# Amicus Curiae Brief — Breuer v. Jim's Concrete of Brevard, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 538 U.S. 691

## Text

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MAR 10 2003
No. 02-337

Jn the Supreme Court of the Gnited States

PHILLIP T. BREUER, PETITIONER

Vv.

JIM’S CONCRETE OF BREVARD

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

THEODORE B. OLSON

Solicitor General
Counsel of Record
EDWIN S. KNEEDLER
HOWARD M. RADZELY Deputy Solicitor General
Acting Solicitor of Labor LISA S. BLATT
ALLEN H. FELDMAN Assistant to the Solicitor
Associate Solicitor General
EDWARD D. SIEGER Department of Justice
KATIE M. STREETT Washington, D.C. 20530-0001
Attorneys (202) 514-2217
Department of Labor

Washington, D.C. 20210

30 P

QUESTION PRESENTED

The federal removal statute, 28 U.S.C. 1441(a),
provides that, “[e]xcept as otherwise expressly pro-
vided by Act of Congress,” any action in state court of
which the federal district courts also have jurisdiction
may be removed to federal district court. The Fair
Labor Standards Act of 1938, in 29 U.S.C. 216(b), pro-
vides that an action to recover liability under the Act
“may be maintained against any employer * * * in
any Federal or State court of competent jurisdiction by
any one or more employees.” The question presented is
whether such an action filed in state court under 29
U.S.C. 216(b) is subject to removal to federal court
under 28 U.S.C. 1441(a).

(I)

TABLE OF CONTENTS

Interest of the United States
Statement
Summary of argument
Argument:
Employee actions filed in state court under the
Fair Labor Standards Act may be removed to federal
court
A. The FLSA’s use of the word “maintain” does not
provide an express exception to removal
B. The FLSA’s use of the word “bring” in other
provisions does not suggest that the word “main-
tain” in Section 216(b) expressly bars removal
C. The principle that removal legislation should be
narrowly construed does not defeat a defendant’s
right to remove an action under Section 216(b) ......
D. Petitioner's reliance on subsequent legislative
history and policy arguments do not furnish -
a basis for finding that the FLSA expressly
bars removal
Conclusion ‘

TABLE OF AUTHORITIES
Cases:
American Fin. Co. v. Bostwick, 23 N.E. 656 (Mass.
1890)
Anson v. University of Tex. Health Sci. Ctr., 962 F.2d
539 (5th Cir. 1992)
Auco Corp. v. Aero Lodge, No.735, Int l Ass'n of
Machinists, 390 U.S. 557 (1968)
Bay Area Laundry & Dry Cleaning Pension Trust
Fund v. Ferbar Corp., 522 U.S. 192 (1997)
Boys Mkts., Inc. v. Retail Clerks Union, 398 U.S. 235
(1970)

(IID

IV

Cases—Continued:

Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800 (1976)

Cook County v. United States ex rel. Chandler,
No. 01-1572 (Mar. 10, 2003)

Cosme Nieves v. Deshler, 786 F. 2d 445 (Ist Cir.), cert.
denied, 479 U.S. 824 (1986)

Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 US. 437 (1987)

Custis v. United States, 511 U.S. 485 (1994)

Donovan v. University of Tex., 643 F 2d 1201
(5th Cir. 1981)

Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469
(1992)

George Moore Ice Cream Co. v. Rose, 289 U.S. 373
(1933)

Gregory v. Ashcroft, 501 U.S. 452 (1991)

Harris Trust & Sav. Bank v. Salomon Smith
Barney, Inc., 530 U.S. 238 (2000)

Hill v. Moss-American, Inc., 309 F. Supp. 1175 N. D.
Miss. 1970)

Hirschbiel v. Johnson, 118 F. Supp. 2d 908 (N. D.
Ind. 2000)

Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165
(1989)
INS v. St. Cyr, U.S. 289 (2001)

Johnson v. Butler Bros., 162 F 2d 87 (8th Cir.
1947)
Keil v. CIGNA, 978 F. Supp. 1365 (D. Colo. 1997) ..........
Lewis v. Lewis & Clark Marine, Inc., 531 U.S. 438
(2001)
Linthicum v. Calvin, 57 S.W.3d 855 (Mo. 2001)...............
Metropolitan Life Ins. Co. v. Taylor, 481 US. 58
(1987) —
Morton v. Mancari, 417 U.S. 535 (1974)

O Connell v. Champion Int'l Corp, 812 F 2d 393
(8th Cir. 1987)

Cases—Continued:

Palmore v. United States, 411 U.S. 389 (1973).
Posadas v. National City Bank, 296 U.S. 497

(1936)
Red Rock v. Henry, 106 U.S. 596 (1883) .
Rodriguez v. United States, 480 U.S. 522 (1987)
Rosencrans v. United States, 165 US. 257 (1897)
Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984) .........
Second Employers’ Liab. Cases, 223 U.S. 1 (1912) ...........
Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100

(1941)
Smallwood v. Gallardo, 275 U.S. 56 (1927).
TVA v. Hill, 487 U.S. 153 (1978)
United States v. Bass, 404 U.S. 336 (1971)
United States v. Borden Co., 308 U.S. 188

(1939)
United States v. Monsanto, 491 U.S. 600 (1989) ..............
United States v. Providence Journal Co., 485 U.S.

693 (1988) 21
United States v. Shabani, 513 U.S. 10 (1994) 9
United States v. X-Citement Video, Inc., 513 U.S.

64 (1994) ; 26
Williams v. Jacksonville Terminal Co., 315 U.S. N

386 (1942)

Verger, Ex parte, 75 U.S. (8 Wall.) 85 (1868) 22

SBR RB a

=
ok N 8

8
—

Statutes and regulation:

14
Act of Mar. 3, 1875, ch. 137, § 2, 18 Stat. 470
Act of Mar. 3, 1897, ch. 372, § 4, 29 Stat. 622 (16 U.S.C. *
416)
Act of Apr. 5, 1910, ch. 143, 36 Stat. 291 (45 USC. *
56) a
Act of Mar. 3, 1911, ch. 231, § 28, 36 Stat. 1094
(28 U.S.C. 71 (9340 4, 14, 21
Act of Jan. 20, 1914, ch. 11, 38 Stat. 278 14

VI

Statutes and regulation—Continued:

Act of June 25, 1948, ch. 646, 62 Stat. 869:
28 U.S.C. 1292(b)

28 U.S.C. 1331

28 U.S.C. 1337

28 U.S.C. 1404

28 U.S.C. 1441 (€2 Stat. 937)
28 U.S.C. 1441(a)
28 U.S.C. 1441(b)

28 U.S.C. 1445

28 U.S.C. 1445(a)

28 U.S.C. 1445(b)

28 U.S.C. 1445(c)
28 U.S.C. 1446(a)

Act of Oct. 26, 1949, ch. 736, § 14, 63 Stat. 919

Age Discrimination in Employment Act of 1967,
29 U.S.C. 621 et seq.

29 U.S.C. 625

29 U.S.C. 626(b)

29 U.S.C. 626(c)

Americans with Disabilities Act of 1990, 42 U.S.C. 12101
et seq.

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e
et seq.

Employee Polygraph Protection Act of 1988, 29 U.S.C.
2005(c\(2)

Employee Retirement Income Security Act of 1974,
29 U.S.C. 1001 et seg.

