Petition — Record Data, Inc. v. United States District Court for the Northern District of Alabama

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IN THE SUPREME COURT OF

THE UNITED STATES

October Term 1983

RECORD DATA, INC., a corporation, PETITIONER

vs.

UNITED STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF ALABAMA (JACK F. NEAL, et als,

REAL PARTIES IN INTEREST) RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Frank K. Noojin, Jr. of Barton J. Craig

Watts, Salmon, Roberts, General Counsel for

Manning & Noojin Petitioner, Record

Local Counsel for Data, Inc., a cor-

Petitioner, Record poration

Data, Inc., a corpora- 725 St. Clair Ave.

tion Cleveland, OH 44113

200 Terry-Hutchens Bldg. 1-800-321-1890

Huntsville, AL 35801

(205) 533-3500

Counsel of Record for

Petitioner

Number:

IN THE SUPREME COURT OF

THE UNITED STATES

October Term 1983

IN re: RECORD DATA, INC., a

corporation,

Petitioner

On Writ of Certiorari to the

United States Court of

Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Frank K. Noojin, Jr. of Barton J. Craig

Watts, Salmon, Roberts, General Counsel for

Manning & Noojin Petitioner, Record

Local Counsel for Data, Inc., a cor-

Petitioner, Record poration

Data, Inc., a corpora- 725 St. Clair Ave.

tion Cleveland, OH 44113

200 Terry-Hutchens Bldg. 1-800-321-1890

Huntsville, AL 35801

(205)

533-3500

Counsel of Record for

Petitioner

QUESTIONS PRESENTED FOR REVIEW

The questions presented to the Court

for review are:

Ultimate Questions

1. Did the United States Court of

Appeals for the Eleventh Circuit err in

ruling in its June 30, 1983 Order that:

Concluding that the Court

of Appeals has no jurisdiction

to review the remand by mandamus

or otherwise, the petition for

mandamus and/or prohibition

is denied. See 28 U.S.C. §1447(d),

and thus ruling that it had no jurisdiction

to review the April 13, 1983 Order of the

United States District Court for the

Northern District of Alabama which remanded

the action to the state court on the ground

that the "action was removed improvidently

and without jurisdiction for the reasons

stated in the Memorandum of Decision filed

contemporaneously herewith" when said

Memorandum of Decision stated unequivo-

cally that "it is clear that this court

would have original jurisdiction over this

action, see 29 U.S.C. §216(b)" and that

"Defendant [Petitioner] timely petitioned

this court for removal of the action to the

Northern District of Alabama, Northeastern

Division"?

2. Did the United States Court of

Appeals for the Eleventh Circuit err in

ruling in its June 30, 1983 Order that:

Concluding that the Court

of Appeals has no jurisdiction

to review the remand by mandamus

or otherwise, the petition for

mandamus and/or prohibition is

denied. See 28 U.S.C. &1447(d),

and thus ruling that it had no jurisdiction

to review the April 13, 1983 Order of the

United States District Court for the Northern

District of Alabama which remanded the

action to the state court when the remand

order of the District Court involved the

resolution of an important, unsettled and

novel question of federal law, i.e. whether

a suit under the Fair Labor Standards Act

of 1938, as amended, 29 U.S.C.A. §§201, et.

seq., originally filed in a state court

having jurisdiction thereof, is removable

to a United States District Court under the

federal removal statutes, as amended,

28 U.S.C.A. §§1441 et. seq.?

Subsidiary Question

1. Whether a suit under the Fair

Labor Standards Act of 1938, as amended,

29 U.S.C.A. §§201 et. seq., originally

filed in a state court having jurisdiction

thereof, is removable to a United States

District Court under the federal removal

statutes, as amended, 28 U.S.C.A. §§1441

et. seq.?

PARTIES TO THE ACTION IN THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

1. E. B. Haltom, Jr. Respondent herein

and in the Court of

Appeals; Trial

Judge in the District

Court.

2. Jack F. Neal Respondent herein

and in the Court of

Appeals; Plaintiff

in the District

Court and in the

State Court.

3. Record Data, Inc., Petitioner herein

a corporation and in the Court of

Appeals; Defendant

in the District

Court and in the

State Court.

iii

4. Record Data of Co-Defendant in the

Alabama, Inc. District Court added

by Plaintiff after

removal.

DESIGNATION OF CORPORATE RELATIONSHIPS

Record Data, Inc., a corporation, who

files this Petition for Writ of Certiorari

in this proceeding, states that:

l. This is its original designation

of corporation relationships.

2. Record Data, Inc., a corporation,

that is privately held principally by Bruce

B. Felder and Leonard R. Stein-Sapir, and

is not owned by any parent corporation.

3. Record Data, Inc., a corporation,

does not have any ownership interest in any

subsidiaries except those which are wholly

owned subsidiaries.

4. Record Data, Inc., a corporation,

does not have an ownership interest in any

other subsidiaries, except in wholly-owned

subsidiaries.

5. Record Data, Inc., a corporation,

does not have any affiliates,

1983.

Dated this the 24th day of September,

eo, i Yo? f ee ha

Frank K. Noojin, Jr. of

Watts, Salmon, Roberts, Manning

& Noojin

Local Counsel for Petitioner,

Record Data, Inc., a corporation

200 Terry-Hutchens Building

Huntsville, AL 35801

(205) 533-3500

‘N

TABLE OF CONTENTS AND AUTHORITIES

A. Table of Contents Page

1. Questions presented ;

EOE TOVLOW. occ ccccjeccss 1

2. Parties to the action

in the United States

Court of Appeals for en

the Eleventh Circuit.... 111

3. Designation of

Corporate Relationships. iv

4. Table of Contents and

ME TEE CIOS: 6 Ck ds x's ves ko vi

A. Table of Contents.... vi

B. Table of Authorities. vi

5. Official and unofficial

reports of opinions

delivered in the courts

6. Statement of grounds on

which the jurisdiction

of the Court is invoked. 2

7. Statutes which the

CABS -TAVOLVGS cis bias cee 2

8. Statement of the case... 6

9. Arguments for allowance

| Gt Ge ME ECs vais dees seu 14

Age Se re A-1

B. Table of Authorities

Cases

Ze. s. ia pace

Aaker v. Kaiser Co.,

(1947).

74 F. Supp. 55 (D. Ore.

Anthony v. West Coast Drug Co.

331 F. Supp. 1279

(W. D. Wash. 1971).

Asher v. William L. Crow

eee ee we ee ee ee eee

Construction Co.,

118 F. Supp. 495

(S.0.8.¥. i953).

Roebuck & Co.,

Baldwin v. Sears,

66/ F. 2d 458

(Sth Cir. 1982).

Barrett v. McDonald's of

29 ,38,47

EE oe ka ob be eee ee

419 F. Supp. 792

(W. D. Okla. 1976)

Bonner v. City of Prichard,

661 F. 2d 1206

(llth Cir. 1981).

Brennan v. Arnheim and

cana nce a lo ok aly OOmCe A amen 28

Be ee. Si2, do le ES. 26.463,

ae. Cts 3438. (1973).

Buckles v. Morristown Kayo Co

132 F. Supp. 355 (E. D.

Tenn. 1955).

RT ye BO 7S rere on

aU. By 228,20 La Beds See

(1881).

Butner v. United States,

440 U. S. 48, 59 L. Ed. 2d 136,

99 S. Ct. 914 (1979).

. 47,49

“eee © eo eo eee

vii

Carter v. Hill and Hill Page

TTR brig cect ccceeccces 29,38

(S.D. Tex. 1966).

In re Cement Antitrust Litigation,. 32

(9th Cir. 1982)

DS SO | 55

. Supp. 355

EDumie ks B9CL).

Colonial Times, Inc. v. Gasch, .... 33

(D.C. Cir. 1975).

Commissioner of Internal Revenue

RE RE SE ERIE 28

U.S. 456, 18 L. Ed. 2d 886,

87 S. Ct. 1776 (1967).

em MEE Oe Coal Co. .. ow scc ees 42,43

22 F. Supp. 482

(E. D. Ky. 1943).

Glidden v. Zdanok, ......eeessesees 34

370 U.S. 530, ;

82S. Ct. 1459 (1962).

Goettel v. Glenn Berry Mfrs., Inc.,47 4g

236 F. Supp. 884

(N.D. Okla. 1964).

Gordon v. United States Fire

TLE dds ge dsee eh 600 ep eee 26

(Sth Cir. 1976).

Gottlieb v. Firestone Steel

a 25

. Supp. 1137

(E.D. Pa. 1981).

RCM iuee COPn. |... wk kets eo 48

122 F. Supp. elt

(S.D.N.Y. 1954).

vili

[i SEE fuss ene oun o 8'6 Bekboae 25

598 F. 2d 176

(B. €. Cir. 1979).

Hamilton v. Morlal, wccccecsccccces 33

644 F. od JL

(Sth Cir. Unit A 1981).

Harris v. Reno Oil Co., wecesevenes 41,42

. Supp.

(N.D. Tex. 1943).

Haun v. Retail Credit Company, .... 55

. SUpp.

(W. D. Pa. 1976).

Berearn 0. PAVRE, cs cir cenvrertecne 33

673 F x4 307

(LOth Cir. 1982).

.29 ,38,47,48,49,50,

Hill v. Moss American, Inc.,

309 F. Oo [175 51

. SUPP.

(N.D. Miss., 1970).

Jacobi v. High Point Label, Inc., .55

442 F. Supp. 318

(N.D.N.C. 1977).

Korell v. Bymart, Des gi tye bee ale 48,49

upp

(E.D.N.Y. 1951).

La Buy v. Howes Leather Compan ; Ni

SIU.S ZAG, b les. BOs 20 290,

77S. Ct. 309 (1957).

London v. United States Fire

3 =F Ri a 22

S3E.8. 26.2597

(Sth Cir. 1979).

0 AE SS. ee Y Ae

Gun Use ae, ae. Oa. 762,

30 §. Cte. 501 (1910).

McConnell v. Marine Engineers

EERE ME cect cc ee yee 55

. supp. 770

(N. D. Cal. 1981).

qoGarriges v. ll West Forty-Second

i o's a e665 we 6 6 bie 0.0.0 81b' 6 41

“8 F. Supp. 710

(S.D.N.Y. 1942).

Merrill, Lynch, Pierce, Fenner &

Smithy inc. V. Hageu. Sah uke w ehaie. 8 18,26

(Sth Cir. Unit B 1981).

In re llerrimack Mutual Fire

Ce ihe ben's a Wide en e's @ oe 0 6 18 ,20 ,25,26

Mid-Continent Pipe Line Co.

Se Se ive Cane ts aes 43,44

a) F. 2d 655

(10th Cir. 1942).

EN Pe TD ee 34

G18 U.S. 167, 5 L. Ed. 2d 1069,

94 S. Ct. 3112 (1974).

NE 6 6 aon yo 6 hae 6b 6 27

305 U.S. 167, 5 L. Ed. 2d 492,

81S. Ct. 473 (1961).

