Home Depot U. S. A., Inc. v. Jackson , 204 L. Ed. 2d 34 ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HOME DEPOT U. S. A., INC. v. JACKSON
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FOURTH CIRCUIT
No. 17–1471. Argued January 15, 2019—Decided May 28, 2019
Citibank, N. A., filed a debt-collection action in state court, alleging
that respondent Jackson was liable for charges incurred on a Home
Depot credit card. As relevant here, Jackson responded by filing
third-party class-action claims against petitioner Home Deport
U. S. A., Inc., and Carolina Water Systems, Inc., alleging that they
had engaged in unlawful referral sales and deceptive and unfair
trade practices under state law. Home Depot filed a notice to remove
the case from state to federal court, but Jackson moved to remand,
arguing that controlling precedent barred removal by a third-party
counterclaim defendant. The District Court granted Jackson’s mo-
tion, and the Fourth Circuit affirmed, holding that neither the gen-
eral removal provision, 28 U. S. C. §1441(a), nor the removal provi-
sion in the Class Action Fairness Act of 2005, §1453(b), allowed Home
Depot to remove the class-action claims filed against it.
Held:
1. Section 1441(a) does not permit removal by a third-party coun-
terclaim defendant. Home Depot emphasizes that it is a “defendant”
to a “claim,” but §1441(a) refers to “civil action[s],” not “claims.” And
because the action as defined by the plaintiff’s complaint is the “civil
action . . . of which the district cour[t]” must have “original jurisdic-
tion,” “the defendant” to that action is the defendant to the com-
plaint, not a party named in a counterclaim. This conclusion is bol-
stered by the use of the term “defendant” in related contexts. For
one, the Federal Rules of Civil Procedure differentiate between third-
party defendants, counterclaim defendants, and defendants. See,
e.g., Rules 14, 12(a)(1)(A)–(B). And in other removal provisions, Con-
gress has clearly extended removal authority to parties other than
the original defendant, see, e.g., §§1452(a), 1454(a), (b), but has not
2 HOME DEPOT U. S. A., INC. v. JACKSON
Syllabus
done so here. Finally, if, as this Court has held, a counterclaim de-
fendant who was the original plaintiff is not one of “the defendants,”
see Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100, 106–109,
there is no textual reason to reach a different conclusion for a coun-
terclaim defendant who was not part of the initial lawsuit. This
reading, Home Depot asserts, runs counter to the history and pur-
poses of removal by preventing a party involuntarily brought into
state-court proceedings from removing the claim against it to federal
court. But the limits Congress has imposed on removal show that it
did not intend to allow all defendants an unqualified right to remove,
see, e.g., §1441(b)(2), and Home Depot’s interpretation makes little
sense in the context of other removal provisions, see, e.g.,
§1446(b)(2)(A). Pp. 5–9.
2. Section 1453(b) does not permit removal by a third-party coun-
terclaim defendant. Home Depot contends that even if §1441(a) does
not permit removal here, §1453(b) does because it permits removal by
“any defendant” to a “class action.” But the two clauses in §1453(b)
that employ the term “any defendant” simply clarify that certain lim-
itations on removal that might otherwise apply do not limit removal
under that provision. And neither clause—nor anything else in the
statute—alters §1441(a)’s limitation on who can remove, suggesting
that Congress intended to leave that limit in place. In addition,
§§1453(b) and 1441(a) both rely on the procedures for removal in
§1446, which also employs the term “defendant.” Interpreting that
term to have different meanings in different sections would render
the removal provisions incoherent. Pp. 9–11.
880 F. 3d 165, affirmed.
THOMAS, J., delivered the opinion of the Court, in which GINSBURG,
BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed a dissent-
ing opinion, in which ROBERTS, C. J., and GORSUCH and KAVANAUGH,
JJ., joined.
Cite as: 587 U. S. ____ (2019) 1
Opinion of the Court
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SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1471
_________________
HOME DEPOT U. S. A., INC., PETITIONER v.
GEORGE W. JACKSON
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 28, 2019]
JUSTICE THOMAS delivered the opinion of the Court.
The general removal statute, 28 U. S. C. §1441(a), pro-
vides that “any civil action” over which a federal court
would have original jurisdiction may be removed to federal
court by “the defendant or the defendants.” The Class
Action Fairness Act of 2005 (CAFA) provides that “[a]
class action” may be removed to federal court by “any
defendant without the consent of all defendants.” 28
U. S. C. §1453(b). In this case, we address whether either
provision allows a third-party counterclaim defendant—
that is, a party brought into a lawsuit through a counter-
claim filed by the original defendant—to remove the coun-
terclaim filed against it. Because in the context of these
removal provisions the term “defendant” refers only to the
party sued by the original plaintiff, we conclude that
neither provision allows such a third party to remove.
I
A
We have often explained that “[f]ederal courts are courts
of limited jurisdiction.” Kokkonen v. Guardian Life Ins.
Co. of America, 511 U. S. 375, 377 (1994). Article III, §2,
2 HOME DEPOT U. S. A., INC. v. JACKSON
Opinion of the Court
of the Constitution delineates “[t]he character of the con-
troversies over which federal judicial authority may ex-
tend.” Insurance Corp. of Ireland v. Compagnie des Baux-
ites de Guinee, 456 U. S. 694, 701 (1982). And lower
federal-court jurisdiction “is further limited to those sub-
jects encompassed within a statutory grant of jurisdic-
tion.” Ibid. Accordingly, “the district courts may not
exercise jurisdiction absent a statutory basis.” Exxon
Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 552
(2005).
In 28 U. S. C. §§1331 and 1332(a), Congress granted
federal courts jurisdiction over two general types of cases:
cases that “aris[e] under” federal law, §1331, and cases in
which the amount in controversy exceeds $75,000 and
there is diversity of citizenship among the parties,
§1332(a). These jurisdictional grants are known as
“federal-question jurisdiction” and “diversity jurisdiction,”
respectively. Each serves a distinct purpose: Federal-
question jurisdiction affords parties a federal forum in
which “to vindicate federal rights,” whereas diversity
jurisdiction provides “a neutral forum” for parties from
different States. Exxon Mobil Corp., supra, at 552.
Congress has modified these general grants of jurisdic-
tion to provide federal courts with jurisdiction in certain
other types of cases. As relevant here, CAFA provides
district courts with jurisdiction over “class action[s]” in
which the matter in controversy exceeds $5,000,000 and at
least one class member is a citizen of a State different
from the defendant. §1332(d)(2)(A). A “class action” is
“any civil action filed under Rule 23 of the Federal Rules
of Civil Procedure or similar State statute or rule of judi-
cial procedure.” §1332(d)(1)(B).
In addition to granting federal courts jurisdiction over
certain types of cases, Congress has enacted provisions
that permit parties to remove cases originally filed in state
court to federal court. Section 1441(a), the general removal
Cite as: 587 U. S. ____ (2019) 3
Opinion of the Court
statute, permits “the defendant or the defendants” in a
state-court action over which the federal courts would
have original jurisdiction to remove that action to federal
court. To remove under this provision, a party must meet
the requirements for removal detailed in other provisions.
For one, a defendant cannot remove unilaterally. Instead,
“all defendants who have been properly joined and served
must join in or consent to the removal of the action.”
§1446(b)(2)(A). Moreover, when federal jurisdiction is
based on diversity jurisdiction, the case generally must be
removed within “1 year after commencement of the ac-
tion,” §1446(c)(1), and the case may not be removed if any
defendant is “a citizen of the State in which such action is
brought,” §1441(b)(2).
CAFA also includes a removal provision specific to class
actions. That provision permits the removal of a “class
action” from state court to federal court “by any defendant
without the consent of all defendants” and “without regard
to whether any defendant is a citizen of the State in which
the action is brought.” §1453(b).
At issue here is whether the term “defendant” in either
§1441(a) or §1453(b) encompasses a party brought into a
lawsuit to defend against a counterclaim filed by the
original defendant or whether the provisions limit removal
authority to the original defendant.
B
In June 2016, Citibank, N. A., filed a debt-collection
action against respondent George Jackson in North Caro-
lina state court. Citibank alleged that Jackson was liable
for charges he incurred on a Home Depot credit card. In
August 2016, Jackson answered and filed his own claims:
an individual counterclaim against Citibank and third-
party class-action claims against Home Depot U. S. A.,
Inc., and Carolina Water Systems, Inc.
