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

MEP i Wr

No. 02-337

IN. THE

Supreme Court of the United States

PHILLIP T. BREUER,

Petitioner.

\

JIM’S CONCRETE OF BREVARD, INC..

Respondent.

On Wait of CERTIORARI TO THE

Unitep States Court oF APPEALS

FOR THE Eveventu Circuit

BRIEF OF THE ACADEMY OF FLORIDA

MANAGEMENT ATTORNEYS, INC.,

AS AMICUS CURIAE IN SUPPORT

OF RESPONDENT

_———————————————————————————————————eees__

Pirer W. ZINOBER

Counsel of Record

Frank E. Brows

Ryan D. Barack

Zinover & McCrea, P.A.

Attorneys for Amicus Curiae

201 East Kennedy Boulevard

Suite $00

Tampa, Florida 336002

($13) 224-9004

i

TABLE OF CONTENTS

Page

Table of Cited Authorities ..................44. ill

: Interest of Amicus Curiae ..............000000: l

Summary of Argument ...............500ee0e- 2

FE 5 6.6 be ccc cccctiwecceccibcevecccces 4

I. The Phrase “May Be Maintained” In The Fair

Labor Standards Act Does Not Satisfy The

Requirement That An Exception To The

General Removal Statute Be “Expressly

Provided” By Congress ................. 4

A. Neither The Plain Language Nor The

Legislative Record Of The Fair Labor

Standards Act Demonstrates Express

Legislative Intent To Prohibit Removal

RY Se Pry ho Hee Nee isdn an 4

B. The Phrase “May Be Maintained” Does

Not Imply A Prohibition on Removal .. . 6

1. The Term “Maintain” Is Best

Interpreted As Synonymous With

The Term “Bring” .............. 6

2. Even If “May Be Maintained”

Means Something Other Than

“May Be Filed,” It Does Not Mean

: Removal Is Prohibited .......... 11

Contents

C. When Congress Has Intended To

Prohibit Removal, It Has Done So

Clearly, Even Prior To The Amendment

Of The Removal Statute ............

D. Pre-1948 Judicial Interpretations Of The

Phrase “May Be Maintained,” Even

Those Construing The Phrase As

Proscribing Removal, Acknowledge

That The Phrase “May Be Maintained”

Is Ambiguous ..........---++-eeee-

Il. Denying Removal Of FLSA Cases Would

Increase Uncertainty And Inconsistency In

The Application Of Federal Labor And

Employment Statutes ............+.+++5-

nn re wm mn ee

Page

13

TABLE OF CITEDAUTHORITIES

Cases:

Asher v. William L. Crow Constr. Co., 118 F. Supp.

495 (S.D.N.Y. 1953)

ee eveeeeeeneeneeeeeeeeeee

Ayotte v. Home Depot U.S.A., Inc., No. 3:01-CV-

2604-D, 2002 U.S. Dist. LEXIS 571 (N.D. Tex.

Jan. 8, 2002)

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

Cir. 1982)

Bates v. United States, 522 U.S. 23 (1997)

Bayles v. American Medical Response of Colorado,

950 F. Supp. 1053 (D. Colo. 1996) ...........

Booth v. Montgomery Ward & Co., 44 F. Supp. 451

i: hi ee tide conch aphdoccecss

Brantley v. Augusta Ice & Coal Co., 52 F. Supp. 158

itch. die idence ccteeséecvece

Breuer v. Jim's Concrete of Brevard, Inc., 292 F.3d

ra ae ccc ckbedbecéccces

Burrs v. Equitable Life Assurable Soc., 696 F.2d

EE ails dabcdedbe Ob eccccecces

Page

19

19

14

iv

Cited Authorities

Page

Central Bank, N.A. v. First Interstate Bank, N.A.,

Fes Gis GROGe .. vecovndusbéccvepecde 5

City of Chicago v. International College. of

Surgeons, 522 U.S. 156 (1997) .............. 13

Cosme Nieves v. Deshler, 786 F.2d 445 (ist Cir.),

cert. denied, 479 U.S. 824 (1986) ............ 18, 25

Donald & Co. Securities v. Mid-Florida Community

Servs., Inc., 620 So. 2d 192 (Fla. 2d DCA 1993)

up anepnceccesddccdecnubes 6seboueananGnde 23

Durham v. Palm Court, Inc., 558 So. 2d 59 (Fla. 4th

Ede BOWED 6 ccadekeeeetsddsesetisccccasesie 23

Estate of Cowart v. Nicklos Drilling Co., 505 U.S.

GED GIISED ccvcpnccdedsncascecsedebhbenees 4

Franchise Tax Bd. of Californi v. Constr. Laborers

Vacation Trust for S. Cal., 463 U.S. 1 (1983) ... 14

Fredman v. Foley Bros., Inc., 50 F. Supp. 161 (W.D.

RED. GED. oka dscndeubsohescalsesdonsevte 19

1943)

Great Northern Ry. Co. v. Alexander, 246 U.S. 276

(1918)

Vv “

Cited Authorities

Page

Gross v. State, 765 So. 2d 39 (Fla. 2000), cert. denied,

$32 U.S. 948 (2001) ............-4.-- inety 23

Hallstrom v. Tillamook County, 493 U.S. 20 (1989)

specdbbc codes cose e abeitcccc cdeesecescecs 4,14

Henriquez v. Royal Sonesta, Inc., 1996 U.S. Dist.

LEXIS 4616, 1996 WL 169237 (E.D. La. Apr. 10,

SL nahh oo 6ap 506 dhes Mb ndnehsocccecoese 7

Hoffman-La Roche, Inc. v. Sperling, 493 U.S. 165

BET Cie Wi edna ode 60dtn cbhewhecetaccs ope 12

Holden v. Goodyear Tire & Rubber Co., 1999 U.S.

Dist. LEXIS 7019 (D. Kan. Apr. 29, 1999) ..... 7

Howlett v. Rose, 496 U.S. 356 (1990) ........... 23

Jacobi v. High Point Label, Inc., 442 F. Supp. 518

EE Seer t eTIT TT TTT eT 9

Johnson v. Butler Bros., 162 F.2d 87 (8th Cir. 1947)

+ eUdeeekteectde dbaeks decctesvec Gesccecs 17, 18, 19

Korell v. Bymart, Inc., 101 F. Supp. 185 (E.D.N.Y. —

Pin nwtink deesds op cb acadwbeldbetéececce ae

Ladner v. Alexander & Alexander, Inc., 879 F. Supp.