29 U.S.C. 1132(aX1\B)

29 U.S.C. 1132(eX1)

Fair Labor Standards Act of 1938, ch. 676, 52 Stat.
1060 (29 U.S.C. 201 et seq.):
29 U.S.C. 204(f)

29 U.S.C. 211

29 U.S.C. 211(a)
29 U.S.C. 212(b)
29 U.S.C. 216

VII
Statutes and regulation Continued: Page
29 U.S.C. 216(b) passim
29 U.S. C. 216(c) 1, 16, 17, 18
29 U.S.C. 217 „ FT,
Fair Labor Standard Amendments of 1974, Pub. L.

No. 93-259, f 6(d)(1), 88 Stat. 61 24
Family and Medical Leave Act of 1993, 29 U.S.C.

2617(aX(2) 2
Jones Act, 46 U.S.C. App. 688 et seg.

46 U.S.C. App. 688(a) 7,10

46 U.S.C. App. 688(b) 11
Labor Management Relations Act, 1947, § 301,

29 U.S.C. 185 27
McCarran Amendment, 43 U.S.C. 666 23
Portal-to-Portal Act of 1947, ch. 52, § 5(a), 61 Stat. 87

(29 U.S.C. 256) 12, 20
Securities Act of 1933, ch. 38, 48 Stat. 86 (15 U.S.C.

77a et seg.) z

15 U.S.C. T7p(b) 11

15 U.S. C. a) (§ 22(a), 48 Stat. 86-87) 8, 14-15
7 U.S.C. 2108606) 10
7 USC. 2707(eX3) — 10
7 U.S. C. 3405(e) ~ 10
15 U.S.C. 78bb(f)(1) 11
15 U.S.C. 1719 x
15 U.S.C. 2805(a) 10
15 US.C. 3612
18 U.S.C. 371 9
18 U.S.C. 846 4
26 U.S.C. 7402(c) 10
26 U.S. C. 7422(a) 11
26 U.S.C. 7422(b) 11
29 U.S.C. 1451(a) 11
43 U.S.C. 620m 10
43 U.S.C. 1551(c) 10
46 U.S.C. App. 761{a) 10

46 U.S.C. App. 764 10

IX

VIII
Statutes and regulation Continued: P Mis
; * 140 Charles A. Wright et al., Federal Practice and
46 U.S.C. App. 1242(d) 10 Procedure (1998)
48 U.S.C. 14210 ) 11
Ala. Code § 6-3-20 (1993) 13
Alaska Stat. § 22.15.080 (Michie 1995) 13
Fla. Stat. Ann. § 47.122 (West 1994) 13 |
Wis. Stat. Ann. § 801.52 (West 1994) 13
29 C. F. R. 1626.15(a) 2
Miscellaneous:
American Heritage Dictionary (4th ed. 2000) 16
Black's Law Dictionary:
(3d ed. 1933)
(7th ed. 1999)

82 Cong. Rec. 1834-1835 (1937)
83 Cong. Rec. 7441-7450 (1938)
95 Cong. Rec. (1949):

p. 12,487

p. 12,488
H.R. Conf. Rep. No. 2738, 75th Cong., 3d Sess.

(1938) mp
H.R. Conf. Rep. No. 326, 80th Cong., Ist Sess.
~ (1947)
H.R. Conf. Rep. No. 327, 87th Cong., Ist Sess.

(1961)
H.R. Rep. No. 1452, 75th Cong., Ist Sess. (1937) ............
H.R. Rep. No. 2182, 75th Cong., 3d Sess. (1988)
H.R. Rep. No. 75, 87th Cong., Ist Sess. (1961)
H.R. Rep. No. 913, 98d Cong., 2d Sess. (1974)
1A James W. Moore, Moore’s Federal Practice

(2d ed. 1996)
S8. 2475, 75th Cong., Ist Sess. (1937)
S. Rep. No. 884, 75th Cong., Ist Sess. (1937)
S. Rep. No. 48, 80th Cong., Ist Sess. (1947)
S. Rep. No. 1830, 85th Cong., 2d Sess. (1958)
S. Rep. No. 145, 87th Cong., Ist Sess. (1961) . 18,
S. Rep. No. 690, 98d Cong., 2d Sess. (1974)
Webster's (Third) New International Dictionary

(1993)

—
2

&

5
3
„ BSS 8 „ KRRELS e LL EES

In the Supreme Court of the United States

No. 02-337
PHILLIP T. BREUER, PETITIONER

Vv.

JIM’S CONCRETE OF BREVARD

ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

The Secretary of Labor is charged with the re-
sponsibility of implementing and enforcing the Fair
Labor Standards Act of 1938 (FLSA). See, e.g., 29
U.S.C. 211, 216(c). The FLSA also authorizes private
actions by employees to recover unpaid wages and
liquidated damages for violations of the Act. 29 U.S.C.
216(b). The question presented is whether an em-
ployee’s action that is filed in state court under 29
U.S.C. 216(b) is subject to removal to federal court
under 28 U.S.C. 1441(a). The Secretary has an interest
in ensuring that 29 U.S.C. 216 is interpreted correctly
and in a way that is consistent with the enforcement

(1)

2

objectives of the FLSA. The Secretary of Labor also
has an interest in this case because the Court’s decision
is likely to determine the right of removal under two
other statutes that the Secretary administers that are
worded similarly to 29 U.S.C. 216(b), the Employee
Polygraph Protection Act of 1988, 29 U.S.C. 2005(c)(2),
and the Family and Medical Leave Act of 1993 (FMLA),
29 U.S.C. 2617(a)(2).

This Court’s decision also may affect whether a
defendant may remove an action brought under the
Age Discrimination in Employment Act of 1967
(ADEA), 29 U.S.C. 621 et seq., which is administered by
the Equal Employment Opportunity Commission.
29 U.S.C. 625; 29 C.F.R. 1626.15(a). The ADEA pro-
vides that an aggrieved person “may bring a civil action
in any court of competent jurisdiction,” 29 U.S.C.
626(c), and that the Act “shall be enforced in accordance
with the powers, remedies, and procedures provided in
29 U.S.C. 216].” 29 U.S.C. 626(b).

STATEMENT

1. Petitioner sued respondent, his former employer,
in Florida state court for unpaid overtime wages, liqui-
dated damages, prejudgment interest, and attorney’s
fees under the FLSA, 29 U.S.C. 216(b). Pet. App. la-
2a. Section 216(b) makes an employer that violates the
minimum wage and overtime provisions of the Act
liable to the affected employees “in the amount of their
unpaid minimum wages, or their unpaid overtime com-
pensation, as the case may be, and in an additional
equal amount as liquidated damages.” 29 U.S.C. 216(b).
Section 216(b) further provides that Jaln action to
recover the liability prescribed [in Section 216(b)] may
be maintained against any employer (including a public
agency) in any Federal or State court of competent

3

jurisdiction by any one or more employees.” 29 U.S.C.
216(b).

— removed the action to the United States
District Court for the Middle District of Florida pur-
suant to 28 U.S.C. 1441. Pet. App. 2a. That section pro-
vides that, “[e]xcept as otherwise expressly provided
by Act of Congress,” an action of which the federal dis-
trict courts have original jurisdiction may be removed
by the defendant to federal district court. 28 U.S. C.
1441(a). Petitioner moved to remand the case, arguing
that the language in the FLSA stating that an action
“may be maintained” in state or federal court consti-
tutes an “expressly provided” exception to the right of
removal under 28 U.S.C. 1441(a). Pet. App. 2a.

