

The language of § 14 is strongly suggestive that the First

Congress did not intend the statutory provision to serve as an

independent source of original jurisdiction for the lower

* See 4 The Documentary History of the Supreme Court of the United

States, 1789-1800, Organizing the Federal Judiciary: Legislation and

Commentaries, at 36 (Maeva Marcus et al. eds., 1992)[hereinafter DHSC}

(noting that “sections 10-24 [of the original Senate bill of the Judiciary

Act] are in Oliver Ellsworth’s hand”).

* In DHSC, Professor Marcus remarks that the words “subpoena

& protection for witnesses” were probably excised from the original

manuscript senate bill, first read in the Senate on June 12, 1789, by the

senate judiciary committee and did not appear in the printed Senate bill,

which was produced between June 12 and June 16, 1789. See 4 DHSC,

at 36, 71.

” See 4 DHSC, at 71.

federal courts.” Section 14 distinguishes between the writs

that are listed by name in the 1789 Act—scire facias and

habeas corpus in § 14 and mandamus and prohibition in

§ 13—and “all other Writs not specially provided for by

Statute.” Section 14 authorizes issuance of the former,

named writs without qualification; but under the “all other

Writs” clause the federal courts could not issue one of the

unnamed writs unless it was shown that issuance was

“necessary for the exercise of their respective jurisdictions.”

Constructed in this fashion, the language of § 14 makes only

the latter, unnamed writs expressly subject to the limitation of

prior jurisdiction having been established.

The grant of general removal jurisdiction in the Judiciary

Act of 1789 further supports this understanding of § 1-t’s “all

other Writs” provision. In §12 of the First Judiciary Act,

when the amount in controversy was $500 or more, Congress

expressly authorized removal to federal circuit court for alien

defendants; for defendants in diversity cases in which the

plaintiff was a citizen of the state in which suit was brought;

and for either party in cases involving title disputes when the

parties were relying on grants from different states. Judiciary

Act of 1789, ch. 20, § 12, 1 Stat. 73, 79-80. No mention was

made in § 12 of any additional writ power of removal, and

§ 14 contained no such reference. The limited circumstances

* Academic commentators concur that §14 was not intended to confer

original jurisdiction on the lower federal courts. See, e.g., James E.

Pfander, Marbury, Original Jurisdiction and the Supreme Court's Super-

visory Powers, 101 Colum. L. Rev. 1515, 1547, 1587-88 (2001)

(concluding that § 14 gave the lower federal courts only “ancillary or

auxiliary power” to issue writs in aid of their jurisdiction otherwise

established); Akhil R. Amar, Marbury, Section 13 and the Original

Jurisdiction of the Supreme Court, 56 U. Chi. L. Rev. 443, 458 (1989)

(noting that § 14 invested “courts with certain authority if and when they

have independently founded jurisdiction. ... . ‘Jurisdiction’ must be

established first, and independently; ‘power’ then follows derivatively.”).

in which removal of a state case was allowed by § 12 cannot

be squared with the notion that the drafters—without

explicitly saying so—also enacted a general, residual grant of

removal jurisdiction in § 14.

That the original “all other Writs” provision of § 14 did not

vest the lower federal courts with additional jurisdictional

authority is consistent with the widely accepted historical

account of legislative attitudes generally during the period

toward the federal judiciary. At the time §§ 13 and 14 were

debated, there was considerable opposition already within the

First Congress to the mere creation of inferior federal courts.

Charles Warren described “the crucial contest in the

enactment of the Judiciary Act” as between the broad pro-

Constitution forces who urged that the legislative branch must

give full Article III powers to the federal courts, once created,

and their narrow pro-Constitution opponents who advocated

forcefully for a limited grant of jurisdiction.”

Viewed against this historical backdrop, it is not plausible

to maintain that a majority of this Congress intended to cede

unbridled and additional powers to the lower federal courts

in § 14 beyond those specifically enumerated. The com-

promises struck by the First Congress in the Judiciary Act of

1789 are illustrative of the powerful political battles being

waged at the time by competing constituencies.'” Section 14

was not intended to invest the inferior federal courts, if

Congress chose to establish them, with broader jurisdiction

than the limited jurisdiction they were given explicitly

elsewhere in the Act.

