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When it comes to a ruling from the Ninth Circuit U.S. Court of Appeals Monday, less is more. In interpreting a new provision of the 2005 Class Action Fairness Act, a three-judge panel stated last January that it saw nothing wrong with concluding a statute contained a “typographical error,” and that the word “less” should be read as “more.” The decision affects the filing timeline for when a plaintiff can appeal removal of a class action to federal court. The Ninth Circuit then refused Monday to reconsider the ruling en banc. And in a blistering dissent, Judge Jay Bybee wrote that his colleagues’ decision to “fix Congress’s” mistake didn’t bode well for the future authority of the courts. “We command no army; we hold no purse,” Bybee wrote. “The only thing we have to enforce our judgments is the power of our words. When those words lose their ordinary meaning � when they become so elastic that they may mean the opposite of what they appear to mean � we cede our right to be taken seriously.” At issue was whether an appeal in Amalgamated Transit Union Local 1309 v. Laidlaw Transit Services Inc.; First Transit, Inc., was timely. The employer argued the union’s appeal wasn’t timely under CAFA. The union had filed its appeal 43 days after an order. CAFA states that a court of appeals may accept an appeal denying a motion to remand a class action if it is made to the court “not less than seven days” after entry of the order. That phrase had already been the basis of a dispute in at least one other case. In January, Ninth Circuit Senior Judges Alfred Goodwin and A. Wallace Tashima, and Judge Raymond Fisher, concluded the statute contained a mistake. “If one quickly glances at the statute, one might think that, like most other filing deadlines Congress creates, the petition must be filed within a week of the district court’s order,” the judges wrote at the time. “Upon closer reading, however, we discover that the statute actually provides that the application must be made to the court of appeals not less than seven days after entry of the order. “The statute as written creates a waiting period of seven days before which an appeal is too early,” they continued, “with no upper limit to when an appeal ultimately may be filed.” Scott DeNardo, who represented Amalgamated Transit Union, says his case isn’t impacted by the majority’s Monday decision because in January the court decided in a special dispensation that DeNardo’s appeal was timely, even though the court’s own “less is more” logic should have invalidated DeNardo’s appeal. In Monday’s order, a majority of the non-recused active judges did not vote in favor of the en banc rehearing. Five other judges joined Bybee in the dissent. “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,” Bybee wrote. The next issue for the Ninth Circuit panel is to decide whether to hear the appeal. “Attorneys must now research unambiguous statutory language to avoid malpractice,” DeNardo said.

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