2. The district court denied petitioner’s motion to
remand, and certified the issue for interlocutory appeal
under 28 U.S.C. 1292(b). Pet. App. 2a, 8a-9a.

3. The court of appeals affirmed in a per curiam
opinion. Pet. App. la-6a. The court of appeals
“adopt{ed] the reasoning” of the First Circuit in Cosme
Nieves v. Deshler, 786 F.2d 445, cert. denied, 479 U.S.
824 (1986), which “held that without an ‘explicit statu-
tory directive by Congress,’ FLSA cases may be
removed from state court to federal court, and that
§ 216(b) was not such an express statutory prohibition
against removal.” Pet. App. 3a (quoting Cosme Nieves,
786 F.2d at 451). The court of appeals observed that, in
other statutes where Congress has expressly prohib-
ited removal, “it did so in direct, unequivocal language.
Id. at 5a.

SUMMARY OF ARGUMENT
Suits under the Fair Labor Standards Act are ones

over which federal courts unquestionably have original
subject matter jurisdiction. 29 U.S.C. 216(b); 28 US.C.

4

1331, 1337. As such, the federal removal statute, 28
U.S.C. 1441(a), authorizes removal of such actions
“except as otherwise expressly provided by Act of Con-
gress.” The provision of the FLSA authorizing em-
ployee actions, 29 U.S.C. 216(b), provides that Jan
action to recover * * * may be maintained against any
employer * * * in any Federal or State court of com-
petent jurisdiction.” That language does not expressly
prohibit removal, as other federal statutes have done
when Congress intended to foreclose a federal court’s
removal jurisdiction. 3

The word “maintain” in Section 216(b) does not, ex-
pressly or otherwise, communicate an intent to fore-
close removal. By authorizing an employee to maintain
suit in state or federal court, Section 216(b) provides a
right of action over which federal and state courts have
concurrent jurisdiction. Although the word maintain
may imply a right to litigate a cause of action to final
judgment, removal of an action does not impair that
right; removal merely transfers the case from state
court to federal court, where the employee’s right of
action may be litigated to final judgment. Moreover,
Congress enacted the FLSA against the backdrop of
the defendant’s long-standing right to remove “[aJjny”
suit arising under federal law, Act of Mar. 3, 1911, ch.
231, § 28, 36 Stat. 1094 (codified at 28 U.S.C. 71 (1934)),
and Congress therefore presumably intended that
employee actions filed in state court would be subject to
the defendant’s pre-existing right of removal. Peti-
tioner’s remaining contentions also do not provide a
basis for concluding that the FLSA expressly prohibits
removal.

—

ARGUMENT

EMPLOYEE ACTIONS FILED IN STATE COURT
UNDER THE FAIR LABOR STANDARDS ACT MAY
BE REMOVED TO FEDERAL COURT

The general removal statute, 28 U.S.C. 1441, pro-
vides that, “[e]xcept as otherwise expressly provided
by Act of Congress, any civil action brought in a State
court of which the district courts of the United States
have original jurisdiction, may be removed by the
defendant * * * to the district court of the United
States.“ 28 U.S.C. 1441(a). The removal statute also
provides that “[aJny civil action of which the district
courts have original jurisdiction founded on a claim or
right arising under the * * * laws of the United
States shall be removable without regard to the citizen-
ship or residence of the parties.” 28 U.S.C. 1441(b).

Employee actions under the FLEA, 29 U.S.C. 216(b),
are indisputably within the original jurisdiction of the
district courts of the United States. By providing in 29
U.S.C. 216(b) that an employee action “may be main-
tained * in any Federal court of competent
jurisdiction,” the Act confers jurisdiction on federal
courts over FLSA claims. Williams v. Jacksonville
Terminal Co., 315 U.S. 386, 390 & n.3 (1942). Moreover,
because the FLSA is an Act of Congress regulating
commerce, federal courts have federal question juris-
diction, 28 U.S.C. 1331, 1337, over suits brought to en-
force the FLSA. Accordingly, employee actions under
the FLSA are subject to removal unless the FLSA
“expressly provideſs]“ an exception to removal. 28

6

U.S.C. 1441(a). Nothing in the FLSA, however, con-
tains an express bar to removal.’

A. The FLSA’s Use Of The Word “Maintain” Does Not
Provide An Express Exception To Removal

1. Section 1441(a) authorizes removal of civil suits
within a federal district court’s original jurisdiction
unless removal is “expressly” foreclosed by an Act of
Congress. The ordinary or common understanding of
the word “expressly” is “(cJlearly and unmistakably
communicated; directly stated.” Black’s Law Dic-
tionary 601 (7th ed. 1999); Webster’s (Third) New Inter-
national Dictionary 803 (1993) (“in direct or unmis-
takable terms * * * explicitly, definitely, directly”).
Thus, the statutory text must be explicit in foreclosing
removal of an action otherwise within a federal court’s
removal jurisdiction. As this Court has explained in
other contexts, “the requirement of clear statement
assures that the legislature has in fact faced, and in-
tended to bring into issue, the critical matters involved
in the judicial decision.” Gregory v. Ashcroft, 501 U.S.
452, 461 (1991) (quoting United States v. Bass, 404 U.S.
336, 349 (1971)).

In 1947, the Department of Labor, on behalf of the Admin-
istrator of the Wage and Hour Division, filed an amicus brief in the
Eighth Circuit in Johnson v. Butler Bros., 162 F.2d 87 (1947),
_ arguing that the policies underlying the FLSA and the text of the
Act supported the conclusion that an employee may maintain an
action under 29 U.S.C. 216(b) without the possibility of -emoval of
the suit to federal court. Since that time, Congress has amended
the removal statute to provide that cases falling within the federal
court’s original jurisdiction are subject to removal le kcept as
otherwise expressly provided by Act of Congress.” Act of June 25,
1948, ch. 646, 62 Stat. 937. In light of that amendment, and upon
further consideration, the Secretary has concluded that FLSA
actions brought by employees are subject to removal.

7

Section 1441(a)’s requirement of an express bar to
removal has been satisfied in numerous other instances
in which Congress has foreclosed removal “in direct,
unequivocal language.” Pet. App. 5a. Thus, 28 U.S.C.
1445 is entitled “/nJonremovable actions” and provides:

(a) A civil action in any State court against a rail-
road or its receivers or trustees, arising under [the
Federal Employers’ Liability Act (FELA), 45
U.S.C. 51 et seg. l, may not be removed to any dis-
trict court of the United States.

(b) A civil action in any State court against a
carrier or its receivers or trustees to recover dam-
ages for delay, loss, or injury of shipments, arising
under section 11706 or 14706 of title 49, may not be
removed to any district court of the United States
unless the matter in controversy exceeds $10,000,
exclusive of interest and costs.

(c) A civil action in any State court arising under
the workmen’s compensation laws of such State
may not be removed to any district court of the
United States.

