Darryl A. Vachon v. Travelers Home and Marine Insurance Company

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12765
____________________
DARRYL A. VACHON,
Plaintiff-Appellee,
versus
TRAVELERS HOME AND MARINE INSURANCE COMPANY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-01201-TPB-SPF
____________________
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2 Opinion of the Court 20-12765
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and
WATKINS, * District Judge.
WILLIAM PRYOR, Chief Judge:
This appeal requires us to decide whether we have appellate
jurisdiction over an order that remanded a case to state court be-
cause of an untimely notice of removal. Because federal law bars
us from reviewing orders remanding cases based on a defect in re-
moval, see 28 U.S.C. § 1447(d), we lack jurisdiction. So we dismiss
this appeal.
I. BACKGROUND
Darryl Vachon, a citizen of Florida, was involved in a car
accident in 2011. After the other driver’s insurance did not cover all
of Vachon’s damages, Vachon sought to recover the balance from
Travelers Home and Marine Insurance Company, his provider of
“uninsured/underinsured” insurance coverage. Travelers refused
to pay.
In March 2013, Vachon sued Travelers in a Florida court.
Travelers, a citizen of Connecticut, could not remove the action to
federal court because Travelers’s “maximum coverage exposure
under the . . . policy it issued was $25,000,” which is below the min-
imum amount in controversy necessary to invoke diversity juris-
diction. See 28 U.S.C. § 1332(a) (“The district courts shall have
*Honorable W. Keith Watkins, United States District Judge for the Middle
District of Alabama, sitting by designation.
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20-12765 Opinion of the Court 3
original [diversity] jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75,000[.]”).
At trial in January 2020, the jury determined that Vachon
had incurred $1,022,780 in damages, and the state court awarded
Vachon $25,000, the policy maximum. See Nationwide Mut. Fire
Ins. Co. v. Voigt, 971 So. 2d 239, 242 (Fla. Dist. Ct. App. 2008)
(“[W]hen no dispute exists as to the policy limits . . . , the trial court
should . . . grant an insurer’s motion to limit the judgment to the
policy limits.”). Under Florida law, a plaintiff who recovers from
his insurance company in an underinsurance suit may bring a claim
against the company for “[n]ot attempting in good faith to settle
[the original underinsurance] claim[.]” FLA. STAT. § 624.155(b)(1).
As part of this “bad faith” claim, the plaintiff may seek “any dam-
ages” reflected in the jury verdict “in excess of the policy limits.”
Fridman v. Safeco Ins. Co. of Ill., 185 So. 3d 1214, 1222 (Fla. 2016).
In its final judgment, the state court “reserve[d] jurisdiction to de-
termine the Plaintiff’s right to amend his Complaint to seek and
litigate bad faith damages from the Defendant as a result of [the]
jury verdict in excess of policy limits.” See id. at 1229 (permitting
state courts to retain jurisdiction for that purpose after entering
judgment).
In April 2020, Vachon moved to amend his complaint to add
a bad faith claim. Travelers argued that the court should require
Vachon to file a separate lawsuit to recover additional damages be-
cause the company could “los[e] the opportunity to pursue re-
moval” to federal court if Vachon was permitted to amend his
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4 Opinion of the Court 20-12765
complaint. The state court granted Vachon’s motion on April 27.
The same day, Vachon filed an amended complaint containing a
new claim for “[s]tatutory [b]ad [f]aith,” and seeking “the total
damages suffered by [Vachon].” Because the value of the action
now “exceed[ed] the sum or value of $75,000,” Travelers removed
the lawsuit to federal court on May 26, 2020, based on diversity
jurisdiction. 28 U.S.C. § 1332(a); see also id. § 1441(a) (“[A]ny civil
action brought in a State court of which the district courts of the
United States have original jurisdiction . . . may be removed [to fed-
eral district court].”).
Vachon moved to remand on the ground that removal was
untimely because Travelers had not filed its notice of removal
within “1 year after commencement of the action” in March 2013.
