The newest frontier of judicial activism: Removal under the all Writs act

Boston University Law Review

Volumn 80, Issue 3, 2000, Pages 773-883

  Steinman, Joan ^a  

^a NONE

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EID: 0034384914     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (467)

1. 28 U.S.C. § 1651 (1994). The Act is quoted infra text accompanying note 5.
2. See, e.g., Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 COLUM. L. REV. 2010, 2030 (1997) (commenting upon Judge Weinstein's and the Second Circuit's handling of the Agent Orange case, In re Agent Orange Prods. Liab. Litig., 475 F. Supp. 928 (E.D.N.Y. 1979), aff'd, 996 F.2d 1425, 1431-32 (2d Cir. 1993). Professor Minow notes that subsequent claims filed in state court were moved "through extraordinary procedural maneuvers" to Judge Weinstein's court, and that the reviewing court approved "the remarkable use of the All Writs Act" to remove a state case to federal court, despite the absence of independent grounds for federal jurisdiction. Id. at 2031. See generally Thomas D. Rowe, Jr., Beyond the Class Action Rule: An Inventory of Statutory Possibilities to Improve the Federal Class Action, 71 N.Y.U. L. REV. 186, 197 (1996) (describing Judge Weinstein's and the Second Circuit's handling of the Agent Orange case as a "judicial tour de force . . . best regarded as an extraordinary remedy for truly extraordinary circumstances"); Geoffrey P. Miller, Overlapping Class Actions, 71 N.Y.U. L. REV. 514, 539 (1996) (stating that Judge Weinstein's opinion "might be considered a judicial mugging of parallel state-court proceedings," despite its possible merit as a matter of public policy); RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM at 1617 (1996) [hereinafter HART & WECHSLER] (asking whether a federal judge ever has power to remove a case from state court sua sponte and, if so, what the source of such authority is, and concluding that "[i]n an extraordinary move . . . Judge Weinstein asserted such power under the All Writs Act" in the Agent Orange cases).
3. See, e.g., Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 COLUM. L. REV. 2010, 2030 (1997) (commenting upon Judge Weinstein's and the Second Circuit's handling of the Agent Orange case, In re Agent Orange Prods. Liab. Litig., 475 F. Supp. 928 (E.D.N.Y. 1979), aff'd, 996 F.2d 1425, 1431-32 (2d Cir. 1993). Professor Minow notes that subsequent claims filed in state court were moved "through extraordinary procedural maneuvers" to Judge Weinstein's court, and that the reviewing court approved "the remarkable use of the All Writs Act" to remove a state case to federal court, despite the absence of independent grounds for federal jurisdiction. Id. at 2031. See generally Thomas D. Rowe, Jr., Beyond the Class Action Rule: An Inventory of Statutory Possibilities to Improve the Federal Class Action, 71 N.Y.U. L. REV. 186, 197 (1996) (describing Judge Weinstein's and the Second Circuit's handling of the Agent Orange case as a "judicial tour de force . . . best regarded as an extraordinary remedy for truly extraordinary circumstances"); Geoffrey P. Miller, Overlapping Class Actions, 71 N.Y.U. L. REV. 514, 539 (1996) (stating that Judge Weinstein's opinion "might be considered a judicial mugging of parallel state-court proceedings," despite its possible merit as a matter of public policy); RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM at 1617 (1996) [hereinafter HART & WECHSLER] (asking whether a federal judge ever has power to remove a case from state court sua sponte and, if so, what the source of such authority is, and concluding that "[i]n an extraordinary move . . . Judge Weinstein asserted such power under the All Writs Act" in the Agent Orange cases).
4. See, e.g., Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 COLUM. L. REV. 2010, 2030 (1997) (commenting upon Judge Weinstein's and the Second Circuit's handling of the Agent Orange case, In re Agent Orange Prods. Liab. Litig., 475 F. Supp. 928 (E.D.N.Y. 1979), aff'd, 996 F.2d 1425, 1431-32 (2d Cir. 1993). Professor Minow notes that subsequent claims filed in state court were moved "through extraordinary procedural maneuvers" to Judge Weinstein's court, and that the reviewing court approved "the remarkable use of the All Writs Act" to remove a state case to federal court, despite the absence of independent grounds for federal jurisdiction. Id. at 2031. See generally Thomas D. Rowe, Jr., Beyond the Class Action Rule: An Inventory of Statutory Possibilities to Improve the Federal Class Action, 71 N.Y.U. L. REV. 186, 197 (1996) (describing Judge Weinstein's and the Second Circuit's handling of the Agent Orange case as a "judicial tour de force . . . best regarded as an extraordinary remedy for truly extraordinary circumstances"); Geoffrey P. Miller, Overlapping Class Actions, 71 N.Y.U. L. REV. 514, 539 (1996) (stating that Judge Weinstein's opinion "might be considered a judicial mugging of parallel state-court proceedings," despite its possible merit as a matter of public policy); RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM at 1617 (1996) [hereinafter HART & WECHSLER] (asking whether a federal judge ever has power to remove a case from state court sua sponte and, if so, what the source of such authority is, and concluding that "[i]n an extraordinary move . . . Judge Weinstein asserted such power under the All Writs Act" in the Agent Orange cases).
5. See, e.g., Martha Minow, Judge for the Situation: Judge Jack Weinstein, Creator of Temporary Administrative Agencies, 97 COLUM. L. REV. 2010, 2030 (1997) (commenting upon Judge Weinstein's and the Second Circuit's handling of the Agent Orange case, In re Agent Orange Prods. Liab. Litig., 475 F. Supp. 928 (E.D.N.Y. 1979), aff'd, 996 F.2d 1425, 1431-32 (2d Cir. 1993). Professor Minow notes that subsequent claims filed in state court were moved "through extraordinary procedural maneuvers" to Judge Weinstein's court, and that the reviewing court approved "the remarkable use of the All Writs Act" to remove a state case to federal court, despite the absence of independent grounds for federal jurisdiction. Id. at 2031. See generally Thomas D. Rowe, Jr., Beyond the Class Action Rule: An Inventory of Statutory Possibilities to Improve the Federal Class Action, 71 N.Y.U. L. REV. 186, 197 (1996) (describing Judge Weinstein's and the Second Circuit's handling of the Agent Orange case as a "judicial tour de force . . . best regarded as an extraordinary remedy for truly extraordinary circumstances"); Geoffrey P. Miller, Overlapping Class Actions, 71 N.Y.U. L. REV. 514, 539 (1996) (stating that Judge Weinstein's opinion "might be considered a judicial mugging of parallel state-court proceedings," despite its possible merit as a matter of public policy); RICHARD H. FALLON, JR., ET AL., HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM at 1617 (1996) [hereinafter HART & WECHSLER] (asking whether a federal judge ever has power to remove a case from state court sua sponte and, if so, what the source of such authority is, and concluding that "[i]n an extraordinary move . . . Judge Weinstein asserted such power under the All Writs Act" in the Agent Orange cases).
6. 28 U.S.C. § 2283 (1994). The Act is quoted infra text accompanying note 19.
7. Although the Article repeatedly speaks of the injunction "of state court proceedings" (or words to that effect), when injunctions are permitted by the Anti-Injunction Act, federal courts may enjoin state proceedings directly, by enjoining state courts, or more commonly, indirectly, by enjoining parties. See, e.g., Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 11.1, at 692-93 (3d ed. 1999); but see HERBERT B. NEWBERG & ALBA CONTE, 2 NEWBERG ON CLASS ACTIONS [hereinafter 2 NEWBERG ON CLASS ACTIONS] § 9.25, at 9-67 (3d ed. 1992) (stating that, "[A]ny injunction against other pending or future suits does not run against other courts of coordinate jurisdiction. Rather, a litigating party before the enjoining court is precluded from litigating in the enjoined court.").
8. Although the Article repeatedly speaks of the injunction "of state court proceedings" (or words to that effect), when injunctions are permitted by the Anti-Injunction Act, federal courts may enjoin state proceedings directly, by enjoining state courts, or more commonly, indirectly, by enjoining parties. See, e.g., Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); ERWIN CHEMERINSKY, FEDERAL JURISDICTION § 11.1, at 692-93 (3d ed. 1999); but see HERBERT B. NEWBERG & ALBA CONTE, 2 NEWBERG ON CLASS ACTIONS [hereinafter 2 NEWBERG ON CLASS ACTIONS] § 9.25, at 9-67 (3d ed. 1992) (stating that, "[A]ny injunction against other pending or future suits does not run against other courts of coordinate jurisdiction. Rather, a litigating party before the enjoining court is precluded from litigating in the enjoined court.").
9. Pub. L. ch. 646, § 1651 (a), 62 Stat. 944, 944 (1948) (codified at 28 U.S.C. § 1651 (1994)).
10. In re County Collector, 96 F.3d 890, 899-900 (7th Cir. 1996).
11. United States v. New York Tel. Co., 434 U.S. 159, 172 (1977).
12. A writ of coram nobis brings before the court that rendered a judgment matters of fact which, if known at the time the judgment was rendered, would have prevented its rendition. The less common writs include writs of audita querela (the initial process in an action by a judgment defendant to obtain relief from the judgment, typically by virtue of some matter arising since rendition of the judgment), certiorari (a writ issued by a superior court to an inferior court, requiring a certified record of a case, to enable the issuing court to determine whether there have been any irregularities), habeas corpus ad prosequendum and testificandum (process to bring a prisoner before the court for trial or to testify), and ne exeat (writ forbidding its addressee from leaving, or from removing property from, the jurisdiction of the court). See generally 28 U.S.C.A. § 1651 (1994) (annotations 621 - end); BLACK'S LAW DICTIONARY (6th ed. 1990).
13. See, e.g., In re Johns-Manville Corp., 27 F.3d 48, 48-49 (2d Cir. 1994) (affirming a stay of all litigation against a personal injury settlement trust); Wesch v. Folsom, 6 F.3d 1465, 1470-74 (11th Cir. 1993), cert. denied, 510 U.S. 1046 (1994) (affirming, "in aid of jurisdiction and to effectuate [the] prior final judgment," an injunction of the prosecution of a state court action in which plaintiffs sought to have congressional districts redrawn. A federal court had imposed redistricting that was to remain in effect until the state legislature adopted a valid redistricting plan); United States v. BNS, Inc., 858 F.2d 456, 461-62 (9th Cir. 1988) (upholding, as modified, a preliminary injunction to preserve the federal court's jurisdiction under the Antitrust Procedure and Penalties Act).
14. New York Tel. Co., 434 U.S. at 174.
15. Id. at 172 (quoting Price v. Johnston, 334 U.S. 266, 282 (1948)).
16. New York Tel. Co., 434 U.S. at 172-73 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 273 (1942)).
17. See, e.g., Clinton v. Goldsmith, 526 U.S. 529 (1999) (addressing an injunction issued by the Court of Appeals for the Armed Services to prevent Goldsmith from being dropped from the rolls of the Air Force, finding the injunction to have been neither in aid of its jurisdiction to review court martial sentences nor necessary in light of the service member's alternative opportunities to seek relief, and stating that the All Writs Act does not enlarge a court's statutory jurisdiction); Pennsylvania Bur. of Correction v. United States Marshals Serv., 474 U.S. 34, 41 (1985) (citation omitted) (rejecting the use of the All Writs Act to enable the Court to review a lower court's determination where jurisdiction did not lie under an express statutory authorization of appeal); Rosenbaum v. Bauer, 120 U.S. 450, 453-56 (1887) (holding that a statutory predecessor of the All Writs Act did not permit the issuance of a writ of mandamus compelling payment of interest or principal of bonds, absent prior satisfaction of the federal courts' jurisdictional requirements); Brittingham v. Commissioner, 451 F.2d 315, 317 (5th Cir. 1971) (finding no independent basis of jurisdiction on which the district court could premise an All Writs order to prevent the IRS from introducing into tax court proceedings documents allegedly obtained in violation of the attorney-client privilege).
18. See, e.g., McIntire v. Wood, 11 U.S. (7 Cranch) 504, 506 (1813) (holding that federal trial court lacked power to issue mandamus to a land office register because mandamus was not necessary to the exercise of a pre-existing federal jurisdiction); United States v. Tablie, 166 F.3d 505, 506-07 (2d Cir. 1999) (finding that the All Writs Act was not an independent source of jurisdiction to equitably undo a valid judgment of conviction); Malone v. Calderon, 165 F.3d 1234, 1237 (9th Cir. 1999) (holding that neither the All Writs Act nor the AIA provided a jurisdictional basis for the issuance of a stay of execution because neither statute supported jurisdiction over the out-of-circuit prison officials who held petitioner in custody).
19. See Goldsmith, 526 U.S. at 529 (citing with approval 16 C. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 3932, at 470 (2d ed. 1996) ("The All Writs Act . . . is not an independent grant of appellate jurisdiction") and 19 J. MOORE & G. PRATT, MOORE'S FEDERAL PRACTICE § 204.02[4] (3d ed. 1998) ("The All Writs Act cannot enlarge a court's jurisdiction.")).
20. Pennsylvania Bur. of Correction, 474 U.S. at 41 (describing the Court's early view of the scope of the provision).
21. Id. at 43. Accord United States v. FMC Corp., 84 S. Ct. 4 (1963) (stating that the All Writs Act could not be employed to evade specific restrictions of the Expediting Act of 1903, 15 U.S.C. § 29, or to subvert its purposes, and refusing to issue a common law writ of certiorari following denial of an injunction by the district judge where no appeal lay from an interlocutory order in an antitrust case before a single district judge); Florida Med. Ass'n v. United States Dep't of HEW, 601 F.2d 199, 202 (5th Cir. 1979) (holding that the All Writs Act does not free a court from the requirements established by Rule 65 of the Federal Rules of Civil Procedure, governing the issuance of temporary restraining orders and preliminary injunctions).
22. See, e.g., United States Alkali Export Ass'n v. United States, 325 U.S. 196, 203-04 (1945) (stating that "where [a] statutory scheme permits appellate review of interlocutory orders only on appeal from the final judgment, review by certiorari or other extraordinary writ is not permissible in the face of the plain indication of the legislative purpose to avoid piecemeal reviews," but nonetheless granting certiorari to review a district court's order denying a motion to dismiss predicated on lack of jurisdiction). Cf. Walker v. Armco Steel Co., 446 U.S. 740, 750 (1980) (holding that Rule 3 of the Federal Rules of Civil Procedure governs the date from which various timing requirements begin to run, but does not determine the manner in which an action is commenced for purposes of determining whether a state statute of limitations has been tolled).
23. 28 U.S.C. § 2283 (1994).
24. See Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 333, 335 (1793) (stating that, "nor shall a writ of injunction be granted [by a federal court] to stay proceedings in any court of a state"); Mitchum v. Foster, 407 U.S. 225, 231-32 (1972) (finding as stated in the text); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 285 (1970) (same). With respect to the history of the AIA, see generally CHEMERINSKY, supra note 4, § 11.2.1, at 690-92; David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U. CHI. L. REV. 268, 321-22 (1968) (discussing the history leading to the 1948 revisions); Mayton, Ersatz Federalism Under the Anti-Injunction Statute, 78 COLUM. L. REV. 330, 332-38, 338-46, 349-51 (1978) (discussing the predecessor Act's legislative history, the early federal court practice under the pre-1948 form of the Act, and the developments under the 1948 revision); Martin H. Redish, The Anti-Injunction Statute Reconsidered, 44 U. CHI. L. REV. 717, 719-22 (1977); Comment, Federal Court Stays of State Court Proceedings: A Re-examination of Original Congressional Intent, 38 U. CHI. L. REV. 612, 624 (1971) (hereinafter Federal Court Stays) (arguing that the Act was not intended to prevent federal stays of state proceedings by writs other than injunction).
25. See Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 333, 335 (1793) (stating that, "nor shall a writ of injunction be granted [by a federal court] to stay proceedings in any court of a state"); Mitchum v. Foster, 407 U.S. 225, 231-32 (1972) (finding as stated in the text); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 285 (1970) (same). With respect to the history of the AIA, see generally CHEMERINSKY, supra note 4, § 11.2.1, at 690-92; David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U. CHI. L. REV. 268, 321-22 (1968) (discussing the history leading to the 1948 revisions); Mayton, Ersatz Federalism Under the Anti-Injunction Statute, 78 COLUM. L. REV. 330, 332-38, 338-46, 349-51 (1978) (discussing the predecessor Act's legislative history, the early federal court practice under the pre-1948 form of the Act, and the developments under the 1948 revision); Martin H. Redish, The Anti-Injunction Statute Reconsidered, 44 U. CHI. L. REV. 717, 719-22 (1977); Comment, Federal Court Stays of State Court Proceedings: A Re-examination of Original Congressional Intent, 38 U. CHI. L. REV. 612, 624 (1971) (hereinafter Federal Court Stays) (arguing that the Act was not intended to prevent federal stays of state proceedings by writs other than injunction).
26. See Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 333, 335 (1793) (stating that, "nor shall a writ of injunction be granted [by a federal court] to stay proceedings in any court of a state"); Mitchum v. Foster, 407 U.S. 225, 231-32 (1972) (finding as stated in the text); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 285 (1970) (same). With respect to the history of the AIA, see generally CHEMERINSKY, supra note 4, § 11.2.1, at 690-92; David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U. CHI. L. REV. 268, 321-22 (1968) (discussing the history leading to the 1948 revisions); Mayton, Ersatz Federalism Under the Anti-Injunction Statute, 78 COLUM. L. REV. 330, 332-38, 338-46, 349-51 (1978) (discussing the predecessor Act's legislative history, the early federal court practice under the pre-1948 form of the Act, and the developments under the 1948 revision); Martin H. Redish, The Anti-Injunction Statute Reconsidered, 44 U. CHI. L. REV. 717, 719-22 (1977); Comment, Federal Court Stays of State Court Proceedings: A Re-examination of Original Congressional Intent, 38 U. CHI. L. REV. 612, 624 (1971) (hereinafter Federal Court Stays) (arguing that the Act was not intended to prevent federal stays of state proceedings by writs other than injunction).
27. See Act of Mar. 2, 1793, ch. 22, § 5, 1 Stat. 333, 335 (1793) (stating that, "nor shall a writ of injunction be granted [by a federal court] to stay proceedings in any court of a state"); Mitchum v. Foster, 407 U.S. 225, 231-32 (1972) (finding as stated in the text); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 285 (1970) (same). With respect to the history of the AIA, see generally CHEMERINSKY, supra note 4, § 11.2.1, at 690-92; David P. Currie, The Federal Courts and the American Law Institute, Part II, 36 U. CHI. L. REV. 268, 321-22 (1968) (discussing the history leading to the 1948 revisions); Mayton, Ersatz Federalism Under the Anti-Injunction Statute, 78 COLUM. L. REV. 330, 332-38, 338-46, 349-51 (1978) (discussing the predecessor Act's legislative history, the early federal court practice under the pre-1948 form of the Act, and the developments under the 1948 revision); Martin H. Redish, The Anti-Injunction Statute Reconsidered, 44 U. CHI. L. REV. 717, 719-22 (1977); Comment, Federal Court Stays of State Court Proceedings: A Re-examination of Original Congressional Intent, 38 U. CHI. L. REV. 612, 624 (1971) (hereinafter Federal Court Stays) (arguing that the Act was not intended to prevent federal stays of state proceedings by writs other than injunction).
28. Toucey v. New York Life Ins. Co., 314 U.S. 118, 135 (1941).
29. Congress authorized anti-suit injunctions in some legislation, including the bankruptcy laws, the Interpleader Act, ch. 273, § 2, 44 Stat. 416 (1926), and legislation conferring federal jurisdiction over farm mortgages, while the courts indicated that some other statutes, including a limitation of liability act for ship-owners and recodified removal statutes, expressly or impliedly authorized other anti-suit injunctions. See, e.g., Mitchum v. Foster, 407 U.S. 225, 234-36 (1972).
30. A predecessor provision to the AIA stated that, "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a State, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." Ch. 12, § 720, 18 Stat. 137 (1874) (codified at 28 U.S.C. § 279) (repealed). The Court in Toucey observed that the relitigation doctrine "patently violates the expressed prohibition of Congress," and narrowly construed the Act to limit federal court injunctions of state court litigation in which parties sought to relitigate issues previously resolved in federal court, despite precedent that had created numerous exceptions to its prohibition. See Toucey, 314 U.S. at 139. For a discussion of the pre-Toucey interpretation of the AIA, see Edgar Noble Durfee & Robert L. Sloss, Federal Injunction Against Proceedings in State Courts: The Life History of a Statute, 30 MICH. L. REV. 1145 (1932).
31. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see also H.R. REP. No. 80-308, at A81-82 (1947) (stating that the revision "restores the basic law as generally understood and interpreted prior to the Toucey decision"). Congress's intent was to overrule Toucey and, among other things, "permit federal courts to enjoin state court proceedings that threaten to undermine earlier federal court judgments." CHEMERINSKY, supra note 4, § 11.2, at 692. For additional commentary about the history and interpretation of the AIA, see CHEMERINSKY, supra note 4, § 11.2, at 692-707; LINDA MULLENIX, ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION, § 12.01[5], at 399 (1998); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 309-36 (2d ed. 1990); 17 WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2d §§ 4221-26 (1988 & 1999 Pocket Part); Currie, supra note 20, at 321-25; John Daniel Reaves & David S. Golden, The Federal Anti-Injunction Statute in the Aftermath of Atlantic Coast Line Railroad, 5 GA. L. REV. 294 (1971); Edward F. Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 BYU L. REV. 925 (1995); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PENN. L. REV. 91, 93 nn. 13-14, 117, 150-56, 158-64, 170-74 (1998); Telford Taylor and Everett I. Willis, The Power of the Federal Courts to Enjoin Proceedings in State Courts, 42 YALE L.J. 1169 (1933); Paul W. Werner, Antisuit Injunctions Under the Complex Litigation Proposal: Harmonizing the Sirens' Song of Efficiency and Fairness with the Hymn of Judicial Federalism and Comity, 1995 BYU L. REV. 1041 (1995).
32. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see also H.R. REP. No. 80-308, at A81-82 (1947) (stating that the revision "restores the basic law as generally understood and interpreted prior to the Toucey decision"). Congress's intent was to overrule Toucey and, among other things, "permit federal courts to enjoin state court proceedings that threaten to undermine earlier federal court judgments." CHEMERINSKY, supra note 4, § 11.2, at 692. For additional commentary about the history and interpretation of the AIA, see CHEMERINSKY, supra note 4, § 11.2, at 692-707; LINDA MULLENIX, ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION, § 12.01[5], at 399 (1998); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 309-36 (2d ed. 1990); 17 WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2d §§ 4221-26 (1988 & 1999 Pocket Part); Currie, supra note 20, at 321-25; John Daniel Reaves & David S. Golden, The Federal Anti-Injunction Statute in the Aftermath of Atlantic Coast Line Railroad, 5 GA. L. REV. 294 (1971); Edward F. Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 BYU L. REV. 925 (1995); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PENN. L. REV. 91, 93 nn. 13-14, 117, 150-56, 158-64, 170-74 (1998); Telford Taylor and Everett I. Willis, The Power of the Federal Courts to Enjoin Proceedings in State Courts, 42 YALE L.J. 1169 (1933); Paul W. Werner, Antisuit Injunctions Under the Complex Litigation Proposal: Harmonizing the Sirens' Song of Efficiency and Fairness with the Hymn of Judicial Federalism and Comity, 1995 BYU L. REV. 1041 (1995).
33. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see also H.R. REP. No. 80-308, at A81-82 (1947) (stating that the revision "restores the basic law as generally understood and interpreted prior to the Toucey decision"). Congress's intent was to overrule Toucey and, among other things, "permit federal courts to enjoin state court proceedings that threaten to undermine earlier federal court judgments." CHEMERINSKY, supra note 4, § 11.2, at 692. For additional commentary about the history and interpretation of the AIA, see CHEMERINSKY, supra note 4, § 11.2, at 692-707; LINDA MULLENIX, ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION, § 12.01[5], at 399 (1998); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 309-36 (2d ed. 1990); 17 WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2d §§ 4221-26 (1988 & 1999 Pocket Part); Currie, supra note 20, at 321-25; John Daniel Reaves & David S. Golden, The Federal Anti-Injunction Statute in the Aftermath of Atlantic Coast Line Railroad, 5 GA. L. REV. 294 (1971); Edward F. Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 BYU L. REV. 925 (1995); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PENN. L. REV. 91, 93 nn. 13-14, 117, 150-56, 158-64, 170-74 (1998); Telford Taylor and Everett I. Willis, The Power of the Federal Courts to Enjoin Proceedings in State Courts, 42 YALE L.J. 1169 (1933); Paul W. Werner, Antisuit Injunctions Under the Complex Litigation Proposal: Harmonizing the Sirens' Song of Efficiency and Fairness with the Hymn of Judicial Federalism and Comity, 1995 BYU L. REV. 1041 (1995).
34. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see also H.R. REP. No. 80-308, at A81-82 (1947) (stating that the revision "restores the basic law as generally understood and interpreted prior to the Toucey decision"). Congress's intent was to overrule Toucey and, among other things, "permit federal courts to enjoin state court proceedings that threaten to undermine earlier federal court judgments." CHEMERINSKY, supra note 4, § 11.2, at 692. For additional commentary about the history and interpretation of the AIA, see CHEMERINSKY, supra note 4, § 11.2, at 692-707; LINDA MULLENIX, ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION, § 12.01[5], at 399 (1998); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 309-36 (2d ed. 1990); 17 WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2d §§ 4221-26 (1988 & 1999 Pocket Part); Currie, supra note 20, at 321-25; John Daniel Reaves & David S. Golden, The Federal Anti-Injunction Statute in the Aftermath of Atlantic Coast Line Railroad, 5 GA. L. REV. 294 (1971); Edward F. Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 BYU L. REV. 925 (1995); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PENN. L. REV. 91, 93 nn. 13-14, 117, 150-56, 158-64, 170-74 (1998); Telford Taylor and Everett I. Willis, The Power of the Federal Courts to Enjoin Proceedings in State Courts, 42 YALE L.J. 1169 (1933); Paul W. Werner, Antisuit Injunctions Under the Complex Litigation Proposal: Harmonizing the Sirens' Song of Efficiency and Fairness with the Hymn of Judicial Federalism and Comity, 1995 BYU L. REV. 1041 (1995).
35. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see also H.R. REP. No. 80-308, at A81-82 (1947) (stating that the revision "restores the basic law as generally understood and interpreted prior to the Toucey decision"). Congress's intent was to overrule Toucey and, among other things, "permit federal courts to enjoin state court proceedings that threaten to undermine earlier federal court judgments." CHEMERINSKY, supra note 4, § 11.2, at 692. For additional commentary about the history and interpretation of the AIA, see CHEMERINSKY, supra note 4, § 11.2, at 692-707; LINDA MULLENIX, ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION, § 12.01[5], at 399 (1998); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 309-36 (2d ed. 1990); 17 WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2d §§ 4221-26 (1988 & 1999 Pocket Part); Currie, supra note 20, at 321-25; John Daniel Reaves & David S. Golden, The Federal Anti-Injunction Statute in the Aftermath of Atlantic Coast Line Railroad, 5 GA. L. REV. 294 (1971); Edward F. Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 BYU L. REV. 925 (1995); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PENN. L. REV. 91, 93 nn. 13-14, 117, 150-56, 158-64, 170-74 (1998); Telford Taylor and Everett I. Willis, The Power of the Federal Courts to Enjoin Proceedings in State Courts, 42 YALE L.J. 1169 (1933); Paul W. Werner, Antisuit Injunctions Under the Complex Litigation Proposal: Harmonizing the Sirens' Song of Efficiency and Fairness with the Hymn of Judicial Federalism and Comity, 1995 BYU L. REV. 1041 (1995).
36. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see also H.R. REP. No. 80-308, at A81-82 (1947) (stating that the revision "restores the basic law as generally understood and interpreted prior to the Toucey decision"). Congress's intent was to overrule Toucey and, among other things, "permit federal courts to enjoin state court proceedings that threaten to undermine earlier federal court judgments." CHEMERINSKY, supra note 4, § 11.2, at 692. For additional commentary about the history and interpretation of the AIA, see CHEMERINSKY, supra note 4, § 11.2, at 692-707; LINDA MULLENIX, ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION, § 12.01[5], at 399 (1998); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 309-36 (2d ed. 1990); 17 WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2d §§ 4221-26 (1988 & 1999 Pocket Part); Currie, supra note 20, at 321-25; John Daniel Reaves & David S. Golden, The Federal Anti-Injunction Statute in the Aftermath of Atlantic Coast Line Railroad, 5 GA. L. REV. 294 (1971); Edward F. Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 BYU L. REV. 925 (1995); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PENN. L. REV. 91, 93 nn. 13-14, 117, 150-56, 158-64, 170-74 (1998); Telford Taylor and Everett I. Willis, The Power of the Federal Courts to Enjoin Proceedings in State Courts, 42 YALE L.J. 1169 (1933); Paul W. Werner, Antisuit Injunctions Under the Complex Litigation Proposal: Harmonizing the Sirens' Song of Efficiency and Fairness with the Hymn of Judicial Federalism and Comity, 1995 BYU L. REV. 1041 (1995).
37. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286 (1970); see also H.R. REP. No. 80-308, at A81-82 (1947) (stating that the revision "restores the basic law as generally understood and interpreted prior to the Toucey decision"). Congress's intent was to overrule Toucey and, among other things, "permit federal courts to enjoin state court proceedings that threaten to undermine earlier federal court judgments." CHEMERINSKY, supra note 4, § 11.2, at 692. For additional commentary about the history and interpretation of the AIA, see CHEMERINSKY, supra note 4, § 11.2, at 692-707; LINDA MULLENIX, ET AL., UNDERSTANDING FEDERAL COURTS AND JURISDICTION, § 12.01[5], at 399 (1998); MARTIN H. REDISH, FEDERAL JURISDICTION: TENSIONS IN THE ALLOCATION OF JUDICIAL POWER 309-36 (2d ed. 1990); 17 WRIGHT, ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION 2d §§ 4221-26 (1988 & 1999 Pocket Part); Currie, supra note 20, at 321-25; John Daniel Reaves & David S. Golden, The Federal Anti-Injunction Statute in the Aftermath of Atlantic Coast Line Railroad, 5 GA. L. REV. 294 (1971); Edward F. Sherman, Antisuit Injunction and Notice of Intervention and Preclusion: Complementary Devices to Prevent Duplicative Litigation, 1995 BYU L. REV. 925 (1995); Jean R. Sternlight, Forum Shopping for Arbitration Decisions: Federal Courts' Use of Antisuit Injunctions Against State Courts, 147 U. PENN. L. REV. 91, 93 nn. 13-14, 117, 150-56, 158-64, 170-74 (1998); Telford Taylor and Everett I. Willis, The Power of the Federal Courts to Enjoin Proceedings in State Courts, 42 YALE L.J. 1169 (1933); Paul W. Werner, Antisuit Injunctions Under the Complex Litigation Proposal: Harmonizing the Sirens' Song of Efficiency and Fairness with the Hymn of Judicial Federalism and Comity, 1995 BYU L. REV. 1041 (1995).
38. Currie, supra note 20, at 322. For a related discussion of Toucey, see supra note 23 and accompanying text.
39. See, e.g., In re County Collector, 96 F.3d 890, 901-02 (7th Cir. 1996) (observing that cases under the AIA "can be extremely helpful" in interpreting the All Writs Act, and that the two Acts have been similarly interpreted to allow federal courts to issue commands appropriate to effectuate and prevent frustration of previously issued federal orders and judgments) (citing United States v. New York Tel. Co., 43 U.S. 159, 172 (1977) for the latter proposition); In re Baldwin-United Corp., 770 F.2d 328, 335 (2d Cir. 1985) (stating that cases interpreting the "necessary in aid of jurisdiction" exception to the AIA are "helpful in understanding the meaning of the All-Writs Act"); United States v. District of Columbia, 654 F.2d 802, 809 n. 16 (D.C. Cir. 1981), cert. denied, 454 U.S. 1082 (1981) (same as Baldwin-United).
40. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 630 (1977) (stating that purpose of AIA is to forestall the friction that ensues from federal injunction of state judicial proceedings); Atlantic Coast, 398 U.S. at 286 (finding that AIA was at least in part a response to pressures to avoid needless friction between the state and federal courts); Leiter Minerals v. United States, 352 U.S. 220, 225 (1957) (holding that, because the AIA's purpose is to prevent conflict between federal and state courts and that policy is much more compelling in litigation between private parties than when the United States seeks a stay, the Act is not applicable to stays sought by the United States). Commentators are less certain about the Act's purposes and have differed some in the purposes they have discerned. See, e.g., Currie, supra note 20, at 322 (finding "dense clouds of ambiguity" and calling the AIA the "most obscure of all jurisdictional statutes"); Werner, supra note 24, at 1963-64 (describing the policies served by the AIA as judicial comity, i.e. non-interference, and judicial federalism, i.e. independent operation of the federal and state court systems, protecting the independent authority of each); Federal Court Stays, supra note 20, at 614 n.16 (looking to the legislative history of the original all-writs and anti-injunction statutes).
41. See County Collector, 96 F.3d at 902 (finding that both Acts seek to prevent interference with federal court judgments); see also supra text accompanying note 26.
42. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 586 (1999).
43. See 28 U.S.C. § 1446(d) (1994) (stating that filing a copy of the notice of removal with the clerk of the state court effects removal and "the State court shall proceed no further unless and until the case is remanded"); 28 U.S.C. § 2283 (Reviser's Note) (stating that the phrase "in aid of its jurisdiction" was added to conform to the All Writs statute and "to make clear the recognized power of the Federal courts to stay proceedings in State cases removed to the district courts"); French v. Hay, 89 U.S. (22 Wall.) 250 (1874) (holding inapplicable the prohibition of the anti-injunction act, as it then existed, where a case had been properly removed, and stating that the prior jurisdiction of the federal court took the case out of the operation of the anti-injunction provision). See also Chemerinsky, supra note 4, § 11.2; Diane P. Wood, Fine-Timing Judicial Federalism: A Proposal for Reform of the Anti-Injunction Act, 1990 BYU L. REV. 289, 299 (stating that most of the value of removal would be lost if a state court could continue adjudicating a case after removal, both because this would waste resources and because the result of the state court litigation would be binding if the state case reached judgment first); Federal Court Stays, supra note 20, at 615 (arguing inter alia that Congress must have expected federal courts to stay proceedings in state court that violated the explicit statutory duty of states to proceed no further when an action had been removed pursuant to the Judiciary Act of 1789).
44. See Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 640 (1977) (citing § 1446(d), then codified as § 1446(e), among the express authorizations of injunctions referred to by the AIA); Mitchum v. Foster, 407 U.S. 225, 234, 237 (1972) (stating that a statute may authorize injunctions if it "create[s] a specific and uniquely federal right or remedy, enforceable in a federal court of equity, which could be frustrated if the federal proceeding were not empowered to enjoin a state court proceeding"). Other federal statutes explicitly authorizing federal injunctions of state court proceedings are: the Interpleader Act, 28 U.S.C. § 2361 (1994), which authorizes a federal court to issue "its process for all claimants and enter its order restraining them from instituting or prosecuting any proceeding in any State or United States court," and bankruptcy law, 11 U.S.C. § 362 (1993 & Supp. 1999), which authorizes an automatic stay of creditor actions in bankruptcy proceedings. These injunctive provisions are intended to permit all claims to a limited fund that have been made the subject of a statutory interpleader action or a bankruptcy proceeding, respectively, to be decided in one action, thus preventing inconsistent determinations or inequitable distribution of the limited fund. When a federal court is faced with determining whether a federal statute does expressly authorize an injunction of state court proceedings, Mitchum described the test to be applied as "whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding." Mitchum, 407 U.S. at 238. 42 U.S.C. § 1983 is the only statute that the Court has interpreted to imply a power to enjoin state court proceedings. See CHEMERINSKY, supra note 4, at 698. Professor Currie has written that, Apparently the Reviser hoped to emphasize that authorization for an injunction against suit was not to be lightly inferred, but the result has been nothing but confusion . . . . Thus the second category of cases in which state suits may be enjoined, like the first, is framed in language so vague as to defy construction except by reference to the pre-existing law that it was intended to codify; and it conforms but poorly to the policies that ought to determine the availability of such injunctions. Currie, supra note 20, at 322-24.
45. "The Supreme Court has yet to uphold an injunction against state proceedings on this basis." HART & WECHSLER, supra note 2, at 1201 (citation omitted).
46. See Princess Lida v. Thompson, 305 U.S. 456, 466 (1939) (holding that the filing of trust accounts gave a state court quasi in rem jurisdiction which empowered it to enjoin a later federal action against the trustees for an accounting and other relief). The holding in Princess Lida is an exception to the general rule that "state courts are completely without power to restrain federal-court proceedings in inpersonam actions." Donovan v. City of Dallas, 377 U.S. 408 (1964); see also General Atomic Co. v. Felter, 434 U.S. 12, 17 (1977) (holding it beyond the power of state courts and in conflict with the Supremacy Clause for state courts to enjoin litigants from filing or prosecuting in personam actions in federal courts, and stating that rights conferred by Congress "are not subject to abridgement by state-court injunctions"). See generally Alan D. Hornstein & P. Michael Nagle, State Court Power to Enjoin Federal Judicial Proceedings: Donovan v. City of Dallas Revisited, 60 WASH. U. L.Q. 1 (1982).
47. See Vendo, 433 U.S. at 642 (1977) (plurality opinion) (noting that the Court never has viewed parallel in personam actions as interfering with the jurisdiction of either the state or the federal court and that no decision of the Court ever has held an injunction to preserve an in personam case or controversy to fit within the "necessary in aid of its jurisdiction" exception); Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 295 (1970); Amalgamated Clothing Workers v. Richman Bros., 348 U.S. 511, 514, 517 (1955). In Capital Services, Inc. v. N.L.R.B., 347 U.S. 501 (1954), the Court had affirmed a preliminary injunction against enforcement of an anti-picketing injunction issued by a state court. See Capital Serv., 347 U.S. at 505. In Amalgamated Clothing Workers, the Court construed Capital Services as having been decided under the "expressly authorized" exception and offered reasons why it should not be read to be inconsistent with the principle discussed in the text. See Amalgamated Clothing Workers, 348 U.S. at 516-17. Capital Services also can be understood as falling within the later announced rule that anti-suit injunctions may be entered in actions by the United States or its agencies; in Capital Services, it was the NLRB that obtained the federal injunction. See HART & WECHSLER, supra note 2, at 1205 n.8; see also Mandeville v. Canterbury, 318 U.S. 47, 49 (1943) (stating that this exception is necessary "to prevent the impasse that would arise if the federal court were unable to maintain its possession and control of the property, which are indispensable to the exercise of the jurisdiction it has assumed"); Kline v. Burke Constr. Co., 260 U.S. 226, 229-35 (1922) (stating that, "Where the action is in rem . . . the exercise by the state court of jurisdiction over the same res necessarily impairs, and may defeat, the jurisdiction of the federal court already attached . . . . But a controversy is not a thing, and an action brought to enforce . . . a [personal] liability does not tend to impair or defeat the jurisdiction of the court in which a prior action for the same cause is pending"); but see Transouth Fin. Corp. v. Bell, 149 F.3d 1292, 1296 (11th Cir. 1998) (emphasizing that the Vendo opinion commanded only a plurality of the Court, and that the concurrence did not adopt the position that the "in aid of jurisdiction" exception applies exclusively to in rem proceedings). The only in personam cases in which the Eleventh Circuit approved application of the "in aid of jurisdiction" exception, however, were actions that had been removed from state court. See Transouth, 149 F.3d at 1297. The Transouth court mentioned that some district courts have relied upon the "necessary in aid" exception to stay state court proceedings after granting a motion to compel arbitration, in order to ensure that the federal court would have the opportunity to pass on the validity of the arbitration award. The court did not explicitly approve this practice, however. See id.; see generally, CHEMERINSKY, supra note 4, § 11.2, at 699-703. For criticism of the in rem limitation, see Wood, supra note 30, at 302, who criticizes the in personam/in rem distinction inter alia on the ground that it is exceedingly artificial, as recognized by the Court in the context of decisions concerning personal jurisdiction. See, e.g., Shaffer v. Heitner, 433 U.S. 186, 205 (1977) (rejecting the distinction between in personam and in rem jurisdiction for purposes of applying minimum contacts analysis to determine the constitutionality of an assertion of quasi-in rem jurisdiction over a person by seizure of his stock); Mullane v. Central Hanover Bank, 339 U.S. 306, 312 (1950) (describing the standards of the in personam/in rem classification as "elusive and confused"); Mayton, supra note 20, at 357-63 (criticizing the limitation on the utility of the "in aid of jurisdiction" exception imposed by application only to protect a "res" and arguing that the exception reflects Congress's adoption of a federal court practice limiting the in rem/in personam distinction to instances of concurrent jurisdiction where an injunction is sought merely to protect a choice of forum in diversity cases); Redish, supra note 20, at 746-48 (regarding the distinction between in rem and in personam actions, for suit injunction purposes, as dubious, because the cases have not persuasively explained why the impairment of a federal court's jurisdiction is greater when concurrent actions are in rem and the binding effects of res judicata and collateral estoppel seem equally to confine or impair federal jurisdiction in the two contexts).
48. See Sovereign Camp Woodmen of the World v. O'Neill, 266 U.S. 292, 298 (1924).
49. See, e.g., Battle v. Liberty Nat'l Life Ins. Co., 877 F.2d 877, 881-82 (11th Cir. 1989) (finding lengthy litigation that had generated "mountains of paperwork . . . similar to a res to be administered"); In re Baldwin-United Corp., 770 F.2d 328, 337-38 (2d Cir. 1985) (finding lengthy litigation to have become the virtual equivalent of a res, where state court actions threatened to impair the federal court's authority to approve settlements in multi-district class litigation, and analogizing the jurisdiction of a multi-district court to courts acting in rem). Both these cases rejected, as unsupported by case law holdings, the contention that this exception to the AIA applies only to "true" in rem proceedings; see also In re Joint E. & S. Dist. Asbestos Litig., 120 B.R. 648, 657-8 (E.D.N.Y. & S.D.N.Y. 1990) (enjoining all proceedings against a personal injury settlement trust created in a bankruptcy proceeding and also relying upon the district court's continuing jurisdiction over the settlement trust's reorganization). See generally, 17 WRIGHT, ET AL., supra note 24, § 4225, at 528-32.
50. See, e.g., Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202-03 (7th Cir. 1996) (concluding in dicta that courts in multidistrict litigation could issue an injunction to protect the integrity of pretrial discovery orders, so long as the injunction was narrowly tailored to prevent specific abuses that threatened the court's ability to effectively manage the litigation); Wesch v. Folsom, 6 F.3d 1465, 1470-71 (11th Cir. 1993) (holding that exception permitted federal court to enjoin state suit that sought congressional redistricting where federal court had issued a redistricting order to remain in effect until state legislature replaced it with a valid plan); In re Corrugated Container Antitrust Action Litig., 659 F.2d 1332, 1334-35 (5th Cir. 1981) (approving injunction of state proceedings by plaintiffs who were parties to consolidated federal multi-district litigation and were asserting state law claims substantially similar to the claims that already had been settled and approved, although no final judgment had yet been entered in the federal litigation); Valley v. Rapides Parish Sch. Bd., 646 F.2d 925, 942-43 (5th Cir. 1981), rev'd on other grounds, 653 F.2d 941 (5th Cir. 1981), (approving an injunction against state proceedings that sought to undermine a federally ordered desegregation plan); Swann v. Charlotte-Mecklenburg Bd. of Educ., 501 F.2d 383, 383-84 (4th Cir. 1974) (approving injunction as necessary in aid of a district court's jurisdiction in a desegregation suit where issues in the state court suit could not be separated from issues and relief involved in the federal court suit). See generally, Steven M. Larimore, Exploring the Interface Between Rule 23 Class Actions and the Anti-Injunction Act, 18 GA. L. REV. 259, 292-94 (1984) (arguing that, because injunctions of state court proceedings issued in relation to properly certified mandatory class actions usually will be necessary to aid a federal court's jurisdiction, courts should strongly presume that injunctions in such cases are proper, but courts also should consider case-by-case the extent of federal and state interests in the respective litigations, the litigants' interests, and systemic and policy concerns such as efficiently providing adequate relief to the greatest number of injured parties); Redish, supra note 20, at 748-60 (describing departures from the in rem limitation upon the "in aid of jurisdiction" clause and arguing for a liberalized interpretation to give federal courts power to enjoin any concurrent state proceeding that threatens the effective exercise of federal jurisdiction but that would constrain exercises of that power by the sound use of discretion). It should be noted, however, that many of the cases cited above involved post-judgment federal injunctions of state court litigation, defensible under the relitigation exception to the AIA. As such, the courts' conclusions concerning the "necessary in aid of jurisdiction" exception were, at most, alternative holdings, and have less authoritative effect than they would have if the "necessary in aid" exception were the sole basis for the decisions. See Lovilia Coal Co. v. Harvey, 109 F.3d 445, 453 (8th Cir. 1997), cert. denied, 523 U.S. 1059 (1998) (stating that, under federal preclusion principles, holdings in the alternative, either of which would independently suffice to support the result of a case, are not conclusive with respect to either issue standing alone, since neither determination is essential to the judgment); Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008 (7th Cir. 1997) (same); Ritter v. Mount St. Mary's College, 814 F.2d 986, 993 (4th Cir. 1987) (same); RESTATEMENT (SECOND) OF JUDGMENTS § 27, cmt. i (1982) (explaining that "a determination in the alternative may not have been as carefully or rigorously considered as it would have been if it had been necessary to the result"); but see Howard M. Erichson, Interjurisdictional Preclusion, 96 MICH. L. REV. 945, 969 & n.104 (1998) (finding through empirical study that, notwithstanding the view taken by the Restatement, many and perhaps most federal courts give issue preclusive effect to each alternative holding).
51. See, e.g., Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202-03 (7th Cir. 1996) (concluding in dicta that courts in multidistrict litigation could issue an injunction to protect the integrity of pretrial discovery orders, so long as the injunction was narrowly tailored to prevent specific abuses that threatened the court's ability to effectively manage the litigation); Wesch v. Folsom, 6 F.3d 1465, 1470-71 (11th Cir. 1993) (holding that exception permitted federal court to enjoin state suit that sought congressional redistricting where federal court had issued a redistricting order to remain in effect until state legislature replaced it with a valid plan); In re Corrugated Container Antitrust Action Litig., 659 F.2d 1332, 1334-35 (5th Cir. 1981) (approving injunction of state proceedings by plaintiffs who were parties to consolidated federal multi-district litigation and were asserting state law claims substantially similar to the claims that already had been settled and approved, although no final judgment had yet been entered in the federal litigation); Valley v. Rapides Parish Sch. Bd., 646 F.2d 925, 942-43 (5th Cir. 1981), rev'd on other grounds, 653 F.2d 941 (5th Cir. 1981), (approving an injunction against state proceedings that sought to undermine a federally ordered desegregation plan); Swann v. Charlotte-Mecklenburg Bd. of Educ., 501 F.2d 383, 383-84 (4th Cir. 1974) (approving injunction as necessary in aid of a district court's jurisdiction in a desegregation suit where issues in the state court suit could not be separated from issues and relief involved in the federal court suit). See generally, Steven M. Larimore, Exploring the Interface Between Rule 23 Class Actions and the Anti-Injunction Act, 18 GA. L. REV. 259, 292-94 (1984) (arguing that, because injunctions of state court proceedings issued in relation to properly certified mandatory class actions usually will be necessary to aid a federal court's jurisdiction, courts should strongly presume that injunctions in such cases are proper, but courts also should consider case-by-case the extent of federal and state interests in the respective litigations, the litigants' interests, and systemic and policy concerns such as efficiently providing adequate relief to the greatest number of injured parties); Redish, supra note 20, at 748-60 (describing departures from the in rem limitation upon the "in aid of jurisdiction" clause and arguing for a liberalized interpretation to give federal courts power to enjoin any concurrent state proceeding that threatens the effective exercise of federal jurisdiction but that would constrain exercises of that power by the sound use of discretion). It should be noted, however, that many of the cases cited above involved post-judgment federal injunctions of state court litigation, defensible under the relitigation exception to the AIA. As such, the courts' conclusions concerning the "necessary in aid of jurisdiction" exception were, at most, alternative holdings, and have less authoritative effect than they would have if the "necessary in aid" exception were the sole basis for the decisions. See Lovilia Coal Co. v. Harvey, 109 F.3d 445, 453 (8th Cir. 1997), cert. denied, 523 U.S. 1059 (1998) (stating that, under federal preclusion principles, holdings in the alternative, either of which would independently suffice to support the result of a case, are not conclusive with respect to either issue standing alone, since neither determination is essential to the judgment); Peabody Coal Co. v. Spese, 117 F.3d 1001, 1008 (7th Cir. 1997) (same); Ritter v. Mount St. Mary's College, 814 F.2d 986, 993 (4th Cir. 1987) (same); RESTATEMENT (SECOND) OF JUDGMENTS § 27, cmt. i (1982) (explaining that "a determination in the alternative may not have been as carefully or rigorously considered as it would have been if it had been necessary to the result"); but see Howard M. Erichson, Interjurisdictional Preclusion, 96 MICH. L. REV. 945, 969 & n.104 (1998) (finding through empirical study that, notwithstanding the view taken by the Restatement, many and perhaps most federal courts give issue preclusive effect to each alternative holding).
