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DR. ALEX MELVIN WADE, JR.
30 Rayford Road
Spring, Texas
Fax: (940)440-8332
Gladden Adamick
Montgomery County District Clerk
O. Box 2985
Conroe, TX 77305
Ref: CAUSE NO.: 17-05-05876; Wade Dominion At Woodlands
Dear Adamick:
ched hereto under this cover letter please fmd Plaintiff's
tion to s State Texas Motion for for
mistakenly left the recent submission in the above entitled cause
action. The attachment should have been part
s requested the filing be made part
the other rs in this matter
achment Opposition along with other documents that are
By copy tter, I have notified all contacts n electronically
Thank you very kindly for tention given his matter
Dr. Alex Melvin Wade, Jr.
Paralegal Specialist
Marc Sheiness,
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Dr. Alex Melvin Wade, .lr.
PARALEGAL SPECIALIST
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AMERICAN CONSULTANT 50mm gigging uf fsxas
330 Rayford Road, Suite 731
Spring, Texas 77386-1980 ‘ NOV 1 5 2017
(713)409-1283 _ ,
(940)440-8332 £31“ J. Bradley. crerk or court
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Americanconsultant2000@vahoo.com
1N THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ALEX MELVIN WADE, .IR.,
Plaintiff
Vs. ‘
Cause No:4—17-cv-03260
TEXAS BOARD OF PARDONS &
PAROLES, ET Al.,
Defendants
PLAINTIFF’S AMENDED OBIECTION LACK OFJURISDITION AND REMOVAL FROM STATE COURT
MAY ITPLEASE THE COURT:
FACTS OF THE CASE
PlaintiffAlex Melvin Wadé, Jr.,on August 24"", 2017,’ filed a Petition forWrit of Habeas Corpus in
the 185’” DistrictCourt, Harris County, Texas attaching the constitutionality of BPP-PQL 145.259 and
BPP—POL 145.262, hand delivered to the Office The Honorable Chris Daniel, 1201 Franklin Street,
Houston, Texas 3dr Floor. See attached Petition for Writ of Habeas Corpus filed08/24/17 consist of 23
pages)
Plaintiff’s ‘Petitionfor Writ of Habeas Corpus was not presented and processed in accordance
with VACCP, 11.07, Plaintiffwas leftwith no other alternative that to seek relief inthe State District
Court in filingof Plaintiff’s Original Petition for Restraining Order. (Filed in the previous filings in this
Court a copy appear)
'u
u
Plaintiff filedfor Temporary Restraining Order Preliminary injunction, that appears Defendant
has not presented to the Court as part of the removal and/or motion to dismiss. Plaintiff sought
injunctive relief to cause Defendant desist and decease implementing "SPECIAL CONDITION,” (Exhibit
”A””A””A) upon Plaintiffwithout according Plaintiff due process of law, not limited to the essential
element of ”notice." Plaintiff was set a hearing date after three (3) none appearances by Defendants
before the 189‘" District Court, Harris County, Texas. of the Original
Plaintiff filing Petition for Restraining
Order/Preliminary Injunction attack a Texas State Policy put into place by Texas Board of Pardons and
Paroles. (See Plaintiff Exhibit C & D) Plaintiff attack upon State’s policy and procedures are not issues
that this Court would have original jurisdiction. Plaintiff’s Exhibit ”B””B”"B” isa State Policy just as
Exhibit ”A"”A”"A”, where the State Court contended are unconstitutional and denies
in is by Plaintiff
Plaintiffdue process of law.
LEGAL ARGUMENT WITH AUTHORITIES IN SUPPORT
Plaintiffstrenuously objection to removal to the federal court, because Defendant have not
shown nor can Defendant show Federal Court the claims raised in Plaintiff’s OriginalPetition for
Restraining Order applicable to original jurisdiction in federal court.
Generally, there are two ways of removing a case from a state to a federal court: first,by
Supreme Court review after the state court action has become final; and second, by transfer from a
state court to a federal district court for original adjudication} The Judiciary Act of 1789 created this
latter path to removal, but premised it upon the satisfaction of certain requirements? The act granted
1
To avoid the flow of this memorandum doctrine, Plaintiffhas footnoted authorities relevant to the argument
presented.
zJudiciary Act of 1789, ch. 20, § 12, 1 Stat. 73, 79—80.The statute states:That ifa suit becommenced in any state
court against an alien, or bv a citizen of the state
in which the suit isbrought against a citizen ofanother state,and .
the matter in dispute exceeds ...five hundred dollars,. ..the defendant shall ...file a petition forthe removal of
the cause for trial be held
into the next circuit court, to in the districtwhere the suitis pending .... And ifin any
action commenced in a state court,the titleof land be concerned, and the parties are citizens ofthe same state,
and the matter in dispute exceeds .. .five hundred dollars,. .. the party REMOVAL TO FEDERAL COURTS 1835
claiming under the grant firstmentioned may then, on motion, remove the cause for trial. .. .Id. (emphasis
added).
removal to cases "commenced in any state court" with more than $500 in dispute to three types of
parties: (1) adefendant who was an alien; (2) a citizen of the state inwhich the suit isbrought against a
citizen of another state; and (3) either party, where titleto land was in dispute under conflicting grants
of land of different states and the non-removing party claimed it under a grant of the forum state?
The Judiciary Act of 1789 did not grant removal to those cases arising under the laws of the
United States—what we know today as federal question removal.“ Instead, Congress contented itself
between 1789 and 1875 to provide for a series of "relatively specific removal statutes . .. designed to
"5
give added protection to federal officers or federal law. Almost a century later, inthe Judiciary Act of
1875f Congress enormously expanded the federal courts’ removal and original jurisdiction.’ While the
Act allowed removal of an action by either party and provided for federal question removal, itstill
required that the original "suit of a civilnature" be "pending or hereafter brought in any State court.“
The Supreme Court broadly construed the new removal statute’s grant of federal question removal?
leading to the “classes of removable cases coverIing] substantially the entire gamut authorized by Article
"1°
m
3
Id.
A
See Michael G. Collins,The Unhappy History of Federal Question Removal, 71 IOWA L. REV. 717, 720 (1986)
(noting that "[e]xcept for the short-lived JudiciaryAct of 1801, Congress did not vest general federal question
jurisdictionin the lower federal courts until1875"). Collins attributed thischange inremoval to itspart in the
larger substantive law and "jurisdictionalrevolution" that was an outgrowth of theCivilWar and Reconstruction.
ld.
5
Id.The current federal officerremoval statute isfound at 28 U.S.C. § 1442 (2006).
6
Act of Mar. 3, 1875, ch. 137, §2, 18 Stat.470, 470—71.
7
See Collins,supra note 19, at 722 (explaining that "[llower federal court jurisdictionprobably reached itshigh-
water mark when Congress passed the 1875 Judiciary Act").
8
Act of Mar. 3, 1875, ch. 137, § 2, 18 Stat. 470, 470—71 (emphasis added). The statute provides: That any suit of a
civil nature, at law or in equity, now pending or hereafter brought in any State court where the matter in dispute
exceeds, exclusive of costs, thesum or value of five hundred dollars, and arising under the Constitution or laws of
the United States, or treaties. ..or in which there shallbe a controversy between citizensof different States,.. .
either party may remove said suit into the circuit court of the United States for the proper district.Id.(emphasis
added).
9
See Collins,supra note 19, at 724—30 (discussing the Supreme Court's expansive interpretation of the removal
statute enacted in 1875).
