by Scott Nelson
The U.S. Court of Appeals for the Third Circuit ruled on Monday that petitions for interlocutory appeals of remand orders under the Class Action Fairness Act must be filed not more than seven days after the district court's remand order, even though the statute (28 U.S.C. 1453(c)(1)) says they may be filed not less than seven days after the challenged order. Morgan v. Gay, No. 06-8045 (Oct. 16, 2006).
In so holding, the Third Circuit joined the 10th, 9th, and 11th Circuits in holding that the language of the statute must be read to mean the opposite of what it says. See Pritchett v. Office Depot, 420 F.3d 1090 (10th Cir. 2005); Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, 435 F.3d 1140 (9th Cir.), opinions on denial of reh'g en banc, 448 F.3d 1092 (9th Cir. 2006); and Miedema v. Maytag Corp., 450 F.3d 1322 (11th Cir. 2006). In other words, although the statutory language appears to impose a seven-day waiting period before an appeal may be filed, the courts so far agree that it actually imposes a seven-day time limit.
The Third Circuit's opinion in Morgan is similar to others addressing the issue in that it relies on the legislative history as an indication of intent to create a time limit that is so clear that it justifies overriding the statutory text (even though the legislative history relied upon, the Senate Report, was issued after the statute had already been enacted and signed into law). The opinion also follows Pritchett in characterizing the statutory language as a "typographical error," and, like the opinions of all three of the previous courts to address the issue, it emphasizes the "deleterious" and "illogical" consequences of a literal reading of the statute.
With the exception of six Ninth Circuit judges, led by Judge Bybee, who dissented from denial of rehearing in Laidlaw, the courts so far have all agreed that less in the CAFA appeals provision means more. Despite the vehemence of Judge Bybee's dissent (which predicts that the republic will not long survive such judicial disregard of plain statutory language!), it seems likely the the courts will eventually be unanimous on the issue, though it is likely to provoke a few more soul-searching opinions. It may be hard to justify the result jurisprudentially, but the actual intent of Congress is so evident that it seems unlikely any court will ignore it.
Even the Third Circuit, however, expressed some qualms about "read[ing] an unambiguous statutory term as its own antonym." Ironically in light of the several pages that the court thought it needed to devote to resolving the issue, the question wasn't even really presented in Morgan, because the petition for leave to appeal was actually filed on the seventh day, so it was proper under either a literal reading of the statute (it was filed not less than seven days after the district court order) or under the judicial construction of the statute (it was also filed not more than seven days after the challenged order). In its eagerness to decide the question, the Third Circuit apparently overlooked that it made no difference to the outcome of the case.
I suppose the Third Circuit can be excused for overlooking the normal requirement that legal issues are supposed to be decided in the context of an actual case or controversy as well as for ignoring the statutory text, given the need to clean up Congress's drafting error before it causes too much mischief. Lawyers practicing under CAFA need to know that the provision is a time limit and file their petitions for leave to appeal accordingly.
In so doing, practitioners should be aware of one additional point that all the cases agree on: The seven-day limit is subject to Federal Rule of Appellate Procedure 26(a), which provides that weekends and holidays are excluded in computing periods of time less than 11 days. Thus, seven days will in most instances really mean nine days, 11 days, or sometimes even more depending on how many weekend days and holidays intervene.