'Less' is 'More'? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act's Appellate Deadline Riddle

Abstract:     
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 warrants their usual skepticism toward unenacted legislative "intent," because there is overwhelming evidence (from CAFA's structure, its legislative history, and common sense) 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 taking the unparalleled step of reading a statute to mean the exact opposite of what it says. This article proposes a solution to CAFA's dilemma that has eluded courts and commentators to date. Even if one accepts CAFA's plain language, the Federal Rules of Appellate Procedure require litigants to seek an appeal within 30 days. This solution provides a meaningful deadline for CAFA appeals without doing unprecedented violence to the statute's text.

Keywords: Class Action Fairness Act, CAFA, 1453, Removal, Appeals, Appellate, Deadline, 7 Days, Seven Days, Textualism, Intentionalism, Purposivism, Statutory Interpretation, Statutory Construction, Amalgamated, Deadline, Federal Rules of Appellate Procedure

JEL Classifications: K40, K10, K19, K41

Accepted Paper Series