Page

National Right to Work Legal

Defense and Educational Foundation,

“se

New York City Transit Authority

Oe a nsn aes ab a ks oe 6 27

U.S. 568, 59 L. Ed. 2d

589, 99 S. Ct. 1355 (1979).

SON EO See 29,38,47

S61 F. Supp. 1173 (D.P.R. 1983)

Niswander v. Paul Hardeman, Inc. ,47,49

» F. Supp. 7/4

(E. D. Ark. 1963).

Owens v. Greenville News-

ian ae hE SOM e tebe 00 eed 41,42,43

43 F. Supp. 785

(W.D.S.C. 1942).

OES 04 7) re 25

. “as. Far, oo Le Bd. S28,

> & €e...767 ¢(€i@e7).

Ex parte Republic of Peru, ..... 24

315 TS 578, 59 L. Ed. 1014,

oo 8. Ct. 793 (1945).

Ricciardi v. Lazzara Baking

COFD. , cecccceressscesecceseecs 43

32 F. Supp. 956

(D.N.J. 1940).

Roche v. Evaporated Milk

«ce ce 6 ecb baecesone 24,25

oe. as. 82 %. Ba. 1108,

63 S. Ct. 938 (1943).

Page

Rossi v. Singer Sewin

TR ree oo as 4.6. bee eee ee 48,49 ,50

127 F. PP.

(D. Conn. 1954).

Royal v. State Farm Fire and

el OR OSPR SEIT are 22,26

55% F. 2d 124

(Sth Cir. 1982).

Ryan v. State Board of Elections, . 18,20

(7th Cir. 1981).

Schlagenhauf v. Holder, .......e0.. 31

AT U.S. 02, ia ps Oh. 26 352.,

85 Ss. Ct. 234 (1964).

i Es Ms 6 5 6 0:6 0 5 00h eee 8 08s 25

. supp. 1209

(S,D.N.Y. 1981).

Sheet Metal Workers International

Association, AFL-ClO V. 5eaV, «wees

695 F. od LOOU

(10th Cir. 1982)

ee Oe ee ois oils a ce 0 00.08 18 ,26

~, @ap Us 26 b400

(Sth Cir. Unit. A 1980).

I ee ee ee 42

ZG N.Y.5. 24 9570

(City Court of N.Y. 1943).

Sicinski v. Reliance Funding $s

COTP., verre revreesseeeecesveeseees

461 F. Supp. 649

(S.D.N.Y. 1978).

Sonnesyn v. Federal Cartridge Co., 41,42,43

24 F. Supp. 29

(D. Minn. 1944).

xii

In re Southwestern Bell

oT CCL. ns ce tds cces bs 26

535 F. 2d 859

(Sth Cir. 1976).

Swettman v. Aesingeen Rand, Inc.,. 40,42

pp. 740

. Supp.

(S.D. Ill. 1946).

Taylor v. Brown, .esceereeeesevees 29 38,47

upp. 559

Thermtron Products, Inc. v.

NS Sareea 15,16,17,18

Bas Uc. 220, 46 L. Bd: 24 542, 25,26,58,

56 §. Ce. 584 (1976). 56

United States v. Christian, ...... 25

— a ae .°0cC™~C:~ |

(3rd. Cir. 1981).

United States v. Hughes, ......... 33

(Sth Cir. 1969).

SS A: oO) ee 34

iS U.S. 663, GL L. Ed. 2d 1039,

94 S. Ct. 3090 (1974).

Vermont Yankee Nuclear Corp. v.

National Resources Derense council,

i. il wen bith Rob's Connects 60084 27

435 U.S. 519, 55 L. Ed. 2d 460,

98 S. Ct. 1197 (1978).

In re Vuitton et tt Sa PP are 33

606 F. 2d l

(2nd Cir. 1979).

Wilk v. American Medical Association, 33

635 F. od 1LoOS

(7th Cir. 1981).

xiii

Wilkins v. Renault Southwest,

BMGeg cvvcescvesesvecscccsevevens 20,38

227 F. Supp. 647 ©

(N.D. Tex. 1964)

mean Ww. United States, «.scsscess 24,32

389 U.S. 90, LO L. Ed. 2d 305,

88 S. Ct. 269 (1967).

Zorilla v. Puerto Rican Cement

Ong cevccevcvsvevcvveveseseevess 30,39

227 F. Supp. 159

(D.P.R. 1964).

Statutory Provisions

RD U.S.C.A.. $7769) CO) co vreccccscens 53

ZO U.S.C.A. $71. ccc cvvnccscvccves 45

ZO U.S.C.A. $1254(1). nc ccscccene 2

Be US.CrA. F$LISS1.. wcrccsveccsess 9,12,14,22

BE U.S.C.A. $1932... ccecsscasedur 9,12,14,22

28 U.S.C.A. $1337... ccc cccvsvveves 9,12,14,22

28 U.S.C.A. §§1441 et seq........ iii

me USS. CA. $1661. 6 eee cr cctvces 9,37

2B U.S.C.A. $1441 (a). ccrcvvevens 2,30,41,46

26. U.S.C.A. $1445 (a)... cccciveces 53

Be TS.CiA. §L44S(1B). rec esicnonen 53

ZO U.S.C.A. $1445 (Cc)... ccrcvceren 53

2B U.S.C.A. $1466... cc ccccvevcees 9

Page

Pattsms BONSTCG). occcesccoes 3, a1, 25,39 ,29;

26,39

emumatscths: SLO6G7(E). cc becccvens 3% ae

29 U.S.C.A. §§201 et seq........ 7

29 U.S.C.A. $216(B).. ccc cccceee 3,8,9,12 42,

14 ,22,36

Be U.8.C.A. $§621 et seq......0. 54

a Matas BOSCO ss occcesevvcoces 53

Rule 17.1(a), United

States Supreme Court Rules...... 28

Rule 17.1(c), United States

Supreme Court Rules.........ee6- 27,34

Rule 28.2, United States

Supreme Court Rules.........006- 58

Rule 28.3, United States

Supreme Court Rules.........+.0+. 58

Rule 28.5(b), United States

Supreme Court Rules.........+45. 58

Textbooks and Other Authorities

32A Am. Jur. 2d Federal Practice 33

and Procedure, § o;

32B Am. Jur. 2d Federal Practice 15

and Procedure, §2552 at 264 (1982).

Annot., 10 ALR Fed. 919 (1972)...30,

1A Moore's Federal Practice...... 45

4 rev. ed. 1983)

1A Moore's Federal Practice .....

; = at

(2d rev. 2d 1983)

14 C. Wright and A. Miller, .....

Federal Practice and Procedure,

)

16 C. Wright, A. Miller, E. Cooper

and —£. Gressman, Federal Practice

and Procedure §39

16 C. Wright, A. Miller, E. Cooper

and E. Gressman, Federal Practice

and Procedure §39 ;

16 C. Wright, A. Miller, E. Cooper

and E. Gressman, Federal Practice

and Procedure §39 i

16 C. Wright, A. Miller, E. Cooper

and E. Gressman, Federal Practice

and Procedure §40

xvi

Number:

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1983

IN re: RECORD DATA, INC.,

a corporation,

Petitioner.

On Writ of Certiorari to the

United States Court of

Appeals for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

Petitioner prays that a Writ of

Certiorari issue to review the judgment of

the United States Court of Appeals for the

Eleventh Circuit entered June 30, 1983 on

that certain Petition for Writ of Mandamus

and Other Relief in said court styled "In

re: Record Data, Inc., a corporation,

Petitioner, Civil Action Number 83-7320" in-

which said judgment the United States Court

of Appeals for the Eleventh Circuit ruled

that it had no jurisdiction by which to

review the judgment of the United States

District Court for the Northern District of

Alabama, Northeastern Division, entered on

April 13, 1983 remanding the action to the

Circuit Court for Madison County, Alabama.

OFFICIAL AND UNOFFICIAL REPORTS

OF OPINIONS DELIVERED IN THE

COURTS BELOW

The opinions of the United States

District Court for the Northern District of

Alabama, Northeastern Division, and the United

States Court of Appeals for the Eleventh

Circuit in this case were not reported,

either officially or unofficially.

STATEMENT OF GROUNDS ON WHICH THE

JURISDICTION OF THE COURT IS

INVOKED

Jurisdiction of this Petition for Writ

of Certiorari is conferred upon the United

States Supreme Court by section 1254(1) of

Title 28 of the United States Code Annotated.

STATUTES WHICH TNE CASE INVOLVES

28 U.S.C.A. §1441 (a)

Except as otherwise expressly

provided by Act of Congress, any

civil action brought in a State

court of which the district courts

of the United 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.

28 U.S.C.A. §1447(c).

If at any time before final

judgment it appears that the case

was removed improvidently and

without jurisdiction, the district

court shall remand the case, and

may order the payment of just costs.

A certified copy of the order of

remand shall be mailed by its clerk

to the clerk of the State court.

The State court may thereupon

proceed with such case.

28 U.S.C.A. §1447(d).

An order remanding a case to

the State court from which it was

removed is not reviewable on appeal

or otherwise, except that an order

remanding a case to the State court

from which it was removed pursuant

to section 1443 of this title shall

be reviewable by appeal or other-

wise.

29 U.S.C.A. §216(b).

Any employer who violates the

provisions of section 206 or section

207 of this title shall be liable

to the employee or employees

affected in the amount of their

unpaid minimum wages, or their un-

paid overtime compensation, as the

case may be, and in an additional

equal amount as liquidated damages.

Any employer who violates the

provisions of section 215(a)(3) of

this title shall be liable for such

legal or equitable relief as may

be appropriate to effectuate the

purposes of section 215(a)(3) of

this title, including without limit-

ation employment, reinstatement,

promotion, and the payment of wages

lost and an additional equal amount

as liquidated damages. An action

to recover the liability prescribed

in either of the preceding sentences

may be maintained against any

employer (including a public agency)

in any Federal or State court of

competent jurisdiction by any one

or more employees for and in behalf

of himself or themselves and other

employees similarly situated. No

employee shall be a party plaintiff

to any such action unless he gives

his consent in writing to become

such a party and such consent is

filed in the court in which such

action is brought. The court in

such action shall, in addition to

any judgment awarded to the plaintiff

or plaintiffs, allow a reasonable

attorney's fee to be paid by

the defendant, and costs of the

action. The right provided by

this subsection to bring an action

by or on behalf of any employee,

and the right of any employee to

become a party plaintiff to any

such action, shall terminate upon

the filing of a complaint by the

Secretary of Labor-in an action

under section 217 of this title

in which (1) restraint is sought

of any further delay in the payment

of unpaid minimum wages, or the

amount of unpaid overtime compen-

sation, as the case may be, owin

to such employee under section 206

or section 207 of this title by an

employer liable therefor under the

provisions of this subsection or

(2) legal or equitable relief is

sought as a result of alleged

violations of section 215(a) (3)

of this title.