52. See, e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024-25 (9th Cir. 1998) (holding court empowered by the All Writs Act, the AIA, and Fed. R. Civ. P. 23(d) to stay a state class action that directly contravened a prior injunction against such a proceeding, entered in a nationwide class action, and further holding the temporary approval of a nationwide settlement in the federal class action to have stayed the state class action); Carlough v. Amchem Prods., Inc., 10 F.3d 189, 202-04 (3d Cir. 1993) (holding that district court could preliminarily enjoin plaintiff class members from prosecuting similar state court class action in light of imminent settlement of federal action after years of negotiation, plaintiffs' effort to challenge propriety of federal suit in state court, and plaintiffs' right to opt out of the federal suit); Standard Microsystems Corp. v. Texas Instr. Inc., 916 F.2d 58, 60 (2d Cir. 1990) (indicating that a stay of state court proceedings may be appropriate under the necessary in aid of jurisdiction exception "where a federal court is on the verge of settling a complex matter, and state court proceedings may undermine its ability to achieve that objective"); see also James v. Bellotti, 733 F.2d 989, 993 (1st Cir. 1984) (concluding that a federal court properly could enjoin a state court action in which parties sought an injunction against the signing of a proposed federal court settlement of land claims). But see In re Federal Skywalk Cases, 680 F.2d 1175, 1181-83 (8th Cir. 1982) (reversing, as in violation of the AIA, a mandatory class certification which prohibited class members from settling punitive damages claims and effectively enjoined state plaintiffs from pursuing pending state court actions on issues of liability); Broussard v. Meineke Discount Muffler Shops, Inc., 903 F. Supp. 16, 18 (W.D.N.C. 1995) (holding that AIA prohibited federal court from enjoining federal class members from continuing in personam state actions concerning same issues, although it permitted an injunction against the institution of new state proceedings). In general, however, the relitigation exception of the AIA does not permit a federal court to enjoin state proceedings to protect a judgment that the court contemplates but has not yet entered. See 17 WRIGHT, ET AL., supra note 24, § 4226, at 548-49.
53. The Court's interpretation of the "necessary in aid" exception thus has been under attack as too narrow. At the same time, it sometimes has been criticized as overbroad in those situations where federal judgments have been issued. Then, traditional principles of preclusion should ensure that state courts will not act in a manner inconsistent with or undermining of the federal judgments. See CHEMERINSKY, supra note 4, § 11.2.4, at 654-55.
54. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 294-95 (1970) (stressing that federal courts lack inherent and unlimited power to ignore the bounds of anti-injunction statutes and to stay state court proceedings).
55. Choo v. Exxon Corp., 486 U.S. 140, 146 (1988) (citing the need to ensure supremacy of federal law as a reason for the "necessary in aid" exception).
56. See Sternlight, supra note 24, at 127. The exception also serves interests in efficiency. Id. at 124.
57. See 28 U.S.C. § 2283 (Reviser's Note) (1999); Choo, 486 U.S. at 146 (rejecting an injunction against state court proceedings insofar as it was broader than necessary to protect or effectuate the federal court's forum non conveniens dismissal but permitting the injunction insofar as it effectuated the federal court's choice of law decision regarding another of plaintiff's claims); Atlantic Coast Line, 398 U.S. at 290 (overturning an injunction against the enforcement of a state court injunction where the prior district court order had not addressed the propriety of a state court injunction); see also Steans v. Combined Ins. Co. of America, 148 F.3d 1266, 1271 (11th Cir. 1998) (holding improper a district court's judgment purporting to bind nonparties over whom it lacked jurisdiction and enjoining those persons from seeking punitive damages from the defendant in state court, based on a need to protect its prior judgment). See generally, CHEMERINSKY, supra note 4, § 11.2.4 at 703-05. The lower federal courts are split as to whether the relitigation exception applies to only those matters that were actually litigated or to all litigation that is precluded; res judicata may bar matters that could have been litigated but were not. Cf., e.g., Hatcher v. Avis Rent-A-Car System, Inc., 152 F.3d 540, 543 (6th Cir. 1998) (stating that the "relitigation exception does not encompass the full parameters of res judicata"); Texas Commerce Bank Nat'l Ass'n v. Florida, 138 F.3d 179, 182 (5th Cir. 1998) (interpreting Chick Kam Choo to require that an issue have been actually litigated in federal court before an injunction properly can issue under the relitigation exception), Nationwide Mutual Ins. Co. v. Burke, 897 F.2d 734, 737 (4th Cir. 1990) (stating that an injunction to protect a federal judgment had to be limited to claims and issues actually decided by the federal court); Staffer v. Bouchard Transp. Co., Inc., 878 F.2d 638, 643 (2d Cir. 1989) (concluding that, for AIA purposes, only relitigation can be enjoined, not the litigation of matters encompassed within a "claim" that might have been raised, but were not) with Western Systems, Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992), cert. denied, 506 U.S. 1050 (1993) (opining that the majority interpretation of Chick Kam Choo would read res judicata out of the AIA because any issue actually litigated would be barred by collateral estoppel); In re G.S.F. Corp., 938 F.2d 1467, 1478-79 (1st Cir. 1991) (holding that bankruptcy court's stay of a state court environmental cleanup action was properly entered to protect a judgment that was based upon a release of all claims related to dealings between G.S.F.'s landlord and one of its secured creditors). See generally CHEMERINSKY, supra note 4, § 11.2.4, at 656 (noting the present confusion among the lower federal courts); 17 WRIGHT, ET AL., supra note 24, § 4226, at 541-46 (commenting on lower federal courts' diverse application of the relitigation exception); Richard P. Cusick, Procedural Impediments to the Resolution of Mass Tort Cases: The Anti-Injunction Act and the Due Process Clause, 12 OHIO ST. J. ON DISP. RESOL. 485, 498 (1997) (characterizing Chick Kam Choo as crafting a hybrid standard on issue and claim preclusion to restrict federal courts' power to predetermine the effect of their decisions); George A. Martinez, The Anti-Injunction Act: Fending Off the New Attack on the Relitigation Exception, 72 NEB. L. REV. 643, 659-63 (1993) (arguing that the AIA should be construed to allow protection of the full claim-preclusion effect of federal judgments and that Chick Kam Choo is not inconsistent with this view). The Court in Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 (1986), declined to address this issue. See Parsons Steel, 474 U.S. at 526 n.4. The authors of HART & WECHSLER question whether "one sentence in an opinion that involved only the question of issue preclusion [should] be read as having such significance," that is, limiting the AIA exception to issue preclusion and excluding claim preclusion. HART & WECHSLER, supra note 2, at 1206-07 n.10.
58. See 28 U.S.C. § 2283 (Reviser's Note) (1999); Choo, 486 U.S. at 146 (rejecting an injunction against state court proceedings insofar as it was broader than necessary to protect or effectuate the federal court's forum non conveniens dismissal but permitting the injunction insofar as it effectuated the federal court's choice of law decision regarding another of plaintiff's claims); Atlantic Coast Line, 398 U.S. at 290 (overturning an injunction against the enforcement of a state court injunction where the prior district court order had not addressed the propriety of a state court injunction); see also Steans v. Combined Ins. Co. of America, 148 F.3d 1266, 1271 (11th Cir. 1998) (holding improper a district court's judgment purporting to bind nonparties over whom it lacked jurisdiction and enjoining those persons from seeking punitive damages from the defendant in state court, based on a need to protect its prior judgment). See generally, CHEMERINSKY, supra note 4, § 11.2.4 at 703-05. The lower federal courts are split as to whether the relitigation exception applies to only those matters that were actually litigated or to all litigation that is precluded; res judicata may bar matters that could have been litigated but were not. Cf., e.g., Hatcher v. Avis Rent-A-Car System, Inc., 152 F.3d 540, 543 (6th Cir. 1998) (stating that the "relitigation exception does not encompass the full parameters of res judicata"); Texas Commerce Bank Nat'l Ass'n v. Florida, 138 F.3d 179, 182 (5th Cir. 1998) (interpreting Chick Kam Choo to require that an issue have been actually litigated in federal court before an injunction properly can issue under the relitigation exception), Nationwide Mutual Ins. Co. v. Burke, 897 F.2d 734, 737 (4th Cir. 1990) (stating that an injunction to protect a federal judgment had to be limited to claims and issues actually decided by the federal court); Staffer v. Bouchard Transp. Co., Inc., 878 F.2d 638, 643 (2d Cir. 1989) (concluding that, for AIA purposes, only relitigation can be enjoined, not the litigation of matters encompassed within a "claim" that might have been raised, but were not) with Western Systems, Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir. 1992), cert. denied, 506 U.S. 1050 (1993) (opining that the majority interpretation of Chick Kam Choo would read res judicata out of the AIA because any issue actually litigated would be barred by collateral estoppel); In re G.S.F. Corp., 938 F.2d 1467, 1478-79 (1st Cir. 1991) (holding that bankruptcy court's stay of a state court environmental cleanup action was properly entered to protect a judgment that was based upon a release of all claims related to dealings between G.S.F.'s landlord and one of its secured creditors). See generally CHEMERINSKY, supra note 4, § 11.2.4, at 656 (noting the present confusion among the lower federal courts); 17 WRIGHT, ET AL., supra note 24, § 4226, at 541-46 (commenting on lower federal courts' diverse application of the relitigation exception); Richard P. Cusick, Procedural Impediments to the Resolution of Mass Tort Cases: The Anti-Injunction Act and the Due Process Clause, 12 OHIO ST. J. ON DISP. RESOL. 485, 498 (1997) (characterizing Chick Kam Choo as crafting a hybrid standard on issue and claim preclusion to restrict federal courts' power to predetermine the effect of their decisions); George A. Martinez, The Anti-Injunction Act: Fending Off the New Attack on the Relitigation Exception, 72 NEB. L. REV. 643, 659-63 (1993) (arguing that the AIA should be construed to allow protection of the full claim-preclusion effect of federal judgments and that Chick Kam Choo is not inconsistent with this view). The Court in Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518 (1986), declined to address this issue. See Parsons Steel, 474 U.S. at 526 n.4. The authors of HART & WECHSLER question whether "one sentence in an opinion that involved only the question of issue preclusion [should] be read as having such significance," that is, limiting the AIA exception to issue preclusion and excluding claim preclusion. HART & WECHSLER, supra note 2, at 1206-07 n.10.
59. Choo, 486 U.S. at 147.
60. See Amalgamated Clothing Workers v. Richman Bros. Co., 348 U.S. 511, 518-19 (1955) (positing that the appellate process adequately protects against state court error in decisions concerning federal rights).
61. Parsons Steel, 474 U.S. at 524. A federal court does not have power "to enjoin state court proceedings merely because [they] interfere with a protected federal right or invade an area preempted by federal law." Atlantic Coast Line, 398 U.S. at 294.
62. In addition to being supported by Full Faith & Credit, Parsons Steel also may be bolstered by the principle that federal courts should not operate so as to, in effect, review state court decisions. For criticism of Parsons Steel, see CHEMERINSKY, supra note 4, § 11.2.4, at 656-57.
63. See 28 U.S.C. § 1738 (1994) ("The Acts of the legislature of any State, Territory or Possession of the United States shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of federal statutes that vest the lower federal courts with jurisdiction and arguing that the obligation to respect a federal judgment "neither inexorably nor obviously requires that federal preclusion law govern all questions concerning the scope and effect of that judgment," id. at 829); Ronald E. Degnan, Federated Res Judicata, 85 YALE L.J. 741, 773 (1976) (proposing the rule that, "A valid judgment rendered in any judicial system within the United States must be recognized by all other judicial systems within the United States, and the claims and issues precluded by that judgment, and the parties bound thereby, are determined by the law of the system winch rendered the judgment"); Allan D. Vestal, Protecting a Federal Court Judgment, 42 TENN. L. REV. 635, 639-45 (1975) (arguing that statutory full faith and credit, supremacy, and comity all suggest that federal judgments should be protected when an attempt is made in state court to relitigate a claim or issue previously adjudged by a federal court). On the question of which law should determine the preclusion law to be applied, Erichson argues that, even in the Erie context, where "F1", the forum of the initial suit in which the potentially preclusive judgment was rendered had diversity jurisdiction, the forum in which preclusion is asserted should apply F1's federal preclusion law. Commentators and courts are split on this issue. See Erichson, supra note 37, at 1005-08 & nn.302-03.
64. See 28 U.S.C. § 1738 (1994) ("The Acts of the legislature of any State, Territory or Possession of the United States shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of federal statutes that vest the lower federal courts with jurisdiction and arguing that the obligation to respect a federal judgment "neither inexorably nor obviously requires that federal preclusion law govern all questions concerning the scope and effect of that judgment," id. at 829); Ronald E. Degnan, Federated Res Judicata, 85 YALE L.J. 741, 773 (1976) (proposing the rule that, "A valid judgment rendered in any judicial system within the United States must be recognized by all other judicial systems within the United States, and the claims and issues precluded by that judgment, and the parties bound thereby, are determined by the law of the system winch rendered the judgment"); Allan D. Vestal, Protecting a Federal Court Judgment, 42 TENN. L. REV. 635, 639-45 (1975) (arguing that statutory full faith and credit, supremacy, and comity all suggest that federal judgments should be protected when an attempt is made in state court to relitigate a claim or issue previously adjudged by a federal court). On the question of which law should determine the preclusion law to be applied, Erichson argues that, even in the Erie context, where "F1", the forum of the initial suit in which the potentially preclusive judgment was rendered had diversity jurisdiction, the forum in which preclusion is asserted should apply F1's federal preclusion law. Commentators and courts are split on this issue. See Erichson, supra note 37, at 1005-08 & nn.302-03.
65. See Baker v. General Motors Corp., 522 U.S. 222, 236 (1998). By contrast, the applicability of full faith and credit obligations as to anti-suit injunctions issued by the courts of one state against proceedings in another state are less clear. In Baker, Justice Ginsburg, writing for the Court, observed that, "antisuit injunctions regarding litigation elsewhere, even if compatible with due process as a direction constraining parties to the decree . . . in fact have not controlled the second court's actions," id. at 236, since courts have viewed such injunctions as outside the ambit of full faith and credit, see id. at 236 n.9, and further that the Court "has not yet ruled on the credit due to a state court injunction barring a party from maintaining litigation in another State," id. at 236 n.9. Justice Kennedy, concurring, was critical of these pronouncements, opining that, "[s]ubjects which are at once so fundamental and so delicate . . . ought to be addressed only in a case necessarily requiring their discussion." Id. at 245 (Kennedy, J., concurring).
66. 401 U.S. 37 (1971).
67. See Trainor v. Hernandez, 431 U.S. 434 (1977) (applying Younger abstention to a civil proceeding in which a State was a party); Juidice v. Vail, 430 U.S. 327 (1977) (applying Younger abstention to a civil proceeding in which the government was not a party); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1 (1987) (same as Juidice), but see New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350 (1989) (rejecting an expansive interpretation of Pennzoil that would apply Younger to all civil litigation, regardless of the degree of State interest involved).
68. 17A C. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE § 4251, at 180 (2d ed. 1988 & Supp. 1999).
69. Justice Black's opinion in Younger found support for the decision in, inter alia, the notion of comity, that is, proper respect for state functions, "a system in which there is sensitivity to the legitimate interests of both State and National Governments, and in which the National Government . . . always endeavors to [vindicate and protect federal rights and interests] in ways that will not unduly interfere with the legitimate activities of the States," and in a "belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways." Younger v. Harris, 401 U.S. 37, 44-45 (1971). As to the policies underlying the AIA and All Writs Act, see supra notes 5-29 and accompanying text.
70. See generally, CHEMERINSKY, supra note 4, §§ 11.2.1, 13.2, at 694-95, 775-76 (discussing how the Younger abstention doctrine creates a separate and independent barrier to federal court injunctions from that of the AIA).
71. See In re Agent Orange Prods. Liab. Litig., 996 F.2d 1425, 1432 (2d Cir. 1993), cert. denied, Ivy v. Diamond Shamrock Chem. Co., 510 U.S. 1140 (1994) (rejecting applicability of Younger doctrine where All Writs removal was also at issue).
72. Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992).
73. The Court in Pennzoil Co. cites Juidice, 430 U.S. at 334 (finding a state's interest in the contempt process through which it vindicates the operation of its judicial system to be sufficiently important to require application of Younger abstention), and describes Juidice as resting on the "importance to the States of enforcing the orders and judgments of their courts." Pennzoil Co., 481 U.S. 1, 13-14 & n.12 (1971).
74. One treatise comments, however, that "[I]t is hard to think of in rem litigation that will involve the kind of interests that bring the Younger rules into play, [though] there is no apparent reason why there should be a per se rule that Younger does not apply to in rem proceedings." 17A WRIGHT, ET AL., supra note 60, § 4254, at 250-51. This comment is relevant to this Article in view of the occasions on which the litigation or the subject of the litigation in which All Writs removal has been sought (and may in the future be sought) has been categorized or analogized to cases in which the courts' jurisdiction is in rem.
75. In re Agent Orange Prods. Liab. Litig., 996 F.2d 1425, 1432 (2d Cir. 1993), cert. denied, Ivy v. Diamond Shamrock Chem. Co., 510 U.S. 1140 (1994). The reference is to Pennzoil Co., 481 U.S. at 3-18 (vacating a federal injunction that had restrained Pennzoil from enforcing an $11 billion judgment against Texaco pending appeal, although Texas law allowed a stay of enforcement pending appeal only upon the posting of a $13 billion bond that Texaco could not have obtained). Pennzoil illustrated that a sufficiently important state interest could exist even in a proceeding entirely between private parties.
76. See infra notes 73-151 and accompanying text.
77. I found no district court decision in the First, D.C. or Federal Circuits that spoke to the matter.
78. See infra notes 152-55, 172-76, and accompanying text.
79. See infra notes 156-71 and accompanying text.
80. See infra Section V.
81. 858 F.2d 855, 864 (2d Cir. 1988), cert. denied 489 U.S. 1077 (1989). I learned, courtesy of Lewis S. Finkelman, Deputy Chief, City of New York Law Department, Commercial and Real Estate Litigation Division, that in 1990 and 1991, respectively, two district courts in New York approved All Writs removals in unpublished opinions. See United States v. County of Westchester, No. 89 Civ. 5274 (WK) (S.D.N.Y. May 24, 1990), Ludlow Park Homeowners Ass'n v. County of Westchester, 741 F. Supp. 1126, 1129-30 (S.D.N.Y. 1990), aff'd without op., 930 F.2d 909 (2d Cir.), cert. denied, 502 U.S. 813 (1991); United States v. County of Nassau, No. CV 89-2532 (JM) (E.D.N.Y. August 19, 1991) (orders on file with the author). Neither of these district court orders led to a Second Circuit review of All Writs removal, however. For a discussion of two cases from the 1790s in which a federal court issued a common law writ of certiorari to remove a case from state court, see Federal Court Stays, supra note 20, at 621-24. The Comment author observes that, "It is difficult to see how either case would have been appealed. The party who had obtained certiorari could have no complaint, while the party against whom the certiorari was issued was able to continue his cause in the state court [which, in each case, refused to obey the certiorari] . . . . However, the South Carolina decision was apparently appealed or reheard in some form." Id., at 622-23 n.67. Although the author reports that the appeals court's decision was not based on the ground that the federal courts lacked power to issue certiorari to state courts, this fact alone would be a weak basis for viewing the case as prior appellate precedent for All Writs removal. See id.
82. 28 U.S.C. §§ 1441 and 1443 (1994).
83. Yonkers Racing, 858 F.2d at 857-58.
84. Id. at 862-63. The court decided that it needn't resolve the "difficult question" whether the district court had correctly deemed the City a defendant for removal purposes, since the district court had asserted an independent basis for removal under the All Writs Act.
85. Id. at 863 (disagreeing with the petitioner that federal removal statutes are the exclusive source of removal jurisdiction). Accord Nowling v. Aero Servs. Int'l, Inc., 734 F. Supp. 733, 737 (E.D. La. 1990) (relying on Yonkers and agreeing that the removal statutes do not exclude the All Writs Act from being a source of removal power).
86. United States v. New York Tel. Co., 434 U.S. 159, 172 (1977) (holding that, under appropriate circumstances, All Writs Power extends to persons who are in a position to frustrate the implementation of a court order or the proper administration of justice, even though the persons were not parties to the original action). In this case, the Court found that the All Writs Act could be used to compel a telephone company to assist in the installation of pen registers on telephones of two persons suspected of conducting an illegal gambling enterprise.
87. See Yonkers, 858 F.2d at 855, 863 (citing Pennsylvania Bur. of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985)); but see Gehm v. New York Life Ins. Co., 992 F. Supp 209, 211 (E.D.N.Y. 1998) (emphasizing that the All Writs Act does not contemplate the disregard of clear statutory requirements such as those set forth in the removal statutes and quoting Pennsylvania Bur. of Correction, for the proposition that, "[w]here a statute specifically addresses a particular issue . . . that authority and not the All Writs Act . . . is controlling").
88. Yonkers, 858 F.2d at 863.
89. See id. at 863-65 (finding the facts to be "just the sort of extraordinary circumstance envisioned by the All Writs Act").
90. See id. at 864 (citing Benjamin v. Malcolm, 803 F.2d 46 (2d Cir. 1986), in which the court affirmed an order, pursuant to the All Writs Act, enjoining state officials who were in a position to "frustrate the implementation of a court order" designed to alleviate overcrowding in a detention center).
91. See id. at 864 (adding that the proceeding would be in federal court "presumably under the 'residual jurisdictional authority' of the All Writs Act").
92. Id.
93. See id. The Second Circuit also commented that, "If the power exists to issue extraordinary orders . . . to prevent the prosecution of state proceedings, surely . . . it also exists to effectuate removal notwithstanding the availability of an independent basis for the exercise of jurisdiction under the federal removal statutes." Id. at 865. The last clause is puzzling since the court had declined to decide the removability of the state proceedings under the ordinary removal statutes, finding it a "difficult question," and had affirmed the denial of the motions to remand solely on the authority of the All Writs Act. Id. at 858, 863. The above reasoning nonetheless reflects that the court did recognize that the propriety of an All Writs removal was related to the propriety of an anti-suit injunction. For further discussion and evaluation of Yonkers Racing, see infra text accompanying notes 257-68. Judge Mahoney, dissenting, viewed removal as unavailable under 28 U.S.C. §§ 1441 and 1443. In Judge Mahoney's view, it was clear that the City was the plaintiff, not a defendant, for purposes of the removal statutes and therefore had no right to remove. See Yonkers Racing, 858 F.2d at 874 (Mahoney, J., dissenting) ("[T]he Supreme Court has twice held that whatever labels state law may apply, a condemnee is a defendant for purposes of federal removal statutes."). While not absolutely ruling out use of the extraordinary residual authority provided by the All Writs Act to remove a case, he saw its use here as premature, improper, in disregard of principles of equity and federalism and "a novel and unwarranted application . . . which [was] abusive . . . of the most elementary principles of . . . comity" because the state court "was entitled to a presumption . . . that it would proceed with sensitivity to and awareness of the legal and social context in which the condemnations [were] occurring." Id. at 875-76 & n.3. The fact that the condemnees were not parties to the federal civil rights litigation, suing in state court to undermine the federal court's orders, but rather were strangers to the federal proceedings invoking the normal rights of owners of property designated for condemnation, also were important from Judge Mahoney's perspective. See id. at 876.
94. 972 F.2d 464 (2d Cir. 1992).
95. Id. at 469.
96. See id. at 469. Plaintiff contended that the City had failed to submit the contracts for competitive bidding as required by state law. Id. at 467.
97. There apparently had been no proof that the City easily could find alternatives that would enable it to cease ocean dumping according to the timetable required by the decree. See id. at 469.
98. See id. For further discussion and evaluation of United States v. City of New York, see infra Section V.C.1.
99. In re Agent Orange Prods. Liab. Litig., 996 F.2d 1425 (2d Cir. 1993), cert. denied, Ivy v. Diamond Shamrock Chem. Co., 510 U.S. 1140 (1994).
100. Id. at 1430-31 (finding § 1441 unavailable because there was neither complete diversity nor a federal issue apparent in the complaint, nor removability under the artful pleading doctrine).
101. See id. at 1431. The court used the title "Agent Orange" to refer to a group of actions that arose from the U.S. Armed Services' use of Agent Orange during the Vietnam War. See id. at 1428.
