OCTOBER TERM, 2002
Syllabus
BREUER
v. JIM'S CONCRETE OF BREVARD, INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 02-337. Argued April 2, 2003-Decided May 19,2003
Petitioner Breuer sued respondent, his former employer, Jim's
Concrete of Brevard, Inc., in a Florida state court for unpaid
wages, liquidated damages, prejudgment interest, and attorney's
fees under the Fair Labor Standards Act of 1938 (FLSA), which
provides,
inter alia, that "[a]n action to recover ... may
be maintained ... in any Federal or State court of competent
jurisdiction," 29 U. S. C. § 216(b). Jim's Concrete removed the
case to the Federal District Court under 28 U. S. C. § 1441(a),
which reads: "Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of which the
[federal] district courts ... have original jurisdiction, may be
removed by the defendant ... to the [appropriate federal] district
court." Breuer sought an order remanding the case to state court,
arguing that removal was improper because § 216(b)'s provision that
an action "may be maintained" in state court put forward an express
exception to § 1441(a)'s general removal authorization. Though the
District Court denied Breuer's motion, it certified the issue for
interlocutory appeal. The Eleventh Circuit affirmed, saying that
although Congress had expressly barred removal in direct,
unequivocal language in other statutes, § 216(b) was not comparably
prohibitory.
Held: Section 216(b) does not bar removal of a suit from
state to federal court. Breuer's case was properly removed under §
1441. pp.694-700.
(a) Breuer unquestionably could have begun his action in the
District Court under §216(b), as well as under 28 U. S. C. §§ 1331
and § 1337(a). Removal of FLSA actions is thus prohibited under §
1441(a) only if Congress expressly provided as much. Nothing on the
face of § 216(b) looks like an express prohibition of removal,
there being no mention of removal, let alone of prohibition. While
§ 216(b) provides that an action "may be maintained ... in any ...
State court of competent jurisdiction," the word "maintain" enjoys
a breadth of meaning that leaves its bearing on removal ambiguous
at best. "Maintain" in reference to a legal action is often read as
"bring" or "file," but "to maintain an action" may also mean "to
continue" to litigate, as opposed to "commence" an action. If an
ambiguous term like "maintain" qualified as an express provision
for § 1441(a) purposes, then the requirement of an "expres[s]
provi[sion]" would call for nothing more than a "provision," pure
and
692
simple, leaving the word "expressly" without any consequence
whatever. The need to take the express exception requirement
seriously is underscored by examples of indisputable prohibitions
of removal in a number of other statutes,
e. g., §
1445, which demonstrate that, when Congress wishes to give
plaintiffs an absolute choice of forum, it is capable of doing so
in unmistakable terms. Pp. 694-697.
(b) None of Breuer's refinements on his basic argument from the
term "maintain" puts him in a stronger position. The Court rejects
his argument that "may be maintained" shows up as sufficiently
prohibitory once it is coupled with a federal policy of construing
removal jurisdiction narrowly, as set forth in
Shamrock Oil
&
Gas Corp. v.
Sheets, 313 U. S. 100, 108-109.
Whatever apparent force this argument might have claimed when
Shamrock was handed down has been qualified by the later
amendment of § 1441 into its present form, requiring any exception
to the general removability rule to be express. Nor does it avail
Breuer to emphasize the sense of "maintain" as implying
continuation of an action to final judgment, so as to give a
plaintiff who began an action the statutory right under § 216(b) to
see it through. The right to maintain an action may indeed be a
right to fight to the finish, but removal does nothing to defeat
that right; far from concluding a case before final judgment,
removal just transfers it from one forum to another. Moreover, if
"an action ... may be maintained" meant that a plaintiff could
insist on keeping an FLSA case wherever he filed it in the first
place, it would seem that an FLSA case brought in a federal
district court could never be transferred to a different one over
the plaintiff's objection, a result that would plainly clash with
the provision for change of venue, § 1404(a). Finally, although
Breuer may be right that many FLSA claims are for such small
amounts that removal to a sometimes distant federal court, often
increasing the cost of litigation, may make it difficult for many
employees to vindicate their rights effectively, the implications
of that assertion keep this Court from going Breuer's way. Because
a number of other statutes incorporate or use the same language as
29 U. S. C. § 216(b), see,
e. g., § 626(b), there
cannot be an FLSA removal exception without wholesale exceptions
for other statutory actions, to the point that it is just too hard
to believe that a right to "maintain" an action was ever meant to
displace the right to remove. Pp. 697-699.
292 F.3d
1308, affirmed.
SOUTER, J., delivered the opinion for a unanimous Court.