STATEMENT OF THE CASE

A. NATURE OF THE CASE

This case presents to the Court a

petition for writ of certiorari whereby

Petitioner Record Data, Inc., a corporation

requests that the Court issue a writ of

certiorari directed to the United States

Court of Appeals for the Eleventh Circuit

directing the Court of Appeals to (1) va-

cate its June 30, 1983 Order wherein it

ruled that it had no jurisdiction to review

the April 13, 1983 Order of the Unitec States

District Court for the Northern District of

Alabama which remanded this action to the

Circuit Court for Madison County, Alabama,

(2) order the United States District Court

for the Northern District of Alabama to

vacate its April 13, 1983 Order and accompany-

ing Memorandum of Decision remandirg the

action from said court to the Circuit Court

for Madison County, Alabama, (3) order the

United States District Court for the Northern

District of Alabama to enter an order ruling

that the action was providently and properly

removed under original jurisdiction to the

United States District Court for the Northern

District of Alabama from the Circuit Court

for Madison County, Alabama, and (4) order

the United States District Court for the

Northern District of Alabama to proceed to

the trial of the action.

B. COURSE OF PROCEEDINGS AND DISPOSITION

IN THE COURTS BELOW

On April 15, 1982, Jack F. Neal [herein-

after referred to as ''Neal''], filed a summons

and complaint against Record Data, Inc., a

corporation, [hereinafter referred to as

"Petitioner"] in the Circuit Court for

Madison County, Alabama [hereinafter referred

to as the "State Court"), Civil Action

Number CV 82-317B {hereinafter referred to

as "the action"] seeking damages for alleged

unpaid overtime compensation under the Fair

Labor Standards Act, as amended, 29 U.S.C.A.

sections 201 et. seq., [hereinafter referred

to as the "'FLSA"].

On May 7, 1982, Petitioner, as the sole

defendant in the action at that time, removed

the action from the state court to the United

States District Court for the Northern District

of Alabama, Northeastern Division [hereinafter

referred to as the "District Court"], by

filing with the clerk of the District Court

and serving upon counsel for Neal: (1) a

verified petition for removal; (2) a bond for

removal with good and sufficient surety; (3)

the required filing fee; and (4) a verifi-

cation of having given counsel for Neal

written notice of said removal and having

filed a copy of said petition for removal

with the state court; and by filing with

the clerk of the state court and serving upon

counsel for Neal (1) a notice of filing of

petition for removal and (2) a copy of said

petition and bond for removal.

On July 16, 1982, Neal filed with the

clerk of the Districc Court a motion to

remand, requesting that the District Court

remand the action to the state court on the

grounds that (1) pursuant to section 216(b)

of Title 29 of the United States Code, FLSA

suits "may be maintained in any court of

competent jurisdiction" and the action thus

was not removable and (2) that there was not

complete diversity of citizenship between the

litigants.

On August 3, 1982, Petitioner filed its

response to Neal's motion to remand, wherein

Petitioner alleged that the action was

properly removed to the District Court

pursuant to sections 1441 and 1446 of Title 28

of the United States Code Annotated upon four

separate bases of origina. jurisdiction:

sections 1331, 1332 and 1337 of Title 28 of

the United States Code Annotated and section

216(b) of Title 29 of the United States Code

Annotated.

On April 13, 1983, the Honorable E. B.

Haltom, Jr., District Judge in the District

Court [hereinafter referred to as ‘Judge

Haltom"], entered an order remanding the

action to the state court on the ground that

cre "action was removed improvidently and

without jurisdiction for the reasons stated

in the Memorandum of Decision filed con-

temporaneously herewith"'. [emphasis added]

(Appendix at 2).

On April 13, 1983, Judge Haltom issued

a Memorandum of Decision in support of his

April 13, 1983 remand order, wherein he

relied on two unpublished orders previously

issued by other judges in the Northern

District of Alabama in ruling that:

Conceding that there is

meritorious argument to be made

for removal of FLSA cases, this

member of the court declines to

depart from the precedent of

the United States District

Court for the Northern District

of Alabama enumerated above until

such time as a definitive ruling

is made either by che United

States Court of Appeals for the

Eleventh Circuit or by the

Supreme Court of the United

States. Consequently, the

court holds that, this action

having been commenced in the

state circuit court, it was

improvidently removed to this

court, and must be remanded.

In so holding, the court

concurs with tne decisions of

Price and Goldkist, supra.

mphasis added).

(Appendix at 9 ).

In so ruling, Judge Haltom made the

following critical observations: "(Lt

is clear that this court would have original

jurisdiction over this action, See 29 U.S.C;

§216(b)" and "Defendant (petitioner ] timely

petitioned this court for removal of the

action to the Northern District of Alabama,

Northeastern Division. (Appendix at 4& ?)-

(emphasis added) -

On April 25, 1983, Petitioner filed 4

motion for reconsideration with the District

Court, wherein it requested alternatively

that Judge Haltom either ‘1) "reconsider

and overrule his April 13, 1983 order

remanding {the} action to the Circuit Court

for Madison County» Alabama" OT (2) “revise

{said) Order to state that his decision was

based solely upon _. unpublished orders {of

the Northern District of Alabama] and not

upon section 1447 (c) of Title 28 of the

United States Code and that if th{e] action

had been commenced originally in the

(District ] [Cjourt, thlel (District Cjourt

would have jurisdiction of th[e] action

pursuant to sections 1331, 1332 and 1337 of

Title 28 of the United States Code, and

section 216(b) of Title 29 of the United

States Code, and that [Petitioner] complied

with all the procedural and statutory

requirements in removing th[e] action to the

[District CJourt." On May 4, 1983, Judge

Haltom denied, without comment, Petitioner's

motion for reconsideration and/or revision of

his April 13, 1983 remand order and memorandum

of decision.

On June 3, 1983, Petitioner filed with

the United States Court of Appeals for the

Eleventh Circuit {hereinafter referred to as

the "Court of Appeals") a Petition for Writ

of Mandamus and Other Relief wherein it

requested that the Court of Appeals "issue

a Peremptory, Advisory and Supervisory Writ

of Mandamus directed to [Judge] Haltom,

directing him to (1) vacate his April 13,

1983 Order, and accompanying Memorandum of

Decision . ..; (2) enter an Order ruling

that the action was providently and properly

removed under original jurisdiction to [the

District CJourt from the [State Court]; and

(3) proceed to the trial of the action."

Petitioner also requested that pending the

Court of Appeals' ruling, that the Court of

Appeals issue an order to the state court

Staying any further proceedings in the

action in the state court.

On June 6, 1983, the Court of Appeals

issued an order taking Petitioner's Petition

for Writ of Mandamus and Other Relief under

advisement, directing Petitioner and Respon-

dent to submit briefs in support of their

positions, and further enjoining any of the

parties from proceeding in the state court

until otherwise ordered. (Appendix at 14).

On June 27, 1983, the Court of Appeals heard

oral arguments on Petitioner's Petition for

Writ of Mandamus and Other Relief.

On June 30, 1983 the Court of Appeals

issued an order denying Petitioner's Petition

for Writ of Mandamus and Other Relief:

Concluding that the Court of

Appeals has no jurisdiction to

review the remand by mandamus

or otherwise, the petition for

mandamus and/or prohibition is

denied. See 28 U.S.C. §1447(d).

The injunction, heretofore

granted, from proceeding in

state court is dissolved.

(Appendix at 16).

The District Court had jurisdiction of

Petitioner's removal papers on four separate

bases of federal jurisdiction: (1) 28 U.S.C.A.

§1331 (federal question jurisdiction); (2)

28 U.S.C.A. §1332 (diversity of citizenship

jurisdiction); (3) 28 U.S.C.A. §1337

(regulation of commerce jurisdiction); and

(4) 29 U.S.C.A. §2T6(b) (FLSA jurisdiction).

ARGUMENTS FOR ALLOWANCE OF THE WRIT

l. IN DENYING PETITIONER'S PETITION FOR WRIT

. . AL

Section 1447(c) of Title 28 of the

United States Code Annotated provides in

pertinent part that "(i]f at any time before

final judgment it appears that the case was

removed improvidently and without jurisdiction,

the district court shall remand the case.

(emphasis added). Section 1447(d) of Title 28

of the United States Code Annotated provides

in pertinent part that "(a]n order remanding

a case to the State Court from which it was

removed is not reviewable on appeal or

otherwise.'"' It is clear, however, that "[t]he

Supreme Court has ruled that a remand order

based on grounds other than those specified

in 28 U.S.C. §1447(c) are subject to review.

Accordingly, the remand order may in such

instances properly be challenged...by a

petition for mandamus." 32 B Am. Jur. 2d

Federal Practice and Procedure §2552 at

284 (1982).

The basis for this exception to the

rule of nonreviewability of remand orders is

the decision of this Court in Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S. 336,

46 L. Ed. 2d 542,.96 S. Ct. 584 (1976).

Reversing the decision of the Sixth Circuit

Court of Appeals holding that mandamus would

not issue to a United States District Judge

compelling him to revoke his order remanding

the action to state court solely because of

the district court's crowded docket, this

Court, per Justice White, ruled as follows:

Section 1447(d) is not

dispositive of the reviewabiiity

of remand orders in and of itself.

That section and §1447(c) must

be construed together. .. .These

provisions, like their predecessors,

"are in pari materia [and] are to be

construed accordingly rather than

as distinct enactments. .. ."

Employers Reinsurance Corp. Vv.

Bryant, supra, at , L. Ed.

TES 537 S. Ct. 273. This means

that only remand orders issued

under §1447(c) and invoking the

grounds specified therein-- that

removal was improvident and without

jurisdiction -- are immune from

review under §1447(d).

423 U. S. at 345-46; 46 L. Ed. 2d at 551;

6:8. Ce. at 590.

But we are not convinced that

Congress ever incended to extend

carte blanche authority to the

district courts to revise the

federal statutes governing

423 U. S.

96 S. Ct.

removal by remanding cases on

grounds that seem justifiable

to them but which are not

recognized by the controlling

Statute. . . .Because the District

Judge remanded a properly removed

case on grounds that he had no

authority to consider, he

exceeded his statutorily defined

power; and issuance of the writ

of mandamus was not banned by

§1447(d).

In so holding we neither

disturb nor take issue with the

well-established general rule

that §1447(d) and its pre-

decessors were intended to forbid

review by appeal or extraordinary

writ of any order remanding a

case on the grounds permitted

by the statute. But this Court

has not yet construed the present

or past prohibition against

review of remand orders so as

to extinguish the power of an

appellate court to correct a

district court that has not

merely erred in applying the

requisite provisions for remand

but has remanded a case on

grounds not specified in the

Statute and not touching the

propriety of the removal. We

decline to construe §1447(d) so

woodenly as to reach that result

now.

at 351-52; 46 L. Ed. 2d at 554;

at 593.

