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

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Supreme Court of the United States

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PHILLIP T. BREUER,

Petitioner,

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JIM’S CONCRETE OF BREVARD, INC.,

Respondent.

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On Writ Of Certiorari To The

United States Court Of Appeals

For The Eleventh Circuit

°

BRIEF OF HUMAN RESOURCE ASSOCIATION

OF PALM BEACH COUNTY AND NATIONAL

COUNCIL OF CHAIN RESTAURANTS AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

SJ

CHRISTINE D. HANLEY

Counsel of Record

SALLY STILL

Betty L. DUNKUM

CHRISTINE D. HANLEY &

Assoc., P.A.

1000 Southern Boulevard — 2nd Floor

West Palm Beach, Florida 33405

(561) 659-5646

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

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INTEREST OF THE AMICI CURIAE ..............00ccc0e0000 1

SUMMARY OF ARGUMENT..................::sesessssesecseeeeeeees 2

PTE ceenrrmiennisemmesenmeicemmmmniebiinanenie 4

I.

IT.

ITT.

THE PLAIN LANGUAGE OF 29 U.S.C.

§ 216(B) DOES NOT EXPRESSLY BAR RE-

MOVAL OF AN FLSA ACTION FILED IN

STATE COURT; PETITIONER’S INTERPRE-

TATION OF THE WORD “MAINTAINED” IS

TAKEN OUT OF CONTEXT AND FAILS TO

CONSIDER THE PERMISSIVE WORDS

“MAY BE” IMMEDIATELY PRECEDING THE

WORD “MAINTAINED. ”........ccc0ccccsscossssrssesssereee

THE STATUTES ARE “CLEAR”: ACTIONS

UNDER WORKERS’ COMPENSATION ACTS,

THE JONES ACT, AND THE RAILWAY EM-

PLOYER’S LIABILITY ACT ARE NONRE-

MOVABLE UNDER 28 U.S.C. §1445;

ACTIONS UNDER THE FAIR LABOR STAN-

DARDS ACT ARE REMOVABLE ...............2.0004

THE COURTS DECISION WILL AFFECT

REMOVABILITY OF ACTIONS UNDER THE

AGE DISCRIMINATION IN EMPLOYMENT

ACT AND FAMILY AND MEDICAL LEAVE

ACT, WHICH ARE PATTERNED AFTER THE

FAIR LABOR STANDARDS ACT .............cccce000s

ii

TABLE OF CONTENTS - Continued

Page

IV. AS POLICY CONSIDERATIONS IMPACT

BOTH PLAINTIFFS AND DEFENDANTS IN

FLSA, FMLA, AND ADEA ACTIONS, THIS

COURT SHOULD DEFER TO THE POLICY

DECISION CONGRESS MADE WHEN IT

DID NOT CREATE AN EXPRESS STATU-

TORY PROVISION BARRING REMOVAL OF

iii

TABLE OF AUTHORITIES

Page

CASES CITED

Ayotte v. Home Depot U.S.A., Inc., 2002 WL 524269

(N.D. Tex. January 8, 2002) ............ccccccccccceeeeteeceeeeeeeeeees 12

Baldwin v. Sears, Roebuck and Company, 667 F.2d

Ee 12

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

ener 12

Ching v. Mitre Corporation, 921 F.2d 11 (1st Cir.

