Chapman v. 8TH Judicial Juvenile Probation Bd.

• Decision Date: 01 October 1998
• Docket Number: No. 3:98-CV-041.,3:98-CV-041.
• Citation: Chapman v. 8TH Judicial Juvenile Probation Bd., 22 F.Supp.2d 583 (E.D. Tex. 1998)
• Parties: Biff CHAPMAN, Plaintiff, v. 8TH JUDICIAL JUVENILE PROBATION BOARD and Hopkins County, TX., Defendants.
• Court: U.S. District Court — Eastern District of Texas

Page 583

22 F.Supp.2d 583

Biff CHAPMAN, Plaintiff, v.8TH JUDICIAL JUVENILE PROBATION BOARD and Hopkins County, TX., Defendants.

No. 3:98-CV-041.

United States District Court, E.D. Texas.

October 1, 1998.

Larry A Powers, Powers & Blount, Sulphur Springs, TX, for Plaintiff.

Robert Scott Davis, Cooper Flowers et al., Tyler, TX, Louis Charles Edmond Van Cleef, Cooper Flowers Davis Fraser & Derryberry, Tyler, TX, for Defendants.

MEMORANDUM OPINION AND ORDER DENYING MOTION TO REMAND

SCHELL, Chief Judge.

The matter before the court is PlaintiffBiff Chapman's Motion to Remand(Dkt.# 3), filed July 1, 1998.To date, Defendants have filed no response.Through his motion, Plaintiff asks the court to conclude that claims brought under the Fair Labor Standards Act("FLSA"), 29 U.S.C. § 201 et seq., cannot be removed to federal court.For the reasons outlined below, the court is of the opinion that Plaintiff's motion should be DENIED.

DISCUSSION

This action was originally filed in the 62nd Judicial District Court of Hopkins County, Texas, on May 11, 1998.Plaintiff, a former juvenile probation officer, claims that Hopkins County and the 8th Judicial Juvenile Probation Board violated the FLSA by refusing to compensate him for 398 hours of overtime worked during the term of his employment.Plaintiff also contends that Defendants' conduct constitutes a breach of the parties' oral employment contract.On June 10, 1998, Defendants filed a notice of removal claiming that this court has federal question jurisdiction over Plaintiff's FLSA claim under 28 U.S.C. § 1331 and supplemental jurisdiction over Plaintiff's contract claim pursuant to 28 U.S.C. § 1367.Plaintiff timely filed a Motion to Remand on July 1, 1998, asserting that FLSA claims are not removable.The two issues before the court are whether federal question jurisdiction exists here and whether Plaintiff's FLSA claim is subject to removal from state court.

The first of these two questions is easily answered in the affirmative.A federal court has federal question jurisdiction if a case"arises under" the laws of the United States.See28 U.S.C. § 1331.Because the FLSA is a federal statute and expressly provides for original jurisdiction in federal court, there can be no dispute that Plaintiff's FLSA claim arises under federal law.See29 U.S.C. § 216(b).Moreover, because Plaintiff's contract claim is part of the same case or controversy, supplemental jurisdiction over that claim is proper as well.See28 U.S.C. § 1367(a).Thus, this court clearly has federal question jurisdiction to support removal of this case.

When attempting to answer the remaining question of whether FLSA claims originally brought in state court are subject to removal to federal court, the court confronts a split of authority.Concluding that removal is impermissible, one line of cases focuses on the language found in § 216(b) of the FLSA that says "[a]n action may be maintained ... in any Federal or State court of competent jurisdiction."Those cases narrowly construe the term "maintained" to refer only to the continuation of an action that has already been brought, taking the position that a case that is commenced in state court must remain in state court.¹That line of cases has its genesis in the Eighth Circuit's decision in Johnson v. Butler,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 absolute right to designate the forum in which their lawsuits will both be brought and prosecuted to final judgment.

Another line of authority rejects Johnson and its progeny in favor of the view that removal of FLSA claims is authorized by the general removal statute, 28 U.S.C. § 1441.²That statute provides: "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...."28 U.S.C. § 1441(a).This latter line of cases holds that because there is nothing in the FLSA or any other statute that "expressly provides" for nonremovability of FLSA cases, § 1441(a) provides clear authority for such removals.Observing that the language "expressly provided by Act of Congress" was added to § 1441(a) shortly after the Eighth Circuit decided Johnson,those courts believe that Johnson's reading of the FLSA is incompatible with § 1441(a)'s requirement that nonremovability be stated expressly.