1°
BATOR ET AL, supra note 2, at 1767
~»
Plaintiffcontends the 1441 will not extend to allowing Defendant jurisdiction in the United
States District Court for the Southern District of Texas, Houston. This matter isnot ripe for federal court
intervention.
The current removal statute, 28 U.s.c. § 1441,“ is based on the Judiciary Act of 1887, which
amended the Judiciary Act of 1875.“ The Judiciary Act of 1887 substantially curtailed removal in
response to the swelling of federal court dockets, at both the trialand appellate levels, following the
Judiciary Act of 1875.13 For one thing, Congress restricted the privilege of removal to defendants only,
citing to the fact that plaintiffsshould have to abide by their choice of forum.“ The removal provision
also explicitly referenced the preceqmg provision granting original jurisdiction to federal courts, thus for
the firsttime stating the well—known modern requirement that a federal court must have original
jurisdiction of a removed action.“ Citing to this requirement, the Supreme Court further restricted the
defendant’s right of removal infederal question cases only to those cases which the plaintiff could have
u
See 28 U.S.C. § 1441(a)-(b) (2006) (providing removal based upon diversity between parties or upon the
presence of a federal question). The statute'sfulltext states: (a) Except as otherwise expressly provided by Act of
Congress, any action
civil brought in a State court of which the district courts of the United States have original
jurisdiction,may be removed by the defendant ... .(b) Any civil actionof which the district courts have original
jurisdictionfounded on a claim or right arising under the Constitution, treaties or laws of the United Statesshall be
removable without regard to the citizenship or residence of the parties ....Id. (emphasis added).
n
See Act of Mar. 3,1887, ch. 373, § 2, 24 Stat. 552,553. The statute provides: That any suit of a civilnature, ...
arisingunder the Constitution or laws of the United States, .. .of which the circuit courts of the United States are
given original jurisdictionby the preceding section, which may now be pending .. .in any State court, may be
removed by the defendant .. .;and when in any suit mentioned in this section there shall be a controversy which
is wholly between citizensof different States,.. .then either one or more of the defendants ... may remove said
suit into the circuitcoutt of the United States for the proper district.Id.(emphasis added). The statute was
amended by Act of Aug. 13, 1888, ch. 866, § 1, 25 Stat. 433, 433—36.
13
See Collins,supra note 19, at 738—42 (chronicling the legislative history of the Judicial Act of 1887).
Interestingly,
there were "at least a half a dozen proposals to amend the 1875 Act within a short time after itspassage." Id.at
738 n.109. It isbelieved that the swelling of courts’ dockets post—Reconstruction was due in large part to the
increased removal of diversity cases as a result of a boom in interstate commercial activity,although federal
question cases can be blamed as well for part of the burden. Id.at744
u "a
See id. at 743 (observing that consistent string of House Reports suggests that the purpose of the 1887
amendments of the 1875 Act’s removal provision was simply to eliminate the possibilityof plaintiffremoval"
because it was thought proper to require the plaintiff to abide by his selection of a forum).
15
BATOR ET AL., supra note 16, at 1758.
filed originally in federal court, a precursor to the well-pleaded complaint rule.” In a later decision, the
Supreme Court, reflecting upon the successive changes to the removal statute wrought by the Judiciary
Acts of 1875 and 1887, stated: "[T]he language of the Act of 1887 evidence[s] the Congressional
purpose to restrict the jurisdiction of the federal courts on removal," and "the policy of the successive
acts of Congress regulating the jurisdiction of federal courts isone calling for the strict construction of
such legislation.” Thus, by the time the Supreme Court decided Upshur County a mere three years
after passage of the Judiciary Act of 1887, itmust have been aware of Congress’s intent to restrict the
availability ofremoval, not to expand itto litigants in proceedings before state boards or commissions.
Justice Cardozo once said, "[W]e do not pause to consider whether a statute differently
convened and framed would yield results more consonant with fairness and reason. We take the
statute as we find it."18 Those courts adopting the functional test have not heeded Justice Cardozo’s
maxim, but instead impermissibly have reached far beyond the plain language of the removal statute, as
the question isnot whether Congress should allow for removal from state agencies, but rather whether
Congress explicitly has provided $0.19 It isaxiomatic that statutory interpretation begins with the text of
the statute, and ifthe language isplain and unambiguous, then the language controls.” Traditionally, an
agency is not a court; it isan executive or legislativelycreated tribunal that regulates a certain subject
matter.“ Because an agency is not a court vested with judicial power, although itmay conduct court-like
adjudications, the plain language of the removal statute is unambiguous, and therefore controlling.
16
See Collins,supra note 19, at 718 ("Linking defendant removal to the well-pleaded complaint rule began with an
early Supreme Court construction of the 1887 ancestor of the modern removal statute In Tennessee v. Union &
Planters' Bank.").
17
Shamrock Oil& Gas Corp. v. Sheets, 313 U.$. 100, 108 (1941).
1‘
Anderson v. Wilson, 289 u.s. 20, 27 (1933).
19
See supra notes 184-87 and accompanying text (noting that the functional test has been criticizedas
transforming the removal inquiry).
2°
See Felix Frankfurter,Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 535 (1947) ("Though
we may not end with the words inconstruing a disputed statute, one certainly begins there.").
21
See COOPER, supra note 9, at 96 (defining administrative agency to include "allthose governmental organs
(other than the legislature'or the courts) which possess authority to make rules affecting private rights or to
adjudicate contested cases").
Section 1441(3) should not apply to state agencies not vested with judicial power. Additionally, courts
have pointed out that when Congress has seen fit to allow removal from tribunals that are not
considered traditional “state courts" it has done so, and when ithas chosen not to grant status to non-
federal trialcourts, federal courts have held that those courts are not "state courts)“: Thus, because
removal jurisdiction is a statutory creation, until Congress decides to expand federal removal jurisdiction
to encompass actions filed in state agencies, the federal courts may not exercise jurisdiction over such
actions. There are also other reasons why a plain language interpretation of the phrase "state court" is
required in the removal context. Adherence to the plain language of "state court," instead of resorting
to the functional test, comports with the policy and purpose behind Congress’s provision of removal
jurisdiction. As noted previously, the right of removal ispurely statutory, and as such, is entirely subject
to legislative control.23 While the interpretation of the removal statute isa matter of federal, not state,
law, the Supreme Court has directed lower courts to construe the grant of removal strictly.“ Cited
earlier, Justice Stone's opinion in Shamrock Oil & Gas Corp. v. Sheets” advanced the rule for strict
construction of the removal statute." The Act of 1887’s substantial contraction of removal that was
provided by the Judiciary Act of 1875, coupled with the "policy of the successive acts of Congress
regulating the jurisdiction of federal courts," in his opinion, indicated a desire by Congress for strict
22
See Becenti v. Vigil,902 F.2d 777, 780 (10th Cir. 1990) (discussing inapplicabilityof removal to tribalcourt).
Compare 28 U.S.C. § 1451 (2006) (defining "State court" to include the Superior Court of the District of Columbia),
and 48 U.S.C. § 864 (2006) (authorizing removal of actions commenced in the DistrictCourt for the Districtof
Puerto Rico), with Territory of Guam v. Landgraf, 594 F.2d 201, 202 (9th Cir.1979) (refusing to read congressional
references in 28 U.S.C. § 1443(1) to an action in "state" court as including an action in the Territory of Guam
because there was no explicit reference in the statute including the Territory of Guam as a "state court").