Jackson’s claims arose out of an alleged scheme between
4 HOME DEPOT U. S. A., INC. v. JACKSON
Opinion of the Court
Home Depot and Carolina Water Systems to induce home-
owners to buy water treatment systems at inflated prices.
The crux of the claims was that Home Depot and Carolina
Water Systems engaged in unlawful referral sales and
deceptive and unfair trade practices in violation of North
Carolina law, Gen. Stat. Ann. §§25A–37, 75–1.1 (2013).
Jackson also asserted that Citibank was jointly and sever-
ally liable for the conduct of Home Depot and Carolina
Water Systems and that his obligations under the sale
were null and void.
In September 2016, Citibank dismissed its claims
against Jackson. One month later, Home Depot filed a
notice of removal, citing 28 U. S. C. §§1332, 1441, 1446,
and 1453. Jackson moved to remand, arguing that prece-
dent barred removal by a “third-party/additional counter
defendant like Home Depot.” App. 51–52. Shortly there-
after, Jackson amended his third-party class-action claims
to remove any reference to Citibank.
The District Court granted Jackson’s motion to remand,
and the Court of Appeals for the Fourth Circuit granted
Home Depot permission to appeal and affirmed. 880 F. 3d
165, 167 (2018); see 28 U. S. C. §1453(c)(1). Relying on
Circuit precedent, it held that neither the general removal
provision, §1441(a), nor CAFA’s removal provision,
§1453(b), allowed Home Depot to remove the class-action
claims filed against it. 880 F. 3d, at 167–171.
We granted Home Depot’s petition for a writ of certio-
rari to determine whether a third party named in a class-
action counterclaim brought by the original defendant can
remove if the claim otherwise satisfies the jurisdictional
requirements of CAFA. 585 U. S. ___ (2018). We also
directed the parties to address whether the holding in
Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100(1941)—that an original plaintiff may not remove a coun-
Cite as: 587 U. S. ____ (2019) 5
Opinion of the Court
terclaim against it—should extend to third-party counter-
claim defendants.1 585 U. S. ___.
II
A
We first consider whether 28 U. S. C. §1441(a) permits a
third-party counterclaim defendant to remove a claim filed
against it.2 Home Depot contends that because a third-
party counterclaim defendant is a “defendant” to the claim
against it, it may remove pursuant to §1441(a). The dis-
sent agrees, emphasizing that “a ‘defendant’ is a ‘person
sued in a civil proceeding.’ ” Post, at 9 (opinion of ALITO,
J.). This reading of the statute is plausible, but we do not
think it is the best one. Of course the term “defendant,”
standing alone, is broad. But the phrase “the defendant or
the defendants” “cannot be construed in a vacuum.” Davis
v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989).
“It is a fundamental canon of statutory construction that
the words of a statute must be read in their context and
with a view to their place in the overall statutory scheme.”
Ibid.; see also A. Scalia & B. Garner, Reading Law 167
(2012) (“The text must be construed as a whole”); accord,
Bailey v. United States, 516 U. S. 137, 145–146 (1995).
Considering the phrase “the defendant or the defendants”
in light of the structure of the statute and our precedent,
we conclude that §1441(a) does not permit removal by any
counterclaim defendant, including parties brought into the
——————
1 In this opinion, we use the term “third-party counterclaim defend-
ant” to refer to a party first brought into the case as an additional
defendant to a counterclaim asserted against the original plaintiff.
2 Section 1441(a) provides that “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 or the defendants, to the
district court of the United States for the district and division embrac-
ing the place where such action is pending.”
6 HOME DEPOT U. S. A., INC. v. JACKSON
Opinion of the Court
lawsuit for the first time by the counterclaim.3
Home Depot emphasizes that it is a “defendant” to a
“claim,” but the statute refers to “civil action[s],” not
“claims.” This Court has long held that a district court,
when determining whether it has original jurisdiction over
a civil action, should evaluate whether that action could
have been brought originally in federal court. See Mexi-
can Nat. R. Co. v. Davidson, 157 U. S. 201, 208 (1895);
Tennessee v. Union & Planters’ Bank, 152 U. S. 454, 461
(1894). This requires a district court to evaluate whether
the plaintiff could have filed its operative complaint in
federal court, either because it raises claims arising under
federal law or because it falls within the court’s diversity
jurisdiction. E.g., Franchise Tax Bd. of Cal. v. Construc-
tion Laborers Vacation Trust for Southern Cal., 463 U. S.
1, 10 (1983); cf. Holmes Group, Inc. v. Vornado Air Circu-
lation Systems, Inc., 535 U. S. 826, 831 (2002) (“[A] coun-
terclaim . . . cannot serve as the basis for ‘arising under’
jurisdiction”); §1446(c)(2) (deeming the “sum demanded in
good faith in the initial pleading . . . the amount in contro-
versy”). Section 1441(a) thus does not permit removal
based on counterclaims at all, as a counterclaim is irrele-
vant to whether the district court had “original jurisdic-
tion” over the civil action. And because the “civil action
. . . of which the district cour[t]” must have “original juris-
diction” is the action as defined by the plaintiff ’s com-
plaint, “the defendant” to that action is the defendant to
that complaint, not a party named in a counterclaim. It is
this statutory context, not “the policy goals behind the
[well-pleaded complaint] rule,” post, at 23, that underlies
——————
3 Even
the dissent declines to rely on the dictionary definition of “de-
fendant” alone, as following that approach to its logical conclusion
would require overruling Shamrock Oil & Gas Corp. v. Sheets, 313
U. S. 100 (1941). See post, at 10, n. 2.
Cite as: 587 U. S. ____ (2019) 7
Opinion of the Court
our interpretation of the phrase “the defendant or the
defendants.”
The use of the term “defendant” in related contexts
bolsters our determination that Congress did not intend
for the phrase “the defendant or the defendants” in
§1441(a) to include third-party counterclaim defendants.
For one, the Federal Rules of Civil Procedure differentiate
between third-party defendants, counterclaim defendants,
and defendants. Rule 14, which governs “Third-Party
Practice,” distinguishes between “the plaintiff,” a “defend-
ant” who becomes the “third-party plaintiff,” and “the
third-party defendant” sued by the original defendant.
Rule 12 likewise distinguishes between defendants and
counterclaim defendants by separately specifying when
“[a] defendant must serve an answer” and when “[a] party
must serve an answer to a counterclaim.” Fed. Rules Civ.
Proc. 12(a)(1)(A)–(B).
Moreover, in other removal provisions, Congress has
clearly extended the reach of the statute to include parties
other than the original defendant. For instance, §1452(a)
permits “[a] party” in a civil action to “remove any claim or
cause of action” over which a federal court would have
bankruptcy jurisdiction. And §§1454(a) and (b) allow “any
party” to remove “[a] civil action in which any party as-
serts a claim for relief arising under any Act of Congress
relating to patents, plant variety protection, or copy-
rights.” Section 1441(a), by contrast, limits removal to
“the defendant or the defendants” in a “civil action” over
which the district courts have original jurisdiction.
Finally, our decision in Shamrock Oil suggests that
third-party counterclaim defendants are not “the defend-
ant or the defendants” who can remove under §1441(a).
Shamrock Oil held that a counterclaim defendant who was
also the original plaintiff could not remove under
§1441(a)’s predecessor statute. 313 U. S., at 106–109. We
agree with Home Depot that Shamrock Oil does not specif-
8 HOME DEPOT U. S. A., INC. v. JACKSON
Opinion of the Court
ically address whether a party who was not the original
plaintiff can remove a counterclaim filed against it. And
we acknowledge, as Home Depot points out, that a third-
party counterclaim defendant, unlike the original plaintiff,
has no role in selecting the forum for the suit. But the
text of §1441(a) simply refers to “the defendant or the
defendants” in the civil action. If a counterclaim defend-
ant who was the original plaintiff is not one of “the de-
fendants,” we see no textual reason to reach a different
conclusion for a counterclaim defendant who was not
originally part of the lawsuit. In that regard, Shamrock
Oil did not view the counterclaim as a separate action
with a new plaintiff and a new defendant. Instead, the
Court highlighted that the original plaintiff was still “the
plaintiff.” Id., at 108 (“We can find no basis for saying
that Congress, by omitting from the present statute all
reference to ‘plaintiffs,’ intended to save a right of removal
to some plaintiffs and not to others”). Similarly here, the
filing of counterclaims that included class-action allega-
tions against a third party did not create a new “civil
action” with a new “plaintiff ” and a new “defendant.”