EL OE 12

Dep't of Housing and Urban Dev. v. Rucker, 535

U.S. 125, 122 S. Ct. 1230 (2002).....................0008 soncvcenece 10

Henriquez v. Royal Sonesta, Inc., 1996 WL 169237

ER Eee 12

Johnson v. Butler Bros., 162 F.2d 87 (8th Cir. 1947)...12, 13

Kovalic v. DEC International, Inc., 855 F.2d 471

III TTT tittle areca italaleasiarntaentiieniieniaitinenebinents 12

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

IIE, ID. TT ste ecesepipeenmnprsinmnipeinenastadeaemuntnen 12

Lemay v. Budget Rent a Car Systems, Inc., 993

F. Supp. 1448 (M.D. Fla. 1997) ................ccccceeeeees 7, 12,14

Lloyd v. Classic Chevrolet, Inc., 2002 WL 989470

8 GF 12, 13

McKee v. Merritt-Chapman & Scott Corp., 144

GEA SEES. SUSI cccsnsmenmencnsusnteineneneenenmensocens 9

O’Melveny & Myers v. Fed. Deposit Ins. Corp., 512

| nee 11

Pate v. Standard Dredging Corp., 183 F.2d 498 (5th

ESS A ere 9

iv

TABLE OF AUTHORITIES — Continued

Page

Stokes v. Victory Carriers, Inc., 577 F. Supp. 9 (E.D.

UR, ipa hassnssessnsenssnussscesensesnsmmocsinsiengiiientamataniueientenentes 9

Valdivieso v. Atlas Air, Inc., 128 F. Supp. 2d 1371

Ge GD cecsnsessnnsmnnnssnmnpenatmenipnanneennnnen 13

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

Ee Gee SR, Bi ectrennicnsnnsmenpcnsccnmennanniineen 13, 14

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

ey Gee EE Sete ccrtsnscnsnenesenmsnnempentenassnenmneninidenmens 12

STATUTES CITED

15 U.S.C. § 77v(a)........... Pinpenmnnnbinduimmmnndemsinttentnieabatibinii 16

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ad es 0 i eremrewasuntenmniennapnemennnsninnil passim

BD WAG, © BOG cccecssesscsnsecenencscen nenmeoumpeamennen 8,9

28 U.S.C. § 1445(b) sosessensnsesensesesesasensnesnssosseeneesensessnsscensenes 15

i Ce ©) ee crcsrasnccnnentencstiesmanideapincsiitissinnnsstesinii 8

a Cn Oe EE ventenemennnesnennsnnisnsnnnneiapsninninenscniniatigndeig 16

SD DBL. FB SOB 68 6G, cccccecevecsessssvssscrsccessvscvsvessnssssest passim

SE es ee resncrennpenmsestemsennnsenindemmennmeiaiaesmiinensnin 4

a es SCD cecrnccmnensnentnnenseneseestnngemmeeniinintetaniaill passim

I, Fa sicnticssssnitittiviccenininciciciicesiileiliiibiiianaal 5, 6

a ee OID, ccnemennernnnnnniecnsnemanteninenenel 3,11

a Se CUI crcennansenIosnsenseseneninniinnesebemenmtecnmenimmeatsins 11

Vv

TABLE OF AUTHORITIES -— Continued

Page

ES TIENEN, cciccccnscdnscitediiandunpinincenionitinibeantais 3,11

iin rresicrnirnniriainiineinbiiiiaininiemmsialinesienias 12

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ee Se ittenininticnientsarsatiinitniniciariiecititaricneninantanammeniiins 16

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Se ITI hahiiiiteieriisiecnstantentiemntiinemariisiniiatiapienatimensinel 10

OTHER AUTHORITIES

S. Rep. No. 1830 (1958) reprinted in 1958

ee 8,14

The Random House Dictionary of the English

I icteincnnrernencensinentieitetninanennenmeeneniineeel 5,6

1

INTEREST OF THE AMICI CURIAE'

Amicus curiae Human Resource Association of Palm

Beach County (“HRPBC”) formed in 1966 to encourage the

exchange of ideas, the discussion of strategies for resolu-

tion of problems facing human resources professionals,

and the dissemination of information relating to the field

of human resources, by and between its members. HRPBC

members represent over 150 companies operating in Palm

Beach County, Florida. Many of these companies do

business in several states. HRPBC is a chapter of the

Society for Human Resource Management, a national

organization that is the leading voice of the human re-

source profession.