SOB CUD. La. 1GBS) .. oc ccccccccdsccccccce. 7

vi

Cited Authorities

Page

Lemay v. Budget Rent A Car Sys., 993 F. Supp. 1448

Ge es SEED dbtnae dcndebédeconeéesuces 9

Lloyd v. Classic Chevrolet, Ine., 82 Empl. Prac. Dec.

(CCH) P41, 017 (M.D. Fla. Jan. 31, 2002) ..... 7

Martin v. Hunter's Lessee, 14 U.S. 304(1816) .... 22

McDonald's Corp. v. State of Florida Dept. of

Transp., 535 So. 2d 323 (Fla. 2d DCA 1988) ... 23

Negonsott v. Samuels, 507 U.S. 99 (1993) ....... 6

Norfolk & Western Ry. Co. v. American Train

Dispatchers’ Ass'n, 499 U.S. 117 (1991)

Oklahoma v. New Mexico, 501 U.S. 221 (1991) ... 5

Owens v. Greenville News-Piedmont, 43 F. Supp. 785

Gs SPE 00 pncedvhocacth cchenkdees chs 19

Pignato v. Great Western Bank, 664 So. 2d 1011 (Fla.

REDD CUED np cabicndvensscepweencisoess 23

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.

SOP UNED: 06 hnccd QnnckesOvusaoepbesehsuas 21

Ricciardi v. Lazzara Baking Corp., 32 F. Supp. 956

GR CUED onc tub db tnaddaddvvocitbacksoses 19

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ... 5

!

vii

Cited Authorities

Page

Roseman v. Best Buy Co., 140 F. Supp. 2d 1332 (S.D.

DET édnhocc.osscabedd setacescatocess< 20

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

DL: MEIED cans cctcevdcesccososccecees 19

State v. Dwyer, 332 So. 2d 333 (Fla. 1976) ....... 23

United States v. Alvarez-Sanchez, 511 U.S. 350

DE iin an Cacusietedweuesskeoneoesacee 3,14

United States v. Morrison, 529 U.S. 598 (2000)... 15

United States v. X-Citement Video, Inc., 513 U.S. 64

PE peadsbccvesenendust<bepeccecdsooess 5

Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer,

DEP EEE céctacscavcosecsécooese «6G

Virginia Ins. Reciprocal v. Walker, 765 So. 2d 229

(Fla. lst DCA 2000) .........-- cece ee eeeees 23

Winebarger v. Logan Aluminum, 839 F. Supp. 17

(W.D. Ky. 1993) 2.2.0... c cece cece cece ee eeee 9

Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820

GREED cccdpeddesccdécccccocsccccccesies 9-10, 21

Young v. Arbyrd Compress Co., 66 F. Supp. 241 (E.D.

BO BOOED oc ccccctccccccccecccscvcccccces 19

viii

Cited Authorities

Statutes and Legislative Materials:

$§ 35.01-35.043, Fra. Stats. (2002) ............

BS WEG. B PPUUED oo vbccBececescotesccsseces

IS USL. GTI 2. ccccccccsccvcvccocccvcses

0S USL. GIGI 2... cccocccsscedococsocccecs

28 U.S.C. § 71 (1940) 2... eee ee eee eee

28 U.S.C. § 1331

28 U.S.C. § 1441

28 U.S C. § 144i(a). 0... eee eee 13.

28 U.S.C. § 1445(a). (d)

“eve weweeeeeveeeneeneeeeeenee

URE CM Foil iicocsiccedsastfecs:

29 US.C. § 206(4)3) .....2.2.2-0ceeeeeeeeeee

29 USC. $26) ..........-.0-000000e 9, 10,

USL. $62. conse. oicc.scececencscsees

29 U.S.C. § 626(ax1)

29 U.S.C. § 626(b)

“eoewwwnenweweeeveneenevneaeene @e eee eee

Page

15

16, 17

9

ix

Cited Authorities

Page

Rese POE Secdbcedodecccvedccccses 9

29 U.S.C. § 2001, ef Seq. 2... cece cee 8

29 U.S.C. § BOOSGSMZ) ncn ec cccccscccccccees 8

29 U.S.C. § 2617(a(2) 2... ee eee eee eee ees 7

PP Ee Bee Gs OOD. be code cceviccccccccccce 15

42 U.S.C. § 144SE) 2. ccc ccccccccccccceceess 15

42 U.S.C. § UZDIT(a) 0... cece cece eeeeens 21

es RUE ow obi se cade cccncnccccccees 15

45 U.S.C. §§ 51-54, 55-60 ... 0... eee eee 15

Se ETD bdo wbds cdi abecdevescddecces 15

49 U.S.C. § 14706 2.0... ccc cece eee e ees 15

BIUBAL. GOGO 2 cccvcccccscccsccccccccees 11

Conf. Rep. 327, 87th Cong. Ist Sess. 20 (1961),

reprinted in 1961 U.S.C.C.A.N. 1706 ......... 12

H.R. Rep. No. 90-805 (1967), reprinted in 1967

RS NOD ov sbns beh bese ccctcseces 10

x

Cited Authorities

H.R. Rep. No. 100-208 (1988), reprinted in 1988

Oe SE big we cadeudentdeedaxseous

H.R. Rep. No. 103-8, pt. 1 (1993) ...........0..

H.R. Rep. No. 103-180 (1994), reprinted in 1994

SS EE 0 ca dcevdcsdasedéeuensient

PL. 81-393, §§ 14-15, 63 Star. 910 (2749) ...... }

P.L. 85-554, § 5, 72 Star. 415 (1958) ...........

P.L. 85-726, § 1310, 72 Star. 805 (1958) ........

P.L. 87-30, § 12(a), 75 Star. 65 (1961) ..........

P.L. 93-259 § 6(d)(1), 88 Star. 61 (1974) ........

P.L. 103-272 § 1(e), 108 Star. 1172 (1994) ......

S. Rep. No. 100-284, reprinted in 1988 U.S.C.C.A.N.

PED Vere cdcrvdadecaveasisdectadveusenkouus

S. Rep. No. 103-3 (1993), reprinted in 1993

SR nas abdnevvedcdeded execaees

xi

Cited Authorities

Constitutional Provisions:

Ast. V, § SEGA), Par. COMB. .cccccscccccsccees

RR POT ELOTTT TTT TTT Te

RT PEE bectesonecsccceceses

Rule:

Federal Rule of Civil Procedure 23 .............

