[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 because of an untimely notice of removal. Because federal law bars

us from reviewing orders remanding cases based on a defect in removal, 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 minimum amount in controversy necessary to invoke diversity jurisdiction. 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 damages” 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 determine 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 because the company could “los[e] the opportunity to pursue removal” 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 federal 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 review 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 otherwise.” 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 jurisdiction, 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 jurisdiction 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 appellate review of a remand order “that determines the substantive 

issues of the case in a way that is conclusive because it is unreviewable by the state court.” Id. It is unclear what aspect of “[t]he judicial 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 substantive issues when it “calculat[ed] . . . the one-year removal period 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 “reasoning and analysis” of decisions that interpreted the phrase “commencement 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 remand was actually based on th[ese] . . . unmentioned” relationback 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 substantive 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 intrinsic 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 calculation of the removal period, any determination about that law “was 

merely a step towards the conclusion that” the removal was untimely. 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 jurisdiction, I would affirm the remand order. The plain meaning of 

section 1446 is clear: The one-year period for a defendant to remove 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 proceeding 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 removable.” Id. § 1446(b)(3). Subsection (b) further provides that it is subject 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 statute 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 commenced when the complaint or petition is filed[.]”). Vachon commenced his lawsuit against Travelers in 2013 by filing his original 

complaint. Ordinarily, Travelers would have had 30 days after receiving 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 entitled, “[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) (internal quotation marks omitted); see Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1376 (5th Cir. 1980) (concluding that 

“civil action,” 28 U.S.C. § 1441(d), “denotes the entirety of the proceedings in question,” “not simply claims”).

Section 1446 employs this distinction. For example, subsection (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 synonymous. 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 follows 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 complaint 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 separate and independent of the [underinsurance] claim” under Florida’s relation-back rules, but this observation is irrelevant. The degree of relationship between two claims does not tell us whether 

those claims were filed as part of the same lawsuit. Nor is the treatment 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 commencement 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 motion 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 subsection (c) on the basis “that the bad faith claim is a separate and distinct 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 defendant to remove the “entire case” “[w]henever a separate and independent claim or cause of action, which would be removable if 

sued upon alone, [was] joined with one or more otherwise nonremovable 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 Clarification 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 section 1446(c) because its inability to timely remove a bad faith claim 

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“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 rational Congress,” BP P.L.C. v. Mayor of Balt., 141 S. Ct. 1532, 1542 

(2021), “could not conceivably have . . . intended” the literal meaning 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 initial 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 permitted 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 removal 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 reduced 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 progress 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 avoiding 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 outcome absurd. 14 WRIGHT ET AL., supra, § 3731. “Congress may well 

have accepted [that impact] as the price of a uniform system of federal 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 provisions,” 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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Moreover, Congress amended section 1446 in 2011 to provide that the one-year deadline does not apply when “the district 

court finds that the plaintiff has acted in bad faith in order to prevent 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 removing an otherwise removable case to federal court.” But Travelers 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 already 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 removal was untimely would “deprive[] [it] of its substantive due 

process right to remove to federal court,” but no such constitutional right exists. The Constitution leaves “to the wisdom of Congress 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). Because 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 subsection 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 quotation 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 relies do not bear out that assertion. In McKinney v. Board of Trustees, the Fourth Circuit interpreted an earlier version of the removal 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 removal 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 defendants, 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 accept the plaintiff’s interpretation, “the rights of defendants [to remove] generally could be rather easily overcome by tactical maneuvering by plaintiffs.” Id. at 928 (internal quotation marks omitted). 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 omitted). 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 defendants.” Bailey v. Janssen Pharmaceutica, Inc., 536 F.3d 1202, 1206 

(11th Cir. 2008).

McKinney and Bailey were exercises in statutory interpretation, and neither the Fourth Circuit nor our Court considered removal to be a constitutional right. Neither decision described removal as anything other than a statutory entitlement, and neither

decision mentioned procedural due process, much less its more 

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20-12765 WILLIAM PRYOR, C.J., concurring 11

controversial substantive counterpart. To the extent Travelers contends that we should consider “policy concerns” and whether a particular interpretation of section 1446 would produce an “inequit[y],” this contention fails for the same reason as Travelers’s absurdity 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) (internal quotation marks omitted). Because “[w]e are not at liberty 

to rewrite the statute to reflect a meaning we deem more desirable,” id. at 970 (internal quotation marks omitted), I would decline 

Travelers’s invitation to do so here if we had jurisdiction over this 

appeal.

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