When Is an Agency a Court? A Modified Functional Approach to State Agency Removal Under 28 U.S.C. § 1441

This Note argues that courts should interpret 28 U.S.C. § 1441, which permits removal from state court to federal court, to allow removal from state administrative agencies when the agency performs “court-like functions.” Circuits that apply a literal interpretation of the statute and forbid removal from state agencies should adopt this “functional” approach. The functional approach, which this Note calls the McCullion-Floeter test, should be modified to comport with legislative intent and public policy considerations: first, state agency adjudications should not be removable when the adjudication requires technical expertise, which federal courts cannot obtain because they adjudicate cases in a variety of subject areas; second, they should not be removable where an agency’s authorizing statute demonstrates a clear legislative intent to prefer plaintiffs. Absent either of these features, however, court-like agency adjudications should be removable.