Congress Fixes Mistake!

What should courts do when the “plain language” of a legal text would lead to troubling, unanticipated consequences? Should they wait for the text to be formally amended? Or should they literally take the law into their own hands and fix the problem themselves? I blogged earlier about the possibility that language in a 2005 amendment to the Texas Constitution could invalidate all Texas marriages (including my own!). I have an obvious personal stake in that particular issue, but I’m interested more generally in such problematic language, particularly in the context of civil procedure and federal jurisdiction. Today officially lays to rest a classic example of that — the 2005 Class Action Fairness Act’s 7-day “deadline” for appealing certain jurisdictional rulings.

The original language in 28 U.S.C. § 1453(c)(1) required that such appeals be brought “not less than 7 days” after the district court’s order. Although the goal of this provision was to set a 7-day deadline, the enacted text did precisely the opposite — it imposed a 7-day waiting period and set no outer deadline. What’s the appropriate judicial response? Rewrite the statute by interpreting “less” to mean “more,” thereby imposing a 7-day deadline? Or adhere to the literal text, thereby imposing a 7-day waiting period with no outer deadline? For litigants, the only safe move was to appeal exactly 7 days after the district court’s order, which would make the appeal timely under either a not-more-than-7-days or a not-less-than-7-days standard.

I wrote about this problem in my article “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). Back then, every circuit to consider the question rewrote the statute and imposed the 7-day deadline, although six Ninth Circuit judges disagreed in a vigorous dissent from a denial of en banc review. My argument was that courts should adhere to the statute’s plain language (which would impose no outer deadline on CAFA appeals) and instead rely on Fed. R. App. P. 4’s default deadline of 30 days. The Seventh Circuit eventually adopted that approach, see Spivey v. Vertrue, 528 F.3d 982 (7th Cir. 2008), creating a circuit split that would force either Congress or the Supreme Court to resolve the issue.

Congress responded and, effective today, the problem is solved. Legislation enacted earlier this year provides: “effective Dec. 1, 2009, subsec. (c)(1) is amended by striking ‘not less than 7 days’ and inserting ‘not more than 10 days.'” Public Law 111-16, § 6(2). This is a commendable solution, but my sense is that such congressional initiative is the exception rather than the rule. A counterexample that civil procedure folks know all too well is the saga of the supplemental jurisdiction statute, for which uncertainty lingered from its 1990 enactment until — and perhaps beyond — the Supreme Court’s 2005 decision in Exxon Mobil v. Allapattah, now a staple in civil procedure casebooks. (If readers are interested, see my article on that decision, Sausage-Making, Pigs’ Ears, and Congressional Expansions of Federal Jurisdiction: Exxon Mobil v. Allapattah and its Lessons for the Class Action Fairness Act, 81 Washington L. Rev. 279 (2006).)

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