(d) A civil action in any State court arising under
section 40302 of the Violence Against Women Act of
1994 may not be removed to any district court of the
United States.
28 U.S.C. 1445 (emphasis added); see also Lewis v.
Lewis & Clark Marine, Inc., 581 U.S. 438, 455 (2001)
(action under the Jones Act, 46 U.S.C. App. 688(a), is
not subject to removal because the Jones Act incor-
porates the FELA’s prohibition against removal).
Congress elsewhere has used similarly explicit
language to foreclose the exercise of the federal court’s

es

8

removal jurisdiction. 15 U.S.C. 77v(a) (“No case arising
under this subchapter [of the Securities Act of 1933]
and brought in any State court of competent juris-
diction shall be removed to any court of the United
States.”) (emphasis added); 15 U.S.C. 1719 (“No case
arising under [Interstate Land Sales Full Disclosure
Act] and brought in any State court of competent
jurisdiction shall be removed to any court of the United
States, except where the United States or any officer or
employee of the United States in his official capacity is
a party.”) (emphasis added); 15 U.S.C. 3612 (“No case
arising under [the Condcminium and Cooperative
Abuse Relief Act of 1980] and brought in any State
court of competent jurisdiction shall be removed to any
court of the United States, except where any officer or
employee of the United States in his official capacity is
a party.”) (emphasis added).

As a basis for finding an express exception to
removal, petitioner relies on the provision in the FLSA
that authorizes employee actions, 29 U.S.C. 216(b),
which provides that “[aJn action to recover * 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.” 29 U.S.C.
216(b). That language, however, does not even intimate
that it is concerned with the issue of removal, much less
provide the express exception to the right of removal
that Congress has provided in other statutes. See Hill
v. Moss-American, Inc., 309 F. Supp. 1175, 1178 (N.D.
Miss. 1970) (“No mention of removal is made in the
[FLSA] itself and no reference is made to it in the
general removal or cther federal statutes.”); 1A James
W. Moore, Moore’s Federal Practice J 0.167[5), at 472
(2d ed. 1996) (The provision of the [FLSA] that the
employee’s suit ‘may be maintained in any court of

9

competent jurisdiction’ * * lis an] ambiguous phrase
[and] is certainly not an express provision against
removal within the meaning of § 1441.”); see also 14C
Charles A. Wright et al., Federal Practice and Pro-
cedure § 3729, at 235 (1998) — * “use of the
ambiguous term ‘maintain’ in the statute’).

This Court has recognized that, where Congress has
given explicit treatment to an issue in other statutes,
the absence of similar language in the particular statute
at hand is strong evidence bearing on congressional
intent. E.g., United States v. Shabani, 513 U.S. 10, 14
(1994) (in light of “explicit requirement” of overt act
requirement in general conspiracy statute, 18 US.C.
371, Congress’s “silence” on the issue in drug conspir-
acy statute, 18 U.S.C. 846, “speaks volumes”); accord
Custis v. United States, 511 U.S. 485, 492 (1994); Pal-
more v. United States, 411 U.S. 389, 395 & n.5 (1973).
That same principle is equally true here. “If Congress
wished to give plaintiffs an absolute choice of forum, it
has shown itself capable of doing so in unmistakable
terms, and it could easily have done so here.” Cosme
Nieves, 786 F.2d at 451 (footnote omitted).

2. Petitioner argues (Br. 8, 30, 31) that the require-
ment in 28 U.S.C. 1441(a) that a prohibition against
removal be “expressly provided” may be satisfied so
long as the prohibition is “grounded” in some “text” of
an Act of Congress, and that the word “maintain in the
text of Section 216(b) supplies a sufficient basis for
finding such a prohibition under the FLSA. Because
the word “maintain,” however, does not in express
terms even address removal, petitioner's argument, at
bottom, is that the necessary implication of the word
“maintain” prohibits removal. But Section 1441(a)
requires an express exception in an Act of Congress.
Thus, an inference from a word that is at best ambigu-

10

ous is insufficient. Cf. INS v. St. Cyr, 583 U.S. 289, 299
(2001) (“Implications from statutory text or legislative
history are not sufficient to repeal habeas jurisdiction;
instead, Congress must articulate specific and unam-
biguous statutory directives to effect a repeal.”).

In any event, there is no basis for inferring from the
word “maintain” in the FLSA that Congress intended
to prohibit removal. By providing that “[aJn action to
recover * * * may be maintained * * * in any Fed-
eral or State court of competent jurisdiction,” Section
216(b) is most naturally understood to confer on an
employee a right to sue, and to file the action in either a
state or federal court of competent jurisdiction. “To
maintain an action or suit may mean to commence or
institute it; the term imports the existence of a cause of
action.” Black’s Law Dictionary 1143 (3d ed. 1933).
Congress thus often has used the term “maintain” to
grant a substantive cause of action,’ or conversely, to

2 Eg., 7 US.C. 2106(e)(6), 2707(e(3), 3405(e) (Secretary of
Agriculture “may maintain a suit” to collect certain assessments);
15 U.S.C. 2805(a) (franchisee “may maintain a civil action” against
a franchiser with respect to certain petroleum marketing); 16
US.C. 416 (United States “may maintain an action” to recover cer-
tain leased premises in military parks); 26 U.S.C. 7402(c) (federal
employees injured in discharging their duties under Internal
Revenue Code may “maintain an action for damages”); 43 U.S.C.
620m, 1551(c) (states “may maintain an action” in the Supreme
Court to enforce certain federal obligations concerning the Colo-
rado River); 46 U.S.C. App. 688(a) (seaman may “maintain an
action for damages”); 46 U.S.C. App. 761(a) (representative of per-
son who died on high seas “may maintain a suit for damages in the
district courts of the United States”); 46 U.S.C. App. 764 (“right of
action” granted by foreign law for death on high seas “may be
maintained” in the courts of the United States); 46 U.S.C. App.
1242(d) (persons who hold mortgages, maritime claims, or attach-
ment liens on vessels seized by government during national

1]

foreclose one. Indeed, Congress used the term “main-
tain” to refer to a cause of action even before the pas-
sage of the FLSA. E. g., Act of Apr. 5, 1910, ch. 143, 36
Stat. 291-(codified at 45 U.S.C. 56); Act of Mar. 3, 1897,
ch. 372, § 4, 29 Stat. 622 (codified at 16 U.S.C. 416). This
Court, too, often has employed the term “maintain” to
refer to a right of action. E. g., Harris Trust & Sav.
Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 250
(2000) (describing trustee’s common law right to “main-
tain an action for restitution”); Bay Area Laundry &
Dry Cleaning Pension Trust Fund v. Ferbar Corp., 522
U.S. 192, 200-201 (1997) (explaining that under 29
U.S.C. 1451(a), Ja] plan cannot maintain an action until
the employer misses a scheduled withdrawal liability”).
A right of action, of course, generally carries with it
the authority to litigate a suit to final judgment. But
the right to litigate an action to final judgment does not
foreclose, expressly or otherwise, removal of the action
to federal court, where it thereafter may be litigated to
final judgment. Petitioner therefore errs in relying on
this Court’s recognition that tjo maintain a suit is to
uphold, continue on foot, and keep from collapse a suit

emergency may “maintain” an action for compensation); 48 U.S.C.
1421i(h)(2) (suit may “be maintained” in federal courts against
government of Guam for improperly assessed taxes).

