The Evolving Concept of Preemption Removal: An Expansion of Federal Jurisdiction.

Federal jurisdiction based on preemption removal should extend to federal laws which meet the requirements of Franchise Tax Board v. Construction Laborers Vacation Trust and Metropolitan Life Insurance Company v. Taylor. The well-pleaded complaint rule restricts federal removal jurisdiction. The well-pleaded complaint rule requires a federal question appear on the face of the plaintiff’s complaint for federal jurisdiction to attach. Therefore, the defendant’s right to a federal forum depends upon whether the plaintiff chooses to invoke a federal claim in its complaint. Courts routinely criticize the linking of removal jurisdiction to the well-pleaded complaint rule for giving plaintiffs incentive to forum manipulation, or artful pleading. In Avco Corporation v. Aero Lodge No. 735, the Supreme Court initiated a new doctrine which allowed removal on the basis of preemption. The Court, however, failed to supply any analysis to support preemption removal. In Franchise Tax Board and Metropolitan Life, the Court finally decided the appropriate method for applying preemption removal. In preemption removal cases the Court will look beyond the face of the well-pleaded complaint to the underlying cause of action. If the underlying cause of action is necessarily federal, then courts allow removal on the basis of federal preemption. To determine whether the cause of action is necessarily federal, the Court developed a two-prong test. First, the Court will ascertain whether a federal law has displaced state law in a particular field. Second, a superseding federal cause of action is evidence of congressional intent to allow preemption removal. To avoid state court hostility or confusion about a preemption defense, preemption removal should extend to any federal laws which can satisfy the two-part test