23
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 349 (1816) (explaining that the power of removal "isnot to be
found in express terms in any part of the constitution; be given,
if it only given by implication" and "[t]he time,
it is
the process, and the manner, must be subject to itsabsolute WRIGHT ET AL,
legislative control"); see also supra
note 3, § 3721 (discussing removal’s dependence on congressional authority).
“See id.(holding that the removal statute did not allow a plaintiff, who_was sued by the originaldefendant in a
gsounterclaim, toremove the action to federal district court).
Id.
26
Id.
construction." Both the Supreme Court and lower federal courts have reaffirmed Justice Stone’s strict
construction philosophy, and some courts have required that alldoubts on the propriety of removal be
resolved in favor of remand.” Strict construction of removal, in turn, respects our nation’s idea of
federalism. The Supreme Court has long cited to the reserved power of the states, under the Tenth
i
Amendment", to providé for the determination of controversies in their courts, which may be restricted
only by acts of Congress in conformity with Article of the Constitution.“
Ill "Due regard for the rightful
independence of statei governments, which should actuate federal courts, requires that they
scrupulously confine the;ir‘own jurisdiction to the precise limits which the statute has defined.“
Furthermore, the federal courts are courts of limited jurisdiction, and depriving a state court of an
action properly brought within itsjurisdiction, interferes with states’ rights to resolve controversies
pursuant to their own determinations, thereby exacerbating the federalism concerns. Both statutory
and federaIism reasons, therefore, require plain language to control the interpretation of "state court."
Additionally, in the Judicial Code, there are examples of the Supreme Court interpreting jurisdictional
statutes according to their plain language, and in many of the situations, the stakes are higher for the
loser than for defendants seeking removal of initialstate agency proceedings to federal court“. The
27
ld.;The accompanying text (discussing Congress's restrictions on removal in 1887).
28
See WRIGHT ET AL., supra note 3, § 3721 ("Consistent with the philosophy expressed by Justice Stone. there is
ample case support . .. at alllevels of the federal courts . .. for the proposition that removal statutes will be
construed,"
strictly and "[slome federal courts go further . ..and say that alldoubts . .. should be resolved" in
favor of remand).
29
CONST. amend.
-
U.s. x.
3°
See Healy v. Ratta, 292 U.S. 263, 270 (1934) (explaining basis for strictconstruction of removal statute as it
Elenains to amount—in-controversy requirement of removal based upon diversity—of-citizenship).
Id
32
A further illustrationof this point is the Supreme Court's refusalto find a Seventh Amendment defect in the
refusal ofCongress to permit juries to be seated in non-Article courts.
Ill See Falkoff, supra note 194, at 879—80
(discussing formalist approach of Supreme Court in itstreatment of the Seventh Amendment in non-Article Ill
courts in support of contention that non-Article courts, as creatures of Congress
Ill and subject to elected-branch
control should not be answerable to judiciallydeveloped doctrines likesovereign immunity). Professor Falkoff
argues that "sovereign immunity isa concept foreign to the administrative agency context, since legislative courts
are more properly understood to be regulatory bodies rather than courts of law." Id. at 876. Some would argue
that haling a state into a legislativecourt should make no constitutional difference in invoking the sovereign
immunity doctrine, but Falkoff argues that "there is a clear conceptual difference between legislative and judicial
7
Supreme Court previously has been tasked with interpreting the phrase "state court" in the context of
28 U.S.C. § 173833—the implementing statute of the Full Faith and Credit Clausefi—which requires
federal courts to give full faithand credit to the "judicial proceedings of any court of any .. .
State."35 ln
University of Tennessee v. Elliottfsthe Supreme Court stated that § 1738 "is not applicable to the
37
unreviewed state administrative factfinding" of a state administrative law judge. The Supreme Court
similarly found § 1738 inapplicable to a judicially unreviewed decision of an arbitrator in light of the
38
plain language of the statute, which refers to "judicial proceedings" of state courts. Nearly every
lower court to examine the issue has held that § 1738 isinapplicable to unreviewed state administrative
decisions because of the statute’s specific reference to “judicial proceedings" of "state courts."35 More
recently, the Supreme Court used plain language to interpret the supplemental jurisdiction statute.“
The Court allowed a federal district court to exercise supplemental jurisdiction over pendent state
courts,even ifthe distinction between them has been a problem of a ’highly theoretical nature’ and ’productive of
much confusion and controversy!" Id.at 879. For a further discussion ofwhy the Seventh Amendment right to a
jury trialshould extend to administrative adjudications of a "statutorilycreated cause of action on behalf of or
&
against a private individual or entity," see Redish LaFave, supra note 194, at 432—34.
33
See 28 U.S.C. § 1738 (2006) (implementing the Full Faith and Credit Clause)
34
See U.S. CONST. art. IV, § 1 (requiring that "[f]u|l Faith and Credit shall be given
in each State to the public Acts,
Records, and judicial Proceedings of every other State").
35
28 U.S.C. § 1738 (2006) (emphasis added). The act provides: The records and judicialproceedings of any court of
any such State ... shallbe proved or admitted inother courts within the United States . .
.. Such Acts, records and
judicialproceedings .. .shall have the same and credit
full faith in every court within the United States .. ..ld.
(emphasis added).
36
See Univ. of Tenn. v. 478
Elliott, U.S. 788, 796—99 (1986) (holding that unreviewed state agency proceedings
should be given preclusive effect in federal courts, except for when Congress, as in the case of Tltle VII,has
provided otherwise); see also BATOR ET AL.,supra note 16, at 1527—28 (discussing effect of res judicataon state
courtjudgments).
37
Univ. of Tenn., 478 U.S. at 794 (emphasis added). The Court, however, also held that the federal common law
rule of preclusion applied when a state agency "acts in a judicialcapacity" and "resolves disputed issues of fact
properly before itwhich the parties have had an opportunity to litigate." Id.at 799. While this holding would
appear to lend support to those courts adopting the functional test, there is no federal common law governing
removal; removal is solely governed by statute. See 28 U.S.C. §§ 1441—1452 (2006) (enumerating the different
ways removal can be accomplished
33
McDonald v. CityofW. Branch, 466 U.S. 284, 288 (1984).
39
See Robert P. Morris, How Many Bites are Enough? The Supreme Court’s Decision inUniversity of Tennessee v.
55 TENN.
Elliott, L.REV. 205, 226 n.150 (1988) (citing cases).
4"
28 U.S.C.§ 1367 (2006). The statute provides: In any action
civil of which the districtcourts have original
jurisdiction,the districtcourts shall have supplemental jurisdictionover allother claims that are so related to
claims in the action within such original jurisdictionthat they form part of the same case or controversy under
Article of the United States Constitution.
Ill Id.§ 1367(3) (emphasis added).