Home Depot asserts that reading “the defendant” in
§1441(a) to exclude third-party counterclaim defendants
runs counter to the history and purposes of removal by
preventing a party involuntarily brought into state-court
proceedings from removing the claim against it. But the
limits Congress has imposed on removal show that it did
not intend to allow all defendants an unqualified right to
remove. E.g., §1441(b)(2) (preventing removal based on
diversity jurisdiction where any defendant is a citizen of
the State in which the action is brought). Moreover, Home
Depot’s interpretation makes little sense in the context of
other removal provisions. For instance, when removal is
based on §1441(a), all defendants must consent to removal.
See §1446(b)(2)(A). Under Home Depot’s interpretation,
“defendants” in §1446(b)(2)(A) could be read to require
Cite as: 587 U. S. ____ (2019) 9
Opinion of the Court
consent from the third-party counterclaim defendant, the
original plaintiff (as a counterclaim defendant), and the
original defendant asserting claims against them. Fur-
ther, Home Depot’s interpretation would require courts to
determine when the original defendant is also a “plaintiff ”
under other statutory provisions. E.g., §1446(c)(1). In-
stead of venturing down this path, we hold that a third-
party counterclaim defendant is not a “defendant” who can
remove under §1441(a).
B
We next consider whether CAFA’s removal provision,
§1453(b), permits a third-party counterclaim defendant to
remove.4 Home Depot contends that even if it could not
remove under §1441(a), it could remove under §1453(b)
because that statute is worded differently. It argues that
although §1441(a) permits removal only by “the defendant
or the defendants” in a “civil action,” §1453(b) permits
removal by “any defendant” to a “class action.” (Emphasis
added.) Jackson responds that this argument ignores the
context of §1453(b), which he contends makes clear that
Congress intended only to alter certain restrictions on
removal, not expand the class of parties who can remove a
class action. Although this is a closer question, we agree
with Jackson.
The two clauses in §1453(b) that employ the term “any
defendant” simply clarify that certain limitations on re-
moval that might otherwise apply do not limit removal
under §1453(b). Section 1453(b) first states that “[a] class
——————
4 Section 1453(b) provides that “[a] class action may be removed to a
district court of the United States in accordance with section 1446
(except that the 1-year limitation under section 1446(c)(1) shall not
apply), without regard to whether any defendant is a citizen of the
State in which the action is brought, except that such action may be
removed by any defendant without the consent of all defendants.”
10 HOME DEPOT U. S. A., INC. v. JACKSON
Opinion of the Court
action may be removed . . . without regard to whether any
defendant is a citizen of the State in which the action is
brought.” There is no indication that this language does
anything more than alter the general rule that a civil
action may not be removed on the basis of diversity juris-
diction “if any of the . . . defendants is a citizen of the
State in which such action is brought.” §1441(b)(2). Sec-
tion 1453(b) then states that “[a] class action . . . may be
removed by any defendant without the consent of all
defendants.” This language simply amends the rule that
“all defendants who have been properly joined and served
must join in or consent to the removal of the action.”
§1446(b)(2)(A). Rather than indicate that a counterclaim
defendant can remove, “here the word ‘any’ is being em-
ployed in connection with the word ‘all’ later in the sen-
tence—‘by any . . . without . . . the consent of all.’ ” West-
wood Apex v. Contreras, 644 F. 3d 799, 804 (CA9 2011);
see Palisades Collections LLC v. Shorts, 552 F. 3d 327,
335–336 (CA4 2008). Neither clause—nor anything else in
the statute—alters §1441(a)’s limitation on who can re-
move, which suggests that Congress intended to leave that
limit in place. See supra, at 5–8.
Thus, although the term “any” ordinarily carries an
“ ‘expansive meaning,’ ” post, at 10, the context here
demonstrates that Congress did not expand the types of
parties eligible to remove a class action under §1453(b)
beyond §1441(a)’s limits. If anything, that the language of
§1453(b) mirrors the language in the statutory provisions
it is amending suggests that the term “defendant” is being
used consistently across all provisions. Cf. Mississippi ex
rel. Hood v. AU Optronics Corp., 571 U. S. 161, 169–170
(2014) (interpreting CAFA consistently with Rule
20 where Congress used terms in a like manner in both
provisions).
To the extent Home Depot is arguing that the term
“defendant” has a different meaning in §1453(b) than it
Cite as: 587 U. S. ____ (2019) 11
Opinion of the Court
does in §1441(a), we reject its interpretation. Because
§§1453(b) and 1441(a) both rely on the procedures for
removal in §1446, which also employs the term “defend-
ant,” interpreting “defendant” to have different meanings
in different sections would render the removal provisions
incoherent. See First Bank v. DJL Properties, LLC, 598
F. 3d 915, 917 (CA7 2010) (Easterbrook, C. J.). Interpret-
ing the removal provisions together, we determine that
§1453(b), like §1441(a), does not permit a third-party
counterclaim defendant to remove.
Finally, the dissent argues that our interpretation
allows defendants to use the statute as a “tactic” to pre-
vent removal, post, at 7, but that result is a consequence of
the statute Congress wrote. Of course, if Congress shares
the dissent’s disapproval of certain litigation “tactics,” it
certainly has the authority to amend the statute. But we
do not.
* * *
Because neither §1441(a) nor §1453(b) permits removal
by a third-party counterclaim defendant, Home Depot
could not remove the class-action claim filed against it.
Accordingly, we affirm the judgment of the Fourth Circuit.
It is so ordered.
Cite as: 587 U. S. ____ (2019) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1471
_________________
HOME DEPOT U. S. A., INC., PETITIONER v.
GEORGE W. JACKSON
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
[May 28, 2019]
JUSTICE ALITO, with whom THE CHIEF JUSTICE, JUSTICE
GORSUCH, and JUSTICE KAVANAUGH join, dissenting.
The rule of law requires neutral forums for resolving
disputes. Courts are designed to provide just that. But
our legal system takes seriously the risk that for certain
cases, some neutral forums might be more neutral than
others. Or it might appear that way, which is almost as
deleterious. For example, a party bringing suit in its own
State’s courts might (seem to) enjoy, so to speak, a home
court advantage against outsiders. Thus, from 1789 Con-
gress has opened federal courts to certain disputes be-
tween citizens of different States. Plaintiffs, of course, can
avail themselves of the federal option in such cases by
simply choosing to file a case in federal court. But since
their defendants cannot, the law has always given defend-
ants the option to remove (transfer) cases to federal court.
Shamrock Oil & Gas Corp. v. Sheets, 313 U. S. 100, 105
(1941). The general removal statute, which authorizes
removal by “the defendant or the defendants,” thus en-
sures that defendants get an equal chance to choose a
federal forum. 28 U. S. C. §1441(a).
But defendants cannot remove a case unless it meets
certain conditions. Some of those conditions have long
made important (and often costly) consumer class actions
virtually impossible to remove. Congress, concerned that
2 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
state courts were biased against defendants to such ac-
tions, passed a law facilitating their removal. The Class
Action Fairness Act of 2005 (CAFA) allows removal of
certain class actions “by any defendant.” 28 U. S. C.
§1453(b). Our job is not to judge whether Congress’s fears
about state-court bias in class actions were warranted or
indeed whether CAFA should allay them. We are to de-
termine the scope of the term “defendant” under CAFA as
well as the general removal provision, §1441.
All agree that if one party sues another, the latter—the
original defendant—is a “defendant” under both removal
laws. But suppose the original defendant then counter-
sues, bringing claims against both the plaintiff and a new
party. Is this new defendant—the “third-party defend-
ant”—also a “defendant” under CAFA and §1441? There
are, of course, some differences between original and
third-party defendants. One is brought into a case by the
first major filing, the other by the second. The one filing is
called a complaint, the other a countercomplaint.
But both kinds of parties are defendants to legal claims.
Neither chose to be in state court. Both might face bias
there, and with it the potential for crippling unjust losses.
Yet today’s Court holds that third-party defendants are
not “defendants.” It holds that Congress left them unpro-
tected under CAFA and §1441. This reads an irrational
distinction into both removal laws and flouts their plain
meaning, a meaning that context confirms and today’s
majority simply ignores.