102. Id. at 1431.
103. Id., quoting Pennsylvania Bur. of Correction v. United States Marshals Serv., 474 U.S. 34, 43 (1985).
104. In re Agent Orange, 996 F.2d at 1431 (asserting that the court that approved the settlement of Agent Orange is the court best situated to decide the scope of the settlement and judgment therein); see also Ryan v. Dow Chem. Co., 781 F. Supp. 902, 914-18 (E.D.N.Y. 1991), aff'd, In re Agent Orange Prods. Liab. Litig., 996 F.2d 1425 (2d Cir. 1993), cert. denied sub nom. Ivy v. Diamond Shamrock Chem. Co., 510 U.S. 1140 (1994) (holding removal to be proper on several grounds, including the court's retention of jurisdiction over the settlement agreement and its enforcement, the "artful pleading" doctrine, plaintiff's violation of a court order prohibiting the filing of new actions in different fora, and the All Writs Act). The court viewed the All Writs Act as applicable because the new suits directly threatened the judgment that settled the class action by potentially consuming the monies on which the settlement depended. See Ryan, 781 F. Supp. at 914. Additionally, removal afforded greater comity to state courts and was less burdensome to the parties than either an injunction against state court rulings inconsistent with federal orders or a contempt citation would have been. Id. at 914-18.
105. See In re Agent Orange, 996 F.2d at 1432, citing Choo v. Exxon Corp., 486 U.S. 140, 147 (1988). One peculiar aspect of In re Agent Orange, however, is the actions that were removed actually had been begun in the Texas state courts, and were removed and transferred to the class action court by the Judicial Panel on Multidistrict Litigation. The Second Circuit approved the removal under the authority of the All Writs Act even though the removal did not vindicate any interests of the writ issuing Texas district court, to which the actions had been removed. Cf. United States v. New York Tel. Co., 434 U.S. 159, 199 (1977) (Stevens, J., dissenting) (emphasizing that the All Writs Act must be utilized in aid of the issuing court's duties and its jurisdiction); see also Henry Paul Monaghan, Antisuit Injunctions and Preclusion Against Absent Nonresident Class Members, 98 COLUM. L. REV. 1148, 1160 n.51 (1998).
106. Younger v. Harris, 401 U.S. 37, 43 (1971).
107. See In re Agent Orange, 996 F.2d at 1432-33.
108. See id. at 1431. See also 28 U.S.C. § 1442(a) (1994) (allowing for the removal, inter alia, of actions against any officer or agency of the United States or person acting under them, for any act under color of their office). For further discussion and evaluation of the Agent Orange litigation, see infra text at notes 316-37, 417-21, 456-59.
109. See Lucas v. Planning Bd., 7 F. Supp.2d 310, 318-19 (S.D.N.Y. 1998) (upholding removal, under both 28 U.S.C. § 1441(a) and the All Writs Act, of a suit by residents and owners of property located close to a proposed telecommunications tower, where plaintiffs sought to nullify a consent judgment entered by the court in a case to which the present plaintiffs were not parties, the court stating that, "their suit inherently seeks to frustrate implementation of the Consent Judgment . . . . Accordingly, if plaintiffs' suit is to be continued . . . plaintiffs must continue it in the federal forum"); New York State Laborers Political Action Comm. v. Mason Tenders Dist. Council, 1998 U.S. Dist. LEXIS 3839, at *1-4, *16 (N.D.N.Y. March 23, 1998) (upholding removal under the removal statutes and alternatively under the All Writs Act where, pursuant to a federal consent decree, a federal court had exclusive jurisdiction over any suit that related to the acts, omissions or authority of a monitor appointed by the court to root out corruption and organized crime ties of the defendant union and the suit in question challenged the monitor's authority to direct withholding of union members' employee contributions); Neuman v. Goldberg, 159 B.R. 681, 685-86 (S.D.N.Y. 1993) (upholding removal under the All 1441 and 1443(1) was that the defamation action retaliated for the Trustees' filing of a federal lawsuit claiming racial discrimination by the commissioners).
110. Id. at 1425.
111. See id.
112. Id.
113. The cases appear to have posed some common factual issues. If they did not, there would be even less reason to consolidate them.
114. See supra notes 40-47.
115. See infra text at notes 189, 199-202, 206.
116. See Atlantic Coast Demolition & Recycling v. Board of Chosen Freeholders, 988 F. Supp. 486, 487-88, 490-92 (D.N.J. 1997) (holding All Writs removal appropriate to protect and effectuate an injunction where (1) a state court action was filed seeking a declaration of the validity of a contract, and that suit required resolution of federal law questions, (2) state court decision of the federal issues would threaten the federal court's jurisdiction and the effectuation of its injunction, and (3) state law issues would need to be resolved only if federal law did not invalidate the contract); Holland v. New Jersey Dep't of Corrections, 1994 U.S. Dist. LEXIS 13239, at *18-*19 (D.N.J. Sept. 14, 1994) (upholding All Writs removal because of danger of conflicting decisions, potential frustration of past orders and interference with federal jurisdiction and mediation efforts, but only after upholding removal under 28 U.S.C. § 1443). In Holland, the claims in the removed case (asserted by a white sergeant, Lutz) alleged defamation and other state law violations (against a black corrections officer, Gregg) that arose from charges that defendant previously had made against the plaintiff and that formed part of the basis for a discrimination class action pending in federal court. Because of the factual and legal overlap between the suits, the court saw the potential for conflicting judgments. The court also concluded that if Lutz's suit was retaliatory, as alleged, its prosecution in state court might frustrate the implementation of or even violate an anti-retaliation order the court had entered and that Lutz's suit would hinder imminent efforts to mediate all issues in the federal class action. See id. at *18-*19. Cf. 35 Acres Assoc. v. Adams, 962 F. Supp. 687, 689, 691-92 (D.V.I. 1997) (disallowing removal upon finding that All Writs removal had been permitted only in cases involving consent decrees or complex class litigation that would be undermined if actions in other courts were permitted).
117. See Sable v. General Motors Corp., 90 F.3d 171, 175 (6th Cir. 1996).
118. See id. at 175.
119. Id. Accord Bylinski v. City of Allen Park, 169 F.3d 1001, 1002-03 (6th Cir. 1999), cert. denied, 119 S. Ct. 2396 (1999) (upholding All Writs removal of a citizen taxpayers suit for a refund of taxes and an injunction against further taxation by defendant municipalities, where the taxes had been, and were being, levied pursuant to a federal consent decree and implementing financing agreements which the federal district court had continuing jurisdiction to enforce and where the suit threatened the federal court's orders). An attorney for the defendants informed me that the primary basis for removal was federal question jurisdiction, with the All Writs argument being secondary. Telephone interview with Charles Raimi, Bodman, Longley & Dahling, LLP (Aug. 4, 1999). The opinion of the Sixth Circuit is less than transparent on this point. The defendants had removed on the ground that the taxes in question had been levied pursuant to a federal consent decree. Bylinski, 169 F.3d at 1002. Although the Sixth Circuit agreed that the district court had continuing jurisdiction over the financing agreements that were an integral part of the consent decree and that the instant suit posed on imminent threat to those orders, that observation, in the "Jurisdiction" section of its opinion, was the only ambiguous intimation that it thought the case removable as posing a federal question. It explicitly invoked only the All Writs Act as making proper the denial of plaintiffs' motion to remand to state court. Id. at 1002-03.
120. See Sable, 90 F.3d at 175.
121. Id. at 174-75. The Sixth Circuit's holding as to removability under 28 U.S.C. § 1441 is questionable; cf. In re County Collector, 96 F.3d 890, 895-97 (7th Cir. 1996) (concluding that a state law claim does not present a federal question merely because it adversely impacts the terms of a federal consent decree). For further discussion and evaluation of Sable, see infra text at 279-87, 369.
122. In re County Collector, 96 F.3d 890, 903 n.20 (7th Cir. 1996) (quoting United States v. New York Tel. Co., 434 U.S. 159, 188 n.19 (1977) (Stevens, J., dissenting)).
123. Id. (quoting Rosenbaum v. Bauer, 120 U.S. 450, 455 (1887)).
124. Id. at 903 n.20.
125. Id. at 900-02 (noting that circuit precedent under the AIA refused to allow injunction of third parties' state court challenges to the authority of parties to enter into federal consent decrees). The court relied particularly on Dunn v. Carey, 808 F.2d 555, 558-59 (7th Cir. 1986).
126. In re County Collector, 96 F.3d at 902.
127. Id. at 901.
128. Id. at 902 ("We can discern no reason why these actions contesting the authority of officials under state law should be treated differently under the two Acts.").
129. Id. at 902 n.19; see also Steans v. Combined Ins. Co. of America, 148 F.3d 1266, 1271 (11th Cir. 1998), cert. denied, Combined Ins. Co. of America v. Aldridge, 119 S. Ct. 1463 (1999) (vacating, as an abuse of discretion, orders that enjoined insureds from prosecuting their punitive damages claims in state court, where the insureds had not been party to the federal suit in which a court order had been entered prohibiting future punitive damages awards against an insurer, in the state, and opining that a district court cannot belatedly join nonparties and enjoin those parties based on a need to protect its earlier judgment); Association for Retarded Citizens, Inc. v. Thorne, 30 F.3d 367, 370-71 (2d Cir. 1994), cert. denied, 513 U.S. 1079 (1995) (finding power under the All Writs Act to require non-parties not to frustrate remedial orders deriving from judgments predicated upon adjudication of issues but no such power when the judgments derived from consent decrees; holding that All Writs Act does not permit district courts to join third parties and bind them to previously entered consent decrees).
130. In re County Collector, 96 F.3d at 903.
131. Id. The In re County Collector court also rejected the arguments (1) that the plaintiffs complaint arose under federal law, making the case removable under 28 U.S.C. § 1441, concluding in particular that "a state law claim does not present a federal question merely because it adversely impacts the terms of a federal consent decree," id. at 895-97, and (2) that the case could not be removed under 28 U.S.C. § 1443(2), which authorizes a defendant to remove civil actions for acts under color of authority derived from any law providing for equal rights, id. at 897-99. The dissent argued that removal was permissible under the civil rights removal statute, 28 U.S.C. § 1443(2). Id. at 904-06. Believing, as I do, that an All Writs removal could be proper only if an injunction against the state court suit would be proper, I agree with the Seventh Circuit's decision here since such an injunction would not have been proper, for the reasons articulated by the court.
132. 11 U.S. (7 Cranch) 504, 506 (1813).
133. In re County Collector, 96 F.3d at 903 n.20. For further discussion of related issues, see infra Section V.
134. In re VMS Ltd. Partnership Sec. Litig. ("In re VMS"), 103 F.3d 1317 (7th Cir. 1996).
135. The panel included Judge Lay of the Court of Appeals for the Eighth Circuit, sitting by designation, Judge Cudahy and Judge Kanne. The In re County Collector panel was comprised of Chief Judge Posner, and Judges Flaum and Ripple.
136. In re VMS, 103 F.3d at 1324.
137. Id. at 1322-25.
138. Id. at 1321.
139. Id. at 1323-24.
140. Id. at 1324-25.
141. Id. at 1326.
142. Id. at 1326 n.4.
143. See infra text at notes 462-64, for discussion regarding whether the state court suit here constituted a collateral attack upon the federal class action judgment.
144. For further discussion and evaluation of the In re VMS case, see infra text accompanying notes 338-44, 426-29.
145. 125 F.3d 1171 (8th Cir. 1997), vacated without op., remanded, 522 U.S. 1145 (1998), reinstated, 144 F.3d 1168 (8th Cir. 1998), and cert. denied, 525 U.S. 826 (1998).
146. See N.A.A.C.P., 125 F.3d at 1172-73. The court also upheld removal of the claims against Met Council under an interpretation of 28 U.S.C. § 1441 found in Federated Dep't Stores v. Moitie, 452 U.S. 394, 397 n.2 (1981).
147. Id. at 1173-74. The court was contradictory in its remarks concerning the availability of ordinary removal: it concluded that the state suit was not removable under the general removal statutes but then said it need not determine whether removal was warranted under the artful pleading doctrine, which it apparently (but incorrectly) regarded as allowing removal under something other than the general removal statutes. Id.
148. Id. at 1173.
149. Id. at 1174.
150. Id. at 1174-75.
151. N.A.A.C.P. v. Metropolitan Council, 522 U.S. 1145 (1998); see also Rivet v. Regions Bank of La., 522 U.S. 470, 478 (1998) (distinguishing between removal where a federal statute completely preempts a state law claim and claim preclusion by a federal judgment raised as an affirmative defense). The Supreme Court has said that it will issue a "GVR" (grant, vacate, remand) order "where intervening developments, or recent developments that [it] has reason to believe the court below did not fully consider, reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation." Lawrence v. Chater, 516 U.S. 163, 167 (1996) (per curiam); see also Lords Landing Village Condo. Council of Unit Owners v. Continental Ins. Co., 520 U.S. 893, 896 (1997) (per curiam). Vacatur and remand by the Court does not imply, however, that the lower court should change its prior determination. See Hughes Aircraft Co. v. United States, 140 F.3d 1470 (Fed. Cir. 1998); United States v. M.C.C. of Fla., Inc., 967 F.2d 1559, 1562 (11th Cir. 1992).
152. Rivet, 522 U.S. at 478.
153. N.A.A.C.P., 144 F.3d at 1169 (8th Cir. 1998). In a decision rendered in November, 1999, Xiong v. Minnesota, 195 F.3d 424 (8th Cir. 1999), the court again approved All Writs removal. Plaintiffs sought injunctive relief against the Metropolitan Council concerning matters governed by the federal decree involved in both N.A.A.C.P. and Xiong. The court found grounds to review the district court's remand order, despite 28 U.S.C. § 1447(d), and excoriated the district court for disregarding controlling precedent. It concluded that, "federal court control of the current case was necessary to effectuate and prevent the frustration of the earlier federal consent decree." Id. at 427.
154. N.A.A.C.P., 144 F.3d at 1169 (explaining that the court's earlier opinion held that (1) "the district court properly used its power under the All Writs Act to take jurisdiction over state-law claims . . . that threatened the integrity of an earlier federal consent decree" and (2) an earlier federal judgment precluded those state claims).
155. Id. at 1171. In a still subtler refinement, the court concluded that because the district court had followed "the Second Circuit's forum-election approach to Moitie, not the claim preclusion approach [that] the . . . Court rejected in Rivet[,] . . . our opinion . . . affirming that ruling is not contrary to the Court's holding in Rivet." Id. at 1171. The Eighth Circuit also did not interpret footnote three in Rivet, 118 U.S. at 926 n.3, referring to the relitigation exception to the AIA, to rule out the route it had followed. Id. at 1172. See also Harbor Venture v. Nichols, 934 F. Supp. 322, 323-24 (E.D. Mo. 1996). Alternatively under the general removal statute or the All Writs Act, the court upheld removal of a case which required interpretation and enforcement of a federal consent decree. Id. at 324. Although the court had not expressly retained jurisdiction over the settlement agreement, it had incorporated the settlement terms into the decree and consequently "ha[d] ancillary jurisdiction to interpret and enforce the . . . decree." Id. at 323-24. Alternatively, the court upheld removal based on 28 U.S.C. § 1442 because the decree affected the interests of the United States, a party to the litigation culminating in the decree. Id. at 324. For further discussion and evaluation of the N.A.A.C.P. case, see infra text at notes 345-56, 422-25, 460-61.
156. 992 F.2d 932, 937 (9th Cir. 1993).
157. Id. at 937.
158. Id.
159. See id.; see also Bewley v. Cigna Fin. Advisors, 1997 U.S. Dist. LEXIS 14761, at *4-*5 (N.D. Cal. Sept. 23, 1997) (where defendant's removal of plaintiffs' state law suit was untimely under 28 U.S.C. § 1446(b), holding that All Writs removal was unavailable because of that untimeliness and because there was no independent basis of jurisdiction over the action). The court was not persuaded by the argument that such removal was permissible to protect the resolution of common issues pending in federal class actions in other districts.
160. Hillman v. Webley, 115 F.3d 1461 (10th Cir. 1997).
161. See Hillman, 115 F.3d at 1462-63. The Judicial Panel on Multidistrict Litigation had consolidated these cases for pretrial. See id. at 1463.
162. See id. at 1463-64.
163. Id. at 1464. The agreement excepted "claims based upon a specific written agreement of indemnity" from the injunction.
164. See id.
165. See id.
166. See id. at 1464-65 (finding that Barnard's "first two causes of action . . . were claims for indemnification" and that the court "was unable to determine whether [the remaining claims] were 'independent claims or disguised requests for indemnification and contribution'").
167. See id. at 1465.
168. See id.
169. See id.
170. Id. at 1465-67.
171. 28 U.S.C. § 1367 (1993).
172. 28 U.S.C. § 1407 (1993).
173. Hillman, 115 F.3d 1461, 1467, 1469.
174. Hillman, 115 F.3d at 1469 & n.5. (relying on Commercial Sec. Bank v. Walker Bank & Trust Co., 456 F.2d 1352, 1355 (10th Cir. 1977), where the court held that the All Writs Act "does not allow a court to 'acquire jurisdiction over an individual or property not otherwise subject to its jurisdiction' and 'does not operate to confer jurisdiction'") (internal citations omitted). The Hillman opinion is somewhat ambiguous in whether it criticizes the assumption of jurisdiction over "AC," the plaintiff in the state case, or over the AC case itself. See, e.g., Hillman, 115 F.3d at 1469 & n.6. But the ordered remand of Barnard's cross-and third-party claims indicates that the court intended to criticize the assumption of jurisdiction over any and all claims asserted in the case initiated by AC, despite the federal court having personal jurisdiction over Barnard and the settling defendants against whom he was asserting claims. Although in relying on the earlier Circuit case described in the text the court seemed to view personal and subject matter jurisdiction as comparable, elsewhere it acknowledged the difference. See id. at 1469 n.5 (finding in United States v. New York Tel. Co., 434 U.S. 159, 172 (1977), a suggestion that "the All Writs Act may be a basis for personal jurisdiction when subject matter jurisdiction is 'otherwise obtained'"). Here, it found no independent source of subject matter jurisdiction over Barnard's state law claims. See Hillman, 115 F.3d at 1469 n.5.
175. Id. at 1469-70. The court added that no other statute relied upon provided a basis for federal jurisdiction over the state case, that the time for removal set by § 1446(b) had expired, and that proper venue upon removal would have been elsewhere. Judge Paul Kelly, Jr., concurring in the result, viewed the Commercial Securities Bank case as distinguishable and opined that a district court does have authority to remove an otherwise unremovable case in appropriate and narrow circumstances, in aid of its jurisdiction. Hillman, 115 F.3d at 1470 n.6.
176. See De Perez v. AT&T Co., 139 F.3d 1368, 1379-80 (11th Cir. 1998). The court addressed one of those alternatives, removal based on diversity jurisdiction, after discussing the possibility of All Writs removal, however. See id. at 1380-81. The others, based on proposed theories of federal question jurisdiction, it addressed first. See id. at 1373-78.
177. See id. at 1379.
178. See id. at 1380.
179. Id.
180. See id. at 1379-80.
181. See Chance v. Sullivan, 993 F. Supp. 565, 567-68 (S.D. Tex. 1998).
182. Id. at 567. Under these circumstances, the Chance court found the federal court "most qualified to review the settlement and any claims arising from the handling of the litigation." Id. at 568.
183. See Fidelity Fin. v. Robinson, 971 F. Supp. 244, 245 (S.D. Miss. 1997).
184. Id. at 250.
185. See id. at 250 ("[I]f it would be proper under the All Writs Act and/or the Anti-Injunction Act to enjoin the [co-defendants] from pursuing their counterclaim, the court could enter such an injunction without the necessity of removing the case to do so.").
186. See Nowling v. Aero Serv. Int'l, Inc., 734 F. Supp. 733, 737-38 (E.D. La. 1990).
187. See Lange v. The Orleans Levee Dist., 1997 U.S. Dist. LEXIS 9358, at *7-*8 (E.D. La. June 27, 1997) (rejecting arguments that state suit would conflict with federal court's scheduling order or produce conflicting judgments sufficient to justify All Writs removal); Robertson v. Western Heritage Ins. Co., 1996 WL 722078, at *4-*5 (N.D. Tex. 1996) (finding no exceptional circumstances and myriad features that distinguished this case from Agent Orange and Yonkers, where there was only a federal default judgment regarding defendant's coverage obligations and no reason to think the state court could not adequately resolve the res judicata issue posed by the state suit; also noting the possibility of enjoining prosecution of the proceeding under the relitigation exception to the AIA); Webre v. Wilson, 1995 U.S. Dist. LEXIS 2216, at *4-*5 (E.D. La. Feb. 16, 1995) (holding that the possibility that a suit to compel a parish to meet its statutory obligations to provide for prisoners might adversely affect its ability to comply with prison population limits set by a federal consent decree was too remote to warrant invoking All Writs removal).
188. See Holloway v. Gaylord Chem., 922 F. Supp. 1154, 1160-61 (E.D. La. 1996).
189. I thank all of these attorneys for their time and consideration in speaking with me about these matters. Several of the ideas presented in the text also were expressed in a February 5, 1999, exchange of views among Professors Salamanca, Sherry, Tidmarsh and Oakley on the Federal Courts "listserv" (printouts on file with the author).
190. Telephone interviews with Paul Winick, Thelen, Reid & Priest, LLP, Lewis S. Finkelman, City of New York Law Department, Commercial and Real Estate Litigation Division, Charles N. Raimi, Bodman, Longley & Dahling, and Jay Kelly Wright, Arnold & Porter (Aug. 3-4, 1999).
191. See 28 U.S.C. § 1446 (1994 & Supp. 1999).
192. If All Writs removal is to be permitted (inter alia to avoid the delay and costs attendant upon a subsequent filing in federal court of the proceedings brought in state court and enjoined from proceeding there), the proper procedures for both such removal and any appropriate remands will have to be ironed out. See infra text at notes 220-25.
193. For further discussion of these issues, see infra text at notes 199-203, 206.
194. See infra notes 220-25 and accompanying text. For example, in Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2d Cir. 1988), the Second Circuit apparently believed that it did not matter whether the City was the defendant in deciding whether an All Writs removal was legal. That decision could be an undesirable evasion of the usual requirements for removal.
195. Erie R.R. v. Tompkins, 304 U.S. 64, 78-79 (1938) (quoting Baltimore & Ohio R.R. v. Baugh, 149 U.S. 368, 401 (1893)).
196. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S. Ct. 2219 (1999) (reaffirming that the Eleventh Amendment of the Constitution repudiated the interpretation of the jurisdictional heads of Article III to supersede the sovereign immunity that the States possessed before entering the Union, and concluding that State sovereign immunity is constitutionally protected and may not be waived by implication); Alden v. Maine, 119 S. Ct. 2240, 2243, 2246-47, 2263 (1999) (holding that the States' constitutional immunity from private suits for damages in their own courts is beyond Congress' power to abrogate by legislation passed pursuant to Article I of the Constitution, and concluding that "the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment," but rather is a fundamental aspect of pre-Constitutional sovereignty which the States retain, "except as altered by the plan of the Convention or certain constitutional Amendments").
197. Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 287 (1970).
198. See Younger v. Harris, 401 U.S. 37, 44-45 (1971) (describing comity as a proper respect for state functions and avoidance of undue interference with the legitimate activities of the States, which implies that "the normal thing to do when federal courts are asked to enjoin pending proceedings in state courts is not to issue such injunctions); Kline v. Burke Constr. Co., 260 U.S. 226, 229 (1922) (stating that comity requires courts to forbear from interfering with the process of courts of another jurisdiction); see also David L. Shapiro, Jurisdiction and Discretion, 60 N.Y.U. L. REV. 543, 580-85 (1985) (tracing the development of the principle of comity in our jurisprudence; describing both federalism and comity as conveying a sense of the need for mutual respect between two entities that are, at least to some degree, independent of one another); Sternlight, supra note 24, at 93 nn.13 & 14, 117 (defining and discussing comity and federalism in these terms).
199. Professor Sternlight recently commented that, [A]n argument can be made that federalism concerns more strongly favor federal courts' non-interference with state courts than they favor striking down intrusive federal legislation . . . [because] where a federal court oversteps its bounds and interferes with a state court, the political process cannot step in to make a correction. Relief can be obtained only through appeal within the federal system, and the odds of getting to the Supreme Court are always extremely low. Sternlight, supra note 24, at 121 n.135.
200. Atlantic Coast Line, 398 U.S. at 287.
201. See infra text at notes 198-206; see also Gamble v. General Foods Corp., 846 F.2d 51, 52 (9th Cir. 1988) (stating that even if jurisdiction would exist to enjoin a state proceeding to protect the res judicata effect of a federal judgment, the AIA does not provide jurisdiction over a removed proceeding).