In sum, neither the legislative history of § 14 nor the

historical evidence of congressional attitudes toward the

* Charles Warren, New Light on the History of the Federal Judiciary

Act of 1789, 37 Harv. L. Rev. 49, 65-70 (1923).

” See generally 4 DHSC, at 22-35.

newly established lower federal courts reveals any evidence

of legislative intent to vest these courts with an expansive and

unstated grant of additional jurisdiction in the residual “all

other Writs” provision of § 14 or that the statutory section

was meant to be used as an additional source of removal

authority. The drafters’ clear and plainly expressed purpose

in enacting § 14 of the First Judiciary Act was to give the

lower federal courts power to enforce the limited jurisdiction

they were accorded in other statutory provisions. At the time,

and indeed for another two centuries, the power to issue

injunctive relief pursuant to the All Writs Act was understood

to be entirely sufficient to protect and effectuate federal

judgments. Only after 1988, when the Second Circuit first

suggested that a more expansive removal authority was

contained in the All Writs Act, did the lower courts begin to

hold that the powers conferred by Congress in §1651(a) were

more expansive than previously believed. Neither the Second

Circuit’s revisionist historical interpretation, nor the adoption

of that interpretation by other courts, however, can be squared

with the available historical evidence. The First Congress

intended in § 14 only to confer on the lower federal courts

power to issue writs under jurisdiction previously established.

Il. REMOVAL UNDER THE ALL WRITS ACT IS

NOT AUTHORIZED SO LONG AS OTHER

REMEDIES EXIST FOR AIDING FEDERAL

JURISDICTION AND PROTECTING FEDERAL

JUDGMENTS.

A. Writs Under § 1651(a) May Not Issue When

Adequate Alternative Remedies Exist.

It is so well-established as to be an axiom of the federal

writ power under § 1651(a) that no writ may issue if an

adequate remedy at law exists. As a result, even if the plain

language of the statute and its legislative history are ignored,

removal under the All Writs Act is not authorized so long

16 -

as other means exist for aiding federal jurisdiction and

protecting and effectuating federal judgments.

The Court in Pennsylvania Bureau of Correction made

clear the limits of § 1651. The All Writs Act

is a residual source of authority to issue writs that are not

otherwise covered by statute. Where a_ statute

specifically addresses the particular issue at hand, it is

that authority, and not the All Writs Act, that is

controlling. Although that Act empowers federal courts

to fashion extraordinary remedies when the need arises,

it does not authorize them to issue ad hoc writs

whenever compliance with statutory procedures appears

inconvenient or less appropriate. 474 U.S., at 43.

In its most recent discussion of the All Writs Act, the Court

again reaffirmed that § 1651(a) “invests a court with a power

essentially equitable and, as such, not generally available to

provide alternatives to other, adequate remedies at law.”

Clinton v. Goldsmith, 526 U.S. 529, 538 (1999).

The Court consistently has held that the availability of writ

power is similarly circumscribed for all writs authorized by

§ 165l(a). Carlisle v. United States, 517 U.S. 416, 429

(1996) (““The All Writs Act is a residual source of authority

to issue writs that are not otherwise covered by statute’”)

(quoting Pennsylvania Bureau, 474 U.S., at 43); Allied Chem.

Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980) (observing that

“[iJn order to insure that the writ will issue only in extra-

ordinary circumstances, this Court has required that a party

seeking issuance have no other adequate means to attain the

relief he desires”); Roche v. Evaporated Milk Ass'n, 319 U.S.

21, 30 (1943) (“[w]here the appeal statutes establish the

conditions of appellate review, an appellate court cannot

rightly exercise its discretion to issue a writ whose only effect

would be to avoid those conditions”’).

oe > Se

B. Preclusion Defenses and Injunctive Relief

Adequately Aid Federal Jurisdiction and

Protect and Effectuate Federal Judgments.

