Horan, David, Appealing Remand Orders under the Class Action Fairness Act, 8 J. App. Prac & Process 281 (2006).
Hello, federal court lover. So you opposed remand, lost, and your case has been remanded to the dreaded ninth circle otherwise known as state court.
Well, cheer up, buttercup! It’s no sin to want to be in federal court. There is hope for you yet.
CAFA provides a statutory escape from state court inferno. Appellate attorney David Horan offers Virgilesque guidance and steers us through the who, what, where, when and how for bringing an appeal under CAFA’s §1453(c).
Section 1453(c) of CAFA provides for discretionary appellate review of remand orders in cases involving class actions. Furthermore, removal is available regardless of whether the defendant is a citizen of the forum state or whether all defendants consent to removal.
The Who and Where
CAFA permits filing a discretionary appeal either by a plaintiff whose motion to remand is denied or a defendant against whom an order remanding a removed class action is entered. The appeal must be filed in the court of appeals in the circuit in which the district court issuing the order sits.
Though the statutory text regarding the timing for an appeal is inartfully drafted, most courts hold that the appeal must be made within 7 days after entry of the order.
The courts are split regarding which federal rules of appellate procedure govern CAFA appeals: Rules 3, 4, or 5. Specifically, Rules 3 & 4 require filing a “notice of appeal” within 30 days for appeals permitted by law. Rule 5, however, governs appeals by permission and requires an application for permission to appeal, rather than a notice of appeal. Due to limited jurisprudence on the issue, a careful practitioner should file both.
The What Then
Once an appeal has been filed, the court has 60 days to rule, but this time may be extended upon a showing of good cause and in the interests of justice.
Lastly, David Horan provides practical guidelines for filing an § 1453(c) appeal under CAFA. Follow them wisely, and you’ll avoid the legal limbo for appealing a remand order.