Breuer v. Jim's Concrete of Brevard, Inc., 538 U.S. 691, 9 (2003)

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Cite as: 538 U. S. 691 (2003)

Opinion of the Court

any civil action to any other district or division where it might have been brought").

It is, finally, a like concern about consequences that leaves us with fatal reservations about Breuer's pragmatic appeal that many claims under the FLSA are for such small amounts that removal to a sometimes distant federal court may make it less convenient and more expensive for employees to vindicate their rights effectively. This may often be true, but even if its truth somehow justified winking at the ambiguity of the term "maintain," the implications would keep us from going Breuer's way. A number of other statutes incorporate or use the same language as § 216(b), see 29 U. S. C. § 626(b) (providing that the Age Discrimination in Employment Act of 1967 "shall be enforced in accordance with the powers, remedies, and procedures provided in" § 216(b) and other sections of the FLSA); § 2005(c)(2) ("An action to recover the liability prescribed [under the Employee Polygraph Protection Act of 1988] in paragraph (1) may be maintained against the employer in any Federal or State court of competent jurisdiction"); § 2617(a)(2) ("An action to recover the damages or equitable relief [under the Family and Medical Leave Act of 1993] prescribed 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"). Breuer, then, cannot have a removal exception for the FLSA without entailing exceptions for other statutory actions, to the point that it becomes just too hard to believe that a right to "maintain" an action was ever meant to displace the right to remove.3

3 Breuer points to two nonjudicial authorities that do nothing to assuage our skepticism. He calls our attention to the position taken by the Administrator of the Wage and Hour Division, United States Department of Labor, in an amicus brief filed before the Eighth Circuit in Johnson v. Butler Bros., 162 F. 2d 87 (1947), arguing that the text of the FLSA and the policies motivating its passage demonstrate that FLSA actions may

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