Congress and the Court have outlined the relevant rules

and doctrinal principles that guide the determination of

whether and how a federal court’s judgment may be protected

and/or its jurisdiction before judgment aided. Although

numerous authorities could be considered,'' State amicus

focuses on two of the most significant methods. The first—

and, as this Court has noted, often preferred—method for

protecting federal judgments is by state courts applying

preclusion law to determine the preclusive effect of a prior

federal judgment. The second method, though less com-

monly used, for protecting federal judgments is by federal

courts issuing injunctive relief.

1. Adequacy of Preclusion Defenses to Protect

and Effectuate F ederal Judgments.

Courts that have relied on the All Writs Act to uphold a

defendant’s removal of an otherwise unremovable case have

done so either because a prior federal judgment has been

found to be preclusive of subsequently filed state claims or

because a subsequently filed suit allegedly threatened to

interfere with a prior federal judgment. The present case is an

example of the former: the district court in the Southern

District of Alabama upheld the removal of the state court

'' A comprehensive, though probably not exhaustive, list would

include the Federal Full Faith and Credit Statute (28 U.S.C. § 1738

(1994)); the Rooker-Feldman doctrine; traditional equitable principles;

various abstention doctrines; the due process clauses of the Fifth and

Fourteenth Amendments (see, e.g., Parklane Hosiery Co. v. Shore, 439

U.S. 322, 327 n.7 (1979)); the Supremacy Clause (U.S. Const. art. VI,

cl. 2); the non-binding but influential Restatement (Second) of Judgments,

and general principles of federalism and comity (see generally Hart &

Wechsler, at 1222-30)).

action filed in Iberville Parish, Louisiana after concluding

that it was precluded by a settlement previously approved by

the federal district court in related proceedings. J.A. 28a.

Arguably, the Court has indicated already that such

preclusion-based removals are not proper. The Court recently

ruled that where a prior federal judgment was said to be

preclusive of a subsequent suit, the appropriate remedy was

for the party seeking to enforce the federal decree to ask the

state court to decide the preclusive effect of the prior

judgment. Rivet v. Regions Bank, 522 U.S. 470 (1998). Rivet

concerned a decision by a district court to retain jurisdiction

over a case removed from Louisiana state court on the ground

that the plaintiff's state cause of action was- completely

precluded by a federal bankruptcy court’s prior judgment.

The Fifth Circuit had approved the district court’s denial of

the plaintiff's motion to remand, construing Federated Dep't

Stores, Inc. v. Moitie, 452 U.S. 394 (1981) as authorizing

removal when a prior federal judgment was preclusive of a

subsequently filed state case on a question of federal law.

The Court reversed the Fifth Circuit, clarifying that “Moitie

did not create a preclusion exception to the rule, fundamental

under currently governing legislation, that a defendant cannot

remove on the basis of a federal defense.” /d., at 472. A

defense of claim preclusion “is not part of a plaintiff's

properly-pleaded statement of his or her claim.” /d., at 475.

Although an action completely preempted by federal law may

be removed under the “artful pleading” doctrine, the Court

distinguished complete preemption from claim preclusion.

“A case blocked by the claim: preclusive effect of a prior

federal judgment differs from the standard case governed by a

completely preemptive federal statute in this critical respect:

The prior federal judgment does not transform the plaintiff's

state-law claims into federal claims but rather extinguishes

them altogether.” /d., at 476. Thus, “claim preclusion by

reason of a prior federal judgment is a defensive plea that

provides no basis for removal under § 1441(b).” /d., at 478.

Following Rivet’s clarification of Moitie, if removal is

foreclosed under the “Moitie claim preclusion exception,”

then it should be equally clear that the All Writs Act provides

no more valid basis for removal when grounded on the

preclusive effect of a prior federal judgment. If a subsequent

state case is precluded by a prior federal judgment, then the

proper course for the party seeking to enforce the federal

judgment typically will be to bring a defensive plea of

preclusion in the state court. To permit removal under the All

Writs Act where the sole ground is that the state suit Is

precluded by a prior federal judgment would render

meaningless the rationale of Rivet.

