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August 31, 2006

CAFA Appellate Deadline Fix?

As noted in an earlier post, one of the first Worst Statutes in the World was a provision of CAFA that literally requires litigants to wait 7 days before appealing certain rulings, but then gives them forever to do so. Professor Adam Steinman subsequently posted an article on SSRN entitled: "'Less' is 'More'? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act's Appellate Deadline Riddle." The abstract reads:

In recent months, federal appellate judges have grappled with an interpretive puzzle that opens a new frontier in the long-running judicial and scholarly debate about statutory interpretation. The landmark but controversial Class Action Fairness Act of 2005 (CAFA) authorizes immediate appeals from certain jurisdictional decisions by district courts, provided that litigants appeal "not less than 7 days after entry of the order." Although the goal of this provision was to set a seven-day deadline for CAFA appeals, the statutory text does precisely the opposite--it imposes a seven-day waiting period and sets no outer deadline. Federal appellate judges have disagreed sharply about whether courts may rewrite CAFA to require an appeal not more than seven days after entry of the order, or whether they must instead heed the statute's text and impose no outer deadline for CAFA appeals. This puzzle upsets many of the assumptions and priorities associated with competing theories of statutory interpretation. Textualists, for example, might question whether CAFA deserves their usual skepticism toward unenacted legislative "intent," because CAFA's structure, its legislative history, and common sense confirm that Congress meant to impose a seven-day deadline rather than a seven-day waiting period. But intentionalists (who usually tolerate deviations from a statute's ordinary meaning in order to effectuate Congress's purpose) might balk at reading a statute to mean the exact opposite of what it says. I argue that the judiciary lacks the authority to override CAFA's plain text, regardless of the uniquely reliable evidence that the statute's purpose was to impose a seven-day deadline for CAFA appeals. I then propose a solution to CAFA's riddle that has eluded courts and commentators to date. Although CAFA's plain language imposes no outer deadline, I contend that the Federal Rules of Appellate Procedure require litigants to seek an appeal within 30 days.

As I understand it, he says they have to wait 7 days, but then they only get a total of 30 to appeal. Sort of makes sense except... why on earth would Congress put in a requirement that people have to wait 7 days to file the appeal? Is there anything else like that? (I've never heard of one in patent litigation, for example, but lord knows there's lots of strange things out there.) If the plain text is absurd, and legislative intent shows that the meaning wasn't intended, why not stop there? The debate continues, though the statute remains one of the Worst Statutes in the World!

August 31, 2006 in Current Affairs | Permalink


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"why on earth would Congress put in a requirement that people have to wait 7 days to file the appeal?"

a cooling off period, perhaps? perhaps they wanted to make sure that briefs were well written, rather than throw together in 12 hours? i'm hesitant to call a statute "absurd"...is it really that bad to make people wait 7 days before filing a petition? perhaps it is (i'm not well versed enough in civil procedure to know if it is).

i'd prefer that the statute be enforced as written.

Posted by: andy | Sep 1, 2006 8:23:36 AM

I guess I disagree pretty strongly on this one. It seems to me quite dangerous to say that a statute is not absurd by imaging a purpose that the legislative history flatly contradicts. The statute was intended to be a limitation, to encourage appeals quickly, not to allow a cooling off time; everyone seems to agree the legislative history shows that to be true. It seems to me that it's not a good thing to ignore the patent absurdity by imaginging a purpose that conflicts, not just with common sense, but also with a fairly clear (supposedly) intent. What good comes of that approach; couldn't it lead to incredible mischief?

Posted by: David Hricik | Sep 1, 2006 9:12:33 AM

i agree that this is an unfortunate situation.

my concern is with the ordinary citizen who looks at the statute and finds that he must wait 7 days before filing an appeal. on the 8th day, he files an appeal. if he is then told that he must have filed within 7 days, *that* is what strikes me as absurd.

the statute was presumably written for the benefit of the public, and it strikes me as cruel that legislative history materials can contradict the interpretation that a normal person would glean from the statute. how can such a legal system be justified, if a person follows the statute and is then told that he dropped the ball, because he should have done the opposite of what the law required of him?

i am assuming that the statute isn't *that* absurd-- i'm considering the statute in isolate, apart from the surrounding statutes. if the statute is patently absurd, then an ordinary citizen would be aware that something was amiss. but, if it's not (and it doesn't strike me as that bad, but i'm not familiar with the statutory scheme), then i don't see how judicial re-writing can be justified.

Posted by: andy | Sep 1, 2006 9:22:03 AM

I don't know how many ordinary citizens would be looking at a deadline in CAFA, but I agree with your premise. Though, it seems to me that we should have an "equitable exception" or something in such cases, rather than giving it an interpretation which on its face makes no sense and which flies in the face of intent.

Where we may be disagreeing is this: your result is right, but I worry about the rationale. When interpretation becomes so unmoored from (supposedly) clear intent, I think we risk much.

Posted by: David Hricik | Sep 1, 2006 10:01:46 AM

"I don't know how many ordinary citizens would be looking at a deadline in CAFA, "

sure, and ordinary criminals don't examine criminal statutes. but i think a fiction worth maintaining/supporting is that the citizenry should be able to figure out what the law obliges them to do (even if, in fact, few people actually look at the U.S. Code).

it's a fiction, no doubt, but a good one.

Posted by: andy | Sep 1, 2006 10:34:09 AM

Justice Maura Corrigan of the Michigan Supreme Court is a proponent of an extreme variety of textualism that would follow Prof. Steinman's approach. She says that she would feel constrained to apply the language of a statute even if it leads to an absurd result. See her "Dice Loading" Rules Of Statutory Interpretation, published in the NYU Annual Survey of American Law in 2003, found at http://tinyurl.com/faff4 in PDF format.

She denigrates the "absurd result" rule, however, by equating "absurd" with "unjust", and thus invoking the rule - that just about everyone would agree with - that the judiciary has no call to invalidate a statute on the basis that the legislative choice that was made was wrong or unjust.

It is ironic that a self-professed textualist would make her argument by twisting the rather plain meaning of an English word to make it fit into her argument. Perhaps it is more than ironic. Perhaps it is - revealing.

Posted by: M. Sean Fosmire | Sep 2, 2006 4:04:37 AM

The Michigan Supreme Court is one of the more interesting ones -- along with Connecticut -- when it comes to opinions. Tomorrow there will be a post about a new Michigan case that I bet you'll find of interest.

Posted by: David Hricik | Sep 2, 2006 2:43:42 PM

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