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Civil Resource Manual

45. Removal

When suit has been brought against the government, or an officer or agency thereof, in a state or local court, an important threshold question is whether the action should be removed to the United States district court. In suits brought against the United States under 28 U.S.C. § 2410 (see USAM 4-4.540), removal will be left to the discretion of the USA, absent a specific request from the Civil Division concerning whether or not to remove. In determining whether or not to remove such cases or to recommend the removal of other cases, the USA should consider:

  1. The likelihood of a fair disposition in the state or local court
  2. Whether federal statutes, regulation or decisional law may be challenged in the litigation
  3. The preference for taking appeals through the federal court system particularly When an open legal issue is involved
  4. The relative convenience of handling the case for the U.S. Attorney
  5. Whether the party suing the United States is attempting to secure a federal forum by bringing a facially jurisdictionally invalid suit against the United States

As noted in USAM 4-2.100, the United States may not be sued in state court at all, absent express statutory consent. Formerly, removal to the federal court of such an unconsented suit did not cure the jurisdictional defect, even in a situation in which the federal court would have had jurisdiction if the action had originally been instituted there. See Minnesota v. United States, 305 U.S. 382, 388-389 (1939); Gleason v. United States, 458 F.2d 171, 174 (3d Cir. 1972). This doctrine of "derivative jurisdiction" was abolished by section 3 of the Judicial Improvements Act of 1985, codified at 28 U.S.C. § 1441(e). See Lewis v. Windsor Door Co., 926 F.2d 729, 730 n.2 (8th Cir. 1991).

In other civil suits against government officers, employees, service personnel, and agencies, and particularly in cases in which personal injury, death, a significant federal interest, or property damage is involved, care should be taken to remove to the United States district court. Most of these actions will have to be removed within the thirty days specified in 28 U.S.C. § 1446(b). However, removal of tort suits under the provisions of the Federal Employees Liability Reform and Tort Compensation Act of 1988, 28 U.S.C. § 2679(d)(2), may be effected any time prior to trial, as may most suits against a member of the armed forces on account of an act done under color of office or status. See 28 U.S.C. § 1442a. Garnishment actions against the government seeking child support or alimony payments pursuant to 42 U.S.C. § 659 ordinarily should be removed unless the client agency will honor the garnishment writ or order.

The statute generally authorizing removal of state court suits against federal officers for acts under color of office, see 28 U.S.C. § 1442(a)(1), does not permit removal by federal agencies. Int'l Primate Protection League v. Adm'rs of Tulane Educational Fund, 500 U.S. 72, 76 (1991) [Editor's Note: 28 U.S.C. § 1442 was amended in 1996 to allow agencies to remove cases to federal court].

[updated September 2000] [cited in USAM 4-2.400]