2. Injunctive Relief Adequately Aids Federal

Jurisdiction and Protects and Effectuates

Federal Judgments.

Removal under the All Writs Act may also be regarded as

improper because, where authorized by existing law,

injunctive relief is an adequate, available remedy to aid

federal jurisdiction and/or to protect and effectuate federal

judgments.

The availability of injunctive relief depends on application

of the Anti-Injunction Act, 28 U.S.C. § 2283 (1994), and,

additionally, on a determination that no other statutory or

common law doctrinal principles proscribe interference with

state proceedings. As regards § 2283, the Court has ruled that

a federal court may not enjoin state proceedings unless one of

the express statutory exceptions contained within the Anti-

Injunction Act is satisfied, and further cautioned that the

exceptions “should not be enlarged by loose statutory

construction.” Atlantic Coast Line R. Co. v. Locomotive

Engineers, 398 U.S. 281, 287 (1970).

That a court may find injunctive relief proscribed in any

particular case (or, for that matter, that no preclusive effect

flows from a prior federal iudgment) is immaterial to the

question of whether resort may be made to the All Writs Act

to remove a case otherwise not removable under existing law.

The unavailability of injunctive relief is reflective not of any

gap in federal power, of course, but instead merely illustrates

the statutory and doctrinal limits on federal injunctive power

and preclusion law. It is precisely when a request for

injunctive relief is found to contravene the Anti-Injunction

Act (or it is found that a prior federal judgment lacks

preclusive effect) that resort to the All Writs Act to justify

removal is most obviously unwarranted. To hold otherwise is

to construe § 1651(a) as authorizing the issuance of “ad hoc

writs whenever compliance with statutory procedures appears

inconvenient or less appropriate.” Pennsylvania Bureau of

Correction, 474 U.S., at 43. Where no injunction is author-

ized and/or no preclusive effect is owed to a prior federal

judgment, removal under the All Writs Act amounts to an

end-run under § 2283 and federal preclusion law, which

is precisely the rationale- buttressing the well-established

rule against issuance of writs where alternative remedies at

law exist.

Amicus for Petitioners erroneously asserts that the defend-

ants in the present case had an equal choice between removal

of the state suit and an injunction against its continued

prosecution. First, the “equal choice” paradigm ignores that

the Court has counseled repeatedly that—absent unusual

circumstances—principles of “Our Federalism” and the

dictates of § 2283 provide a strong presumption against

interference with state judicial proceedings. See Younger v.

Harris, 401 U.S. 37, 41, 46, 53-54 (1971)(stating that

interference with state proceedings is appropriate only where

irreparable injury is “both great and immediate,” where the

state law is “flagrantly and patently violative of express

constitutional prohibitions,” or where there is a showing of

oe CNT i te

“bad faith, harassment, or . . . other unusual circumstances

that would call for equitable relief’); see also Atlantic Coast

Line, 398 U.S., at 287, 297 (observing that “[p]roceedings

in state courts should normally be allowed to continue

unimpaired by intervention of the lower federal courts, with

relief from error, if any, through the state appellate courts and

ultimately this Court”). Consequently, unless it is demon-

strated that the state court cannot or will not decide correctly

the preclusive effect of a prior federal judgment, the preferred

method for protecting and effectuating federal judgments

usually will be through reliance on a state court to make the

preclusion determination, with review of that decision

ultimately by the state’s highest court and this Court. See

Rivet, 522 U.S., at 478; see also Parsons Steel, Inc. v. First

Alabama Bank, 474 U.S. 518, 524 (1986)(“[cJhallenges to the

correctness of a state court’s determination as to the

conclusive effect of a federal judgment must be pursued by

way of appeal through the state-court system and certiorari

from this Court”).

