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This guest post was written by Sean Costello. Mr. Costello is an associate resident in the Atlanta office of Jones Day. This post is entirely his work. It, of course, represents only his views, and not the views of his clients or firm:
“Less is more” works well as a “motto” for minimalist philosophy or a marketing slogan. It’s catchy enough to serve as a song title, like on Joss Stone’s Mind, Body & Soul. The phrase even has its own Wikipedia entry.
Where the phrase doesn’t work so well is where words have – or are supposed to have – precise meanings. One of those places is the law. If a statute uses the word “less,” and a court says that “less” really means “more,” eyebrows rise and fingers scratch heads. Opposite day is a fun game for kids, but it’s not a good canon of statutory construction.
On June 11, the Seventh Circuit became the first federal appeals court to hold that “less” means “less” in the appellate review provisions of the Class Action Fairness Act. Usually, a federal appeals court’s decision holding that a word like “less” means “less” rather than the opposite wouldn’t be worth commenting on. What makes the Seventh Circuit’s June 11 decision noteworthy is that, until then, every federal appeals court that had considered the issue had held that “less” means “more.”
In case anyone out there isn’t familiar with the issue, here’s the nutshell. CAFA says that “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand . . . if application is made to the court of appeals not less than 7 days after entry of the order.” 28 U.S.C. §1453(c)(1) (emphasis added). If you read CAFA’s “not less than” language to mean what it says, then CAFA imposes a seven-day waiting period for appeals of remand decisions. Problem is, just about everyone agrees that Congress didn’t mean to slow down appeals of remand decisions under CAFA; it wanted to speed them up, and waiting periods aren’t generally associated with speedy processes. It seems pretty obvious, then, that the language of the statute must have gotten butchered during the sausage-making, and no one noticed until the law was at the printer. “Less” is a typo. That, anyway, is the zeitgeist. There’s even some legislative history to back it up, so it’s more than theory. Congress, however, hasn’t seen fit to correct the “typo” in the three-and-a-half years since passing CAFA.
Five federal courts of appeals – all of the federal courts of appeals that had considered the issue before June 11 – decided that they didn’t need to wait for Congress to fix the problem. They all held that “less” really means “more.” By so doing, these courts turned a waiting period into a deadline, which is a pretty significant transformation. See Estate of Pew v. Cardarelli, 527 F.3d 25, (2d Cir. 2008); Morgan v. Gay, 466 F.3d 276 (3d Cir. 2006); Amalgamated Transit Union Local 1309, AFL-CIO v. Laidlaw Transit Services, Inc., 435 F.3d 1140, 1146 (9th Cir. 2006), reh’g denied, 448 F.3d 1092 (9th Cir. 2006);Miedema v. Maytag Corp., 450 F.3d 1322 (11th Cir. 2006); Pritchett v. Office Depot, Inc., 420 F.3d 1090 (10th Cir. 2005).
Essentially, these courts concluded that the absurdity of reading “less” to mean “more” (an antonym) was outweighed by the absurdity of reading “less” to mean, well, “less” (or “fewer,” the grammatically correct word). If “less” were construed literally, they reasoned, there would be no time limit for appealing CAFA remand decisions. Reading “less” to mean “more” took care of that absurdity, even if it created another. That, anyway, seemed to be the thinking.
These decisions were not without controversy. Some of it was internal. The denial of the petition for rehearing en banc in Laidlaw was accompanied by a scathing dissent, which characterized the court’s decision as an “abuse of … judicial power.” 448 F.3d at 1095. Some of the controversy was external. Howard Bashman (of the excellent How Appealing blog) complained back in February 2006 – when only the Ninth and Tenth Circuits had addressed the issue – that such holdings were “dangerous.” He warned that, “[w]hen Congress decides that a statute should mean the opposite of what it says, the language of the statute actually changes as a result of Congress’ amendment, ” but “[w]hen a court decides that a statute should mean the opposite of what it says, the language of the statute remains the same, misleading those who are unaware of the court’s ruling.” Excellent points, but the courts didn’t heed them. The second, third and eleventh circuits all followed the lead of Laidlaw and Pritchett. (As an aside, in none of these cases did the court of appeals actually rule that a notice of appeal was untimely for having been filed after the seventh day. Leave to appeal was granted in each case.)
On June 11, the Seventh Circuit finally arrived at the party with Spivey v. Vertrue, Inc., 528 F.3d 982 (7th Cir. June 11, 2008). Writing for the three-judge panel, Judge Easterbrook took a radical approach. He held that – get this – “less” means “less.” What? Crazy! The word means what the dictionary says it means, rather than the opposite? The statute means what it says? You’ve got to be kidding! (Judge Easterbrook took a jab at Congress’ grammar, as well, explaining that “fewer,” not “less,” was the grammatically proper word. But that’s sort of beside the point here.)
