Removal Jurisdiction and the All Writs Act

Abstract:     
Although the All Writs Act traces its lineage back to the Judiciary Act of 1789, the historical origins of the statute largely have remained in obscurity. One of the more modern and potent issues involving the All Writs Act concerned whether the statute may be used as an independent basis of original jurisdiction. For nearly two hundred years no court had ever relied on section 1651(a) to ground its jurisdiction over a case removed from state to federal court. But in 1988 a court first approved use of the All Writs Act as an independent basis for removal. Thereafter, the number of federal district and circuit courts grounding removal in the All Writs Act grew rapidly.

Over the next decade or so, approximately thirty federal courts considered, and at least twenty approved, use of the All Writs Act as an independent basis for removal, principally on the premise that resort to the All Writs Act was necessary to protect or preserve a prior federal judgment. Finally, in Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28 (2003) the U.S. Supreme Court unanimously ruled that the All Writs Act does not afford an independent basis of jurisdiction to support removal of a state suit into federal court. In this article, written before (and subsequently cited by Justice Stephens in his concurrence in) Syngenta, the author undertakes a critical analytic and historical examination of the All Writs Act. Even after Syngenta, the author's work examining the historical and doctrinal underpinnings of the All Writs Act remains relevant as one of the most common invocations of statute is to permit a district court to issue injunctive relief.

Proper understanding of the scope and limits of section 1651a thus remains a vital part of any treatment of the boundaries of the federal judicial injunctive power.

Number of Pages in PDF File: 71

Keywords: removal, injunctions, injunctive authority, all writs act, anti-suit injunctions, 28 USC 1651a, 28 USC 2283, jurisdiction

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