Breuer, Phillip v. Jim's Concrete of Brevard (05/19/2003)

Questions presented: 1. Whether an action commenced in state court under the Fair Labor Standards Act of 1938, can be removed by the defendant to a federal district court, even though the FLSA expressly provides that the case can be "maintained" in state court? 2. Whether the 11th Circuit's interpretation of the word "maintained" as used in the jurisdictional provisions of the FLSA conflicts with the Supreme Court's pronounced definition of the word "maintain" to be used when construing federal statutes?

BY JONATHAN KATZ, MEDILL NEWS SERVICE

Philip T. Breuer thought he knew all about overtime.

As a foreman for Jim's Concrete of Brevard, a Florida construction company, Breuer put in hours that went above and beyond the call of his salaried position.

He and his employer couldnt agree about what he was owed, so he sued for overtime wages he claimed werent paid.

He sued in Florida state court, but he sued under the Federal Labor Standards Act. Thats where the typical wage dispute became a federal case.

Jims Concrete had the case removed the case to federal court in Florida, and Breuer's lawyer moved to have the case returned to state court. The federal court declined.

Breuer's lawyer, Donald Pinaud, says he sued in state court in the first place because he believed his client would receive a fairer hearing and a speedier result. It's too time-consuming and expensive for workers to have their cases heard in federal court, he says.

"In state courts, things tend to go a heck of a lot faster," Pinaud says. "There are less mandatory forms and pleadings. Things are not quite as formal."

Pinaud adds that it's often hard for working men and women to find lawyers to take up these cases in federal court because the amount of time required is so high and the amount of money at stake is so low.

"We're not talking about a fortune here," he says.

But Jim's Concrete believes federal courts are exactly where these cases should be tried, because the FLSA is a federal statute. It was enacted in 1938 as a piece of New Deal legislation governing overtime as well as guaranteeing federal minimum wage, child labor and record-keeping requirements.

Andy Hament, the company's lawyer, says that federal courts understand the law better, and thus are sometimes more likely to rule in a company's favor.

When Breuer's motion in federal court to have the case remanded was denied, Pinaud asked the 11th Circuit Court of Appeals to look at the case.

One might think that such a simple scenario would have occurred many times in the past, but the 11th Circuit indicated in its brief, unanimous opinion that it was a matter of first impression for the circuit.

Other circuits, however, have addressed the issue, and are divided. The reason for the split is that the FSLA provides that an action to recover under the statute "may be maintained" against any employer in any federal or state court of competent jurisdiction. However, the federal removal statute that allows cases to be moved from state to federal court provides that any action brought in a state court over which the district courts of the United States have original jurisdiction may be removed by the defendant to federal court except as "otherwise expressly provided by Act of Congress."

Breuer argues that the words "may be maintained" is an express provision by Congress that once an action is started in the state court, it must remain there and cant be removed. Jim's Concrete argues that those words dont amount to an express Congressional prohibition.

Breuer's hopes lay with the 8th Circuit Court of Appeals, which long ago in 1947 held in Johnson v. Butler Brothers that FLSA cases brought in state court are not subject to removal. One year after that, however, in 1948, Congress amended the general removal statute by adding the "except as otherwise expressly provided by Act of Congress" language.

The construction company's argument rests on the 1st Circuit Court of Appeals opinion in Cosme Nieves v. Deshler in which that court in 1986 held that only an "explicit statutory directive by Congress" could prevent a case under the FLSA from being removed to federal court. And the FLSAs language "may be maintained" is not explicit.

Pinaud argues that the "statutory directive" by Congress allows a worker the prerogative to file the case wherever he or she likes, and that once the case begins in state court, it cannot be removed to federal court. In fact, Pinaud had once before tried to get the federal courts in the 11th Circuit to declare that to be the law. Six years ago, Pinaud aborted an attempt to clarify the venue issue in a higher court when another working client "got scared" and settled with his company.

In Breuer's case, the 11th Circuit ruled in favor of Jim's Concrete, but noted that the law was unclear, leaving federal courts to rule unevenly with regard to the question. In its terse, per curiam opinion, it begged a higher legal authority to take up the matter and resolve it once for all:

Because of the conflict, "it would appear to be important for either Congress or the United States Supreme Court to resolve this issue and bring uniformity to the federal courts in this regard," the court said. "Litigants should not be treated with such disparity in our federal system."

On Jan. 10, 2003, the Supreme Court accepted the case for review, and on May 19, the Court unanimously affirmed, holding that the FSLA's provision that suits "may be maintained. . .in any Federal or State court of competent jurisdiction" does not bar removal to federal court.