BREUER v. JIM’S CONCRETE OF BREVARD, INC.

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691 OCTOBER TERM, 2002
Syllabus
BREUER v. JIM’S CONCRETE OF BREVARD, INC.
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 [fed-
eral] 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 main-
tained” 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 Con-
gress expressly provided as much. Nothing on the face of § 216(b) looks
like an express prohibition of removal, there being no mention of re-
moval, let alone of prohibition. While § 216(b) provides that an action
“may be maintained . . . in any . . . State court of competent jurisdic-
tion,” 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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692 BREUER v. JIM’S CONCRETE OF BREVARD, INC.
Syllabus
simple, leaving the word “expressly” without any consequence what-
ever. The need to take the express exception requirement seriously is
underscored by examples of indisputable prohibitions of removal in a
number of other statutes, e. g., § 1445, which demonstrate that, when
Congress wishes to give plaintiffs an absolute choice of forum, it is capa-
ble of doing so in unmistakable terms. Pp. 694–697.
(b) None of Breuer’s refinements on his basic argument from the term
“maintain” puts him in a stronger position. The Court rejects his argu-
ment that “may be maintained” shows up as sufficiently prohibitory once
it is coupled with a federal policy of construing removal jurisdiction
narrowly, as set forth in Shamrock Oil & Gas Corp. v. Sheets, 313 U. S.
100, 108–109. Whatever apparent force this argument might have
claimed when Shamrock was handed down has been qualified by the
later amendment of § 1441 into its present form, requiring any exception
to the general removability rule to be express. Nor does it avail
Breuer to emphasize the sense of “maintain” as implying continuation
of an action to final judgment, so as to give a plaintiff who began an
action the statutory right under § 216(b) to see it through. The right
to maintain an action may indeed be a right to fight to the finish, but
removal does nothing to defeat that right; far from concluding a case
before final judgment, removal just transfers it from one forum to an-
other. Moreover, if “an action . . . may be maintained” meant that a
plaintiff could insist on keeping an FLSA case wherever he filed it in
the first place, it would seem that an FLSA case brought in a federal
district court could never be transferred to a different one over the
plaintiff ’s objection, a result that would plainly clash with the provision
for change of venue, § 1404(a). Finally, although Breuer may be right
that many FLSA claims are for such small amounts that removal to a
sometimes distant federal court, often increasing the cost of litigation,
may make it difficult for many employees to vindicate their rights effec-
tively, the implications of that assertion keep this Court from going
Breuer’s way. Because a number of other statutes incorporate or use
the same language as 29 U. S. C. § 216(b), see, e. g., § 626(b), there cannot
be an FLSA removal exception without wholesale exceptions for other
statutory actions, to the point that it is just too hard to believe that a
right to “maintain” an action was ever meant to displace the right to
remove. Pp. 697–699.
292 F. 3d 1308, affirmed.
Souter, J., delivered the opinion for a unanimous Court.
Donald E. Pinaud, Jr., argued the cause for petitioner.
With him on the briefs was Eric Schnapper.

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Opinion of the Court
Andrew S. Hament argued the cause for respondent.
With him on the brief was Gregory Williamson.
Lisa S. Blatt argued the cause for the United States as
amicus curiae urging affirmance. With her on the brief
were Solicitor General Olson, Deputy Solicitor General
Kneedler, Howard M. Radzely, Allen H. Feldman, and Ed-
ward D. Sieger.*
Justice Souter delivered the opinion of the Court.
The question is whether the provision of the Fair Labor
Standards Act of 1938 (FLSA or Act), that suit under the
Act “may be maintained . . . in any Federal or State court
of competent jurisdiction,” 52 Stat. 1069, as amended, 29
U. S. C. § 216(b), bars removal of a suit from state to federal
court. We hold there is no bar.
I
Petitioner, Phillip T. Breuer, sued respondent, his former
employer, Jim’s Concrete of Brevard, Inc., in a state court of
Florida for unpaid wages, liquidated damages, prejudgment
interest, and attorney’s fees. Section 216(b) provides not
only that an employer who violates its minimum wage and
overtime provisions is liable to an employee, but that “[a]n
action to recover the liability prescribed . . . may be main-
tained against any employer (including a public agency) in
any Federal or State court of competent jurisdiction.”
Jim’s Concrete removed the case to the United States
District Court for the Middle District of Florida under 28
U. S. C. § 1441(a), which reads that “[e]xcept as otherwise ex-
pressly provided by Act of Congress, any civil action brought
in a State court of which the district courts of the United
*Briefs of amici curiae urging affirmance were filed for the Academy
of Florida Management Attorneys, Inc., by Peter W. Zinober; and for the
Human Resource Association of Palm Beach County, Florida, et al. by
Christine D. Hanley, Sally Still, and Betty L. Dunkum.