There remains the question

whether absent the bar of

§1447(d) against appellate

review, the writ of mandamus

is an appropriate remedy to

require the District Court to

entertain the remanded action.

The answer is in the affirmative.

423 U. S. at 352; 46 L. Ed. 2d at 554; 96 S.

Ct. at 593. Thus, under the Thermtron

Products decision, when a remand order is

based on grounds other than those provided

for by section 1447(c), i.e. "improvidently

and without jurisdiction," the remand is

reviewable by mandamus. The Thermtron

Products doctrine of reviewability of non-

Statutory based remand orders has been

embraced and followed in subsequent decisions

of the United States Courtsof Appeals. See,

e.g., Sheet Metal Workers International

Association, AFL-CIO v. Seay, 693 F. 2d 1000

(10th Cir. 1982) (remand order vacated) ;

Ryan v. State Board of Elections, 661 F. 2d

1130 (7th Cir. 1981) (remand order in error);

Merrill, Lynch, Pierce, Fenner & Smith, Inc.

v. Haydu, 637 F. 2d 391, 396 n. 9 (5th Cir.

Unit B 1981); In re Shell Oil Co., 631 F. 2d

1156 (5th Cir. Unit A 1980); In re Merrimack

Mutual Fire Ins. Co., 587 F. 2d 642 (5th

Cir. 1978).

Thus, whether the Court of Appeals

erred in refusing to issue a peremptory

writ of mandamus to Judge Haltom directing

him to vacate his April 13, 1983 Order and

accompanying Memorandum of Decision remanding

the action from the District Court to the

state court, depends upon whether such order

and decision were based on the grounds other

than that the action was removed "improvi-

dently and without jurisdiction."

The United States Court of Appeals for

the Fifth Circuit has corstrued the term

"improvidently" as used in 28 U.S.C.A.

§1447(c) as follows:

Removal cannot have been

improvident if all procedural

requirements, e.g., timely

filing, have been satisfied.

We conclude that a district

court may remand a case as being

"improvidently" removed only

if one of the statutory non-

jurisdictional requirements

for removal has not been satisfied.

See, Haelan Laboratories, Inc.

v. Topps Chewing Gum, inc., Ldl

F. Supp. 262 (B.D. N.¥. 1955). .

In re Merrimack Mutual Fire Ins. Co., 587

F. 2d 642, 645 n. 3, 647 n. 8 (Sth Cir.

1978). The Merrimack decision has been

expressly followed by other courts, e.g.,

Sheet Metal Workers International Association,

AFL-CIO v. Seay, 693 F. 2d 1000 (10th Cir.

1982); Ryan v. State Board of Elections,

661 F. 2d 1130 (7th Cir. 1981) and was

binding precedent upon the Court of Appeals.

Bonner v. City of Prichard, 661 F. 2d 1206

(llth Cir. 1981).

Without question, in his remand order,

(Appendix at 2), Judge Haltom stated that

the action was remanded to the state court

because it "was removed improvidently and

without jurisdiction". Judge Haltom,

however, immediately qualified this statement

by the following language:

for the reasons stated in the

Memorandum of Decision filed

contemporaneously herewith...

(Appendix at 2). In his Memorandum of

Decision Judge Haltom expressly based his

remand order solely on two prior unpublished

remand orders issued by other judges in

the Northern District of Alabama:

Defendant has filed a

scholarly brief in which it

persuasively argues that the

better view favors removability

of FLSA cases. However, in

Price v. Asplundth Tree Expert

Company, CA No. 64-284-S (N.D.

Ala. 1964) (unpublished order --

copy attached), Judge Seybourn

H. Lynne held that an action

under the FLSA was due to be re-

manded as improvidently removed.

This holding was later followed

vy then Chief Judge Frank K.

McFadden in Goldkist, Inc. v.

Black, CV 80-M-1133-W (N.D.

Ala. 1980) (unpublished order

-- copy attached). Conceding

that there is meritorious

argument to be made for removal

of FLSA cases, this member of the

court declines to depart from the

precedent of the United States

District Court for the Northern

District of Alabama enumerated

above until such time as a de-

finitive ruling is made either

by the United States Court of

Appeals for the Eleventh Circuit

or by the Supreme Court of the

United States.

(Appendix at 8). In so ruling Judge Haltom

also made the following critical observation:

Defendant [Petitioner] timely

petitioned this court for

removal of the actiun to the

Northern District of Alabama,

Northeastern Division.

(Appendix at 4). Thus, contrary to the

conclusory statement in his order that the

action was "improvidently" removed, Judge

Haltom expressly acknowledged in his Memo-

randum of Decision that Petitioner had

indeed providently removed the action.

Cf. Royal v. State Farm Fire and Casualty

Co., 685 F 2d 124 (Sth Cir. 1982); London v.

United States Fire Ins. Co., 531 F. 2d 257

(5th Cir. 1979) (improvident removal encom-

passes untimely removal).

In both the District Court and the Court

of Appeals below, no doubt existed that

Petitioner removed the action to the District

Court under four separate bases of original

jurisdiction: (1) * federal question juris-

diction, 28 U.S.C.A. §1331; (2) diversity of

citizenship jurisdiction, 28 U.S.C.A. §1332;

(3) regulation of commerce jurisdiction, 28

U.S.C.A. §1337; and FLSA jurisdiction, 29

U.S.C.A. §216(b). In his Memorandum of

Decision Judge Haltom expressly acknowledged

that the District Court had original

jurisdiction of the action:

it is clear that this court

would have original juris-

diction over this action, see

29 U.S.C. §216(b), and that

this court is admittedly the

district court of the United

States for the district and

division embracing the place

where such action was pending...

(Appendix at 5), thus again directly con-

tradicting the conclusory language of his

order that the action was removed "without

jurisdiction." Because Judge Haltom

expressly acknowledged that the action was

removed to the District Court "providently

and with jurisdiction", it follows that he

exceeded his authority by remanding the

action to the state court and that a per-

emptory writ of mandamus should have issued

from the Court of Appeals directing him (1)

to vacate his Remand Order and accompanying

Memorandum of Decision and (2) to proceed

to the trial of the action. Thermtron

Products, Inc. v. Hermansdorfer, 423 U.S.

336, 46 L. Ed. 2d 542, 96 S. Ct. 584 (1976);

Sheet Metal Workers International Association,

AFL-CIO v. Seay, 693 F. 2d 1130 (7th Cir.

1981) ; lA Moore's Federal Practice 40.169

(2.-1]) at 694 (2d rev. ed. 1983) ("Mandamus

will lie where a properly removed case

is remanded for reasons not authorized by

statute."’)

A peremptory writ of mandamus will lie

to a United States District Judge to compel

him to exercise his authority when it is

his duty to do so. See 16 C. Wright, A.

Miller, E. Cooper and E. Gressman, Federal

Practice and Procedure §3933 at 222 (1977).

As this Court has ruled:

The peremptory writ of mandamus

has traditionally been used in

the federal courts only "to

confine an inferior court to

a lawful exercise of its pre-

scribed jurisdiction or to com-

pel it to exercise its authority

when it 1s its duty to do so.

Will v. United States, 389 U.S. 90, 95, 19

L. £4. 246 305. 310, 88 8. Ct. 269 (1967)

(emphasis added) (quoting Roche v.

Evaporated Milk Association, 319 U. S. 21,

O6, 67 L. Ed. 1185, 1190, 63 8. Ce. 938

(1943)). See also, Ex parte Republic of Peru,

aa8 U. 6.° 578, 87 tL. Bé.. 1014, 63 8. Ct. 793

(1943); Ex parte Parker, 120 U.S. 737, 30 L.

Ed. 818, 7 S. Ct. 767 (1887); Ex parte Burtis,

103 U. S. 238, 26 L. Ed. 392 (1881); 16 C.

Wright, A. Miller, E. Cooper and E. Gressman,

Federal Practice and Procedure §3932 at 186

(1977). And even so, when the writ is in aid

of the prospective jurisdiction of the

appellate court. Roche v. Evaporated Milk

Association, 319 U. S. 21, 87 L. Ed. 1185,

63 S. Ct. 938 (1943); McClellan v. Carland,

Bar us. e. 206, 54 .L. Bd. 762, 30 8. Ce. Sea

(1910); United States v. Christian, 660 F. 2d

892 (3rd Cir. 1981); In re Halkin, 598 F. 2d

176 (D.C. Cir. 1979); 16 C. Wright, A. Miller,

E. Cooper and E. Gressman, Federal Practice

and Procedure, §3932 at 190-91, 195 (1977).

Because section 1447(c) of Title 28 of

the United States Code Annotated states the

exclusive grounds for remand, In re Merri-

mack Mutual Fire Ins. Co. 587 F. 2d 642

(Sth Cir. 1978); Shaw v. Munford, 526 F. Supp.

1209 (S.D.N.Y. 1981); Gottlieb v. Firestone

Steel Products Co., 524 F. Supp. 1137 (E.D.

Pa. 1981), it clearly and indisputably

follows that Judge Haltom erred in remanding

the action on non §1447(c) grounds, i.e.

prior unpublished orders of the Northern

District of Alabama, because persons who

meet the statutory requirements of federal

jurisdiction have a statutory and con-

stitutional right to resort to the federal

courts. In re Southwestern Bell Telephone

Co., 535 F. 2d 859 (5th Cir. 1976). Further-

more under the Thermtron doctrine, when a

court articulates a non §1447(c) ground for

its remand order, the appellate court must

review the remand order, In re Shell Oil Co.,

631 F. 2d 1156 (Sth Cir. 1980); Merrill,

Lynch, Pierce, Fenner & Smith, Inc. v.

Haydu, 637 F. 2d 391 (5th Cir. 1981), which

review must be by mandamus and not by appeal.

Royal v. State Farm Fire and Casualty Co.,

685 F. 2d 124 (5th Cir. 1982); In re Merri-

mack Mutual Fire Ins. Co., 587 F. 2d 642

(5th Cir. 1978); Gordon v. United States

Fire Ins. Co., 531 F. 2d 257 (5th Cir. 1976).

Consequently, the Court of Appeals

erred in issuing its June 30, 1983 order

finding that it had no jurisdiction over

Petitioner's Petition for Writ of Mandamus

because in so ruling the Court of Appeals

ruled in a manner directly in conflict with

the decision of this Court in the Thermtron

case. When a court of appeals rules in a

manner in conflict with binding precedent of

this Court, its ruling is subject to review

by a writ of certiorari. New York City

Transit Authority v. Beazer, 440 U. S. 568,

59 L. Ed. 2d 589, 99 S. Ct. 1355 (1979);

Vermont Yankee Nuclear Corp. v. National Re-

sources Defense Council, Inc., 435 U. S. 519,

55 L. Ed. 2d 460, 98 S. Ct. 1197 (1978);

Monroe v. Pape, 365 U. S. 167, 5 L. Ed. 2d

492, 81S. Ct. 473 (1961); Rule 17.1(c),

United States Supreme Court Rules. In so

ruling the Court of Appeals also ruled in a

manner directly in conflict with decisions cf

various courts of appeals decided under

Thermtron: "When a federal court of appeals

has rendered a decision of another federal

court of appeals on the same matter”,

certiorari review is available. Rule 17.l(a),

United States Supreme Court Rules; Butner v.

