The Bankruptcy-Removal Statute vs. Statutory Prohibitions on Removal

The express language of the bankruptcy removal statute, 28 U.S.C § 1452(a), permits a party to remove to federal court any state court claim or cause of action if it is "related to" a pending bankruptcy case. However, the express language of several other federal statutes prohibits the rem...

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Bibliographic Details
Published in:American Bankruptcy Institute journal 2011-04, Vol.30 (3), p.44
Main Author: Bowsher, David K
Format: Article
Language:English
Subjects:
Bankruptcy
Federal court decisions
Federal legislation
Jurisdiction
Provisions
State court decisions
State courts
Online Access:Get full text
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Summary:The express language of the bankruptcy removal statute, 28 U.S.C § 1452(a), permits a party to remove to federal court any state court claim or cause of action if it is "related to" a pending bankruptcy case. However, the express language of several other federal statutes prohibits the removal of certain state court cases to federal court. Although the rules of statutory construction should dictate which statute trumps the other, not all courts agree on which statute controls. The general removal statute begins with the carve-out "except as otherwise expressly provided by Act of Congress." Consequently, the '33 Act, ILSA and other federal statutes that prohibit removal do not in any way conflict with the general removal statute. Notwithstanding the Alcan court's assertion to the contrary, the bankruptcy-removal statute would appear to be in direct and irreconcilable conflict with the removal prohibitions in the '33 Act, ILSA and other federal statutes.
ISSN:1931-7522