Donald E. Pinaud, Jr., argued the cause for
petitioner.
With him on the briefs was
Eric Schnapper.
693
Andrew S.
Hament argued the cause for
respondent.
With him on the brief was
Gregory Williamson.
Lisa S. Blatt argued the cause for the United States as amicus
curiae urging affirmance. With her on the brief were Solicitor
General Olson, Deputy Solicitor General Kneedler, Howard M.
Radzely, Allen H. Feldman, and Edward D. Sieger.
*
JUSTICE SOUTER delivered the opinion of the Court.
The question is whether the provision of the Fair Labor
Standards Act of 1938 (FLSA or Act), that suit under the Act "may
be maintained ... in any Federal or State court of competent
jurisdiction," 52 Stat. 1069, as amended, 29 U. S. C. § 216(b),
bars removal of a suit from state to federal court. We hold there
is no bar.
I
Petitioner, Phillip T. Breuer, sued respondent, his former
employer, Jim's Concrete of Brevard, Inc., in a state court of
Florida for unpaid wages, liquidated damages, prejudgment interest,
and attorney's fees. Section 216(b) provides not only that an
employer who violates its minimum wage and overtime provisions is
liable to an employee, but that "[a]n action to recover the
liability prescribed ... may be maintained against any employer
(including a public agency) in any Federal or State court of
competent jurisdiction."
Jim's Concrete removed the case to the United States District
Court for the Middle District of Florida under 28 U. S. C. §
1441(a), which reads that "[e]xcept as otherwise expressly provided
by Act of Congress, any civil action brought in a State court of
which the district courts of the United
*Briefs of
amici curiae urging affirmance were filed for
the Academy of Florida Management Attorneys, Inc., by
Peter W
Zinober; and for the Human Resource Association of Palm Beach
County, Florida, et al. by
Christine D. Hanley, Sally Still,
and
Betty L. Dunkum.
694
States have original jurisdiction, may be removed by the
defendant or the defendants, to the district court of the United
States for the district and division embracing the place where such
action is pending." Breuer sought an order remanding the case to
state court, arguing that removal was improper owing to the FLSA's
provision that an action "may be maintained" in any state court, a
provision that Breuer put forward as an express exception to the
general authorization of removal under § 1441(a). Though the
District Court denied Breuer's motion, it certified the issue for
interlocutory appeal under § 1292(b). The Eleventh Circuit
affirmed, saying that Congress had expressly barred removal in
"direct, unequivocal language" in other statutes,
292 F.3d
1308, 1310 (2002), but was not comparably prohibitory in §
216(b). The Eleventh Circuit thus joined the First, see
Cosme
Nieves v.
Deshler, 786 F.2d
445 (1986), but placed itself at odds with the Eighth, see
Johnson v.
Butler Bros., 162 F.2d 87 (1947) (denying
removability under FLSA). We granted certiorari to resolve the
conflict, 537 U. S. 1099 (2003), and now affirm.
II A
There is no question that Breuer could have begun his action in
the District Court. The FLSA provides that an action "may be
maintained ... in any Federal or State court of competent
jurisdiction," 29 U. S. C. § 216(b), and the district courts would
in any event have original jurisdiction over FLSA claims under 28
U. S. C. § 1331, as "arising under the Constitution, laws, or
treaties of the United States," and § 1337(a), as "arising under
any Act of Congress regulating commerce." Removal of FLSA actions
is thus prohibited under § 1441(a) only if Congress expressly
provided as much.
Nothing on the face of 29 U. S. C. § 216(b) looks like an
express prohibition of removal, there being no mention of removal,
let alone of prohibition. While § 216(b) provides
695
that an action "may be maintained ... in any ... State court of
competent jurisdiction," the word "maintain" enjoys a breadth of
meaning that leaves its bearing on removal ambiguous at best. "To
maintain an action" may mean "to continue" to litigate, as opposed
to "commence" an action.1 Black's Law Dictionary 1143 (3d ed.
1933). But "maintain" in reference to a legal action is often read
as "bring" or "file"; "[t]o maintain an action or suit may mean to
commence or institute it; the term imports the existence of a cause
of action."