United States, 440 U. S. 48, 59 L. Ed. 2d 136,

99 S. Ct. 914 (1979); Brennan v. Arnheim and

Neely, Inc., 410 U. S. 512, 35 L. Ed. 2d 463,

93 S. Ct. 1138 (1973); Commissioner of In-

ternal Revenue v. Bosch, 387 U. S. 456, 18 L.

Ed. 2d 886, 87 S. Ct. 1776 (1967).

Because the Court of Appeals erroneously

ruled that it had no jurisdiction to review

Petitioner's Petition for Writ of Mandamus

and Other Relief, which ruling was in direct

conflict with this Court's decision in

Thermtron and decisions of the courts of

appeals decided under Thermtron, a writ of

certiorari should issue from this Court to

review the Court of Appeals said June 30, 1983

Order denying Petitioner's Petition for Writ

of Mandamus and Other Relief.

oo 2 DENYING PETITIONER'S PETITION FOR

WRIT OF MANDAMUS AND OTHER RELIEF THE

F ALS DECIDED A F

STATES

A NS OF

SUPREME COURT AND THE UNITED STATES

COURTS OF APPEALS HOLDING THAT WHEN A

FEDERAL DISTRICT COURT 1S FACED WITH AND

DECIDES A NOVEL, IMPORTANT AND UNSETTLED

——— a A vat - = 7 =

EXTRAORDINARY ADVISORY AND SUPERVISORY

WRIT OF MANDAMUS.

Although neither the FLSA nor any other

congressional enactment contain an express

provision prohibiting removal of FLSA suits to

the United States district courts, a split of

authority exists among the federal district

courts whether such actions originally

commenced in a state court having jurisdiction

thereof may be removed to a United States

district court. Compare Nieves v. Deshler,

561 F. Supp. 1173 (D.P.R. 1983) (removable) ;

Taylor v. Brown, 461 F. Supp. 559 (E.D. Tenn.

1978) (removable); Barrett v. McDonald's of

Oklahoma City, 419 F. Supp. 792 (W.D. Okla.

1976) (removable); Hill v. Moss-American, Inc.,

309 F. Supp. 1175 (N.D. Miss. 1970) (removable)

with Carter v. Hill and Hill Truck Lines, Inc.,

259 F. Supp. 429 (S.D. Tex. 1966) (nonremovable);

Wilkins v. Renault Southwest, Inc., 227 F.

Supp. 647 (N.D. Tex. 1964) (nonremovable) ;

Zorilla v. Puerto Rican Cement Co., 227 F.

Supp. 159 (D.P.R. 1964)(nonremovable). See

generally, Annot., 10 ALR Fed. 919 (1972).

Prior to the September 1, 1948 amendment of

the removal statute, 28 U.S.C.A. §1441(a),

the majority of the decisions on this

question held that a FLSA suit originally

filed in state court could not be removed to

a United States district court. Id. Sub-

sequent to that amendment, however, the

majority of decisions holds that an action

90 situated is removable. Id.

The issue is whether a suit under the

FLSA originally filed in a state court

having jurisdiction thereof is removable

to a United States district court is an

important and unsettled question of law in

that (1) it has remained unanswered and has

escaped federal appellate review for over 40

years, (2) has never been directly addressed

by any of the United States Court of Appeals

or the United States Supreme Court’ since

the 1948 amendment to the removal statute

and (3) is one that Judge Haltom acknowledged

in his Memorandum of Decision should be

resolved by this Court or the Court of

Appeals. (Appendix at 9). Furthermore,

as previously noted, the issue is not re-

viewable by appeal. As such, it was ripe for

determination by the Court of Appeals by an

advisory and supervisory writ of mandamus.

In Schlagenhauf v. Holder, 379 U. S. 104,

13 L. Ed. 2d 152, 85 S. Ct. 234 (1964), this

Court was faced with a petition for a writ of

mandamus challenging a district court

discovery order requiring a defendant to

submit to a mental and physical examination

pursuant to Rule 35(a) of the Federal Rules

of Civil Procedure. Holding inter alia,

that mandamus was the proper remedy for

resolution of the question of first im-

pression before it, this Court ruled:

Here petitioner's basic

allegation was lack of power in

a district court to order a

mental and physical examination

of a defendant. That this issue

was substantial is underscored

by the fact that the challenged

order requiring examination of

a defendant appears to be the first

of its kind in any reported de-

cision in the federal courts

under Rule 35 and we have found

only one such modern case in

the state courts. The Court of

Appeals recognized that it had

the power to review on a petition

for mandamus the basic, undecided

question of whether a district

court could order the mental

or physical examination of a

defendant. We agree that, under

these unusual circumstances and

in light of the authorities,

the Court of Appeals had such

power.

379 U. S. at 110-13; 13 L. Ed. 2d at 159-60;

85 S. Ct. at 238-39 (emphasis added). Other

decisions of this Court are in accord, see,

e.g., Will v. United States, 389 U. S. 90,

19 L. Ed. 2d 305, 88 S. Ct. 269 (1967); La

Buy v. Howes Leather Company, 352 U. S. 249,

. <.. B84. 26 200; 77 8) Ce. 309 .¢1957); 2

are decisions of the United States Courts of

Appeals. See, e.g., In re Cement Antitrust

Litigation, 688 F. 2d 129 (9th Cir. 1982);

Herrera v. Payne, 673 F. 2d 307 (10th Cir.

1982); Hamilton v. Morial, 644 F. 2d 351

(5th Cir. Unit A 1981); Wilk v. American

Medical Association, 635 F. 2d 1295 (7th

Cir. 1981);In re Vuitton et Fils, S.A., 606

F. 2d 1 (2nd Cir. 1979); National Right to

Work Legal Defense and Education Foundation,

Inc. v. Richey, 510 F. 2d 1239 (D.C. Cir.

1975); Colonial Times, Inc. v. Gasch, 509

Rs 24 5i7 (D.C. Cie. 1975): United States Fv.

Hughes, 413 F. 2d 1244 (5th Cir. 1969). The

commentators are in agreement that an advisory

and supervisory writ of mandamus will issue to

an inferior federal tribunal to instruct it in

the proper resolution of an important, novel

and unresolved question of law which is other-

wise unreviewable. See, 16 C. Wright, A.

Miller, E. Cooper and E. Gressman, Federal

Practice and Procedure §3934 (1977); 32A Am.

Jur. 2d Federal Practice and Procedure §963

(1982).

Review by certiorari is available when a

Court of Appeals has decided an “important

question of federal law which has not been,

but should be settled by [the Supreme] Court."’

Rule 17.1(7c), Rules of the United States

Supreme Court; Milliken v. Bradley, 418 U.S.

717, 41 L. Ed. 2d 1069, 94 S. Ct. 3112 (1974);

United States v. Nixon, 418 U. S. 683, 41 L.

Ed. 2d 1039, 94 S. Ct. 3090 (1974); Glidden v.

Zdanok, 370 U. S. 530, 8 L. Ed. 2d 671, 82 S.

Ct. 1459 (1962). Although the Court of Appeal's

June 30, 1983 ruling did not specifically

address the unresolved question of removabi-

lity of a FLSA suit originally filed in a state

court of competent jurisdiction, its refusal to.

issue a Writ of Mandamus to the District Court

implicitly, and as a practical matter, affirmed

the District Court's April 13, 1983 remand

order and memorandum of decision. Thus, this

Court should issue a Writ of Certiorari to

instruct the Court of Appeals in the proper

resolution of this question. Furthermore,

because of the distinct split of authority on

this important question of federal statutory

labor law which undoubtedly affects millions

of employees, this Court should issue a Writ

of Certiorari to the Court of Appeals to

instruct it in the proper resolution thereof.

"General public importance of the issues, and

the need to secure uniformity of federal law,

must be the basic touchstones" for the

issuance of a writ of certiorari, 16 C. Wright,

A. Miller, E. Cooper and E. Gressman, Federal

Practice and Procedure, §4004 at 508 (1977),

which should also be issued to resolve "a

statutory question likely to have widespread

impact."' Id.

3. IN DENYING PETITIONER'S PETITION FOR WRIT

AMUY: THER RELIEF

A ION

NATIONAL IMPORTANCE WHICH SHOULD BE

DECIDED BY THE UNITED STATES SUPREME COURT

By refusing to consider Petitioner's

Petition for Writ of Mandamus and Other Relief

and thus leaving the District Court's remand

order intact, the Court of Appeals implicitly

decided a previously unresolved question of

federal statutory labor law of national im-

portance which should be decided by this

Court: whether a suit under the FLSA

originally filed in a state court having

jurisdiction thereof is removable to a

United States District Court under the

federal removal statutes. For reasons set

forth below, the Court of Appeals' implicit

resolution of this question of national

importance was clearly erroneous.

Subsection (b) of section 216 of Title

29 of the United States Code Annotated, the

FLSA jurisdictional provision, provides in

pertinent part that:

(b) Any employer who violates the

provisions of section 206 or section

207 of this title shall be liable

to the employee or employees

affected in the amount of their un-

paid minimum wages, or their un-

paid overtime compensation, as the

case may be, and in an additional

equal amount as liquidated damages.

.. An action to recover the lia-

bility prescribed in either of the

receding sentences may be main-

tained in any Federal or State

court of competent jurisdiction

by any one or more employees for

and in behalf of himself or

themselves and other employees

Similarly situated.

(emphasis added). The general removal

statute, §1441 of Title 28 of the United

States Code Annotated, provides in pertinent

part that:

(a) Except as otherwise expressly

provided by Act of Congress, any

Civil action brought in a State

court of which the district courts

of the United 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.

(emphasis added).

Exhaustive research by Petitioner

reveals no act of Congress which expressly

prohibits removal to a United States district

court of a FLSA suit originally filed in a

state court having jurisdiction thereof.

Therefore, pursuant to section 1441(a)

removal of FLSA actions should be permitted

without further inquiry.

Although no express provisions in the

FLSA or any other congressional enactment

exist prohibiting removal of FLSA suits to

a United States district court, a split of

authority exists among the federal decisions

whether such actions originally commenced in

a state court having jurisdiction thereof

may be removed to a United States district

court. Compare Nieves v. Deshler, 561 F.

