|A greater difficulty with using the assumption that the plaintiff is in the better position to know the jurisdictional facts as a basis for shifting the burden of proof is that the assumption proves too much. If true, then in non-class litigation the plaintiff would again presumably be in a better position to know the relevant jurisdictional facts. Yet, we do not shift the burden of proof to the plaintiff when a defendant removes a civil action under the general removal statute, 28 U.S.C. §1441. That’s a policy judgment that, whether good or bad, doesn’t come into play when the court is applying the directive in the general removal statute, where Congress said nothing about occasions when the burden of proof should be redistributed. Indeed, this inconsistency is even present in judicial treatment of CAFA removals. Even those that would shift the burden of proof as to §§1332(d)(3) and (d)(4) onto the plaintiff do not do so as to the initial prima facie burden, even when the same superior knowledge may bear relevance in both places. That powerfully suggests a fatal flaw in the logic of using this policy rationale as a substitute for express statutory authority to shift the burden.
B. Of Legislative History and Legislative Spirit
A second justification some have offered for shifting the burden is that the legislative history says that this was Congress’s intent.46 Relatedly, some courts and prominent commentators have made reference to CAFA’s initial “Findings and Purposes” as further evidence Congress intended to shift the burden of proof.47 The latter regards the opening “Findings and Purposes” in the statute, which detail a litany of perceived class action abuses and absurdities, as reflective of the spirit in which Congress passed this reform legislation.48 According to this view, any interpretative questions regarding the statute should be read to favor the most expansive reading because Congress must have wanted to sweep into the net as many abusive class action cases as possible.49
In practice, this nod to spirit means that even if the statute doesn’t seem to directly speak to the particular question at issue—How do we precisely determine when a case has been “commenced” for statutory applicability purposes? Is a federal court still bound by Klaxon Co. v. Stentor Electric Manufacturing Co.50 to follow state choice of law rules or does the statute free its hand? Who bears what burden of jurisdictional proof?—the answer invariably lies in an awareness of the spirit of the statute. Congress, we are assured, would have wanted us to read the statute in such a way as to best ensure that it is applied as expansively as possible. After all, Congress expanded federal jurisdiction precisely to remedy these perceived abuses. What further or better proof of legislative intent is needed? Of course, this is the kind of argument that is as unplagued by doubt as it is unbounded in scope. I will not spend any more time on it, other than to make reference to two excellent commentaries, by Steve Burbank and Douglas Floyd, that expose as absurd the notion of looking to CAFA’s “Findings and Purposes” as a reliable tool of statutory construction.51
As for the statute’s legislative history, it is notable that in wrestling with the problem of jurisdictional proof under §§1332(d)(3) and (d)(4) most courts have not seemed to be deterred by inconsistency. Where legislative history has been regarded as “entitled to exceptionally little weight” on other CAFA interpretative questions, 52 as we saw earlier, not so with the burden shifting arguments advanced as to §§1332(d)(3) and (d)(4). Most astonishingly, courts that have refused to look to the statute’s legislative history as proof Congress intended to shift the initial prima facie burden of jurisdictional proof, have been willing to do so as to the “exceptions.” We previously saw the Seventh Circuit in Brill refused to look to the same Senate Committee Report in deciding the question of Congress’s intent with regard to prima facie jurisdictional burden, calling it “a naked expression of ‘intent’ unconnected to any enacted text.” The complete quote, even more damning, makes it all the more startling that another panel of the Seventh Circuit was willing to give any credence to this same legislative history in assessing congressional intent as to the discretionary and mandatory carve-out sections in §§1332(d)(3)and (d)(4).
