Amalgamated Transit, Local 1309 v. Laidlaw Transit

• Decision Date: 22 May 2006
• Docket Number: No. 05-56567.,05-56567.
• Citation: 448 F.3d 1092
• Parties: AMALGAMATED TRANSIT UNION LOCAL 1309, AFL-CIO; Selma Shackleford; Gregory Passmore; Ronald G. Duncan; Timothy Thurmann; Samuel J. Frank; Alexander Bradley; Michele L. Boswell; John A. Taylor; Terrence Sandidge; Kuniyuki Kashiuagi; Gwenaida Cole, Lela Shipman; Sharon K. Harris; Fabis Horton III; Philip Bingham, Plaintiffs-Appellants, v. LAIDLAW TRANSIT SERVICES, INC.; First Transit, Inc., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

448 F.3d 1092

AMALGAMATED TRANSIT UNION LOCAL 1309, AFL-CIO; Selma Shackleford; Gregory Passmore; Ronald G. Duncan; Timothy Thurmann; Samuel J. Frank; Alexander Bradley; Michele L. Boswell; John A. Taylor; Terrence Sandidge; Kuniyuki Kashiuagi; Gwenaida Cole, Lela Shipman; Sharon K. Harris; Fabis Horton III; Philip Bingham, Plaintiffs-Appellants, v. LAIDLAW TRANSIT SERVICES, INC.; First Transit, Inc., Defendants-Appellees.

No. 05-56567.

United States Court of Appeals, Ninth Circuit.

May 22, 2006.

Dissenting Opinion Amended May 31, 2006.

John L. Anderson, Esq., Scott M. De Nardo, Neyhart, Anderson, Freitas, Flynn & Gros, San Francisco, CA, for Plaintiffs-Appellants.

Theodore R. Scott, Esq., Littler Mendelson, Vivian Wai-Ying Shultz, John C. Wynne, Esq., Duckor & Spradling, San Diego, CA, James N. Foster, Jr., Esq., Michelle M. Cain, Esq., Mcmahon, Berger, Hanna, Linihan Cody & Mccarthy, St. Louis, MO, for Defendants-Appellees.

Before: ALFRED T. GOODWIN, A. WALLACE TASHIMA, and RAYMOND C. FISHER, Circuit Judges.

ORDER

A judge of the court called for a vote on whether to rehear the matter en banc. On such vote, a majority of the non-recused active judges failed to vote in favor of en banc rehearing.¹ But a small minority of active judges has dissented from the majority's denial of en banc rehearing.

As we stated in our initial Order (the "Order"), when we interpret a statute, "our purpose is always to discern the intent of Congress." Amalgamated Transit Union Local 1309 v. Laidlaw Transit Serv., Inc., 435 F.3d 1140, 1146(9th Cir. 2006) (citation omitted). And in pursuing that end, we recognized the Supreme Court's teaching that there is a "strong presumption that Congress has expressed its intent in the language it chose." Id. (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n. 12, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987)). The dissent from the denial of rehearing en banc (the "dissent"), however, would turn that presumption into an irrebuttable one. It would do so by ignoring the substantial body of both Supreme Court and Circuit case law on which the Order's interpretation of 28 U.S.C. § 1453(c) is grounded. The dissent pretends that the entire office of statutory interpretation is comprehended within the plain meaning rule.² But the law, plainly, is not as the dissent would have it.

A quarter century ago, we recognized that the plain meaning rule:

does not require a court to operate under an artificially induced sense of amnesia about the purpose of legislation, or to turn a blind eye towards significant evidence of Congressional intent in the legislative history.... [I]t is no talismanic invocation of an exclusively privileged status for apparently unambiguous statutory language. Rather, it is a recognition of the practical principle that evidence is sometimes so good in the first place to which one turns that it is unnecessary to look further.

Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 871(9th Cir.1981). This rule is consistent with the general principle of statutory construction recently restated by the Supreme Court:

Th[e] canons [of statutory construction] are tools designed to help courts better determine what Congress intended, not to lead courts to interpret the law contrary to that intent. Chickasaw Nation v. United States, 534 U.S. 84, 94, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) (noting that "canons are not mandatory rules" but guides "designed to help judges determine the Legislature's intent," and that "other circumstances evidencing congressional intent can overcome their force").

Scheidler v. Nat'l Org. of Women, Inc., ___ U.S. ___, ___-___, 126 S.Ct. 1264, 1273-74, 164 L.Ed.2d 10 (2006).