Supp. 1173 (D.P.R. 1983) (removable); Taylor

v. Brown, 461 F. Supp. 559 (E.D. Tenn. 1978)

(removable); Barrett v. McDonald's of Okla-

homa City, 419 F. Supp. 792 (W.D. Okla. 1976)

(removable); Hill v. Moss-American, Inc.,

309 F. Supp. 1175 (N.D. Miss. 1970) (removable)

with Carter v. Hill and Hill Truck Lines,

Inc., 259 F. Supp. 429 (S.D. Tex. 1966) (non-

removable); Wilkins v. Renault Southwest,

Inc., 227 F. Supp. 647 (N.D. Tex. 1964)

(nonremovable); Zorilla v. Puerto Rican

Cement Co., 227 F. Supp. 159 (D.P.R. 1964)

(monremovable). See generally, Annot., 10

ALR Fed. 919 (1972). Prior to the

September 1, 1948 amendment of §1441(a), the

majority of the decisions held that a FLSA

suit originally filed in state court could

not be removed to a United States district

court. Id. Subsequent to that amendment,

however, the majority of decisions holds

that an action so situated is removable. Id.

Because "[a]n order remanding a case to the

State court from which it was removed is not

reviewable on appeal or otherwise", 28

U.S.C.A. §1447(c), and the exception to this

rule created in Thermtron Products, Inc. v.

Hermansdorfer, 423 U.S. 336, 46 L. Ed. 2d

542, 96 S. Ct. 584 (1976), discussed above,

was not announced until 1976, no decisions

of this Court or of the United States Courts

of Appeals on this question have been rendered

since 1948. Prior to 1948, there were only

two United States Courts of Appeals de-

cisions on this question. One of the de-

”

cisions, discussed below, implicitly allows

removal of a FLSA suit, whereas the other

holds that a FLSA suit may not be removed,

but is based upon considerations no longer

valid in view of the 1948 amendment to the

removal statute. For ease of understanding,

the discussion of the cases wherein this

question was litigated will be divided among

those decided prior to the September l, 1948,

the effective date of the amendment of the

removal statute, and those rendered subsequent

to that time.

a. Pre-1948 decisions permitting

removal.

Of all of the decisions issued by the

United States district courts prior to the

1948 amendment of the removal statute, 28

U.S.C. §1441(a), which permit removal of FLSA

suits probably the most important are those

which allow removal on the ground that there

is no expression of congressional intent

within the FLSA or any other congressional

enactment to deny removal of FLSA suits.

See, e.g., Swettman v. Remington Rand, Inc.,

65 F. Supp. 940 (S. D. Ill. 1946); Sonnesyn

v. Federal Cartridge Co., 54 F. Supp. 29

(D. Minn. 1944); Harris v. Reno Oil Co.,

48 F. Supp. 908 (N. D. Tex. 1943); McGarrigle

v. Ll West Forty-Second Street Corp., 48 F.

Supp. 710 (S.D.N.Y. 1942); Owens v. Green-

ville News-Piedmont, 43 F. Supp. 785 (W.D.S.C.

1942). These decisions are quite instructive

in light of the subsequent 1948 amendment to

§1441(a) which allows removal "[e]xcept as

otherwise expressly provided for by Act of

Congress". Furthermore, several courts have

opined that if Congress had intended to deny

removal to a United States district court of

an action under the FLSA, it would have

expressly stated such an intent. See, e.g.,

Sonnesyn v. Federal Cartridge Co., 54 F. Supp.

29 (D. Minn. 1944); Harris v. Reno Oil Company,

48 F. Supp. 908 (N.D. Tex. 1943); Owens v.

Greenville News-Piedmont, 43 F. Supp. 785

(W.D.S.C. 1942).

An equally compelling reason for

allowing removal of a FLSA suit is that by

the express provisions of §216(b) of the FLSA

concurrent jurisdiction over FLSA suits is

granted to both the state and federal courts.

Cox v. Gatliff Coal Co., 52 F. Supp. 482

(E.D. Ky. 1943); Owens v. Greenville News-

Piedmont, 43 F. Supp. 785 (W.D.S.C. 1942);

Sheridan v. Leitner, 44 N.Y.S. 2d 570 (City

Court of N.Y. 1943).

Contrary to several of the pre-1948 de-

cisions which prohibited removal of FLSA suits

on the basis of the express language in

section 216(b) of the FLSA, several pre-1948

federal district court decisions expressly

hold that the language ''may be maintained in

any court of competent jurisdiction" in §216

(b) does not mean that a FLSA suit originally

filed in state court must be prosecuted to

final judgment in that court. See, Swettman

v. Remington Rand, Inc., 65 F. Supp. 940 (D.

C. Ill. 1946); Sonnesyn v. Federal Cartridge

Co., 54 F. Supp. 29 (D. Minn. 1944); Cox v.

Gatliff Coal Co., 52 F. Supp. 482 (E.D. Ky.

1943); Harris v. Reno Oil Co., 48 -F. Supp.

908 (N. D. Tex. 1943); Ricciardi v. Lazzara

Baking Corp., 32 F. Supp. 956 (D. N.J. 1940).

Any argument that Respondents may make

to the effect that the "may be maintained

in any court of competent jurisdiction”

language of §216(b) of the FLSA impliedly

repealed the removal statute is likewise

indefensible in light of the following

authorities: Aaker v. Kaiser Co., Inc., 74

F. Supp. 55 (D. Ore. 1947); Sonnesyn v.

Federal Cartridge Co., 54 F. Supp. 29 (D.

Minn. 1944); Cox v. Gatliff Coal Co., 52 F.

Supp. 482 (E. D. Ky. 1943); Owens v. Greenville

News-Piedmont, 43 F. Supp. 785 (W.D.S.C. 1942).

Before turning to a discussion of the

post 1948 decisions, Petitioner cites the

United States Court of Appeals for the Tenth

Circuit's decision in Mid-Continent Pipe Line

Co. v. Hargrave, 129 F. 2d 655 (10th Cir.

1942) as implied authority from the proposi-

tion that removal of FLSA suits originally

filed in state court is appropriate:

Instead of Congress limiting

to the Federal Courts jurisdiction

of an action for the recovery of

overtime compensation in

liquidated damages under the

Act, it expressly provided that

such an action may be maintained

in any Court of competent juris-

diction. And the District Courts

in Oklahoma are courts of general

jurisdiction Section 16(b), supra,

and Title 12, §223, supra, construed

together, clearly authorized the

maintenance of the action in the

State court in the name of the

agent, and it was likewise main-

tainable in that matter after

removal.

120 F. 2d at 659 (emphasis added). Although

the Court of Appeals for the Tenth Circuit

in Hargrave was determining who was the real

party in interest in the action, the last

portion of the above-quoted ruling indicates

that =he court implicitly approved removal

of the FLSA suit under review from the Okla-

homa state court to the Oklahoma United

States District Court.

b. Post-1948 decisions permitting

removal.

The majority of the decisions of the

United States district courts issued sub-

sequent to the September 1, 1948 amendment

to §1441(a) hold that FLSA suits originally

filed in state court may be removed to a

United States district court. The comment-

ators note the split of authority on the

question, but imply that such actions should

be removable. See 1A Moore's Federal Practice,

9¥0.167[5] at 472 (2d rev. ed. 1983) ("Prior

to the Code of 1948 there were conflicting

decisions as to whether removal of a state

action was prevented by the provision of the

Act that the employee's suit ''may be main-

tained in any court of competent jurisdic-

tion.'"' This ambiguous phrase is certainly

not an express provision against removal

within the meaning of §1441 of the Code of

1948, but the courts still remain divided on

the question removability.'') (emphasis added) ;

See 14 C. Wright and A. Miller, Federal

Practice and Procedure §3729 (1976).

As noted above, the general removal

statute, 28 U.S.C.A. §1441(a) was revised by

amendment effective September 1, 1948. The

predecessor to section 1441, 28 U.S.C.A §71,

as amended, provided as follows:

Removal of suits from State

Courts. Any suits of a civil

mature, at law of in equity,

arising under the Constitution or

laws of the United States, or

treaties made, or which shall be

made, under their authority,

of which the District Courts

of the United States are given

original jurisdiction, and any

State Court may be removed by

the Defendant or Defendants

therein to the District Court of

the United States for the proper

district.

As of September 1, 1948, section 1441l(a) of

Title 28 of the United States Code Annotated

replaced former section 71 with the following

language:

(a) Except as otherwise

exprssly provided by Act of

Congress, any civil action brought

in a State court of which the

district courts of the United

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."

(emphasis added). Thus the major change in

the general removal statute effectuated

by the amendment effective September 1, 1948

was to provide that all etvil actions

brought in state courts of which the United

States district courts have original

jurisdiction may be removed "except as

otherwise expressly provided by Act of

Congress.'' This amendment is very important

in resolving the question of whether FLSA

suits are removable as it is a clear expres-

sion of Congressional intent.

Petitioner's research reveals that since

the 1948 amendment of §144l(a), no less than

twelve decisions of continuing validity have

been rendered by United States district

courts sustaining the removal of a FLSA suit

originally filed in state court. Nieves v.

Deshler, 561 F. Supp. 1173 (D.P.R. 1983);

Taylor v. Brown, 461 F. Supp. 559 (E:D. Tenn.

1978); Barrett v. McDonald's of Oklahoma City,

419 F. Supp. 792 (W.D. Okla. 1976); Anthony

v. West Coast Drug Co., 331 F. Supp. 1279

(W. D. Wash. 1971); Hill v. Moss-American,

Inc.; 309 F. Supp. 1175 (N.D. Miss. 1970);

Goette: v. Glenn Berry Mfrs., Inc., 236 F.

Supp. 884 (N.D. Okla. 1964); Niswander v.

Paul Hardeman, Inc., 223 F. Supp. 74 (E.D.

Ark. 1963); Buckles v. Morristown Kayo Co.,

132 F. Supp. 555 (E.D. Tenn. 1955); Rossi

v. Singer Sewing Machine Co., 127 F. Supp.

53 (D. Conn. 1954); Green v. Fluor Corp.,

122 F. Supp. 224 (S.D.N.Y. 1954); Asher v.

William L. Crow Construction Co., 118 F. Supp.

495 (S.D.N.Y. 1953); Korell v. Bymart, Inc.,

101 F. Supp. 185 (E.D.N.Y. 1951). As was the

central issue prior to the 1948 amendment to

the removal statute, the primary consideration

in resolution of the issue remains Con-

gressional intent.

Thus, the fact that the FLSA contains

no provision either allowing or prohibiting

removal, Hill v. Moss-American, Inc., 309 F.

Supp. 1175 (N.D. Miss. 1970); Goettel v.

Glenn Berry Mfrs. Inc., 236 F. Supp. 884

(N.D. Okla. 1964); the fact that it is duty

of Congress to expressly prohibit removal,

Hill v. Moss-American, Inc., 309 F. Supp.