Page

23

23

23

l

INTEREST OF AMICUS CURIAE'

The Academy of Florida Management Attorneys, Inc.

(AFMA) is a voluntary bar association which was established

as a forum allowing for the free exchange of ideas and

knowledge among the senior management labor and

employment bar of the State of Florida. The membership consists

of experienced management labor and employment attorneys

who devote substantially all of their professional activities to

advice and advocacy on behalf of Florida employers.

The issue at stake in this case is of direct concern to the

AFMaA and its members. Clients of the AFMA’s members are

defendants in numerous labor and employment cases filed each

year. Many of these cases, including those based in whole or in

part on Federal law, are originally filed in state courts, and many

of these are in turn removed by defendant employers to

U.S. district courts. Were the Court to adopt the strained reading

of the general removal statute that Petitioner urges, the AFMA’s

members’ clientele would be deprived of the opportunity to

obtain a Federal forum for many cases arising under the Fair

Labor Standards Act, and thus deprived of the developed

expertise of the Federal judiciary in deciding these cases.

Moreover, because the Court’s decision in this case will likely

have effect far beyond the Fair Labor Standards Act, the AFMA’s

members’ clients may be deprived of the right of removal for

Cases arising within a whole range of Federal labor legislation.

1. The parties have consented to the filing of this brief and

written consents of the parties are being filed together with this brief.

This brief was not authored in whole or in part by counsel for a

party, and no person or entity, other than the amicus curiae, its

members, and its counsel have made a monetary contribution to the

preparation or submission of this brief.

2

The AFMA believes that consistency in the interpretation

and application of the law, a value highly desired by its

members and their clients, is best served by permitting

defendants to remove Federal claims to Federal court except

in those rare cases where Congress’ intent to prohibit removal

is so clearly and unmistakably expressed as to leave no doubt.

SUMMARY OF ARGUMENT

Despite Petitioner’s arguments to the contrary, the 1938

enactment of the Fair Labor Standards Act is devoid of any

indication of Congressional intent to prohibit removal of

FLSA cases filed in state court. Neither the plain language

of the statute, nor any of the available limited legislative

history, suggest that Congress intended to prohibit removal.

Congress’ use of the phrase “may be maintained” was

most likely the result of its inconsistent usage in provisions

authorizing suit contained in the statutory enactments of the

period. Even if Congress intended “maintain” to mean

something beyond merely filing an action, the word was most

likely intended to guide courts in implementing the right to

bring a collective action.

The use of the word maintain is common in Federal labor

statutes, and the word is used in contexts which do not in

any way suggest directly or indirectly an intent to prohibit

removal. Indeed, Congress has on at least one occasion

indicated by an amendment to Title 49 that “maintain” and

“bring” are synonymous. |

The 1948 amendment to the removal statutes created a

requirement that any exception to removal of cases in which

Federal courts have original jurisdiction must be “expressly

3

provided” in Congressional enactments. Even prior to the

1948 Amendment, and indeed prior to the passage of the

FLSA in 1938, Congress had used express language when

stating its intent to prohibit removal. Despite these

precursors, Congress did not choose to use such language in

the FLSA.

Given the long-running dispute among the courts and

commentators as to whether the FLSA prohibits removal,

there can be no doubt that the language of the act is

ambiguous. Given the requirement of an express provision

limiting removal, an argument that FLSA cases may not be

removed cannot stand.

The interpretation argued by Petitioner will not clarify

Federal labor law. To the contrary, not only will it raise the

issue of whether several other Federal labor statutes also

prohibit removal, it will needlessly multiply the number of

appellate jurisdictions which must resolve FLSA cases. The

same policy promoting consistency and even-handed

treatment of litigants that may have convinced this court to

grant certiorari, should lead it to conclude that removal is

not prohibited by the FLSA.

4

ARGUMENT

I.

THE PHRASE “MAY BE MAINTAINED” IN THE FAIR

LABOR STANDARDS ACT DOES NOT SATISFY THE

REQUIREMENT THAT AN EXCEPTION TO THE

GENERAL REMOVAL STATUTE BE “EXPRESSLY

PROVIDED” BY CONGRESS

A. Neither The Plain Language Nor The Legislative Record

Of The Fair Labor Standards Act Demonstrates Express

Legislative Intent To Prohibit Removal

The Petitioner’s arguments, like those raised in so many

cases addressing this issue, rely upon two deceptively simple

propositions. First, Petitioner contends, Congress’ use of the

word “maintain” signifies an intention to prohibit removal

of FLSA cases to Federal court. Second, Petitioner urges,

Congress expressed no intent in its 1948 revision of the

removal statute to change that status quo. Both of Petitioner’s

arguments turn on Congressional intent.

This Court has long recognized two primary sources of

Congressional intent in statutory interpretation. The starting

point for interpreting a statute is the plain language of the

statute itself. See, e.g., United States v. Alvarez-Sanchez, 511

U.S. 350, 356 (1994); Hallstrom v. Tillamook County, 493

U.S. 20, 25 (1989). If statutory language is clear, reliance on

other sources is unnecessary. See Estate of Cowart v. Nicklos

Drilling Co., 505 U.S. 469, 475 (1992); Norfolk & Western

Ry. Co. v. American Train Dispatchers’ Ass'n, 499 U.S. 117,

~ 128 (1991). In determining whether the meaning of language

is plain or ambiguous, the Court looks to the specific language

5

at issue, the context in which the language is used, and the

broader context of the statute as a whole. Robinson v. Shell

Oil Co., 519 U.S. 337, 341 (1997). When ambiguities remain,

this Court turns to the available legislative history for

additional insight. Oklahoma v. New Mexico, 501 U.S. 221,

235 n.5 (1991).

Neither of these techniques avail Petitioner here.

The simple irrefutable fact is that neither the language

of the FLSA nor any available Congressional materials’

regarding that statute resolve the issue of what “may be

maintained” means. Were it not so, the split among Federal

courts and other authorities would not have persisted for over

60 years.

While the Reviser’s Notes to the 1948 amendment to

the removal statute do not discuss in detail the purpose for

the added phrase, no such history is needed. Unlike the phrase

“may be maintained” in the FLSA, the meaning of the phrase

“unless expressly provided otherwise” added to the removal

statute is reasonably clear on its face. Where the will of

Congress has been expressed in “reasonably plain terms,”

2. Petitioner quotes an excerpt from a 1958 Congressional

report, citing no authority or source, purporting to divine the intent

of a Congress 20 years earlier regarding removal of FLSA cases.

