HOME DEPOT U.S.A., INC., Petitioner, v. GEORGE W. JACKSON, Respondent
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Neil Gorsuch, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): William P. Barnette, F. Paul Bland, Jr.

John G. Roberts, Jr.: We'll hear argument first this morning in Case 17-1471, Home Depot versus Jackson. Mr. Barnette.

William P. Barnette: Mr. Chief Justice, and may it please the Court: Home Depot is a defendant under any reasonable construction of that term and, in fact, that's our only role in this case.

We're just a defendant. Home Depot is not a counterclaim defendant.

We didn't sue anyone in this case. Home Depot is not a third-party defendant. We're not being sued for indemnity or contribution. Home Depot is simply a defendant, the original defendant, to a consumer fraud class action filed in state court by Mr. Jackson.

As such, we're within the plain terms of Section 1441(a), are entitled to remove this class action under the Class Action Fairness Act to federal court, and the Fourth Circuit erred in holding otherwise. Because Home Depot is simply a defendant, this Court's holding in Shamrock Oil does not govern.

As the Court is aware, Shamrock Oil is an original plaintiff case, not an original defendant case.

The lower courts have erred in extending the holding of Shamrock Oil to say that, basically, you have to be an original defendant to be able to remove. The plain text of Section 1441(a) --

Sonia Sotomayor: I'm not quite sure, putting this outside the class action setting, generally, all defendants have to agree to removal and with some other limitations. If you're now an additional defendant to the action, why do you -- why don't you need Jackson's approval to remove? And he's not approving because he's opposing you.

William P. Barnette: I don't expect he would, Your Honor.

That's correct.

Under 1441(a) and traditional diversity jurisdiction, 1332(a), you're correct that all defendants have to remove as a part of the procedure under 1446. Here, though, in Shamrock Oil, the Court went through the history of removal and diversity, understood that it was very important to the framers that diversity jurisdiction was in the original constitution, Article III, Section 2.

Removal was in the original Judiciary Act of 1789, so it was important to the framers that each side have one shot at a -- at a federal forum.

Sonia Sotomayor: But that's not true.

William P. Barnette: Presume --

Sonia Sotomayor: All defendants don't have a shot at removal.

Only if everybody agrees, in an original action, all defendants have to agree to removal, correct?

William P. Barnette: That is correct, Your Honor.

Sonia Sotomayor: So not every defendant individually has a right to removal.

William P. Barnette: Your Honor, in Shamrock Oil, the Court looked at that history, looked at -- basically, Congress had said plaintiffs can't remove.

We know that.

Originally, the right to removal was given to defendants only. For about 20 years after the Civil War, it was given to both plaintiffs and defendants.

And then, in 1887, again, it was given back to only defendants.

So this Court in Shamrock Oil --

Sonia Sotomayor: My point still remains that the statute by its own form doesn't guarantee the power to every defendant to remove.

William P. Barnette: So, in Shamrock Oil, the Court, Your Honor, held because of this binary selection that Congress has made, you're either a plaintiff or a defendant.

Sonia Sotomayor: Well, how about in a -- how about --

William P. Barnette: If you're the plaintiff, then you're not the defendant.

Sonia Sotomayor: If your theory is this right of removal, how about an involuntary plaintiff? Under Federal Rule 19(a)(2), some people can be made involuntary plaintiffs.

Do they have a right to remove?

William P. Barnette: No, Your Honor.

The right to removal --

Sonia Sotomayor: Would there be --

William P. Barnette: -- is given to the defendant or the defendants --

Sonia Sotomayor: They never had a chance --

William P. Barnette: -- under 1441(a).

Sonia Sotomayor: They never had a chance to pick a forum.

That's the main support for your theory.

William P. Barnette: So the Shamrock --

Sonia Sotomayor: Which is that everybody should have one opportunity to choose their forum, correct?

William P. Barnette: A defendant -- the defendant or the defendants is entitled to remove under 1441(a).

In Shamrock Oil, this Court held, because the original plaintiff is not solely the defendant, they don't have that right.

Therefore, also, you wouldn't need their right to consent to removal by other defendants. In the same scenario, the original defendant that files an additional claim bringing in a new party defendant, they're a plaintiff at that point.

Neil Gorsuch: So --

William P. Barnette: This Court in Merchant Heat & Light said you step into the role of the plaintiff.

Neil Gorsuch: So, counsel, if I understand your answer to Justice Sotomayor, it's that counterclaim defendants count as defendants for purposes of 1441, but plaintiffs don't, even though they -- counterclaim defendant -- plaintiffs don't, even though they're the original defendant.

William P. Barnette: It -- it --

Neil Gorsuch: Now how can it be that the word "defendant" expands and contracts like that? I -- I could understand an argument that everybody who's a defendant in any claim in the case might count as a defendant for purposes of 1441, but what I can't abide or understand at least is how the word "defendant" could -- could be so Procrustean as to just happen to fit you.

William P. Barnette: Your Honor, just to briefly adjust what you said in your question, if I may, we're not saying counterclaim defendants.

We're saying the parties that are solely defendants.

A counterclaim defendant that's an original plaintiff, we're -- we don't say has the right to remove under Shamrock Oil. We take the Court's holding there as a given. But we're not within that holding. We're saying, if you're solely a defendant, that's your only role.

On the binary choice Congress has established, you're either a plaintiff or a defendant.

Neil Gorsuch: But -- but -- but that doesn't --

William P. Barnette: If you're not a plaintiff of any sort, you have to be a defendant.

Neil Gorsuch: Counsel, that still just -- I got it, but that doesn't answer the question, though, all right? You're saying that the plaintiff here is no longer -- doesn't qualify as a defendant --

William P. Barnette: Correct.

Neil Gorsuch: -- even though the plaintiff in this claim was the original defendant.

How could that be? How come they're not a defendant too for purposes of 1441?

William P. Barnette: Again, because, as this Court said in Merchant Heats & -- Merchants Heat & Light, excuse me, once you file that additional claim, third-party claim, you then -- that original defendant steps into the role of plaintiff. And just like any other plaintiff, like the original plaintiff, like this defendant-plaintiff, those parties just go along with the removal.

Plaintiffs don't consent to the removal, as the justice pointed out.

Sonia Sotomayor: Does your theory fall apart if we don't accept your claim-by-claim analysis? You approach this claim by claim.

I'm not quite sure how we can -- you can do that since the statute speaks about a civil action and it talks about removal of an action, not a removal of a claim. But, assuming we don't accept your theory that removal's claim by claim, where does that leave you?

William P. Barnette: Your Honor, you're correct, 1441 and 1453 talk about -- I'm sorry, 1332 talk about removing the civil action -- and 1446 -- but the point here is this Court held very clearly in Exxon -- Exxon versus Allapattah you have to look at the claims within the civil action to determine jurisdiction. Rule 8 is a short and plain --

Sonia Sotomayor: That's different than --

William P. Barnette: -- statement of a claim entitling you to relief.