202. See, e.g., Yonkers Racing Corp. v. Yonkers, 858 F.2d 855, 864 (2d Cir. 1988); N.A.A.C.P. v. Metropolitan Council, 125 F.3d 1171, 1174 (8th Cir. 1997), vacated without op., remanded, 522 U.S. 1145 (1998), reinstated, 144 F.3d 1168 (8th Cir. 1998), and cert. denied, 525 U.S. 826 (1998). These cases are discussed at length in Section II, supra.
203. See 28 U.S.C. § 1446(d) (1994 & Supp. 1999).
204. See N.A.A.C.P., 125 F.3d at 1174.
205. Indeed, if the federal court waits to enter an injunction until after a state court has rendered a judgment that is predicated upon disallowance of res judicata effect to a federal judgment, it is too late. The Full Faith and Credit Act requires the federal court to give the state court's resolution of the res judicata issue and its judgment the same preclusive effect that the rendering state's court would give them. See Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 519 (1986).
206. As previously noted, because the explicit removal statutes expressly authorize the injunction and because injunction of the state court proceedings is necessary in aid of the federal court's jurisdiction, this requirement of allowing All Writs removal only when an injunction is proper under the AIA is satisfied in the context of removal under those statutes.
207. See, e.g., Yonkers Racing Corp v. City of Yonkers, 858 F.2d 855, 862-63 (2d Cir. 1988).
208. The reservation of the writ of mandamus for extraordinary situations in which meaningful appeal is not otherwise available (see, e.g., Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 8 n.6 (1983) (stating that a court of appeals has no occasion to utilize mandamus when it can afford review by a contemporaneous appeal); Kerr v. United States Dist. Ct., 426 U.S. 394, 402 (1976) (stating that mandamus is a drastic remedy, to be invoked only in extraordinary situations, and that the party seeking the writ must have no other adequate means to attain the relief he desires); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 30 (1943) (stating that, "[w]here the appeal statutes establish the conditions of appellate review, an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions . . . . ")), is comparable to the reservation of injunctions for situations in which no adequate remedy exists at law. All the common law writs authorized by the All Writs Act are to be reserved for extraordinary situations. Indeed, "[i]t has been said that the writs, although legal remedies, are controlled by the equitable principle that an alternative adequate remedy is to be preferred," although courts sometimes are lax in honoring the principles governing when writs properly may issue. See 16 WRIGHT, ET AL., supra note 15, § 3932.1, at 498-509.
209. Clinton v. Goldsmith, 526 U.S. 529, 537 (1999).
210. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93-94 (1998) (requiring courts to determine jurisdiction first to avoid offending "fundamental principles of separation of powers"). See generally, Scott C. Idleman, The Demise of Hypothetical Jurisdiction in the Federal Courts, 52 VAND. L. REV. 235 (1999) (arguing that the Supreme Court's recent repudiation of hypothetical jurisdiction may be avoided by lower courts).
211. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585-87 (1999) (concluding that while a federal court usually should first resolve questions concerning its subject matter jurisdiction, there are circumstances in which the court may first decide personal jurisdiction issues, and the relative difficulty of the questions is a permissible consideration).
212. See supra notes 198-203 and accompanying text.
213. See supra text at notes 191-97.
214. See generally 14A C. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION 2D § 3729 (1985 & Supp. 1999). See, e.g., 9 U.S.C. § 205 (1994) (matters relating to an arbitration agreement or award under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards); 12 U.S.C. § 632 (1994) (cases concerning federal regulation of international banking); 12 U.S.C. § 1819(b)(2)(B) (1994) (F.D.I.C. removal); 22 U.S.C. § 286(g) (1994) (actions involving the International Monetary Fund and the International Bank for Reconstruction and Development); 28 U.S.C. § 1444 (1994) (foreclosure actions against the United States); 28 U.S.C. § 1452 (1994) (cases related to bankruptcy); 103 Stat. 183, Financial Institutions Reform, Recovery and Enforcement Act of 1989, §§ 209(4)(b)(2), 501(1)(3) (1994) (Resolution Trust Corp. suits); 28 U.S.C. § 2679 (1994) (some Federal Tort Claims Act actions); 39 U.S.C. § 409 (1994) (suits involving the Postal Service).
215. 28 U.S.C. § 1441(a) (1994).
216. 28 U.S.C. § 1441(c).
217. 28 U.S.C. § 1442.
218. 28 U.S.C. § 1443; see also 28 U.S.C. § 1443(2) (allowing removal for "any act under color of authority derived from any law providing for equal rights, or for refusing to do any act on the grounds that it would be inconsistent with such law").
219. See, e.g., AMERICAN LAW INSTITUTE, STUDY OF THE DIVISION OF JURISDICTION BETWEEN STATE AND FEDERAL COURT 25-26 (1969) (proposal to allow removal of actions (1) in which an amount in controversy requirement is satisfied and there is properly asserted a substantial defense arising under the Constitution, laws or treaties of the United States that, if sustained, would dispose of the action or of all counterclaims therein and (2) by any party against whom a counterclaim is asserted which sets forth a substantial claim arising under the Constitution, law or treaties of the United States).
220. See, e.g., 5 U.S.C. § 8477(e)(4)(c)(i) (1996); 7 U.S.C. § 13a-2(8)(B) (1994) (action regarding Commodities Exchange Act); 9 U.S.C. § 205 (1994) (actions involving Convention on the Recognition and Enforcement of
221. These statutes govern procedures before and after removal.
222. In Yonkers Racing Corp. v. Yonkers, 858 F.2d 855, 861-63 (2d Cir. 1988), for example, the City's removal of the Article 78 proceedings was ordered by the federal court rather than being instigated by the City. While the federal court did not decide whether the proceedings were removable pursuant to 28 U.S.C. §§ 1441 or 1443 because of the difficulty of deciding whether Yonkers was a defendant for purposes of the removal statutes (and therefore eligible to remove), it did not regard the question whether Yonkers was a defendant as important to the propriety of an All Writs removal). See also United States v. City of New York, 972 F.2d 464, 468 (2d Cir. 1992) (sua sponte removal under 28 U.S.C. § 1651); Fidelity Fin. v. Robinson, 971 F. Supp. 244, 249 (S.D. Miss. 1997) (assuming that the procedural requisites for removal prescribed by the general removal statutes would be irrelevant for an All Writs removal). Cf. Bewley v. Cigna Fin. Advisors, 1997 U.S. Dist. LEXIS 14761, at *4-*5 (N.D. Cal. Sept. 23, 1997) (holding All Writs removal unavailable because untimely under 28 U.S.C. § 1446(b) and because there was no independent basis of jurisdiction over the action); In re Baldwin-United Corp., 770 F.2d 328, 338-39 (2d Cir. 1985) (concluding that injunctions issued pursuant to the All Writs Act need not comply with the requirements of Rule 65 of the Federal Rules of Civil Procedure, which governs the issuance of preliminary injunctions).
223. 28 U.S.C. § 1446(b) (1994) requires defendants to file a notice of removal within thirty days after receiving the initial pleading, or within thirty days after service of summons if the initial pleading already has been filed in court and is not required to be served on the defendant, whichever period is shorter. If the case stated by the initial pleading is not removable, the defendant may file a notice of removal within thirty days after receiving an amended pleading, motion, order, or other paper making the case removable, although a case may be removed on the basis of diversity jurisdiction only within one year of commencement of the action.
224. 28 U.S.C. § 1446(a) (1994) requires the notice of removal to be filed in the district court of the United States for the district and division within which such action is pending.
225. 28 U.S.C. § 1447(b)-(e) (1994) (instructing federal district courts on procedures after removal; providing, inter alia, that cases may be remanded for lack of subject matter jurisdiction or for other defects; that motions to remand on the basis of other defects have to be made within 30 days after the filing of the notice of removal; and that remand orders generally are not reviewable on appeal or otherwise).
226. See supra text at notes 191-97 and infra Part V.C.
227. The cases in which appellate courts have granted All Writs removal are discussed supra Section II.
228. Peacock v. Thomas, 516 U.S. 349, 355 (1996) (quoting Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 376 (1978)).
229. 28 U.S.C. § 1367 (1993).
230. 383 U.S. 715 (1966) (approving supplemental jurisdiction over those state law claims with sufficient nexus to plaintiffs' federal law claims).
231. Id. at 725.
232. This is the term used in the current American Law Institute Federal Judicial Code Revision Project to refer to claims for relief that are within the original jurisdiction of the district courts independently of the section governing supplemental jurisdiction. See AMERICAN LAW INSTITUTE, FEDERAL JUDICIAL CODE REVISION PROJECT, TENTATIVE DRAFT NO. 2, at 1 (Apr. 14, 1998) (proposed 28 U.S.C. § 1367(a)(1)).
233. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 380 (1994).
234. 516 U.S. 349 (1996).
235. See id. at 353. A consolidation of lawsuits, one of which is supported by an independent basis of federal subject matter jurisdiction and another of which is not but contains claims all of which arise from a common nucleus of operative fact with the freestanding claims in the first suit, might well be constitutional. See Joan Steinman, The Effects of Case Consolidation on the Procedural Rights of Litigants: What They Are, What They Might Be, Part 1: Justiciability and Jurisdiction (Original and Appellate), 42 UCLA L. REV. 717, 741-61 (1995). Nonetheless, consistent with the thinking outlined in the text above, courts generally reject efforts to consolidate such suits, with one being regarded as ancillary to the other. See, e.g., Ahearn v. Charter Township, 100 F.3d 451, 456 (6th Cir. 1996) (holding that state law challenging special assessment could not be removed pursuant to the supplemental jurisdiction statute even if factually related to another action of which the district court had jurisdiction); Brown v. Francis, 75 F.3d 860, 866 (3d Cir. 1996) (stating that consolidation could not cure the jurisdictional deficiencies of a case); McKenzie v. U.S., 678 F.2d 571, 574 (5th Cir. 1982) (reaching the same conclusion as Brown); Steinman, supra, at 751 n. 116 (citing additional cases exemplifying this proposition). Occasionally, however, courts bend or make exceptions to the rule that each component action in a consolidation must be considered independently in determining subject matter jurisdiction. See Steinman, supra, at 753-56.
236. Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365, 377 (1978).
237. But see Berry v. McLemore, 795 F.2d 452, 455 (5th Cir. 1986) (holding that there was no ancillary jurisdiction over a garnishment action against someone not a party to the primary action establishing a debt, particularly where the basis of the garnishment was different from the basis of the original claim).
238. See Peacock, 516 U.S. at 356. See, e.g., Minnesota Co. v. St. Paul Co., 69 U.S. (2 Wall.) 609, 631-34 (1864) (holding that where a bill in equity is necessary to obtain an interpretation of the order or decree of a federal court and to enforce the rights established by that court, the federal court has ancillary jurisdiction over the proceeding).
239. 516 U.S. at 357-59.
240. See id. at 358 (citing, in support of its conclusion, Dugas v. American Surety Co., 300 U.S. 414, 428 (1937), Krippendorf v. Hyde, 110 U.S. 276, 285 (1884), and Minnesota Co. v. St. Paul Co., 69 U.S. (2 Wall.) 609, 633 (1864), for their cautions against the exercise of ancillary jurisdiction over proceedings that are entirely new and original or where the relief sought is of a different kind or on a different principle than that on which the prior decree was based). Justice Stevens dissented, arguing that the continuation of a federal court's jurisdiction until a judgment is satisfied should extend to a claim by a judgment creditor that a person in control of the judgment debtor has fraudulently exercised that control to defeat satisfaction of the judgment, and rejecting the majority's view of the case as an effort to establish an independent liability, rather than to collect on a prior federal judgment. See Peacock, 516 U.S. at 360-62.
241. 511 U.S. 375 (1994).
242. Id. at 379 (quoting Julian v. Central Trust Co., 193 U.S. 93, 113-14 (1904), in turn citing 1 C. BATES, FEDERAL EQUITY PROCEDURE § 97 (1901)).
243. Kokkonen, 511 U.S. at 379 (quoting Fulton Nat'l Bank v. Hozier, 267 U.S. 276, 280 (1925)).
244. FED. R. CIV. P. 41 (a)(1)(ii) (permitting a plaintiff to dismiss an action without court order by filing a stipulation of dismissal signed by all parties who have appeared in the action).
245. Kokkonen, 511 U.S. at 380-82.
246. FED. R. CIV. P. 41(a)(2) (providing for dismissal at a plaintiff's instance, but upon order of the Court).
247. See Kokkonen, 511 U.S. 381-82.
248. See id., cited with approval in Flanagan v. Arnaiz, 143 F.3d 540, 544-46 (9th Cir. 1998) (holding court to have jurisdiction to enforce settlement agreement where it had retained jurisdiction to resolve disputes arising under the settlement agreement, and upholding injunction prohibiting party from seeking to have state court consider claims previously dismissed by the federal court).
249. 17 WRIGHT, ET AL., supra note 24, § 4226, at 548. See, e.g., Local Loan Co. v. Hunt, 292 U.S. 234, 239 (1934) (holding bankruptcy court to have ancillary jurisdiction over proceedings to enforce a discharge order by enjoining prosecution of suits against the debtor); Supreme Tribe of Ben Hur v. Cauble, 255 U.S. 356, 367 (1921) (holding that federal court has ancillary jurisdiction to restrain state court litigation of issues determined by federal court in a class action); Royal Ins. Co. of America v. Quinn-L Capital Corp., 960 F.2d 1286, 1292 (5th Cir. 1992) (holding that federal district court that had granted declaratory judgment had ancillary jurisdiction over suit seeking declaratory judgment that insurer had no duty to defend or indemnify insured in state court litigation which had potential to effectively nullify previous declaratory judgment); In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir. 1991) (stating that, "[a] valid original judgment provides the federal court with the power to issue the relitigation injunction"); Southwest Airlines Co. v. Texas Int'l Airlines, Inc., 546 F.2d 84, 89-90 (5th Cir. 1977) (stating that an action for an injunction to enforce a federal judgment is supplemental or ancillary to the original case).
250. See, e.g., De Perez v. AT&T Co., 139 F.3d 1368, 1379-80 (11th Cir. 1998) (concluding that an exercise of supplemental jurisdiction over the case in question, under the All Writs Act, was not justified); In re County Collector, 96 F.3d 890, 903 n.20 (7th Cir. 1996) (noting that the school district was attempting to use the All Writs Act to confer a jurisdiction that the district court would not have without it, but that the writ also was ancillary to a jurisdiction already acquired; observing that no court had yet considered whether the All Writs Act could be interpreted, consistent with Supreme Court precedent (particularly McIntire v. Wood, 11 U.S. (7 Cranch) 504, 506 (1813)), to create this limited form of ancillary removal jurisdiction).
251. The exercise of jurisdiction might be impermissible because the state court action is outside the original jurisdiction of the federal courts, or because the action fails, or the defendants have failed, to satisfy other statutory requirements for removal.
252. See State Farm Fire & Cas. Co v. Tashire, 386 U.S. 523 (1967) (upholding interpleader statute requiring only minimal diversity).
253. Cf. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824) (stating that, for purposes of Article III of the Constitution, a case arises under federal law if federal law forms an ingredient of the cause of action, even if the federal issue bears only a tangential connection to the actual dispute) with Louisville & Nashville R.R. v. Mottley, 211 U.S. 149 (1908) (stating that, for purposes of federal question jurisdiction, a case arises under federal law only if it appears on the face of a well-pleaded complaint).
254. A similar point was made by Professor Akhil Amar in his article, Marbury, Section 13, and the Original Jurisdiction of the Supreme Court, 56 U. CHI. L. REV. 443, 456-59 (1989). In discussing § 13 of the Judiciary Act of 1789, which addressed the original and appellate jurisdiction of the Supreme Court, Amar argued that § 13's language empowering the Court to issue writs of mandamus to certain courts and persons is best read as giving the Court remedial authority after jurisdiction (whether original or appellate) was independently established. Amar found that, in a number of contexts, including the section (§ 14) that is the precursor of the All Writs Act, the Judiciary Act used the terms "jurisdiction" and "power" differently and in such a way that jurisdiction first had to be established, and particular powers would then follow. Thus, §§ 13 and 14 did not confer jurisdiction; they specified possible consequences of jurisdiction. Amar then continued, "[A]ny other reading would be pure bootstrap. This bootstrap would not only distort the purpose of § 14; it would obviously violate Article III by giving federal courts jurisdiction whenever certain writs were sought, whether or not the underlying lawsuit fell within one of the nine categories of cases and controversies set forth in the jurisdictional menu of Article III, § 2." Id. at 459.
255. Yonkers Racing Corp. v. City of Yonkers, 858 F.2d 855 (2d Cir. 1988), cert. denied, 489 U.S. 1077 (1989); see also supra text accompanying notes 73-85.
256. The reference is to Article 78 of the New York Civil Practice Law and Rules.
257. Yonkers Racing, 858 F.2d at 861-63.
258. Cf. In re County Collector, 96 F.3d 890 (7th Cir. 1996). The City of Yonkers had been found liable for a long-term pattern and practice of deliberately concentrating federally subsidized low income housing in certain areas of Yonkers in order to maintain racial segregation, and had been ordered to provide sites for 200 units of public housing in non-minority areas of the City. The consent decree designated particular sites. This was not a situation in which the basic question of the City's liability had been finessed or the relief that was afforded was merely agreed upon by the parties, and rubber-stamped by the court. See Yonkers Racing, 858 F.2d at 857-59; see also United States v. Yonkers Bd. of Educ., 837 F.2d 1181 (2d Cir. 1988). In light of the fact that the court's original judgment ordered Yonkers to provide sites for public housing in nonminority areas of the city but did not dictate specific sites, see Yonkers Racing, 858 F.2d at 857, it is unlikely that one could view the Article 78 proceedings as threatening the original court order, although they did threaten the ultimate consent decree. See id. at 864-65.
259. The opinion indicates that the issues in the removed Article 78 proceedings had nothing to do with the validity of the consent decree. See Yonkers Racing, 858 F.2d at 862-63.
260. See, e.g., Huguley v. General Motors Corp., 999 F.2d 142, 146-47 (6th Cir. 1993) (stating that consent decree has preclusive effect upon issues fully and fairly addressed in prior proceedings; holding that because settlement agreement in previous federal class action precluded employee from bringing race discrimination in employment claim in state court, federal court was correct to enjoin the latter litigation); Amalgamated Sugar Co. v. NL Industries, Inc., 825 F.2d 634, 639 (2d Cir. 1987), cert. denied, 484 U.S. 992 (1987) (stating that, "The general rule is that a final consent decree is entitled to res judicata effect . . . because the entry of a consent judgment is an exercise of judicial power . . . entitled to appropriate respect and because of the policy of favoring finality of judgments" (citations omitted); holding that court properly enjoined shareholder's relitigation in state court of validity of a "poison pill" purchase rights plan where a prior final federal consent judgment had established the invalidity of that plan); Dunn v. Carey, 808 F.2d 555, 559 (7th Cir. 1986) (stating that, "consent decrees are judgments [which] . . . may be enforced by contempt of court. The quality of this contract as judgment would allow the court to invoke the relitigation exception to § 2283 to bar further disputation between the parties to the case"); see also id. at 561 (Swygert, J., concurring) (stating that, "[f]or purposes of section 2283, courts have treated consent decrees as judgments entitled to protection from inconsistent state court orders (citations omitted)); United States v. American Soc'y of Composers, Authors and Publishers, 442 F.2d 601, 603-05 (2d Cir. 1971) (holding that district court properly enjoined ASCAP member's prosecution of state court action seeking to enjoin the distribution of licensing fees because injunction was necessary in aid of federal jurisdiction and to protect consent judgment under which district court was empowered to fix licensing fees under specified circumstances and had approved an agreement on such fees). Rule 54(a) of the Federal Rules of Civil Procedure describes a judgment, as used in the Rules, as including "a decree and any order from which an appeal lies."
261. See, e.g., Association for Retarded Citizens v. Thorne, 30 F.3d 367, 370-71 (2d Cir. 1994) (for the reasons stated in the text, stating that a district court that enforces a consent decree against a nonparty acts beyond the scope of the All Writs Act); Dunn v. Carey, 808 F.2d 555, 558-60 (7th Cir. 1986) (holding that AIA barred injunction of state suit seeking to prevent assessment of taxes for purposes provided for in settlement of federal class action that ended by consent decree, where the state court plaintiffs had not been parties to the federal case and were not otherwise directly bound by the judgment therein); see also infra Part II, section I (regarding the need for personal jurisdiction over persons enjoined).
262. See supra text at notes 198-206.
263. If the Article 78 proceedings were separate, there might have been diversity of citizenship jurisdiction over one but not the other.
264. See Yonkers Racing, 858 F.2d. at 858.
265. The other factors cited by the Second Circuit in support of All Writs removal, see id. at 863-65, also might be pertinent in deciding whether an injunction of the state proceeding properly falls within the court's ancillary jurisdiction.
266. That is, an injunction of the state court proceedings would have put the property owners to the choice of foregoing their proceedings or bringing suit in federal court, seeking a hearing on the basis of jurisdiction ancillary to the original federal suit. Presumably they would have taken the second of these options. A third alternative might have been to raise their defenses to the condemnation in the context of the condemnation proceedings and seek to remove that case. The questions would then have arisen whether that action would have been removable under either the ordinary removal statutes or the All Writs Act.
267. Martin v. Wilks, 490 U.S. 755, 761-62 (1989) (to bind a person by a judgment, one must join him to an action; third parties have no obligation to intervene).
268. See Martin, 490 U.S. at 755. Alternatively, one might conclude that Martin v. Wilks does not go that far. Under Martin, federal courts may not disallow persons who were not parties to, and refrained from intervening in, federal litigation from challenging consequences of the judgment rendered in that action, merely because they forewent the opportunity to intervene, with knowledge that their interests could be adversely affected by the litigation. Arguably, nothing in that decision makes it "unfair" to enjoin subsequent state court litigation by those same persons when the injunction is grounded in reasons recognized in the exceptions to the AIA and having nothing directly to do with the parties to that state court litigation having foregone the opportunity to intervene in the federal suit or judgment being protected by the injunction. If it became clear during the initial litigation against the City of Yonkers that property of the Raceway and the Seminary were likely to be taken as part of the remedy for the City's history of race discrimination, they could have moved to intervene as of right as persons who claimed an interest relating to property that was a subject of the action and so situated that the disposition of the action might as a practical matter impair or impede their ability to protect their interest, since the existing parties would not have adequately represented their interests. See FED. R. CIV. P. 24(a). Although, under Martin, they had no duty to seek to intervene, intuitively their choice not to do so (if they in fact made such a choice) puts them in a less sympathetic position when considering whether their state court litigation properly could be enjoined.
269. Yonkers Racing, 858 F.2d at 862-63. The Seminary had argued that inclusion of its property in the consent decree and commencement of the condemnation proceedings were attempts to regulate the use of church owned property without any compelling public interest and in violation of the First and Fourteenth Amendments to the Constitution. The other issues were whether the City had complied with state procedural requirements and whether the sites were properly designated, a rather ambiguous ground. See id. at 868.
270. If the City of Yonkers refiled its condemnation complaints in federal court after a hypothesized injunction of the state court proceedings, in all likelihood no federal issue would appear on their well-pleaded faces, despite the condemnations having been undertaken to remedy race discrimination that had been held to violate both federal statutory law and the Fourteenth Amendment. However, the Second Circuit made clear that the assertion of ancillary jurisdiction over those proceedings would have been fine. See Yonkers Racing, 858 F.2d at 864.
271. United States v. City of New York, 972 F.2d 464 (2d Cir. 1992).
272. See City of New York, 972 F.2d at 468.
273. The state court action sought to void contracts necessary to fulfill the City's obligation under a federal consent decree. See City of New York, 972 F.2d at 467.
274. See id. at 469.
275. See supra text at notes 260-61 regarding consent decrees as judgments within the meaning of the AIA. There apparently was no challenge to the authority of the parties to have entered into the consent decree. See City of New York, 972 F.2d at 467.
276. See City of New York, 972 F.2d at 468.
277. 33 U.S.C. §§ 1412-16 (1994) (establishing a permit system for the dumping of certain approved types of waste into the ocean).
278. See generally United States v. City of New York, 972 F.2d 464 (2d Cir. 1992). However, the court did discuss whether the case constituted a "case or controversy," given the uncertainties about the plaintiff's standing to bring the suit. See id. at 469-71 (addressing this issue even though it was not raised by the parties).
279. Sable v. General Motors Corp., 90 F.3d 171 (6th Cir. 1996). See also supra notes 113-17 for a discussion of the case.