Petitioner's Brief at 40. That statement is no more authoritative or

dispositive than any number of post hoc opinions expressed by judges

and commentators on both sides of the issue. See United States v.

X-Citement Video, Inc., 513 U.S. 64, 77 n.6 (1994); Central Bank,

N.A. v. First Interstate Bank, N.A., 511 U.S. 164, 185-86 (1994).

Petitioner also notes that the conference committee rejected prior

language establishing “concurrent jurisdiction.” Petitioner’s Brief at

20 n.18. However, the committee also added the right to proceed

collectively in this revision, suggesting a different reason for its usage

of the word “maintained,” as argued in Part 1.B.2., below.

6

its language must “ordinarily be regarded as conclusive.”

Negonsott v. Samuels, 507 U.S. 99, 104 (1993). The fair

interpretation of that reasonably clear language, as expressed

by the Eleventh Circuit and many other courts, is that an

exception to the removal statute must be clear and

unambiguous.

As argued below, the phrase “may be maintained” does

not reach that standard, and should not be construed as

prohibiting removal.

B. The Phrase “May Be Maintained” Does Not Imply A

Prohibition on Removal

1. The Term “Maintain” Is Best Interpreted As

Synonymous With The Term “Bring”

At its heart, Petitioner’s argument rests upon an alleged

distinction between the terms “maintain” and “bring.”

Petitioner’s Brief at 16-21. In fact, Petitioner concedes that

if the FLSA had provided that a plaintiff could “bring” a suit

against any employer in any Federal or state court of

competent jurisdiction, Petitioner’s suit clearly would have -

been removable. Petitioner’s Brief at 17.

The use of the term “maintained” in the FLSA does not

reflect a deliberate decision by the Congress to prevent the

removal of actions filed under the FLSA. At best, Petitioner

has simply illustrated another instance of inconsistent usage

in Congressional drafting. Indeed, Petitioner’s own brief

points out that during the month prior to Congress’ passage

of the FLSA, Congress enacted laws using operative words

or phrases such as “file” an action, “institute proceedings,”

“apply for enforcement,” or stating that an action could be

es a

:

‘

“brought” or “commenced.” Petitioner’s Brief at 19. This

lack of consistency in drafting undercuts, not supports,

Petitioner’s argument that “maintain” means something

different than “bring” or “file.” This Court “ordinarily

resist[s] reading words or elements into a statute that do not

appear on its face.” Bates v. United States, 522 U.S. 23, 29

(1997).

While Petitioner contends the use of the word “maintain”

is highly unusual and thus significant, Congressional

enactments prove otherwise.

In the area of labor law alone, the word “maintain” is

used commonly, and is used in a context suggesting that it is

synonymous with “bring.” For example, the Family and

Medical Leave Act (“FMLA”), 29 U.S.C. § 2617(a)(2),

_ provides that “[a]n action to recover the damages or equitable

relief prescribed in paragraph (1) may be maintained against

any employer (including a public agency) in any Federal or

State court of competent jurisdiction. . . .”’ A review of the

legislative history of the FMLA reflects that the use of

3. Examples of lower courts holding that suits asserting claims

under the FMLA are not subject to remand include Ayotte v. Home

Depot U.S.A., Inc., No. 3:01-CV-2604-D, 2002 U.S. Dist. LEXIS

571, at *2 (N.D. Tex. Jan. 8, 2002); Henriquez v. Royal Sonesta,

Inc., No. 96-0531, 1996 U.S. Dist. LEXIS 4616, 1996 WL 169237

(E.D. La. Apr. 10, 1996); Ladner v. Alexander & Alexander, Inc.,

879 F. Supp. 598 (W.D. La. 1995); see also Holden v. Goodyear Tire

& Rubber Co., No. 98-4212-RDR, 1999 U.S. Dist. LEXIS 7019

(D. Kan. Apr. 29, 1999) (holding that asserting a claim under the

FMLA is sufficient to support removal). However, other courts have

held the opposite and remanded FMLA claims back to state court.

See, e.g., Lloyd v. Classic Chevrolet, Inc., 82 Emp|. Prac. Dec. (CCH)

P41 017 (M.D. Fla. Jan. 31, 2002) (removed FMLA claim remanded

to state court).

“maintained” was not intended to reflect a express provision

prohibiting removal, but rather was simply another way of

saying that a suit may be brought in state or Federal court. In

the legislative history for the FMLA, Congress noted that

the FMLA’s “enforcement scheme is modeled on the

enforcement scheme of the FLSA, which has been in effect

since 1938.” The Senate noted

Rights established under the FMLA are

enforceable through civil actions. Under section

107, a civil action for damages or equitable relief

may be brought against an employer in any Federal

or State court of competent jurisdiction by the

Secretary of Labor or by an employee, except that

an employee’s right to bring such an action

terminates if the Secretary of Labor files an action

seeking monetary relief with respeci to that

employee.

S. Rep. No. 103-3 at 3, 35, 45 (1993), reprinted in 1993

U.S.C.C.A.N. 3, 5, 37, 47.4 Nothing in this history suggests

any intent to preclude removal. Indeed, as will be discussed

below, this history suggests that “maintain,” if it means

anything beyond “bring,” implies an intent to allow plaintiffs

to continue suits already filed if the Secretary of Labor

initiates an action.

The Employee Polygraph Protection Act (“EPPA”),

29 U.S.C. § 2001, et seg., provides in 29 U.S.C. § 2005(c)(2)

that “[a]n action to recover the liability prescribed in

paragraph [c}](1) may be maintained against the employer in

4. While it was the Senate version of the FMLA which was

finally adopted, the House Report contained identical language.

See H.R. Rep. No. 103-8, pt 1 (1993).

9

any Federal or State court of competent jurisdiction. .. .”

There is no mention in the legislative history of the EPPA of

an intention to prohibit removal of actions under the EPPA.

Indeed, similar to the FMLA, the Senate Report of the Labor

and Human Resources Committee supporting the legislation

states that the EPPA “provides for private civil actions by

employees or applicants against employers who violate the

Act, for appropriate legal or equitable relief in any federal

or state court of competent jurisdiction.” See S. Rep.

No. 100-284 at 52 (1988), reprinted in 1988 U.S.C.C.A.N.