It's not the civil action that entitles a party to relief.

It's the claim.

You have to look at the claim to determine the amount in controversy.

So once -- and once one -- one --

Sonia Sotomayor: The removal -- the removal statutes say you look at the cost -- you look at the action, not the claim.

William P. Barnette: Well, 1446(b) says that once there's a claim that establishes jurisdiction, that's when you have 30 days to remove.

That -- the claim is key here.

The civil action is just --

Sonia Sotomayor: But it's so --

William P. Barnette: -- the overarching matter or lawsuit.

Sonia Sotomayor: You don't have a right under your theory to -- well, you have a right that you don't have normally.

If you have a claim as a counterclaim defendant to -- that's not based on original jurisdiction, you're still claiming you have a right to remove? You were never entitled to a federal forum to start with.

William P. Barnette: Your Honor, this case is a qualifying class action under CAFA that, by definition, is within the original jurisdiction of the district courts.

We --

Sonia Sotomayor: No.

Now you're looking at the overall claim.

You're not saying to us look at the claim that makes you a defendant.

William P. Barnette: The claim we removed is the class action.

We weren't in the case before the class action.

Sonia Sotomayor: Well, that is true, but --

William P. Barnette: So we're not a counterclaim defendant, if I could point that out.

Sonia Sotomayor: But, under your theory, if there's a counterclaim defendant and it's not filing an original action, you could still remove?

William P. Barnette: I'm sorry, could you repeat that, Your Honor?

Sonia Sotomayor: Is it -- if you're looking at the claim, if you're a counterclaim defendant, are you looking at the original action or are you looking at your action or your --

William P. Barnette: We're looking at the claim that's being removed.

But, just to be clear, we are not a counterclaim defendant. Rule 13 is specific on what counterclaims are. That's a -- a claim a party has against an opposing party. We were not in that original case. That's absolutely correct.

But 1441 does not say only the original defendant can remove.

It does not say only claims brought by the original plaintiff can be removed.

It doesn't say only claims by the original plaintiff against the original defendant can be removed.

Elena Kagan: But, Mr. Barnette, as -- as Justice Sotomayor was saying, 1441(a), which is the principal removal statute, says that a civil action, not claims, but a civil action can be removed where the district courts have original jurisdiction. And what I've always taken that to mean is that to look for original jurisdiction, you look to the plaintiff's complaint, the original plaintiff.

It gives you original jurisdiction.

So, there, the plaintiff's complaint doesn't have any claims that belong in federal court.

So where do you get the authority to remove under 1441(a)?

William P. Barnette: Again, Your Honor, this class action qualifies under CAFA, which establishes that it's within the original jurisdiction of the district courts.

I could --

Elena Kagan: Well, your claim might be under the original jurisdiction of the district courts if it had -- or not your claim but the claim to which you are defendant, if that had started the lawsuit. But that didn't start the lawsuit. The lawsuit, the civil action, was started by a claim that's completely non-federal in nature. And you look to the original claim to decide whether the courts have original jurisdiction, don't you?

William P. Barnette: Your Honor, this is a somewhat unusual situation, although it's becoming increasingly less unusual because these class actions keep getting filed. But, to your point, Mr. Jackson essentially filed a new civil action in the existing case. Rule 3 says a civil action commences with the filing of a complaint in court.

Elena Kagan: Well, it might be unusual, and it might be that the rules weren't contemplating this situation, although I don't really think that that's true, because the rules contemplate very liberal joinder and of all parties. But, regardless, the rule is the rule. And the rule says, when you try to figure out removal, you look to whether the court, the federal court, would have original jurisdiction of the case. And to do that, I mean, I have to say there's only one -- one place to look to decide whether original jurisdiction exists, and that's to the plaintiff's original complaint.

William P. Barnette: Respectfully, Your Honor, I don't believe that's what the statute says.

That's not what 1441(a) says and that's not what 1332(d)(2) says as far as CAFA removals. Again, a defendant or defendant can remove a civil action that's within the original jurisdiction of the district courts. We are squarely within that language.

We are a defendant.

All we are in this case is a defendant.

We're a class action defendant. CAFA gives the original jurisdiction.

Elena Kagan: I mean, the question is you would -- you would be right if this claim started -- excuse me, if this action started with the claim against you.

But it didn't start with the claim against you. And you're suggesting that we essentially ignore all this language about original jurisdiction in order to, you know, get to this second claim.

But the second claim isn't what counts under 1441.

What counts under 1441 is the first claim.

William P. Barnette: Your Honor, I would agree with that analysis if 1441(a) said only claims brought by the original plaintiff or only the original defendant can remove, but it doesn't say that.

Elena Kagan: Well, it said --

William P. Barnette: All it says is original jurisdiction.

This class action is within the original jurisdiction.

Elena Kagan: I mean, to -- to -- I'm repeating myself, but to decide whether --

William P. Barnette: Sorry, I feel like I am as well.

Elena Kagan: -- original jurisdiction exists, you look to the original claim.

That's what original jurisdiction is.

William P. Barnette: Well, Your Honor, again, we don't think that's -- we think that's an atextual reading of the statute. I would also point out that the other side has said the sort of unanimous view of the lower courts that you can only have the original defendant remove and you can't look beyond that. Actually, the Fifth and Eleventh Circuits have allowed additional party defendants, new defendants added to cases to remove.

So the analysis you're talking about has not been uniformly applied throughout the federal courts. We think it only makes sense.

I mean, again, you're -- we're not in the case prior. The only -- the first time we're brought in the case is with a summons, and under Rule 4, the summons goes to the defendant.

That's the plain language.

We got a summons and complaint in this case.

We had to to be brought into the case.

We're not in the case otherwise.

Stephen G. Breyer: Are you -- are you --

William P. Barnette: They can't -- sorry.

Stephen G. Breyer: Listen, I -- there is -- what I'm about to say has some flaw, and I'm trying to figure out what it is because they don't really make this argument, and, therefore -- but -- but I -- it stopped me and I wanted to see what the answer was. All right.

A class action may be removed, right?

William P. Barnette: Correct.

Stephen G. Breyer: Okay.

So we go look to see what is a class action, and then we have a definition in 1332 for these purposes.

It says the term "class action" means any civil action -- okay, this is a civil action -- filed under Rule 23. Well, a civil action filed under Rule 23, I mean, the plaintiff filed a civil action under Rule 23.

William P. Barnette: Or a state court equivalent, Your Honor.

Stephen G. Breyer: But that wasn't a class action.

And you didn't file a civil action under Rule 23.

What you were, were the defendant, and you brought a counterclaim against a third-party, or you're the third-party, or whatever.

William P. Barnette: Yeah, we didn't bring a counterclaim at all.

Stephen G. Breyer: No, no, no, no, it's somebody, the -- I'm sorry, the other -- the other -- the plaintiff did.

