Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc., ____ F.3d ____, No. 05-56567, 2006 WL 177250 (9th Cir. Jan. 26, 2006).
The U.S. Court of Appeals for the Ninth Circuit became the first circuit to issue a ruling closely examining the language regarding appellate review procedures under the Class Action Fairness Act. Declaring that a portion of the literal language of CAFA is at odds with Congressional intent, the Ninth Circuit held that parties must 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 . . . .”

The underlying case concerns a labor dispute over California’s meal and rest period laws, which landed in San Diego Superior Court in April of 2005, some two months after CAFA became law. The defendants removed, invoking traditional diversity jurisdiction, federal question jurisdiction and expanded diversity jurisdiction under CAFA. The district court denied the plaintiffs’ motion to remand on October 5th, and the plaintiffs sought appellate review by filing a notice of appeal with the district court on October 11th . Subsequently, the defendant moved to dismiss the appeal in an attempt to shut down the union’s appeal efforts, arguing that review is discretionary. The defendants also argued that the plaintiffs had failed to comply with the permissive appeal requirements of Federal Rule of Appellate Procedure 5. Predictably, the plaintiffs opposed the motion to dismiss, and filed their petition for permissive appeal on November 17th.
28 U.S.C. Section 1453(c)(1) provides that a court of appeals “may accept an appeal” from an order granting or denying remand “if application is made to the court of appeals not less than 7 days after entry of the order.” Considering whether “less” really means “more,” the Ninth Circuit expressed concern over the quandary: “We remain somewhat troubled that, in contrast to most statutory construction cases where we are usually asked to construe the meaning of an ambiguous phrase or word, we are here 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.” The court observed that a literal interpretation of CAFA’s “not less than” wording would, in effect, give aggreived parties unlimited time to seek appellate review. The court thus declared an ambiguity in the language, which allowed it to consider the legislative history of CAFA, and then found that a literal interpretation of the language would be contrary to the Act’s legislative history, which shows that Congress backed away from a draft provision concerning mandatory appellate review.
The three judge panel (Judges Goodwin, Tashima and Fisher) in this unsigned opinion concluded that a judicial rewrite of the statute was the only way to square the law with Congress’ intent. The court’s search for guidance in an earlier Ninth Circuit decision, Bush v. Cheaptickets, Inc., 425 F.3d 683 (9th Cir. 2005) (Editor’s Note: See CAFA Law Blog summary posted on October 23, 2005) was to no avail, as the petition for permission to appeal in Bush was filed on the seventh day, avoiding a conflict with CAFA’s “not less than” language. The court also looked to the Tenth Circuit’s decision in Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 no. 2 (10th Cir. 2005) (Editor’s Note: See CAFA Law Blog summary posted on October 23, 2005), which concluded that the “not less than” language was a “typographical error,” and that “less” really meant “more.” Like its sister circuit, the Ninth Circuit declared, “[t]here is apparently no logical reason for the choice of the word `less’ in the statute.”
Addressing the discretionary review issue, the court, after reviewing the language of the statute and the legislative history, found that Congress intended that courts of appeal have discretionary review of district court rulings in remand battles, and for that reason, applied Federal Rule of Appellate Procedure 5 governing permissive appeals as the standard for appellate review of CAFA remand decisions; however, though the permissive appeal provisions of Rule 5 applied, the court waived the technical requirements of the rule in this case, noting “our duty to dismiss for failure to comply with these particular rules is not mandatory.” Even so, the court stressed that it was not expanding the time limit for seeking review, and observed that the plaintiffs had set the process in motion within the court-interpreted seven-day time limit.