Wednesday, August 20, 2008

N.D. Fla. Notes Split Re Removal from State Administrative Agencies Under § 1441

Per Johnson v. Albertson's LLC, 2008 WL 3286988 (N.D. Fla. Aug 06, 2008):

The Eleventh Circuit has yet to decide whether cases may be removed from state administrative agencies pursuant to § 1441, and if so, under what circumstances. See Bellsouth Telecomm., Inc. v. Vartec Telecom, Inc., 185 F.Supp.2d 1280, 1281 (N.D.Fla.2002) (noting that "[t]he issue of removal of an administrative proceeding is one of first impression in this circuit."). The decisions from other circuits are split on how to approach the issue. Some circuits have applied a "functional" test, allowing removal in cases in which a state administrative agency essentially functions as a court. See Floeter v. C.W. Transport, Inc., 597 F.2d 1100, 1101-02 (7th Cir.1979); see also Volkswagen de Puerto Rico, Inc. v. Puerto Rico Labor Relations Bd., 454 F.2d 38, 44 (1st Cir.1966) (dictum). Other courts have rejected the "functional" approach as contrary to the plain language of the removal statute. Oregon Bureau of Labor & Indus. ex rel. Richardson v. U.S. West Communications, Inc., 288 F.3d 414, 419 (9th Cir.2002); Sun Buick, Inc. v. Saab Cars, USA, Inc., 26 F.3d 1259, 1263 (3rd Cir.1994); County of Nassau v. Cost of Living Council, 499 F.2d 1340 (Temp.Emer.Ct.App.1974) (disapproving the functional test and stating that § 1441(a) contemplates removal from other court proceedings rather than the "interruption of administrative proceedings").


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