Ibid.; see 1A J. Moore et al., Moore's Federal
Practice ~ 0.167[5], p. 472 (2d ed. 1996) (calling the" 'may be
maintained'" language an "ambiguous phrase" and "certainly not an
express provision against removal within the meaning of § 1441");
14C C. Wright, A. Miller, & E. Cooper, Federal Practice
and Procedure § 3729, p. 235 (1998) (referring to "use of the
ambiguous term 'maintain' in the statute"). The most, then, that
Breuer can claim simply from the use of the term "maintain" is that
any text, even when ambiguous, that might be read as inconsistent
with removal is an "express" prohibiting provision under the
statute. But if an ambiguous term like "maintain" qualified as an
express provision
1 Actually, there is reason to think that this sense of
"maintain" was intended. Under the FLSA, the Secretary of Labor may
file a suit on behalf of an employee to recover unpaid wages or
overtime compensation, and when the Secretary files such a suit, an
employee's right to bring a comparable action terminates, see,
e. g., 29 U. S. C. § 216(c). Congressional reports
suggest that although an employee may no longer initiate a new
action once the Secretary has sued, an employee may continue to
litigate, i.
e., "maintain," an action already pending. See
H. R. Conf. Rep. No. 327, 87th Cong., 1st Sess., 20 (1961) (filing
of the Secretary's complaint would "not, however, operate to
terminate any employee's right to maintain such a private suit to
which he had become a party plaintiff before the Secretary's
action"); S. Rep. No. 145, 87th Cong., 1st Sess., 39 (1961)
(Secretary's filing of complaint "terminates the rights of
individuals to later file suit"); cf.
Smallwood v.
Gallardo, 275
U. S. 56, 61 (1927) ("To maintain a suit is to uphold, continue
on foot and keep from collapse a suit already begun"). Seen in this
light, Congress's use of the term "maintain" is easy to understand,
carrying no implication for removal.
696
for purposes of 28 U. S. C. § 1441(a), then the requirement of
an "expres[s] provi[sion]" would call for nothing more than a
"provision," pure and simple, leaving the word "expressly" with no
consequence whatever. "[E]xpres[s] provi[sion]" must mean something
more than any verbal hook for an argument.
The need to take the express exception requirement seriously is
underscored by examples of indisputable prohibitions of removal in
a number of other statutes. Section 1445, for example, provides
that
"(a) A civil action in any State court against a railroad or its
receivers or trustees ... may not be removed to any district court
of the United States.
"(b) A civil action in any State court against a carrier or its
receivers or trustees to recover damages for delay, loss, or injury
of shipments ... may not be removed to any district court of the
United States unless the matter in controversy exceeds $10,000,
exclusive of interest and costs.
"(c) A civil action in any State court arising under the
workmen's compensation laws of such State may not be removed to any
district court of the United States.
"(d) A civil action in any State court arising under ... the
Violence Against Women Act of 1994 may not be removed to any
district court of the United States."
See also 15 U. S. C. § 77v(a) ("[N]o case arising under [the
Securities Act of 1933] and brought in any State court of competent
jurisdiction shall be removed to any court of the United States");
§ 1719 ("No case arising under [the Interstate Land Sales Full
Disclosure Act] and brought in any State court of competent
jurisdiction shall be removed to any court of the United States,
except where the United States or any officer or employee of the
United States in his official capacity is a party"); § 3612 ("No
case arising under [the Condominium and Cooperative Abuse Relief
Act of 1980] and
697
brought in any State court of competent jurisdiction shall be
removed to any court of the United States, except where any officer
or employee of the United States in his official capacity is a
party"). When Congress has "wished to give plaintiffs an absolute
choice of forum, it has shown itself capable of doing so in
unmistakable terms."
Cosme Nieves, 786 F. 2d, at 451. It has
not done so here.
B
None of Breuer's refinements on his basic argument from the term
"maintain" puts him in a stronger position. He goes on to say, for
example, that interpretation does not stop at the dictionary, and
he argues that the statutory phrase "may be maintained" shows up as
sufficiently prohibitory once it is coupled with a federal policy
of construing removal jurisdiction narrowly. Breuer relies heavily
on our statement in
Shamrock Oil &
Gas Corp. v.
Sheets, 313 U.
S. 100 (1941), that "the policy of the successive acts of
Congress regulating the jurisdiction of federal courts is one
calling for the strict construction of [removal legislation] ....
'Due regard for the rightful independence of state governments,
which should actuate federal courts, requires that they
scrupulously confine their own jurisdiction to the precise limits
... the statute has defined.'"
Id., at 108-109 (quoting
Healy v.