Even if the state courts could not be relied on to determine

the preclusive effect of prior federal judgments—an assump-

tion the Court has never been willing to make—the avail-

ability of injunctive relief or removal rights depends not on

litigant preferences, but legislative prerogative. The choice is

Congress’s to make—and it has made its choice. Removal of

a civil action is proper only when the federal district court

would have had original jurisdiction over the suit had it been

initiated there, pursuant to 28 U.S.C. § 1441 (or, if one of the

other, more specific removal statutes allow removal even

when § 1441 does not). Injunctive relief may issue only if

one of the express exceptions to the Anti-Injunction Act is

satisfied, Atlantic Coast Line, 398 U.S., at 287. Allowing

removal of a civil action solely on the basis of the All Writs

Act contravenes existing statutory restrictions on the

jurisdiction of the lower federal courts, as well as the

existing statutory proscriptions against interference with

state proceedings Congress has promulgated in the Anti-

Injunction Act.'

YV. THE EXERCISE OF ANCILLARY JURIS-

DICTION WILL NOT VALIDATE REMOVAL

UNDER THE ALL WRITS ACT.

The “ancillary jurisdiction” argument advanced by peti-

tioners. also referred to as the “jurisdictional caulk” argument

by the Eleventh Circuit in its decision in this case, will not

validate a removal based solely on the All Writs Act.

According to petitioners, even if the All Writs Act does not

provide an independent source of original jurisdiction to

support the removal of a state case, a federal court’s ancillary

jurisdiction to protect and effectuate its judgments may

permit removal based solely on the All Writs Act. However,

the existence of ancillary jurisdiction will not support

removal under the All Writs Act because the argument

(i) ignores the predicate requirement that no writ may

issue when alternative, adequate remedies at law exist;

(ii) misinterprets this Court’s precedents; and, if adopted,

would (iii) invite judicial usurpation of the legislative pre-

rogative to define the scope of the privilege of removal and

(iv) interfere with the balance between federal-state relations

on which Congress has statutorily insisted.

'? Recognizing that it is Congress’s prerogative to define the right of

removal, along with the jurisdiction of the lower federal courts, makes

readily apparent the error of characterizing removal as “nothing more than

another form of writ authorized by 28 U.S.C. § 1651.” See Brief of

amicus curiae Product Liability Advisory Council, Inc. at 22. While it is

unassailably true that removal requires both injunctive power to enjoin

State proceedings after removal and certiorari power to bring up the

record, the statutory limits on federal subject matter jurisdiction and the

restrictions on interference in state proceedings embodied in § 2283

render any exact equation of removal with other writ powers inapposite.

——

SE er er

The ancillary jurisdiction argument ignores the well estab-

lished principle that no writ may issue unless its issuance

has been demonstrated to be “necessary or appropriate” and

where no other adequate remedy at law exists. See supra

Part IIMA). Invoking ancillary jurisdiction, petitioners

observe that federal judgments should be protected, but that

truism does little more than serve as a reminder that such

protection is to be sought, when appropriate, under existing

law. The courts are not free simply to invent new procedures

when they perceive the traditional means as inadequate.

Because state courts normally should be relied upon to

determine the preclusive effect of prior federal judgments

and, where authorized, a federal court may issue injunctive

relief, ancillary jurisdiction will not validate an All Writs

Act removal.

Second, petitioners and their amicus curiae are incorrect in

suggesting that this Court’s decisions in Kokkonen v.

Guardian Life Insurance Co., 511 U.S. 375 (1994), and

Peacock v. Thomas, 516 U.S. 349 (1996), demonstrate that

the exercise of a federal court’s ancillary jurisdiction is

sufficient to support removal under the All Writs Act. In

Kokkonen, the Court made clear that federal courts exercise

ancillary jurisdiction either “to permit disposition by a single

court of claims that are, in varying respects and degrees,

factually interdependent” or “to enable a court to function

successfully, that is, to manage its proceedings, vindicate its

authority, and effectuate its decrees.” /d., at 379-80. The

first occasion for ancillary jurisdiction was inapplicable in

Kokkonen, just as it is in the present case, because the

subsequent claims were brought in a separate action.