280. See id. at 174-75 (discussing whether the plaintiff's complaint arose under federal law).
281. See Sable, 90 F.3d at 174 (stating that "[s]ince [the] plaintiff seeks relief that conflicts with the consent decree, plaintiff's claim arises under federal law"). This is a dubious inference: The fact that the resolution of state law claims could conflict with a federal court's consent decree never has transformed state law claims into claims that arise under federal law for jurisdictional purposes. Moreover, the perceived "conflict" was based on the court's conclusions that asking for damages for non-removal of chemicals, measured by the cost of removal, was tantamount to asking for removal of the chemicals themselves, and that the latter remedy would have conflicted with the consent decree, which required the chemicals to be "contained" on the property. See id. at 174. The court's equation of a request for damages with a request for removal of chemicals seems questionable, regardless of how the damages are measured.
282. See id. at 175.
283. See supra note 281.
284. See Sable, 90 F.3d at 171.
285. See Atlantic Coast Line R.R. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 294 (1970); see also supra text accompanying note 40.
286. In fact, the Sixth Circuit held the removed action to be barred by the statute of limitations. See Sable, 90 F.3d at 176-77.
287. Because I do not actually believe that injunction of the state suit was warranted, I have difficulty making the argument that the state court claim would have been within the federal court's ancillary jurisdiction. For essentially the reasons stated above - that the trespass suit for money damages would not have prevented effectuation of the consent agreements, and because it is not clear that those agreements even were incorporated into the court's decree - I do not believe that ancillary jurisdiction would have been appropriate. Even if one can imagine reaching the combination of conclusions that plaintiff's state action would have been properly enjoined but ancillary jurisdiction over plaintiff's claims would not have been available and plaintiff would not have been able to pursue its claims in federal court based on an independent basis of jurisdiction, on the facts of this case, that does not appear unfair. Plaintiff seems to have had a full and fair opportunity to litigate all the issues in the federal proceedings. The claims against defendants appear to be claims over which the federal court could have exercised jurisdiction, under either 28 U.S.C. § 1331 or 28 U.S.C. § 1367, in the original suit by the United States - to which the state court plaintiff was a party, had plaintiff asserted them at that time. If the plaintiff's action could not be brought in federal court, nor properly be removed there under 28 U.S.C. § 1441, the question of the constitutionality of an All Writs removal (assuming that that statute would authorize the removal) recurs. However, the role of the EPA and of federal environmental law in the consent agreements that would provide possible defenses to the defendants would seem to make the case one arising under federal law for purposes of Article III.
288. Mandatory class actions are those in which absent class members are not entitled to notice or to exclude themselves as a matter of right under Rule 23. See Ortiz v. Fibreboard Corp., 119 S. Ct. 2295, 2308 n.13 (1999).
289. FED. R. CIV. P. 23(b)(1)(A).
290. See FED. R. CIV. P. 23(b)(1)(B) (allowing a class action if the prosecution of separate actions by or against class members would create a risk of "adjudications with respect to individual members . . . which would as a practical matter be dispositive of the interests of the other members not parties . . . or substantially impair or impede their ability to protect their interests"). The Advisory Committee Notes on this section opine that the requirements of the Rule are satisfied "when claims are made by numerous persons against a fund insufficient to satisfy all claims." FED. R. CIV. P. 23 (Advisory Committee notes for 1966 amendments). A recent examination by the Supreme Court of the varieties of suits traditionally encompassed by Rule 23(b)(1)B) led it to discern three characteristics that typify "limited fund" class actions. The Court stated that the presence of these characteristics suffices to justify Rule 23(b)(1)B) certification, as understood by the drafters of Rule 23. These traits are: • a fund with a definitely ascertained limit which, at its maximum, is demonstrated to be exceeded by aggregate liquidated claims, set at their maxima; • all of which (fund) is to be distributed to those with liquidated claims that are based on a common theory of liability (The precedents did not permit the defendant to hold back on the amount distributed to the class; they ensured that the defendant was not permitted a better deal than seriatim litigation would have produced.); and • all claimants sharing a common theory of recovery to be treated equitably among themselves, typically (historically) by a pro rata distribution of the fund. See Ortiz, 119 S. Ct. at 2311-12. The Court then concluded that these characteristics are presumptively necessary, as well as sufficient, for limited fund Rule 23(b)(1)(B) certification. See id. at 2312. A proponent of any departure from these norms would have the burden of justifying that departure. See id. at 2295.
291. See FED. R. CIV. P. 23(b)(3) (authorizing class actions when the prerequisites of Rule 23(a) have been met and when questions of law or fact common to the class members "predominate over any questions affecting only individual members and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy"). Rule 23(c)(2)(A) affords such class members a right to exclude themselves from the class by a date specified by the court. See FED. R. CIV. P. 23 (c)(2)(A).
292. See In re Federal Skywalk Cases, 680 F.2d 1175, 1191-93 (8th Cir.) (Heaney, J., dissenting).
293. See Carlough v. Amchem Prods., Inc., 10 F.3d 189, 202-04 (3d Cir. 1993) (approving an anti-suit injunction as necessary to protect the court's jurisdiction to implement a proposed settlement of a nationwide class action where the enjoined suit sought to undermine the viability of the class action and settlement by carving out a state class action); see also Sherman, supra note 24, at 941-48 (discussing anti-suit injunctions and the functions they served in three mass tort class actions, including two cases in which settlement had been proposed or was being negotiated).
294. See Wood, supra note 30, at 315 (also proposing that federal courts be permitted to enjoin pending state court proceedings when necessary to prevent irreparable harm to the parties or to federal interests, including when necessary to ensure the effectiveness of a certified class action or multidistrict litigation ordered pursuant to 28 U.S.C. § 1407); see also Rowe, supra note 2, at 203-05 (opining that the need for power to enjoin proceedings in other courts is clear in at least some mandatory class actions, particularly concerning Rule 23(b)(1)(A) classes, that such power could be useful to protect limited funds in Rule 23(b)(1)(B) actions, and would be properly exercised in some circumstances even in nonmandatory class actions); Edward F. Sherman, Class Actions and Duplicative Litigation, 62 IND. L.J. 507, 559 (1987) (opining that for Rule 23(b)(1) and (2) to achieve their objectives, it may be necessary to enjoin duplicative litigation; and finding that rigid applications of the AIA have failed to accord adequate respect to the efficiency and fairness policies underlying the federal class action).
295. See Mitchum v. Foster, 407 U.S. 225, 238 (1972) (describing the test to be applied to determine whether a federal statute expressly authorizes an injunction of state court proceedings as "whether an Act of Congress, clearly creating a federal right or remedy enforceable in a federal court of equity, could be given its intended scope only by the stay of a state court proceeding").
296. See FED. R. CIV. P.23. In contrast, statutory interpleader provides that a district court may restrain all claimants "from instituting or prosecuting any proceeding in any State or United States court affecting the property, instrument or obligation involved in the interpleader action." 28 U.S.C. § 2361 (1994).
297. See generally 28 U.S.C. § 2283 (1994).
298. See supra notes 32-34 and accompanying text.
299. See, e.g., In re Federal Skywalk Cases, 680 F.2d 1175, 1182-83 (8th Cir. 1982). In this case, in order to avoid exhaustion of the defendant's available assets and avoid legal restrictions that might curtail the ability of some class members to recover punitive damages, the district court had enjoined class members from settling punitive damages claims they had asserted in other litigation until the class action trial was concluded. See id. at 1177-80. The appeals court vacated the injunction, rejecting the arguments that the injunction was necessary in aid of the court's jurisdiction, relying in part on the principle cited in the text. See id. at 1182-83.
300. See FED. R. CIV. P. 82 (providing in part that, "[t]hese rules [the Federal Rules of Civil Procedure] shall not be construed to extend . . . the jurisdiction of the United States district courts").
301. See Wood, supra note 30, at 315.
302. See HART & WECHSLER, supra note 2, at 1206 n.9 (posing these questions); In re Temple, 851 F.2d 1269, 1272 & n.3 (11th Cir. 1988) (issuing mandamus to vacate a district court order certifying a Rule 23(b)(1)(B) class action and staying all related litigation, and concluding in dicta that these orders did not seem to be authorized by Act of Congress, or necessary in aid of the court's jurisdiction); cf. Piambino v. Bailey, 610 F.2d 1306, 1331-32 (5th Cir. 1980), cert. denied, 449 U.S. 1011 (1980) (refusing to construe Rule 23(d), authorizing trial courts to make whatever orders are appropriate to manage a class action, as an express exception to the AIA, on the grounds that the Rule fails the test laid down in Mitchum v. Foster); In re Baldwin-United Corp., 770 F.2d 328, 335 (2d Cir. 1985) (same). See also Larimore, supra note 37, at 278-84 (discussing the argument of express authorization by Congress and possible difficulties with it, including the fact that the Federal Rules of Civil Procedure are not literally an act or acts of Congress although Congress can prevent any proposed Rule from being promulgated, see 28 U.S.C. § 2074(a) (1994)); In re Halkin, 598 F.2d 176, 185 n.17 (1979) (explaining that the Federal Rules of Civil Procedure bear a Congressional imprimatur to some extent because, although not affirmatively enacted by Congress, they are subject to a mandatory "layover period" before their effective date, to permit legislative scrutiny and veto). This aspect of the procedure for promulgating Federal Rules of Civil Procedure has not changed.
303. See, e.g., Carlough v. Amchem Prods., Inc., 10 F.3d 189 (3d Cir. 1993); In re School Asbestos Litig., 1991 WL 61156 (E.D. Pa. 1991), aff'd mem. 950 F.2d 723 (3d Cir. 1991) (upholding an injunction against duplicative litigation pending the district court's ruling on a proposed settlement); In re Baldwin-United Corp., 770 F.2d 328 (2d Cir. 1985) (finding injunction justified to protect the imminent settlement of consolidated cases); In re Corrugated Container Antitrust Litig., 80 F.R.D. 244 (S.D. Tex. 1978), aff'd, 659 F.2d 1332 (5th Cir. 1981) (emphasizing that the district court had approved settlements with most of the defendants when the court issued the injunction); In re Orthopedic Bone Screws Prods. Liab. Litig., 176 F.R.D. 158, 178 (E.D. Pa. 1997) (enjoining prosecution of state court actions against manufacturer pending certification of limited fund federal class action, as necessary in aid of the court's jurisdiction and to protect and effectuate the judgment certifying a class action and approving a settlement). See generally, 7B CHARLES A. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE, § 1798.1, at 437 (1986 & Supp. 1999) (concluding that, "it may be that although a federal district court in a class action that is not part of multidistrict litigation cannot enjoin state court litigation at the outset of the federal suit, if that action proceeds to the settlement stage, then an injunction to protect the court's power to effectuate a settlement may be upheld). For observations on the Carlough case, see Sherman, supra note 24, at 942-43; Monaghan, supra note 97, at 1160 n.51 (citing Carlough in support of the proposition that the AIA has not proved a barrier when the federal court action was near final disposition).
304. RICHARD L. MARCUS & EDWARD F. SHERMAN, COMPLEX LITIGATION, CASES AND MATERIALS ON ADVANCED CIVIL PROCEDURE 369-71 (3d ed. 1998); see also In re Joint E. & S. Dist. Asbestos Litig., 120 B.R. 648 (E.D.N.Y. 1990). Cf. Monaghan, supra note 97, at 1160 n.49 (the AIA "has not so far proved a barrier . . . when the F1 court [the class action court] was seeking to protect a final judgment that had erected a private administrative 'agency' for the payment of claims"). See also Sherman, supra note 24, at 517-59 (discussing case law and the factors influencing injunctions against prosecution of existing suits and against filing of future suits when both actions are in federal court and when a federal court proposes to enjoin a proposed or existing suit in state court).
305. See supra text accompanying notes 36-38.
306. See, e.g., Hanlon v. Chrysler Corp., 150 F.3d 1011, 1024-25 (9th Cir. 1998) (holding court empowered by the All Writs Act, the AIA, and Fed. R. Civ. P. 23(d) to stay a state class action that directly contravened a prior injunction against such a proceeding, entered in a nationwide class action, and further holding the temporary approval of a nationwide settlement in the federal class action to have stayed the state class action); Carlough v. Amchem Prods., Inc., 10 F.3d 189, 202-04 (3d Cir. 1993) (holding that district court could preliminarily enjoin plaintiff class members from prosecuting similar state court class action in light of imminent settlement of federal action after years of negotiation, plaintiffs' effort to challenge propriety of federal suit in state court, and plaintiffs' right to opt out of the federal suit); Standard Microsystems Corp. v. Texas Instr. Inc., 916 F.2d 58, 60 (2d Cir. 1990) (indicating that a stay of state court proceedings may be appropriate under the necessary in aid of jurisdiction exception "where a federal court is on the verge of settling a complex matter, and state court proceedings may undermine its ability to achieve that objective"). Cf. James v. Bellotti, 733 F.2d 989, 994 (1st Cir. 1984) (concluding that a federal court properly could enjoin a state court action in which parties sought an injunction against the signing of a proposed federal court settlement of land claims) with In re Federal Skywalk Cases, 680 F.2d 1175, 1181-83 (8th Cir. 1982) (reversing, as in violation of the AIA, a mandatory class certification which prohibited class members from settling punitive damages claims and effectively enjoined state plaintiffs from pursuing pending state court actions on issues of liability); Broussard v. Meineke Discount Muffler Shops, Inc., 903 F. Supp. 16 (W.D.N.C. 1995) (holding that AIA prohibited federal court from enjoining federal class members from continuing in personam state actions concerning same issues, although it permitted an injunction against the institution of new state proceedings). In general, however, the relitigation exception of the AIA does not permit a federal court to enjoin state proceedings to protect a judgment that the court contemplates but has not yet entered. See 17 WRIGHT, ET AL., supra note 24, § 4226, at 548-49.
307. See supra text at notes 36-38.
308. In re School Asbestos Litig., 789 F.2d 996, 1006 (3d Cir. 1986), cert. denied sub nom. Celotex Corp. v. School Dist., 479 U.S. 852 (1986) (reasoning to the conclusion that a Rule 23(b)(1)(B) class for punitive damages should not have been certified because the class did not include all potential claimants for property damage resulting from the presence of asbestos products in buildings and structures nor claimants for personal injury from the same cause, and commenting that, "The situation here is somewhat analogous to the problem presented by an interpleader action in which all claimants to the fund have not been made parties"); In re Joint E. & S. Dist. Asbestos Litig., 134 F.R.D. 32, 38 (E.D.N.Y. 1990) (concluding that limited fund class actions closely resemble interpleader actions and that consequently a stay of state proceedings would be warranted under the "necessary in aid of jurisdiction" exception to the AIA). But see In re Federal Skywalk Cases, 680 F.2d at 1182 (rejecting the argument that the action was akin to interpleader where the law might limit plaintiffs to recovery of one punitive damages award from defendant, inter alia because the plaintiffs' claim to punitive damages was unclear and liability was unconceded); In re Orthopedic Bone Screw Prods. Liab. Litig., 1995 U.S. Dist. LEXIS 22042, at *25 n.10 (E.D. Pa. Feb. 22, 1995) (for the reasons stated in Federal Skywalk rejecting the argument that certification of a limited class fund is functionally equivalent to an interpleader). Samuel Issacharoff characterizes (b)(1)(B) actions as "the plaintiffs' interpleader - a mechanism by which to avoid the 'run on the bank' risk when outstanding liabilities can be expected to outstrip available assets." Samuel Issacharoff, Class Action Conflicts, 30 U.C. DAVIS L. REV. 805, 820 (1997).
309. Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 295 (1970), but see Monaghan, supra note 97, at 1160 n. 49 (questioning this reliance because of the Court's view that parallel in personam cases do not interfere with one another or with either court's exercise of jurisdiction).
310. That "problem" is the Court's view that parallel in personam cases do not interfere with one another or with either court's exercise of jurisdiction.
311. See HART & WECHSLER, supra note 2, at 1205 (posing these questions).
312. Thus, the second listed factor also is important because the right to opt out indicates a lack of conflict or inconsistency between the class action and individual suits.
313. For other formulations of relevant considerations, see Werner, supra note 24, at 1072-77, who argues that courts asked to enter anti-suit injunctions should harmonize efficiency with federalism by considering whether continuation of non-consolidated actions would substantially impair or interfere with disposition of the consolidated actions (which would depend on the stages of the proceedings, issue commonality, and size of the non-consolidated actions), as well as whether and how much an injunction would promote efficiency and fairness in light of, inter alia, the burden an injunction would impose and comity and federalism constraints. See also Larimore, supra note 37, at 290-303 (arguing that some conflicts between Rule 23 and the AIA can be avoided by limiting class certifications to appropriate circumstances, and that the interpretation of the necessary in aid exception be revised to eschew the division between in rem and in personam jurisdiction and to embrace consideration of whether the class action sought to be protected is mandatory, the degree of federal interest in a litigation, the degree of state interest in a litigation, the strength of the litigants' interests in choosing their forum, and systemic and policy factors including efficiency, flexibility, the effect than an injunction may have upon litigation strategy, and what steps might alleviate intercourt conflict).
314. See supra text accompanying note 9; see also infra text at notes 366-75.
315. I have reserved for Part II of the Article, however, consideration of whether the class action courts had personal jurisdiction to enjoin the absent members of the federal classes from bringing or pursuing related litigation, including collateral attacks, and whether it is wise to enjoin such litigation, even if personal jurisdiction is no obstacle and the AIA would permit it.
316. If a plaintiff's claim is governed exclusively by federal law and the only available remedy is federal, the plaintiff necessarily is stating a federal cause of action whether he characterizes it that way or not, and courts will not allow a plaintiff to use "artful pleading" to deprive a defendant of its right to remove the action to federal court. See generally 14B C. WRIGHT, ET AL., FEDERAL PRACTICE AND PROCEDURE, § 3722.1, at 266-75 (3d ed. 1998 & 1999 Pocket Part).
317. 28 U.S.C. § 1442(a) (1994 & Supp. 1998). In pertinent part, it allows removal of actions against any "officer of the United States or any agency thereof, or person acting under him, for an act under color of such office." The argument for removal based on § 1442(a) presumably harkened back to defendants' argument (which the court had accepted in dealing with plaintiffs who had opted-out of the federal class action) that defendant chemical companies were protected from liability by a "military contractor defense" that protected them from liability to Vietnam veterans and their families where the government knew as much or more than the defendants about the possible adverse effects of Agent Orange, as it was used in Vietnam, and the government would have concluded that saving American soldiers by defoliating Vietnamese jungles outweighed the risks to U.S. or allied troops - a decision within the discretionary function exception to liability under the FTCA. See In re Agent Orange Prods. Liab. Litig., 611 F. Supp. 1223 (E.D.N.Y. 1985), aff'd, 818 F.2d 187 (2d Cir. 1987), cert. denied, 487 U.S. 1234 (1988); see also Boyle v. United Tech. Corp., 487 U.S. 500, 512 (1988) (explaining that liability for design defects in military equipment cannot be imposed on government contractors when the United States approved reasonably precise specifications, the equipment conformed to them, and the supplier warned of the known dangers in the use of the equipment); Arness v. Boeing North Amer., Inc., 997 F. Supp. 1268, 1272 (C.D. Cal. 1998) (opining that the test laid down in Boyle may apply to government contracts performed according to government specifications).
318. In re Agent Orange Prods. Liab. Litig. 996 F.2d 1425, 1431-32 (2d Cir. 1993), cert. denied, Ivy v. Diamond Shamrock Chems. Co., 510 U.S. 1140 (1994).
319. See supra text at notes 93, 96-97, 99; see also Huguley v. General Motors Corp., 999 F.2d 142 (6th Cir. 1993) (stating that consent decree has preclusive effect upon issues fully and fairly addressed in prior proceedings; holding that because settlement agreement in previous federal class action precluded employee from bringing race discrimination in employment claim in state court, federal court was correct to enjoin the latter litigation and such injunction was permissible under the AIA); Gross v. Barnett Banks, Inc., 934 F. Supp. 1340, 1345-46 (M.D. Fla. 1995) (holding that, in order to prevent state court from interfering with settlement and injunction entered in federal class action involving substantially similar claims, Anti-Injunction Act permitted injunction of state court actions challenging bank's ability to force place insurance).
320. Agent Orange, 996 F.2d at 1432.
321. Id. at 1429.
322. Id. at 1432.
323. See id. at 1428.
324. In class actions, the requirements for diversity jurisdiction are satisfied if, without regard to the citizenship of the absent plaintiff class members, all named representative plaintiffs are diverse from the named defendants. See Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 366 (1921) (holding that federal courts have jurisdiction over non-diverse absent class members if all named representatives of the class are diverse from the named defendants). The fact that complete diversity was lacking in the state court suit brought by these Agent Orange victims undoubtedly was the result of a strategic choice made by the plaintiffs, in an effort to prevent removal. Naming a non-diverse plaintiff class representative was all they needed to do to render the case unremovable as a diversity case under 28 U.S.C. § 1441. See 28 U.S.C. § 1441 (1994) (requiring that the federal court have original jurisdiction for an action to be removable).
325. In class actions, each class member's claim must meet the amount in controversy requirement, unless the claims arise out of a common undivided interest, single title or right. See Zahn v. International Paper Co., 414 U.S. 291, 301 (1973) (no ancillary jurisdiction over the claims of class members where the claims of each named plaintiff exceeded the jurisdictional minimum); Snyder v. Harris, 394 U.S. 332, 335-36 (1969) (disallowing aggregation of class members' claims unless plaintiffs seek to enforce a single title or right in which they have a common and undivided interest). The claims asserted in the Agent Orange litigation would not have been joint. As of this writing, at least two Courts of Appeals have held that the supplemental jurisdiction statute, 28 U.S.C. § 1367 (1994), has undermined Zahn for suits brought after the effective date of that statute in 1990. See Stromberg Metal Works, Inc. v. Press Mech., Inc., 77 F.3d 928, 931 (7th Cir. 1996) (holding that, if a federal court has jurisdiction over the claims of one co-plaintiff, § 1367 authorizes supplemental jurisdiction over a co-plaintiff's claims against the same defendants when the latter claims are below the jurisdictional minimum); In re Abbott Labs., 51 F.3d 524, 529 (5th Cir. 1995) (holding that the federal court had supplemental jurisdiction over absent class members' claims that did not meet the amount in controversy requirement where the court had diversity jurisdiction over the claims asserted by the named plaintiffs). At least two other Courts of Appeals have held that Zahn survives. See Meritcare, Inc. v. St. Paul Mercury Ins. Co., 166 F.3d 214, 221-22 (3d Cir. 1999); Leonhardt v. Western Sugar Co., 160 F.3d 631, 639-41 (10th Cir. 1998). Because § 1367 applies only to actions commenced on or after December 1, 1990, see 28 U.S.C. § 1367, the Agent Orange case, commenced earlier than that, was decided under the authority of Zahn. See Ryan v. Dow Chem. Co., 781 F. Supp. 902, 913 (E.D.N.Y. 1991) (noting that by January 31, 1990, the two state court actions involved in Agent Orange already had been removed to federal court); In re Agent Orange Prods. Liab. Litig., 100 F.R.D. 718, 729 (E.D.N.Y. 1983) (certifying the class in Agent Orange I in December 1983). The Second Circuit even now has not squarely addressed the issue of the effect of § 1367 on Zahn, see E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 934 (2d Cir. 1998)), so when it penned the Agent Orange opinion examined here, the law of the Second Circuit was as described in the preceding paragraph. The Supreme Court granted certiorari to resolve the split in the Circuits. See Free v. Abbott Lab., Inc., 176 F.3d 298 (5th Cir. 1999) (affirming dismissal of the plaintiffs' claims on the merits after the court held in In re Abbott Labs. that the federal court had jurisdiction over the class), cert. granted, 120 S. Ct. 525 (1999). An equally divided Court affirmed the judgment without an opinion addressing the issues. See Free v. Abbott Labs., Inc., 68 U.S.L.W. 4254 (2000).
326. See In re Agent Orange, 100 F.R.D. at 729 (certifying a Rule 23(b)(3) and a Rule 23(b)(1)(B) class); In re Agent Orange Prods. Liab. Litig., 506 F. Supp. 762, 782 n.30, 786, 798 (E.D.N.Y. 1980) (deciding to proceed with the case under diversity of citizenship jurisdiction and conditionally certifying a class). A fortiori it would have been constitutional under Article III for the federal courts to hear the case. Even minimal diversity between plaintiffs and defendants would have sufficed from a constitutional standpoint. See supra note 252.
327. See supra Part IV; see also Rowe, supra note 2, at 197 ("[The] problem [of state-court interference with federal class proceedings] may lend itself better to treatment not by removal but by an injunction against the state-court proceedings, which appears to have been permissible in the Agent Orange case under the 'necessary in aid of its jurisdiction' and 'to protect or effectuate its judgments' exceptions to the Anti-Injunction Act. [footnote omitted] If legislation is in order to improve the federal courts' capacity to deal with such parallel-litigation problems, amending the Anti-Injunction Act would address the area more squarely than reliance upon judicial or legislative creation of exotic removal varieties for situations that seem likely to remain highly unusual.")