Ratta, 292 U. S. 263, 270
(1934)). But whatever apparent force this argument might have
claimed when
Shamrock was handed down has been qualified by
later statutory development. At the time that case was decided, §
1441 provided simply that any action within original federal
subjectmatter jurisdiction could be removed. Fourteen years later,
however, it was amended into its present form, requiring any
exception to the general removability rule to be express. See Act
of June 25, 1948, § 1441(a), 62 Stat. 937 (authorizing removal over
civil suits within the district courts' original jurisdiction
"[e]xcept as otherwise expressly provided by Act of Congress"); see
also 28 U. S. C. § 1441 (historical and revi-
698
sion notes). Since 1948, therefore, there has been no question
that whenever the subject matter of an action qualifies it for
removal, the burden is on a plaintiff to find an express exception.
As
Shamrock itself said, "the language of the Act ...
evidence[s] the Congressional purpose," 313 U. S., at 108, and
congressional insistence on express exception is hardly satisfied
by the malleability of the term "maintain" in the text Breuer
relies upon.
Nor does it do Breuer any good to emphasize a sense of
"maintain" as implying continuation of an action to final judgment,
so as to give a plaintiff who began an action the statutory right
under 29 U. S. C. § 216(b) to see it through. We may concede that
it does, and the concession leaves the term "maintain" just as
ambiguous as ever on the issue before us.2 The right to maintain an
action may indeed be a right to fight to the finish, but removal
does nothing to defeat that right; far from concluding a case
before final judgment, removal just transfers it from one forum to
another. As between a state and a federal forum, the statute seems
to betray an indifference, with its provision merely for
maintaining action "in any Federal or State Court,"
ibid.
But even if the text of § 216(b) were not itself reason enough
to doubt that the provision conveys any right to remain in the
original forum, the implication of Breuer's position would
certainly raise misgivings about his point. For if the phrase "[a]n
action ... may be maintained" meant that a plaintiff could insist
on keeping an FLSA case wherever he filed it in the first place, it
would seem that an FLSA case brought in a federal district court
could never be transferred to a different one over the plaintiff's
objection, a result that would plainly clash with the provision for
change of venue, 28 U. S. C. § 1404(a) ("For the convenience of
parties and witnesses, in the interest of justice, a district court
may transfer
2 As to individual cases brought before the institution of any
suit by the Government, see n. 1,
supra.
699
any civil action to any other district or division where it
might have been brought").
It is, finally, a like concern about consequences that leaves us
with fatal reservations about Breuer's pragmatic appeal that many
claims under the FLSA are for such small amounts that removal to a
sometimes distant federal court may make it less convenient and
more expensive for employees to vindicate their rights effectively.
This may often be true, but even if its truth somehow justified
winking at the ambiguity of the term "maintain," the implications
would keep us from going Breuer's way. A number of other statutes
incorporate or use the same language as § 216(b), see 29 U. S. C. §
626(b) (providing that the Age Discrimination in Employment Act of
1967 "shall be enforced in accordance with the powers, remedies,
and procedures provided in" § 216(b) and other sections of the
FLSA); § 2005(c)(2) ("An action to recover the liability prescribed
[under the Employee Polygraph Protection Act of 1988] in paragraph
(1) may be maintained against the employer in any Federal or State
court of competent jurisdiction"); § 2617(a)(2) ("An action to
recover the damages or equitable relief [under the Family and
Medical Leave Act of 1993] prescribed in paragraph (1) may be
maintained against any employer (including a public agency) in any
Federal or State court of competent jurisdiction by anyone or more
employees"). Breuer, then, cannot have a removal exception for the
FLSA without entailing exceptions for other statutory actions, to
the point that it becomes just too hard to believe that a right to
"maintain" an action was ever meant to displace the right to
remove.3
3 Breuer points to two nonjudicial authorities that do nothing
to assuage our skepticism. He calls our attention to the position
taken by the Administrator of the Wage and Hour Division, United
States Department of Labor, in an
amicus brief filed before
the Eighth Circuit in
Johnson v.
Butler Bros., 162
F.2d 87 (1947), arguing that the text of the FLSA and the policies
motivating its passage demonstrate that FLSA actions may
700
III
Breuer's case was properly removed under 28 U. s. C. § 1441, and
the judgment of the Eleventh Circuit is affirmed.
It is so ordered.
not be removed to federal court. But this brief is not
persuasive authority. The Secretary has no responsibility for
applying the removal statute and no particular authority to
interpret it; the Secretary's opinion cannot make up for the
absence of express statutory language. Breuer also points to a
Senate Report accompanying the 1958 enactment of 28 U. S. C. §
1445, a provision barring removal of workers' compensation actions
under state law. Referring to actions brought under the FLSA, the
report states "[i]f filed in the State courts the law prohibits
removal to the Federal court." S. Rep. No. 1830, 85th Cong., 2d
Sess., 9 (1958). But a stray comment in a congressional report
stands a long way from an express statutory provision.
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