Id. § 1446(c)(1). Travelers responded that the one-year period for
removal restarted when Vachon amended his complaint because
“a bad faith claim is separate, distinct, and does not exist until the
conclusion of an underlying [underinsurance] claim.” Travelers
also argued that it would violate the Supremacy Clause to permit
Vachon to “manipulate[] rules of procedure to prevent Travelers
from removing an otherwise removable case to federal court.”
The district court granted the motion to remand because
“[section] 1446 as drafted” required it to treat the one-year removal
period as having run from the date Vachon filed his first complaint
in 2013. Travelers timely appealed, and we requested additional
briefing about our jurisdiction. See 28 U.S.C. § 1447(d).
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20-12765 Opinion of the Court 5
II. STANDARD OF REVIEW
“We review our appellate jurisdiction de novo.” Overlook
Gardens Props., LLC v. ORIX USA, L.P., 927 F.3d 1194, 1198 (11th
Cir. 2019).
III. DISCUSSION
Travelers argues that it timely removed the case from state
court, but we lack jurisdiction to consider that issue in this appeal.
“[T]he existence of appellate jurisdiction in a specific federal court
over a given type of case is dependent upon authority expressly
conferred by statute.” Carroll v. United States, 354 U.S. 394, 399
(1957). Ordinarily, courts of appeals “have jurisdiction of appeals
from all final decisions of the district courts.” 28 U.S.C. § 1291. An
order of remand is a final decision, see In re Bethesda Mem’l Hosp.,
Inc., 123 F.3d 1407, 1408 (11th Cir. 1997), but Vachon argues that
we lack jurisdiction because Congress has proscribed appellate re-
view of certain orders remanding cases to state court, see 28 U.S.C.
§ 1447(d).
Section 1447(d) deprives us of jurisdiction over this appeal.
It provides that “[a]n order remanding a case to the State court
from which it was removed is not reviewable on appeal or other-
wise.” Id. Despite the broad statutory language, the Supreme
Court has explained that section 1447(d) strips courts of appeals of
jurisdiction to review only those orders remanding for one of the
two reasons identified in section 1447(c)—“a lack of subject matter
jurisdiction or a defect in removal procedure.” BP P.L.C. v. Mayor
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6 Opinion of the Court 20-12765
of Balt., 141 S. Ct. 1532, 1541 (2021); see also 28 U.S.C. § 1447(c).
All “other remand orders remain appealable.” BP P.L.C., 141 S. Ct.
at 1541. “[U]ntimely removal,” the basis of the remand order here,
is “precisely the type of removal defect contemplated by [section]
1447(c).” Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 128
(1995). So “[s]ection 1447(d) . . . compels the conclusion” that we
lack jurisdiction over the appeal. Id. And because we lack jurisdic-
tion, we may do no more than “announc[e] the fact and dismiss[]
the cause.” United States v. Amodeo, 916 F.3d 967, 971 (11th Cir.
2019) (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94 (1998)).
Travelers agrees that this Court ordinarily has no jurisdic-
tion to consider an appeal from a remand order, but it argues that
we have jurisdiction under the so-called “matter of substantive
law” exception to subsection (d). Aquamar S.A. v. Del Monte Fresh
Produce N.A., Inc., 179 F.3d 1279, 1286 (11th Cir. 1999) (internal
quotation marks omitted). This judge-made exception permits ap-
pellate review of a remand order “that determines the substantive
issues of the case in a way that is conclusive because it is unreview-
able by the state court.” Id. It is unclear what aspect of “[t]he judi-
cial Power of the United States,” U.S. CONST. art. III, § 1, authorizes
us to carve out exceptions to Congress’s lawful restriction of our
jurisdiction, see Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850)
(“The political truth is, that the disposal of the judicial power . . .
belongs to Congress.” (internal quotation marks omitted)). But, in
any event, the exception is inapplicable.