328. See Ryan v. Dow Chem. Co., 781 F. Supp. 623, 624-25 (E.D.N.Y. 1985) (dismissing all plaintiffs' claims with prejudice and retaining jurisdiction to administer the settlement fund).
329. See supra text at notes 246-48.
330. See In re Agent Orange Prods. Liab. Litig., 996 F.2d 1425, 1428-29 (2d Cir. 1993) (noting that plaintiffs could opt out of the Rule 23(b)(3) class but not out of the Rule 23(b)(1)(B) "limited fund" class that was certified only for punitive damages claims).
331. See id. at 1430.
332. See id. at 1429, 1435.
333. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 612, 624-626, 628 (1997) (noting that exposure-only plaintiffs share little in common with each other or with presently injured class members, that the interest of exposure-only plaintiffs in ensuring an ample fund for the future is in tension with the interest of the currently injured in generous immediate payments, that it is difficult to provide constitutionally adequate notice to those with no perceptible injury when notice is given, and that the parties had raised a number of arguments concerning the justiciability of claims of persons who have not yet manifested any disease).
334. See PETER H. SCHUCK, AGENT ORANGE ON TRIAL, MASS TOXIC DISASTERS IN THE COURTS 162-66 (Enlarged ed. 1987) ("Weinstein exploited whatever leverage he could muster over the lawyers. While not actually threatening retribution if they refused to settle, he did use the ambiguity of his roles - as mediator and as ultimate decision maker - to play upon their fears, magnify the risks, and whittle down their resistance.").
335. See Minow, supra note 2, at 2031 (commenting upon Judge Weinstein's and the Second Circuit's handling of the Agent Orange case; noting that subsequent claims filed in state court were merged by Judge Weinstein into a settlement that the Second Circuit "rubber stamp[ed]").
336. See id. (observing that the All Writs removal ensured "that no fresh judicial eyes would deal with the merits of the newly filed claims").
337. See infra Part II, section II, and text at notes 456-59.
338. In re VMS, 103 F.3d 1317 (7th Cir. 1996).
339. See id. at 1319-20, 1322 (noting that the clear language of the final settlement orders compelled finding that the district court maintained jurisdiction to enforce the settlements).
340. See id. at 1323, 1325 (concluding that the final judgments properly enjoined the plaintiffs from prosecuting claims in state court that indirectly sought to circumvent the final federal order approving settlement).
341. See id. at 1320-21.
342. See id. at 1324-25.
343. See id. at 1326 n.4 (addressing the applicability of the AIA exceptions).
344. See id. at 1322 (applying Kokkonen's reasoning to find jurisdiction to enforce settlement agreements, and, in so doing, enjoin prosecution of plaintiff's state law claims). Kokkonen and its requirements are discussed supra text accompanying notes 241-248. Before Kokkonen, the Seventh Circuit had adopted the same principles of ancillary jurisdiction in McCall-Bey v. Franzen, 777 F.2d 1178, 1187-90 (7th Cir. 1985) (stating that district judge may dismiss a suit conditionally, retaining jurisdiction to effectuate settlement terms). Thus, it would not have mattered to the court's jurisdiction if plaintiffs had been correct in contending that their claims could not have been litigated within the context of the federal class action because they arose after the period covered by the class action settlement. See In re VMS, 103 F.3d at 1322-23. In fact, the plaintiffs could have raised their complaints in the federal courts adjudicating the class actions because the final judgments approving the settlements were not entered until after the complained-of conduct had occurred. See id.
345. N.A.A.C.P. v. Metropolitan Council, 125 F.3d 1171 (8th Cir. 1997), vacated without op., remanded, 522 U.S. 1145, reinstated, 144 F.3d 1168 (8th Cir. 1998), and cert. denied, 525 U.S. 826 (1998).
346. See N.A.A.C.P., 125 F.3d at 1173-74 (stating initially that the cases were unremovable under the general removal statutes but later declining to address removability pursuant to the artful pleading doctrine); see also supra note 143.
347. See id. at 1173-74.
348. See id.
349. See supra text accompanying notes 208-13.
350. The Eighth Circuit's opinion upon reconsideration of the case, after vacation of its opinion and remand to reconsider in light of Rivet v. Regions Bank of La., 522 U.S. 470 (1998), indicates to the contrary: that it might uphold ordinary removal, even now. See N.A.A.C.P., 144 F.3d 1168 (8th Cir. 1998). It viewed Rivet as having rejected the idea, based on Federated Dept. Stores, Inc. v. Moine, 452 U.S. 394, 397 n.2 (1981), that where a plaintiff files a state law claim that is completely precluded by a prior federal judgment on a question of federal law, the claim arises under federal law for jurisdictional purposes, so as to be removable as such, see N.A.A.C.P., 144 F.3d at 1170-71, but not as having rejected the idea, also based on Moitie, that a defendant may remove where "a plaintiff first elects to bring a federal claim in federal court, and then files in state court a state-law claim whose elements are virtually identical to those of the earlier federal claim." Id. at 1170-71, quoting Travelers Indem. Co. v. Sarkisian, 794 F.2d 754, 760-61 (2d Cir.), cert. denied, 479 U.S. 885 (1986). In the view of the Eighth Circuit, the district court upheld removal here on the basis of the latter reading of Moitie. See N.A.A.C.P., 144 F.3d at 1171. The two readings of Moitie seem to me a distinction without a difference, but the views of the Eighth Circuit indicate that, if forced to confront the question, the court might well uphold the removal on the "forum-election" approach to Moitie.
351. See infra Part II, Section I., regarding personal jurisdiction to enjoin those who had been absent class members in the federal class action. In N.A.A.C.P., some of the plaintiffs in the state class had not been members of the previous federal class, but the court did not treat this as an obstacle to removing the state case to the federal court under the All Writs Act. See N.A.A.C.P., 125 F.3d at 1173.
352. See id. at 1172-73 (noting that, although the state class action complaint alleged denial of adequate education, the plaintiffs linked this issue to defendant's housing policies). Insofar as the plaintiffs in the state court suit had not been party to the earlier federal litigation that had culminated in a consent decree, the court's authority to enjoin them from pursuing the state court litigation is less clear. See infra text accompanying notes 370-75, 422-25.
353. See N.A.A.C.P., 125 F.3d at 1173.
354. See id. at 1174.
355. The court's belief that All Writs removal was preferable because it spared the state court from expending resources seems to be based on an erroneous predicate - that the injunction could not save the same state judicial
356. See supra text at note 144.
357. See Wood, supra note 30, at 320; see also I FEDERAL COURT STUDY COMMITTEE, WORKING PAPERS 600-01 (1990) (recommending that anti-suit injunctions be authorized, inter alia, (i) when necessary to ensure the effectiveness of a judgment or consent decree entered by the federal court, but only if relief had first been sought in state court; (ii) when necessary to ensure the effectiveness of a class action, multidistrict litigation, or of court-ordered arbitration; or (iii) to prevent duplicative state court proceedings when federal court proceedings are far advanced and no special circumstances favor state court litigation).
358. AMERICAN LAW INSTITUTE, COMPLEX LITIGATION PROJECT: STATUTORY RECOMMENDATIONS AND ANALYSIS § 5.04(a) (1994). Section 4.01(a) authorized a Complex Litigation Panel to designate a state court as the transferee court. See id. at § 4.01(a); see also id. at 542, 548 (Appendix A) (proposed 28 U.S.C. §§ 1407(e)(4), 1407A(f)) (providing respectively that a designated state transferee court would have the same powers as a designated federal transferee court under various statutory subsections, and reciting the power to enjoin that is quoted in the text at this footnote).
359. This was the situation in Carlough v. Amchem Prods., Inc., 10 F.3d 189, 202-04 (3d Cir. 1993) (noting that plaintiff class members sought to pursue simultaneous class actions to challenge the propriety of the federal suit when settlement of the federal litigation was imminent); see also supra notes 38, 306.
360. See, e.g., In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig (GM Trucks II), 134 F.3d 133, 136-40 (3d Cir. 1998) (holding that the Full Faith and Credit Act and the Rooker-Feldman doctrine barred lower federal courts from enjoining a state class action proceeding in which the state court entered final judgment upon a settlement agreement after a provisional federal settlement class had been decertified); Monaghan, supra note 97, at 1200-02. But cf. In re Lease Oil Antitrust Litig., 200 F.3d 317, 319 (5th Cir. 2000) (affirming denial of motion to dismiss federal class action, where motion was predicated on a plea of res judicata based in state court judgment).
361. Miller, supra note 2, at 543.
362. See id. at 542 (noting that "federal litigation would often provide class members the opportunity for full and adequate relief on the state-court claims because those claims would usually be cognizable in federal courts under rules of supplemental jurisdiction"). An extreme expansion of the "artful pleading" doctrine is the mechanism that Professor Miller proposed to enhance removal power. See id. at 542-43. He also proposed that, "In the special context of overlapping class actions, the federal courts should interpret the phrase 'where necessary in aid of its jurisdiction' to confer authority . . . to enjoin . . . parallel state litigation until the conclusion of settlement discussions or other activity in the federal court that offers the chance for a prompt and adequate disposition of the merits of the class action claims." Id. at 543.
363. For example, H.R. 3789, 105th Cong., § 3 (1998), would have made any state class action involving parties from different states removable to federal court. It failed to pass. Proposals to allow removal of state class actions in most circumstances were also made. See Class Action Fairness Act of 1999, S. 353, 106th Cong. (1999); Interstate Class Action Jurisdiction Act of 1999, H.R. 1875, 106th Cong. (1999). Congress did pass the Securities Litigation Uniform Standards Act of 1998, Pub. L. No. 105-353, 112 Stat. 3227 (1998), which allows removal of a variety of securities claims alleging violations of state law, so long as the litigation is brought by, or on behalf of, more than 50 persons.
364. See, e.g., Williams v. General Elec. Capital Auto Lease, Inc, 159 F.3d 266, 272-74 (7th Cir. 1998), cert. denied sub nom. Harper v. General Elec. Capital Auto Lease, 119 S. Ct. 2392, 2392 (1999) (upholding injunction of Florida class action following settlement of a federal (b)(3) class action that asserted essentially the same claims, even though some of the claims were not ripe at the time of settlement; not discussing personal jurisdiction); Battle v. Liberty Nat'l Life Ins. Co., 877 F.2d 877, 881-83 (11th Cir. 1989) (avoiding discussing personal jurisdiction in connection with upholding an anti-suit injunction against absent class members); see also In re Real Estate Title and Settlement Servs. Antitrust Litig., 869 F.2d 760, 769 n.9 (3d Cir. 1989), cert. denied sub nom., Chicago Title Ins. Co. v. Tucson Unified School Dist., 493 U.S. 821, 821 (1989) (observing that the court in In re Corrugated Container Antitrust Litig., 659 F.2d 1332 (5th Cir. 1981), cert. denied sub nom., Three J Farms, Inc. v. Plaintiffs' Steering Comm., 456 U.S. 936, 936 (1982), never addressed the due process implications of lack of personal jurisdiction over absent class members against whom the district court had entered an anti-suit injunction).
365. See, e.g., In re Agent Orange Prods. Liab. Litig. (Agent Orange II), 996 F.2d 1425, 1432 (2d Cir. 1993) (citing the Agent Orange I court's holding that the district court in New York had personal jurisdiction over the persons who had sued as class representatives in a Texas state court proceeding because, by filing that suit, they placed themselves within the in personam jurisdiction of the Texas federal court; that, in turn, gave the 28 U.S.C. § 1407 transferee court in New York personal jurisdiction over them); Gonzales v. Montoya, 1997 U.S. App. LEXIS 12412, at *5 (10th Cir. May 29, 1997) (holding that plaintiffs submitted to federal court jurisdiction when they filed a removable complaint in state court).
366. The AIA does not apply until state proceedings have begun, but the consequence is that a federal court may restrain a party from instituting state proceedings - with no interference by the AIA. See 17 WRIGHT, ET AL., supra note 24, § 4222, at 506-07.
367. See, e.g., Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 110-12 (1969) (injunction is ineffective insofar as it is directed at persons over whom the court lacks personal jurisdiction); Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832 (2d Cir. 1930) ("[N]o court can make a decree which will bind anyone but a party . . . . If [a court of equity or of law] purports to [enjoin the world at large], . . . the decree is pro tanto brutum fulmen and the persons enjoined are free to ignore it."); Winkler v. Eli Lilly & Co., 101 F.3d 1196, 1202-03 (7th Cir. 1996) (holding an anti-suit injunction of a parallel state court suit to be appropriate to protect a 28 U.S.C. § 1407 transferee court's discovery order as to, but only as to, those persons and counsel whose cases were or had been part of the multidistrict litigation). See generally Monaghan, supra note 97, at 1179 (referring to the principle that a court may lawfully enjoin litigants and those parties who have sufficient minimum contacts with the forum) (emphasis in original). Rule 65 of the Federal Rules of Civil Procedure purports to allow federal courts to enjoin not only parties but also those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise. FED. R. CIV. P. 65(d). On occasion, that provision may be invoked in cases involving anti-suit injunctions against the absent members of plaintiff classes. See, e.g., In re Bolar Pharm. Co., Inc., Generic Drug Consumer Litig., MDL No. 849, 1994 WL 326522, at *3 (E.D. Pa. July 5, 1994). If no state proceeding exists when the federal court is asked to enter an injunction, but a state action is commenced before the federal court enters the injunction, the circuits are split on whether the court may enter the injunction only if an exception to the AIA applies. The First, Seventh, and Eighth Circuits have held the AIA to be inapplicable in the circumstances described. See Barancik v. Investors Funding Corp., 489 F.2d 933, 937-38 (7th Cir. 1973) (Stevens, J.) (reasoning that if the AIA applied upon the mere commencement of a state action, then "a federal court [taking] time for fair consideration of the merits of a request for an injunction [would] deliberate at its peril; its authority to rule on the pending motion could be terminated by the action of one of the litigants"); National City Lines, Inc. v. LLC Corp., 687 F.2d 1122, 1127 (8th Cir. 1982) ("The Anti-Injunction Act is inapplicable when a federal court has first obtained jurisdiction of a matter in controversy by the institution of a suit"); Hyde Park Partners, L.P. v. Connolly, 839 F.2d 837, 842 n.6 (1st Cir. 1988) (citing Barancik and National City Lines with approval). The Sixth Circuit has held the other way. See Roth v. Bank of the Commonwealth, 583 F.2d 527, 532-34 (6th Cir. 1978) (rejecting the Barancik rationale on the grounds that it "runs afoul of the language of the Act and of clear authority which insists that the language be read literally"); see also National City Lines, 687 F.2d at 1135 (Arnold, J., dissenting) (arguing against "any steps that erode the independence and autonomy of state courts").
368. I do not believe that the requirement of personal jurisdiction over enjoined parties could be circumvented by an ostensible injunction of proceedings rather than parties, notwithstanding that it sometimes is said that state court proceedings can be directly enjoined, rather than the parties thereto being enjoined from proceeding. See supra note 4; but see 2 NEWBERG ON CLASS ACTIONS, supra note 4, § 9.25, at 264 ("[A]ny injunction against other pending or future suits does not run against other courts of coordinate jurisdiction. Rather, a litigating party before the enjoining court is precluded from litigating in the enjoined court.").
369. 90 F.3d 171 (6th Cir. 1996). For further discussion of the case, see supra notes 113-17 and accompanying text.
370. 434 U.S. 159, 174 (1977) (citation omitted); but cf. id. at 186-90 (Stevens, J., dissenting in part) (focusing not on personal jurisdiction, however, but on lack of support for the proposition that a writ was necessary or appropriate here to aid the district court's jurisdiction and on the writ issued here not being "agreeable to the usages and principles of law").
371. See New York Tel., 434 U.S. at 172, 174; Monaghan, supra note 97, at 1190. See supra note 103.
372. Monaghan, supra note 97, at 1190. Professor Monaghan notes that the purpose of the Act is "to preserve jurisdiction that the court has acquired from some other independent source of law," citing Taiwan v. United States Dist. Ct., 128 F.3d 712, 717 (9th Cir. 1997) (quoting Jackson v. Vasquez, 1 F.3d 885, 889 (9th Cir. 1993)). Monaghan, supra note 97, at 1190 n.196; see also United States v. International Brotherhood of Teamsters, 907 F.2d 277, 281 (2d Cir. 1990) (holding the All Writs Act to authorize injunctions against persons who were not party to the federal litigation and judgment sought to be protected but only so long as the persons enjoined have the minimum contacts that are constitutionally required as a matter of due process); In re Baldwin-United Corp., 770 F.2d 328, 338, 340 (2d Cir. 1985) (finding an important feature of the All Writs Act to be its grant of authority to enjoin non-parties to an action when needed to preserve a court's ability to reach or enforce a decision, but only so long as those persons had threatened or engaged in conduct that frustrated a federal court order or the proper administration of justice, with actual notice of the terms of the injunction; holding that, so far as notice is concerned, the requirements of the All Writs Act are satisfied if the parties whose conduct is enjoined have actual notice of the injunction and an opportunity to seek relief from it in the district court; while acknowledging the desirability of service made in advance of any proposed injunction on all non-parties whose conduct would be restricted, refusing to impose such a condition on use of the All Writs Act because circumstances might render such notice impractical).
373. I use the phrase "jurisdiction by necessity" to refer to a situation in which the only way the court can provide the relief that it believes ought to be granted is to assert jurisdiction over (i.e., to enjoin) a particular party. The phrase, as it has been used by others, is of somewhat ambiguous scope. It has been described as based on the idea that "there must be at least one forum somewhere with power to adjudicate every case." TEPLY & WHITTEN, supra note 56, at 254. It may apply in situations where there are multiple defendants and conflicting claims to property or assets located within a state. See, e.g., Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (concluding that "the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident"). However, it is not clear in what, if any, other situations jurisdiction by necessity properly can be applied. See TEPLY & WHITTEN, supra note 56, at 254-57 (concluding that "the Court's skimpy references to the doctrine have provided little guidance on this and other questions about the doctrine").
374. See Monaghan, supra note 97, at 1190.
375. Id. at 1190 & n. 20 (citing Additive Controls & Measurement Sys., Inc. v. Flowdata, 96 F.3d 1390, 1396 (Fed. Cir. 1996)) (stating that "[n]othing . . . suggests that the All Writs Act can be employed as a general license for district courts to grant relief against non-parties whenever such measures seem useful or efficient," and citing with approval the proposition that injunction of non-parties must be reserved for extraordinary cases in which the activities of third parties threaten to undermine a court's ability to render or effectuate a binding judgment). Professor Monaghan also cites the Supreme Court's characterization of the All Writs Act as providing extraordinary remedies when the need arises, but not authorizing federal courts to issue "ad hoc writs whenever compliance with statutory procedures appears inconvenient or less appropriate." Id. (quoting Pennsylvania Bur. of Correction v. United States, 474 U.S. 34, 43 (1985)); see also Carlough v. Amchem Prods., Inc., 10 F.3d 189, 198 (3d Cir. 1993) (noting that neither the AIA nor the All Writs Act "dispels the federal court's jurisdictional requisite").
376. See, e.g., Hansberry v. Lee, 311 U.S. 32, 41 (1940); Brennan v. Midwestern United Life Ins. Co., 450 F.2d 999, 1004 (7th Cir. 1971). See generally HERBERT B. NEWBERG & ALBA CONTE, 3 NEWBERG ON CLASS ACTIONS [hereinafter 3 NEWBERG ON CLASS ACTIONS] § 16.01 (3d ed. 1992); Joan Steinman, The Party Status of Absent Plaintiff Class Members: Vulnerability to Counterclaims, 69 GEO. L.J. 1171 (1981).
377. See, e.g., Supreme Tribe of Ben-Hur v. Cauble, 255 U.S. 356, 367 (1921) (approving ancillary jurisdiction over a bill, filed in the class action court, to restrain class members from prosecuting state court suits that would re-open questions settled in the class action); The Prudential Ins. Co. of America Sales Prac. Litig., 177 F.R.D. 216, 229 (D.N.J. 1997) (holding court to have personal jurisdiction to enjoin class members from violating the court's permanent injunction prohibiting class members from pursuing separate lawsuits involving claims covered by a settlement agreement, where the notice of settlement comported with due process and Rule 23 of the Federal Rules of Civil Procedure); cf. Generic Drug Consumer Litig., MDL No. 849, 1994 WL 326522, at *2, 1994 U.S. Dist. LEXIS 9236, at *4 (E.D. Pa. July 5, 1994) (concluding that the class action court had a sufficient basis for exercising jurisdiction over class members for purposes of entering judgment, but not distinguishing between that and personal jurisdiction to enjoin later litigation brought by the class members).
378. See 472 U.S. 797, 812 (1985).
379. See id. at 808.
380. See id.
381. This approach is analogous to courts' analyses in determining the legality of assertions of personal jurisdiction over defendants.
382. Fifth Amendment due process requirements will apply if the United States is the relevant sovereign; Fourteenth Amendment due process requirements will apply if the State in which the federal court is sitting is the relevant sovereign. In either event, International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945), requires that, in order to satisfy due process, defendants who are not personally served while present in the forum state must have minimum contacts with the forum sufficient that maintenance of the suit satisfies our traditional notions of fair play and substantial justice. See also FRIEDENTHAL, ET AL., supra note 56, § 3.18 (discussing when the Fifth Amendment's due process clause applies and stating the presumption that the doctrine of nationwide minimum contacts includes a requirement of fair play and substantial justice).
383. But see Monaghan, supra note 97, at 1190 & n.20.
384. As previously observed, "consent" to the court's determination of the absent plaintiffs' substantive rights - or, at least, personal jurisdiction to determine their substantive rights - will be present if the absent plaintiffs forewent a right to opt out, having been given notice and an opportunity to be heard. If the absent class members also are adequately represented in their capacity as seekers of relief, they can be bound by the judgment. See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 808-14 (1985); supra note 378-80 and accompanying text.
385. See Monaghan, supra note 97, at 1191 n.201 (citing In re VMS Sec. Litig., 103 F.3d 1317, 1324 (7th Cir. 1996) and White v. National Football League, 41 F.3d 402, 409 (8th Cir. 1994), as cases in which there was no serious question about the enjoining court being able to exercise personal jurisdiction over the enjoined absent plaintiff class members).
386. 869 F.2d 760 (3d Cir.), cert. denied sub nom. Chicago Title Ins. Co. v. Tucson Unified Sch. Dist., 493 U.S. 821 (1989).
387. See id. at 771.
388. See 28 U.S.C. § 1407 (1993).
389. The action was a "hybrid" in the sense that it involved not only requests for injunctive relief but also substantial claims for money damages. See In re Real Estate Title, 869 F.2d at 767-68.
390. See id. at 762.
391. See id. at 767-69; cf. DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1176 (8th Cir. 1995) (holding that where class members not only took issue with their inclusion in a settlement class but also with the terms of the settlement, submitting extensive memoranda and arguing on appeal regarding the latter, they had waived any potential due process requirement that they be allowed to pursue their contentions in another forum; also concluding that a release intended to prevent further litigation on the matters in controversy here was therefore consistent with due process); White, 41 F.3d at 408 (holding that district court had personal jurisdiction to enjoin actions that were related to instant mandatory class action where each objector either had minimum contacts with the forum or submitted himself to the court's jurisdiction by "appearing through counsel to contest the merits of the settlement, offering testimony, cross-examining witnesses, and filing numerous memoranda of law regarding the settlement"); Carlough v. Amchem Prods., Inc., 10 F.3d 189, 200-01 (3d Cir. 1993) (upholding preliminary injunction against prosecution and commencement of similar actions by absent class members where, although the district court initially did not have personal jurisdiction over such persons, it later determined that it did have personal jurisdiction over the class members and afforded them an opportunity to opt out). The Carlough court was clear, however, that the district court did not have authority to bind absent members of the proposed plaintiff class when they had not consented to its jurisdiction, lacked minimum contacts with the forum, and had not yet been given a chance to opt out, although it was clear that they would get that opportunity; until that occurred, the injunction was premature and would violate the class members due process rights. See id. at 200-01. Although it often would be improper to enter an anti-suit injunction when class members have a right to opt out, the court here held the injunction proper where the prospect of settlement was imminent and the purpose of the absent members' state court suit was to challenge the propriety of the federal class action. See id. at 203-04.
