« August 10, 2008 - August 16, 2008 | Main | August 24, 2008 - August 30, 2008 »

August 22, 2008

Split on Whether Cases Can be Removed from State Agencies

I teach civ pro, and so this is particularly interesting to me. 28 USC 1441(a) authorizes removal of "any civil action brought in a State court" over which there's federal subject matter jurisdiction. What if it's an administrative proceeding? The issue was summarized just last week in Johnson v. Albertson's LLC, __ F.Supp.2d ___, 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").

Given the growing trend to find "substantial federal questions" even in claims that arise under state law, this will be a growing issue, I would think.


August 22, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack

Ninth Circuit Issues First Impression of Tax Code Provision

Ordlock v. Commissioner of Internal Revenue, __ F.3d ___ (9th Cir. 2008) required the Ninth Circuit to give a first impression interpretation of 26 U.S.C. § 6015 and the interplay between federal income tax law and California community property law. The government won... :-) It is a very interesting analysis, focusing on the meaning of the word "determine" as well as legislative history.

August 22, 2008 | Permalink | Comments (0) | TrackBack

August 18, 2008

Iowa Supreme Court Rejects, um, Creative Workers Compensation Interpretation

I love lawyers who are creative, even when they go one step beyond.

Iowa Code section 85.38(2) relates to the issue of employer credits when payments are made by a group health plan. This provision provides, in relevant part: "In the event the employee with a disability shall receive
any benefits, including medical, surgical, or hospital benefits, under any group plan covering nonoccupational
disability contributed to wholly or partially by the employer . . . then the amounts so paid to the employee from the group plan shall be credited to or against any compensation payments. . . .” Iowa Code § 85.38(2).

Suppose Plaintiff is injured and can't work, so uses COBRA to get health insurance under Group Plan A. She pays the premiums herself. She receives benefits from Plan A. Suppose the employer also pays premiums to Group Plan A -- for all its other employees, but not the Plaintiff. Read literally the employer is entitled to get a credit for the amounts the plan pays Plaintiff...

Not so, say the Iowa Supreme Court, in Midwest Ambulance Serv. v. Ruud, __ N.W.2d __ (Iowa 2008). Interesting case that can be read as purposive or to avoid absurd results.

August 18, 2008 in Current Affairs | Permalink | Comments (0) | TrackBack