No, it's not the plaintiff.

The plaintiff -- see, that's the hard part.

It's like an Abbott and Costello movie, you know, I mean. (Laughter.)

Stephen G. Breyer: But -- but, look, A sued B, and A is the plaintiff and B is the defendant, and then B sued you.

William P. Barnette: Correct.

Stephen G. Breyer: So you're C, okay, over here.

So being C over here, B, who is the one who sued you, is he -- did he file a civil action under Rule 23?

William P. Barnette: Yes, we don't --

Stephen G. Breyer: I don't think he did, did he? Where does it say he did?

William P. Barnette: I think we clearly --

Stephen G. Breyer: What he did was he filed a --

William P. Barnette: I think we clearly did under CAFA.

Stephen G. Breyer: He says he brings -- that's what he says, but he's bringing within the rules -- he's bringing within the rules, what is it called, a third-party claim?

William P. Barnette: Again, Your Honor, there's a lot of shorthand that's involved in this and, unfortunately, it's just generally inaccurate.

We're not a counterclaim defendant.

We're not a third-party defendant, those specific terms.

We're just a defendant.

Stephen G. Breyer: Forget what you're not.

What I want you to know -- I realize that.

But it's only if it's a class action, a civil action filed under Rule 23. Now --

William P. Barnette: Or a --

Stephen G. Breyer: -- did the person who filed the class action whose name happens to be B -- (Laughter.)

Stephen G. Breyer: -- did that person file a civil action under Rule 23?

William P. Barnette: Yes, Your Honor.

Stephen G. Breyer: Yes? How do we know that?

William P. Barnette: I would -- I would turn the Court's attention to Dart Cherokee, where you ran through the CAFA analysis on the slip opinion at page 2 and said 1453 directs you to 1332(d), as you noted. We look at (d)(1) for the definitions of class actions.

Stephen G. Breyer: Yes.

William P. Barnette: That's a filing under Federal Rule 23 or a state equivalent.

Stephen G. Breyer: It is? Where does it say that?

William P. Barnette: In 1332(d)(1).

Stephen G. Breyer: No, no, no, I know. Where does it say the rule that when a defendant files a class action, namely B --

William P. Barnette: What they're --

Stephen G. Breyer: -- against C, that that is an action filed, a civil action, because civil actions are usually filed by plaintiffs, where does it say that that action filed by B is a civil action filed under Rule 23? That's a simple question.

William P. Barnette: A couple things. 1332(d) just refers to a filing by a representative party.

That's the language the statute uses.

Mr. Jackson certainly is a representative party.

He's a class representative.

He refers to himself as a plaintiff in the filing.

Stephen G. Breyer: Why are you still not giving direct answers?

William P. Barnette: In the civil action, he was defined as B2.

Stephen G. Breyer: Because what he says is -- it says a civil action --

Samuel A. Alito, Jr.: The argument is that what Mr. Jackson filed against you was not a civil action filed under Rule 23.

Stephen G. Breyer: That's right. Exactly.

Thank you.

Samuel A. Alito, Jr.: And if that is the case, then I don't know what rules would govern this claim that Jackson filed against you. Is this some kind of class action that is -- is this some sort of suit that is sort of like a class action, but it's not under Rule 23, so none of the requirements of Rule 23 would apply? I mean, the argument is -- it's a clever argument, comes out of I don't know where -- the argument is, no, it's not, he didn't file a class action against you under Rule 23, but, when the court adjudicates this action, it should apply the rules that -- it should apply the Rule 23 rules.

William P. Barnette: Your Honor, again, I would just point the Court to Rule 3 of the Federal Rules of Civil Procedure, which says a civil action is commenced by filing a complaint in a court.

Stephen G. Breyer: Exactly.

William P. Barnette: He filed a class action complaint in court against Home Depot.

Stephen G. Breyer: No, no, that's the problem.

William P. Barnette: That commences the civil action request.

Stephen G. Breyer: That's the problem.

Elena Kagan: Mr. Barnette, under your theory, every time one party joins another party, we would have a new civil action.

William P. Barnette: No, the --

Elena Kagan: But we don't.

We only have one civil action, and the civil action includes a multitude of claims, or can, between and among a wide range of parties. But it's only one civil action.

William P. Barnette: Your Honor, that's not our position.

A counterclaim against an original plaintiff would not constitute a new -- new civil action.

But when you're bringing in a new defendant by summons --

Elena Kagan: So you're -- you're -- you're -- you're -- you're excluding one kind of claim, which is the claim against an original plaintiff, but there -- there can be many, many parties under the -- the federal rules and there can be counterclaims and there can be cross-claims and there can be impleaders and there can be all kinds of arrows going in every which direction. And you're suggesting that every one of those is a new civil action under Rule 1441(a), which is the one that I'm focusing on, and I'm suggesting that that's wrong.

There's only one civil action, and it's the action that's brought by the original plaintiff.

William P. Barnette: No, Your -- Your Honor, respectfully, we disagree.

I'm not arguing all these other things.

I'm saying focus on this case.

Substance governs, not labels of the parties' situation.

That's this Court's holding in City of Indianapolis. You look at the substance of this. Home Depot was not in the case.

This document is just a class action complaint against us. And Rule 3 clearly says filing a complaint in court establishes a civil action.

Elena Kagan: Mr. Barnette --

William P. Barnette: That's all that happened here.

Elena Kagan: -- you're suggesting that we should look at this case as though the original claim never occurred and we should pretend that the claim started with the original defendant. But the case did not start with the original defendant.

The civil action started with the original plaintiff, who brought a claim against a defendant, who then brought a claim against you. And this is all -- I mean, it -- of course, the claim against you is governed by Rule 23, but all of these claims are one civil action.

And the question is, what gives you the ability to remove that civil action if there's no original jurisdiction over it?

William P. Barnette: The plain language of 1441 and CAFA give us original jurisdiction over this claim.

Elena Kagan: Over the claim, but --

William P. Barnette: And we -- we would --

Elena Kagan: -- but 1441 does not speak in terms of claims.

William P. Barnette: Right.

1446 does. 1441(c) does refer to claims.

1446(b) says the procedure starts when you have a claim that establishes federal jurisdiction. This Court in Exxon said, once you have one claim within a civil action, the entire civil action is removed. We're saying you remove --

Elena Kagan: Yeah, but the reason why claims are -- are there is that's to deal with a plaintiff that's bringing three claims and one of them raises a federal question and two of them don't.

And then all that 1446 is saying is that, when you're in that position, the one claim that raises a federal question is going to be able to get you into federal court. So there's your claim-by-claim analysis.

But the action is what is removed, and the action is removed by determining whether there's original jurisdiction, which is determined by looking to the original complaint.

William P. Barnette: Respectfully, Your Honor, that's not what 1441(a) says.