392. See In re Real Estate Title, 869 F.2d. at 768 & n.8.
393. See id. at 768-69. The court rejected the argument that by moving to opt out, by appealing the denial of that motion, or by challenging on appeal the adequacy of the notice given to the plaintiff class, the school boards had submitted themselves to the jurisdiction of the class action court so as to empower it to enjoin their state court suit. See id. at 770-71.
394. See id. at 769.
395. Id.
396. Id.
397. See id. at 770.
398. See supra text accompanying notes 380-85.
399. See supra text at notes 378-80 regarding what Shutts held due process to require. Courts could attempt to make clear in the initial notice to the class that a failure to opt out would be deemed consent, inter alia, to the court's jurisdiction for purposes of entry of an injunction against the filing or prosecution of related litigation, should such an injunction otherwise be appropriate, although class notices have little meaning to many recipients.
400. Compare the definition of an injunction within the meaning of 28 U.S.C. § 1292(a)(1) (1993) as an order directed to a party, enforceable by contempt, and designed to afford some or all of the substantive relief sought by a complainant. See 16 WRIGHT, ET AL., supra note 15, § 3922, at 65; see also id. § 3922.2, at 95 (stating that final judgment doctrine regularly denies appeal from orders designed to control the conduct of litigation as a matter of procedure). Ironically, however, anti-suit injunctions are generally held to be appealable as injunctions. See id. §§ 3922.2, 3923, at 113, 123-25, citing cases; but see Hershey Foods Corp. v. Hershey Creamery Co., 945 F.2d 1272, 1278-79 (3d Cir. 1991) (rejecting an appeal from an injunction against prosecution of another proceeding because the order did not grant any part of the relief requested on the merits and was better viewed as relating primarily to venue). In their treatise, Wright, et al., compliment the reasoning but disapprove the Hershey decision because of the severity of the intrusion on the court whose proceedings are enjoined, because of the particular intolerability of that intrusion when a federal court restrains proceedings in the courts of a state, and because this approach would require case-by-case determination of whether anti-suit injunctions involved relief on the merits. See 16 WRIGHT, ET AL., supra note 15, § 3923, at 123-24 n.1. The first two of these factors also might influence how stringently one determines personal jurisdiction to enjoin, but I think that the analysis proposed in the text is sufficiently stringent.
401. 171 F.3d 943 (4th Cir. 1999).
402. Id. at 951.
403. Id. at 957.
404. Id. at 957-58.
405. It was unclear from the record whether the Federal Rules of Civil Procedure would have authorized service upon DOE, but DOE had not been served, a complaint had not been filed against it and it never had been made a party, nor had DOE voluntarily subjected itself to the court's jurisdiction.
406. See supra notes 36-38 and accompanying text.
407. See generally 7B WRIGHT, ET AL., supra note 303, § 1789, at 39 (Supp. 1999) (noting that whether there is a constitutional right to opt out is acute when actions involving money damages are certified under Rule 23(b)(1) or (2), and that, over a dissent joined by four Justices, the Supreme Court recently dismissed certiorari as improvidently granted in a case - Ticor Title Ins. Co. v. Brown, 111 U.S. 117 (1994) (O'Connor, J., dissenting) - that could have posed that question); Arthur R. Miller & David Crump, Jurisdiction and Choice of Law in Multistate Class Actions After Phillips Petroleum Co. v. Shutts, 96 YALE L.J. 1 (1986) (proposing a four factor analysis for determining the propriety of mandatory class certifications); Mark C. Weber, Preclusion and Due Process in Rule 23(b)(2) Class Actions, 21 U. MICH. J.L. REFORM 347, 394 (1988) (arguing that binding Rule 23(b)(2) class members without giving them notice and the right to opt out violates due process). One argument that at least sometimes could be made in support of jurisdiction absent minimum contacts, although not without constitutionally adequate notice and opportunity to be heard, would be based on an analogy to Mullane v. Central Hanover Bank, 339 U.S. 306, 313 (1950) (upholding jurisdiction, concluding that "the interest of each state in providing means to close trusts that exist by the grace of its laws and are administered under the supervision of its courts is so insistent and rooted in custom as to establish beyond doubt the right of its courts to determine the interests of all claimants, resident or nonresident.") In cases certified under Rule 23(b)(1) and (2), there often is a practical necessity that there be one forum that can decide the controversy and bind all interested parties.
408. See supra text accompanying note 398 and following note 400; see infra Part II, Section I.D.
409. Still another theory may support the exercise of personal jurisdiction to enjoin litigation that is transactionally related to a prior federal class action suit, particularly if it collaterally attacks the class action judgment - but it will "work" only after that other litigation has been commenced and only if those who commenced it were aware of the federal judgment. The theory would be based upon the Supreme Court's decision in Calder v. Jones, 465 U.S. 783, 788-90 (1984), and would posit that, by filing and pursuing such a suit, the plaintiffs were intentionally causing an injurious impact in the forum state: "injurious" because it seeks to undo the binding effect of a federal judgment and "in the forum state" because the injury is, at least to a significant degree, to the court system of that state, and may also be to citizens of that state who were benefited by the judgment.
410. See Burnham v. Superior Ct. of Cal., 495 U.S. 604 (1990).
411. Professor Monaghan's views are consistent with this analysis. He argues that, without minimum contacts between absent class members and the class action forum, a class action court may not, consistent with due process and the personal jurisdiction doctrine developed thereunder, enjoin a due process challenge outside of the class action court. See Monaghan, supra note 97, at 1153, 1183 (arguing that "Shutt's 'implied consent' fiction . . . does not sanction in personam jurisdiction in F1 sufficient to prohibit . . . due process challenges to in personam jurisdiction in F2"). On this view, a decision predicating personal jurisdiction to enter an anti-suit injunction on the mere failure of class members to opt out would be erroneous as applied to a situation in which the class members sought to collaterally attack the federal class proceedings. Carlough v. Amchem Prods., Inc., 10 F.3d 189, 204 (3d Cir. 1993), is probably such a case since it sought a declaration that the proposed federal class settlement was unenforceable, not entitled to full faith and credit, and not binding. See id. at 195-96. This ground suggests an underlying due process complaint. Insofar as plaintiffs also sought a declaration that the state class representatives had authority to opt the entire West Virginia class out of the federal suit, it seems to me that the suit was inappropriate, but not a collateral attack. A class member's true, affirmative, consent to the jurisdiction of the class action court for all purposes, or at least to the court's entry of an anti-suit injunction, also should suffice. Active participation in the federal class actions sufficient to justify the inference of general submission should suffice too, as should personal service within the forum state. See supra text following note 385 and at note 391.
412. I believe this latter reading of Shutts to be entirely consistent with the Court's opinion, and in particular with the reasoning that, "Any plaintiff may consent to jurisdiction. The essential question, then, is how stringent the requirement for a showing of consent will be. We think that the procedure followed by Kansas, where a fully descriptive notice is sent first-class mail to each class member, with an explanation of the right to 'opt out,' satisfies due process." See Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 812 (1985).
413. See infra Part II, Section II.B. By analogy, if, while transiently present in Illinois, a citizen of Indiana were served with a summons and complaint seeking to enjoin him from pursuing, in Indiana, a collateral attack on a default judgment entered in Illinois, the personal jurisdiction of the Illinois court would be unquestionable, but the propriety of the proposed injunction would be quite questionable. Conversely, if the policies that support collateral attacks preclude injunctions of such attacks, the questions whether and when class action courts have personal jurisdiction to enjoin absent class members from making such attacks will be moot. If class action courts sometimes may enjoin collateral attacks on their judgments, however, the personal jurisdiction question remains.
414. 2 NEWBERG ON CLASS ACTIONS, supra note 4, §§ 9.25-9.26 (citations omitted).
415. See supra text following note 400.
416. See Monaghan, supra note 97, at 1200-02 (noting that comprehensive congressional action could include expanded federal personal jurisdictional powers). The American Law Institute Complex Litigation Project had similarly proposed to expand the jurisdictional power of transferee courts by authorizing them to serve persons nationwide in order to allow those courts the authority to enjoin nonparties, if necessary, wherever they might be located. See AMERICAN LAW INSTITUTE, COMPLEX LITIGATION PROJECT: STATUTORY RECOMMENDATIONS AND ANALYSIS 331-32 (1994) (Reporter's Notes to Comment b to § 5.04) ("Insofar as a potential anti-suit injunction may run against persons who are not parties to any of the litigation in the transferee court, the authorization for the court to issue a binding order effectively expands the jurisdictional power of the transferee court to allow that limited authority over nonparties wherever they may be located. Similar nationwide authority is contained in the anti-suit injunction statute tied to interpleader suits. See 28 U.S.C. § 2361.").
417. The plaintiff class was certified as a common questions class under FED. R. CIV. P. 23(b)(3) for purposes of deciding issues including general causation and the validity of a military contractor defense. See In Re Agent Orange Prods. Liab. Litig., 996 F.2d 1425, 1428 (2nd Cir. 1993). The class was certified as a Rule 23(b)1(B) limited fund class for purposes of deciding punitive damages. See id.
418. Actually, I have slightly modified the articulation of their views. I do not believe that either discusses the possibility of jurisdiction through personal service in the forum state, for example, but I believe each would accept that revision of the statement of his views.
419. See id. at 1429 (indicating that "[n]otice was provided to class members by mail where feasible and by advertisements in the print and broadcast media" and that the settlement was not approved until "after extensive nationwide fairness hearings").
420. See In re Agent Orange, 996 F.2d at 1429.
421. See id. at 1428.
422. 125 F.3d 1171 (8th Cir. 1997), vacated without op., remanded, 522 U.S. 1145 (1998), reinstated, 144 F.3d 1168 (8th Cir. 1998), and cert. denied, 525 U.S. 826 (1999).
423. See N.A.A.C.P., 144 F.3d at 171 (indicating that the plaintiffs included the Minneapolis branch of the N.A.A.C.P. and a class consisting of all Minneapolis public school students).
424. Perhaps because the plaintiffs were Minnesotans, the Eighth Circuit and the parties were not apparently concerned about personal jurisdiction. The discussion referred to in the text hereof, infra text at note 425, was not even part of the court's analysis of the propriety of All Writs removal, as the court apparently thought that the power under that Act could freely encompass persons who were not parties to the original action. See N.A.A.C.P., 125 F.3d at 1173 (1998) (citing with approval United States v. New York Tel. Co., 434 U.S. 159, 174 (1977), which held that a federal court may exert its power under Act upon "persons who [were] not parties to the original action"). This becomes an ironic justification in light of the court's simultaneous holding that the enjoined were in privity with the federal class. See id. at 1175.
425. See id. at 1175.
426. 103 F. 3d 1317 (7th Cir. 1996).
427. See id. at 1320.
428. See Monaghan, supra note 97, 1191 n.201 (observing that "the state law plaintiffs also had been plaintiffs in the federal litigation, and the district court had retained personal jurisdiction to enforce the terms of the settlement").
429. See Monaghan, supra note 97, at 1200.
430. "Otherwise" might include such matters as a lack of constitutionally adequate notice or opportunity to be heard, or denial of a right to opt out that was constitutionally required.
431. See Matsushita Elec. Indus. Co v. Epstein, 516 U.S. 367, 388-89, 395-96 (1996) (Ginsburg, J., concurring in part and dissenting in part) (observing that, in a case where class members in a state class action argued to the federal court that they could not be bound by the settlement in the Delaware action because they had not been adequately represented there, the due process check on the full faith and credit obligation remained open for consideration on remand; also observing that final judgments are vulnerable to collateral attack for failure to satisfy the adequate representation requirement). On remand, a panel of the Ninth Circuit in fact held the representation to have been inadequate and, as a result, the Delaware judgment did not preclude pursuit of certain federal securities claims. See Epstein v. MCA, Inc., 126 F.3d 1235 (9th Cir. 1997), op. withdrawn, substituted op., on recons., 179 F.3d 641 (9th Cir. 1999), cert. denied Epstein v. Matushita Elec. Indus. Co., 120 S. Ct. 497 (1999). However, on rehearing (after the resignation of Judge William Norris, who had written the panel opinion), the Ninth Circuit concluded that the Supreme Court had at least implicitly resolved the due process issue against those who had challenged the Delaware judgment because that conclusion was logically necessary to the Court's holding that the court of appeals could not withhold full faith and credit from a Delaware state judgment releasing claims within the exclusive jurisdiction of the federal courts and binding upon the Epstein appellants, and that the Court's resolution bound the federal court of appeals. See id. at 645. Judge Wiggins, concurring in the result, found that the Delaware court had held that absent class members had been adequately represented, that issue having been fully and fairly litigated and necessary to its decision, and opined that its ruling was entitled to full faith and credit. See id. at 651 (Wiggins, J., concurring). In dissent, Judge Thomas argued that unresolved conflicts among class members and the Delaware representatives' lack of incentive to obtain fair value for those of the class's claims within exclusive federal subject matter jurisdiction made the representation constitutionally infirm. See id. at 652-53 (Thomas, J., dissenting). In addition, he did not believe that the Delaware court actually had decided whether the absent class members had been adequately represented. See id. at 655. Thus, there would be no inappropriate second-guessing were this court to hold, on the bases urged by the Epstein appellants, that representation was inadequate. See id. at 655-56. See also Hansberry v. Lee, 311 U.S. 32, 44-46 (1940) (adjudicating a collateral attack on a class action judgment based on a conflict of interest between those who were purportedly represented and those who purported to represent them, where both suits were brought in Illinois state court); In re Real Estate Title & Settlement Servs. Antitrust Litig., 869 F.2d 760, 767 (3d Cir.), cert. denied sub nom. Chicago Title Ins. Co. v. Tucson Unified Sch. Dist., 493 U.S. 821 (1989) (recognizing class members' right to attack a class action judgment collaterally, "presumably in the forum of their choice" and commenting that, "Congress has never evinced a desire as to whether a party lacking minimum contacts with the class action forum in a hybrid suit involving substantial damage claims should nonetheless be forced to bring its collateral challenge in that forum."); Monaghan, supra note 97, at 1149-50 & n.4, 1173, 1201-02 (emphasizing the right of class members to collaterally challenge the adequacy of representation they have received, in a forum of their choosing, subject to the statutes and rules governing jurisdiction, venue, and forum non conveniens); see generally Note, Collateral Attack on the Binding Effect of Class Action Judgments, 87 HARV. L. REV. 589 (1974) (surveying the grounds for collateral attack).
432. See RESTATEMENT (SECOND) OF JUDGMENTS, § 42(1), at 405-06 (1982) (emphasis added).
433. RESTATEMENT (SECOND) OF JUDGMENTS, § 41, at 394, cmt. a (1982) (emphasis added); see also id. § 12, at 115 (prescribing the circumstances in which the subject matter jurisdiction of the judgment rendering court may be questioned in subsequent litigation).
434. The situation of a collateral attack on a default judgment, outside the class action context comes to mind, by analogy. See id. § 10, at 105, cmt. f (providing that an "objection to notice or to territorial jurisdiction may be raised for the first time in a proceeding subsequent to the rendition of the judgment").
435. See generally 3 NEWBERG ON CLASS ACTIONS, supra note 376, § 16.24, at 16-342-49, § 16.29, at 16-357-60; 7B WRIGHT, ET AL., supra note 303, § 1789, at 245-46 (noting that the Advisory Committee Note to the 1966 amendments of Rule 23 implicitly recognized this in stating that, "The court . . . in framing the judgment . . . must decide what its extent or coverage shall be, and if the matter is carefully considered, questions of res judicata are less likely to be raised at a later time and if raised will be more satisfactorily answered."). Also relevant is the RESTATEMENT (SECOND) OF JUDGMENTS § 42, at 407, cmt. b (1982), which states, in part: "[N]otice concerning designation of a representative . . . does not foreclose the notified party from later contesting the adequacy of the representation and on that basis avoiding the conclusive effect of a judgment." Id.
436. Arguments that the system ought not to work this way, particularly when the court asked to review the validity of a federal class action judgment is a state court, are considered below. But, for the moment, the Article accepts the description sketched above as accurately reflecting the legal landscape.
437. Absent the alternative of a conveniently located collateral attack, class members or their attorneys may have to travel to a distant and unfamiliar class action forum, and incur the consequent expenses, to protect their interests. See Monaghan, supra note 97, at 1160 (suggesting this risk). The distance and expense may deter class members from taking steps to protect themselves, and this in turn may increase the risk of abuse. See id. at 1160-61.
438. Several of the special dangers of such limited purpose certifications are discussed in Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 619-21, (1997). They include class counsel's weakened bargaining position, see John C. Coffee, Jr., Class Wars: the Dilemma of Mass Tort Class Action, 95 COLUM. L. REV. 1343, 1379 (1995) (discussing plaintiff counsel's bargaining position), the special dangers of collusion and a "race to the bottom" that attend negotiation of a settlement prior to class certification, see id. at 1354, the judge's lack of opportunity to adjust the class definition as the proceedings unfold, see Amchem, 521 U.S. at 620, and the judge's lessened ability to guard against collusion and unfair settlements. See id. at 621-22.
439. That is, of situations in which there may be a "race to the bottom" in the representation of the interests of the class members by counsel who seek to personally benefit by representing the class. See Monaghan, supra note 97, at 1156 n.32 (citing the problem, described by Professor Coffee, supra at 1354, as "the low bidder among the plaintiffs' attorneys winning the right to settle with the defendant").
440. Monaghan, supra note 97, at 1155-58.
441. Monaghan, supra note 97, at 1153.
442. These are the exceptions authorizing stays of state court proceedings where necessary in aid of a federal court's jurisdiction or to protect or effectuate its judgments. See 28 U.S.C. § 2283 (1999).
443. Monaghan, supra note 97, at 1200-02.
444. This would be the situation if the absent class member in the second attack were a party or in privity with a party to the first attack. However, if the attacks were brought only on behalf of individual class members and privity was lacking, an adverse decision could not bind the second collateral attacker. See Epstein v. MCA, Inc., 126 F.3d 1235, 1241-42 (9th Cir. 1997), op. withdrawn, substituted op. on recons., 179 F.3d 641 (1999) (observing that even though, in the course of a settlement approval process, other class members had objected to collusion and to inadequate representation, a conclusion by the class action court that representation had been adequate would not have bound the Epstein plaintiffs because due process would not permit them to be bound by the litigation activities of uncertified, random, volunteer objectors); Epstein, 179 F.3d at 655 (Thomas, J., dissenting) (reiterating that because the individual objectors who appeared at the Delaware fairness hearing "were not authorized by the absent class members to represent their interests, nor . . . certified to do so, . . . [t]heir appearance could not . . . bind other [absent class members] with respect to the issue of adequacy of representation").
445. FRIEDENTHAL, ET AL., supra note 56, §3.26, at 190 (discussing defendant's choice of making a special appearance or collaterally attacking a judgment for invalid service or improper jurisdiction).
446. Cf. Kate Stith, The Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal, 57 U. CHI. L. REV. 1, 4 n.7 (1990) (noting that the state and federal collateral review available to a criminal defendant operate similarly to direct appeal).
447. Kremer v. Chemical Constr. Corp., 456 U.S. 461 (1982) (holding district court to be required by 28 U.S.C. § 1738 to give preclusive effect to a state court decision upholding a state administrative agency's rejection of plaintiff's employment discrimination claim, where the state court would do so; stating, in passing, that a state may not grant preclusive effect to a constitutionally infirm judgment, and that other state and federal courts are not required to accord full faith and credit to such a judgment). The Court did review the procedure afforded by the state and found it constitutionally sufficient. See Kremer, 456 U.S. at 483-85. There seem not to have been any findings of the trial court concerning whether its procedures satisfied due process for the Court to second-guess or decline to second-guess.
448. 179 F.3d 641, 648-59 (9th Cir. 1999).
449. Id. at 648. See also Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (stating that a court should be loathe to revisit a decision of a coordinate court absent extraordinary circumstances such as a clearly erroneous decision that would work a manifest injustice); Hill v. Henderson, 195 F.3d 671, 678 (D.C. 1999) (stating that a decision of a court of coordinate status is entitled to be considered the "law of the case").
450. See U.S. CONST. art. III, § 1, cl. 1 ("The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."); 28 U.S.C. § 1291 ("The courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . ., except where a direct review may be had in the Supreme Court."). See generally CHEMERINSKY, FEDERAL JURISDICTION, supra note 4, §§ 8.1, 10.2 (stating that under the Rooker-Feldman doctrine, federal courts do not have jurisdiction [pursuant to 42 U.S.C. § 1983] to review the judgments and decisions of state courts; only the U.S. Supreme Court may review state court rulings, and state court injunctions of federal judicial proceedings are impermissible).
451. See Marcel Kahan and Linda Silberman, Matsushita And Beyond: The Role of State Courts in Class Actions Involving Exclusive Federal Claims, 1996 The Supreme Court Review 219, 264, 273 (making arguments that suggest that, so long as the class action court affords members the opportunity to question the adequacy of representation, courts should not permit adequacy to be challenged collaterally, but recognizing dangers with this position until state courts adopt more exacting standards and procedures when evaluating global settlements encompassing claims within exclusive federal jurisdiction); cf. FED. R. CIV. P. 60(b) (authorizing relief from judgment, inter alia, when a judgment is void or for any reason not specifically listed in the Rule that justifies relief from the operation of the judgment).
452. See Marcel Kahan and Linda Silberman, Matsushita And Beyond: The Role of State Courts in Class Actions Involving Exclusive Federal Claims, 1996 The Supreme Court Review 219, 264, 273 (making arguments that suggest that, so long as the class action court affords members the opportunity to question the adequacy of representation, courts should not permit adequacy to be challenged collaterally, but recognizing dangers with this position until state courts adopt more exacting standards and procedures when evaluating global settlements encompassing claims within exclusive federal jurisdiction); cf. FED. R. CIV. P. 60(b) (authorizing relief from judgment, inter alia, when a judgment is void or for any reason not specifically listed in the Rule that justifies relief from the operation of the judgment).
453. But see In re Real Estate Title and Settlement Serv. Antitrust Litig., 869 F.2d 760, 770 (3d Cir. 1989) (questioning the efficiency of channeling all collateral attacks to the class action court, given the burden potentially entailed).
454. As previously noted, it is less clear whether in mandatory class actions something other than an opt out right, such as minimum contacts with the forum, as well as notice and an opportunity to be heard regarding the contemplated injunction, is required to satisfy due process when applied to anti-suit injunctions against absent class members. See supra note 407 and accompanying text.
455. Although Professor Monaghan argues strenuously against injunctions of suits by absent class members, it is important to observe that his argument opposes giving the class action court the authority to bar due process challenges in another forum. See Monaghan, supra note 97, at 1150, 1152-53, 1155, 1159, 1179, 1183, 1186, 1200. Professor Monaghan's position is consistent with permitting a class action court to preclude class members from relitigating their substantive claims in another forum if the class members do not make a due process challenge to the class action judgment.
456. One might add, "or if the requirements for personal jurisdiction to enjoin a class member from making a collateral attack are to be more demanding than the personal jurisdiction requirements to enjoin a class member from bringing merely related litigation . . . ." See supra Part II, section I.
457. See In re Agent Orange Prods. Liab. Litig., 996 F.2d 1425, 1430 (2d Cir. 1993).
458. See id. at 1431-32.
459. See id. at 1432.
460. See id. at 1434-36.
461. See N.A.A.C.P. v. Metropolitan Council, 125 F.3d 1171, 1175 (8th Cir. 1997), vacated without op., remanded, 522 U.S. 1145 (1998), reinstated, 144 F.3d 1168 (8th Cir. 1998), and cert. denied, 525 U.S. 826 (1998).
462. Viewing the suit as a collateral attack for this reason is also in some tension with the court's mention that no one challenged the jurisdiction of the class action court. This mention was made by the court in connection with considering the propriety of the res judicata dismissal of the state plaintiffs' claims. See id. at 1174.
463. This allegation was made in one case initially and in another (where they sued on different state law causes of action) apparently in response to an asserted or anticipated defense. See In re VMS Ltd. Partnership Sec. Litig., 103 F.3d 1317, 1319 (7th Cir. 1996); RESTATEMENT (SECOND) OF JUDGMENTS § 76, at 216-17 (1982) (subject to § 74 equitable considerations in determining relief, "a person who is not bound by a judgment . . . may obtain a determination that the judgment is ineffective as to him through an action to restrain enforcement of the judgment, for a declaration that the judgment is ineffective as to him, or similar relief, when: (1) The existence of the judgment jeopardizes a protectible interest of his; and (2) The character of his interest warrants his being given relief forthwith rather than on a future occasion.").
464. If the right to opt out is constitutionally mandated, fraud that vitiates that right may well be a due process violation.
465. In re VMS, 103 F.3d at 1325.
466. This is perhaps yet another argument against the "insulation" position.
467. See supra text at notes 437-41 (referring to the kinds of policy arguments made by Professor Monaghan).