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20-12765 Opinion of the Court 7
Travelers contends that the district court determined sub-
stantive issues when it “calculat[ed] . . . the one-year removal pe-
riod based entirely upon an interpretation of Florida law as to
whether an amended pleading relates back to the filing date of the
original claim,” but the remand order did not mention the Florida
relation-back rules. Instead, the district court adopted the “reason-
ing and analysis” of decisions that interpreted the phrase “com-
mencement of the action” in section 1446. See Hawkinson v. State
Farm Mut. Auto. Ins. Co., 325 F. Supp. 3d 1293, 1298 (M.D. Fla.
2018); Fla. Health Scis. Ctr., Inc. v. Gov’t Emps. Ins. Co., No. 8:17-
cv-339-T-36AAS, 2017 WL 3720880, at *6 (M.D. Fla. Aug. 7, 2017).
And “there is no reason to believe that the [d]istrict [c]ourt’s re-
mand was actually based on th[ese] . . . unmentioned” relation-
back rules because “it does not appear from the record that [the
parties] ever even [addressed]” them in the district court. Powerex
Corp. v. Reliant Energy Servs., Inc., 551 U.S. 224, 235 (2007).
Moreover, Travelers has not explained how the findings
about the start-date of the removal period will have any effect on
the litigation on remand, much less a “conclusive effect upon the
state court action.” Aquamar, 179 F.3d at 1286 (emphasis added);
cf. Glasser v. Amalgamated Workers Union Loc. 88, 806 F.2d 1539,
1541 (11th Cir. 1986) (concluding that “[t]he appellants’ substantive
rights . . . [were] not affected” because the state court on remand
“c[ould] proceed to hear the case”). “Because the district court’s
order of remand . . . did not resolve any substantive issues,”
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8 Opinion of the Court 20-12765
Aquamar, 179 F.3d at 1285, we conclude that the matter of substan-
tive law exception does not apply.
We would lack jurisdiction even if the order contained some
determination of substantive law because the matter of substantive
law exception is inapplicable when “the substantive issue is intrin-
sic to the district court’s decision to remand.” Calderon v. Aerovias
Nacionales de Colom., 929 F.2d 599, 602 (11th Cir. 1991). Assuming
substantive Florida law played a part in the district court’s calcula-
tion of the removal period, any determination about that law “was
merely a step towards the conclusion that” the removal was un-
timely. In re Loudermilch, 158 F.3d 1143, 1146 (11th Cir. 1998). So
the substantive issue would have been intrinsic to the decision to
remand.
IV. CONCLUSION
We DISMISS the appeal for lack of jurisdiction.
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20-12765 WILLIAM PRYOR, C.J., concurring 1
WILLIAM PRYOR, Chief Judge, joined by LAGOA, Circuit Judge,
concurring:
Because we lack jurisdiction, we dismiss the appeal without
determining whether the district court correctly interpreted the
one-year statutory deadline for removal to federal court, see 28
U.S.C. § 1446(c)(1). I write separately to explain why, if we had ju-
risdiction, I would affirm the remand order. The plain meaning of
section 1446 is clear: The one-year period for a defendant to re-
move an action to federal court begins when the plaintiff files his
complaint in state court, not when he amends his complaint to add
a new claim years later. Travelers filed its notice of removal six
years too late.
Section 1446 governs the removal of “civil action[s] from a
State court” to federal court. Id. § 1446(a). Ordinarily, a defendant
must file a “notice of removal of a civil action or proceeding . . .
within 30 days after” his receipt “of a copy of the initial pleading
setting forth the claim for relief upon which such action or proceed-
ing is based.” Id. § 1446(b)(1). But “if the case stated by the initial
pleading is not removable, a notice of removal may be filed within
thirty days after” the defendant receives “a copy of an amended
pleading, motion, order[,] or other paper from which it may first
be ascertained that the case is one which is or has become remov-
able.” Id. § 1446(b)(3). Subsection (b) further provides that it is sub-
ject to “subsection (c).” Id. And subsection (c) provides that “[a]
case may not be removed under subsection (b)(3) on the basis of ”
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2 WILLIAM PRYOR, C.J., concurring 20-12765
diversity jurisdiction “more than one year after commencement of
the action.” Id. § 1446(c)(1).