Amicus curiae National Council of Chain Restaurants

(“Council”) is a national trade industry group representing

the interests of forty of the nation’s largest multi-unit,

multi-state chain restaurant companies. Collectively, these

forty companies own and operate in excess of 50,000

restaurant facilities. Additionally, through franchise and

licensing agreements, another 70,000 facilities are oper-

ated under their trademarks. In the aggregate, the Coun-

cil’s member companies and their franchisees employ in

excess of three million individuals in all fifty states.

The food service industry is particularly labor inten-

sive. Accordingly, issues arising under the Fair Labor

Standards Act, 29 U.S.C. §§ 201 et seg. (“FLSA”), such as

Counsel for a party did not author this brief, in whole or in part.

No one, other than the amici curiae, their members, or their counsel,

has made a monetary contribution to the preparation and submission of

this brief. See S. Ct. Rule 37.6.

2

child labor, minimum wage, overtime, and white collar

exemp.ions, disproportionately affect the Council’s mem-

ber companies. Furthermore, without exception, each of

the Council’s member companies operates in more than

one state, and many operate in all fifty states. if the

typical Council member were expected to comply with the

unique interpretations of this federal statute by numerous

state courts, their ability to operate on a multi-state basis

would be severely hampered. Thus, if the decision below

were reversed and FLSA actions held nonremovable, the

resulting procedural burden and judicial uncertainty on

the Council’s member companies would be significant, the

express language of the FLSA would be ignored, and the

sound policy considerations behind the removability of

federal questions would be undermined.

Letters from the parties consenting to the filing of this

brief have been filed with the Clerk of the Court pursuant

to Rule 37.3.

+

SUMMARY OF ARGUMENT

The FLSA is a law of the United States; district courts

have original jurisdiction over laws of the United States,

so defendants may properly remove FLSA actions filed in

state court to federal court. Nothing in the plain language

of 29 U.S.C. § 216(b) expressly bars removal of an FLSA

action. Petitioner’s interpretation of the word “main-

tained” in isolation without considering the preceding

words “may be” is flawed. Rather, the phrase “may be

maintained” appearing in 29 U.S.C. § 216(b) establishes

inter alia, who may bring an action, where one may bring

an action, and against whom one may bring, file or

3

maintain an action — it is not an express prohibition of a

defendant’s right to remove an action to federal court.

Inclusio unius, exclusio alterius (i.e., the inclusion of

one thing indicates the exclusion of the other) is a basic

principle of statutory construction. As support for his

argument, Petitioner relies on language in a 1958 Senate

report. Three of the laws cited in that report contain

express language prohibiting removability, but the FLSA

does not. As Congress did not create an express provision

barring removal of FLSA actions, they are removablé~to >

federal court.

The resolution of the issue of removability will also

resolve whether actions filed under the Age Discrimination

in Employment Act, 29 U.S.C. §§ 621 et seg. (“ADEA”), and

Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.

(“FMLA”) (which are patterned after the FLSA) are

removable to federal court.

As the Court’s opinion will impact both plaintiffs and

defendants in FLSA, FMLA and ADEA actions, this Court

should defer to the decision that Congress made when it

created express statutory provisions governing removal of

a host of other laws, but not the FLSA.

¢

4

ARGUMENT

I. THE PLAIN LANGUAGE OF 29 U.S.C. § 216(B)

DOES NOT EXPRESSLY BAR REMOVAL OF AN

FLSA ACTION FILED IN STATE COURT; PE-

TITIONER’S INTERPRETATION OF THE

WORD “MAINTAINED” IS TAKEN OUT OF

CONTEXT AND FAILS TO CONSIDER THE

PERMISSIVE WORDS “MAY BE” IMMEDI-

ATELY PRECEDING THE WORD “MAIN-

TAINED.”

The ultimate issue before this Court is whether an

action filed in state court pursuant to 29 U.S.C. § 216(b) of

the Fair Labor Standards Act may be removed to federal

court. Certain statutes control the resolution of the issue

before this Court. First, 29 U.S.C. §§ 201 et seqg., the FLSA,

is a law of the United States enacted by Coreress in 1938

through the exercise of its power to regulate commerce. 29

U.S.C. § 202. Second, 28 U.S.C. § 1331 grants to district

courts original jurisdiction over all civil actions arising

under the laws of the United States. Third, 28 U.S.C.

