Third Circuit Joins 11th and 9th Circuits in Holding that “Not Less Than 7 Days” in § 1453(c) of CAFA (Class Action Fairness Act of 2005) Must be Read as “Not More Than 7 Days”
Plaintiffs filed a putative class action in New Jersey state court. Defense attorneys removed the action to federal court under the Class Action Fairness Act of 2005 (CAFA), but the district court granted plaintiffs’ remand motion on the ground that it lacked removal jurisdiction. Seven days later defense attorneys filed a petition with the Third Circuit for leave to appeal pursuant to 28 U.S.C. § 1453(c), which provides that the circuit court may accept such appeals “if application is made to the court of appeals not less than 7 days after entry of the order.” Morgan v. Gay, 466 F.3d 276, 277 (3rd Cir. 2006) (quoting § 1453(c)(1)). As a matter of first impression, the Third Circuit considered whether § 1453(c)(1) “should be interpreted by this Court to mean ‘not more than 7 days after entry of the order.'” Id. Like sister circuits, the Court of Appeals held that the statute should be read as Congress intended rather than honoring the strict language of a plainly typographical error. The Circuit Court summarized at page 277: “Because the uncontested legislative intent behind § 1453(c) was to impose a seven-day deadline for appeals, we conclude that the statute as written contains a typographical error and should be read to mean ‘not more than 7 days.'”
In so ruling, the Third Circuit observed at pages 278 and 279 that its holding is consistent with decisions by the Eleventh Circuit and Ninth Circuit Courts of Appeals. See Miedema v. Maytag Corp., 450 F.3d 1322 (11th Cir. 2006); Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435 F.3d 1140 (9th Cir. 2006).
NOTE: The seven-day time period excludes weekends and holidays because Rule 26(a) of the Federal Rules of Appellate Procedure applies to petitions filed under § 1453(c)(1). Morgan, at 277 n.1.