by Brian Wolfman
For a few weeks now, I've been planning to let you know about the Seventh Circuit's June 11 Class Action Fairness Act (CAFA) decision in Spivey v. Vertrue, Incorporated, No. 08-8009. So, here goes:
In Spivey, Judge Frank Easterbrook broke from all other circuits to have addressed the question and held that 28 U.S.C. § 1453(c)(1) means what it says: A petition for permission to appeal a district court’s remand order under CAFA must be filed with the court of appeals “not less than 7 days after entry of the order.” (emphasis added). Read literally, section 1453(c)(1) means that a petition for permission to appeal a remand order filed during the first six days after the order is entered is untimely. Even the most irrational Congress would not have meant that, so a number of other circuits have held that "less" means "more" -- that is, that a petition for permission to appeal is timely only if it is filed within the first seven days of the remand order. Judge Easterbrook's responds with typical bluntness: "That Congress has written a deadline imprecisely, or even perversely, is not a sufficient reason to disregard the enacted language. ... Turning 'less' into 'more' would be a feat more closely associated with the mutating commandments on the barn’s wall in Animal Farm than with sincere interpretation."
Okay, so now you're thinking that section 1453(c)(1) gives a prospective appellant forever to seek permission to appeal a remand order. Not so, says Judge Easterbrook. He says that 1453(c)(1) is governed by Federal Rule of Appellate Procedure Rule 5(a)(2), which says that a "petition [for permission for to appeal] must be filed within the time specified by the statute or rule authorizing the appeal [see, e.g., 28 U.S.C. 1292(b)], or, if no such limit is specified, within the time provided by Rule 4(a) for filing a notice of appeal." Because that period is 30 days, Judge Easterbrook says that the 30-day period governs CAFA removals. I'm not so sure. Is CAFA really a statute under which "no such time limit is specified?" CAFA is a statute that "authoriz[es] an appeal" of certain class action remand orders, and doesn't section 1453(c)(1) "specif[y]" a time in which the petition "must be filed?" I suppose one could say that "not less than seven days" is so open ended that it is not a time "limit" "specified by the statute," because, read literally, section 1453(c)(1)'s "limit" is limitless. But that may be a stretch. Presumably, FRAP 5(a)(2)'s default rule was aimed at statutes that do not address at all the time period for filing a petition for permission to appeal, not statutes that address it in funky, inelegant ways.
For more on other circuits' rulings on this topic, see an earlier post here.