1175 (N.D. Miss. 1970); the fact that section

1441(a) was specificaliy revised in 1948,

Rossi v. Singer Sewing Machine Co., 127 F.

Supp. 53 (D. Conn. 1954), with knowledge of

prior decisions construing the removability

of FLSA suits, Korell v. Bymart, Inc., 101 F.

Supp. 185 (E.D.N.Y. 1951); the fact that no

act of Congress expressly prohibits removal,

Buckles v. Morristown Kayo Co., 132 F. Supp.

555 (E.D. Tenn. 1955); and the fact that

denial of removability of other types of

actions has been done in an unequivocal

manner, Hill v. Moss-American, Inc., 309 F.

Supp. 1175 (N.D. Miss. 1970), have all been

used as bases for sustaining the removal to

the United States district courts of FLSA

actions originally filed in state court.

Removal has also been upheld on the

ground that the removal statute is controlling

over the "may be maintained in any court of

puackant jurisdiction" provision of section

216(b) of the FLSA. See, Niswander v. Paul

Hardeman, Inc., 223 F. Supp. 74 (E.D. Ark.

1963); Rossi v. Singer Sewing Machine Co.,

127 F. Supp. 53 (D. Conn. 1954). Furthermore,

in light of the 1948 amendment to §1441(a),

the word "maintain" as used in section 216(b)

of the FLSA which had previously been the

source of much litigation, has been held to

be of no real importance. See, Hill v. Moss-

American, Inc., 309 F. Supp. 1175 (N.D. Miss.

1970); Rossi v. Singer Sewing Machine Co., 127

F. Supp. 53 (D. Conn. 1954).

Before concluding discussion of the post-

1948 decisions permitting removal to the

United States district courts of a PLSA

action originally filed in state court.

especial discussion is merited of the most

recent district court opinion out of the

Fifth Circuit litigating this issue. Be-

cause the Court of Appeals was formerly

within the Fifth Circuit, this decision,

although not controlling, was certainly

instructive. See, Bonner v. City of Prichard,

661 F. 2d 1206 (llth Cir. 1961).

In Hill v. Moss-American, Inc., 309 F.

Supp. 1175 (N. D. Miss. 1970) the United

States District Court for the Northern

District of Mississippi denied a plaintiff's

motion to remand a FLSA suit to state court.

Recognizing that the federal removal statute

had been amended in 1948 and that because

numerous federal courts were split on the

issue before it and "'the choice for [it] is

to follow [its] own rule, which is not yet

settled by precedent within the district

or by the Court of Appeals for the Fifth

Circuit", 309 F. Supp. at 1177, the court

went on to rule that congressional intent

was clear that their FLSA suits are removable:

It is significant to us that in

all other cases of original jurisdiction

where Congress has denied removability,

it has done so in clear and unmistakable

words. Having legislated in various

fields in pees, Mee. arin geod activity

and having created new rights in many

of them, Congress has always unequivoc-

ably manifested its purpose if access

to federal courts through removal is

to be barred.

Quite a different situation obtains

in the case of the FLS Act. No mention

of removal was made in the Act iself

and no reference is made to it in the

general removal or other Federal

Statutes. By the amendatory language

of §1441(a) removal jurisdiction

exists in any case of which the federal

district court has original jurisdiction

except as otherwise expressly provided

by act of Congress. The command of this

language is indisputedly clear so that

nothing short of an express statutory

provision may preclude removal. This

renders, in our view, irrelevant the

correct meaning of the word "maintain"

which is susceptible of two possible,

reasonable interpretations, either

to commence or to prosecute to a con-

clusion where neither connotation

expressly negatives removal. We must

reject the construction of the word or

words which would imply a Congressional

intent against removal since Congress

itself has declared that denial of

removal must be "expressly provided.”

Although we acknowledge that good

policy reasons might be advanced for

allowing the employees to select the

forum for this kind of litigation and

prevent de.ay and possible annoyance by

forbidding the employee to remove the

action to federal court, we were not

persuaded that Congress has yet adopted

such legislation, and that it is up to

Congress, and not this court, to do so.

Nor can one fairly categorize FLS

actions. Barring removal of FLSA cases

will shut out controversies involving

dollar amounts ranging from quite large

to very small, concerning inter-

pretations of an Act of Congress

ranging from difficult to routine,

between persons who may or may not

be of diverse citizenship, in

localities where the congestion

of trial dockets as between state and

federal courts may be great or unre-

markable. These and various other

considerations must be addressed to

Congress which has thus far en-

unciated a statutory policy of

allowing removal unless it clearly

and directly ("expressly") provides

otherwise. Granting that Congress

has indicated its wish in other

legislation to reduce the present

congestion of federal courts by adopt-

ing a policy limiting federal court

jurisdiction in the general field of

employee compensation nevertheless in

FLS wage cases it is the prerogative of

Congress and not this court, to foreclose

removal.

Motion to remand is denied.

309 F. Supp. 1177-78 (emphasis in original).

The analysis, logic and reasoning of the Hill

opinion is unassialable and Petitioner urges

this Court to adopt its reasoning.

As an additional basis for its position

that FLSA suits may be removed to the United

States district courts, Petitioner brings to

the Court's attention that in numerous in-

stances where Congress has desired to pro-

hibit removal of actions. it has done so by

an express legislative act. See,, 28 U.S.C.A.

§1445(a); 28 U.S.C.A. §1445(b); 28 U.S.C.A.

§1445(c); 15 U.S.A. §77(v) (a); 46 U.S.C.A.

§688.

In several recent decisions various

federal courts have held that because no express

congressional intent prohibiting removal could

be found, removal to a United States district

court of claims asserted under various federal

statutes was permissible. The leading decision

on this point is that of the United States Court

of Appeals for the Fifth Circuit in Baldwin

v. Sears, Roebuck & Co., 667 F. 2d 458

(Sth Cir. 1982) in which the Fifth Circuit

addressed the removability of suits under

the Age Discrimination in Employment Act

(ADEA), 29 U.S.C.A. §§621 et. seq.

Affirming the district court decision re-

fusing to remand the action the Fifth

Circuit ruled:

Unless, therefore, there is an express

declaration by Congress to the contrary,

all types of civil actions, in which

there is concurrent original juris-

diction in both federal and state

courts, are removable. It is un-

disputed that a feceral court would

have Original jurisdiction of this

action.

Section 7(c) of the ADEA provides

that: '[a]ny aggrieved person

may bring a civil action in any

court of competent jurisdiction

29 U.S.C. §626(c)(1).

Examining this specific language

contained in ADEA, we note that Congress

chosé t6 use the words, "...may bring

a civil action in any court of com-

petent jurisdiction. ..." 29 U.S.C.

§626(c)(1). This lan e clearly

suggestes that a plaintiff may in-

stitute suit based on the ADEA in

either state or federal court. It

does not indicate an intent on the

part of Congress, however, to allow

plaintiff to prosecute this suit

to final judgment in that court.

In short, we find no express

prohibition against removal

pursuant to 28 U.S.C. §1441(a).

Accordingly, the District Court's

refusal to remand the case to the

Mississippi State Court was proper.

667 F. 2d at 459-61. (emphasis added).

Other recent cases on this point

also merit the Court's attention. See,

e.g., McConnell v. Marine Engineers Bene-

ficial Ass'n., 528 F. Supp. 770 (N.D. Cal.

1981); Colin K. v. Schmidt, 528 F. Supp.

355, 356-57 (D.R.I. 1981); Sicinski v. Re-

liance Funding Corp., 461 F. Supp. 649 (S.D.

N.Y. 1978); Jacobi v. High Point Label, Inc.,

442 F. Supp. 518 (N.D.N.C. 1977); Haun v.

Retail Credit Company, 420 F. Supp. 859, 863

(W.D. Pa. 1976).

Thus, it is evident that when Congress

intends to prohibit removal of an action

from state court to a United States district

court, it has legislatively enacted such a

prohibition. Because Congress has enacted

no express legislative provision prohibiting

removal of FLSA suits to the United States

district courts, it follows that such suits

may be removed.

CONCLUSION

Because the Distric Court remanded the

action to the state court solely on the

basis of two prior unpublished remand

orders of the United States District Court

for the Northern District of Alabama and

not upon a ground established by 28 U.S.C.A.

§1447(c), the Court of Appeals erred in

ruling that it had no jurisdiction by which

to consider Petitioner's Petition for Writ

of Mandamus and Other Relief under this

Court's decision in Thermtron Products, Inc.

v._Hermansdorfer, 423 U. S. 335, 46 L. Ed.

2d 542, 96 S. Ct. 584 (1976). The Court

of Appeals also erred in so ruling because

an unresolved question of federal statutory

labor law of national importance was raised

by Petitioner's Petition for Writ of Man-

damus and Other Relief: whether a suit under

the FLSA originally filed in a state court

of competent jurisdiction is removable to

a United States District Court under the

federal removal statutes.

Because the Court of Appeal's ruling

that it had no jurisdiction by which to

entertain Petitioner's Petition for Writ

of Mandamus and Other Relief is in conflict

with this Court's decision in Thermtron

and because the Court of Appeal's

ruling implicitly affirmed the District

Court's resolution of a question of federal

statutory labor law of national importance

yet unresolved by this Court, and because

the District Court's and Court of Appeal's

resolution of this question was clearly

erroneous, a Writ of Certiorari must

issue from this Court to the Court of

Appeals directing it to (1) vacate its

June 30, 1983 order wherein it ruled that

it had no jurisdiction to review the April

13, 1983 order of the District Court which

remanded this action to the State Court,

(2) to order the District Court to vacate

its April 13, 1983 Order and accompanying

memorandum of decision remanding the action

from the District Court to the State Court,

(3) to order the District Court to enter an

Order ruling that the action was providently

and properly removed under original juris-

diction to the District Court, and (4) to

order the District Court to proceed to the

trial of the action.

Respectfully submitted,

saseiiaes | p—F

Frank K. Noojin, 7

Local Counsel for

Petitioner Record Data,

Inc., a corporation

200 Terry-Hutchens Bldg.

P. O. Box 287

Huntsville, AL 35804

Telephone No. (205) 533-3500

Counsel of Record for Petitioner

CERTIFICATE OF SERVICE

I, Frank K. Noojin, of Watts, Salmon,

Roberts, Manning & Noojin, Local Counsel for

Petitioner Record Data, Inc., a corporation

and Counsel of Record for Petitioner,

pursuant to Rules 28.2, 28.3 and 28.5 of

the Rules of the United States Supreme Court

hereby certify that I have this day served

three (3) copies of the foregoing Petition

For a Writ of Certiorari upon each of

the following parties who are all of the

parties required to be served with the same:

(1) the Honorable E. B. Haltom, Jr.,

Respondent; (2) Dennis E. O'Dell, attorney

for Respondent Jack F. Neal; and (3) Barton

J. Craig, attorney for Defendant Record

Data of Alabama, Inc., by mailing said

copies to them by depositing the same in

a United States post office, with first-

class (priority), postage prepaid at their

respective addresses at (1) the United States

Courthouse, 101 Holmes Avenue, Huntsville,

Alabama 35804; (2) 201 East Side Square,

Huntsville, Alabama 35801; and (3) 725 St.

