# Petition — Record Data, Inc. v. United States District Court for the Northern District of Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0509%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1005 ## Text a 2 —————————— 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 ii 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, iv 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 vi 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 48 eee ee we ee ee ee eee Construction Co., 118 F. Supp. 495 (S.0.8.¥. i953). Roebuck & Co., 54 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 P (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 Pp . 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). ix 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 t 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). xi 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) XV 39 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 45 33 35 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 1 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- 3 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 4 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 7 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) 8 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 9 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 ). 10 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 11 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 12 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: 13 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 15 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 16 423 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 17 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 18 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). . 19 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 20 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. 21 (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 22 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. 23 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 24 (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. 25 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). 26 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 27 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. 28 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., 29 259 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 30 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: 31 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); 32 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 33 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 34 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. 35 3. IN DENYING PETITIONER'S PETITION FOR WRIT AMUY: THER RELIEF A A ION A 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: 36 (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 37 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) 38 (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- 39 ” 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., 40 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 41 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. 42 908 (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 43 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 a4 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 45 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 46 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., 47 132 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 48 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) 49 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. 50 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 51 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 52 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 53 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 54 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 55 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 56 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 57 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 58 = 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. * 4 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. 59 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 60 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_0509%3A1. Public record. Not legal advice.