8
claims seeking deferential review of administrative decisions in federal court, despite the fact that the
districtcourt would not have original jurisdiction over the state claims.“ The Court applied the statute
to the facts of the case in a very straightforward manner, observing that "[nlothing in§ 1367(a) suggests
that district courts are without supplemental jurisdiction over claims seeking [on the—record review] of
local administrative determinations," as the statute generally provides supplemental jurisdiction over
"allother claims," not just claims of which the district courts would have original jurisdiction." The
Court specifically noted that Congress could establish an exception to supplemental jurisdiction for
claims seeking deferential review of state agency decisions, but the plain language of the statute bore
no such construction. Even though the Supreme Court has applied plain language to interpret "state
court" in the Judicial Code, the courts adopting the functional test stillargue that a plain language
reading of the statute forecloses defendant access to a federal forum}? Thus, in effect, those courts
have allowed access to a federal forum—a right only available to litigants that meet every requirement
of the removal statute—to trump every legitimate interest states have in establishing agencies to
regulate through adjudication. As the Volkswagen court conceded, however, appeals from state agency
decisions or petitions to enforce agency action in a definitive "state court" may be removable to a
federal district court, thereby allowing the défendant access to a federal forum. Thus, with prior plain
language interpretations of "state court" in the Judicial Code and inthe context of the (Clean Water Act)
CWA and Clean Air Act CAA,“ there is ample support for the argument that the phrase "state court" is
41
See City of Chi. v. lnt’lColl.of Surgeons, 522 U.S. 156, 165—66 (1997) (holding that the districtcourt properly
exercised federal question jurisdiction over the plaintiff‘s claims and properly recognized thatitcould also exercise
supplemental jurisdiction over the law claims for deferential review of an agency decision).
plaintiff's state
41
Id.at 171.
M WRIGHT ET AL,
See supra note 3, § 3721 ("[Aln appeal to a state court from an administrative agency or a de
novo judicialproceeding following an administrative determination may take the form of a civilaction and
therefore be removable“). The abilityto remove an appeal of a state agency decision to federal district court
could be foreclosed by characterizing the initial agency proceeding as "judicial" under the functional test because
removal of an "appellate" action brought in a state court to a federal court does not come within the original
jurisdiction ofthe federal district courts.See Chi.,Rock Island & Pac. R.R. Co. v.Stude, 346 U.S. 574, 581 (1954)
(upholding dismissal, for lack of subject matterjurisdiction, of an original diversity action seeking review of a state
9
not applicable to state agency proceedings, even if such agencies exercise quasi-judicial functions.
Although there are plenty of valid and logical reasons why Congress should allow for removal from state
agencies, federal courts must only interpret the statute Congress has provided.“ Additionally, since
1789, the removal statute has required that a civil action be brought originally in a "state court?“
Although this antedates the creation of modern state administrative agencies, Congress has since
amended the removal statute several times without changing the "state court" requirement and has in
other statutes equated administrative agencies to "state courts." Until Congress provides otherwise, it
isimproper for federal courts to reach beyond the directive of a long-standing congressional statute.”
The language of the statute should be dispositive, and the language implies that the entity in question
be a "court," not a state administrative agency.“
The Policy Consequences of Allowing Removal from State Agency Proceedings The
overwhelming policy consequences that could result from the extensive adoption and use of the
agency's orders in a condemnation proceeding because lower federal courts do not siton appellate review of state
agency proceedings). However, ifa state provides de novo review of state agency action, then the lower federal
courts have originaljurisdiction. Horton V. Liberty Mut. Ins.Co., 367 U.S. 348, 355 (1961); see also Range Oil
Supply Co. v. Chi.,Rock Island & Pac. R.R. Co.,248 F.2d 477, 479 (8th Cir. 1957) (upholding removal from state
court of an appeal from an order of the Minnesota State Railroad and Warehouse Commission because proceeding
became a "civilaction" and federal court had "original jurisdiction"); Woolhandler & Collins, supranote 73, at 664——
66 (arguing that employing a functional analysis to agency proceedings as either administrative
classify initial state
or "judicial” runs the risk of excluding federal courts after the agency proceeding).
initial Woolhandler and Collins
argue this can be avoided by presuming thatjudicial review of an agency decision
initial the beginning of an
is itself
original"judicial"phase and not an "appellate" phase. Id.at 666 n.219. Eventually, whether an appeal from an
agency decision is considered de novo or deferential may not be determinative of whether a federal district court
has "original jurisdiction"over the removal of the appeal, providing even further support for the argument that
defendants will have access to a federal forum upon removal of an agency appeal in a state court. See id. at 661 of
Chicago v. International College of Surgeons "may be a welcome step inrecogriizingthat federal courts can readily
accommodate deferentlal review and the exercise of original jurisdiction").(arguing that the Supreme Court’s
decision in City
45
The accompanying text (discussing the general agreement among the circuit courts of appeals that "state court"
inthe CAA and CWA citizen suit provisions does not apply to state agency adjudications due to the plain language
of the statutes).
46
See Becenti v. Vigil,902 F.2d 777, 780 (10th Cir.1990) ("We must
>
be careful not to expand the jurisdictionof
federal courts beyond Congressional mandates.").
47
See supra Part ll(discussing creation and amendments of removal statute); supra note 166 (discussing statutes
with preclusion provisibns that apply to actions diligently prosecuted in "state courts" or "administrative
agencies").
‘8
Becenti, 902 F.2d at 781
10
functional test also support a plain language interpretation of "state court." First,the functional test has
the "capacfiy to create substantial mischief inthe administrative arena, by encouraging parties to take a
shot at removal, with inevitable delays and disruptions.“49 The ability to remove state agency
proceedings also could result in "the unwarranted, and thus wasteful, expenditure of limited federal
judicial resources" as courts struggle to deal with the inevitable increased petitions for removal that
could result from the widespread use of the functional tests" Furthermore, motions to remand would
require detailed factual inquiries into agencies' procedures and functions, "raising the potential for
evidentiary challenges necessitating discovery and evidentiary hearings," a result not contemplated by
the creation of removal inthe Judiciary Act of 1789.51 Widespread adoption and use of the functional
test also undervalues states’ interests in establishing agencies and interrupts agency adjudications that
are attempting to fulfilltheir administrative delegations. Surely, despite the suggestion of the
Volkswagen court, the states’ purposes and interests reach beyond providing litigants with an alternate
forum.52 Agencies, whether federal or state, are creatures of the executive and legislative branches of
government, with goals of instituting and enforcing substantive regulations. Agency adjudications,
which often provide an efficient method of regulating,” were not intended to co-opt the traditional
powers of the courts. Instead, states create and use agency adjudications for many legitimate reasons:
to provide a more hospitable forum for interests often disfavored by the courts; to enable the
development of expertise "as a result of extensive experience with case law, statutes, and technical
facts in a particular area"; to enable the decision-maker to conduct a comprehensive independent
49
Bellsouth Telecomms., Inc. v.Vartec Telecom, lnc.,185 F. Supp. 2d 1280, 1283 (N.D. Fla.2002). Mischief and
delay were the chief consequences cited by the Temporary Emergency Court of Appeals for rejecting removal from
state agency proceedings. Supra notes 126—31 and accompanying text.
:Zlbenson's LLc, zoos WL 3286988, at *2.
:2
52
Sée Katz, supra note 71, at 116 the
("Essentially, [Volkswagen] court analyzed the question in a way that both
overvalued the federal interests involved and undervalued those of the states"). Katz concluded that the
Volkswagen court‘s comparison of the "residual“ state interest and the federal interests is"questionable." Id.at
53
See Falkoff, supra note 194, at 872 ("The driving force behind the creation of such tribunals . . .is that
adjudication isboth an efficient and inevitable mode of administrative regulation").