The latter basis for ancillary jurisdiction articulated by

Kokkonen, ancillary enforcement jurisdiction, also will not

support an All Writs Act removal. Ancillary enforcement

jurisdiction may be sufficient to support the issuance of

injunctive relief, in appropriate cases, but never removal

under the All Writs Act of an otherwise unremovable case. A

fundamental fallacy in this ancillary jurisdiction argument is

that it confuses a federal court’s power to issue injunctive

relief to aid its jurisdiction and protect its judgments with the

separate and distinct power to exercise original jurisdiction

over a removed state case.

In Peacock, the Court denied the attempted exercise of

jurisdiction over a suit to establish independent liability

against a third party. The decision recognized, in dicta, that

federal courts have power to enforce their judgments,

although in the particular context of that case the reference

was specifically and only to a court’s ancillary jurisdiction

over supplemental proceedings to collect and enforce its prior

judgments.'? Peacock, however, never gave its imprimatur to

removal of a case without an independent basis of subject

matter jurisdiction. Indeed, such a reading of Peacock is

contrary both to other language in the case '* and, more

significantly, to numerous decisions of the Court expressly

disapproving of the removal of civil actions that lack an

independent basis of subject matter jurisdiction. See, e.g.,

'* Peacock, 516 U.S., at 356, 358 (observing that “{w]e have reserved

the use of ancillary jurisdiction in subsequent proceedings for the exercise

of a federal court’s inherent power to enforce its judgments. . . . In

defining that power, we have approved the exercise of ancillary

jurisdiction over a broad range of supplementary proceedings involving

third parties to assist in the protection and enforcement of federal

judgments—including attachment, mandamus, garnishment, and the

prejudgment avoidance of fraudulent conveyances” and that “[{t]o protect

and aid the collection of a federal judgment, the Federal Rules of Civil

Procedure provide fast and effective mechanisms for execution”).

* See, ¢.g., id., at 355 (“The court must have jurisdiction over a case or

controversy before it may assert jurisdiction over ancillary claims. In a

subsequent lawsuit involving claims with no independent basis for

jurisdiction, a federal court lacks the threshold jurisdictional power that

exists when ancillary claims are asserted in the same proceeding as the

claims conferring federal jurisdiction.” (citations omitted).

Rivet, 522 U.S., at 478; Oklahoma Tax Comm'n, 489 U.S.,

at 840; Caterpillar, 482 U.S., at 393. In Rivet, for instance,

this Court’s remand of the Louisiana state case demonstrates

that even state court proceedings that appear to directly

threaten a prior federal judgment may not be removed in the

absence of an independent basis of subject matter jurisdiction.

Rivet, 522 U.S., at 478. Although the jurisdiction a federal

court possesses that is ancillary to its original jurisdiction in a

case may be sufficient to support the issuance of an

injunction, ancillary jurisdiction can never provide a basis

for removal under the All Writs Act of an otherwise

unremovable case.

Third, this reading of Kokkonen and Peacock to permit

removal under the All Writs Act of civil actions lacking an

independent basis of federal subject matter jurisdiction would

amount to judicial trumping of the legislative prerogative to

define the jurisdictional limits of the federal district courts.

Petitioners’ mistaken interpretation of Kokkonen and Peacock

is made evident by considering the class action context

referenced by amicus for petitioners. Under current law, a

state class action lacking an independent -basis of federal

subject matter jurisdiction may not be removed, even if the

subject matter of the suit relates to prior or parallel federal

proceedings. Congress is considering, but has not passed,

legislation that, inter alia, would allow removal of certain

state class action suits unremovable under existing law. Class

Action Fairness Act, H.R. 2341, 107th Cong. (2001); S. 1712,

107th Cong. (2001). To suggest, however, that a federal

court’s ancillary jurisdiction may be drawn upon to permit

removal on any occasion in which a subsequent state suit is

perceived to threaten a prior federal court judgment or its

jurisdiction before judgment ignores that it is for Congress to

determine the jurisdiction of the federal district courts.'> See

generally Martin H. Redish, Abstention, Separation of

Powers, and the Judicial Function, 94 Yale L. J. 71, 74 (1985)