So we're -- we're traveling under the plain language of that statute, the plain language of CAFA, and we would say you would -- you would remove -- certainly would remove the entire civil action. If there is supplemental jurisdiction over that original $10,000 debt collection action by Citi against Mr. Jackson, of course, those claims are no longer in the case at all.

No claims by or against Citi are longer in the case. But you would either keep that under supplemental jurisdiction or sever it off and send it back to state court.

A $10,000 claim belongs in state court probably.

But we -- we can remove the class action.

It's within the original jurisdiction of the district courts. That's what CAFA clearly says. We're not expanding federal jurisdiction.

This case could have been filed as a stand-alone against us in federal court or it could have been filed as a stand-alone against us in state court and we would have removed it. The fact that Mr. Jackson chose to file a new class action proceeding in an existing case, that -- that does not serve to defeat removal.

I mean, that's what -- that's the approach the plaintiffs are trying to take, but that's not how the law operates. A couple other things, Your Honor, I would just mention.

The -- the cases following Shamrock Oil that have held -- the lower court cases that have held that only original defendants can remove, those are all based on the presumption against removal that this Court already held in Dart Cherokee does not apply to CAFA.

And, frankly, that -- that presumption really does not appear to be well founded in any -- any event. When you look at the significance the framers put on diversity jurisdiction, put on removal jurisdiction, when you look at this Court's cases like Exxon again, where we say -- where the Court said we're not going to apply jurisdictional statutes too broadly but nor are we going to read them too narrowly.

Or you look at a case like Reyes Mata that says federal courts have a virtually unflagging obligation to exercise jurisdiction where it's found.

And then when you have the Supremacy Clause in the Constitution. Basically, these are cases of concurrent jurisdiction.

They're going to go forward in one venue or the other, state or federal, but there's no reason for federal courts to put a thumb on the scale and send them to state court to resolve doubts in favor of remand.

That just shouldn't apply in a traditional diversity setting.

But the Court's already held under CAFA it does not apply.

Sonia Sotomayor: Can I ask a question about -- because it is important to me -- about how lower courts have interpreted things for decades now since Shamrock. Basically, your argument has been rejected by virtually every district court. Not surprising it hasn't gone to the circuit courts because you generally can't appeal a remand.

William P. Barnette: Pre-CAFA, that's correct, Your Honor.

Sonia Sotomayor: That's correct. So, to me, doesn't that have some force? Couldn't and shouldn't I presume that, given the state of the law, which was unanimity on this question, why shouldn't I presume Congress, in -- in creating this class action statute, removal, and in addressing these questions over the years, wouldn't have understood that this was the state of the law? That your position was not accepted?

William P. Barnette: Well, again, Your Honor, that's actually not an accurate state of the law.

As we point out in our brief, the Fifth and Eleventh Circuits have allowed additional parties, third-parties, to remove in these circumstances, not class action cases but traditional cases, traditional diversity cases. Those cases are from the '80s and '90s. So, on this point about if you rule in our favor, there's going to be this flood of cases in the federal courts, I would say look at the Fifth and Eleventh Circuit.

Have there been a flood of cases in those circuits? No, there haven't.

And that's the law. As you point out, there was not a lot of circuit law on this pre-CAFA.

This issue, I think tellingly, only arose post-CAFA as a way to get around CAFA.

There were no counterclaim class actions being filed before CAFA because there were much easier ways for plaintiffs to stay out of federal court.

It only is when CAFA came into play that this device became more widely used.

And it's a growing trend. Sorry, Your Honor.

Stephen G. Breyer: I hate to do this, but let me do the -- I don't hate that much. If you have something else important to say, I'll figure it out.

William P. Barnette: No, go ahead, Your Honor.

Stephen G. Breyer: I mean, I --

William P. Barnette: Not as important as what you're going to say, I'm sure.

Stephen G. Breyer: Not -- (Laughter.)

Stephen G. Breyer: No, that is not likely so.

Look -- look what I'm doing, which I -- which you -- which you haven't.

William P. Barnette: I'm sorry?

Stephen G. Breyer: I don't think I -- I've shown you what I'm doing.

I'm going back to where it says in 1453(b), what is it we can remove? We can remove --

William P. Barnette: A qualified class action --

Stephen G. Breyer: No, wait.

Less than that.

A -- I'll figure it out later.

William P. Barnette: All right.

Stephen G. Breyer: I don't want to interrupt your rebuttal time.

William P. Barnette: All right.

I'd like to reserve the remainder of my time for rebuttal, Your Honor.

John G. Roberts, Jr.: Thank you, counsel. Mr. Bland.

F. Paul Bland, Jr.: Mr. Chief Justice, and if it please the Court: Since -- the original jurisdiction idea has really been set forth here and Justice Sotomayor correctly pointed out that the case law under 1444(a) is virtually unanimous in our behalf, and what my friend says is that actually there's a division among the case law, that the Fifth Circuit, the Eleventh Circuit disagree. The Fifth and Eleventh Circuit cases, Your Honors, are talking about a different statute.

It's not 1441(a).

It's 1441(c). 1441(c) draws the exact distinction that Justice Kagan draws; in other words, 1441(c) talks about claims.

1441(a) talks about a civil action, the single unitary civil action that starts when a plaintiff files a complaint.

John G. Roberts, Jr.: Well, but it -- it -- 1446(b), which is setting forth the procedures for removal, it refers to the notice of removal of a civil action or proceeding.

F. Paul Bland, Jr.: Yes, Your Honor.

John G. Roberts, Jr.: Well -- so it doesn't have to just be a civil action, does it?

F. Paul Bland, Jr.: Well --

John G. Roberts, Jr.: However you want to conceptualize it, it seems to me that you might conceptualize it as including what would otherwise be a freestanding proceeding, such as the one that -- where B sued C, but then it also talks about a proceeding. And even if you don't think that's a civil action properly conceived, it's certainly a proceeding of some kind, isn't it?

F. Paul Bland, Jr.: Well, I -- I don't think it's a -- a proceeding is not an action over which you'd have original jurisdiction under 1441(a), and as I understand the relationship between 1441(a) and 1446, Your Honor, 1441(a) is -- is the part of the removal statutes that says here are the types of -- here -- here are cases over which there's removal jurisdiction. And then 1446 are the procedures that go through -- you have to have -- everyone has to agree and you have to do it within so many days and this sort of thing.

John G. Roberts, Jr.: Well, do you think those procedures apply to 1441(a)?

F. Paul Bland, Jr.: They -- they do apply to 1441(a) except where they've been amended by CAFA, but 1441(a) is where the grant of original jurisdiction -- or where the grant of jurisdiction comes from.

And this Court has repeatedly said that if there is not original jurisdiction over the claims in the -- excuse me, over the plaintiff's complaint, if there's not original jurisdiction over the plaintiff's complaint, that you don't -- you don't meet the standard -- you don't meet -- you don't qualify for removal. So that was -- that goes back to the Planters' Bank case, the Union-Planters' Bank case in 1894.

It was a central case that sets this out.