3’ E.g., 15 U.S.C. T7p(b), 78bb(f)(1) (no class actions concerning
certain securities violations “may be maintained”); 26 U.S.C.
7422(a) and (b) (no suit for tax refund may “be maintained” until
claim for refund or credit has been filed, but suit “may be
maintained whether or not such tax, penalty, or sum has been paid
under pretest or duress”); 45 U.S.C. 56 (“No action shall be main-
tained under [FELA] unless commenced within three years from
the day the cause of action accrued.”); 46 U.S.C. App. 688(b) (“No
action may be maintained” with respect to certain injuries or death
of a person who was not a citizen or permanent resident alien of
the United States.).

12

already begun.” George Moore Ice Cream Co. v. Rose,
289 U.S. 373, 377 (1933) (quoting Smallwood v. Gal-
lardo, 275 U.S. 56, 61 (1927)). That meaning has
nothing to do with the transfer of an action from one
court of competent jurisdiction to another, pursuant to
a removal statute of general applicability. Removal to
federal court does not collapse or terminate the action;
removal simply transfers the action to a federal forum
where the suit thereafter can be “maintained” to final
judgment.“

3. The text of the relevant sentence of Section 216(b)
as a whole further undermines petitioner’s argument
that the word “maintain” grants an employee an abso-
lute right to continue to litigate his action to final
judgment in the court in which the suit is originally
filed. By providing that an employee action “may be
maintained * * * in any Federal or State court of
competent jurisdiction,” 29 U.S.C. 216(b) (emphasis

4 Neither Rose nor Smallwood addressed a federal court’s re-
moval jurisdiction but rather the effect of the word “maintain” on
pending lawsuits. Smallwood, 275 U.S. at 61, held that a statute
directing that no suit seeking to restrain taxes imposed under the
ame of Seale Sie Oe Se ee
pending before Congress enacted the statute. , »
377, similarly observed that “maintain” commonly covers “pending
actions.” .

5 For similar reasons, petitioner errs in relying (Br. 16-17) on a
provision in the original 1938 Act that permitted an employee to
designate an agent or representative “to maintain” the employees
action. Fair Labor Standards Act of 1938, ch. 676, § 16(b), 52 Stat.
— —— — eS
(repealing representative actions); Hoffmann-La Roche Inc. v.
Sperling, 498 U.S. 165, 172-173 (1989) (discussing history of repre-
sentative and collective actions under 29 U.S.C. 216(b) as incor-
porated into the Age Discrimination in Employment Act of 1967,
29 U.S.C. 626(b)).

13

added), the FLSA expresses no preference for the
forum in which an employee action may proceed, and
the Act contains no mandate that the employee’s initial
choice of forum must prevail over the defendant’s ex-
press right of removal under 28 U.S.C. 1441(a). Such a
construction also would violate this Court’s “longstand-
ing practice of construing statutes in pari materia.”
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437,
445 (1987). Under that principle, the FLSA must be
read in conjunction with other federal statutes that
explicitly permit transfer of a suit from one forum to
another. For instance, an FLSA action that is filed in a
particular forum is presumably subject to that forum’s
law allowing a defendant to seek a transfer of venue
when transfer serves the interest of justice. E. g., 28
U.S.C. 1404; Ala. Code. § 6-3-20 (1993); Alaska Stat.
§ 22.15.080 (Michie 1995); Fla. Stat. Ann. § 47.122 (West
1994); Wis. Stat. Ann. § 801.52 (West 1994).

The same is true with respect to transfer by removal.
Indeed, the language in Section 216(b) that an action
may be maintained “in any Federal or State court of
competent jurisdiction” indicates that Section 216(b)
and suits brought under it take the jurisdiction of the
courts as they find them, and that Section 216(b) itself
was not intended to alter jurisdictional rules that are
established elsewhere. As this Court explained in con-
struing comparable language in the FELA, a state
court is one of “competent jurisdiction” when “its ordi-
nary jurisdiction, as prescribed by local laws, is appro-
priate to the occasion.” Second Employers’ Liab.
Cases, 223 U.S. 1, 56-57 (1912). But where another fed-
eral statute—here, 28 U.S.C. 1441(a)—ousis a state
court of its jurisdiction upon the filing of a notice in
federal district court (see 28 U.S.C. 1446(a)), the state

court is no longer one of “competent jurisdiction” with

14

respect to the case, and the plaintiff thereafter must
“maintain” his action, if at all, in the federal district
court, which of course is a court of “competent juris-
diction.”

It is significant, moreover, that Congress passed the
FLSA against the backdrop of a pre-existing and long-
standing right of a defendant to remove a case arising
under federal law to federal district court. In 1875,
Congress first created federal question removal juris-
diction by granting defendants the right to remove
“any” suit arising under federal law in which the
matter in controversy exceeded $500. Act of Mar. 3,
1875, ch. 137, § 2, 18 Stat. 470 (emphasis added).
Although “[t]he legislative history of the federal ques-
tion removal provision is meager, * * * it has been
suggested that its purpose was the same as original
federal question jurisdiction, enacted at the same time
in the Judiciary Act of 1875, 18 Stat. 470, namely, to
protect federal rights, and to provide a forum that could
more accurately interpret federal law.” Boys Mkts.,
Inc. v. Retail Clerks Union, 398 U.S. 235, 246 n.13
(1970) (citations omitted).

By the time Congress passed the FLSA in 1938, the
right of removal was codified in 28 U.S.C. 71 (1934), and
extended to “[a)ny suit of a civil nature * * arising
under the * * * laws of the United States” of which
the district courts had original jurisdiction. Act of Mar.
3, 1911, ch. 231, § 28, 36 Stat. 1094 (emphasis added).
That all-encompassing language plainly included suits
such as those under the FLSA. Morever, prior to 1938,
when Congress wanted to carve out exceptions to that
right of removal, it did so expressly. See Act of Apr. 5,
1910, ch. 143, 36 Stat. 291 (28 U.S.C. 1445(a)); Act of
Jan. 20, 1914, ch. 11, 38 Stat. 278 (28 U.S.C. 1445(b));
Securities Act of 1933, ch. 38, § 22(a), 48 Stat. 86-87 (15

15

U.S.C. 77v(a)). The absence of any such express
exception in the FLSA therefore is telling.

In 1948, Congress re-codified the removal statute in
28 U.S.C. 1441(a), which authorizes removal over civil
suits within the district courts’ original jurisdiction
“(e)xcept as otherwise expressly provided by Act of
Congress.” Act of June 25, 1948, ch. 646, § 1441(a), 62
Stat. 937; see also 28 U.S.C. 1441 (historical and revi-
sion notes). Those provisions, coupled with the FLSA’s
complete silence on the issue of removal, leave no
reason to doubt that Congress understood that FLSA
employee actions filed in state court would be subject to
removal to federal court.“

B. The FLSA’s Use Of The Word “Bring” In Other Pro-
visions Does Not Suggest That The Word “Maintain”
In Section 216(b) Expressly Bars Removal

1. Petitioner relies (Br. 17-21) on Congress’s use of
the term “bring” in various provisions of the FLSA and
in other federal statutes. Petitioner argues that a right
to “bring” suit refers to the initiation of a suit and
therefore does not foreclose removal of the case from
the state court in which it was initially brought. Br. 17-
18. Petitioner then argues that Congress’s use of the
different word “maintain” in authorizing employee
actions under Section 216(b) reflects a deliberate intent
on the part of Congress to confer on an employee a

6 Petitioner argues (Br. 38-40) that Congress in passing the
FLSA could not have known it would be required to foreclose re-
moval in explicit terms because the language in the removal
statute requiring an express exception was not added until 1948,
after the FLSA was enacted. As the examples cited in the text
demonstrate, however, even before 1938 Congress had foreclosed a
federal court’s removal jurisdiction with direct and explicit

language.

