Federal Courts Law Review

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FEDERAL COURTS LAW REVIEW -- 2006 Fed. Cts. L. Rev. 5

REMOVING THE REMOVAL MYSTERY:
WHEN WORK-RELATED CLAIMS ARE REMOVABLE UNDER 28 U.S.C. § 1445(c)


By Donna C. Peavler

Abstract

Removing the Removal Mystery: When Work-Related Claims Are Removable Under 28 U.S.C. § 1445(c) analyzes the removability of various work-related claims and, in particular, tort claims filed against employers that do not subscribe to worker's compensation insurance. Part One introduces the questions raised by § 1445(c). Part Two explains the legislative history of § 1445(c) and the circumstances leading to its enactment. Part Three analyzes various Federal appellate courts' interpretation of § 1445(c) as applied to various work-related claims, including intentional torts, retaliatory discharge, and breach of contract. It demonstrates that for many courts, the pivotal issue is whether the work-related claim is codified in a statute. Finally, Part Four specifically analyzes whether a common-law negligence claim against a nonsubscribing employer (a "nonsubscriber claim") is removable under § 1445(c).

To date, no federal court of appeals has decided whether a nonsubscriber claim is barred from removal under § 1445(c). Within the district courts of the Fifth Circuit, however, judges have reached different conclusions regarding whether a nonsubscriber claim can be removed. Two judges from the Northern District of Texas have held that because a negligence claim exists at common law wholly apart from the workmen's compensation statutes, it does not arise under the workmen's compensation laws and may be removed. Judges from the Eastern and Southern Districts, on the other hand, have held that an employer doing business in a state with workmen's compensation insurance chooses to depart from the general common-law tort system, and that § 1445(c) therefore bars removal of nonsubscriber claims.

This Article argues that the better reasoned opinions hold that § 1445(c) does not bar removal of nonsubscriber claims because a nonsubscriber claim is merely a simple negligence claim with no significant relation to the workmen's compensation laws. A state's codification of the claim does not transform it into a workmen's compensation law.

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