When the legislative history stands by itself, as a naked expression of ‘‘intent’’ unconnected to any enacted text, it has no more force than an opinion poll of legislators—less, really, as it speaks for fewer. Thirteen Senators signed this report and five voted not to send the proposal to the floor. Another 82 Senators did not express themselves on the question; likewise 435 Members of the House and one President kept their silence. Naked legislative history has no legal effect. The rule that the proponent of federal jurisdiction bears the risk of non-persuasion has been around for a long time. To change such a rule, Congress must enact a statute with the President’s signature (or by a two-thirds majority to override a veto). A declaration by 13 Senators will not serve.53
And we can’t square the difference by pointing to some judgment that the language in §§1332(d)(3) and (d)(4) is more ambiguous than in §1332(d)(2). The courts aren’t saying that. Reliance on legislative history is so dubious in this context that even some of those who would shift the burden of proof decline to do so on the basis of looking to the statute’s legislative history.54
Another weakness in looking to legislative history to justify a burden shifting conclusion is that the evidence does not point in one direction. Other parts of the legislative history can be read to show that §§1332(d)(3) and (d)(4) were meant to be part of the jurisdictional prima facie case, as the district court in Lao v. Wickes Furniture Co., Inc. discovered:
The bill grants the federal courts original jurisdiction to hear interstate class action cases. . . The bill, however, includes several provisions ensuring that where appropriate, state courts can adjudicate certain class actions that have a truly local focus. The first is the “Home State” exception. Under this provision, if two-thirds or more of the class members are from the defendant's home state, the case would not be subject to federal jurisdiction. . . . In addition, S. 5 contains a “Local Controversy Exception” ...[and] [i]f all of [its] four criteria are satisfied, the case will not be subject to federal jurisdiction under the bill.55
Even if we were to ignore these conflicting signals in the committee report, looking to legislative history on the burden shifting question suffers from all of the difficulties that are attendant to considering after-the-fact commentary as evidence of legislative intent in passing a particular statute.56 Indeed, as we saw earlier, the Court has recently and in a related jurisdictional setting admonished against reliance on a committee reports as evidence of statutory meaning.57 In short, courts are not supposed to look to legislative history to provide the justification for reading into a statute that which the legislators did not write into it.58
Legislative history can be like a siren song that can easily steer us into trouble. In Lowery v. Alabama Power Co., in dealing with a different but related interpretative question under CAFA, the Eleventh Circuit was apparently completely enthralled by these sweet sounds:
Though we are mindful that it is error to cloud the plain meaning of a statutory provision here with contrary legislative history, where, as here, the legislative history comports with the interpretation that has been adopted, and where there is a potential that others may find ambiguity where we have found plain meaning, caution and completeness counsel that we discuss the statute’s legislative history.59
In other words, look to legislative history when it supports the conclusion to which you are already leaning but ignore it if it seems contradictory? Tautological, this argument also ignores the Court’s decision in Allapattah, where the majority read the statute to unambiguously evidence a congressional intent that was one hundred and eighty degrees different than what much of the legislative history suggested.60 So much for legislative history as dispositive proof of congressional intent to shift the jurisdictional burden of proof.
The Resuscitation of Breuer v. Jim’s Concrete of Brevard, Inc.
While there has been limited support for basing a shift in the burden of proof either on the policy rationale of the plaintiff’s position or on the statute’s legislative history and/or its spirit, all the courts that have shifted the burden of proof as to §§1332(d)(3) and (d)(4) have felt bound to do so by the Supreme Court’s decision in Breuer v. Jim’s Concrete of Brevard, Inc.61 Typical is the Eleventh Circuit’s assessment:
[W]hen a party seeks to avail itself of an express statutory exception to federal jurisdiction granted under CAFA, as in this case, we hold that the party seeking remand bears the burden of proof with regard to that exception. Cf. Breuer v. Jim’s Concrete of Brevard, Inc., (holding that when a defendant removes a case under 28 U.S.C. 1441(a), the burden is on a plaintiff to find an express exception to removal)).”62
The key line being referenced from Breuer, which is cited over and over again by CAFA courts is this one: “Since 1948, therefore, there has been no question that whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception.”63
Indeed, whether to characterize these jurisdiction-limiting provisions as “exceptions” turns out to have mattered even to the few courts that have ultimately concluded that Congress did not intend to shift any jurisdictional burden of proof. This is because all courts seem to regard Breuer as directly on point. Thus, in Lao v. Wickes Furniture Co., Inc., the court observed:
Defendants argue that this statutory language and structure makes clear that (d)(4)’s provisions are more akin to statutory exceptions to removal than part of (d)(2)’s jurisdictional criteria. This characterization is important because, at the time of CAFA’s passage, the Supreme Court in Breuer v. Jim’s Concrete of Brevard, Inc. had recognized that the opponent of removal under 28 U.S.C. § 1441(a) must prove that there is an express exception to removability. In essence, defendants argue that ‘‘the relation between subparts (d)(2) and (d)(4) of CAFA is analogous to the structure of 28 U.S.C. § 1441(a).’’ If defendants’ analogy to section 1441(a) holds, it would weigh heavily in this Court’s analysis as upon whom the burden of persuasion lies in this case.64
Citation to Breuer by courts in 2006 in the CAFA cases is more than a little remarkable. The case was a rather dubious addition to the Court’s docket in the 2002 term. [As a personal aside, I first learned that the Court had granted certiorari in Breuer in the fall of 2002 while preparing to teach a first year civil procedure class on subject matter jurisdiction. I distinctly remember thinking at the time that it was rather surprising the Court had taken the case, since the issue it posed hardly seemed to merit the Court’s limited resources.] The Breuer issue concerned the Fair Labor Standards Act of 1938. That statute provides—as many other statutes similarly do—that “[a]n action to recover [under the statute] may be maintained … in any Federal or State court of competent jurisdiction.”65 Taking advantage of the grant of concurrent jurisdiction, the plaintiff decided to file suit in state court. The defendant promptly removed the case to federal court as a case coming within the court’s federal question jurisdiction. Plaintiff then moved to remand, saying, of all things, that by giving plaintiffs the right to bring a suit in either state or federal court, the Congress was expressly taking away the defendant’s right to remove the case once it had been properly filed in the state court. 66
As remarkable as this sounds, the plaintiff actually found one old Eighth Circuit case that supported its argument—a really old case, decided before Congress revised the removal statute in 1948.67 Every other court that had been presented with this argument had rejected it. But a circuit split is a circuit split, I guess, and the Court decided to take the case.68
Oral argument proved to be more of the same, with the justices puzzling out loud the merits (or lack thereof) of petitioner’s position. When the Court issued its unanimous opinion affirming the judgment below, it was anything but surprising. That language in the FLSA, the Court concluded, does not amount to an express exception to removal.69 That should have been the end of Breuer but now, four years later, the case has been un-interred and is being cited as one of the key arguments in a technical but critically important question under the CAFA. But does Breuer really stand for the proposition that its new CAFA proponents insist upon?
