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Quick: when have the 5th, 11th and 9th U.S. circuit courts of appeals ever agreed on anything? Answer: Counting CAFA time. Yes, the 5th, 11th and 9th circuits have agreed on how to count. See Patterson v. Morris, 2006 U.S. App. Lexis 7174 (5th Cir. March 22, 2006); Amalgamated Transit Local 1309, AFL-CIO v. Laidlaw Transit Services Inc., 2006 U.S. App. Lexis 1858 (9th Cir. January 26, 2006), en banc hearing denied, 2006 U.S. App. Lexis 12521 (9th Cir. May 22, 2006); Evans v. Walter Industries Inc., 2006 U.S. App. Lexis 12508 (11th Cir. May 22, 2006). What compelling problem has united these philosophically dissonant federal circuits? CAFA, the Class Action Fairness Act of 2005, Pub. L. 109-2, 199 Stat. 4 (2005), created a new statutory provision for the removal of state class actions into federal court. See 28 U.S.C. 1453. Prior to CAFA, federal appellate courts generally could not review district court remand orders. 28 U.S.C. 1447(d). CAFA, however, created appellate review of district court orders either granting or denying the remand of a state class action back to state court. New Section 1453(c)(1) specifies that “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 the entry of the order.” In addition, the appellate court then has 60 days in which to determine the merits of the appeal. 28 U.S.C. 1453(c)(2) (“the court shall complete all action on the appeal, including rendering judgment, not later than 60 days after the date on which such appeal was filed.”). An Alice-in-Wonderland linguistic bog Simple, eh? Real practicing attorneys soon found themselves in an Alice-in-Wonderland linguistic bog over the CAFA seven-day language, coupled with the 60 days for a merits determination. The CAFA seven-day rule was a trap for the wary, as well as the unwary. Did the statute actually mean that attorneys had to sit on their hands for seven days after a district court order concerning remand, do nothing, and then have an unlimited time (in perpetuity?) in which to file a CAFA appeal? Surely, this literal reading of the seven-day rule made no sense. On the other hand, did the statute really mean that attorneys had to file their CAFA appeals within seven days, or not more than seven days, after the district court’s order concerning remand, even though the statute does not say that? If an attorney did not file a CAFA appeal within seven days, would the attorney be barred from appellate jurisdiction for review of the removal order? What was an attorney to do? Moreover, when did the 60-day period for a merits determination begin to run? The 10th Circuit was the first appellate court to venture briefly into the CAFA time-counting miasma, employing a unique solution to this patently vexing issue. Pritchett v. Office Depot Inc., 420 F.3d 1090, 1093 n.2 (10th Cir. 2005). In a lengthy decision largely devoted to other CAFA issues, the court also briefly noted the perplexing time-to-appeal language. Looking to the intent of the legislative drafters, whom the court determined were interested in expediting CAFA appeals, the 10th Circuit concluded that the only sensible reading of the CAFA appeals provision was that the word “less” should be read as “more.” Id. By reading less as more, courts would avoid results “demonstrably at odds with the intention of the drafters.” Id. Courts were at liberty to read less as more, the 10th Circuit concluded, because the statute contained a “typographical error.” In January 2006, the 9th Circuit was directly confronted with the CAFA time-counting conundrum. See Amalgamated Transit, supra. In Amalgamated Transit, the appealing plaintiffs’ attorneys filed a petition for permission to appeal 43 days after the district court entered an order denying remand to the state court. Construing CAFA � 1453(c)(1), the court concluded that the plaintiffs’ petition for permission to appeal was filed too late, but made this ruling prospective so as not to penalize the unlucky appellants. Amalgamated Transit, 2006 U.S. App. Lexis 1858, 18. The 9th Circuit held that even though neither CAFA nor the Federal Rules of Appellate Procedure specifically state whether the rules apply to CAFA appeals, CAFA appeals should be treated the same as � 1292(b) appeals, which must comply with Fed. R. App. P. Rule 5. In this view, CAFA appeals are discretionary, and under Rule 5, there is no appeal until the petition for permission to appeal is granted. Thus, the entry of the order granting permission to appeal serves as the notice of appeal for all timing issues, including the 60-day period in which to decide the merits of the appeal. Fed. R. App. P. 5(a)(1), (d)(2); Amalgamated Transit, 2006 U.S. App. Lexis 1858, 11. Turning to the seven-day requirement, the 9th Circuit looked to congressional intent in enacting CAFA, even though the statute plainly states “less than seven days.” The panel held that “even where the plain language appears to settle the question, we may