16

right to pursue, or “maintain,” previously filed suits
through to final judgment, and hence, in petitioner’s
view, to defeat removal. Br. 19-21. For the reasons
discussed above, a plaintiff’s right under Section 216(b)
to litigate a suit to final judgment says nothing about
the defendant’s right under a different statute to
remove the case to federal court. The word “maintain”
therefore does not constitute an express bar to
removal.

2. That conclusion is not altered by any of the
specific references in the FLSA to the right to “bring”
suit.

a. Three provisions of the FLSA authorize the De-
partment of Labor to “bring” suit to enforce provisions
of the Act.’ The Secretary’s right to “bring” suit, like
the employee’s right to “maintain” suit, simply conveys
the existence of a cause of action in court. American
Heritage Dictionary 232 (4th ed. 2000) (defining “bring”
to mean “[t]o advance or set forth (charges) in a
court.”). Indeed, the FLSA in Section 204(f) uses the
term “bring” to describe the employee’s right of action
under Section 216(b). 29 U.S.C. 204(f) (providing that
Office of Personnel Management’s authority to adminis-
ter FLSA with respect to certain federal employees
“shall [not] affect the right of an employee to bring an

See 29 U.S.C. 211(a) ([The Administrator shall bring all
actions under [S]ection 217 of this title to restrain violations of this
chapter.”); 29 U.S.C. 212(b) (“The Secretary of Labor * * * ,
subject to the direction and control of the Attorney General, shall
bring all actions under [29 U.S.C. 217] to enjoin any act or practice
which is unlawful by reason of the existence of oppressive child
labor.”); 29 U.S.C. 216(c) (“The Secretary may bring an action in
any court of competent jurisdiction to recover the amount of un-
paid minimum wages or overtime compensation and an equal
amount as liquidated damages.”).

17

action * * * under section 216(b) of this title.”)
(emphasis added).

Moreover, the Secretary’s authority to “bring” suit,
like the employee’s authority to “maintain” suit, neces-
sarily carries with it the general ability to litigate the
action to final judgment. There is accordingly no basis
for attaching talismanic effect to Congress’s use of the
word “maintain” rather than “bring” in Section 216(b),
either in general or specifically with respect to removal.
It follows a fortiori that there is no basis for concluding
that Congress’s use of “maintain” rather than “bring”
constitutes an express exception to the right of removal
conferred by 28 U.S.C. 1441(a).*

b. Section 216 also provides that the Secretary’s
filing of a suit fur monetary damages under 29 U.S.C.
216(c) or for restitutionary injunctive relief under 29
U.S.C. 217 terminates the employee’s right to “bring”

One possible explanation for the different terminology in 29
U.S.C. 216(c) is that Section 216(c) was not part of the original Act
but was added by amendment in 1949. Act of Oct. 26, 1949, ch. 736,
§ 14, 63 Stat. 919. The original Act did confer on the government a
right to “bring” suit, now codified under 29 U.S.C. 211(a) and
212(b), but the language originated in 1937 bills that entitled
employees to “recover * * * reparation in a civil action” over
which state and federal courts had concurrent jurisdiction. S. 2475,
75th Cong., Ist Sess. §§ 13, 15(b), 18(b), 22 (July 6, 1937) (reported
Senate bill); see also S. Rep. No. 884, 75th Cong., Ist Sess. 8-9
(1937); H.R. Rep. No. 1452, 75th Cong., Ist Sess. 10, 18-19 (1937).
The conference committee carried forward the provisions authoriz-
ing the government to “bring” suit and authorized an employee
action using the “may be maintained” language now set forth in
Section 216(b). H.R. Conf. Rep. No. 2738, 75th Cong., 3d Sess. 8-9,
11, 32-33 (1938). There is no indication that Congress attached any
significance to the difference in terminology, and it thus appears
that Congress used “bring” and “maintain” interchangeably to
refer to a right of action. See pp. 23-25, infra.

18

an employee action under 29 U.S.C. 216(b). 29 U.S.C.
216(b) (“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 [SJection 217
(for back wages for such employee].”); 29 U.S.C. 216(c)
(“The right provided by subsection (b) of this section to
bring an action by or on behalf of any employee to
recover the liability specified in the first sentence of
such subsection and of any employee to become a party
plaintiff to any such action shall terminate upon the
filing of a complaint by the Secretary in an action under
this subsection [for back wages or liquidated damages
for such employee].”).

As petitioner notes (Br. 18 & n.9), when the Secre-
tary files suit for monetary relief for individual employ-
ees under Section 216(c) or 217, it has been understood
that the employee’s right of action under Section 216(b)
terminates with respect to suits not yet filed but not
with respect to actions pending at the time the Secre-
tary files suit. Donovan v. University of Tex., 643 F. 2d
1201, 1207 (5th Cir. 1981); accord H.R. Conf. Rep. No.
327, 87th Cong., Ist Sess. 20 (1961) (filing of the Secre-
tary’s complaint does “not, however, operate to termi-
nate any employee’s right to maintain such a private
suit to which he had become a party plaintiff before the
Secretary’s action”) (emphasis added); S. Rep. No. 145,
87th Cong., Ist Sess. 39 (1961) (Secretary’s filing of
complaint “terminates the rights of individuals to later
file suit”) (emphasis added); H.R. Rep. No. 75, 87th
Cong., Ist Sess. 28 (1961) (same) ef. Smallwood, 275
U.S. at 61. The FLSA’s termination provisions, how-
ever, provide no basis for finding an intent to foreclose
removal. As discussed, a right to litigate an action

19

already pending is entirely consistent with the removal
of such an action to federal court under 28 U.S.C.
1441(a).

e. A variation of the word “bring” also appears
in the collective action provisions of Section 216(b)
that authorize an employee or employees to bring
collective actions “in behalf of himself or themselves
and other employees similarly situated.” See generally
Hoffmann-La Roche Inc. v. Sperling, 493 U.S. 165, 173
(1989). Section 216(b) provides that Inlo 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.” 29 U.S.C. 216(b) (emphasis added)). That
provision is consistent with removal of a collective ac-
tion under the FLSA. If an employee files a collective
action that is subsequently removed to federal court,
any employee who thereafter consents to become a
party plaintiff may file his consent in federal court.