Then it was applied the next year in a diversity case, the Mexican National -- National Railroad case.

My friend has said that -- that the original jurisdiction rule doesn't apply in diversity cases.

That's wrong.

It was applied in a diversity case right after it was first enunciated by this Court. And the original jurisdiction rule of 1441(a) is where all -- all of the district courts, starting in the 1950s, that were looking at Shamrock Oil and then said, yes, the same rule that applies in Shamrock Oil also applies to third-party defendants, counterclaimants, cross-claimants, what -- what have you, that it doesn't turn upon the nature of whatever state or federal rule, procedural rule, is bringing someone in; that the substantive question of is there jurisdiction goes back to the original jurisdiction test. And that's why the 1441(a) distinction between 1441(a) and 1441(c), which relies upon a claim, is so important.

There are other statutes that create federal jurisdiction over claims.

For example, the bankruptcy code.

My friend would have a terrific argument and we would be in terrible shape if we were arguing a bankruptcy case. But because we are arguing under four -- because the jurisdictional test here is 1441(a), which has always turned on can you find jurisdiction in the plaintiff's complaint, it's really a different animal.

Samuel A. Alito, Jr.: But what you're arguing is not based on the language, not based on the term "original jurisdiction" in 1441. It's based on the well-pleaded complaint rule. Am I right on that?

F. Paul Bland, Jr.: Actually, Your Honor, I don't think you are right.

And can I try and explain? I think this is sort of complicated because I think the Court has sometimes used these words to mean the same things and they really don't. So the -- the original jurisdiction rule for 1441(a), as I -- what it says is that you look to see whether there is jurisdiction from the plaintiff's complaint.

Samuel A. Alito, Jr.: Yeah.

That's the --

F. Paul Bland, Jr.: But -- but -- but -- I'm sorry.

I didn't mean --

Samuel A. Alito, Jr.: No, go ahead.

F. Paul Bland, Jr.: Okay.

So the well-pleaded complaint rule, by contrast, comes from 1331, which is the substantive juris -- the federal question jurisdiction statute, and it's a way of finding out is there original jurisdiction. So you only look at the complaint. But the well-completed complaint rule doesn't --

Samuel A. Alito, Jr.: Yeah, but you're saying -- you're -- you're -- there would be original jurisdiction if this claim were in the case at the beginning.

You would agree with that.

So you're saying it's original jurisdiction at the beginning, right? That's what --

F. Paul Bland, Jr.: Yeah, that's right.

Samuel A. Alito, Jr.: So you're reading that into the text, and you make --

Elena Kagan: Well, original is at the beginning, isn't it?

Samuel A. Alito, Jr.: No.

Well, original --

Elena Kagan: It's jurisdiction at the beginning from the original complaint.

F. Paul Bland, Jr.: I -- I totally agree with you. (Laughter.)

Samuel A. Alito, Jr.: You agree with Justice --

F. Paul Bland, Jr.: Yes.

We agree, absolutely.

Samuel A. Alito, Jr.: -- with Justice Kagan's answer to my question? (Laughter.)

F. Paul Bland, Jr.: There -- there -- I don't -- I -- I feel like I'm making a TV commercial, but there's only one original.

You know, there's the original complaint.

There's the original civil action.

And then -- then there are claims within it.

So --

Samuel A. Alito, Jr.: Well, this is -- this is -- this case is very, very complicated.

And let's go -- let's go back step by step.

Put aside this question of original jurisdiction. If we look at the text, we have a reference to the defendant or the defendants. So Home Depot would qualify there, would it not?

F. Paul Bland, Jr.: No, because, in -- in the context of 1441(a), defendant is, in that setting, is a defendant in a civil action where there is original jurisdiction.

Samuel A. Alito, Jr.: Okay.

You're reading things into it.

But, in the ordinary sense of the term, are they -- are they not defendants?

F. Paul Bland, Jr.: They're -- they're --

Samuel A. Alito, Jr.: They are some kind of defendants.

F. Paul Bland, Jr.: There -- there are lots of colloquial ways in which they would be termed a defendant.

But, within the meaning of 1441(a), every court that's looked at --

Samuel A. Alito, Jr.: Yeah.

Okay.

And where does this come from? All right? So we start out with a term that's big enough to encompass them.

Now we have the limitation. Where does this limitation come from? It comes from Shamrock Oil, does it not? That's the -- the origin of it.

F. Paul Bland, Jr.: Shamrock Oil was the first case to look at a counterclaim defendant from this Court, yes.

Samuel A. Alito, Jr.: Right.

And so Shamrock Oil basically says, look, you -- you started out as the plaintiff, and you chose the state forum.

And now that you have been sued with a counterclaim, you can't -- you know, you -- you chose the state court and you're stuck in state court, so you can't remove it to federal court. I -- I don't see that Shamrock Oil goes any further than that.

F. Paul Bland, Jr.: Well, first, I want to -- Shamrock Oil is -- is ultimately looking at -- at the text.

There is language in Shamrock Oil where they said this is not about waiver.

What this is about is what did Congress provide to you. And so that that key -- there's key language in Shamrock that says it's not about waiver, but it's about what did Congress provide to you.

And so then the question is Shamrock -- Shamrock -- in Shamrock, you didn't have an original jurisdiction issue because Shamrock chose to sue in state court, but they could have sued in federal court.

This case is different.

Samuel A. Alito, Jr.: Right.

They chose state court.

F. Paul Bland, Jr.: Citibank could never have brought this case in federal court.

So there was never original jurisdiction here where there was original jurisdiction in Shamrock. So Shamrock didn't talk about our argument.

Samuel A. Alito, Jr.: Yeah, but Citibank is gone.

And, you know, Citibank brought a little case on credit card debt in state court.

And then suddenly this thing gets transmogrified into a class action that you say, well, this one has to stay in state court despite CAFA. If it had been brought originally in this forum, it would be removable under CAFA. That's what Congress wanted. And somebody came up with this idea of using this sort of proceeding as a way of getting around CAFA.

And there's a law review article that actually says, after CAFA, well, look, we found a way to get around CAFA so that we can keep these things in state court. Is that not correct?

F. Paul Bland, Jr.: There -- there -- there are a number of premises, Your Honor, with which I strongly disagree. So, first of all, CAFA doesn't change what 1441(a) says.

Four -- CAFA is in the -- in the -- in the Senate report, which this Court treated as being -- having precedential value in the Dart Cherokee case. The -- the -- the -- the -- the Senate report said that CAFA was intended, the -- the Section 1453, which Justice Breyer was quoting from earlier, was intended to make some alterations to but is -- but is essentially adopting 1440(a). The idea of having counterclaims defendants has been around forever.

The idea that there has been some jump in class action counterclaims simply is not empirically true. There was a law review article by an advocate.

It's not really a law review article and a peer-reviewed article.

I think it's more like a blog.