Despite the confidence with which the courts have read Breuer as directly on point in terms of the CAFA, I doubt seriously that the Supreme Court will find the case has any applicability in this context. Breuer essentially is a case that asks whether Congress had done something it rarely does. That is, did Congress in the FLSA grant concurrent jurisdiction to state and federal courts but withhold the defendant’s right to remove such a case if the plaintiff chose to file it in state court, a right that would otherwise automatically exist by virtue of §1441?70 This is the legislative prerogative, but it has been exercised infrequently.71
All the Court meant in Breuer when it said “there has been no question that whenever the subject matter of an action qualifies it for removal, the burden is on a plaintiff to find an express exception” was that the burden ought to be on the party who is trying to show this is one of those rare instances when Congress established a grant of original jurisdiction without a corresponding removal right. In the absence of some express exception to removal—“unless otherwise authorized by Congress,” as §1441 provides—the defendant always has the right to remove a case from state court that is within a grant of original jurisdiction to the district court.72 The Court in Breuer was simply saying that as a matter of statutory interpretation it makes sense to read the opening phrase of §1441 as placing the burden on the plaintiff to show that this is one of those rare occasions where Congress intended to make the federal forum available to a plaintiff but to respect her choice to bring suit in state court.
Once we correctly understand Breuer, it is easy to distinguish this circumstance from CAFA. With CAFA, the question is not whether Congress has withheld any right to remove; we know, instead, that it has expressly granted a removal right in §1453.73 Nor is the question whether Congress has limited jurisdiction in cases where either §1332(d)(3) or either of the provisions in §1332(d)(4) apply. It has. The only question is who has the burden of proof to show that the elements of these provisions have been or have not been satisfied. As to this critical question, Breuer has no relevance.
D. Analogizing CAFA’s Provisions
Some adherents of the “exceptions” school also liken their conception of the words Congress chose in promulgating §§1332(d)(3) and in (d)(4) to doctrines that similarly give judicial discretion to let go of a case, like abstention doctrines. The idea here is that abstention assumes there is subject matter jurisdiction but the court declines to exercise its jurisdiction for some reason.74 This, at least, is the traditional understanding of abstention doctrine.75 Another, and probably better, reference for their purposes is 28 USC §1367(c), since both are legislative pronouncements, though no courts have thought to make the reference.
Any attempted analogy between the language in CAFA and either common law abstention doctrines or the supplemental jurisdiction statute makes sense, if at all, only with regard to the discretionary language in §1332(d)(3). That is, §1332d(3) gives the court discretion to keep or decline jurisdiction in certain kinds of cases, just as these other parts of the law sometimes give a court the same power to let go of a state law claim that is appended to a federal claim within the court’s §1331 jurisdiction. This conceptual framework falls apart, however, beside the mandatory language in §§1332(d)4(A) and d(4)(B), as well as (d)(5), (d)(9)(A), (d)(9)(B), and (d)(9)(C), all of which give the court precisely no discretion when one of these subsections apply. That’s the reason why the Lao court recoiled at the attempted analogy of §1332(d)(4)(A) and d(4)(B) to common law abstention doctrine, observing that “no other creature like it [exists] in the law.”76
We’ll return in a moment to the problem of reconciling §1332(d)(3) and the two sections of §1332(d)(4) and the other mandatory carve-outs in the statute. Before we do that, though, we turn to the last and what turns out to be best argument for burden shifting: the text and its placement in the statutory context.
E. Text and Context
The remaining argument for shifting the burden focuses on the language and structure of the statute. As is always the case with questions of statutory interpretation, 77 the best starting place in ascertaining Congress’s intent with regard to the burden of proof under CAFA is from the statutory text itself.