§ 1441(a) states that except as otherwise expressly pro-

vided, civil actions brought in state court, of which the

district court has original jurisdiction, may be removed by

the defendant.

Thus, because the FLSA is a matter over which the

federal courts have original jurisdiction, a defendant may

remove an FLSA action except as otherwise expressly —

provided. The specific question is then whether there is

any express language in the FLSA, or elsewhere, denying

a defendant the right to remove an action filed in state

court to federal court, and more particularly, exactly what

does “expressly provided” mean?

5

Petitioner argues that the language contained in 29

U.S.C. §216(b) evinces Congress’s intent to preclude

removal of any FLSA action filed in state court. Petitioner

asserts that this language is, in fact, express denial of the

right to remove:

[A]n action to recover the liability prescribed in

either of the preceding sentences may be main-

tained against any employer (including a public

agency) in any Federal or State court of compe-

tent jurisdiction by any one or more employees

for and in behalf of himself or themselves and

other employees similarly situated. ... The right

provided by this subsection to bring an action

..., Shall terminate upon the filing of a com-

plaint by the Secretary of Labor in an action un-

der 29 U.S.C. § 217 of this title. . . . ’

29 U.S.C. § 216(b).

However, express language is “clearly indicated,

distinctly stated; definite; explicit; plain.” The Random

House Dictionary of the English Language 503 (un-

abridged ed. 1973). Surely, if the language of the FLSA

was, indeed, an express prohibition of removability,

Petitioner would not require a forty page Brief On The

Merits to convince this Court that his position is sound.

Amici assert that nothing in the plain language quoted

above forecloses removal, as it contains no express lan-

guage prohibiting removal. Cf, eg., 28 U.S.C. § 1445

(express nonremovability discussed below).

* 29 U.S.C. § 217, in turn, provides that “The district courts ...

shall have jurisdiction, for cause shown, to restrain violations of § 215

of this title. ...” 29 U.S.C. § 217 (emphasis added).

6

Petitioner’s argument is also flawed in that Petitioner

conspicuously fails to address the implications of the word

“may” appearing immediately before the words “be main-

tained.” Amici note first that “may” is permissive rather

than prohibitive language: it explains the rights, opportu-

nities, and avenues available to a plaintiff, but it does not

preclude or limit defendants’ rights. See, e.g., The Random

House Dictionary of the English- Language 886 (un-

abridged ed. 1973) (defining “may” as “used to express

possibility, opportunity, or permission”). Thus, the phrase

“may be maintained,” read in context and in conjunction

with the other words appearing in the same sentence,

simply establishes who may bring an action, where one

may bring an action, why one may bring an action, and

against whom one may file, bring, or maintain an action.

Petitioner also attempts to distinguish the words “file”

and “bring” from “maintain” and then transmogrify that

distinction into an express denial of removability, contrary

to the plain language of the section. Moreover, when

comparing the “may be maintained” language in 29 U.S.C.

§ 216(b) to language in 29 U.S.C. § 217, it is apparent that

the term is not nearly as significant as Petitioner believes

it to be. 29 U.S.C. § 217 directs that, when the Secretary of

Labor files an action for injunctive relief, the action “shall

be filed in district court.” 29 U.S.C. § 217 never uses the

term “maintained.” Yet, it is understood that the Secretary

will maintain the action, not merely file the action, in

federal court.

In sum, while Petitioner tempts this Court to parse

out the word “maintain” from its surrounding language, it

is the collection of words in the phrase “may be main-

tained” that imparts the meaning of the section. Amici

assert that a straightforward reading of the express

—-

7

language of the section permits defendants to remove

FLSA actions to federal court.

Il. THE STATUTES ARE “CLEAR”: ACTIONS

UNDER WORKERS’ COMPENSATION ACTS,

THE JONES ACT, AND THE RAILWAY EM-

PLOYER’S LIABILITY ACT ARE NONREMOV-

ABLE UNDER 28 U.S.C. § 1445; ACTIONS

UNDER THE FAIR LABOR STANDARDS ACT

ARE REMOVABLE.