(observing that where Congress has enacted express statutes

providing for federal jurisdiction, separation of powers would

be offended if legislative limitations on federal jurisdiction

are ignored). This loose interpretation of ancillary jurisdic-

tion may be desirable to some, but it is decidedly not what

Congress has authorized. As the Court repeatedly has made

clear, federal courts are courts of limited jurisdiction. They

may exercise only those powers conferred upon them by the

Constitution and by statute. Bender v. Williamsport Area

Sch. Dist., 475 U.S. 534, 541 (1986). Their powers are “not

to be expanded by judicial decree.” Kokkonen, 511 U.S.,

at 377. The presumption is against jurisdiction “and the

'* Even if enacted, such legislation still would only produce a fractional

enlargement of federal judicial power through its broadening of the

original jurisdiction of the district courts, as compared with the virtually

unfettered expansion of federal judicial power that adoption of petitioners’

reading of ancillary jurisdiction entails. H.R. 2341 applies only to certain

class action suits; by comparison, petitioners urge removal rights for all

state court litigation. Additionally, the proposed legislation is limited

expressly to interstate class actions (see id., at § 1(A)(7)(b) and “Purpose

and Summary”); by comparison, there is no comparable restraint on an

All Writs Act removal. Finally, and perhaps most significantly, where the

proposed legislation would expand federal original jurisdiction in specific

and definable ways (to make cognizable before the federal courts certain

State class action suits now lacking an independent basis of federal subject

matter jurisdiction), allowing All Writs Act removal expands federal

jurisdictional power almost without limit. Petitioners permit removal

merely on the tenuous assertion that subsequent state proceedings threaten

a federal court’s continuing jurisdiction before judgment. Endorsement of

such an inexact threshold to justify removal expands federal subject

matter jurisdiction not only beyond existing law, but well beyond

anything contemplated by the proposed class action legislation.

burden of establishing the contrary rests upon the party

asserting jurisdiction.” /d.'°

Finally, petitioners’ position endorses judicial interference

with the balance of federal-state relations Congress statutorily

'° In addition to the problem of subject matter jurisdiction, petitioners’

ancillary jurisdiction argument also ignores existing limitations on the

exercise of personal jurisdiction by the federal district courts. It is settled

that the failure of absent class members to opt out of (at least some) Rule

23(b)(3) actions is a necessary condition to bind one who otherv ise lacks

minimum contacts with the forum court that certified the class action (the

“Fl” court). Phillips Petroleum Co. v. Shutts, 472 U.S. 797 (1985). A

failure to opt out, however, is not a sufficient condition for territorial

jurisdiction if the minimum procedural due process requirements of Shutts

are not satisfied. Where nonresident class members lack minimum con-

tacts with the forum, their absolute right under existing law to collaterally

attack Fl’s procedural due process determinations are protected by

constitutional limits on personal jurisdiction. See, e.g., Richards v.

Jefferson County, 517 U.S. 793, 798 (1996)(observing that a person “*is

not bound by a judgment in personam in a litigation in which he is not

designated as a party or to which he has not been made a party by service

of process’” (quoting Hansberry v. Lee, 311 U.S. 32, 40 (1940)) and that

“{t}he law does not impose upon any person absolutely entitled to a

hearing the burden of voluntary intervention in a suit to which he is a

stranger” (quoting Chase National Bank v. Norwalk, 291 U.S. 431, 441

(1934)). Yet, by allowing removal of any state action said to interfere

with a federal court's judgment or its jurisdiction, a standard presumably

broad enough to include a nonresident class member's collateral attack in

a distant forum, petitioners read into the All Writs Act nationwide

territorial jurisdictional authority to bind all persons from challenging the

Fl judgment, without regard to their lack of minimum contacts with the

forum. Yet, as Professor Monaghan has shown, “the All Writs Act cannot

properly be read to side-step standard tests governing in personam

jurisdiction. . . .[None of the Court's prior precedents provide a basis] “for

believing that the Act should be construed as a general ‘emergency all

purpose’ nationwide long-arm statute used to relax the requirements of

Rule 4(k)(1)(A) whenever a court deems that result desirable.” Henry P.