Under the plain meaning of section 1446, Travelers’s notice
of removal was untimely. Cf. United States v. Steele, 147 F.3d 1316,
1318 (11th Cir. 1998) (en banc) (“In construing a statute we must
begin, and often should end as well, with the language of the stat-
ute itself.” (internal quotation marks omitted)). In this context, an
“action” means “a lawsuit.” Action, OXFORD ENGLISH
DICTIONARY (online ed.). So the “commencement of [an] action,”
28 U.S.C. § 1446(c)(1), is “[t]he time at which” the lawsuit “begin[s],
typically with the filing of a formal complaint.” Commencement of
an Action, BLACK’S LAW DICTIONARY (11th ed. 2019); cf. FLA. R. CIV.
P. 1.050 (“Every action of a civil nature shall be deemed com-
menced when the complaint or petition is filed[.]”). Vachon com-
menced his lawsuit against Travelers in 2013 by filing his original
complaint. Ordinarily, Travelers would have had 30 days after re-
ceiving the “initial pleading”—that is, the 2013 complaint—to file a
notice of removal. See 28 U.S.C. § 1446(b)(1). But the “case stated
by the initial pleading [was] not removable,” so Travelers was en-
titled, “[e]xcept as provided in subsection (c),” to file a notice of
removal “within thirty days after [its] receipt . . . of a copy of [the]
amended pleading . . . from which it [could] first be ascertained that
the case [was] one which . . . ha[d] become removable”—that is,
the amended complaint. Id. § 1446(b)(3). Travelers filed a notice of
removal in May 2020, within thirty days of receiving the amended
complaint. But because Travelers attempted to “remove[] under
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20-12765 WILLIAM PRYOR, C.J., concurring 3
subsection (b)(3) on the basis of [diversity] jurisdiction . . . more
than 1 year after commencement of the action” in 2013, its notice
of removal was untimely. Id. § 1446(c)(1).
Travelers argues that “action” is synonymous with “claim”
and that Vachon commenced a new action when he advanced his
claim of bad faith in 2020, but this argument fails to account for the
ordinary meaning of those terms. A “claim” is “[a] demand for
money, property, or a legal remedy.” Claim, BLACK’S LAW
DICTIONARY. Because an action may involve more than one such
demand, we have explained that “a particular claim” is “a portion
of a plaintiff’s lawsuit,” Perry v. Schumacher Grp. of La., 891 F.3d
954, 958 (11th Cir. 2018) (emphasis omitted), while “an action . . .
refers to the whole case,” Corley v. Long-Lewis, Inc., 965 F.3d
1222, 1236 (11th Cir. 2020) (William Pryor, C.J., concurring) (inter-
nal quotation marks omitted); see Arango v. Guzman Travel Advi-
sors Corp., 621 F.2d 1371, 1376 (5th Cir. 1980) (concluding that
“civil action,” 28 U.S.C. § 1441(d), “denotes the entirety of the pro-
ceedings in question,” “not simply claims”).
Section 1446 employs this distinction. For example, subsec-
tion (b) refers to an “initial pleading setting forth the claim for relief
upon which such action . . . is based.” 28 U.S.C. § 1446(b)(1). That
provision would make little sense if “action” and “claim” were syn-
onymous. See ANTONIN SCALIA & BRYAN A. GARNER, READING
LAW: THE INTERPRETATION OF LEGAL TEXTS § 26, at 174 (2012)
(“[No provision] should needlessly be given an interpretation that
causes it to duplicate another provision or to have no
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4 WILLIAM PRYOR, C.J., concurring 20-12765
consequence.”). And because “[a] word or phrase is presumed to
bear the same meaning throughout a text,” id. § 25, at 170, it fol-
lows that an “action” in subsection (c) is similarly distinct from a
“claim,” cf. Arango, 621 F.2d at 1376 (interpreting “civil action” in
section 1441(d) in the light of “[t]he same phrase in the remaining
subsections of [section] 1441”). The amendment of Vachon’s com-
plaint in 2020 to include a claim of bad faith did not constitute the
commencement of a new action. It was no more than the latest
development in an action that Vachon commenced in 2013.