Clair Avenue, N. W., Cleveland, Ohio 44113.

Done this the24th day of September,

1983.

vA ? ee owen FP

9 Pe? VA, MOL De)

Frank K. Noojin, ity.

Local Counsel for

Petitioner Record Data,

Inc., a corporation

200 Terry-Hutchens Bldg.

P. 0. Box 287

Huntsville, AL 35804

Telephone (205) 533-3500

Counsel of Record

for Petitioner

STATE OF ALABAMA )

COUNTY OF MADISON )

SWORN TO and subscribed before me on

this the 24th day of September, 1983.

Pee Ua eee “Notary Public

xi ae 4 Bk yee State of Alabama

mi ed So :*% County of Madison

: r,* —_ vr . :

Lorn Fe

APPENDIX

ORDER OF THE UNITED STATES

THE NORTHERN DIVISION OF

ALABAMA, NORTHEASTERN DIVISION

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JACK F. NEAL )

Plaintiff

-v- NO. CV 83-HM-5257-NE

a corporation, et

)

RECORD DATA, INC., )

)

al. )

)

Defendants

ORDER

It appearing to the court that this action

was removed improvidently and without juris-

diction for the reasons stated in the Memo-

randum of Decision filed contemporaneously

herewith, it is

ORDERED, ADJUDGED and DECREED that this

cause be and the same hereby is REMANDED to

the Circuit Court of Madison County, Alabama,

from whence it was removed.

The clerk of court is directed to send a

certified copy of this order of remand to the

clerk of such state court. Costs are taxed

against the removing serenaant,

A-

DONE and ORDERED this 13th day of April,

1983.

/s/ E. B. Haltom, Jr.

E. B. HALTON, JR.,

United States District Judge

MEMORANDUM OF DECISION OF

THE UNITED STATES

DISTRICT COURT FOR THE

NORTHERN paki a ALABAMA ,

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

JACK F. NEAL,

Plaintiff,

vs. NO.CV82-HM-5257-NE

RECORD DATA, INC.,

)

a corporation, et al. )

)

Defendants.

MEMORANDUM OF DECISION

This cause came on to be heard at the

scheduled motion docket of this court upon

motion of plaintiff to remand this cause to

the Circuit Court of Madison County, Alabama.

Plaintiff originally brought this action for

overtime compensation under the Fair Labor

Standards Act in the Circuit Court of Madison

County, Alabama. Defendant timely petitioned

this court for removal of the action to the

Northern District of Alabama, Northeastern

Division. In its petition defendant asserts

that this court has original jurisdiction

A-4

over this action pursuant to the provisions

of 28 U.S.C. §§1331 and 1332, and that this

action is properly removed pursuant to the

provisions of 28 U.S.C. §1441. Thereafter

plaintiff filed a motion to remand this

case to the Circuit Court of Madison County.

In his motion plaintiff argues that this

action may be maintained in any court of

competent jurisdiction pursuant to 29

U.S.C.A. §216(b) and thus the action is not

removable to federal district court under

28 U.S.C. §1441.

28 U.S.C. §1441(a) reads as follows:

Except as otherwise expressly

provided by Act of Congress, any

civil action brought in a State

court of which the district

courts of the United 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.

Since it is clear that this court

would have original jurisdiction over this

action, see 29 U.S.C. §216(b), and that

this court is admittedly the district court

A-5

of the United States for the district and

division embracing the place where such

action was pending, the narrow question left

for the court to determine is whether there

is an express provision by an Act of Congress

forbidding removal of actions brought

pursuant to the provisions of the Fair

Labor Standards Act, 29 U.S.C. §§201-219

(FLSA).

The enforcement provisions of the FLSA

are found in 29 U.S.C. §216, which provides

in pertinent part as follows:

An action to recover the liability

prescribed in either of the preceding

sentences may be maintained against

any employer (including a public

ageeh? in any Federal or State court

of competent jurisdiction by any one

or more employees for and in behalf

of himself or themselves and other

employees similarly situated.

29 U.S.C. §216(b).

There is substantial conflict among

the authorities on the issue of removal of

FLSA cases. See Bintrim v. Bruce-Merilees

Electric Company, 520 F.Supp. 1026 (W.D. Pa.

1981); Griffin v. Hooper-Holmes Bureau,

A-6

-Inc., 413 F..Supp. 107 (M. D. Fla. 1976);

1A J. Moore, Moore's Federal Practice

10.167[{5] n.5 (2d ed. 1982) (impliedly

criticizing those cases not allowing re-

moval); 14 C. Wright, A. Miller, E. Cooper,

Federal Practice and Procedure §3729 (1976).

Disagreement centers around the interpreta-

tion of the language in 29 U.S.C. §216(b)

providing that an action may be "maintained"

against an employer in any Federal or State

court of competent jurisdiction. One line

of authority holds that by using the word

"maintained" Congress intended not only that

the action might be commenced in any court

of competent jurisdiction, but that it could

be continued until final judgment in the

court in which it was commenced. Johnson v.

Butler, 162 F. 2d 87 (8th Cir. 1947);

Bintrim, 520 F. Supp. at 1027; Wilkins v.

Renault Southwest, Inc., 227 F. Supp.

647 (N.D. Tex. 1964). These courts have

therefore viewed this language as an express

provision against removal within the meaning

of 28 U.S.C. §1441(a).

A-7

On the other hand, other courts have

allowed removal of FLSA cases, arguing that

the language in the FLSA permitting actions

to be "maintained" in either Federal or

State court (1) implies only that actions

may be commenced in either court, and does

mot grant a right to prosecute the case to

conclusion in the chosen forum, and (2)

does not constitute an express provision

prohibiting removal, as is required by the

general removal statute, 28 U.S.C. §1441l(a).

14 C. Wright, A. Miller, E. Cooper, Federal

Practice and Procedure §3729 (1976). See,

Hill v. Moss-American, Inc., 309 F. Supp.

1175 (N. D. Miss. 1970).

Defendant has filed a scholarly

brief in which it persuasively argues that

the better view favors removability of FLSA

cases. However, in Price v. Asplundth Tree

Expert Company, CA No. 64-284-S (N.D. Ala.

1964) (unpublished order--copy attached)

Judge Seybourn H. Lynne held that an action

under the FLSA was due to be remanded as

A-8

improvidently removed. This holding was

later followed by then Chief Judge Frank

H. McFadden in Goldkist, Inc. v. Black,

CV 80-M-1133-W (N.D. Ala. 1980) (unpublished

order--copy attached). Conceding that there

is meritorious argument to be made for

removal of FLSA cases, this member of the

court declines to depart from the precedent

of the United States District Court for

the Northern District of Alabama enumerated

above until such time as a definitive ruling

is made either by the United States Court of

Appeals for the Eleventh Circuit or by the

Supreme Court of the United States. Con-

sequently, the court holds that, this action

having been commenced in the state circuit

court, it was improvidently removed to this

court and must be remanded. In so holding,

the court concurs with the decisions of

Price and Goldkist, supra.

An appropriate order remanding this

action to the Circuit Court of Madison

County, Alabama will be entered.

A-9

April 13, 1983

/s/ E. B. Hatton, its

United States District

Judge

A-10

» co

. ll

£2) es ©

BOBBY JOE PRICE,

Plaintiff, CIVIL ACTION

vs. No. 64-284 <:

ASPLUNDTH TREE EXPERT

)

COMPANY, a corporation, )

)

Defendant.

This cause, coming on to be heard,

was submitted upon plaintiff's motion to_

remand. Brought under the provisions

of the Fair Labor Standards Act, 29

U.S.C.A., Section 201, et seq., this

action was improvidently removed to this

court. Wilkins v. Renault Southwest,

Inc., N.D., Texas, 227 F. Supp. 647

(1964), and cases therein discussed and

cited.

It is, accordingly, ORDERED, ADJUDGED,

and DECREED by the court that this action

be and the same is hereby remanded to the

Jefferson County Civil Court, from which

it was removed.

Done, this the 9th day of June,

1964.

/s/ Seybourn H. apone

A-1l

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

GOLDKIST, INC.,

Petitioner

CV 80-M-1133

)

vs. )

)

KAREN C. BLACK, )

)

Defendant.

ORDER

This cause came before the court on

plaintiff's motion to remand this action

to state court. Plaintiff seeks unpaid,

overtime compensation from defendant

employer under the Fair Labor Standards

Act. Jurisdiction in the state court is

based on 29 U.S.C. §216(b) which provides

that plaintiff's action "may be maintained

in any Federal or State court of

competent jurisdiction...."" Plaintiff

contends that the remand of this action to

state court is proper because section

216(b) is an express provision by Congress

authorizing plaintiff's suit, not only to

be brought, but to be "maintained" in

A-12

state court. The court is persuaded by

plaintiff's argument and by the precedent

of Judge Lynne in Price v. Asplundth Tree

Expert Co., C.A. No. 64-284-S (N. D. Ala.

1964), remanding to state court a case

arising out of the Fair Labor Standards

Act.

Accordingly, it is ORDERED, ADJUDGED

and DECREED that plaintiff's motion to

remand this action to state court be, and

the same hereby is, granted.

Done this 16th day of December,

1980.

/s/ Frank H. McFadden

Chief Judge

A-13

ORDER OF THE UNITED STATES

ELEVENTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 83-/320

IN RE:

RECORD DATA, INC., a corporation,

Petitioner.

On Petition for Writ of Mandamus and/or

Prohibition from the Northern District

of Alabama

Before HILL, KRAVITCH and HENDERSON,

Circuit Judges.

BY THE COURT:

IT IS ORDERED that the petition for

writ of mandamus and other relief is taken

under advisement. Petitioner, Record Data,

Inc., is directed to file a brief in this

court on or before June 13, 1983. Plaintiff

Jack F. Neal, is directed to file a response

on behalf of District Judge, together with

a brief on or before June 20, 1983. Until

A-14

}

further order of this court the parties

are enjoined from proceeding in the state

court.

ORDER OF THE UNITED

STATES COURT OF APPEALS

ELEVENTH CIRCUIT

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 83-/320

IN RE:

RECORD DATA, INC., a corporation,

Petitioner.

On Petition for Writ of Mandamus and/or

Prohibition from the Northern

District of Alabama

Before HILL, KRAVITCH and HENDERSON,

Circuit Judges.

BY THE COURT:

Concluding that the Court of Appeals

has no jurisdiction to review the remand

by mandamus or otherwise, the petition

for mandamus and/or prohibition is denied.

See 28 U.S.C. §1447(d).

The injunction, heretofore granted,

from proceeding in state court is

dissolved.

A-16

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.