I
A
To appreciate what Congress sought to achieve with
CAFA, consider what Congress failed to accomplish a
decade earlier with the Private Securities Litigation Re-
form Act of 1995 (Reform Act), 109 Stat. 737 (codified at
15 U. S. C. §§77z–1 and 78u–4). The Reform Act was
Cite as: 587 U. S. ____ (2019) 3
ALITO, J., dissenting
“targeted at perceived abuses of the class-action vehicle in
litigation involving nationally traded securities,” including
spurious lawsuits, “vexatious discovery requests, and
‘manipulation by class action lawyers of the clients whom
they purportedly represent.’ ” Merrill Lynch, Pierce, Fen-
ner & Smith Inc. v. Dabit, 547 U. S. 71, 81 (2006) (quoting
H. R. Conf. Rep. No. 104–369, p. 31 (1995)). As a result of
these abuses, Congress found, companies were often forced
to enter “extortionate settlements” in frivolous cases, just
to avoid the litigation costs—a burden with scant benefits
to anyone. 547 U. S., at 81. To curb these inefficiencies,
the Reform Act “limit[ed] recoverable damages and attor-
ney’s fees, . . . impose[d] new restrictions on the selection
of (and compensation awarded to) lead plaintiffs, man-
date[d] imposition of sanctions for frivolous litigation, and
authorize[d] a stay of discovery pending resolution of any
motion to dismiss.” Ibid.But “at least some members of the plaintiffs’ bar” found
a workaround: They avoided the Reform Act’s limits on
federal litigation by “avoid[ing] the federal forum alto-
gether” and heading to state court. Id., at 82. Once there,
they were able to keep defendants from taking them back
to federal court (under the rules then in force) simply by
naming an in-state defendant. See §1441(b)(2). And the
change in plaintiffs’ strategy was marked: While state-
court litigation of such class actions had been “rare” before
the Reform Act’s passage, id., at 82, within a decade state
courts were handling most such cases, see S. Rep. No.
109–14, p. 4 (2005).
Some in Congress feared that plaintiffs’ lawyers were
able to “ ‘game’ the procedural rules and keep nationwide
or multi-state class actions in state courts whose judges
have reputations for readily certifying classes and approv-
ing settlements without regard to class member interests.”
Ibid. The result, in Congress’s judgment, was that “State
and local courts” were keeping issues of “national im-
4 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
portance” out of federal court, “acting in ways that demon-
strate[d] bias against out-of-State defendants” and impos-
ing burdens that hindered “innovation” and drove up
“consumer prices.” §§2(a)(4), (b), 119 Stat. 5.
So Congress again took action. But rather than get at
the problem by imposing limits on federal litigation that
plaintiffs could sidestep by taking defendants to state
court, Congress sought to make it easier for defendants to
remove to federal court: thus CAFA.
B
To grasp how CAFA changed the procedural landscape
for class actions, it helps to review the rules that govern
removal in the mine run of cases, and that once limited
removal of all class actions as well. Those general rules
appear in 28 U. S. C. §§1441 and 1446.
Under §1441(a), “any civil action brought in a State
court . . . may be removed by the defendant or the defend-
ants” as long as federal district courts would have “origi-
nal jurisdiction” over the case. Such jurisdiction comes in
two varieties. Federal courts have “federal question ju-
risdiction” if the case “aris[es] under” federal law—for
instance, if the plaintiff alleges violations of a federal stat-
ute. §1331. But even when the plaintiff brings only state-
law claims—alleging a breach of a contract, for example—
federal courts have “diversity jurisdiction” if the amount
in controversy exceeds $75,000 and there is complete
diversity of parties, meaning that no plaintiff is a citizen
of the same State as any defendant. §1332(a); Lincoln
Property Co. v. Roche, 546 U. S. 81, 89 (2005). While
§1441 normally allows removal of either kind of case, it
bars removal in diversity cases brought in the home State
of any defendant. §1441(b)(2).
Another subsection of §1441 addresses removal of a
subset of claims (not an entire action) when a case in-
volves some claims that would be removable because they
Cite as: 587 U. S. ____ (2019) 5
ALITO, J., dissenting
arise under federal law and others that would not (because
they involve state-law claims falling outside both the
original and the supplemental jurisdiction of federal
courts1). In these hybrid cases, §1441(c)(2) allows the
federal claims to be removed while the state-law claims
are severed and sent back to state court.
The procedural rules for removing an action or claim
from state to federal court under §1441 are set forth in
§1446. Section 1446(b)(2)(A) requires the consent of
all the defendants before an entire case may be re-
moved under §1441(a). (If a defendant instead invokes
§1441(c)(2), to remove a subset of claims, consent is re-
quired only from defendants to the claims that are re-
moved.) And if diversity jurisdiction arises later in litiga-
tion—which may occur if, for instance, dismissal of an
original defendant creates complete diversity—§1446(c)(1)
allows removal only within one year of the start of the
action in state court.
To this general removal regime, CAFA made several
changes specific to class actions. Instead of allowing
removal by “the defendant or the defendants,” see
§1441(a), §5 of CAFA allowed removal by “any defendant”
to certain class actions, §1453(b), even when the other
defendants do not consent, the case was filed in a defend-
ant’s home forum, or the case has been pending in state
court for more than a year. See 119 Stat. 12–13.
Of course, these changes would be of no use to a class-
action defendant hoping to remove if there were no federal
jurisdiction over its case. So CAFA also lowered the barri-
ers to diversity jurisdiction. While complete diversity of
parties is normally required, CAFA eliminates that rule
——————
1 Supplemental jurisdiction covers those claims “so related” to federal
claims that they are “part of the same case or controversy under Article
III,” 28 U. S. C. §1367(a), in that they “derive from a common nucleus of
operative fact.” Mine Workers v. Gibbs, 383 U. S. 715, 725 (1966).
6 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
for class actions involving at least 100 members and more
than $5 million in controversy. In such cases, CAFA vests
district courts with diversity jurisdiction anytime there is
minimal diversity—which occurs when at least one plain-
tiff and defendant reside in different States. See 28
U. S. C. §§1332(d)(2), (d)(5)(B).
We were asked to decide whether these loosened re-
quirements are best read to allow removal by third-party
defendants like Home Depot. The answer is clear when
one considers Home Depot’s situation against CAFA’s
language and history.
C
This case began as a garden-variety debt-collection
action: Citibank sued respondent George Jackson in state
court seeking payment on his purchase from petitioner
Home Depot of a product made by Carolina Water Sys-
tems (CWS). Jackson came back with a counterclaim class
action that roped in Home Depot and CWS as codefend-
ants. (Until then, neither Home Depot nor CWS had been
a party.) Citibank then dismissed its claim against Jack-
son, and Jackson amended his complaint to remove any
mention of Citibank. So now all that remains in this case
is Jackson’s class-action counterclaims against Home
Depot and CWS.
Invoking CAFA, Home Depot filed a notice of removal; it
also moved to realign the parties to make Jackson the
plaintiff, and CWS, Home Depot, and Citibank the de-
fendants (just before Citibank had dropped out entirely).
The District Court denied the motion and remanded the
case to state court, holding that Home Depot cannot re-
move under CAFA because CAFA’s “any defendant” ex-
cludes defendants to counterclaim class actions. The
Court of Appeals affirmed, citing Circuit precedent that
hung on this Court’s decision in Shamrock Oil & Gas
Corp. v. Sheets, 313 U. S. 100 (1941). We granted certio-
Cite as: 587 U. S. ____ (2019) 7
ALITO, J., dissenting
rari to decide whether the lower court’s reading of Sham-
rock Oil is correct and whether CAFA allows third-party
defendants like Home Depot to remove an action to federal
court.
All agree that the one dispute that now constitutes this
lawsuit—Jackson’s class action against Home Depot and
CWS—would have been removable under CAFA had it
been present from the start of a case. Is it ineligible for
removal just because it was not contained in the filing that
launched this lawsuit?