nonetheless look to legislative history to determine whether there is clearly expressed legislative intention contrary to the language that overcomes the strong presumption that Congress has expressed its intention in the language it chose.” Amalgamated Transit, 2006 U.S. App. Lexis 1858, 15. The 9th Circuit concluded that it could see “no logical purpose” in requiring a party to wait seven days before seeking appellate review of a remand order, and then allowing that party to seek appellate review at any time in the future. “That result is entirely illogical.” Reviewing CAFA’s legislative history, the court found that the statute was intended to create a time limit for appeal, and specifically to require a party seeking appeal to do so not more than seven days after the district court’s order. Amalgamated Transit, 2006 U.S. App. Lexis 1858, 16, citing S. Rep. 109-14, at 49 (2005). The 9th Circuit panel noted that it was “somewhat troubled” by its action in changing the plain language of a statute, and acknowledged that it was “faced with the task of striking a word passed on by both Houses of Congress and approved by the president, and replacing it with a word of the exact opposite meaning.” Id. However, the 9th Circuit agreed with the only other circuit to decide the issue-the 10th-that there was no apparent logical reason for the choice of the word “less” in the statute, where use of the word “less” was in fact illogical and contrary to the purpose of the provision. Id. In March 2006, the 5th Circuit weighed in on the CAFA counting controversy, in a decision authored by Judge Jerry Smith. Patterson, supra, 2006 U.S. App. Lexis 7174 (March 2006). Faced with the CAFA 60-day merits timing issue, the court determined that the 60 days for deciding the merits of a CAFA appeal runs from the appellate court’s order granting leave to appeal, not from the filing of the appeal. In line with, and relying on, the 9th Circuit panel’s decision in Amalgamated Transit, the 5th Circuit determined that an appeal under CAFA is subject to Fed. R. App. P. 5, which governs permissive appeals. Patterson, 2006 U.S. App. Lexis 7174, 6. In May 2006, the 11th Circuit joined both the 9th and 5th circuits’ rulings on the 60-day time limit within which the appellate court must determine the actual merits of remand-order appeal. Relying on Patterson and Amalgamated Transit, the 11th Circuit likewise determined that the 60-day merits determination runs from the time that the appellate court grants the appellants’ application to appeal. See Evans v. Walter Industries, supra, 2006 U.S. App. Lexis 12509, 5-6 (May 22, 2006). The 11th Circuit held that CAFA appellate review is clearly discretionary, and “[t]hus it is plausible to conclude that Congress contemplated application of Fed. R. App. P. 5, which governs discretionary appeals.” The ‘less is more’ controversy not settled The “less is more” controversy was not yet over. In an unusual appellate maneuver, 9th Circuit judges, sua sponte, called for an en banc rehearing in the Amalgamated Transit litigation. In the dissenting judges’ view, the 9th Circuit panel’s decision, which had re-read the plain language of a statute, was nothing less than a challenge to the future of the republic. See Amalgamated Transit, 2006 U.S. App. Lexis 12521 (May 22, 2006). The en banc rehearing was denied. Id. The dissenting judges’ opinion, authored by 9th Circuit Judge Jay S. Bybee and joined by five other 9th Circuit judges, is well worth reading for its colorfulness. Beginning with the compelling question: “Is less more?” the dissent takes on the panel’s determination to re-read the plain language of the statute to read “not more than 7 days.” Noting that the 10th Circuit also had announced that it would read the phrase “not less than 7 days” as if it had been written “not more than 7 days,” Bybee declared his dissent because “I am convinced the parade is marching in the wrong direction.” The Amalgamated rehearing dissent is a short screed on statutory construction, the plain-meaning rule, abuse of judicial power, deference to legislative supremacy, separation of powers, judicial striking of congressional language, improper reliance on legislative history to trump statutory language, and legislative history written after the fact. Culminating this analytical windup, Bybee concludes: “I might have agreed with the panel’s observation that the statute is ‘illogical.’ We might also think it was ‘dumb’ and ‘stupid.’ Those labels have no legal meaning here. We are a court-charged with interpretation-and I know of no ‘illogicality’ doctrine that permits us to change the words in a statute when we think there is a more logical way Congress could have written it.” Amalgamated Transit, 2006 U.S. App. Lexis 12521, 13 (dissent). Linda S. Mullenix holds the Morris and Rita Atlas Chair in Advocacy at the University of Texas School of Law. She can be reached at [email protected].

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