726, 740; see also H.R. Rep. No. 100-208 at 14, reprinted in

1988 U.S.C.C.A.N. 726, 752.

The most salient example of the synonymous meanings

of “maintain” and “bring” is contained in the Age

Discrimination in Employment Act of 1967 (“ADEA”),

29 U.S.C. § 621, et seg. The ADEA specifically incorporates

the provisions of 29 U.S.C. § 216(b), including the “may

be maintained” language. See 29 U.S.C. § 626(b) (“The

provisions of this chapter shall be enforced in accordance

with the powers, remedies, and procedures provided in

sections 211(b), 216, and 217 of this title”).° However, the

ADEA also provides that “[a]ny person aggrieved may bring

a civil action in any court of competent jurisdiction for such

legal or equitable relief as will effectuate the purposes of

this chapter.” 29 U.S.C. § 626(c)(1) (emphasis added).

See also Yellow Freight Sys., Inc. v. Donnelly, 494 U.S. 820,

5. Lower courts have also split on whether the ADEA permits

removal. See Baldwin v. Sears, Roebuck & Co., 667 F.2d 458, 460-

61 (Sth Cir. 1982) (ADEA case initially filed in state court is

removable); Winebarger v. Logan Aluminum, 839 F. Supp. 17 (W.D.

Ky. 1993) (same); Jacobi v. High Point Label, Inc., 442 F. Supp. 518

(same); but see Lemay v. Budget Rent A Car Sys., 993 F. Supp. 1448

(M.D. Fla. 1997) (FLSA and ADEA claims not removable)

10

825 (1990) (holding that state courts have concurrent

jurisdiction to hear claims under Title VII and noting that

claims under the ADEA “may be brought ‘in any court of

competent jurisdiction.”’”). Nothing in the text of the ADEA

suggests that the intent of Congress was to prohibit removal

of ADEA cases filed in state court to Federal court or that

Congress would purposely create conflicting provisions.

In fact, the legislative history simply notes that the ADEA

“gives aggrieved individuals power to bring civil actions for

legal and equitable relief,” and is silent as to any intent to

prevent removal of ADEA actions. H.R. Rep. No. 90-805

(1967), reprinted in 1967 U.S.C.C.A.N, 2213, 2223. ~

Adopting Petitioner’s reading of section 216(b) would

lead to a direct conflict between different sections of the

ADEA. Under the rules of statutory construction, “[w]Jhen

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.” Vimar Seguros y

Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995)

(quoting Morton v. Mancari, 417 U.S. 535, 551 (1974)).

Thus, the Court is required to read the ambiguous language

of section 216(b) in concert with that section 626(a)(1) and

hold that it is not an express provision prohibiting removal.

That Congress does not necessarily mean by the word

“maintain” something different than “bring” is also shown

in the history of Chapter 443 of Title 49 of the U.S. Code.

That chapter authorizes the Secretary of Transportation to

offer insurance and reinsurance to air carriers conducting

flights necessary to carry out the foreign policy of the United

States Government. The statute, as originally enacted in the

Federal Aviation Act of 1958, provided that a suit under its

provisions “may be maintained” in a district court or in the

11

Court of Federal Claims. P.L. 85-726, § 1310, 72 stat. 805

(1958). However, as part of a “bill to revise, codify, and enact

without substantive change certain general and permanent

laws, related to transportation,” the 103 Congress enacted

Public Law 103-272, Sec. 1(e), 108 Star. 1172 (1994),

which substituted “a person may bring” for “may be

maintained.” 49 U.S.C. § 44309. The legislative history

for this enactment states that the substitution was made

“for clarity.” See H.R. Rep. 103-180 at 334 (1994), reprinted

in 1994 U.S.C.C.A.N. 818, 1151.

As illustrated, Congress regularly utilizes the term

“maintain” as a synonym for “bring.” All that petitioner has

shown is an instance of inconsistent Congressional usage,

not an express provision prohibiting removal.

2. Even If “May Be Maintained” Means Something

Other Than “May Be Filed,” It Does Not Mean

Removal Is Prohibited

Petitioner argues at length that “maintain” means

something beyond mere filing. Ironically, Petitioner assumes,

rather than supports, the proposition that this “something”

is a prohibition on removal.

Even if “maintain” means something beyond mere

commencement of an action, it does not follow that it

necessarily means “keep in state court.” There are at least

two reasons that are consistent with the FLSA why “maintain”

could mean something beyond mere filing without

implicating removal. |

First, the language of Section 16(b) of the FLSA did not

merely grant an employee the right to file suit; it granted

“any one or more employees for and in behalf of himself or

12

themselves and other employees similarly situated” the right

to “maintain” an “action.” This language has led some courts

to conclude that the provisions of Federal Rule of Civil

Procedure 23 do not apply to Section 16(b) collective actions.

Bayles v. American Medical Response of Colorado, 950 F.

Supp. 1053, 1066 (D. Colo. 1996) (citing cases). That the

language “may be maintained” refers to the right to institute

and continue an action collectively rather than constituting

a prohibition on removal is implicit in this Court’s own

interpretation. In Hoffman-La Roche, Inc. v. Sperling, this

Court cited the “may be maintained” language of Section

16(b), subsequently concluding that the provision “expressly

authorizes employees to bring collective ... actions... .”

and to “proceed collectively.” 493 U.S. 165, 167, 170 (1989)

(emphasis added).

Second, the word “maintain” developed additional

meaning when Congress amended the FLSA in 1949 to

provide standing for the “Administrator” (subsequently the

Secretary of Labor) to bring actions under Sections 16 and

17, (P.L. 81-393, §§ 14-15, 63 Stat. 910, 919 (1949)), and

subsequently amended the act in 1961 to terminate the right

of an employee to “bring” or to “join” an action, without

expressly prohibiting the employee from continuing one,

upon the filing of an action by the Secretary of Labor.

See P.L. 87-30, § 12(a), 75 Stat. 65, 74 (1961). The word

“maintain” thus came to symbolize the ability of an employee

to continue an individual or collective action even after the

Secretary filed suit, and Congress itself used the word

“maintain” in that context in the legislative history for the

1961 amendment. See Burns v. Equitable Life Assurable Soc.,

696 F.2d 21, 23 (2d Cir. 1982), citing Conf. Rep. 327, 87th

Cong. Ist Sess. 20, 1961 U.S.C.C.A.N. 1706, 1714.