In Spivey, the defendant lost remand in the district court, and petitioned for leave to appeal under the procedures set forth in CAFA at 28 U.S.C. § 1453. The defendant’s lawyers – smart guys that they are – knew about the seven-day issue and decided that, rather than force the issue of whether “less” means “more,” they would just mail the petition for leave to appeal on the seventh day and “straddle” the timing issue. Id. at *2. The strategy failed in the execution because the Seventh Circuit’s clerk did not receive the notice until a couple of days later. Receipt, not mailing, dictates the date on which a notice of appeal is deemed filed. Consequently, the Seventh Circuit had to reach the timing question.
Judge Easterbrook surveyed the authorities that had ruled or opined on CAFA’s “less is more” language. He even strung a couple of law review articles into his bulky cite. Id. He acknowledged that the “norm” in appellate deadlines is to impose a time limit by which tasks must be accomplished, not a date by which they should begin. Id. He also acknowledged Congress’ “likely goal” of compelling “prompt action,” which was revealed not only by legislative history but by other provisions in the statute itself, including CAFA’s 60-day deadline for courts to render decisions on CAFA remands. Id. (discussing 28 U.S.C. §1453(c)(2). As Judge Easterbrook pointed out, “[t]here’s not much point in directing the court of appeals to make a swift decision, if the aggrieved party can take forever to appeal—and, if ‘less’ really means ‘less,’ then forever is how much time the party displeased by the remand can take, as far as §1453(c)(1) is concerned.” Id.
But none of this was enough to cause Judge Easterbrook to read “less” with the same squint as the other five courts of appeals. “[L]egislative history can not justify reading a statute to mean the opposite of what it says,” and “it does not permit a judge to turn a clear text on its head.” Id. According to Judge Easterbrook, “[t]urning ‘less’ into ‘more’ would be a feat more closely associated with the mutating commandments on the barn’s wall in Animal Farm than with sincere interpretation.” Id. at *2. He followed that up with an obscure – but apt – reference to the architect of the building in which the Seventh Circuit sits, explaining that “Ludwig Mies van der Rohe . . . adopted ‘less is more’ as his motto, but this credo of Bauhaus design did no violence to any enacted text.” Id.
That’s all good stuff, but what about the argument that, unless “less” means “more,” the losing side in a CAFA remand battle in the trial court will have forever to appeal? Turns out that everyone had it wrong. “No way,” says Judge Easterbrook. While CAFA’s §1453(c)(1) itself does not impose a deadline for filing a petition, CAFA is not the only place to look for such a deadline. CAFA’s “open-ended ‘not less than 7 days’ means that there is no terminal date for appeal,” so the deadline for filing a petition for review comes courtesy of is 30 days (with some exceptions for federal agencies and officers), courtesy of Federal Rules of Appellate Procedure 4(a) and 5(a)(2), which yield a 30-day deadline. Id. at *3. In other words, there’s no real argument that a court must read “less” as “more” to prevent an absurd result, because there is no absurd result. A party in a CAFA remand battle has between seven and 30 days to notice an appeal, a reasonable time frame.
Moreover, Judge Easterbrook advanced the radical idea that litigants should be allowed to rely on the plain language of the statute. If a litigant reads “less” to mean what it says, he shouldn’t be faced with the prospect of going to court and being told that “less” actually means “more.” Id. (Like “Kafkaesque” – or “awesome” – “Orwellian” is an overused adjective, but “Orwellian” would fairly characterize such a state of affairs.)
This all seems so obvious now. But neither the defendant’s lawyers in Spivey nor any of the judges in the other five cases had addressed this point. Guess who made the point first? It wasn’t Judge Easterbrook. A law professor in a law review article did this analysis last year. See Adam N. Steinman, “Less” is “More”? Textualism, Intentionalism, and a Better Solution to the Class Action Fairness Act’s Appellate Deadline Riddle, 92 Iowa L. Rev. 1183 (2007) (available here). In fact, Judge Easterbrook cited Professor Adam Steinman’s article in the same string cite as Laidlaw, Pritchett and the other cases that had decided the issue differently. And to think that there are some who say that law reviews have lost their relevance to the judiciary! (Maybe I’m overstating the continued relevance of law reviews after all, because Judge Easterbrook did not cite this article in support of his rationale. He merely included the article in a string cite along with a number of cases and other authorities. Maybe he came up with the analysis independently, but I’ll give law reviews the benefit of the doubt.)
Spivey reached the right result. Let’s hope other courts follow its lead and interpret the words that Congress actually wrote rather than the words that courts think that Congress meant to write.