11
factual investigation, both to address the private rights of parties before the tribunal~and the greater
public interest in the regulation; or to ease delay and costs that are often associated with bringing claims
that usually accompany traditional judicial proceedings.“ Moreover, because courts are often
concerned with the resolution of rights between private parties and usually ére not tasked with
developing broad public policy, agency adjudications also can be structured to develop state legislative
and regulatory policy.“ To put allthese implications in perspective, one must realize the importance of
removal jurisdiction in the modern judicial state of affairs. ln 2006 alone, over 29,000 cases, or
approximately 11%‘of the federal cases pending infederal court, were removed cases.“ Regardless of
whether or not cases stay in the federal system after removal, the increasingly extensive use of the
functional test would burden an already strained judiciary, as courts applying the functional test would
be required to engage in detailed, factual analyses into the functions and procedures of particular state
agency adjudications. Much isat stake for both parties i
Preview
DR. ALEX MELVIN WADE, JR. 30 Rayford Road Spring, Texas Fax: (940)440-8332 Gladden Adamick Montgomery County District Clerk O. Box 2985 Conroe, TX 77305 Ref: CAUSE NO.: 17-05-05876; Wade Dominion At Woodlands Dear Adamick: ched hereto under this cover letter please fmd Plaintiff's tion to s State Texas Motion for for mistakenly left the recent submission in the above entitled cause action. The attachment should have been part s requested the filing be made part the other rs in this matter achment Opposition along with other documents that are By copy tter, I have notified all contacts n electronically Thank you very kindly for tention given his matter Dr. Alex Melvin Wade, Jr. Paralegal Specialist Marc Sheiness, .w v: Dr. Alex Melvin Wade, .lr. PARALEGAL SPECIALIST yum mm gum AMERICAN CONSULTANT 50mm gigging uf fsxas 330 Rayford Road, Suite 731 Spring, Texas 77386-1980 ‘ NOV 1 5 2017 (713)409-1283 _ , (940)440-8332 £31“ J. Bradley. crerk or court « Americanconsultant2000@vahoo.com 1N THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION ALEX MELVIN WADE, .IR., Plaintiff Vs. ‘ Cause No:4—17-cv-03260 TEXAS BOARD OF PARDONS & PAROLES, ET Al., Defendants PLAINTIFF’S AMENDED OBIECTION LACK OFJURISDITION AND REMOVAL FROM STATE COURT MAY ITPLEASE THE COURT: FACTS OF THE CASE PlaintiffAlex Melvin Wadé, Jr.,on August 24"", 2017,’ filed a Petition forWrit of Habeas Corpus in the 185’” DistrictCourt, Harris County, Texas attaching the constitutionality of BPP-PQL 145.259 and BPP—POL 145.262, hand delivered to the Office The Honorable Chris Daniel, 1201 Franklin Street, Houston, Texas 3dr Floor. See attached Petition for Writ of Habeas Corpus filed08/24/17 consist of 23 pages) Plaintiff’s ‘Petitionfor Writ of Habeas Corpus was not presented and processed in accordance with VACCP, 11.07, Plaintiffwas leftwith no other alternative that to seek relief inthe State District Court in filingof Plaintiff’s Original Petition for Restraining Order. (Filed in the previous filings in this Court a copy appear) 'u u Plaintiff filedfor Temporary Restraining Order Preliminary injunction, that appears Defendant has not presented to the Court as part of the removal and/or motion to dismiss. Plaintiff sought injunctive relief to cause Defendant desist and decease implementing "SPECIAL CONDITION,” (Exhibit ”A””A””A) upon Plaintiffwithout according Plaintiff due process of law, not limited to the essential element of ”notice." Plaintiff was set a hearing date after three (3) none appearances by Defendants before the 189‘" District Court, Harris County, Texas. of the Original Plaintiff filing Petition for Restraining Order/Preliminary Injunction attack a Texas State Policy put into place by Texas Board of Pardons and Paroles. (See Plaintiff Exhibit C & D) Plaintiff attack upon State’s policy and procedures are not issues that this Court would have original jurisdiction. Plaintiff’s Exhibit ”B””B”"B” isa State Policy just as Exhibit ”A"”A”"A”, where the State Court contended are unconstitutional and denies in is by Plaintiff Plaintiffdue process of law. LEGAL ARGUMENT WITH AUTHORITIES IN SUPPORT Plaintiffstrenuously objection to removal to the federal court, because Defendant have not shown nor can Defendant show Federal Court the claims raised in Plaintiff’s OriginalPetition for Restraining Order applicable to original jurisdiction in federal court. Generally, there are two ways of removing a case from a state to a federal court: first,by Supreme Court review after the state court action has become final; and second, by transfer from a state court to a federal district court for original adjudication} The Judiciary Act of 1789 created this latter path to removal, but premised it upon the satisfaction of certain requirements? The act granted 1 To avoid the flow of this memorandum doctrine, Plaintiffhas footnoted authorities relevant to the argument presented. zJudiciary Act of 1789, ch. 20, § 12, 1 Stat. 73, 79—80.The statute states:That ifa suit becommenced in any state court against an alien, or bv a citizen of the state in which the suit isbrought against a citizen ofanother state,and . the matter in dispute exceeds ...five hundred dollars,. ..the defendant shall ...file a petition forthe removal of the cause for trial be held into the next circuit court, to in the districtwhere the suitis pending .... And ifin any action commenced in a state court,the titleof land be concerned, and the parties are citizens ofthe same state, and the matter in dispute exceeds .. .five hundred dollars,. .. the party REMOVAL TO FEDERAL COURTS 1835 claiming under the grant firstmentioned may then, on motion, remove the cause for trial. .. .Id. (emphasis added). removal to cases "commenced in any state court" with more than $500 in dispute to three types of parties: (1) adefendant who was an alien; (2) a citizen of the state inwhich the suit isbrought against a citizen of another state; and (3) either party, where titleto land was in dispute under conflicting grants of land of different states and the non-removing party claimed it under a grant of the forum state? The Judiciary Act of 1789 did not grant removal to those cases arising under the laws of the United States—what we know today as federal question removal.“ Instead, Congress contented itself between 1789 and 1875 to provide for a series of "relatively specific removal statutes . .. designed to "5 give added protection to federal officers or federal law. Almost a century later, inthe Judiciary Act of 1875f Congress enormously expanded the federal courts’ removal and original jurisdiction.’ While the Act allowed removal of an action by either party and provided for federal question removal, itstill required that the original "suit of a civilnature" be "pending or hereafter brought in any State court.“ The Supreme Court broadly construed the new removal statute’s grant of federal question removal? leading to the “classes of removable cases coverIing] substantially the entire gamut authorized by Article "1° m 3 Id. A See Michael G. Collins,The Unhappy History of Federal Question Removal, 71 IOWA L. REV. 717, 720 (1986) (noting that "[e]xcept for the short-lived JudiciaryAct of 1801, Congress did not vest general federal question jurisdictionin the lower federal courts until1875"). Collins attributed thischange inremoval to itspart in the larger substantive law and "jurisdictionalrevolution" that was an outgrowth of theCivilWar and Reconstruction. ld. 5 Id.The current federal officerremoval statute isfound at 28 U.S.C. § 1442 (2006). 6 Act of Mar. 3, 1875, ch. 137, §2, 18 Stat.470, 470—71. 7 See Collins,supra note 19, at 722 (explaining that "[llower federal court jurisdictionprobably reached itshigh- water mark when Congress passed the 1875 Judiciary Act"). 8 Act of Mar. 3, 1875, ch. 137, § 2, 18 Stat. 470, 470—71 (emphasis added). The statute provides: That any suit of a civil nature, at law or in equity, now pending or hereafter brought in any State court where the matter in dispute exceeds, exclusive of costs, thesum or value of five hundred dollars, and arising under the Constitution or laws of the United States, or treaties. ..or in which there shallbe a controversy between citizensof different States,.. . either party may remove said suit into the circuit court of the United States for the proper district.Id.(emphasis added). 9 See Collins,supra note 19, at 724—30 (discussing the Supreme Court's expansive interpretation of the removal statute enacted in 1875). 