But, anyhow, a guy writes an article saying --

Samuel A. Alito, Jr.: Since when are law review --

F. Paul Bland, Jr.: -- we're worried this is going to be a lot of our problem.

Samuel A. Alito, Jr.: Since when are law review articles peer reviewed?

F. Paul Bland, Jr.: You know, that's a good point.

Samuel A. Alito, Jr.: Who are they -- who are they reviewed by? (Laughter.)

F. Paul Bland, Jr.: You're totally right.

I -- I'm so sorry.

I -- I should never have said that, you're right.

Samuel A. Alito, Jr.: They should be -- maybe they should be peer reviewed.

F. Paul Bland, Jr.: Law review articles are student reviewed, they're not peer reviewed.

I -- I -- I withdraw.

That was --

Stephen G. Breyer: I'm fine on law review articles. (Laughter.)

Stephen G. Breyer: But I have a question.

I think they have very good policy arguments on the other side.

I understand it. I don't think Shamrock really covers it. So I might, at least for purposes of argument, assume they are a defendant under 1441 and, if they were alone, they could just remove the case.

And when they remove it and get into district court, if they get it into district court, Rule 23 applies.

I have no problem with that, for a hypothetical, for this question. Where I got stuck, which you will get me out of -- (Laughter.)

Stephen G. Breyer: -- is that I think they can't get into federal court without 1453 because not all defendants agree with them, or there are a variety of reasons they need 1453. Is that right?

F. Paul Bland, Jr.: So I -- I -- I agree that they cannot get in --

Stephen G. Breyer: No, I'm just saying, is that right?

F. Paul Bland, Jr.: It is.

Stephen G. Breyer: Okay.

Now, if they need 1453, I go to 1453 and I look who can -- who can take advantage of 1453, and it talks about a class action.

Now they could surely do it if we didn't -- if we just stop there.

But then it says class action shall have the meanings given to that term under 1332(d)(1). This is just language.

It's just language, no policy, no nothing.

So I turn to 1332(d)(1), right, and what do I discover when I get there in the first words? What it says is class action, the very word I just left, the very word that referred me here, means any civil action filed under Rule 23. So I look.

Was this a civil action filed under Rule 23? Now I'm over with Justice Kagan.

A civil action is an action brought by a plaintiff.

And that's just what it happens to be. It doesn't have to do with claims. And, therefore, since this isn't a civil action filed -- only filed, not what governs it if they're in federal court -- filed under Rule 23, it can't -- they can't take advantage of 1453 because they don't fit within the definition. Now am I right?

F. Paul Bland, Jr.: You're right about that, yes.

Stephen G. Breyer: If I'm right about that, why didn't you make that argument?

F. Paul Bland, Jr.: Because 1453 is essentially -- 1453 amends and changes essentially some of the provisions of 1446 that the Chief Justice was talking about. Essentially, they track each other. 1446 sets out the rules for removal, and then there were several rules around CAFA where -- where the -- where Congress was concerned that there were abuses, that cases were being -- were being kept in state court that should be in federal court, so just for class actions, 1453 changes some of the procedural rules. So you no longer require unanimity in all the defendants.

You can have a defendant who's not -- a defendant in a home state can go forth. But 1453 is not by itself a grant of federal jurisdiction the way 1440(a) is.

Stephen G. Breyer: Nobody says it is. All I'm saying is, do they need 1453 to be able to remove?

F. Paul Bland, Jr.: For -- for CAFA, yes, they do.

Stephen G. Breyer: Okay.

F. Paul Bland, Jr.: And they -- and they --

Stephen G. Breyer: And I look to who does it cover, and it covers a class action as defined in a different statute.

I don't care if they said class action defined in the antitrust law. Then I'd go look and see how they define it in the antitrust law or defined in, I don't care what, I mean, defined in the criminal code.

But I want to -- they referred me to that, so I went and looked at that. And when I looked at that, I saw class action is defined as I just said.

Okay.

So my question is, same question, great argument for you.

Why didn't you make it? And so there's something wrong with my thinking, and that's what I'm trying to find out.

F. Paul Bland, Jr.: Well, I think -- I think that we were focusing on -- on 1440(a) as the grant of removal jurisdiction, 1446 as the procedures, and 1453 not as a new grant of removal jurisdiction but just more procedures. And so, to the extent that there's just no original jurisdiction over a civil action under 1440(a), we think that's the end of it.

So that's where we have focused the vast majority of our advocacy. I think that the point you make about 1453 is -- is extremely clever and wish we had -- had -- had articulated it more better. (Laughter.)

F. Paul Bland, Jr.: But I think that --

Stephen G. Breyer: I wasn't trying to help you.

I'm not there right beside you. (Laughter.)

F. Paul Bland, Jr.: But I do think that 1440(a) is -- is where -- where this case starts and ends.

The original jurisdiction cases going back to the 1890s really govern. I want to point out for a second now, since there's been a lot of discussion about this difference between a civil action and a claim, and also this word "defendant" if it's defendant now is not just the original defendant, but a defendant's cross-claim or counterclaim or whatever different rule you want to use, 13, 14, 19, or -- or something like that, that it's going to have a gigantic effect not on class actions but on all sorts of individual cases. And here's why: So picture just a regular state law negligence case where a defendant's a resident of the same state as the plaintiff, and the defendant would really like to be in federal court.

They'd like their first bite at the apple, right? And they have an out-of-state insurer. Right now, if that defendant brings a claim against the out-of-state insurer, no -- no diversity jurisdiction, even if it's over the jurisdictional amount, because you don't have complete diversity; you have the defendant and the plaintiff's same. Under their rule, now what you do is you look at the claim by claim, instead of by the original civil action, going back to the word "original." So, if you now start looking at things claim by claim, there is diversity between the two defendants. So every single time you have a personal injury case in which there's a defendant who wants to be out of federal court and they have an out-of-state insurer, so basically any company who's not in Connecticut will be able to now name their insurance company through some sort of third-party claim, and now why isn't there diversity jurisdiction? The simple answer is there is. Another thing that their idea is of -- of broadening the idea of -- definition of -- of what is a defendant from the -- you know, from the rule that has been affirmed by literally dozens and dozens of district courts and circuit courts around the country for years, and you'd go from 1440(a)'s limit on civil action to instead have a -- a rule that's going to turn upon claims, is you can start having a lot of business-to-business disputes that right now would be in state court that could get into federal court. So, for example, there are a lot of cases in which corporations would rather have their cases, with all respect to the federal courts, in Delaware state courts, where there's a lot of sophistication, a lot of rules that have been built up.

There are a lot of Silicon Valley companies who are more interested in being in -- in San Jose -- in the state courts of California, where there's a lot of sophistication around their particular issues that's built up. So what happens if you're a defendant in one of these cases and you suddenly decide, you know, I really wish I hadn't made this deal because the law that's built up is bad for me, you find another company, bring a cross-claim against them.