Several lower courts think so. In holding as much, they
have created what Judge Niemeyer called a “loophole”
that only this Court “can now rectify.” Palisades Collec-
tions LLC v. Shorts, 552 F. 3d 327, 345 (CA4 2008) (dis-
senting from denial of rehearing en banc). The potential
for that “loophole” was first spotted by a civil procedure
scholar writing shortly after CAFA took effect. See Tid-
marsh, Finding Room for State Class Actions in a Post-
CAFA World: The Case of the Counterclaim Class Action,
35 W. St. U. L. Rev. 193, 198 (2007). The article outlined
a “tactic” for plaintiffs to employ if they wanted to thwart
a defendant’s attempt to remove a class action to federal
court under CAFA: They could raise their class-action
claim as a counterclaim and “hope that CAFA does not
authorize removal.” Ibid. In a single stroke, the article
observed, a defendant’s routine attempt to collect a debt
from a single consumer could be leveraged into an unre-
movable attack on the defendant’s “credit and lending
policies” brought on behalf of a whole class of plaintiffs—
all in the very state courts that CAFA was designed to
help class-action defendants avoid. Id., at 199.
The article is right to call this approach a tactic; it
subverts CAFA’s evident aims. I cannot imagine why a
Congress eager to remedy alleged state-court abuses in
class actions would have chosen to discriminate between
two kinds of defendants, neither of whom had ever chosen
8 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
the allegedly abusive state forum, all based on whether
the claim against them had initiated the lawsuit or arisen
just one filing later (in the countercomplaint). Of course,
what finally matters is the text, and in reading texts we
must remember that “no legislation pursues its purposes
at all costs,” Rodriguez v. United States, 480 U. S. 522,
525–526 (1987) (per curiam); Congress must often strike a
balance between competing purposes. But a good inter-
preter also reads a text charitably, not lightly ascribing
irrationality to its author; and I can think of no rational
purpose for this limit on which defendants may remove.
Even respondent does not try to defend its rationality,
suggesting instead that it simply reflects a legislative
compromise. Yet there is no evidence that anyone thought
of this potential loophole before CAFA was enacted, and it
is hard to believe that any of CAFA’s would-be opponents
agreed to vote for it in exchange for this way of keeping
some cases in state court. The question is whether the
uncharitable reading here is inescapable—whether, un-
wittingly or despite itself, Congress adopted text that
compels this bizarre result.
II
There are different schools of thought about statutory
interpretation, but I would have thought this much was
common ground: If it is hard to imagine any purpose
served by a proposed interpretation of CAFA, if that read-
ing appears nowhere in the statutory or legislative history
or our cases on CAFA, if it makes no sense as a policy
matter, it had better purport to reflect the best reading of
the text, or any decision embracing it is groundless. In-
deed, far from relegating the text to an afterthought, our
shared approach to statutory interpretation, “as we always
say, begins with the text.” Ross v. Blake, 578 U. S. ___,
___ (2016) (slip op., at 4) (emphasis added). After all, as
we have unanimously declared, a “plain and unambigu-
Cite as: 587 U. S. ____ (2019) 9
ALITO, J., dissenting
ous” text “must” be enforced “according to its terms.”
Hardt v. Reliance Standard Life Ins. Co., 560 U. S. 242,
251 (2010). And yet, though the text and key term here is
“any defendant,” 28 U. S. C. §1453(b), the majority has not
one jot or tittle of analysis on the plain meaning of
“defendant.”
Any such analysis would have compelled a different
result. According to legal as well as standard dictionary
definitions available in 2005, a “defendant” is a “person
sued in a civil proceeding,” Black’s Law Dictionary 450
(8th ed. 2004), and the term is “opposed to” (contrasted
with) the word “plaintiff,” Webster’s Third New Interna-
tional Dictionary 591 (2002) (Webster). See also 4 Oxford
English Dictionary 377 (2d ed. 1989) (OED) (“[a] person
sued in a court of law; the party in a suit who defends;
opposed to plaintiff ”). What we have before us is a civil
proceeding in which Home Depot is not a plaintiff and is
being sued. So Home Depot is a defendant, as that term is
ordinarily understood.
The fact that Home Depot is considered a “third-party
defendant” changes nothing here. See N. C. Rule Civ.
Proc. 14(a) (2018). Adjectives like “third-party” “modify
nouns—they pick out a subset of a category that possesses
a certain quality.” Weyerhaeuser Co. v. United States Fish
and Wildlife Serv., 586 U. S. ___, ___ (2018) (slip op., at 8).
They do not “alter the meaning of the word” that they
modify. Rimini Street, Inc. v. Oracle USA, Inc., 586 U. S.
___, ___ (2019) (slip op., at 6). And so, just as a “ ‘critical
habitat’ ” is a habitat, Weyerhaeuser Co., supra, at ___ (slip
op., at 9), and “ ‘full costs’ ” are costs, Rimini Street, Inc.,
supra, at ___ (slip op., at 7), zebra finches are finches and
third-party defendants are, well, defendants.
If further confirmation were needed, it could be found in
CAFA’s use of the word “any” to modify “defendant.”
Unlike the general removal provision, which allows re-
moval by “the defendant or the defendants,” §1441(a),
10 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
CAFA’s authorization extends to “any defendant.”
§1453(b) (emphasis added). As we have emphasized re-
peatedly, “ ‘the word “any” has an expansive meaning, that
is, “one or some indiscriminately of whatever kind.” ’ ” Ali
v. Federal Bureau of Prisons, 552 U. S. 214, 219–220
(2008) (quoting United States v. Gonzales, 520 U. S. 1, 5
(1997), in turn quoting Webster’s Third New International
Dictionary 97 (1976)). In case after case, we have given
effect to this expansive sense of “any.” See Small v. United
States, 544 U. S. 385, 396 (2005) (THOMAS, J., dissenting)
(collecting cases). So too here: Contrary to the Court’s
analysis, Congress’s use of “any” covers defendants of
“whatever kind,” Ali, supra, at 220, including third-party
defendants like petitioner. “In concluding that ‘any’
means not what it says, but rather ‘a subset of any,’ the
Court distorts the plain meaning of the statute and de-
parts from established principles of statutory construc-
tion.” Small, supra, at 395 (THOMAS, J., dissenting).
For these reasons, unless third-party defendants like
Home Depot differ in some way that is relevant to removal
(as a matter of text, precedent, or common sense),2 they
fall within CAFA’s coverage of “any defendant.” §1453(b).
III
Respondent and the majority contend that Congress
meant to incorporate into CAFA a specialized sense of
“defendant,” derived from its use in the general removal
——————
2 That is true only of counterdefendants—original plaintiffs who are
countersued by their original defendant. For one thing, it is hard to say
that these plaintiffs fall under the plain meaning of “defendant,” when
the word “defendant” is defined in opposition to the word “plaintiff.”
See Webster 591; 4 OED 377. Moreover, as original plaintiffs, these
parties chose the state forum (unlike original or third-party defend-
ants), so it makes less sense to give them a chance to remove the case
from that same forum. Finally, our decision in Shamrock Oil & Gas
Corp. v. Sheets, 313 U. S. 100 (1941), confirms this reasoning and
result. See Part IV–A, infra.
Cite as: 587 U. S. ____ (2019) 11
ALITO, J., dissenting
statute, §1441. And in §1441, they assert, “defendant”
refers only to an original defendant—one named in the
plaintiff ’s complaint. As I will show, they are mistaken
about §1441. See Part IV, infra. But even if that general
removal law were best read to leave out third-party de-
fendants, there would be ample grounds to conclude that
such defendants are covered by CAFA. And the majority’s
and respondent’s objections to this reading of CAFA, based
on comparisons to other federal laws, are unconvincing.
A
1
The first basis for reading CAFA to extend more broadly
than §1441 is that CAFA’s text is broader. As discussed,
see supra, at 10, CAFA sweeps in “any defendant,”
§1453(b) (emphasis added), in contrast to §1441’s “the
defendant or the defendants.” So even if we read the
latter phrase narrowly, we would have to acknowledge
that “Congress did not adopt that ready alternative.”
Advocate Health Care Network v. Stapleton, 581 U. S. ___,
___ (2017) (slip op., at 8). “Instead, it added language
whose most natural reading is to enable” any defendant to
remove, and “[t]hat drafting decision indicates that Con-
gress did not in fact want” to replicate in CAFA the (pur-
portedly) narrower reach of §1441. Ibid.
Respondent scoffs at the idea that the word “any” could
make the difference. In his view, “any defendant” in
CAFA means “any one of the defendants,” not “any kind of
defendant.” Thus, he contends, if §1441 covers only one
kind of defendant—the original kind, the kind named in a
complaint—CAFA must do the same. On this account,
CAFA refers to “any defendant” only because it was meant
to eliminate (for class actions) §1441’s requirement that
all “the defendants” agree to remove. Respondent is right
that the word “any” in CAFA eliminated the defendant-
unanimity rule. But the modifier’s overall effect on the
12 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
plain meaning of CAFA’s removal provision is what counts
in a case interpreting CAFA; and that effect is to guaran-
tee a broad reach for the word “defendant.”