1° BATOR ET AL, supra note 2, at 1767 ~» Plaintiffcontends the 1441 will not extend to allowing Defendant jurisdiction in the United States District Court for the Southern District of Texas, Houston. This matter isnot ripe for federal court intervention. The current removal statute, 28 U.s.c. § 1441,“ is based on the Judiciary Act of 1887, which amended the Judiciary Act of 1875.“ The Judiciary Act of 1887 substantially curtailed removal in response to the swelling of federal court dockets, at both the trialand appellate levels, following the Judiciary Act of 1875.13 For one thing, Congress restricted the privilege of removal to defendants only, citing to the fact that plaintiffsshould have to abide by their choice of forum.“ The removal provision also explicitly referenced the preceqmg provision granting original jurisdiction to federal courts, thus for the firsttime stating the well—known modern requirement that a federal court must have original jurisdiction of a removed action.“ Citing to this requirement, the Supreme Court further restricted the defendant’s right of removal infederal question cases only to those cases which the plaintiff could have u See 28 U.S.C. § 1441(a)-(b) (2006) (providing removal based upon diversity between parties or upon the presence of a federal question). The statute'sfulltext states: (a) Except as otherwise expressly provided by Act of Congress, any action civil brought in a State court of which the district courts of the United States have original jurisdiction,may be removed by the defendant ... .(b) Any civil actionof which the district courts have original jurisdictionfounded on a claim or right arising under the Constitution, treaties or laws of the United Statesshall be removable without regard to the citizenship or residence of the parties ....Id. (emphasis added). n See Act of Mar. 3,1887, ch. 373, § 2, 24 Stat. 552,553. The statute provides: That any suit of a civilnature, ... arisingunder the Constitution or laws of the United States, .. .of which the circuit courts of the United States are given original jurisdictionby the preceding section, which may now be pending .. .in any State court, may be removed by the defendant .. .;and when in any suit mentioned in this section there shall be a controversy which is wholly between citizensof different States,.. .then either one or more of the defendants ... may remove said suit into the circuitcoutt of the United States for the proper district.Id.(emphasis added). The statute was amended by Act of Aug. 13, 1888, ch. 866, § 1, 25 Stat. 433, 433—36. 13 See Collins,supra note 19, at 738—42 (chronicling the legislative history of the Judicial Act of 1887). Interestingly, there were "at least a half a dozen proposals to amend the 1875 Act within a short time after itspassage." Id.at 738 n.109. It isbelieved that the swelling of courts’ dockets post—Reconstruction was due in large part to the increased removal of diversity cases as a result of a boom in interstate commercial activity,although federal question cases can be blamed as well for part of the burden. Id.at744 u "a See id. at 743 (observing that consistent string of House Reports suggests that the purpose of the 1887 amendments of the 1875 Act’s removal provision was simply to eliminate the possibilityof plaintiffremoval" because it was thought proper to require the plaintiff to abide by his selection of a forum). 15 BATOR ET AL., supra note 16, at 1758. filed originally in federal court, a precursor to the well-pleaded complaint rule.” In a later decision, the Supreme Court, reflecting upon the successive changes to the removal statute wrought by the Judiciary Acts of 1875 and 1887, stated: "[T]he language of the Act of 1887 evidence[s] the Congressional purpose to restrict the jurisdiction of the federal courts on removal," and "the policy of the successive acts of Congress regulating the jurisdiction of federal courts isone calling for the strict construction of such legislation.” Thus, by the time the Supreme Court decided Upshur County a mere three years after passage of the Judiciary Act of 1887, itmust have been aware of Congress’s intent to restrict the availability ofremoval, not to expand itto litigants in proceedings before state boards or commissions. Justice Cardozo once said, "[W]e do not pause to consider whether a statute differently convened and framed would yield results more consonant with fairness and reason. We take the statute as we find it."18 Those courts adopting the functional test have not heeded Justice Cardozo’s maxim, but instead impermissibly have reached far beyond the plain language of the removal statute, as the question isnot whether Congress should allow for removal from state agencies, but rather whether Congress explicitly has provided $0.19 It isaxiomatic that statutory interpretation begins with the text of the statute, and ifthe language isplain and unambiguous, then the language controls.” Traditionally, an agency is not a court; it isan executive or legislativelycreated tribunal that regulates a certain subject matter.“ Because an agency is not a court vested with judicial power, although itmay conduct court-like adjudications, the plain language of the removal statute is unambiguous, and therefore controlling. 16 See Collins,supra note 19, at 718 ("Linking defendant removal to the well-pleaded complaint rule began with an early Supreme Court construction of the 1887 ancestor of the modern removal statute In Tennessee v. Union & Planters' Bank."). 17 Shamrock Oil& Gas Corp. v. Sheets, 313 U.$. 100, 108 (1941). 1‘ Anderson v. Wilson, 289 u.s. 20, 27 (1933). 19 See supra notes 184-87 and accompanying text (noting that the functional test has been criticizedas transforming the removal inquiry). 2° See Felix Frankfurter,Some Reflections on the Reading of Statutes, 47 COLUM. L. REV. 527, 535 (1947) ("Though we may not end with the words inconstruing a disputed statute, one certainly begins there."). 21 See COOPER, supra note 9, at 96 (defining administrative agency to include "allthose governmental organs (other than the legislature'or the courts) which possess authority to make rules affecting private rights or to adjudicate contested cases"). Section 1441(3) should not apply to state agencies not vested with judicial power. Additionally, courts have pointed out that when Congress has seen fit to allow removal from tribunals that are not considered traditional “state courts" it has done so, and when ithas chosen not to grant status to non- federal trialcourts, federal courts have held that those courts are not "state courts)“: Thus, because removal jurisdiction is a statutory creation, until Congress decides to expand federal removal jurisdiction to encompass actions filed in state agencies, the federal courts may not exercise jurisdiction over such actions. There are also other reasons why a plain language interpretation of the phrase "state court" is required in the removal context. Adherence to the plain language of "state court," instead of resorting to the functional test, comports with the policy and purpose behind Congress’s provision of removal jurisdiction. As noted previously, the right of removal ispurely statutory, and as such, is entirely subject to legislative control.23 While the interpretation of the removal statute isa matter of federal, not state, law, the Supreme Court has directed lower courts to construe the grant of removal strictly.“ Cited earlier, Justice Stone's opinion in Shamrock Oil & Gas Corp. v. Sheets” advanced the rule for strict construction of the removal statute." The Act of 1887’s substantial contraction of removal that was provided by the Judiciary Act of 1875, coupled with the "policy of the successive acts of Congress regulating the jurisdiction of federal courts," in his opinion, indicated a desire by Congress for strict 22 See Becenti v. Vigil,902 F.2d 777, 780 (10th Cir. 1990) (discussing inapplicabilityof removal to tribalcourt). Compare 28 U.S.C. § 1451 (2006) (defining "State court" to include the Superior Court of the District of Columbia), and 48 U.S.C. § 864 (2006) (authorizing removal of actions commenced in the DistrictCourt for the Districtof Puerto Rico), with Territory of Guam v. Landgraf, 594 F.2d 201, 202 (9th Cir.1979) (refusing to read congressional references in 28 U.S.C. § 1443(1) to an action in "state" court as including an action in the Territory of Guam because there was no explicit reference in the statute including the Territory of Guam as a "state court"). 23 Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 349 (1816) (explaining that the power of removal "isnot to be found in express terms in any part of the constitution; be given, if it only given by implication" and "[t]he time, it is the process, and the manner, must be subject to itsabsolute WRIGHT ET AL, legislative control"); see also supra note 3, § 3721 (discussing removal’s dependence on congressional authority). “See id.