13

Because the word “maintain” has meaning within the

FLSA far more directly pertinent than the concept of

prohibiting removal, Petitioner’s argument that the

Congressional usage of “maintain” must mean a prohibition

on removal merely because it means something beyond “file”

is a non sequitur, and does not support a contention that

removal was expressly prohibited.

C. When Congress Has Intended To Prohibit Removal,

It Has Done So Clearly, Even Prior To The

Amendment Of The Removal Statute

The general removal statute provides that cases initially

filed in state courts over which a Federal district court has

original jurisdiction are subject to removal to a Federal

district court, unless Congress has expressly provided

otherwise. Specifically, 28 U.S.C. § 1441(a) provides, in

pertinent part, 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.

28 U.S.C. § 1441(a). Thus, unless Congress has expressly

provided otherwise, a case filed in state court based upon a

Federal law is subject to removal to district court, if the case

originally could have been filed in Federal court. City of

Chicago v. International College of Surgeons, 522 U.S. 156,

163 (1997) (citing Caterpillar Inc. v. Williams, 482 U.S. 386,

392 (1987) (“Only state-court actions that originally could

14

have been filed in federal court may be removed to federal court

by the defendant.”)); Franchise Tax Bd. of California v. Constr.

Laborers Vacation Trust for S. Cal., 463 U.S. 1, 8 (1983).

As argued earlier, the starting point for interpreting a statute

is the statute itself. See Alvarez-Sanchez, 511 U.S. at 356;

Hallstrom, 493 U.S. at 25. In this case, the language of the

operative statute is clear: it requires an act of Congress which

“expressly provides” that removal is prohibited. There is no

dispute that the Federal district courts have original jurisdiction

to hear claims brought against employers pursuant to the FLSA.°

Thus, the issue in this case is whether the term “may be

maintained” in the FLSA satisfies the “expressly provided”

requirement and therefore represents an exception to the general

rule of the removal statute. The district court and the Eleventh

Circuit held that the FLSA did not expressly provide that removal

was not permitted.

In affirming the district court, the Eleventh Circuit noted ~

that when Congress intends to exempt a cause of action

from the general removal provisions, Congress does so with

specificity. Breuer v. Jim's Concrete of Brevard, Inc., 292 F.3d

1308, 1310 (11th Cir. 2002).

Congress has explicitly prohibited removal of certain suits

filed in state court asserting Federal law claims.’ These

6. Congress has provided that “[t}he district courts shall have

original jurisdiction of all civil actions arising under the Constitution,

laws, or treaties of the United States.” 28 U.S.C. § 1331. It is clear

that Petitioner’s FLSA claim is a civil action arising under the laws

of the United States.

7. Congress also provided, in 1958, that notwithstanding

diversity jurisdiction, actions arising under state worker’s

compensation laws are not subject to removal. P.L. 85-554, § 5, 72

Stat. 415 (1958) (codified in 42 U.S.C. § 1445(c) (2003)).

15

specifically enumerated causes of action that are not subject

to removal include an action in state court against a railroad

under the Federal Employers’ Liability Act, 45 U.S.C.

§§ 51-54, 55-60, and a civil action under section 40302

of the Violence Against Women Act of 1994, 42 U.S.C.

§ 13981.° 28 U.S.C. §§ 1445(a), (d). In addition, a civil action

against a carrier or its receivers or trustees to recover damages

for delay, loss, or injury of shipments, under 49 U.S.C.

§ 11706 or 49 U.S.C. § 14706, may not be removed to

any district court “unless the matter in controversy

exceeds $10,000, exclusive of interest and costs.” 42 U.S.C.

§ 1445(d). Congress has also provided that actions brought

pursuant to the Securities Act of 1933 are not subject to

removal. 15 U.S.C. § 77(v)(a) (“no case arising under this

subchapter and brought in any State court of competent

jurisdiction shall be removed to any court of the United

States.”) Similarly, both 15 U.S.C. § 1719 and 15 U.S.C. |

§ 3612 state, in part, that “[n]o case arising under this chapter

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.”

Many of these causes of action that are not subject to

removal were enacted prior to the passage of the FLSA in

1938. For example, the relevant provision of the Federal

Employers’ Liability Act was enacted on April 5, 1910. 36

Stat. L. 291, c. 143. See, generally, Great Northern Ry. Co.

v. Alexander, 246 U.S. 276, 280 (1918). The relevant portion

of the Securities Act of 1933 was enacted on May 27, 1933.

Others, like the prohibition on removal of certain actions

8. In United States v. Morrison, 529 U.S. 598 (2000), this Court

determined that the civil enforcement provision of the Violence

Against Women Act was unconstitutional.

16

based upon the Violence Against Women Act, were enacted

long after the FLSA. In either case, Congress has made it

clear that suits filed under these statutes are not subject to

removal.

Unlike these statutes, the language of the Fair Labor

Standards Act is simply not explicit about whether or not it

prohibits removal to Federal district court. Section 216(b)

only provides, in pertinent part, that an action under the FLSA

(or Equal Pay Act)’ “may be maintained against any employer

... 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.”'°

The language of section 216(b) does not contain the explicit

prohibition on removal that is found in these other statutes

where the Congressional intent to prohibit removal is clear.

In light of the ability of Congress, both before and after

the enactment of the FLSA, to clearly express when removal

is not permitted, the argument that “may be maintained” is

an express prohibition on removal flies in the face of

Congressional usage and practice.

9. The Equal Pay Act, 29 U.S.C. § 206(d), relies upon the

enforcement provisions of the FLSA.

10. Originally, the FLSA provided that an action “may be

maintained in any court of competent jurisdiction. .. .” The FLSA

was amended in 1974 to the current language. Fair Labor Standards

Amendments of 1974, P. L. 93-259 § 6(d)(1), 88 Star. 61 (1974).

17

D. Pre-1948 Judicial Interpretations Of The Phrase

“May Be Maintained,” Even Those Construing The

Phrase As Proscribing Removal, Acknowledge That

The Phrase “May Be Maintained” Is Ambiguous

When Congress revised the general removal statute in

1948 to incorporate the phrase “[e]xcept as otherwise

expressly provided by Act of Congress ...,” it also

consolidated the removal provisions contained in the various

statutes relating to removal. 28 U.S.C. § 1441(a). The revised

and current removal statute makes it unequivocally clear that,

except as expressly provided by an Act of Congress, a

defendant may remove any civil action that could have been

originally brought in Federal court. See 28 U.S.C. § 1441(a).