Now their -- under their theory, whether or not there's diversity is based upon a claim-by-claim basis.

You look at them and say, oh, we're going to bring a cross-claim against them.

They're a defendant because, even though under all the law that's existed up to now, we're now going to change this and the defendant's not just going to be the defendant to the original claim; they're going to be a cross-claim, counterclaim, whatever.

In those cases, a company is going to be able to change its mind and bring those cases in --

Sonia Sotomayor: I -- I have -- I have --

Samuel A. Alito, Jr.: Well, perhaps it's not possible to decide this case in a way that doesn't go as -- doesn't effectively decide all these other different situations that you've -- you've posited, but if we look just at what happened here -- and this -- and this involves not -- I mean, this implicates not just the original removal statute but CAFA, is there any good reason why a claim like this, if you accept CAFA, why this should be -- should not be removable to -- to federal court?

F. Paul Bland, Jr.: Yes, Your Honor, because CAFA is a balancing act.

CAFA is -- if CAFA was a preemption statute, it would not be a field preemption, it would be an express preemption.

Congress saw certain problems that they were unhappy about and they solved those problems.

Samuel A. Alito, Jr.: When you think CAFA said, well, if -- if a claim like this is filed originally in federal -- in state court, it can be removed, but if it comes into the state court in this strange sort of back-door way, then it has to stay in state court.

You really think that that's a possible decision Congress would make?

F. Paul Bland, Jr.: So, first of all, I -- I do think it's possible because, as Justice Sotomayor said earlier, I think that you assume that Congress knows the backdrop against which it's -- it's legislating.

They have a bunch of lawyers when they're writing these laws. Congress had repeatedly changed the -- the jurisdiction statute.

So, in 2011, there was the amendment to overturn this Court's decision in the Holmes versus Vornado case, where the Congress said any party can remove a case, not a defendant, in the -- the America Invents Act.

The America Invents Act is --

Samuel A. Alito, Jr.: Well, I mean, that's -- I mean, that's based on the --

F. Paul Bland, Jr.: Congress could have done it.

Samuel A. Alito, Jr.: -- the idea that they -- they -- they were aware of these district court cases.

They're -- they're almost all district court cases.

F. Paul Bland, Jr.: That's -- that's correct.

Samuel A. Alito, Jr.: And they said, well, okay, we -- we want to accept that.

F. Paul Bland, Jr.: Right.

Samuel A. Alito, Jr.: I mean, that's --

F. Paul Bland, Jr.: I mean, it's quite possible that Congress never thought of this because it just wasn't really a very big problem and it wasn't one of the issues that came up in the hearings.

I -- I sort of tracked the hearings at the time.

I don't remember anyone talking about it. I mean, this Court has said on a number of occasions that even if you think that there is something that if Congress had thought about they would have done something, you can't engraft a solution into what Congress said to -- to address the problem. I mean, I think it's possible that --

Brett M. Kavanaugh: Is Home Depot -- I'm sorry.

Is Home Depot a defendant under 1453?

F. Paul Bland, Jr.: No, Your Honor, because --

Brett M. Kavanaugh: And what -- what is it then?

F. Paul Bland, Jr.: It's -- it's a -- it's a counterclaim or third- -- third-party claim defendant.

And that's just different than a defendant for -- for --

Brett M. Kavanaugh: So, when it says any defendant, that doesn't include --

F. Paul Bland, Jr.: Right, because --

Brett M. Kavanaugh: -- that kind of defendant?

F. Paul Bland, Jr.: Right, because the word "defendant" in the removal statutes has this -- has this fixed meaning from 1440(a).

And putting the word "any" in front of it doesn't change. So if you had -- if Congress had a statute that said -- or a statute about rabbits, and then they amended it and said "any rabbit," that doesn't mean that a weasel or a gerbil becomes a rabbit.

You know, it's still -- the word "any" in front of a noun leaves the noun as what it is.

So --

John G. Roberts, Jr.: Well, but that still means that a brown rabbit is a rabbit. In other words, when you were describing what they were, you said a counterclaim defendant or a third-party defendant, it's a type of defendant.

And if you have a statute that says "any defendant," it would seem that it includes those as well.

F. Paul Bland, Jr.: It's a type of defendant in a colloquial way, Your Honor, but I don't -- I disagree with the concept that it's a type of defendant for purposes of the removal statutes. I think for --

John G. Roberts, Jr.: Where do people speak colloquially of third-party defendants? (Laughter.)

F. Paul Bland, Jr.: Yeah.

John G. Roberts, Jr.: Which was not necessarily meant that way.

I mean, it's -- it's -- it's only used as a fairly technical term.

F. Paul Bland, Jr.: Right.

And -- and -- and -- and in the removal statutes, the word "defendant" has -- has this meaning where it's -- it's not by itself, but it is cabined by civil action on one side and original jurisdiction on the other side, which this Court has -- has repeatedly interpreted to say that -- that third-party counterclaimants and so forth in all other settings are not included. So the only question is, does CAFA change anything by sticking the word "any" in front of it? And -- but the thing is we know what Congress was trying to do in that sentence.

What Congress was trying to do was there was a concern that plaintiffs' lawyers were supposedly going out and suing several defendants and they would pick one who was sort of their buddy who was not going to agree to removal, and so then that one said, well, no, you wouldn't be able to get unanimous agreement from all the defendants to remove.

And so that's what that provision was aimed at, was the unanimous consent, that everyone was supposed to agree. And the Senate report says that clear as day.

And if you read the whole sentence in context, what the word "any" there means is each and every.

It means each and every.

And they're saying each and every defendant separately has the right to remove this case to federal court.

Stephen G. Breyer: But it -- that does say -- I mean, you know, you heard his policy argument.

It's a little hard to see why if you understand it, and he does use -- the rules use the word "defendant" to refer to his client in this situation.

The statutes use it.

It has some other qualifications in front of it. So policy, language is possible, why isn't he right? And I grant you that I've only been able to say that once I got into this.

I had to get through the argument, but I don't know the answer to that.

All right. So why isn't he on the policy end, on the --

F. Paul Bland, Jr.: On the policy?

Stephen G. Breyer: On the policy and on the brown rabbit analogy.

F. Paul Bland, Jr.: Okay.

CAFA was a compromise.

You know, there -- the Chamber of Commerce brief colorfully calls it a grinding eight-year battle.

There were a series of changes that were made over it.

There were times in which it was going to cover more than it ended up covering.

It shrunk somewhat. There were a lot of people who wanted more cases to stay in court. The -- the Senate report actually, they have one of those things, you know, where they say like there's like this sort of list, like five myths where they say things that people -- or bad things people say about CAFA but aren't true.

One of them was, well, some people say it's going to federalize all class actions.

Actually, we expect that more than 50 percent of class actions will remain in state court after CAFA. It was never intended to federalize all class actions.