(holding that the removal statute did not allow a plaintiff, who_was sued by the originaldefendant in a gsounterclaim, toremove the action to federal district court). Id. 26 Id. construction." Both the Supreme Court and lower federal courts have reaffirmed Justice Stone’s strict construction philosophy, and some courts have required that alldoubts on the propriety of removal be resolved in favor of remand.” Strict construction of removal, in turn, respects our nation’s idea of federalism. The Supreme Court has long cited to the reserved power of the states, under the Tenth i Amendment", to providé for the determination of controversies in their courts, which may be restricted only by acts of Congress in conformity with Article of the Constitution.“ Ill "Due regard for the rightful independence of statei governments, which should actuate federal courts, requires that they scrupulously confine the;ir‘own jurisdiction to the precise limits which the statute has defined.“ Furthermore, the federal courts are courts of limited jurisdiction, and depriving a state court of an action properly brought within itsjurisdiction, interferes with states’ rights to resolve controversies pursuant to their own determinations, thereby exacerbating the federalism concerns. Both statutory and federaIism reasons, therefore, require plain language to control the interpretation of "state court." Additionally, in the Judicial Code, there are examples of the Supreme Court interpreting jurisdictional statutes according to their plain language, and in many of the situations, the stakes are higher for the loser than for defendants seeking removal of initialstate agency proceedings to federal court“. The 27 ld.;The accompanying text (discussing Congress's restrictions on removal in 1887). 28 See WRIGHT ET AL., supra note 3, § 3721 ("Consistent with the philosophy expressed by Justice Stone. there is ample case support . .. at alllevels of the federal courts . .. for the proposition that removal statutes will be construed," strictly and "[slome federal courts go further . ..and say that alldoubts . .. should be resolved" in favor of remand). 29 CONST. amend. - U.s. x. 3° See Healy v. Ratta, 292 U.S. 263, 270 (1934) (explaining basis for strictconstruction of removal statute as it Elenains to amount—in-controversy requirement of removal based upon diversity—of-citizenship). Id 32 A further illustrationof this point is the Supreme Court's refusalto find a Seventh Amendment defect in the refusal ofCongress to permit juries to be seated in non-Article courts. Ill See Falkoff, supra note 194, at 879—80 (discussing formalist approach of Supreme Court in itstreatment of the Seventh Amendment in non-Article Ill courts in support of contention that non-Article courts, as creatures of Congress Ill and subject to elected-branch control should not be answerable to judiciallydeveloped doctrines likesovereign immunity). Professor Falkoff argues that "sovereign immunity isa concept foreign to the administrative agency context, since legislative courts are more properly understood to be regulatory bodies rather than courts of law." Id. at 876. Some would argue that haling a state into a legislativecourt should make no constitutional difference in invoking the sovereign immunity doctrine, but Falkoff argues that "there is a clear conceptual difference between legislative and judicial 7 Supreme Court previously has been tasked with interpreting the phrase "state court" in the context of 28 U.S.C. § 173833—the implementing statute of the Full Faith and Credit Clausefi—which requires federal courts to give full faithand credit to the "judicial proceedings of any court of any .. . State."35 ln University of Tennessee v. Elliottfsthe Supreme Court stated that § 1738 "is not applicable to the 37 unreviewed state administrative factfinding" of a state administrative law judge. The Supreme Court similarly found § 1738 inapplicable to a judicially unreviewed decision of an arbitrator in light of the 38 plain language of the statute, which refers to "judicial proceedings" of state courts. Nearly every lower court to examine the issue has held that § 1738 isinapplicable to unreviewed state administrative decisions because of the statute’s specific reference to “judicial proceedings" of "state courts."35 More recently, the Supreme Court used plain language to interpret the supplemental jurisdiction statute.“ The Court allowed a federal district court to exercise supplemental jurisdiction over pendent state courts,even ifthe distinction between them has been a problem of a ’highly theoretical nature’ and ’productive of much confusion and controversy!" Id.at 879. For a further discussion ofwhy the Seventh Amendment right to a jury trialshould extend to administrative adjudications of a "statutorilycreated cause of action on behalf of or & against a private individual or entity," see Redish LaFave, supra note 194, at 432—34. 33 See 28 U.S.C. § 1738 (2006) (implementing the Full Faith and Credit Clause) 34 See U.S. CONST. art. IV, § 1 (requiring that "[f]u|l Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State"). 35 28 U.S.C. § 1738 (2006) (emphasis added). The act provides: The records and judicialproceedings of any court of any such State ... shallbe proved or admitted inother courts within the United States . . .. Such Acts, records and judicialproceedings .. .shall have the same and credit full faith in every court within the United States .. ..ld. (emphasis added). 36 See Univ. of Tenn. v. 478 Elliott, U.S. 788, 796—99 (1986) (holding that unreviewed state agency proceedings should be given preclusive effect in federal courts, except for when Congress, as in the case of Tltle VII,has provided otherwise); see also BATOR ET AL.,supra note 16, at 1527—28 (discussing effect of res judicataon state courtjudgments). 37 Univ. of Tenn., 478 U.S. at 794 (emphasis added). The Court, however, also held that the federal common law rule of preclusion applied when a state agency "acts in a judicialcapacity" and "resolves disputed issues of fact properly before itwhich the parties have had an opportunity to litigate." Id.at 799. While this holding would appear to lend support to those courts adopting the functional test, there is no federal common law governing removal; removal is solely governed by statute. See 28 U.S.C. §§ 1441—1452 (2006) (enumerating the different ways removal can be accomplished 33 McDonald v. CityofW. Branch, 466 U.S. 284, 288 (1984). 39 See Robert P. Morris, How Many Bites are Enough? The Supreme Court’s Decision inUniversity of Tennessee v. 55 TENN. Elliott, L.REV. 205, 226 n.150 (1988) (citing cases). 4" 28 U.S.C.§ 1367 (2006). The statute provides: In any action civil of which the districtcourts have original jurisdiction,the districtcourts shall have supplemental jurisdictionover allother claims that are so related to claims in the action within such original jurisdictionthat they form part of the same case or controversy under Article of the United States Constitution. Ill Id.§ 1367(3) (emphasis added). 8 claims seeking deferential review of administrative decisions in federal court, despite the fact that the districtcourt would not have original jurisdiction over the state claims.“ The Court applied the statute to the facts of the case in a very straightforward manner, observing that "[nlothing in§ 1367(a) suggests that district courts are without supplemental jurisdiction over claims seeking [on the—record review] of local administrative determinations," as the statute generally provides supplemental jurisdiction over "allother claims," not just claims of which the district courts would have original jurisdiction." The Court specifically noted that Congress could establish an exception to supplemental jurisdiction for claims seeking deferential review of state agency decisions, but the plain language of the statute bore no such construction. Even though the Supreme Court has applied plain language to interpret "state court" in the Judicial Code, the courts adopting the functional test stillargue that a plain language reading of the statute forecloses defendant access to a federal forum}? Thus, in effect, those courts have allowed access to a federal forum—a right only available to litigants that meet every requirement of the removal statute—to trump every legitimate interest states have in establishing agencies to regulate through adjudication. As the Volkswagen court conceded, however, appeals from state agency decisions or petitions to enforce agency action in a definitive "state court" may be removable to a federal district court, thereby allowing the défendant access to a federal forum. Thus, with prior plain language interpretations