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A New Litigation Strategy
For State And Local Governments:
Removal to Federal Courts

With its decisions this past year in International College of Surgeons and Schacht, the Supreme Court has taken a further step to expand federal court jurisdiction. These decisions thus require a change in thought regarding the relationship between federal and state law claims in an action brought against a state or local government.

In particular, because of the success of state and local governments in these cases, both plaintiffs and state and local governments alike effectively have been granted greater access to federal courts. Plaintiffs now can initially file in federal court when their lawsuits raise federal claims and their state law claims - almost whatever their nature and even if they are as mundane as the land-use challenge in International College of Surgeons - arise from the same set of facts. That is because in International College of Surgeons the premise of the decision that Chicago could remove was that the College could have brought its land-use challenge in federal court in the first place (so long as it was joined with the federal claims). Likewise, the premise in Schacht was that the federal court would have had original jurisdiction over the suit if it originally had been filed there. As for state and local governments named as defendants, these decisions establish that they may remove such actions to federal court if plaintiffs have opted for state court instead. Simply put, the Seventh Circuit's more restrictive view of federal jurisdiction no longer holds.

Moreover, because parties no longer are so boxed into either federal or state court where a state or local government is involved, they must adapt their litigation strategies. Now when such cases are filed, plaintiffs must carefully determine which claims they want to plead. For example, if violations of federal law are pleaded along with violations of state law against a governmental entity, the plaintiff must decide whether it wants to file in federal court or state court. And if the plaintiff wishes to file in state court, it may want to forgo pleading federal claims to preserve its state court forum. The same is true for litigants seeking to bring suit against state officers in their individual and official capacities. If such a plaintiff wants to retain a state court forum, it must think twice about including a federal claim in its suit.

These initial strategy decisions will influence the parties' later decisions in litigating the suit. The parties' decisions on discovery, motions, and even settlement will be affected because they, too, will vary according to the forum where the case is being heard.

The Supreme Court's decisions also carry broader implications for all litigants in federal court. In International College of Surgeons, for example, the Court made clear that the supplemental jurisdiction statute is to be given effect - strong effect - as set forth in the plain terms of the statute. In Schacht as well, the Court adopted a more expansive view of federal court jurisdiction based upon the applicable jurisdictional statute.

These decisions reflect a general trend in the Court's jurisprudence towards interpreting jurisdictional statutes as written without inference of exceptions.²⁸ The message to be gleaned from this trend is that, if federal court jurisdiction is to be restricted, the restrictions must come from Congress and not from the courts. For litigants, that trend - with the addition of the decisions in International College of Surgeons and Schacht - translates into the immediate result of increased federal court litigation of what used to be considered "state court" claims.

Endnotes

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¹City of Chicago v. International College of Surgeons, 118 S. Ct. 523 (1997).

²Schacht v. Wisconsin Dep't of Corrections, No. 97-461, 1998 U.S. LEXIS 4177 (U.S. June 22, 1998).

³See id. at *5-*6.

⁴See id. at *5-*6, *16.

⁵International College of Surgeons, 118 S. Ct. at 530.

⁶See id.

⁷28 U.S.C. § 1367(a).

⁸United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).

⁹International College of Surgeons, 118 S. Ct. at 527, 529-30.

¹⁰See id. at 529-30.

¹¹See id. at 530, 534.

¹²See id. at 528, 530-31.

¹³See id. at 530-31.

¹⁴Id. at 530.

¹⁵Id.

¹⁶Id. at 531.

¹⁷Id. at 534, 537, 539-40 (Ginsburg, J., dissenting).

¹⁸Chicago, R.I. & P.R. Co. v. Stude, 346 U.S. 574 (1954).

¹⁹Horton v. Liberty Mut. Ins. Co., 367 U.S. 348 (1961).

²⁰International College of Surgeons, 118 S. Ct. at 537-38 (Ginsburg, J., dissenting).

²¹See id. at 538 (Ginsburg, J., dissenting).

²²See Schacht, 1998 U.S. LEXIS 4177, at *6, *9-*11, *16.

²³See id. at *18-*19.

²⁴Id. at *10-*11.

²⁵Id. at *11 (quoting Int'l College of Surgeons, 118 S. Ct. at 530).

²⁶See id. at *9.

²⁷See id. at *22 (Kennedy, J., concurring).

²⁸See, e.g., Quackenbush v. Allstate Ins. Co., 116 S. Ct. 1712 (1996); New Orleans Pub. Serv. Inc. v. Council of City of New Orleans, 491 U.S. 350 (1989).