It is neither compatible with our judicial responsibility of assuring reasoned, consistent, and effective application of the statutes of the United States, nor conducive to a genuine effectuation of congressional intent, to give legislative force to each snippet of analysis, and even every case citation, in committee reports that are increasingly unreliable evidence of what the voting Members of Congress actually had in mind.
In February 2005, the 109th Congress succeeded where several predecessors had failed–it enacted the Class Action Fairness Act. Congress began considering enacting a class action fairness act almost eight years earlier. From that point, Congress continued to consider different forms of the act in each session until the 109th session; in each instance, however, despite favorable reports from the Senate Judiciary Committee, the bills either failed to obtain cloture or Congress took no further action. Nonetheless, on February 3, 2005, the Senate Judiciary Committee reported favorably on the Class Action Fairness Act of 2005 (“CAFA”), and CAFA took effect on February 18, 2005.
Congress enacted CAFA to ensure fairer outcomes for class action litigants and to enable federal court adjudication of matters of national importance. Furthermore, the Senate Judiciary Committee observed that plaintiffs’ lawyers were manipulating the federal jurisdiction system to ensure that their clients’ cases remained in favorable state venues. To resolve the abuses of the class action system and prevent plaintiffs’ lawyers from influencing federal jurisdiction, CAFA substantially altered federal diversity jurisdiction as it pertains to interstate class actions. For example, Congress was concerned that plaintiffs’ lawyers could avoid federal court jurisdiction by violating the “complete diversity” rule. In response, CAFA explicitly permits a federal court to exercise jurisdiction over an interstate class action in which any member of the class of at least 100 is a citizen of a different state from any defendant. Additionally, Congress was concerned with plaintiffs’ lawyers’ efforts to avoid a federal forum by exploiting common-law developments pertaining to the amount in controversy. Congress responded to this concern by explicitly permitting federal courts to aggregate each class member’s claim to satisfy the five million dollar minimum requirement.
Congress also adopted and revised provisions of existing removal statutes to establish a class action removal scheme. Despite explicitly revising existing jurisdictional and removal statutes, Congress failed to address the issue of which party to the litigation bears the burden of proving that federal jurisdiction exists. Under the common law of removal, the party asserting federal jurisdiction bears this burden; nevertheless, several federal district courts determined that CAFA’s legislative history abrogated the common-law rule. The district courts relied, in part, on the Committee’s declaration that CAFA intended to transfer the burden to plaintiffs to demonstrate remand is appropriate. As such, these district courts imposed the burden of disproving federal jurisdiction on the complaining class.
Thereafter, several circuit courts of appeals and district judges sitting in later sessions admonished reliance on ambiguous legislative history in the face of established removal principles. The criticizing courts subsequently determined that CAFA’s legislative history fails to alter the traditional burden of proof on remand and, therefore, required the removing party to establish that federal jurisdiction exists.
The courts that retain the traditional burden, however, did not address why federal courts should unquestioningly apply traditional removal principles to newly enacted removal statutes. Federal courts proclaim that traditional removal principles apply unless revised through valid and explicit legislation. The established principles, however, were developed under § 1441 (the “General Removal Statute”) to give effect to that statute’s intended purposes. Since the development of the principles, Congress has enacted several other removal processes and federal courts have abandoned traditional removal principles, despite the absence of express statutory language, to give effect to the policies underlying the new removal statutes.
Federal courts have disregarded their duty to interpret statutory language for subsequently enacted congressional removal statutes. In several instances, the nuanced language of new removal statutes varies in small, but significant, manners from the language of the General Removal Statute. Nevertheless, federal courts have presumed that the common law of removal continues to apply even though Congress, and not the judiciary, has the privilege of determining the jurisdictional framework of the inferior federal courts. The recent ambiguity encountered in resolving the issue of CAFA’s burden of proof on remand highlights the flaw in the foundations of removal common law–the traditional principles should not presumptively apply to the various removal schemes.
Continued ambiguity regarding the applicability of traditional removal principles will hinder Congress’s ability to legislate effectively. Congress and the federal judiciary will be unable to develop efficient removal jurisdiction, and the federal judiciary may continue to misinterpret statutes that Congress intends to depart from long-standing removal principles. In addition, as exemplified in the divergent treatment of CAFA, circuit splits might develop that would create favorable venues; in certain circuits, plaintiffs will be forced into federal court, whereas in other circuits, defendants will be trapped in state court.
Therefore, when Congress enacts a new removal statute, federal courts should determine whether the policies that traditional removal principles serve are commensurate with the policies Congress intends the new process to serve. If the policies are congruent, then courts may appropriately apply established removal principles; if the policies are incompatible, however, then the courts should consider whether the application of each principle corresponds to Congress’s intended policies. In no instance should federal courts slavishly adhere to traditional removal principles–consistency and uniformity are not guiding principles of removal. Nonetheless, as this Comment argues, CAFA does not alter the traditional principle that requires the removing party to establish federal jurisdiction, and, therefore, it is appropriate for federal courts to continue to impose the burden of proof on the party asserting jurisdiction under CAFA.
This Comment first identifies in Part II.A how the enactment of CAFA altered the frameworks of federal diversity and removal jurisdiction. Part II.B.1 reviews the development of traditional removal principles and how these principles have affected federal judiciary treatment of the burden of proof on remand under CAFA. Part II.B.2 explores how the courts have applied long-standing removal principles to other removal statutes. Part II.B.3 considers how courts have treated other provisions of CAFA in light of existing removal principles.
Thereafter, Part III.A concludes that CAFA did not shift the burden of proof on remand because CAFA’s text selectively altered removal principles, because policies of limited federal jurisdiction and deference to state courts warrant removing parties continuing to bear the burden, and because CAFA’s legislative history is insufficient authority to alter the traditional burden. Part III.B then contends that unquestioning application of traditional removal principles to removal statutes is inappropriate where statutory language differs across removal statutes, where courts have failed to consistently apply the principles universally, and where policy implications reveal the importance of deliberate consideration of continued adherence to removal common law.