of "state court" in the Judicial Code and inthe context of the (Clean Water Act) CWA and Clean Air Act CAA,“ there is ample support for the argument that the phrase "state court" is 41 See City of Chi. v. lnt’lColl.of Surgeons, 522 U.S. 156, 165—66 (1997) (holding that the districtcourt properly exercised federal question jurisdiction over the plaintiff‘s claims and properly recognized thatitcould also exercise supplemental jurisdiction over the law claims for deferential review of an agency decision). plaintiff's state 41 Id.at 171. M WRIGHT ET AL, See supra note 3, § 3721 ("[Aln appeal to a state court from an administrative agency or a de novo judicialproceeding following an administrative determination may take the form of a civilaction and therefore be removable“). The abilityto remove an appeal of a state agency decision to federal district court could be foreclosed by characterizing the initial agency proceeding as "judicial" under the functional test because removal of an "appellate" action brought in a state court to a federal court does not come within the original jurisdiction ofthe federal district courts.See Chi.,Rock Island & Pac. R.R. Co. v.Stude, 346 U.S. 574, 581 (1954) (upholding dismissal, for lack of subject matterjurisdiction, of an original diversity action seeking review of a state 9 not applicable to state agency proceedings, even if such agencies exercise quasi-judicial functions. Although there are plenty of valid and logical reasons why Congress should allow for removal from state agencies, federal courts must only interpret the statute Congress has provided.“ Additionally, since 1789, the removal statute has required that a civil action be brought originally in a "state court?“ Although this antedates the creation of modern state administrative agencies, Congress has since amended the removal statute several times without changing the "state court" requirement and has in other statutes equated administrative agencies to "state courts." Until Congress provides otherwise, it isimproper for federal courts to reach beyond the directive of a long-standing congressional statute.” The language of the statute should be dispositive, and the language implies that the entity in question be a "court," not a state administrative agency.“ The Policy Consequences of Allowing Removal from State Agency Proceedings The overwhelming policy consequences that could result from the extensive adoption and use of the agency's orders in a condemnation proceeding because lower federal courts do not siton appellate review of state agency proceedings). However, ifa state provides de novo review of state agency action, then the lower federal courts have originaljurisdiction. Horton V. Liberty Mut. Ins.Co., 367 U.S. 348, 355 (1961); see also Range Oil Supply Co. v. Chi.,Rock Island & Pac. R.R. Co.,248 F.2d 477, 479 (8th Cir. 1957) (upholding removal from state court of an appeal from an order of the Minnesota State Railroad and Warehouse Commission because proceeding became a "civilaction" and federal court had "original jurisdiction"); Woolhandler & Collins, supranote 73, at 664—— 66 (arguing that employing a functional analysis to agency proceedings as either administrative classify initial state or "judicial” runs the risk of excluding federal courts after the agency proceeding). initial Woolhandler and Collins argue this can be avoided by presuming thatjudicial review of an agency decision initial the beginning of an is itself original"judicial"phase and not an "appellate" phase. Id.at 666 n.219. Eventually, whether an appeal from an agency decision is considered de novo or deferential may not be determinative of whether a federal district court has "original jurisdiction"over the removal of the appeal, providing even further support for the argument that defendants will have access to a federal forum upon removal of an agency appeal in a state court. See id. at 661 of Chicago v. International College of Surgeons "may be a welcome step inrecogriizingthat federal courts can readily accommodate deferentlal review and the exercise of original jurisdiction").(arguing that the Supreme Court’s decision in City 45 The accompanying text (discussing the general agreement among the circuit courts of appeals that "state court" inthe CAA and CWA citizen suit provisions does not apply to state agency adjudications due to the plain language of the statutes). 46 See Becenti v. Vigil,902 F.2d 777, 780 (10th Cir.1990) ("We must > be careful not to expand the jurisdictionof federal courts beyond Congressional mandates."). 47 See supra Part ll(discussing creation and amendments of removal statute); supra note 166 (discussing statutes with preclusion provisibns that apply to actions diligently prosecuted in "state courts" or "administrative agencies"). ‘8 Becenti, 902 F.2d at 781 10 functional test also support a plain language interpretation of "state court." First,the functional test has the "capacfiy to create substantial mischief inthe administrative arena, by encouraging parties to take a shot at removal, with inevitable delays and disruptions.“49 The ability to remove state agency proceedings also could result in "the unwarranted, and thus wasteful, expenditure of limited federal judicial resources" as courts struggle to deal with the inevitable increased petitions for removal that could result from the widespread use of the functional tests" Furthermore, motions to remand would require detailed factual inquiries into agencies' procedures and functions, "raising the potential for evidentiary challenges necessitating discovery and evidentiary hearings," a result not contemplated by the creation of removal inthe Judiciary Act of 1789.51 Widespread adoption and use of the functional test also undervalues states’ interests in establishing agencies and interrupts agency adjudications that are attempting to fulfilltheir administrative delegations. Surely, despite the suggestion of the Volkswagen court, the states’ purposes and interests reach beyond providing litigants with an alternate forum.52 Agencies, whether federal or state, are creatures of the executive and legislative branches of government, with goals of instituting and enforcing substantive regulations. Agency adjudications, which often provide an efficient method of regulating,” were not intended to co-opt the traditional powers of the courts. Instead, states create and use agency adjudications for many legitimate reasons: to provide a more hospitable forum for interests often disfavored by the courts; to enable the development of expertise "as a result of extensive experience with case law, statutes, and technical facts in a particular area"; to enable the decision-maker to conduct a comprehensive independent 49 Bellsouth Telecomms., Inc. v.Vartec Telecom, lnc.,185 F. Supp. 2d 1280, 1283 (N.D. Fla.2002). Mischief and delay were the chief consequences cited by the Temporary Emergency Court of Appeals for rejecting removal from state agency proceedings. Supra notes 126—31 and accompanying text. :Zlbenson's LLc, zoos WL 3286988, at *2. :2 52 Sée Katz, supra note 71, at 116 the ("Essentially, [Volkswagen] court analyzed the question in a way that both overvalued the federal interests involved and undervalued those of the states"). Katz concluded that the Volkswagen court‘s comparison of the "residual“ state interest and the federal interests is"questionable." Id.at 53 See Falkoff, supra note 194, at 872 ("The driving force behind the creation of such tribunals . . .is that adjudication isboth an efficient and inevitable mode of administrative regulation"). 11 factual investigation, both to address the private rights of parties before the tribunal~and the greater public interest in the regulation; or to ease delay and costs that are often associated with bringing claims that usually accompany traditional judicial proceedings.“ Moreover, because courts are often concerned with the resolution of rights between private parties and usually ére not tasked with developing broad public policy, agency adjudications also can be structured to develop state legislative and regulatory policy.“ To put allthese implications in perspective, one must realize the importance of removal jurisdiction in the modern judicial state of affairs. ln 2006 alone, over 29,000 cases, or approximately 11%‘of the federal cases pending infederal court, were removed cases.“ Regardless of whether or not cases stay in the federal system after removal, the increasingly extensive use of the functional test would burden an already strained judiciary, as courts applying the functional test would be required to engage in detailed, factual analyses into the functions and procedures of particular state agency adjudications. Much isat stake for both parties i