Monaghan, Antisuit Injunctions and Preclusion Against Absent Non-

resident Class Members, 98 Colum. L. Rev. 1148, 1190-91 (1998).

has struck. Congress primarily determines the proper alloca-

tion of power between the federal and state courts. See

generally Herbert Wechsler, The Political Safeguards of

Federai.sm: The Role of the States in The Composition and

Selection of the National Government, 54 Colum. L. Rev.

543 (1954). Congress has set forth in the Anti-Injunction

Act, 28 U.S.C. § 2283, three narrow and limited exceptions to

the general rule of non-interference in state judicial

proceedings. If a federal injunction of state proceedings is

sought, the applicant must first demonstrate that the requested

relief is not barred by § 2283. Courts that have upheld

removal pursuant to the All Writs Act, -however, have

purported to do so by relying instead only on a showing that

“extraordinary circumstances” exist.'’ In this manner, the

Stringent standards limiting federal interventions into state

proceedings that are embodied in the Anti-Injunction Act and

that have been taken seriously by the Court for over two

centuries are replaced with an ill-defined measure that pays

no heed to the strict limits on non-interference set forth in

§ 2283. That removal of a civil action solely under the All

Writs Act might withstand a motion to remand even as a

request for injunctive relief properly would be denied under

the Anti-Injunction Act is an anomalous result patently

contrary to the accepted view that § 1651(a) should be read in

harmony with and subject to § 2283."

"” See, e.g., Yonkers Racing Corp. v. City of Yunkers, 858 F.2d 855

(CA2 1988), cert. denied, 489 U.S. 1077 (1989); Sable v. General Motors

Corp., W F.3d 171, 175 (CA6 1996); see generally Joan Steinman, The

Newest Frontier of Judicial Activism: Removal Under the All Writs Act,

80 B.U. L. Rev. 773, 794-814 (2000)(discussing cases approving removal

based solely on the All Writs Act).

' See, e.g., Atlantic Coast Line, 398 U.S., at 295 (finding close

similarities between the “in aid of jurisdiction” clause of §1651 and the

“to protect or effectuate judgments” exception in the Anti-Injunction Act).

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

the Court reiterated its earlier holding that the initial pre-

sumption under § 2283 is that “‘any doubts as to the propriety

of a federal injunction against state court proceedings should

be resolved in favor of permitting the state courts to proceed

in an orderly fashion to finally determine the controversy.””

Id., at 630 (quoting Atlantic Coast Line, 398 U.S., at 297).

Relaxing this strict standard, the Court cautioned, would

result in “whittl[ing] away by judicial improvisation” the

prohibitions against intervention in state proceedings. /d.,

at 631 (quoting Amalgamated Clothing Workers v. Richman

Bros. Co., 348 U.S. 511, 514 (1955)).

Upholding removal of an otherwise unremovable case

based solely on the All Writs Act further exacerbates the

danger of “judicial improvisation” against which the Court in

Vendo cautioned. Removal under these circumstances

amounts to judicial usurpation of the legislative prerogative to

define the scope of the privilege of removal and judicial

interference with the balance between state and federal rights

on which Congress in § 2283 has insisted.

CONCLUSION

- Texas respectfully urges the Court to affirm the decision of

the Eleventh Circuit Court of Appeals.

JOHN CORNYN

Attorney General of Texas

P.O. Box 12548

Austin, Texas 78711-2548

(512) 463-2191

* Counsel of Record

Respectfully submitted,

LONNY S. HOFFMAN *

UNIV. OF HOUSTON LAW CENTER

Teaching Unit II, Room 128

Houston, Texas 77204-6060

(713) 743-5206

GREGORY S. COLEMAN

WEIL GOTSHAL & MANGES LLP

8911 Capital of Texas Hwy

Suite 4140

Austin, Texas 78759

(512) 349-1937

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