The phrase “court in which such action is brought” is
reasonably understood to mean the court in which the
employee’s suit is pending, i e., the court in which the
employee’s right of action is being litigated at the time
consent is filed. Anson v. University of Tex. Health
Sci. Ctr., 962 F.2d 539, 540 (5th Cir. 1992) (“Under
Section 216(b), an employee may become an ‘opt-in’
party plaintiff to an already filed suit by filing written
consent with the court where the suit is pending.”); ef.
Linthicum v. Calvin, 57 S.W.3d 855, 858 (Mo. 2001) (per
curiam) (“Although a suit is ‘brought’ against the
original defendants when [a complaint] is initially filed,
in like manner, it is also ‘brought’ against subsequent
defendants when they are added to the lawsuit by
amendment.”); American Fin. Co. v. Bostwick, 23 N.E.
656, 659 (Mass. 1890) (for purposes of section of federal

20

removal statute that required petition for removal to be
filed in state court in which “suit is brought,” At jhe
section plainly means that the petition must be filed in
the suit, and therefore it must be filed in the court
where the suit is pending when it is filed,” such that
transfer among state courts does not defeat right of
removal). In any event, to the extent that the phrase
“is brought” in Section 216(b) is ambiguous on this par-
ticular subsidiary point, it does not render Section
216(b) an explicit exception to the federal removal
statute.°

C. The Principle That Removal Legislation Should Be
Narrowly Construed Does Not Defeat A Defendant's
Right To Remove An Action Under Section 216(b)

Invoking the principle that removal legislation should
be narrowly construed (e.g., Shamrock Oil & Gas Corp.
v. Sheets, 313 U.S. 100, 108 (1941)), petitioner argues
(Br. 9-13, 28-38) that because the requirement in 28
U.S.C. 1441(a) for an “express[]” exception to removal
was not added to the removal statute until 1948, after

For purposes of the applicable statute of limitations for
collective actions, an action is commenced (a) when the complaint is
filed, if the person is named in the complaint and files his consent
to be a party plaintiff “in the court in which the action is brought,”
or, (b) when those conditions are not satisfied, “on the subsequent
date on which such written consent is filed in the court in which
the action was commenced.” 29 U.S.C. 256. That provision, too, is
reasonably construed to mean that, when an employee joins a
pending collective action, “his action commences when he opts into
the action by filing written consent with the court in which the
action is pending.” O’Connell v. Champion Int'l Corp, 812 F.2d
393, 394 (8th Cir. 1987); see also S. Rep. No. 48, 80th Cong., Ist
Sess. 49 (1947) (“[A]s to any individual claimant in any such collec-
tive action, the action is deemed to be commenced as to him when
he is named a party thereto.”).

21

the enactment of the FLSA, see note 1, supra, the
removal statute should be narrowly construed “not
* * * to permit the removal of previously non-re-
movable actions” under the FLSA as it existed before
1948. Br. 31. That analysis is seriously flawed.

1. Section 1441(a), as it is currently written, governs
this case, and the plain terms of that statute mandate
its application to “any civil action” of which federal
district courts have original jurisdiction, “(e}xcept as
otherwise expressly provided by an Act of Congress.”
28 U.S.C. 1441(a) (emphasis added); ef. United States v.
Providence Journal Co., 485 U.S. 693, 705 n.9 (1988)
(“A statute that begins with ‘Except as otherwise pro-
vided by law’ creates a general rule that applies unless
contradicted in some other provision.”); compare
United States v. Monsanto, 491 U.S. 600, 609 (1989)
(phrase “any property” is “broad and unambiguous”
and “comprehensive”). Furthermore, because actions
brought under 29 U.S.C. 216(b) unquestionably fall
within the original jurisdiction of the federal district
courts, there is no ambiguity in the breadth of the
removal statute to which a principle of narrow con-
struction would be relevant. In short, because nothing
in the text of the FLSA bears the weight of an express
exception to removal, this Court’s inquiry is at an end.

2. Moreover, petitioner’s premise—that, before
1948, Congress intended to bar removal of FLSA suits
—is fundamentally wrong. When it passed the FLSA
in 1938, Congress did not expressly repeal a defendant’s
right of removal that previously existed under 28
U.S.C. 71 (1934) for “[a)ny” civil suit arising under fed-
eral law. See pp. 14-15, supra. Accordingly, the only
basis for accepting petitioner’s contention that Con-
gress in 1938 intended to prohibit a federal court’s re-
moval jurisdiction over FLSA suits is by implication.

22

That contention, however, not only violates the plain
terms of the current removal statute requiring an
express] exception to the general right of removal,
28 U.S.C. 1441(a); it also violates the “cardinal rule
* * * that repeals by implication are not favored,”
Cook County v. United States ex rel. Chandler, No. 01-
1572 (Mar. 10, 2003), slip op. 12 (quoting Posadas v.
National City Bank, 296 U.S. 497, 503 (1936)), and will
not be found unless an intent to repeal is “clear and
manifest.” United States v. Borden Co., 308 U.S. 188,
198 (1939) (quoting Red Rock v. Henry, 106 U.S. 596,
602 (1883)). “When there are statutes clearly defining
the jurisdiction of the courts the force and effect of such
provisions should not be disturbed by a mere implica-
tion flowing from subsequent legislation. * * * Espe-
cially is this rule to control when it appears that Con-
gress in some cases has made express provision for
effecting a change.” Rosencrans v. United States, 165
U.S. 257, 262 (1897).

“In the absence of some affirmative showing of an
intention to repeal, the only permissible justification for
a repeal by implication is when the earlier and later
statutes are irreconcilable.” TVA v. Hill, 437 U.S. 153,
190 (1978) (quoting Morton v. Mancari, 417 U.S. 535,
550 (1974)). In other words, “where [the] two statutes
are ‘capable of co-existence, it is the duty of the courts,
absent a clearly expressed congressional intention to
the contrary, to regard each as effective.” Ruckel-
shaus v. Monsanto Co., 467 U.S. 986, 1017-1018 (1984)
(citation omitted); Ex parte Yerger, 75 U.S. (8 Wall.) 85,
105 (1868).

Section 216(b) of the FLSA and the removal statute
are clearly “capable of co-existence.” Ruckelshaus, 467
U.S. at 1018. As discussed, an employee who files suit
under the FLSA in state court, which the employer

23

subsequently removes to federal court, has the right to
maintain his action in federal court and to obtain the full
remedies set forth under the FLSA, including the
unpaid wages, liquidated damages, costs, and attorney’s
fees. 29 U.S.C. 216(b). Cf. Colorado River Water Con-
servation Dist. v. United States, 424 U.S. 800, 808
(1976) (holding that McCarran Amendment, 43 U.S.C.
666, which consents to the naming of the United States
as a defendant in suits involving federal water rights,
“did not constitute an exception ‘provided by Act of
Congress’ that repealed the jurisdiction of district
courts under [28 U. S. C.] 1345 to entertain federal water
suits”).
D. Petitioner's Reliance On Subsequent Legislative His-
tory And Policy Arguments Do Not Furnish A Basis
For Finding That The FLSA Expressly Bars Removal

1. 2. We are aware of nothing in the legislative
history of the FLSA, as enacted or as amended, that
addresses the issue of removal. In 1937, the Senate
passed a bill that would have allowed employees to
recover unpaid wages (termed “reparations”) in a civil
action and separately conferred concurrent state and
federal court jurisdiction over such actions. See S.
2475, supra, §§ 18, 22 (reported Senate bill); S. 2475,
75th Cong., Ist Sess. §§ 18, 22 (July 31, 1937) (Senate-
passed bill, which was referred to the House of Rep-
resentatives). The Senate provisions were explained as
“providiing) for the payment of reparation” and
“confer{ring) appropriate jurisdiction on the district
courts.” S. Rep. No. 884, 75th Cong., Ist Sess. 9 (1937).
The House Labor Committee initially reported a bill
with the same provisions. See S. 2475, 75th Cong., Ist
Sess. §§ 18, 22 (Aug. 6, 1937) (reported House bill). The
accompanying House Report stated only that “[tJhe bill

24

specifically grants the employee a right of action.” H.R.
Rep. No. 1452, 75th Cong., Ist Sess. 10 (1937); id. at 19
(discussing payment of “reparation”).

