Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc., ____ F. 3d ___, No. 05-56567, 2006 WL 1387491 (9th Cir. May 22, 2006).

If we were fight promoters, we might call this one "the Brawl in the Hall."  In this demonstration of some heavyweight championship judicial pugilism, a majority of the Circuit Judges on the Ninth Circuit defeated a hard-nose contingent of their brethren arguing for an en banc review of the court’s panel opinion in Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc., No. 05-56567, 2006 WL 177250 (9th Cir. Jan. 26, 2006)(See CAFA Law Blog’s summary of Amalgamated Transit posted February 1, 2006.) In Amalgamated Transit, the Ninth Circuit panel construed 28 U.S.C. Section 1453(c)(1) to require parties to pursue appellate review of a remand "not more than seven court days after the district court’s order," despite the text of CAFA which says "not less than seven days . . . ." Apparently, this rubbed a faction of the court the wrong way, prompting the offended contingent to pick the fight with the panel by requesting, sua sponte, an en banc review of the decision.

If this were a street fight, broken bottles, brass knuckles, and razor blades would have been brought to bear on the issue. But rarified air wafts through the corridors of justice, so the civilized pugilists laced up their gloves, removed their robes, and proceeded to bloody each other’s noses like gentlemen –  the Marquis of Queensberry would have been proud.

The hard-hitting Circuit Judge Jay S. Bybee, backed up by Judges Kozinski, O’Scannlain, Rymer, Callahan and Bea, came out swinging and landed a nasty right hook regarding the panel’s substitution of the word “more” for “less”: “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.”  That should have been a knockdown, at the least.  Judge Bybee then struck a solid body blow, attacking the basis of the panel’s reasoning by questioning the Tenth Circuit opinion of Pritchett v. Office Depot, Inc., 420 F. 3d 1090 (10th Cir. 2005)(See CAFA Law Blog’s summary of Pritchett posted October 23, 2005). Characterizing the Tenth Circuit’s approach of interpreting section 1453(c)(1) in Pritchett as “misguided,” Judge Bybee declined to agree that it was obvious Congress’s use of the word “less” was a typographical error. Instead, he declared that “[s]ection 1453 makes perfect sense; it is fully grammatical and can be understood by people of ordinary intelligence.” (The ref caught the inference was that the panel in Amalgamated Transit wasn’t of ordinary intelligence, and called that one a little below the belt and issued a warning.) 

But the scrappy brawler wasn’t through yet. It was bad enough that the panel’s opinion rewrote the law based on perceived Congressional intent, but the clincher to him was the panel’s reliance on “second-rate” legislative history.  Judge Bybee fired out that “[t]he report upon which the panel relied, Senate Report 109-14, was not submitted until eighteen days after the Senate had passed the bill, and the very same day that the President signed the bill into law.” “No recognized exception to the plain language rule allows the panel to redraft 28 U.S.C. § 1453(c)(1) to its liking,” Judge Bybee jabbed. Giving the majority his best one-two combination of why the panel should not have rewritten the provision, he argued that enforcing the literal language does not lead to an unconstitutional result, is not a “scrivener’s error,” and does not create “any absurdity in the Act.” Even when Congress makes a mess, that is no excuse for cleaning up after them, Judge Bybee said. Finally, in an attempt to land a knockout blow, the dissent reminded the majority, “[t]here are real consequences to a court’s well-intentioned decision to fix Congress’s mistakes.”  

Perhaps stunned by Judge Bybee’s flurry – but not out of the fight by any stretch, the panel writing for the majority came out landing well placed, counter shots to the dissent’s arguments. The majority began by discounting the dissent’s slavish adherence to the plain meaning rule. “The dissent pretends that the entire office of statutory interpretation is comprehended within the meaning of the plain meaning rule. But the law is not as the dissent would have it.”  A bloody nose there. That rule does not require judges “to operate under an artificially induced sense of amnesia about the purpose of the legislation,” the panel said in issuing the order of denial of en banc review.  The referee called time to check the cut over the eye which was, by then, bleeding profusely.  Then, knocking the dissent into the ropes, the majority argued the dissent would “woodenly apply the plain meaning rule to the exclusion of all other rules of statutory interpretation.”  The dissent was visibly wobbly by then.

Unfortunately for Judge Bybee and his corner, the referee called the bout before it could proceed any further. Although the dissenters lost this match, they made an impressive showing by illuminating the separation of powers issues springing from the substitution of words with opposite meanings into a statute – no matter the logic of the substitution. 

Will there be a rematch?  It’s too soon to tell, but don’t bet against it.