9th Circuit Spars over Timing of Permissive Appeal in CAFA Cases

In a follow-up to a case reported here this past February [click here for prior post] the Ninth Circuit recently denied a rehearing en banc in the case of Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc., --- F.3d ---, 2006 WL 1387491 (9th Cir. May 22, 2006). The earlier decision had held that the Class Action Fairness Act (CAFA) created deadline of seven court days for filing appeal of district court's ruling on motion to remand class action.

Six Circuit Judges dissented to the denial of rehearing en bank (BYBEE, Circuit Judge, with whom Judges KOZINSKI, O'SCANNLAIN, RYMER, CALLAHAN, and BEA]. Here's an excerpt from the dissent:

Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications. Section 5(a) of the Class Action Fairness Act of 2005 (“CAFA”), creates 28 U.S.C. § 1453(c)(1), which provides for a permissive appeal when the district court refuses to accept a class action removed from state court. See Bush v. Cheaptickets, Inc., 425 F.3d 683, 685 (9th Cir.2005). Specifically, section 1453(c)(1) provides:[A] court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed if application is made to the court of appeals not less than 7 days after entry of the order.28 U.S.C. § 1453(c)(1).
Despite the clarity of this language, the panel announced that it would read the phrase “not less than 7 days” to mean “not more than 7 days.” Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1145-46 (9th Cir.2006). As a result, the appellants' application, filed 43 days after the district court's order, was untimely.

The court now follows the misguided approach of the Tenth Circuit, which has announced that it too will read the phrase “not less than 7 days” as if it had been written “not more than 7 days.” See Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n. 2 (10th Cir.2005). I dissent from our refusal to rehear this case en banc because “I am convinced the parade is marching in the wrong direction.” United States v. Smith, 440 F.2d 521, 527 (7th Cir.1971) (Stevens, J., dissenting). The Republic will certainly survive this modest, but dramatic, emendation of the United States Code; I am not so sanguine that in the long term it can stand this kind of abuse of our judicial power.