Third Circuit Joins Ninth, Tenth and Eleventh Circuits in Finding that “Not Less than Seven Days” Language in CAFA is Typographical Error

BNA’s U.S. Law Week, Vol. 75, No. 15 (Oct. 24, 2006) reported on the recent Third Circuit case Morgan v. Gay, --- F.3d ---, 2006 WL 2938309 (3d. Cir. Oct. 16, 2006). Here is an excerpt from Judge Smith’s opinion:

The issue that we now address is whether 28 U.S.C. § 1453(c)(1), which states that a federal appellate court "may accept an appeal" from a remand order "if application is made to the court of appeals not less than 7 days after entry of the order," should be interpreted by this Court to mean "not more than 7 days after entry of the order." Because the uncontested legislative intent behind § 1453(c) was to impose a seven-day deadline for appeals, we conclude that the statute as written contains a typographical error and should be read to mean "not more than 7 days."

. . .

For the vast majority of ambiguous statutory provisions . . . relying on legislative history to discern legislative intent should be done with caution, if at all. This principle becomes even stronger when the judiciary seeks to read an unambiguous statutory term as its own antonym. See United States v. One "Piper" Aztec "F" De Luxe Model 250 PA 23 Aircraft Bearing Serial No. 27-7654057, 321 F.3d 355, 359 (3d Cir.2003) (stating that "[o]ur task is to give effect to the will of Congress, and where its will has been expressed in reasonably plain terms, that language must ordinarily be regarded as conclusive") (quoting Negonsott v. Samuels, 507 U.S. 99, 104, 113 S.Ct. 1119, 122 L.Ed.2d 457 (1993)). However, in that rare instance where it is uncontested that legislative intent is at odds with the literal terms of the statute, then a court's primary role is to effectuate the intent of Congress even if a word in the statute instructs otherwise.

Section 1453(c)(1) is one such rare instance. . . . [see] S. Rep. 109-14, at 49 (2005). This intention to prevent undue delay can be seen not only in the statute's legislative history, but also in § 1453(c)(2), which instructs an appellate court that it must dispose of the appeal within 60 days.

In addition to legislative history, the deleterious implications of applying § 1453(c)(1) as written also provides evidence of a typographical error by Congress. As written, § 1453(c)(1) would grant plaintiffs and defendants the ability to potentially abuse the litigation process because the party who loses on the district court's remand ruling could strategically wait to appeal the remand decision at any time pre-trial. Because the pre-trial stage of class action cases usually lasts many months or even years, and because many pre-trial rulings set the stage for how the trial will play out, extending the § 1453(c)(1) appeal through this entire process contravenes the uncontested intent of the statute.

The Eleventh Circuit in Miedema v. Maytag Corp., 450 F.3d 1322 (11th Cir.2006), makes a similar point. If the statute is applied as written, "there would be a front-end waiting period (an application filed 6 days after entry of a remand order would be premature), but there would be no back-end limit (an application filed 600 days after entry of a remand order would not be untimely)." Id. at 1326. See also Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1146 (9th Cir.2006) (stating that the result would be "entirely illogical" if a court "requir[ed] a party to wait seven days before seeking to appeal an order granting or denying a motion to remand, and then allow[ed] that party to seek appellate review at any time in the future after the period has passed").

It should come as no surprise that all three circuits to have examined this question have also found that § 1453(c)(1) should not be literally applied. See Amalgamated, 435 F.3d at 1146; Miedema, 450 F.3d at 1326; Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n. 2 (10th Cir.2005) ( "Given Congress' stated intent to impose time limits on appeals of class action remand orders and the limited availability of appeals prior to the statute's enactment, we can think of no plausible reason why the text of [the] Act would instead impose a seven-day waiting period followed by a limitless window for appeal."). . . . We therefore read "not less than" as "not more than" in accord with the intent of Congress.