The House of Representatives did not pass the
reported bill, but instead sent it back to committee. 82
Cong. Rec. 1834-1835 (1937). The House Labor Com-
mittee then reported another bill that provided no
employee enforcement mechanisms. S. 2475, 75th
Cong., 3d Sess. (Apr. 21, 1938) (reported bill); H.R. Rep.
No. 2182, 75th Cong., 3d Sess. (1938). The House
passed that bill without adding any employee enforce-
ment mechanisms. 83 Cong. Rec. 7441-7450 (1938)
(House passage). The conference committee later
drafted the language that Congress ultimately enacted
as Section 216(b), which provided that an uction may
be maintained in any court of competent jurisdiction.”
H.R. Conf. Rep. No. 2738, 75th Cong., 3d Sess. 11
(1938). The committee explained that Section 216(b)
“provides for civil reparations for violations of the
wages and hours provisions.” Id. at 33.“

The legislative history accompanying later amend-
ments to Section 216 similarly contains no reference to
removal but merely refers to the employee’s right to
bring suit. See H.R. Conf. Rep. No. 326, 80th Cong., Ist
Sess. 13 (1947) (banning representative actions but ex-
plaining that “[cJollective actions brought by an em-
ployee * * * may continue to be brought”); 95 Cong.
Rec. 12,487, 12,488 (1949) (statement of Sen. Hum-
phrey) (discussing amendment to permit suit by the

© In 1974, Congress replaced the phrase “any court of compe-
tent jurisdiction” in Section 216(b) with “any Federal or State
court of competent jurisdiction” at the same time that Congress
amended the FLSA to give employees the right to sue “a public
agency.” Fair Labor Standards Amendments of 1974, Pub. L. No.
93-259, § (d-), 88 Stat. 61; see infra, p. 25.

25

Secretary to collect unpaid wages and referring to
existing law as allowing only the employee to bring
suits,” “to bring civil action” or to sue“); S. Rep. No.
145, 87th Cong., Ist Sess. 39 (1961) (referring to em-
ployee’s right “to bring an action”); H.R. Rep. No. 75,
87th Cong., Ist Sess. 28 (1961) (same); S. Rep. No. 690,
93d Cong., 2d Sess. 27, 56 (1974) (amendment giving
employees right to “maintain” or “to bring private
actions” against public agencies); H.R. Rep. No. 913,
93d Cong., 2d Sess. 45 (1974) (amendment makes clear
that suits by public employees “may be maintained”
because the previous law had not explicitly stated that
“State and local employees could bring an action”).

In sum, the FLSA’s legislative history is fully con-
sistent with the natural reading of Section 216(b) as
giving an employee a right of action over which state
and federal courts have concurrent jurisdiction, subject
to whatever other statutes (including the federal re-
mova. statute) regulate the jurisdiction of those courts.

b. Petitioner relies (Br. 40-41) on the Senate Report
accompanying the 1958 enactment of 28 U.S.C. 1445(c)
to bar removal of workers’ compensation actions under
state law. That Report states:

Congress itself has recognized the inadvisability of
permitting removal of cases arising under its own
laws which are similar to the workmen’s com-
pensation acts of the States. In the Jones Act, the
Fair Labor Standards Act, and the Railway Em-
ployers’ Liability Act, all of which are in the nature
of workmen’s compensation cases, the Congress has
given the workman the option of filing his case in
either the State court or the Federal court. If filed
in the State courts the law prohibits removal to the
Federal court.

26

S. Rep. No. 1830, 85th Cong., 2d Sess. 9 (1958).

That legislative history, of course, does not constitute
an express exception to removal “in an Act of Con-
gress,” as required by 28 U.S.C. 1441(a). Moreover, the
Senate Report, which relates to 28 U.S.C. 1445(c) and
was prepared many years after the enactment of the
FLSA, hardly provides persuasive evidence of congres-
sional intent. Cf. United States v. X-Citement Video,
Inc., 513 U.S. 64, 77 n.6 (1994) (“the views of one Con-
gress as to the meaning of an Act passed by an earlier
Congress are not ordinarily of great weight * * * and
the views of the committee of one House of another
Congress are of even less weight”).

2. Petitioner also argues (Br. 22-27) that Congress
when it passed the FLSA likely intended to foreclose
removal because removal might have burdened em-
ployees who had claims involving small amounts énd
who did not have ready access to the federal courts.
Those policy concerns, however, do not necessarily
apply in all FLSA cases. As the district court explained
in Hill v. Moss-American, Inc.:

Nor can one fairly categorize [FLSA] actions. Bar-
ring removal of [FLSA] cases will shut out con-
troversies involving dollar amounts ranging from
quite large to very small, concerning interpretations
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 conges-
tion of trial dockets as between state and federal
courts may be great or unremarkable.

309 F. Supp. at 1178.

Moreover, FLSA actions are not clearly in a category
that distinguishes them from other employment-related
suits arising under other federal statutes that are

27

subject to removal to federal court, irrespective of the
amount in controversy or the potential inconvenience to
the employee from removal. See, e.g., Metropolitan
Life Ins. Co. v. Taylor, 481 U.S. 58 (1987) (suit for bene-
fits under Employee Retirement Income Security Act
of 1974, 29 U.S.C. 1132(a)(1)(B), 1132(e)(1)); Aveo Corp.
v. Aero Lodge, No. 735, Int'l Ass'n of Machinists, 390
U.S. 557 (1968) (Section 301 of the Labor Management
Relations Act, 1947, 29 U.S.C. 185); Hirschbiel v. John-
son, 118 F. Supp. 2d 903, 905 (N.D. Ind. 2000) (Title
VII, 42 U.S.C. 2000e et seg.); Keil v. CIGNA, 978 F.
Supp. 1365 (D. Colo. 1997) (Americans with Disabilities
Act of 1990, 42 U.S.C. 12101 et seg.)

. Finally, regardless of whether removal of FLSA ac-
tions is good policy, it is the responsibility of Congress
to weigh the relevant policy considerations and to
determine whether to carve out an exception for FLSA
cases to the general statutory right of a defendant to
remove to federal court a case arising under federal
law. E. g., Estate of Cowart v. Nicklos Drilling Co., 505
U.S. 469, 483-484 (1992). Because Congress has not
passed a law that forecloses removal of FLSA actions in
express statutory language, as required by 28 U.S.C.
1441(a), such actions are subject to removal.

28

CONCLUSION

The judgment of the court of appeals should be
affirmed.

Respectfully submitted.
THEODORE B. OLSON
Solicitor General
EDWIN S. KNEEDLER
Deputy Solicitor General
HOWARD M. RADZELY LisaS —
Acting Solicitor of Labor Assistant to the Solicitor
ALLEN H. FELDMAN General

Associate Solicitor

EDWARD D. SIEGER

KATIE M. STREETT
Attorneys
Department of Labor

MARCH 2003

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0599%3A07. Public record. Not legal advice.