Contrary to the view of the minority of courts that

have addressed this issue, the language in a 1958 Senate

report does not “clearly” show that actions under the FLSA

are not removable to federal court. See, e.g., Lemay v.

Budget Rent a Car Systems, Inc., 993 F. Supp. 1448, 1450

(M.D. Fla. 1997) (“[T]he report clearly states if an FLSA

action is filed in State court, ‘the law prohibits removal to

the Federal court.’”). To the contrary, and as shown below,

the removal provisions of the statutes discussed in the

Senate report “clearly” demonstrate Congress’s intention

to allow removal of FLSA actions.

Petitioner claims that Congress intended that actions

under the FLSA not be removed to federal court. Peti-

tioner relies in part on the following statement from a

1958 Senate report on a bill which, among other things,

expressly prohibits the removal of state court civil actions

arising under state workers’ compensation laws:

Congress itself has recognized the inadvisability

of permitting removal of cases arising under its

own laws that 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

8

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. This pro-

posed legislation accomplishes this same purpose

and grants the same privilege to workmen who

are entitled to compensation under the State

workmen’s compensation act — that is, the work-

man has the option to file his case in either the

Federal or the State court. If he files in the State

court it is not removable to the Federal court.

S. Rep. No. 1830 (1958), reprinted in 1958 U.S.C.C.AN.

3099, 3106.

The Senate report seems to suggest that the Jones

Act, 46 U.S.C. § 688, the Railway Employers’ Liability Act,

45 U.S.C. §§ 51 et seg. (also known as the Federal Employ-

ers’ Liability Act), and the FLSA have similar removal

provisions and that the “proposed legislation” is just

accomplishing the “same purpose” for state workers’

compensation acts. Yet, contrary to the suggestion con-

tained in the Senate report, when Congress enacted each ©

of these laws, it specifically distinguished the statutory

removal provisions of the Jones Act, Federal Employers’

Liability Act, and state workers’ compensation acts from

the provisions contained in the FLSA.

In 28 U.S.C. § 1445, Congress expressly provided that

civil actions under state workers’ compensation acts and

the Federal Employers’ Liability Act are nonremovable

actions. -See 28 U.S.C. § 1445(c) (civil actions under state

workers’ compensation laws are nonremovable); id.

§ 1445(a) (civil actions against railroads under the Federal

Employers’ Liability Act are nonremovable). In the Jones

9

Act, Congress expressly incorporated by reference “the

general provisions of the Federal Employers’ Liability Act,”

including the provision in 28 U.S.C. § 1445(a) which

“prohibits removal of cases brought in the state court.”

Stokes v. Victory Carriers, Inc., 577 F. Supp. 9, 11 (E.D. Pa.

1983) (holding that suits brought pursuant to the Jones

Act in state court are not removable to federal court)

(citing Pate v. Standard Dredging Corp., 183 F.2d 498, 500

(5th Cir. 1952)); see also Jones Act, 46 U.S.C. § 688(a)

(“Any seaman who shall suffer personal injury in the

course of his employment may ... maintain an action for

damages at law ... and in such action all statutes of the

United States modifying or extending the common-law

right or remedy in cases of personal injury to railway

employees shall apply. . . .”); McKee v. Merritt-Chapman &

Scott Corp., 144 F. Supp. 423 (N.D. Ill. 1956) (granting

motion to remand Jones Act case originally filed in state

court). Thus, the removal of cases under the Jones Act,

Federal Employers’ Liability Act, and state workers’

compensation acts is governed by the express and un-

equivocal language cf 28 U.S.C. § 1445.

Conversely, 28 U.S.C. § 1445 is conspicuously silent as

to the removability of FLSA actions; thus, removal of cases

under the FLSA is not governed by 28 U.S.C. § 1445.