Travelers mentions that “a statutory bad faith claim is sepa-
rate and independent of the [underinsurance] claim” under Flor-
ida’s relation-back rules, but this observation is irrelevant. The de-
gree of relationship between two claims does not tell us whether
those claims were filed as part of the same lawsuit. Nor is the treat-
ment of bad faith claims under the Florida relation-back doctrine
material. The doctrine addresses whether an amended complaint
may be treated as filed on the date of the original complaint for
purposes of state statutes of limitations. See Relation Back, BLACK’S
LAW DICTIONARY. But section 1446 requires us to consider whether
“an amended pleading” was filed “more than 1 year after com-
mencement of the action,” 28 U.S.C. § 1446(b)(3), (c)(1), not
whether, under state law, “[a]n amended complaint raising claims
for which the statute of limitations has expired can survive a mo-
tion to dismiss,” Palm Beach Cnty. Sch. Bd. v. Doe, 210 So. 3d 41,
43–44 (Fla. 2017).
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20-12765 WILLIAM PRYOR, C.J., concurring 5
To be sure, some district courts within our Circuit have
treated a bad faith claim as its own action for purposes of subsec-
tion (c) on the basis “that the bad faith claim is a separate and dis-
tinct cause of action” from the underinsurance claim. Johnson v.
State Farm Mut. Auto. Ins. Co., No. 6:15-cv-1942-Orl-31TBS, 2016
WL 277768, at *2 (M.D. Fla. Jan. 22, 2016); see, e.g., Thorne v. State
Farm Mut. Auto. Ins. Co., No. 8:14-cv-827-T-17AEP, 2015 WL
809530, at *4–6 (M.D. Fla. Feb. 25, 2015); Lahey v. State Farm Mut.
Auto. Ins. Co., No. 8:06-cv-1949-T27-TBM, 2007 WL 2029334, at *2
(M.D. Fla. July 11, 2007). These district courts appear to have relied
on an earlier version of the removal statute that permitted a de-
fendant to remove the “entire case” “[w]henever a separate and in-
dependent claim or cause of action, which would be removable if
sued upon alone, [was] joined with one or more otherwise non-
removable claims or causes of action.” 28 U.S.C. § 1441(c) (1988);
see, e.g., Thorne, 2015 WL 809530, at *4 (permitting removal of an
individual claim in a multi-count complaint and observing that “[a]
bad faith claim is a cause of action that is separate and independent
of the underlying [underinsurance] claim”). But Congress repealed
that provision in 2011. Federal Courts Jurisdiction and Venue Clar-
ification Act of 2011, Pub. L. No. 112-63 § 103(a)(4), 125 Stat. 758,
759. And the distinction the former provision drew between an
“entire case” and an individual “claim” tends only to confirm that
a claim is not the same as an action.
Travelers urges us to depart from the plain meaning of sec-
tion 1446(c) because its inability to timely remove a bad faith claim
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6 WILLIAM PRYOR, C.J., concurring 20-12765
“is an absurd result that cannot pass muster.” Courts should not be
in the business of rewriting legislation, so we apply the absurdity
doctrine “only under rare and exceptional circumstances.” Crooks
v. Harrelson, 282 U.S. 55, 60 (1930). That is, we may depart from
the literal meaning of an unambiguous statute only where “a ra-
tional Congress,” BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1542
(2021), “could not conceivably have . . . intended” the literal mean-
ing to apply, Logan v. United States, 552 U.S. 23, 36 (2007) (internal
quotation marks omitted).
No absurdity results here because the literal meaning of the
text “is more than conceivable,” id. at 37 (internal quotation marks
omitted)—it is entirely sensible. The ordinary rule that a defendant
must file a notice of removal within thirty days of receiving the in-
itial complaint, see 28 U.S.C. § 1446(b)(1), ensures “early resolution
of the court system in which the case will be heard,” 14 CHARLES
ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 3731
(rev. 4th ed. 2021). But because a case might become removable
only when a plaintiff amends his complaint, Congress has permit-
ted the thirty-day period for removal to restart in this circumstance.