Prior to this 1948 revision, a provision requiring

“express” prohibition of removal did not exist in the various

statutes relating to removal. See 28 U.S.C. § 71 (1940).

Accordingly, prior to 1948, the issue of whether FLSA’s “may

be maintained” language proscribed removal was not

analyzed in relation to today’s requirements. However,

even without the guidance of 28 U.S.C. § 1441, the issue

was extensively examined by the courts and yielded to

numerous “irreconcilable conclusions.” Korell v. Bymart,

Inc., 101 F. Supp. 185, 185 (E.D.N.Y. 1951). Some of these

cases have been cited by Petitioner in his Brief.

For example, there is a line of cases interpreting the

“may be maintained” language of § 216(b) as meaning that a

case commenced in state court must remain in state court.

That line of cases has its genesis in Johnson v. Butler Bros.,

162 F.2d 87, 89 (8th Cir. 1947), which held that, by using

the phrase “may be maintained,” Congress demonstrated its

intent to grant plaintiffs the right to designate the forum in

18

which their lawsuits will both be brought and prosecuted to

final judgment.

The Johnson case was decided one year before Congress

revised 28 U.S.C. § 1441. As such, the reasoning in Johnson

and its prodigy were superceded by those revisions, which

were designed to eliminate these ambiguities and conflicting

interpretations. As the Reviser’s Notes to 28 U.S.C. § 1441

elucidated, these revisions were “intended to resolve

ambiguities and conflicts of decisions.” See Reviser’s Notes

to 28 U.S.C. § 1441 (cited in Asher v. William L. Crow Constr.

Co., 118 F. Supp. 495, 496 (S.D.N.Y. 1953)).

The Johnson court did not in any way decide that the

“may be maintained” language was an unambiguous

expression of Congress’ intent. Indeed, the Johnson court,

because it made its decision prior to the 1948 amendment,

had no reason to consider whether the word “maintain” was

an express directive of non-removability. Rather, the court,

observing that “[t]his question as to the intent of Congress

has given the Federal district courts much difficulty,” found

that “[flor this unfortunate situation the courts are not to

blame. It is attributable to the failure of Congress clearly

and accurately to express its intent.” 162 F.2d at 89.

Therefore, the Johnson court construed legislative intent not

from the plain meaning of the text, but rather through various

intrinsic and extrinsic sources of interpretation. '!

11. Indeed, the first and only circuit court prior to the present

case to address the issue since the 1948 amendment held that

“(t]he words ‘may be maintained’ are ambiguous; at best they are

suggestive. They are not an express provision barring the exercise of

the right to removal.” Cosme Nieves v. Deshler, 786 F.2d 445, 451

(ist Cir.), cert. denied, 479 U.S. 824 (1986).

19

Likewise, even the district court cases prior to Johnson

that rejected removability interpreted the phrase as

ambiguous, as evidenced by their reliance upon extrinsic

interpretive aids. See, e.g., Booth v. Montgomery Ward &

Co., 44 F. Supp. 451, 455-56 (D. Neb. 1942) (finding that

“[pjerhaps the word is not imperatively convincing” and

looking beyond text to legislative purpose and to “popular

thinking” that the word “maintained” enjoyed a “liberal

connotation”); Fredman v. Foley Bros., Inc., 50 F. Supp. 161

(W.D. Mo. 1943) (to resolve ambiguities, looking beyond

text to evaluate legislative history, legislative purpose, and

the use of “maintained” in other statutes); Brantley v. Augusta

Ice & Coal Co., 52 F. Supp. 158, 159 (D. Ga. 1943)

(interpreting ambiguities by looking to “[t]he tokens of

intention [both] within the statute and outside of it”); Young

v. Arbyrd Compress Co., 66 F. Supp. 241, 242 (E.D. Mo.

1946) (to resolve ambiguities, looking beyond text to

Congressional Record and other interpretive aids); Garner

v. Mengel Co., 50 F. Supp. 794, 796 (W.D. Ky. 1943) (in

deciding which interpretation of the term “maintain” to adopt,

declaring “[t]his Court feels that there is strong support for

each viewpoint”).

Courts that upheld the removability of FLSA actions

prior to 1948 also perceived this “may be maintained”

language as ambiguous. See, e.g., Sonnesyn v. Federal

Cartridge Co., 54 F. Supp. 29, 32 (D. Minn. 1944) (“so many

different and conflicting constructions appear to have been

given to the word, according to the citations in Corpus Juris,

that its character for exactitude of meaning is badly

damaged”); Ricciardi v. Lazzara Baking Corp., 32 F. Supp.

956, 958 (D.N.J. 1940); Owens v. Greenville News-Piedmont,

43 F. Supp. 785, 789 (D.S.C. 1942).

20

Courts have struggled with interpreting FLSA’s “may be

maintained” language for over 60 years. The ongoing

divergence in interpretations demonstrates the ambiguities

inherent in the phrase. The fact that Congress has had the

time and ability throughout this timeframe to expressly

prohibit removal, but has chosen not to do so, despite

otherwise amending the FLSA, further supports the

conclusion that Congress did not intend to prohibit removal

of FLSA action to Federal court. See Roseman v. Best Buy

Co., 140 F. Supp. 2d 1332, 1334 (S.D. Ga. 2001).

While there is no consensus as to the meaning of the

phrase “may be maintained,” courts generally are in

agreement that the language is ambiguous. Since there is no

“express” provision in the FLSA capable of consistent

interpretation, the requirement of 28 U.S.C. § 1441(a) has

not been met.

DENYING REMOVAL OF FLSA CASES WOULD

INCREASE UNCERTAINTY AND INCONSISTENCY

IN THE APPLICATION OF FEDERAL LABOR AND

EMPLOYMENT STATUTES

Petitioner’s reading would increase confusion and

inconsistency in the application of Federal labor and

employment law. If Petitioner’s argument were adopted, then

the complex thicket of Federal labor and employment law

would become even more tangled for both employees and

employers.

While resolving the FLSA issue, a decision by this Court

reversing the Eleventh Circuit would raise the issue of

whether cases arising under the ADEA, FMLA, EPA and

21

EPPA, statutes relying upon or incorporating the same

language found in the FLSA, are subject to removal to Federal

court. This decision would create a quagmire of jurisdictional

questions for counsel on all sides of employment cases.

Claims arising under one set of Federal laws would be subject

to removal, while similar claims under other Federal laws

might not be.