Indeed, there is no provision in 28 U.S.C. § 1445, or

anywhere else in the U.S. Code, expressly providing — as

required by 28 U.S.C. § 1441(a) — that FLSA actions are

nonremovable. To the contrary, unlike the other statutes,

the FLSA provides that actions “may be maintained

against any employer ... in any Federal or State court”;

thus, the plain language of the FLSA does not preclude

removal. See 28 U.S.C. 216(b).

10

Petitioner’s argument as to the significance of the

Senate Report requires this Court to accept the assertions

contained in the Report as straightforward matters of fact.

However, a critical review of these assertions reveals that

the import Petitioner places on the Report is misplaced.

Certainly, the statutes enumerated in the Report all deal

with workers’ compensation of a sort, but they are neither

like nor kind. “Workers’ compensation” is a term of art

used to describe a state scheme to provide medical benefits

and some salary continuation for employees injured on the

job and unable to work (like the Jones Act and the Federal

Employers’ Liability Act). See, e.g., Fla. Stat. §§ 440 et seq.

(2002), id. § 440.015 (“It is the intent of the Legislature

that the Workers’ Compensation Law be interpreted so as

to assure the quick and efficient delivery of disability and

medical benefits to an injured worker and to facilitate the

workers’ return to gainful reemployment. . . ”). Conversely,

the workers’ compensation contemplated by the FLSA

includes minimum wage requirements and overtime pay

for those gainfully employed by an enterprise engaged in

interstate commerce and prescribes, inter alia, child labor

prohibitions and record-keeping requirements. 29 U.S.C.

§§ 201 et seg. Amici respectfully urge this Court to resist

the temptation to accept the Report as dogma -— it is

merely a report and not quite accurate.

Even if the Senate Report correctly portrayed the

relative nature of the statutes discussed within, Petitioner

also errs to the extent he argues that the mere language of

a Congressional report, rather than the language of the

U.S. Code, can determine whether an action is removable.

Dep't of Housing and Urban Dev. v. Rucker, 535 U.S. 125,

___, 122 S. Ct. 1230, 1234 (2002) (“[RJeference to legisla-

tive history is inappropriate when the text of the statute is

i ee

11

unambiguous.”). It is apparent from the language of 28

U.S.C. § 1445 that Congress knows exactly how to make

an express provision against removal within the meaning

of 28 U.S.C. § 1441(a). Three of the laws cited in the

Senate Report have express statutory provisions governing

removability, but the FLSA does not. Jnclusio unius,

exclusio alterius (i.e., the inclusion of one thing indicates

the exclusion of the other) is a basic principle of statutory

construction. See, e.g., O'Melveny & Myers v. Fed. Deposit

Ins. Corp., 512 U.S. 79, 86-87 (1994). Because three

statutes were included within 28 U.S.C. § 1445, and the

statute at issue, the FLSA, was not, actions under the

FLSA are removable to federal court.

Il, THE COURT’S DECISION WILL AFFECT

REMOVABILITY OF ACTIONS UNDER THE

AGE DISCRIMINATION IN EMPLOYMENT

ACT AND FAMILY AND MEDICAL LEAVE ACT,

WHICH ARE PATTERNED AFTER THE FAIR

LABOR STANDARDS ACT.

The removability provisions in the Age Discrimination

in Employment Act, 29 U.S.C. §§ 621 et seg., and the

Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq.,

are patterned after the removability provisions in the

FLSA. Thus, this Court’s decision regarding the remov-

ability of FLSA cases will also affect ADEA and FMLA

cases.

The ADEA expressly adopted the FLSA’s provisions

governing removability of state claims. See 29 U.S.C.

§ 626(b) (“The provisions of this chapter shal] be enforced

in accordance with the powers, remedies, and procedures

provided in 29 U.S.C. §§ 211(b), 216 (except for subsection

(a) thereof), and 217 of this title. . . .”). Similarly the FMLA

12

contains language governing removability of state claims

which mirrors the FLSA. See 29 U.S.C. § 2617(a\(2) (“An

action to recover the damages or equitable relief pre-

scribed in paragraph (1) 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. .. . ”).