See 28 U.S.C. § 1446(b)(3). Amendments to a complaint may occur
at a late stage of the litigation, including at or after trial, when re-
moval would be particularly disruptive. See, e.g., FLA. R. CIV.
P. 1.190(b) (permitting amendment of the pleadings “to conform
to the evidence” at trial). So, by setting the latest date for removal
at one year after commencement of the action, Congress has re-
duced the possibility of this kind of disruption. See 14 WRIGHT ET
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20-12765 WILLIAM PRYOR, C.J., concurring 7
AL., supra, § 3731 (“The time limit was included in order to reduce
the opportunity for removal of diversity cases after substantial pro-
gress toward their resolution has been made in state court.”). The
plain meaning of section 1446(c)—and the result it compels here—
is not absurd but instead reflects a “Congressional policy of avoid-
ing interruption of the litigation of the merits of . . . causes,
properly begun in state courts.” United States v. Rice, 327 U.S. 742,
752 (1946).
To be sure, the one-year deadline “provides plaintiffs with
an opportunity and an incentive to . . . prevent removal until the
one-year period has passed, thereby defeating defendants’ removal
right,” but this “potential negative impact” does not make the out-
come absurd. 14 WRIGHT ET AL., supra, § 3731. “Congress may well
have accepted [that impact] as the price of a uniform system of fed-
eral procedure.” Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393, 414 n.13 (2010) (plurality opinion). And even
if Congress did not foresee the precise way subsection (c) would
make removal difficult for defendants like Travelers, the absurdity
doctrine does not give us license to fix “substantive errors arising
from a drafter’s failure to appreciate the effect of certain provi-
sions,” SCALIA & GARNER, READING LAW § 37, at 238. “We are not
the final editors of statutes, modifying language when we perceive
some oversight.” Tex. Brine Co. v. Am. Arb. Ass’n, 955 F.3d 482,
486 (5th Cir. 2020). If Travelers is unhappy with section 1446 as it
is currently written, “the remedy lies with Congress and not with
the courts.” Chung Fook v. White, 264 U.S. 443, 446 (1924).
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8 WILLIAM PRYOR, C.J., concurring 20-12765
Moreover, Congress amended section 1446 in 2011 to pro-
vide that the one-year deadline does not apply when “the district
court finds that the plaintiff has acted in bad faith in order to pre-
vent a defendant from removing the action,” but Travelers did not
rely on—or even mention—this amendment in the district court.
28 U.S.C. § 1446(c)(1); see Federal Courts Jurisdiction and Venue
Clarification Act § 103(b)(3)(C). To be sure, Travelers asserted that
Vachon, “by amending his [c]omplaint rather than filing a new . . .
action, has manipulated rules of procedure to prevent [it] from re-
moving an otherwise removable case to federal court.” But Trav-
elers made this assertion in support of its argument that it would
violate the Supremacy Clause to afford “action” its plain meaning.
Travelers did not ask the district court to find that Vachon had
acted in bad faith. Because the parties did not brief the application
of the amendment, I express no opinion about whether it might
have applied in this case. But the possibility that Congress has al-
ready addressed Travelers’s concerns supplies another reason to
decline to rewrite the statute. Cf. Harris v. Garner, 216 F.3d 970,
976 (11th Cir. 2000) (en banc) (“We will not do to the statutory
language what Congress did not do with it.”).
Finally, Travelers argues that a determination that its re-
moval was untimely would “deprive[] [it] of its substantive due
process right to remove to federal court,” but no such constitu-
tional right exists. The Constitution leaves “to the wisdom of Con-
gress the creation of lower federal courts.” Haywood v. Drown,
556 U.S. 729, 746 (2009) (Thomas, J., dissenting); see U.S. CONST.
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20-12765 WILLIAM PRYOR, C.J., concurring 9
art. III, § 1. And “[i]t is for Congress to say how much of the judicial
power of the United States shall be exercised” by those inferior
courts. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511,
521 (1898). “Th[e] power of removal,” which “is not to be found in
express terms in any part of the [C]onstitution,” is no exception.
Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 349 (1816). Be-
cause Congress controls the jurisdiction of inferior courts, it has
long been settled that “[t]he time, the process, and the manner” of
removal is “subject to . . . absolute legislative control.” Id. Congress
exercised that control when it enacted section 1446(c). The subsec-
tion does not violate substantive due process. Glob. Satellite
Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1271 (11th Cir.
2004) (“A defendant’s right to remove an action against it from
state to federal court is purely statutory[.]” (internal quotation
marks omitted)); see also Washington v. Glucksberg, 521 U.S. 702,
721 (1997) (explaining that a substantive due process right must be
“deeply rooted in this Nation’s history and tradition” (internal quo-
tation marks omitted)).
Travelers asserts that federal courts have held that a denial
of the “right to remove to federal court” is a “substantial [sic] due
process injury,” but the two circuit court decisions on which it re-
lies do not bear out that assertion. In McKinney v. Board of Trus-
tees, the Fourth Circuit interpreted an earlier version of the re-
moval statute. 955 F.2d 924, 925–26 (4th Cir. 1992). At the time, the
statute provided that the thirty-day period for filing a notice of re-
moval ran from “receipt by the defendant . . . of a copy of the initial
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10 WILLIAM PRYOR, C.J., concurring 20-12765
pleading,” 28 U.S.C. § 1446(b) (1988), but it was unclear how that
provision applied when there were multiple defendants, see
McKinney, 955 F.2d at 926. Our sister Circuit rejected the plaintiff’s
argument that service of the first-served defendant triggered the
thirty-day period for all defendants, regardless of when those other
defendants were served. Id. at 926–27. The Court explained that
this interpretation would be “inequit[able]” to later-served defend-
ants, and the Court did “not think that Congress, in providing for
removal to federal court, intended to allow inequitable results.” Id.
at 927. The Court also considered it relevant that, if it were to ac-
cept the plaintiff’s interpretation, “the rights of defendants [to re-
move] generally could be rather easily overcome by tactical ma-
neuvering by plaintiffs.” Id. at 928 (internal quotation marks omit-
ted). But, the Fourth Circuit explained, because “Congress created
the removal process to protect defendants,” “[t]his [result] cannot
be what Congress had in mind.” Id. (internal quotation marks omit-
ted). This Circuit too relied on “common sense and considerations
of equity” to interpret the same provision, and we agreed that
“[t]he first-served rule” was “inequitable to later-served defend-
ants.” Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1206
(11th Cir. 2008).
McKinney and Bailey were exercises in statutory interpreta-
tion, and neither the Fourth Circuit nor our Court considered re-
moval to be a constitutional right. Neither decision described re-
moval as anything other than a statutory entitlement, and neither
decision mentioned procedural due process, much less its more
USCA11 Case: 20-12765 Date Filed: 12/14/2021 Page: 19 of 19
20-12765 WILLIAM PRYOR, C.J., concurring 11
controversial substantive counterpart. To the extent Travelers con-
tends that we should consider “policy concerns” and whether a par-
ticular interpretation of section 1446 would produce an “ineq-
uit[y],” this contention fails for the same reason as Travelers’s ab-
surdity argument. Unlike the former subsection (b) at issue in
McKinney and Bailey, the meaning of the current subsection (c) is
clear.
The plain meaning of the statute compels the conclusion
that Travelers’s notice of removal was untimely, and “our job is to
follow the text even if doing so will supposedly undercut a basic
objective of the statute.” Villarreal v. R.J. Reynolds Tobacco Co.,
839 F.3d 958, 969 (11th Cir. 2016) (en banc) (alteration adopted) (in-
ternal quotation marks omitted). Because “[w]e are not at liberty
to rewrite the statute to reflect a meaning we deem more desira-
ble,” id. at 970 (internal quotation marks omitted), I would decline
Travelers’s invitation to do so here if we had jurisdiction over this
appeal.