Nor is it baffling how “any” could be expansive in the
way respondent finds so risible. In ordinary language,
replacing “the Xs” with “any X” will often make the term
“X” go from covering only paradigm instances of X to
covering all cases. Compare:
• “Visitors to the prison may not use the phones except
at designated times.”
• “Visitors to the prison may not use any phone except
at designated times.”
On a natural reading, “the phones” refers to telephones
provided by the prison, whereas “any phone” includes
visitors’ cellphones. Likewise, even if the phrase “the
defendant” reached only original defendants, the phrase
“any defendant” would presumptively encompass all
kinds. Again, putting the word “any” into a “phrase . . .
suggests a broad meaning.” Ali, 552 U. S., at 218–219.
In fact, the text makes it indisputable that CAFA’s “any
defendant” is broader in some ways. CAFA reaches at
least two sets of defendants left out by §1441: in-state (or
“forum”) defendants, and nondiverse defendants. See
§§1332(d)(2), 1453(b). So respondent and the majority are
reduced to claiming that when CAFA says “any defend-
ant,” it is stretching farther than §1441’s “the defendant”
in some directions but not others—picking up forum de-
fendants and nondiverse defendants while avoiding all
contact with third-party defendants. But the shape of
“any” is not so contorted. If context shows that “any de-
fendant” covers some additional kinds, common sense tells
us it presumptively covers the others.
Cite as: 587 U. S. ____ (2019) 13
ALITO, J., dissenting
2
Respondent’s answer from precedent backfires. Against
our many cases reading the word “any” capaciously (which
is to say, naturally), see Small, 544 U. S., at 396 (THOMAS,
J., dissenting) (collecting cases), he cites two cases that
assigned the word a narrower scope. But in both, context
compelled that departure from plain meaning. In United
States v. Palmer, 3 Wheat. 610, 631–632 (1818), we read
“any person” to refer exclusively to those over whom the
United States had jurisdiction, but only because that was
the undisputed scope of other instances of the same phrase
in the same Act. Here, by contrast, even the majority
agrees that petitioner’s reading of “any defendant” in
CAFA is “plausible.” Ante, at 5. And in Small, supra, at
388–389, the Court read “any court” to refer only to do-
mestic courts because of the “legal presumption that Con-
gress ordinarily intends its statutes to have domestic, not
extraterritorial, application.” No presumption helps re-
spondent here.
Indeed, our presumptions in this area cut against the
majority and respondent’s view. That view insists on
reading CAFA’s “any defendant” narrowly, to match the
allegedly narrower scope of “the defendant” in §1441. But
our case law teaches precisely that CAFA should not be
read as narrowly as §1441. While removal under §1441 is
presumed narrow in various ways out of respect for States’
“rightful independence,” Shamrock Oil, 313 U. S., at 109,
we have expressly limited this “antiremoval” presumption
to cases interpreting §1441. As JUSTICE GINSBURG recently
wrote for the Court:
“[N]o antiremoval presumption attends cases invoking
CAFA, which Congress enacted to facilitate adjudica-
tion of certain class actions in federal court. See
Standard Fire Ins. Co., 568 U. S., at 595 (‘CAFA’s
primary objective’ is to ‘ensur[e] “Federal court con-
14 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
sideration of interstate cases of national importance.” ’
(quoting §2(b)(2), 119 Stat. 5)); S. Rep. No. 109–14,
p. 43 (2005) (CAFA’s ‘provisions should be read broadly,
with a strong preference that interstate class actions
should be heard in a federal court if properly removed
by any defendant.’).” Dart Cherokee Basin Operating
Co. v. Owens, 574 U. S. 81, 89 (2014) (emphasis added).
So the strongest argument for reading §1441 to exclude
third-party defendants is an interpretive canon that we
have pointedly refused to apply to CAFA. Our precedent
on this point is thus a second basis—apart from the plain
meaning of “any defendant”—for holding that CAFA co-
vers third-party defendants even if §1441 does not.
B
Respondent and the majority object that this reading
ignores the backdrop against which CAFA was enacted
and the significance of CAFA’s contrast with the language
of other (subject-matter-specific) removal statutes. And to
these objections, respondent adds a third and bolder claim:
that CAFA does not empower petitioner to remove because
it does not create removal authority at all, but only chan-
nels removals already authorized by §1441 (on which
petitioner cannot rely in this case). All three objections
fail.
1
In respondent’s telling, it has been the uniform view of
the lower courts that a third-party defendant is not among
“the defendants” empowered to remove under §1441.
Since those courts’ decisions studded the legal “backdrop”
when Congress enacted CAFA, respondent contends, we
should presume CAFA used “defendant” in the same
narrow sense. But this story exaggerates both the degree
of lower court harmony and the salience of the resulting
“backdrop” to Congress’s work on CAFA.
Cite as: 587 U. S. ____ (2019) 15
ALITO, J., dissenting
First, though respondent repeatedly declares that the
lower courts have reached a “consensus,” see Brief for
Respondent i, 1, 14, 19, 32, 35, they have not. “Several
cases . . . have permitted removal on the basis of a third
party claim where a separate and independent controversy
is stated.” Carl Heck Engineers, Inc. v. Lafourche Parish
Police Jury, 622 F. 2d 133, 135–136 (CA5 1980) (collecting
cases). Before CAFA, at least a half-dozen district courts
took this view.3 And though courts of appeals rarely get to
opine on this issue (because §1447(d) blocks most appeals
from district court orders sending a removed case back to
state court), two Circuits have actually allowed third-
party defendants to remove under §1441. See Texas ex rel.
Bd. of Regents of Univ. of Tex. System v. Walker, 142 F. 3d
813, 816 (CA5 1998); United Benefit Life Ins. Co. v. United
States Life Ins. Co., 36 F. 3d 1063, 1064, n. 1 (CA11 1994).
Even a treatise cited by respondent destroys his “consen-
sus” claim, as it admits that courts take “myriad and
diverging views on whether third-party defendants may
remove an action.” 16 J. Moore, D. Coquillette, G. Joseph,
& G. Vario, Moore’s Federal Practice §107.41[6] (3d ed.
2019).
Second, even if the lower courts all agreed, the “legal
backdrop” created by their decisions would matter only
insofar as it told us what we can “safely assume” about
what Congress “intend[ed].” McFarland v. Scott, 512 U. S.
849, 856 (1994). So the less salient that backdrop would
have been to Congress, the less relevant it is to interpret-
ing Congress’s actions. And I doubt the backdrop here
would have been very salient. For one thing, it consisted
mostly of trial court decisions; and the lower the courts,
——————
3 See Carl Heck Engineers, Inc. v. Lafourche Parish Police Jury, 622
F. 2d 133, 135 (CA5 1980) (collecting four); Charter Medical Corp. v.
Friese, 732 F. Supp. 1160 (ND Ga. 1989); Patient Care, Inc. v. Freeman,
755 F. Supp. 644 (NJ 1991).
16 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
the less visible the backdrop. Indeed, I can find no case
where we have read a special meaning into a federal
statutory term based mainly on trial court interpretations.
But even if several higher courts had spoken—and
spoken with one voice—there would be a problem: We
have no evidence Congress was listening. In preparing
and passing CAFA, Congress never adverted to third-
party defendants’ status. By respondent’s admission,
Congress was “silen[t]” on them in the seven years of
hearings, drafts, and debates leading up to CAFA’s adop-
tion. Brief for Respondent 45. Yet if Congress was not
thinking about a question, neither was it thinking about
lower courts’ answer to the question. So we cannot pre-
sume it adopted that answer.
2
Respondent also thinks we should read CAFA to exclude
third-party defendants in light of the contrast between
CAFA’s “any defendant” and the language of two other
removal laws that more clearly encompass third-party
defendants. The America Invents Act (AIA), for example,
allows “any party” to remove a lawsuit involving patent or
copyright claims. 28 U. S. C. §§1454(a), (b)(1). The Bank-
ruptcy Code likewise allows “[a] party” to remove in cases
related to bankruptcy. §1452(a). Thus, respondent says,
when Congress wanted to include more than original
defendants, it knew how. It used terms like “any party”
and “a party”—as CAFA did not.