Like the federal court split over the meaning of the

“may be maintained” language in the FLSA, see Breuer v.

Jim’s Concrete of Brevard, Inc., 292 F.3d 1308, 1309 (11th

Cir. 2002), federal courts are also split over the meaning of

the same language in the ADEA and FMLA. For example,

in Baldwin v. Sears, Roebuck and Company, 667 F.2d 458

(5th Cir. 1982), Kovalic v. DEC International, Inc., 855

F.2d 471 (7th Cir. 1988), Ching v. Mitre Corporation, 921

F.2d 11 (1st Cir. 1990), and Winebarger v. Logan Alumi-

num, Inc., 839 F. Supp. 17 (W.D. Ky. 1993), the courts held

that ADEA claims could be removed to federal court.

However, in Lemay v. Budget Rent a Car Systems, Inc.,

993 F. Supp. 1448 (M.D. Fla. 1997), the court remanded an

ADEA claim to state court, holding that the “may be

maintained” language requires remand of FLSA and

ADEA cases. See id. at 1449-51 (following Johnson v.

Butler Bros., 162 F.2d 87 (8th Cir. 1947), and its progeny).

Similarly, in Ayotte v. Home Depot U.SA., Inc., 2002

WL 524269 (N.D. Tex. January 8, 2002), Ladner v. Alexan-

der & Alexander, Inc., 879 F. Supp. 598, 599 (W.D. La.

1995), and Henriquez v. Royal Sonesta, Inc., 1996 WL

169237 (E.D. La. April 6, 1996), the district courts allowed

removal of FMLA claims. However, in Lloyd v. Classic

Chevrolet, Inc., 2002 WL 989470 (N.D. Tex. January 31,

2002), the court remanded an FMLA claim to state court,

following the line of cases holding that the similar “may be

13

maintained” language in the FLSA requires remand. See

id. at *1 (citing Johnson and its progeny).

Accordingly, this Court’s decision regarding the

removability of FLSA cases will also affect the removabil-

ity of ADEA and FMLA cases. Amici, as representatives of

labor-intensive businesses operating multi-state, and of

the human resources aspects of businesses operating in

many states, urge this Court to hold that FLSA cases, and

consequently ADEA and FMLA cases, are removable to

federal court.

IV. AS POLICY CONSIDERATIONS IMPACT BOTH

PLAINTIFFS AND DEFENDANTS IN FLSA,

FMLA, AND ADEA ACTIONS, THIS COURT

SHOULD DEFER TO THE POLICY DECISION

CONGRESS MADE WHEN IT DID NOT CRE-

ATE AN EXPRESS STATUTORY PROVISION

BARRING REMOVAL OF FLSA CASES.

The policy considerations underlying the Court’s

decision will impact both plaintiffs and defendants in

FLSA, FMLA, and ADEA actions. Accordingly, this Court

should defer to Congress’s policy decisions that created

express statutory provisions governing removal of a host of

other laws, but not the FLSA. As the Valdivieso court

noted, Congress is best suited to resolve policy considera-

tions. Valdivieso v. Atlas Air, Inc., 128 F. Supp. 2d 1371,

1374 (S.D. Fla. 2001).

The cases supporting Petitioner’s position identify

policy concerns that, these cases argue, might lead this

Court to hold that FLSA actions are nonremovable. For

example, in Wilkins v. Renault Southwest, Inc., 227

F. Supp. 647 (N.D. Tex. 1964), the court pointed to the

14

1958 Senate Report’s concern that the costs of travel are

less in state court than federal court. Jd. at 648 (“Where

the employee commences such a suit in a state court far

removed from the nearest federal court the cost of travel

and subsistence of the claimant, his witnesses and attor-

neys, would amount to a denial of the very cause of action

conferred by Congress in [29 U.S.C.] § 216(b).”); see also S.

Rep. No. 1830 (1958), reprinted in 1958 U.S.C.C.A.N.

