Third Circuit Holds CAFA Contains a Typo; Remand Orders Must Be Appealed Within Seven Days

Per Morgan v. Gay, 466 F.3d 276 (3d Cir. Oct. 16, 2006):

This appeal raises what is an issue of first impression in this Circuit: whether a statutory provision from the Class Action Fairness Act (CAFA), Pub.L. No. 109-2, 119 Stat. 4 (2005) (codified in scattered sections of 28 U.S.C.), will be read according to the uncontested intent of Congress rather than as it is literally (but mistakenly) written.

. . .

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."

. . .

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.").

This Court does not need to step into a statutory interpretation debate over the role of legislative history and congressional intent to conclude that § 1453(c)(1) needs common sense revision that accurately reflects the uncontested intent of Congress. Judge Harold Leventhal has been famously quoted as saying that citing legislative history is like "looking over a crowd and picking out your friends." In the case of § 1453(c)(1), however, the crowd speaks with one voice. We therefore read "not less than" as "not more than" in accord with the intent of Congress.