Note, however, that the cited terms would have covered
even original plaintiffs, whom no one thinks CAFA meant
to reach (and for good reason, see Part II, supra). So
CAFA’s terms had to be narrower than (say) the AIA’s
“any party,” regardless of whether CAFA was going to
cover third-party defendants. Its failure to use the AIA’s
and Bankruptcy Code’s broader terms, then, tells us noth-
ing about third-party defendants’ status under CAFA.
Cite as: 587 U. S. ____ (2019) 17
ALITO, J., dissenting
Only the meaning of CAFA’s “any defendant” does that.
And it favors petitioner. See Parts II, III–A, supra.
3
Respondent’s final and most radical argument against
petitioner’s CAFA claim is that CAFA’s removal language
does not independently authorize removal at all. On this
view, all that §1453(b) does is “make a few surgical changes
[in certain class-action cases] to the procedures that ordi-
narily govern removal,” while the actual power to remove
comes from the general removal provision, §1441(a). Brief
for Respondent 49 (emphasis added). And so, the argu-
ment goes, removals under CAFA are still subject to
§1441(a)’s restriction to “civil action[s]” over which federal
courts have “original jurisdiction.” Since this limitation is
often read to mean that federal jurisdiction must have
existed from the start of the civil action, see Part IV–C,
infra, and that was not the case here, no removal is
possible.
The premise of this objection is as weak as it is auda-
cious. If CAFA does not authorize removal, then neither
does §1441. After all, they use the same operative lan-
guage, with the one providing that a class action “may be
removed,” §1453(b), and the other providing that a civil
action “may be removed,” §1441(a). So §1453(b) must,
after all, be its own font of removal power and not a con-
duit for removals sourced by §1441(a).
Respondent argues that this reading of CAFA’s §1453(b)
would render it unconstitutional. The argument is as
follows: Section 1453(b) provides that a “class action” may
be removed, but it does not specify that the class action
must fall within federal courts’ jurisdiction. So if §1453(b)
were a separate source of removal authority, it would
authorize removals of class actions over which federal
courts lacked jurisdiction, contrary to Article III of the
Constitution. By contrast, §1441(a) limits itself to author-
18 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
izing removal of cases over which federal courts have
“original jurisdiction.” Thus, only if §1441(a)—including
its jurisdictional limit—governs the removals described in
CAFA will CAFA’s removal language be constitutional.
This argument fails. Section 1453 implicitly limits
removal to class actions where there is minimal diversity,
thus satisfying Article III. After all, §1453(a) incorporates
the definition of “class action” found in the first paragraph
of §1332(d). See §1332(d)(1). But the very next para-
graph, §1332(d)(2), codifies the part of CAFA that created
federal jurisdiction over class actions involving minimal
diversity. This proves that the class actions addressed by
CAFA’s removal language, in §1453(b), are those involving
minimal diversity, as described in §1332(d). In fact, re-
spondent effectively concedes that §1453(b) applies only to
actions described in §1332(d), since the latter is also what
codifies those CAFA-removal rules that respondent does
acknowledge, see Brief for Respondent 52—the require-
ments of more than $5 million in controversy but only
minimal diversity, see §1332(d)(2). Because CAFA’s re-
moval language in §1453(b) applies only to class actions
described in §1332(d), it raises no constitutional trouble to
read §1453(b) as its own source of removal authority and
not a funnel for §1441(a).
IV
So far I have accepted, arguendo, the majority and
respondent’s view that third-party defendants are not
covered by the general removal provision, §1441. But I
agree with petitioner that this is incorrect. On a proper
reading of §1441, too, third-party defendants are “defend-
ants” entitled to remove. Though a majority of District
Courts would disagree, their exclusion of third-party
defendants has rested (in virtually every instance) on a
misunderstanding of a previous case of ours, and the mere
fact that this misreading has spread is no reason for us to
Cite as: 587 U. S. ____ (2019) 19
ALITO, J., dissenting
go along with it. Nor, contrary to the majority, does a
refusal to recognize third-party defendants under §1441
find support in our precedent embracing the so-called
“well-pleaded complaint” rule, which is all about how a
plaintiff can make its case unremovable, not about which
defendants may seek removal in those cases that can be
removed.
A
Look at lower court cases excluding third-party defend-
ants from §1441. Trace their lines of authority—the cases
and sources they cite, and those they cite—and the lines
will invariably converge on one point: our decision in
Shamrock Oil. But nothing in that case justifies the com-
mon reading of §1441 among the lower courts, a reading
that treats some defendants who never chose the state
forum differently from others.
As a preliminary matter, Shamrock Oil is too sensible to
produce such an arbitrary result. That case involved a
close ancestor of today’s general removal provision, one
that allowed removal of certain state-court actions at the
motion of “the defendant or defendants therein.” 313
U. S., at 104, n. 1. And our holding was simple: If A sues
B in state court, and B brings a counterclaim against A,
this does not then allow A to remove the case to federal
court. As the original plaintiff who chose the forum, A
does not get to change its mind now. That is all that
Shamrock Oil held. The issue of third-party defendants
never arose. And none of the Court’s three rationales
would support a bar on removal by parties other than
original plaintiffs.
Shamrock Oil looked to statutory history, text, and
purpose. As to history, it noted that removal laws had
evolved to give the power to remove first to “defendants,”
then to “ ‘either party, or any one or more of the plaintiffs
or defendants,’ ” and finally to “defendants” again. The
20 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
last revision must have been designed to withdraw removal
power from someone, we inferred, and the only candidate
was the plaintiff. Id., at 105–108. Second, we said there
was no basis in the text for distinguishing mere plaintiffs
from plaintiffs who had been countersued, so we would
treat them the same; neither could remove. Id., at 108.
Third, we offered a policy rationale: “[T]he plaintiff, hav-
ing submitted himself to the jurisdiction of the state court,
was not entitled to avail himself of a right of removal con-
ferred only on a defendant who has not submitted himself
to the jurisdiction.” Id., at 106. In this vein, we quoted a
House Report calling it “ ‘just and proper to require the
plaintiff to abide his selection of a forum.’ ” Ibid., n. 2
(quoting H. R. Rep. No. 1078, 49th Cong., 1st Sess., 1
(1886)). So history, language, and logic demanded that
original plaintiffs remain unable to remove even if
countersued.
None of these considerations applies to third-party
defendants. If anything, all three point the other way.
First, the statutory history cited by the Court shows that
Congress (and the Shamrock Oil Court itself) took “the
plaintiffs or defendants” to be jointly exhaustive catego-
ries. By that logic, since third-party defendants are cer-
tainly not plaintiffs—in any sense—they must be “defend-
ants” under §1441. Cf. Webster 591 (defining “defendant”
as “opposed to plaintiff ”); 4 OED 377 (same). Second, and
relatedly, the text of the general removal statute, then and
now, does not distinguish original from third-party de-
fendants when it comes to granting removal power—any
more than it had distinguished plaintiffs who were and
were not countersued when it came to withdrawing the
right to remove, as Shamrock Oil emphasized. And finally,
Shamrock Oil’s focus on fairness—reflected in its point
that plaintiffs may fairly be stuck with the forum they
chose—urges the opposite treatment for third-party de-
fendants. Like original defendants, they never chose to
Cite as: 587 U. S. ____ (2019) 21
ALITO, J., dissenting
submit themselves to the state-court forum.
Thus, all three grounds for excluding original plaintiffs
in Shamrock Oil actually support allowing third-party
defendants to remove under §1441.
B
Respondent leans on his claim that District Courts to
address the issue have reached a “consensus” that Sham-
rock Oil bars third-party defendants from removing. But
as we saw above, rumors of a “consensus” have been
greatly exaggerated. See Part III–B–1, supra. And in any
case, no interpretive principle requires leaving intact the
lower courts’ misreading of a case of ours.
Certainly there is no reason to presume that Congress
embraces the lower courts’ majority view. For one thing,
the cases distorting §1441 postdate the last revision of the
relevant statutory language, so they could not have in-
formed Congress’s view of what it was signing onto. And
it would be naive to assume that Congress now agrees
with those lower court cases just because it has not reacted
to them. Congress does not accept the common reading of
every law it leaves alone. Because life is short, the U. S.
Code is long, and court cases are legion, it normally takes
more than a court’s misreading of a law to rouse Congress
to issue a correction. That is why “ ‘Congressional inaction
lacks persuasive significance’ in most circumstances.”