3099, 3106 (“Very often cases removed to the federal courts

require the workman to travel long distances and to bring

his witnesses at great expense.”). Amici submit that these

concerns were stated almost fifty years ago, when there

were fewer United States District Courts and transporta-

tion and communication were more difficult and expensive

than they are today. Today, the main cost of an FLSA

action is attorney’s fees, which are a much greater burden

on defendant employers than on plaintiffs, who are often

represented by attorneys on a contingency fee basis.

Moreover, the FLSA has a one-way fee-shifting provision: a

winning plaintiff may obtain attorney's fees from the

defendant, but a winning defendant may not obtain

attorney's fees from the plaintiff. See 29 U.S.C. § 216(b).

In Lemay, another case supporting Petitioner’s posi-

tion, the court stated that one reason for holding that

FLSA actions are nonremovable is that “this Court’s case

load is one of the country’s highest in both civil and crimi-

nal cases,” whereas “state court judges assigned to the

civil division hear only civil cases and can proceed with a

claim more rapidly.” 993 F. Supp. at 1451. Amici observe

that the relative congestion of the federal and state court

dockets in the Middle District of Florida may not be the

same in other areas of this country. Moreover, the court’s

anecdotal observation does not serve to override the

15

statutory language and policy concerns permitting re-

moval of FLSA actions.

Contrary to Petitioner’s claim, many public policy

reasons support removal of FLSA actions. First, the FLSA

has detailed regulations and interpretations: over six

hundred pages of the Code of Federal Regulations are

devoted to interpreting the FLSA, see Regulations Relat-

ing to Labor, 29 C.F.R. Parts 500-899 (2001), and hun-

dreds, if not thousands, of federal cases interpret the

FLSA. Second, if states are allowed to add their own

interpretations of the FLSA into the mix, it will be almost

impossible for multi-state employers to keep track of the

differing laws governing employees in each state. This will

prove particularly costly to employers: the one-way attor-

ney’s fee-shifting provision of the FLSA makes any error ir.

_ FLSA interpretation costly. Finally, certain benefits of

federal court jurisprudence, such as consistency and

uniformity, will be undermined by the lack of removability.

The need for federal court control over-FLSA actions is

especially important in light of the unique “opt-in” proce-

dure found in collective FLSA actions. See 29 U.S.C.

§ 216(b). Consequently, the threat of lack of consistency

and uniformity between the courts is particularly trouble-

some to Amicus HRPBC, whose members are expected to

provide human resources support to businesses operating

both within Florida and outside of Florida, and to Amicus

Council, whose members are concerned with labor inten-

sive operations in all fifty states.

Congress has resolved the policy considerations by

a host of other laws but not creating an express statutory

provision barring removal of FLSA claims. See discussion

supra; see also 28 U.S.C. § 1445(b) (providing that claims

16

under 49 U.S.C. § 11706 or 14706 may only be removed if

the amount in controversy exceeds $10,000); 28 U.S.C.

§ 1445(d) (prohibiting removal of cases brought under the

Violence Against Women Act of 1994); 15 U.S.C. § 77v(a)

(providing that cases under the Securities Act of 1933 may

only be removed in certain circumstances); 15 U.S.C.

§ 1719 (providing that cases under the Interstate Land

Sales Full Disclosure Act shall not be removed unless the

United States or an officer or employee of the United

States in his official capacity is a party). Accordingly,

because Congress has not expressly barred the removal of

FLSA actions despite numerous opportunities to do so

since the FLSA was enacted in 1938, Congress has made

the decision that FLSA actions, and thus ADEA and FMLA

actions, are removable.

+

CONCLUSION

For the foregoing reasons, the judgment below should

be affirmed.

Respectfully submitted,

CHRISTINE D. HANLEY

Counsel of Record

SALLY STILL

Betty L. DUNKUM

CHRISTINE D. HANLEY &

ASSOCIATES, P.A.

1000 Southern Boulevard,

2nd Floor

West Palm Beach, Florida 33405

(561) 659-5646

March 10, 2003