It is generally conceded that claims of individuals

asserting discrimination in violation of Title VII based upon

their race, color, national origin, sex, or religion may be filed

in state court, but are subject to removal. See, e.g., Yellow

Freight Sys., Inc. v. Donnelly, 494 U.S. 820, 825 (1990)

(holding that state courts have concurrent jurisdiction to hear

claims under Title VII). The same is true with claims of

disability discrimination under the ADA.'? However, claims

of age discrimination under the ADEA, a statute interpreted

consistent with Title VII'*, might not be subject to removal.

Nor might those suits of individuals alleging violations of

the FMLA, even though closely-related ADA cases could be

removed. Wage discrimination claims based upon gender risk

the same inconsistent treatment. Under Petitioner’s analysis,

a claim brought under the Equal Pay Act would not be subject

to removal, because the EPA utilizes the FLSA’s enforcement

mechanism. See 29 U.S.C. § 206(d)(3). If the claim arose

under Title VII, it could be removed.

12. Title I of the ADA is enforced through the procedures

established for Title VII. See 42 U.S.C. § 12117(a).

13. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 141-42 (2000).

22

In addition, while the AFMA has the utmost respect for

state court judges,'* and its members litigate many matters

in state courts, the potential for inconsistent rulings will

expand greatly if the Court adopts Petitioner’s position.

Already employers are confronted with the expense of having

to ensure compliance with intertwined and overlapping

Federal, state and local employment laws and regulations.

Adopting Petitioner’s proposed reading of the FLSA would

mean that employers would have to worry not only about

how the terms of the Federal employment laws have been

interpreted by the United States Courts of Appeals, but also

by each of numerous states’ appellate courts.

The State of Florida, where this case arises, provides

a salient example. With most FLSA cases now either

being filed in or removed to Federal court,'’ Florida

employers (and their counsel) can rely upon the decisions of

the Eleventh Circuit Court of Appeals as binding precedent

to guide their application of the act to their workforces.

AFMA members not only represent their clients in FLSA

litigation, but are routinely called upon to provide advice

and assistance regarding FLSA compliance by these

employers. If Eleventh Circuit appellate precedent is on point,

Florida employers can be certain of the state of the law

throughout the Federal courts of the State of Florida, as well

14. See, generally, Martin v. Hunter's Lessee, 14 U.S. 304, 346-

47 (1816).

15. Because of the prevalence of FLSA litigation in Federal

court, Federal judges are more likely, in many lawyers’ views, to

have experience interpreting the FLSA. The AFMA has no doubt

that state court judges can develop this expertise, if called upon, but

its members often prefer to seek a Federal tribunal which may already

have this expertise in interpreting Federal law.

23

as Georgia and Alabama. Since an employer’s compliance with

the FLSA requires analysis of the act’s requirements, and, in

particular, correct application of the so-called “white collar”

exemptions, certainty and consistency in decisions interpreting

the law are crucial to effective personnel management.

Within the Florida State Court system, however,

consistency will be more elusive. In addition to the Florida

Supreme Court, which like this Court is a court of limited

jurisdiction,'® Florida has five intermediate appellate courts,

the District Courts of Appeal. See Art. V, § 4(b), FLa. Const.;

§§ 35.01-35.043, FLa. Stats. (2002). The jurisdiction of these

courts is divided geographically. Decisions of one of the

District Courts of Appeal are not binding on another. State v.

Dwyer, 332 So. 2d 333, 335 (Fla. 1976); Virginia Ins.

Reciprocal v. Walker, 765 So. 2d 229, 233 (Fla. lst DCA

2000), review granted, 779 So. 2d 275 (Fla. 2001);

McDonald's Corp. v. State of Florida Dept. of Transp., 535

So. 2d 323, 325 (Fla. 2d DCA 1988); Durham v. Palm Court,

Inc., 558 So. 2d 59, 60 (Fla. 4th DCA 1990). The Florida

Supreme Court may, but is not required to, resolve certified

inter-district conflicts. Art. V, § 3(b)(4), Fla. Const. Most

significantly, while the decisions of this Court on matters of

Federal law are binding on all Florida tribunals,'’ the

decisions of the U.S. Circuit Courts of Appeals, and most

notably the Eleventh Circuit, are not. Gross v. State, 765

So. 2d 39,45 (Fla. 2000); Pignato v. Great Western Bank,

664 So. 2d 1011, 1015 (Fla. 4th DCA 1995); Donald &

Co. Securities v. Mid-Florida Community Servs., Inc., 620

So. 2d 192, 193-94 (Fla. 2d DCA 1993). As a result, an

16. Art. V, § 3(b), Fia. Const.

17. See Howlett v. Rose, 496 U.S. 356, 366 n.14, 369 n.16

(1990).

24

employer with operations in Tampa and Orlando, major cities

less than 90 miles apart and both within the jurisdiction

of the U.S. Middle District, is subject to the potentially

conflicting decisions of two different state appellate courts.'*

In its decision below, the Eleventh Circuit encouraged

this Court to resolve the issue of removal under the FLSA,

concluding that “litigants should not be treated with such

disparity. . . .” 292 F.3d at 1310. The AFMA wholeheartedly

agrees with this sentiment, and believes it applies to the

outcome of this case as well. Labor law is already complex

enough for employers who attempt in good faith to comply

with Federal labor and employment laws. Absent clear

Congressional intent, it is unnecessary and unwise to subject

litigants to the disruptive effects of the potential inconsistency

and forum-shopping that eliminating removal from state

courts in FLSA cases may bring. The AFMA thus requests

this Court to affirm the decision of the Eleventh Circuit and

to confirm the removal jurisdiction of the district courts in

FLSA and similar cases.

18. The city of Tampa, in Hillsborough County, lies within the

jurisdiction of the Second District Court of Appeal. The city of

Orlando, within Orange County, lies within the jurisdiction of the

Fifth District Court of Appeal.

25

CONCLUSION

The AFMA requests that the Court affirm the Eleventh

Circuit, adopt the reasoning of that Court and of the First

Circuit in Cosme Nieves v. Deshler, 786 F.2d 445 (ist Cir.

1986), and lay to rest this issue once and for all.

Respectfully submitted,

Peter W. ZINOBER

Counsel of Record

FRANK E. BROWN

Ryan D. Barack

ZiNOBER & McCrea, P.A.

Attorneys for Amicus Curiae

201 East Kennedy Boulevard

Suite 800

Tampa, Florida 33602

(813) 224-9004