1. Looking at Text
The least persuasive treatments of the text summarily characterize §§1332(d)(3) and (d)(4) as “exceptions” to the grant of federal jurisdiction in §1332(d)(2). By summarily I mean that courts, like the Eleventh Circuit in Evans and Fifth Circuit in Frazier, provide neither an explanation for what language qualifies as an “exception” to jurisdiction nor explain how we can know these provisions so qualify. The conclusions these courts reach—which are virtually identical in structure and content—are bare, punctuated only by a citation to Breuer for the proposition that, having found that §1332(d)(3) and the two provisions in §1332(d)(4) are exceptions to federal jurisdiction, the burden is on the plaintiff to prove their applicability.78
More cogent is the Seventh Circuit’s treatment in Hart v. FedEx Ground Package System, Inc.79 and the Ninth Circuit’s in Serrano v. 180 Connect, Inc.80 which focuses somewhat better on the language in the statute. The courts in these cases distinguish the jurisdiction granting language in §1332(d)(2)(“the district courts shall have original jurisdiction”) from the language in §1332(d)(3) and §1332(d)(4) (respectively, the court “may decline” and “must decline” to exercise jurisdiction). Keying on this difference in the language, both Hart and Serrano thought that the Congress must have meant these to be “exceptions” to the grant of jurisdiction in §1332(d)(2). Recollecting §1441’s opening, “Except as otherwise provided by Act of Congress,” Hart and Serrano conclude that creating such exceptions to jurisdiction is what Congress had in mind by formulating §1332(d)(3) and the two sections of §1332(d)(4) with different words than those found in §1332(d)(2).81 The fit is far from perfect, however—after all, neither §1332(d)(3) nor either part of §1332(d)(4) are expressly identified by the words “except” or “exception,” as in §1441, or even words to similar effect—and the court in Hart at least had the good graces to concede its reading was not airtight.82 In any event, having catalogued these subsections as “exceptions” to jurisdiction, it took only a citation to Breuer for both courts to conclude that the burden should properly rest with the party trying to prove these “exceptions” to apply.83
This suggests the first, real difficulty with Hart and Serrano’s reasoning: these courts are relying on their reading of Breuer to conclude that if §§1332(d)(3) and (d)(4) are indeed “exceptions” to jurisdiction then Congress must have meant for them to be proven by the party opposing jurisdiction. But we’ve already seen that Breuer is inapposite, that it said only that the plaintiff bears the unique burden of showing that Congress had taken the unusual step of providing for concurrent jurisdiction but withholding from the defendant a corresponding removal right. Thus, even if §1332(d)(3) and the two parts of §1332(d)(4) are “exceptions,” Breuer does not compel the conclusion that the statute triggers a burden shift.84 Congress may or may not have intended to shift the burden of proof as to §§1332(d)(3) and (d)(4) to the party opposing federal jurisdiction, but merely calling them “exceptions” does nothing to prove this one way or the other. Indeed, as we have already observed, the courts routinely require the party who desires to litigate in the federal forum to bear the burden of proof as to other, more familiar statutory provisions that act as limitations on and exceptions to the defendant’s removal rights.85
A second difficulty with the kind of textual argument advanced by Hart and Serrano is that, on closer examination, it really is not a textual argument at all, only a gut feeling wrapped in the patina of textual fidelity. Notice that there is no effort to contrast the existing language with some other formulation and to ask whether the choice Congress made thereby reveals the legislative purpose. Neither court contrasts “may decline” and “must decline” in §§1332(d)(3) and (d)(4) with other formulations Congress could have chosen. Instead, the courts were content with applying conclusory labels. Consider the relevant passage from Hart: “It is reasonable to understand these as two “express exceptions” [1332(d)(4)(A) and 1332(d)(4)(B)] to CAFA's normal jurisdictional rule, as the Supreme Court used that term in Breuer.” But what makes it reasonable? The court does not say.
Perhaps the most amazing thing about the textual argument on which the courts primarily ground their characterization of §1332(d)(3) and §1332(d)(4) as “exceptions” is that their assertion only makes sense if we ignore the actual text of the statute Congress passed. As it turns out, elsewhere in the statute Congress expressly identified other subsections as “exceptions.” Section 1453(d), which is titled “Exception,” begins: ‘‘This section shall not apply to any class action that solely involves’’ a claim for a ‘‘covered security’’ or fiduciary actions under the Securities Act of 1933 and the Securities Exchange Act of 1934, and actions concerning intra-corporate governance.86 And note the phrasing used here: “shall not apply to.” This same language is mirrored in §1332(d)(5) and §1332(d)(9), other sections that limit the scope of CAFA’s jurisdictional reach. One certainly can read this mirroring of language as compelling evidence Congress meant these subject matters to be “exceptions” to CAFA jurisdiction and that, where the Congress used different phrases (“may decline” and “must decline”) in §1332(d)(3) and §1332(d)(4), it meant for these subsections to be treated as something other than exceptions.87