The only federal appeals court to directly address the removability of FLSA cases after Johnson was the First Circuit in Cosme Nieves v. Deshler,786 F.2d 445(1st Cir.1986).Rejecting Johnson, that court concluded that removal must be permitted under § 1441(a) given the absence of an explicit statutory directive abrogating the right to remove FLSA suits.Seeid. at 451.In affirming the district court's denial of a motion to remand in that case, the Cosme Nieves court stated: "Congress has made it plain that the right of removal is to stand absent an express provision to the contrary, and it is the responsibility of Congress, not the courts, to speak on the matter if it wishes to foreclose removal of FLSA cases."Id.

The Fifth Circuit has not yet weighed in on the debate surrounding the removability of FLSA cases.Given the absence of binding precedent and the split of authority on this matter, Plaintiff invites the court to adopt the approach represented by the Johnson line of cases.After carefully reviewing the competing authorities, however, the court finds the reasoning of the courts that permit removal of FLSA claims to be more persuasive.Several factors support this conclusion.

First, the court finds § 1441 to be quite clear in its mandate that removal must be permitted unless there is express statutory language prohibiting removal.Indeed, the Fifth Circuit has characterized § 1441 as creating a "broad right of removal" and has emphasized that absent "an express declaration by Congress to the contrary," removal is proper whenever there is concurrent original jurisdiction in both federal and state courts.Baldwin v. Sears, Roebuck & Co.,667 F.2d 458, 459-60(5th Cir.1982).There are several federal statutes that clearly and unequivocally prohibit removal of various federal causes of action.See, e.g.,Federal Employers' Liability Act, 45 U.S.C. §§ 51-60;28 U.S.C. § 1445;Jones Act, 46 U.S.C.App. § 688;Securities Act of 1933,15 U.S.C. § 77v(a).Hence, "[i]f Congress wished to give plaintiffs an absolute choice of forum, it has shown itself capable of doing so in unmistakable terms, and it could easily have done so [in the FLSA]."Cosme Nieves,786 F.2d at 451(internal footnote omitted).Yet, this court has been unable to locate any federal statute that so unmistakably prohibits removal of FLSA cases that it can be said that Congress has "expressly provided" that such actions are nonremovable.

Importantly, FLSA actions are not enumerated among those causes of action that are nonremovable under 28 U.S.C. § 1445, nor does the FLSA itself expressly bar removal.The use of the phrase "may be maintained" in § 216(b) of the FLSA does not constitute an express statement of nonremovability but is, at best, ambiguous.The term "express" has been defined as "[c]lear; definite; explicit; plain; direct; unmistakable; not dubious or ambiguous."Black's Law Dictionary 580 (6th ed.1990).While the court recognizes that the phrase "may be maintained" can be interpreted to refer to actions that have already been brought but not yet reduced to judgment, it must also be remembered that "[t]o maintain an action or suit may [also] mean to commence or institute [the action or suit]."Black's Law Dictionary 953 (6th ed.1990).A term that is reasonably susceptible to two competing definitions cannot be considered unmistakable or unambiguous.The very fact that courts are divided over the import of the term "maintained" in the FLSA context is itself evidence of the term's ambiguity.In short, because the phrase "may be maintained" does not rise to the level of explicitness required by § 1441(a), the court finds that it does not constitute an express proscription on removal of FLSA actions.

In reaching this conclusion, the court is not unmindful of the legislative history relied upon by the Johnson line of cases stating that "the law prohibits removal to the Federal court" and otherwise discussing the "inadvisability of permitting removal of cases arising under" such laws as the FLSA.S.Rep. No. 85-1830, at 8(1958), reprinted in1958 U.S.C.C.A.N. 3099, 3106.That legislative history, however, is not directly applicable here.As the First Circuit has explained: "[T]he amendment under discussion [in that Senate Committee report] involved 28 U.S.C. § 1445, making state workmen's compensation cases non-removable, and neither 28 U.S.C. § 1441 nor 29 U.S.C. § 216(b) is mentioned or affected by the amendment."Cosme Nieves,786 F.2d at 451 n. 18.Moreover, § 1441(a) requires that an express prohibition against removability be set forth in an "Act of Congress," not in the legislative history of a neighboring statute.Indeed, the act of referring to tangential legislative history merely underscores the fact that the statute at issue is not explicit on its face.Thus, the court finds that the legislative history does not compel the conclusion that FLSA cases are not removable.

In concluding that FLSA cases are removable, the court also notes that its decision is consistent with those of most other courts that have considered the question presented here.Indeed, the modern trend clearly favors removability of FLSA cases.Seesupra, n. 2.As was stated by one district court within the Eighth Circuit that felt precedent-bound to follow Johnson,"since the decision in Johnson, the majority of district courts, and the only circuit courts which have addressed the removal issue, have...