Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691 (2003)

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certiorari to the united states court of appeals for the eleventh circuit

No. 02-337. Argued April 2, 2003—Decided May 19, 2003

Petitioner Breuer sued respondent, his former employer, Jim's Concrete of Brevard, Inc., in a Florida state court for unpaid wages, liquidated damages, prejudgment interest, and attorney's fees under the Fair Labor Standards Act of 1938 (FLSA), which provides, inter alia, that "[a]n action to recover . . . may be maintained . . . in any Federal or State court of competent jurisdiction," 29 U. S. C. 216(b). Jim's Concrete removed the case to the Federal District Court under 28 U. S. C. 1441(a), which reads: "Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the [federal] district courts . . . have original jurisdiction, may be removed by the defendant . . . to the [appropriate federal] district court." Breuer sought an order remanding the case to state court, arguing that removal was improper because 216(b)'s provision that an action "may be maintained" in state court put forward an express exception to 1441(a)'s general removal authorization. Though the District Court denied Breuer's motion, it certified the issue for interlocutory appeal. The Eleventh Circuit affirmed, saying that although Congress had expressly barred removal in direct, unequivocal language in other statutes, 216(b) was not comparably prohibitory.

Held: Section 216(b) does not bar removal of a suit from state to federal court. Breuer's case was properly removed under 1441. Pp. 694-700.

(a) Breuer unquestionably could have begun his action in the District Court under 216(b), as well as under 28 U. S. C. 1331 and 1337(a). Removal of FLSA actions is thus prohibited under 1441(a) only if Congress expressly provided as much. Nothing on the face of 216(b) looks like an express prohibition of removal, there being no mention of removal, let alone of prohibition. While 216(b) provides that an action "may be maintained . . . in any . . . State court of competent jurisdiction," the word "maintain" enjoys a breadth of meaning that leaves its bearing on removal ambiguous at best. "Maintain" in reference to a legal action is often read as "bring" or "file," but "to maintain an action" may also mean "to continue" to litigate, as opposed to "commence" an action. If an ambiguous term like "maintain" qualified as an express provision for 1441(a) purposes, then the requirement of an "expres[s] provi[sion]" would call for nothing more than a "provision," pure and


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