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States have original jurisdiction, may be removed by the de-
fendant or the defendants, to the district court of the United
States for the district and division embracing the place
where such action is pending.” Breuer sought an order re-
manding the case to state court, arguing that removal was
improper owing to the FLSA’s provision that an action “may
be maintained” in any state court, a provision that Breuer
put forward as an express exception to the general author-
ization of removal under § 1441(a). Though the District
Court denied Breuer’s motion, it certified the issue for inter-
locutory appeal under § 1292(b). The Eleventh Circuit af-
firmed, saying that Congress had expressly barred removal
in “direct, unequivocal language” in other statutes, 292 F. 3d
1308, 1310 (2002), but was not comparably prohibitory in
§ 216(b). The Eleventh Circuit thus joined the First, see
Cosme Nieves v. Deshler, 786 F. 2d 445 (1986), but placed
itself at odds with the Eighth, see Johnson v. Butler Bros.,
162 F. 2d 87 (1947) (denying removability under FLSA). We
granted certiorari to resolve the conflict, 537 U. S. 1099
(2003), and now affirm.
II
A
There is no question that Breuer could have begun his
action in the District Court. The FLSA provides that an
action “may be maintained . . . in any Federal or State court
of competent jurisdiction,” 29 U. S. C. § 216(b), and the dis-
trict courts would in any event have original jurisdiction
over FLSA claims under 28 U. S. C. § 1331, as “arising under
the Constitution, laws, or treaties of the United States,” and
§ 1337(a), as “arising under any Act of Congress regulating
commerce.” Removal of FLSA actions is thus prohibited
under § 1441(a) only if Congress expressly provided as much.
Nothing on the face of 29 U. S. C. § 216(b) looks like an
express prohibition of removal, there being no mention of
removal, let alone of prohibition. While § 216(b) provides

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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 am-
biguous at best. “To maintain an action” may mean “to con-
tinue” to litigate, as opposed to “commence” an action.1
Black’s Law Dictionary 1143 (3d ed. 1933). But “maintain”
in reference to a legal action is often read as “bring” or “file”;
“[t]o maintain an action or suit may mean to commence or
institute it; the term imports the existence of a cause of ac-
tion.” Ibid.; see 1A J. Moore et al., Moore’s Federal Practice
¶ 0.167[5], p. 472 (2d ed. 1996) (calling the “ ‘may be main-
tained’ ” language an “ambiguous phrase” and “certainly not
an express provision against removal within the meaning of
§ 1441”); 14C C. Wright, A. Miller, & E. Cooper, Federal
Practice and Procedure § 3729, p. 235 (1998) (referring to
“use of the ambiguous term ‘maintain’ in the statute”). The
most, then, that Breuer can claim simply from the use of the
term “maintain” is that any text, even when ambiguous, that
might be read as inconsistent with removal is an “express”
prohibiting provision under the statute. But if an ambigu-
ous term like “maintain” qualified as an express provision
1 Actually, there is reason to think that this sense of “maintain” was
intended. Under the FLSA, the Secretary of Labor may file a suit on
behalf of an employee to recover unpaid wages or overtime compensation,
and when the Secretary files such a suit, an employee’s right to bring a
comparable action terminates, see, e. g., 29 U. S. C. § 216(c). Congres-
sional reports suggest that although an employee may no longer initiate a
new action once the Secretary has sued, an employee may continue to
litigate, i. e., “maintain,” an action already pending. See H. R. Conf. Rep.
No. 327, 87th Cong., 1st Sess., 20 (1961) (filing of the Secretary’s complaint
would “not, however, operate to terminate any employee’s right to main-
tain such a private suit to which he had become a party plaintiff before
the Secretary’s action”); S. Rep. No. 145, 87th Cong., 1st Sess., 39 (1961)
(Secretary’s filing of complaint “terminates the rights of individuals to
later file suit”); cf. Smallwood v. Gallardo, 275 U. S. 56, 61 (1927) (“To
maintain a suit is to uphold, continue on foot and keep from collapse a suit
already begun”). Seen in this light, Congress’s use of the term “maintain”
is easy to understand, carrying no implication for removal.

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for purposes of 28 U. S. C. § 1441(a), then the requirement of
an “expres[s] provi[sion]” would call for nothing more than a
“provision,” pure and simple, leaving the word “expressly”
with no consequence whatever. “[E]xpres[s] provi[sion]”
must mean something more than any verbal hook for an
argument.
The need to take the express exception requirement seri-
ously is underscored by examples of indisputable prohibi-
tions of removal in a number of other statutes. Section
1445, for example, provides that
“(a) A civil action in any State court against a railroad
or its receivers or trustees . . . may not be removed to
any district court of the United States.
“(b) A civil action in any State court against a carrier
or its receivers or trustees to recover damages for delay,
loss, or injury of shipments . . . 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 . . .
the Violence Against Women Act of 1994 may not be
removed to any district court of the United States.”
See also 15 U. S. C. § 77v(a) (“[N]o case arising under [the
Securities Act of 1933] and brought in any State court of
competent jurisdiction shall be removed to any court of the
United States”); § 1719 (“No case arising under [the Inter-
state 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”); § 3612 (“No case arising under [the Con-
dominium and Cooperative Abuse Relief Act of 1980] and

