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Statute means the exact opposite of what it says
January 28, 2006 by Ross Runkel at LawMemo
"Not less" means "not more." A statute's clear text means the opposite of what it says.
The federal Class Action Fairness Act (CAFA) allows a party to remove certain state-court class-action cases to federal court. Once removed, it is typical that there will be a motion to remand to state court. However the federal trial court rules, that ruling is appealable "not less than 7 days after entry of the order." There are now two federal Circuit courts that have decided that "not less than 7 days after" actual means the opposite: "not more than 7 days after."
A union and 15 employees sued the employer in state court for violation of California's meal and rest period laws. The employer removed the action to federal court, on the basis of (among other things) "class action" or "mass action" diversity jurisdiction under the Class Action Fairness Act (CAFA). The plaintiffs moved to remand the action to state court, but the trial court denied the motion on the basis that class action diversity jurisdiction existed. The plaintiffs appealed that order, and the employer moved to dismiss. The 9th Circuit denied the motion. Amalgamated Transit Union v. Laidlaw Transit (9th Cir 01/26/2006).
28 USC Section 1453(c)(1) of CAFA provides 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 entry of the order."
The 9th Circuit held that "Federal Rule of Appellate Procedure [FRAP] 5 governs the initiation of such appeals, and ... the petition for permission to take an appeal must be filed not more than seven court days after the district court's order."
The court noted that although Section 1453(c)(1) provides that an application may be made "not less" than 7 days after entry of the order, it should be read as requiring that an application be made "not more" than 7 days after entry of the order. The court agreed with the 10th Circuit's determination that inclusion of the phrase "not less" in Section 1453(c)(1) was a typographical error (Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir 2005)).
The court also concluded that "because the statute does not specify the deadline as calendar days, we construe the seven days as court days, thereby excluding intermediate weekends and holidays."
The court ultimately denied the employer's motion to dismiss the appeal, stating "we construe the timely notice of appeal and the late petition for permission to appeal as one timely petition satisfying the requirements of FRAP"
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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