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Big Case #7 - ATU v. Laidlaw Transit
September 01, 2006 by Ross Runkel at LawMemo
#7 in the Big Cases Series for 2006: Amalgamated Transit Union v. Laidlaw Transit, 435 F.3d 1140 (9th Cir 01/26/2006), en banc rehearing denied with opinions, 448 F.3d 1092 (05/22/2006)
Facts: A union and employees filed a class action in state court alleging state law claims, and the employer removed to federal court under the Class Action Fairness Act (CAFA). The federal court denied plaintiffs' motion to remand to state court, and plaintiffs appealed.
Statute: 28 USC § 1453(c)(1): "... 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."
Held: Although § 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.
Key quote: "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."
On motion for rehearing: Six judges filed a dissent arguing that a court has no business rewriting the statute merely because the way it was actually written is "illogical."
Previous case: Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir 2005) held that "not less" was a typographical error.
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