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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 capac-
ity is a party”). When Congress has “wished to give plain-
tiffs an absolute choice of forum, it has shown itself capable
of doing so in unmistakable terms.” Cosme Nieves, 786
F. 2d, at 451. It has not done so here.
B
None of Breuer’s refinements on his basic argument from
the term “maintain” puts him in a stronger position. He
goes on to say, for example, that interpretation does not stop
at the dictionary, and he argues that the statutory phrase
“may be maintained” shows up as sufficiently prohibitory
once it is coupled with a federal policy of construing removal
jurisdiction narrowly. Breuer relies heavily on our state-
ment in Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100
(1941), that “the policy of the successive acts of Congress
regulating the jurisdiction of federal courts is one calling for
the strict construction of [removal legislation] . . . . ‘Due
regard for the rightful independence of state governments,
which should actuate federal courts, requires that they
scrupulously confine their own jurisdiction to the precise
limits . . . the statute has defined.’ ” Id., at 108–109 (quoting
Healy v. Ratta, 292 U. S. 263, 270 (1934)). But whatever ap-
parent force this argument might have claimed when Sham-
rock was handed down has been qualified by later statutory
development. At the time that case was decided, § 1441 pro-
vided simply that any action within original federal subject-
matter jurisdiction could be removed. Fourteen years later,
however, it was amended into its present form, requiring any
exception to the general removability rule to be express.
See Act of June 25, 1948, § 1441(a), 62 Stat. 937 (authorizing
removal over civil suits within the district courts’ original
jurisdiction “[e]xcept as otherwise expressly provided by Act
of Congress”); see also 28 U. S. C. § 1441 (historical and revi-

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sion notes). Since 1948, therefore, there has been no ques-
tion that whenever the subject matter of an action qualifies
it for removal, the burden is on a plaintiff to find an express
exception. As Shamrock itself said, “the language of the
Act . . . evidence[s] the Congressional purpose,” 313 U. S., at
108, and congressional insistence on express exception is
hardly satisfied by the malleability of the term “maintain” in
the text Breuer relies upon.
Nor does it do Breuer any good to emphasize a sense of
“maintain” as implying continuation of an action to final
judgment, so as to give a plaintiff who began an action the
statutory right under 29 U. S. C. § 216(b) to see it through.
We may concede that it does, and the concession leaves the
term “maintain” just as ambiguous as ever on the issue be-
fore us.2 The right to maintain an action may indeed be a
right to fight to the finish, but removal does nothing to defeat
that right; far from concluding a case before final judgment,
removal just transfers it from one forum to another. As
between a state and a federal forum, the statute seems to
betray an indifference, with its provision merely for main-
taining action “in any Federal or State Court,” ibid.
But even if the text of § 216(b) were not itself reason
enough to doubt that the provision conveys any right to re-
main in the original forum, the implication of Breuer’s posi-
tion would certainly raise misgivings about his point. For
if the phrase “[a]n action . . . may be maintained” meant that
a plaintiff could insist on keeping an FLSA case wherever
he filed it in the first place, it would seem that an FLSA case
brought in a federal district court could never be transferred
to a different one over the plaintiff ’s objection, a result that
would plainly clash with the provision for change of venue,
28 U. S. C. § 1404(a) (“For the convenience of parties and wit-
nesses, in the interest of justice, a district court may transfer
2 As to individual cases brought before the institution of any suit by the
Government, see n. 1, supra.

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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 employ-
ees 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 stat-
utes 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 Em-
ployee 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 para-
graph (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 en-
tailing exceptions for other statutory actions, to the point
that it becomes just too hard to believe that a right to “main-
tain” 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 Ad-
ministrator 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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III
Breuer’s case was properly removed under 28 U. S. C.
§ 1441, and the judgment of the Eleventh Circuit is affirmed.
It is so ordered.
not be removed to federal court. But this brief is not persuasive author-
ity. The Secretary has no responsibility for applying the removal statute
and no particular authority to interpret it; the Secretary’s opinion cannot
make up for the absence of express statutory language. Breuer also
points to a Senate Report accompanying the 1958 enactment of 28 U. S. C.
§ 1445, a provision barring removal of workers’ compensation actions
under state law. Referring to actions brought under the FLSA, the re-
port states “[i]f filed in the State courts the law prohibits removal to the
Federal court.” S. Rep. No. 1830, 85th Cong., 2d Sess., 9 (1958). But a
stray comment in a congressional report stands a long way from an ex-
press statutory provision.