Judge Easterbrook of the Seventh Circuit in the First -- excuse me, the -- the First Bank case, said, look, if Congress had wanted to say we want to federalize all large multi-state class actions, they could have said that. They could have written the equivalent of a field preemption.

But instead of treating this as something where they were trying to federalize all class actions, they didn't throw a hand grenade.

They were shooting rifle shots at particular abuses that they saw. And you can see it when you look at how 1453 tracks 1446.

There are certain things that Congress was upset about and they were trying to fix those things.

And they weren't trying to -- they weren't trying to federalize everything else. There are a lot of reasons why you don't want every single class action in federal court.

I mean, this case, for example, is a case involving 286 people, 90 percent of whom live in North Carolina, who have claims entirely under North Carolina law against a North Carolina defendant and Home Depot. So, I mean, this is not the kind of case -- this case, even if -- there's a way in which this entire argument in some ways, Your Honors, is a -- is -- is -- is a -- while incredibly complicated for me at least, is a -- is an abstraction in the sense that this case is going to end up in state court under the -- under the -- the home state removal -- the local -- the local removal section anyhow of CAFA.

CAFA has an exception that we -- that we put forward in our brief. This is a local controversy if you ever heard of one.

But CAFA was not attempting to -- to -- to nationalize everything.

If they had, they would have gone in a different way. There are a lot of decisions Congress has made here.

When they've wanted to say "claims," they've said, in the bankruptcy code in 1441, claims.

When they wanted to say "civil action," they meant something else.

If they'd wanted to federalize everything, they would have federalized everything.

They didn't want to here. If they had wanted to say third-party counterclaimants, they would have done exactly what they did in the America Invents Act where, when they didn't like one of this Court's decisions that admittedly was under the well-pleaded complaint rule, but in Footnote 2, this Court cited the exact same language that we were talking about under the original jurisdiction statute. And so it's clear that it's a removal rule.

It's not -- it's not -- it's not a subject matter jurisdiction rule.

It's a removal rule.

And the same -- the same rule has been applied in a bunch of diversity cases. Congress made that decision in that statute and they didn't make that decision here.

This is an issue where, if Congress is unhappy about this, they sure know how to fix it.

They've done -- they've done the exact same thing in the America Invents Act.

The bankruptcy code is written differently.

They knew how to say party instead of defendant. They know how to say claim instead of civil action. The -- the -- the -- the -- the -- the statutes here, you know, it may well be that if Congress had thought about this in CAFA, they just said, well, we don't really like that, they would have done something differently. But you can't rewrite the statute for them on the grounds that they didn't --

Samuel A. Alito, Jr.: Well, they could have been -- they surely -- they could have been more specific in a way that favors Home Depot. They also could have been more specific in a way that favors you, right? It's pretty hard to argue that when they said any defendants, they said we're going to say any defendants because we don't want to include the kind of defendant that Home Depot is.

F. Paul Bland, Jr.: Well, it's in a sentence where, if you look at the sentence as a whole -- if you look at the sentence as a whole, it says "class action may be removed in accordance with Section 1446 without regard to whether any defendant is a citizen of the state in which the action was brought, except that such action may be removed by any defendant without the consent of all defendants." When they used the word "any" there, they mean each and every.

What they are trying to do is solve the problem I was just talking about a second ago about where you have unanimous -- where you -- the unanimous requirement that everyone has to agree to remove. It's -- it's absolutely crystal-clear what they meant and they -- and they said in the Senate report what they meant.

And so to take that word and say that now it's going to change the nature of a defendant so that Section 1440(a) is now going to mean something different for class actions than it means everywhere else, that's really a problem.

John G. Roberts, Jr.: Why isn't -- okay, each and every.

Why doesn't it mean each and every defendant in the civil action, in the proceeding?

F. Paul Bland, Jr.: Because what -- what their -- what the point of what they're saying is they're saying each and every defendant has a separate right to decide that they want to remove the case to federal court, that you don't have to have unanimity. And the Congress said the point of what we're aiming at here in the -- in the Senate report was to avoid unanimity.

John G. Roberts, Jr.: Well, it still works with respect to Home Depot.

F. Paul Bland, Jr.: I -- I -- with respect, Your Honor, it -- it's -- it is a -- a -- a -- a procedural change -- it -- that -- that -- that -- that tracks part of 1446 and says this doesn't apply here.

But it is not changing who has the right, the power, to remove under 1440(a), where the word "defendant" has a different meaning. The word "defendant" there talks about original jurisdiction.

And Home Depot certainly does not have original jurisdiction here under this -- under the -- under the whole line of cases both from this Court and then the ton of district court cases that came afterwards applying it to third-party counterclaim defendants.

Elena Kagan: Is what you're saying, Mr. Bland, that 1446 changes a number of the procedures by which you can remove? It does not, it never before --

F. Paul Bland, Jr.: 1453 is the CAFA one.

Elena Kagan: 1453.

F. Paul Bland, Jr.: 1453 changes 1446.

Elena Kagan: Right.

F. Paul Bland, Jr.: Sorry, but otherwise you're --

Elena Kagan: Exactly right.

F. Paul Bland, Jr.: Sorry.

Elena Kagan: I'm confusing things in an effort to make them more clear. (Laughter.)

F. Paul Bland, Jr.: That's my life.

Elena Kagan: So 1453 changes a number of the procedures in 1446 so that there are different procedures in CAFA suits as to removal. 1453 does not -- does not purport to and simply does not affect the grant of removal jurisdiction.

The grant of removal jurisdiction can only be found in one place, and that's in 1441(a).

F. Paul Bland, Jr.: Yes, exactly, Your Honor. And so, if there are no further questions, that is -- that's exactly right, and if Congress wanted to change it, they could have. Thank you so much, Your Honors.

John G. Roberts, Jr.: Thank you, counsel. Five minutes, Mr. Barnette.

William P. Barnette: Thank you, Mr. Chief Justice. A couple quick points, Your Honors. The compromises that were done in CAFA were on things like is the amount in controversy going to be $1 million or $10 million and they set it on $5 million.

There are no compromises on these qualifying $5 million plus minimal diversity class actions.

Those are all capable of being removed under CAFA. On Justice Kagan's original jurisdiction question, just to be clear, original jurisdiction does not mean the case as originally filed.

1446(b) and 1332(d)(7) in CAFA both recognize a case can start out not within the original jurisdiction, not removable, can become removable subsequently and within the original jurisdiction, and that's exactly what happened here.

We had a qualifying class action filed under CAFA that allows for removal. On Justice Kavanaugh's question, of course, we're a defendant.

I mean, they want $5 million plus -- $5 million plus from us.

I -- I don't know what else you would call us. We're a defendant. In conclusion, Your Honors, Home Depot is simply and solely a defendant.

Shamrock Oil's holdings should not be extended to parties like Home Depot that are solely defendants. Home Depot is within the plain language of 1441(a), is entitled to remove this case under CAFA.

The Fourth Circuit's judgment should be reversed.

Thank you.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.