Star Athletica, L. L. C. v. Varsity Brands, Inc., 580 U. S.
___, ___ (2017) (slip op., at 17) (quoting Pension Benefit
Guaranty Corporation v. LTV Corp., 496 U. S. 633, 650
(1990); quotation altered). In particular, “it is inappropri-
ate to give weight to ‘Congress’ unenacted opinion’ when
construing judge-made doctrines, because doing so allows
the Court to create law and then ‘effectively codif[y]’ it
‘based only on Congress’ failure to address it.’ ” Hallibur-
ton Co. v. Erica P. John Fund, Inc., 573 U. S. 258, 299
(2014) (THOMAS, J., concurring in judgment). Because the
22 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
decisions misreading Shamrock Oil are not a reliable
indicator of Congress’s intent regarding §1441, we owe
them no deference.
C
Finally, according to the majority, reading §1441 to
include third-party defendants would run afoul of our
precedent establishing the “well-pleaded complaint” rule
(WPC rule). Assuming that I have been able to recon-
struct the majority’s argument from this rule accurately, I
think it rests on a non sequitur. The WPC rule is all
about a plaintiff ’s ability to choose the forum in which its
case is heard, by controlling whether there is federal
jurisdiction; the rule has nothing to do with the division of
labor or authority among defendants.
Under the WPC rule, we consider only the plaintiff ’s
claims to see if there is federal-question jurisdiction.
Whether the defendant raises federal counterclaims (or
even federal defenses) is irrelevant. See, e.g., Holmes
Group, Inc. v. Vornado Air Circulation Systems, Inc., 535
U. S. 826, 831 (2002). Likewise, in a case involving stand-
ard diversity jurisdiction (based on complete diversity
under §1332(a) rather than minimal diversity under
CAFA), it is “the sum demanded . . . in the initial plead-
ing” that determines whether the amount in controversy is
large enough. §1446(c)(2). In both kinds of cases, a federal
court trying to figure out if it has “original jurisdiction,” as
required for removal of cases under §1441(a), must shut
its eyes to the defendant’s filings. Only the plaintiff ’s
complaint counts. So says the WPC rule.
But that is all about jurisdiction. The majority and
respondent would take things a step further. Even after
assuring itself of jurisdiction, they urge, a court should
consult only the plaintiff ’s complaint to see if a party is a
“defendant” empowered to remove under §1441. Since
third-party defendants (by definition) are not named until
Cite as: 587 U. S. ____ (2019) 23
ALITO, J., dissenting
the countercomplaint, they are not §1441 “defendants.”
I cannot fathom why this rule about who is a “defend-
ant” should follow from the WPC rule about when there is
federal jurisdiction. And the majority makes no effort to
fill the logical gap; it betrays almost no awareness of the
gap, drawing the relevant inference in two conclusory
sentences. See ante, at 6. But since this Court’s reasons
for the WPC rule have sounded in policy, the argument
could only be that the same policy goals would support
today’s restriction on who is a §1441 “defendant.”4 What
are the policy goals behind the WPC rule? We have de-
scribed them as threefold. See Holmes Group, Inc., 535
U. S., at 831–832.
First,
“since the plaintiff is ‘the master of the complaint,’ the
well-pleaded-complaint rule enables him, ‘by eschew-
ing claims based on federal law, . . . to have the cause
heard in state court.’ Caterpillar Inc., [482 U. S.,] at
398–399. [Allowing a defendant’s counterclaims or
defenses to create federal-question jurisdiction], in
contrast, would leave acceptance or rejection of a state
forum to the master of the counterclaim. It would al-
low a defendant to remove a case brought in state
court under state law, thereby defeating a plaintiff ’s
choice of forum, simply by raising a federal counter-
claim.” Ibid.But this concern is not implicated here; adopting peti-
tioner’s reading of “defendant” would in no way reduce the
——————
4 The Court insists that its position is based on “statutory context,”
not the logic behind the well-pleaded complaint rule. Ante, at 6–7. But
the only context to which the Court points is our precedent establishing
the well-pleaded complaint rule. Ante, at 6. It is that rule—the rule
that federal jurisdiction over an action turns entirely on the plaintiff’s
complaint—that leads the Court to think furthermore that “ ‘the
defendant’ to [an] action is the defendant to that complaint.” Ibid.24 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
extent of a plaintiff ’s control over the forum. Plaintiffs
would be able to keep state-law cases in state court no
matter what we held about §1441, and any cases remov-
able by third-party defendants would have been removable
by original defendants anyway. In other words, the issue
here is who can remove under that provision, not which
cases can be removed. However we resolved that “who”
question, removability under §1441(a) would still require
cases to fall within federal courts’ “original jurisdiction,”
§1441(a), and that would still turn just on the plaintiff ’s
choices—on whether the plaintiff had raised federal claims
(or sued diverse parties for enough money). So a case that
a plaintiff had brought “in state court under state law,”
id., at 832, would remain beyond federal jurisdiction, and
thus unremovable under §1441(a), even if we held that
third-party defendants are “defendants” under that
provision.
By the same token, such a holding would not undermine
the second policy justification that Holmes gave for the
WPC rule: namely, to avoid “radically expand[ing] the
class of removable cases, contrary to the ‘[d]ue regard for
the rightful independence of state governments.’ ” Id., at
832. As noted, our decision on the scope of §1441’s “de-
fendants” would not expand the class of removable cases
at all, because it would have no impact on whether a case
fell within federal courts’ jurisdiction. It would only ex-
pand the set of people (“the defendants”) who would have
to consent to such removal: Now third-party and original
defendants would have to agree.
The majority declares that treating third-party defend-
ants as among “the defendants” under §1441 “makes little
sense.” Ante, at 8. Perhaps its concern is that such a
ruling would make no meaningful difference since third-
party defendants would still be powerless to remove unless
they secured the consent of the original defendants, who
are their adversaries in litigation. But for one thing, there
Cite as: 587 U. S. ____ (2019) 25
ALITO, J., dissenting
may be cases in which original defendants do consent.
Though original and third-party defendants are rivals as
to claims brought by the one against the other, they may
well agree that a federal forum would be preferable. After
all, neither will have chosen the state forum in which both
find themselves prior to removal.5
More to the point, even if third-party defendants could
not secure the agreement needed to remove an entire civil
action under §1441(a), counting them as “defendants”
under §1441 would make a difference by allowing them to
invoke §1441(c)(2), which would permit them to remove
certain claims (not whole actions) without original defend-
ants’ consent. See Part I–B, supra. Being able to remove
claims under §1441(c)(2) has, in fact, been the main bene-
fit to third-party defendants in those jurisdictions that
have ruled that they are “defendants” under §1441. See
Carl Heck, 622 F. 2d, at 136. But this effect of such a
ruling is immune to the objection that it would “radically
expand the class of removable cases” since §1441(c)(2) does
not address the removal of a whole case (a “civil action”) at
all, but only of some claims within a case—and only those
that could have been brought in federal court from the
start, “in a separate suit from that filed by the original
plaintiff.” Id., at 136. Notably, then, any claims that were
raised by the original plaintiff would get to remain in state
court. Here too, the WPC rule’s concern to avoid “radically
expand[ing] the class of removable cases” is just not
implicated.
This leaves Holmes’s final rationale for the WPC rule:
——————
5 Or perhaps the majority fears that petitioner’s position would make
it harder for original defendants under §1441(a), by requiring them to
get the consent of the third-party defendants against whom they have
just brought suit. But this is an illusory problem. Original defendants
hoping to remove under §1441(a) without having to get their adver-
saries to agree could simply remove the case before roping in any third-
party defendants.
26 HOME DEPOT U. S. A., INC. v. JACKSON
ALITO, J., dissenting
that it promotes “clarity and ease of administration” in the
resolution of procedural disputes. 535 U. S., at 832. But
petitioner’s and respondent’s views on who is a “defend-
ant” are equally workable, so this last factor does not cut
one way or the other.
In sum, the actual WPC rule, which limits the filings
courts may consult in determining if they have jurisdic-
tion, is based on policy concerns that do not arise here.
There is, therefore, no justification for inventing an ersatz
WPC rule to limit which filings may be consulted by courts
deciding who is a “defendant” under §1441.
* * *
All the resources of statutory interpretation confirm
that under CAFA and §1441, third-party defendants are
defendants. I respectfully dissent.