Even in Carson Harbor Village, Ltd. v. Unocal Corp., 270 F.3d 863 (9th Cir.2001) (en banc), a case relied on by the dissent to support its position, see dissent at 1095, we plainly stated the controlling proposition here, which the dissent strives mightily to ignore: "We will resort to legislative history, even where the plain language is unambiguous,' where the legislative history clearly indicates that Congress meant something other than what it said.'" Id. at 877(quoting Perlman v. Catapult Entm't, Inc. (In re Catapult Entm't, Inc.), 165 F.3d 747, 753 (9th Cir.1999)).³

Finally, the dissent asserts that we "justified[our] decision by claiming that the statute was `illogical'." Dissent at 1096. This is a misreading of our Order. We did not point out the illogic of the statute to justify our decision, but as further evidence in our search for Congress' intent. The dissent does not even acknowledge the primary purpose of statutory interpretation—to ascertain and to effectuate the intent of Congress—other than to scoff at it. Dissent at 1100 ("If Congress intended something different, let Congress fix it."). The dissent would woodenly apply the plain meaning rule to the exclusion of all other rules of statutory interpretation. But the dissent's unduly narrow view of the office of statutory interpretation comports with neither the teaching of the Supreme Court nor the law of our Circuit.

The sua sponte call for en banc rehearing is denied.

BYBEE, Circuit Judge, with whom Judges KOZINSKI, O'SCANNLAIN, RYMER, CALLAHAN, and BEA join, dissenting from the denial of rehearing en banc:

Is less more? To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications. Section 5(a) of the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. No. 109-2, § 5(a), 119 Stat. 4, 12-13, creates 28 U.S.C. § 1453(c)(1), which provides for a permissive appeal when the district court refuses to accept a class action removed from state court. See Bush v. Cheaptickets, Inc., 425 F.3d 683, 685 (9th Cir.2005). Specifically, section 1453(c)(1) provides:

[A] court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed 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). Despite the clarity of this language, the panel announced that it would read the phrase "not less than 7 days" to mean "not more than 7 days." Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs., Inc., 435 F.3d 1140, 1145-46 (9th Cir.2006). As a result, the appellants' application, filed 43 days after the district court's order, was untimely.

The court now follows the misguided approach of the Tenth Circuit, which has announced that it too will read the phrase "not less than 7 days" as if it had been written "not more than 7 days." See Pritchett v. Office Depot, Inc., 420 F.3d 1090, 1093 n. 2 (10th Cir.2005). I dissent from our refusal to rehear this case en banc because "I am convinced the parade is marching in the wrong direction." United States v. Smith, 440 F.2d 521, 527 (7th Cir.1971) (Stevens, J., dissenting). The Republic will certainly survive this modest, but dramatic, emendation of the United States Code; I am not so sanguine that in the long term it can stand this kind of abuse of our judicial power.

I

Plaintiffs-appellants, Amalgamated Transit Union Local 1309 and 15 individuals, filed suit against defendants-appellees Laidlaw Transit Services, Inc. and First Transit, Inc. in the San Diego County Superior Court. The appellants are current and former employees of the appellees and allege that the appellees violated California's meal and rest period laws. On June 9, 2005, appellees removed the action to the United States District Court for the Southern District of California, pursuant to 28 U.S.C. § 1446. Appellants moved to remand the action to state court. On October 5, 2005, the district court entered an order holding that it had subject matter jurisdiction over the suit as a class action under 28 U.S.C. §§ 1332(d)(1)(B) and (d)(2)(A) and denying the motion to remand.

The appellants filed a petition for permission to appeal to this court 43 days after the district court's order denying remand, a period that was, plainly, "not less than 7 days after entry of the [district court's] order." 28 U.S.C. § 1453(c)(1). Nevertheless, the panel found appellants' petition untimely. The panel declared section 1453(c)(1) "entirely illogical" because "[section 1453(c)(1)] as written creates a waiting period of seven days before which an appeal is too early." Amalgamated, 435 F.3d at 1145. Though "troubled that, in contrast to most statutory construction cases where we are usually asked to construe the meaning of an ambiguous phrase or word, we are here faced with the task of striking a word passed on by both Houses of Congress and approved by the President, and replacing it with a word of the exact opposite meaning," the panel did just that. Id. at 1146. The panel's confession was forthright:

We have construed the statute to require a procedural framework that is not readily apparent from the statutory text or its legislative history, and have changed the statutory deadline for seeking to appeal to the opposite of what the plain language of the statute says. Under our interpretation, plaintiffs' timely notice of appeal is ineffectual and their subsequent petition for permission to appeal was filed too late.

Id.¹ Thus, the panel declared, a statute that reads "not less than 7 days" must henceforth be read to mean "not more than 7 days." Id.; accord Pritchett, 420 F.3d at 1093 n. 2.

II

The text of 28 U.S.C. § 1453(c)(1) is unmistakably clear, and the panel should have applied the statute as written. In its decision, the panel conceded that the language of section 1453(c)(1) is unambiguous. Amalgamated, 435 F.3d at 1145-46. Once it recognized that the statute is unambiguous, the panel should have stopped, for it is a paramount principle of statutory construction that "`[w]here[a statute's] language is plain and admits of no more than one meaning the duty of interpretation does not arise, and the rules...