Amalgamated Transit Union Loc. 1309 v. Laidlaw Tran. Ser.

• Decision Date: 26 January 2006
• Docket Number: No. 05-56567.,05-56567.
• Citation: 435 F.3d 1140
• 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

435 F.3d 1140

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.

January 26, 2006.

John L. Anderson and Scott M. De Nardo, San Francisco, CA, for the plaintiffs-appellants.

John C. Wynne and Vivian W. Schultz, San Diego, CA, for defendant-appellee, First Transit Services, Inc.

Appeal from the United States District Court for the Southern District of California; Irma E. Gonzalez, District Judge, Presiding. D.C. No. CV-05-01199-IEG.

Before GOODWIN, TASHIMA and FISHER, Circuit Judges.

ORDER

This is an attempt to appeal from the district court's order denying plaintiffs' motion to remand this action to California state court. We address procedural issues related to the perfecting of an appeal under the recently enacted Class Action Fairness Act of 2005, and hold that Federal Rule of Appellate Procedure 5 governs the initiation of such appeals, and that the petition for permission to take an appeal must be filed not more than seven court days after the district court's order.

I. Background

On April 12, 2005, Amalgamated Transit Union Local 1309 ("Union") and 15 individuals (collectively, "plaintiffs") filed suit in the San Diego County Superior Court against their past and current employers, Laidlaw Transit Services, Inc., and First Transit, Inc. ("First Transit" and collectively, "defendants"), alleging violations of California's meal and rest period laws. The suit was purportedly filed by the Union as a "representative action," pursuant to Professional Fire Fighters v. City of Los Angeles, 60 Cal.2d 276, 32 Cal.Rptr. 830, 384 P.2d 158 (1963), on behalf of other employees in addition to the 15 named plaintiffs. On June 9, 2005, defendants removed the action to the United States District Court for the Southern District of California pursuant to 28 U.S.C. § 1446, alleging traditional diversity jurisdiction, federal question jurisdiction, and "class action" or "mass action" diversity jurisdiction under the Class Action Fairness Act of 2005 ("CAFA"), Pub.L. No. 109-2, 119 Stat. 4 (codified in relevant part at 28 U.S.C. §§ 1332(d) and 1453(b)).

Plaintiffs moved the district court to remand the action to state court, contending that no valid basis for federal jurisdiction existed. On October 4, 2005, the district court denied the motion to remand, finding that, although traditional diversity, federal question, and "mass action" diversity jurisdiction were lacking, diversity jurisdiction as a "class action" under § 1332(d)(1)(B) and (2)(A) existed. The order was entered on the district court's docket on October 5, 2005. On October 11, 2005, plaintiffs filed in the district court a two-page notice of appeal from the district court's order, citing 28 U.S.C. § 1453(c)(1), the new provision of CAFA allowing appeals from orders granting or denying motions to remand a class action to state court. The notice of appeal does not discuss the facts of the case or the question to be raised on appeal.

On November 9, 2005, First Transit filed in this court a motion to dismiss the appeal, contending that an appeal under § 1453(c)(1) is a discretionary appeal, that Rule 5 of the Federal Rules of Appellate Procedure ("FRAP") therefore applies, and that plaintiffs' failure to comply with the rule deprives this court of jurisdiction. Plaintiffs opposed the motion to dismiss and filed a petition for permission to appeal pursuant to FRAP 5 on November 17, 2005.

II. Applicability of FRAP 5

The issues we face at this point in this proceeding concern whether we may entertain an appeal of the district court's order, not the merits of the district court's decision. We focus primarily on the interpretation of one new statutory provision of CAFA, namely 28 U.S.C. § 1453(c)(1). Although this subsection is only one sentence long, parsing its language is a much more lengthy undertaking. The clear purpose of the provision is that, unlike most other orders granting or denying motions to remand to state court a previously removed action, Congress intended that orders concerning motions to remand a "class action" will be appealable, provided the proper procedural requirements are met. It is in defining this proper procedure that the statute becomes much less pellucid.

Section 1453(c)(1) provides:

Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), 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).¹ We turn first to the issue raised in First Transit's motion to dismiss: whether a party seeking to appeal under § 1453(c)(1) must comply with FRAP 5.² This rule, which is entitled "Appeal by Permission," provides in part:

(a) Petition for Permission to Appeal. (1) To request permission to appeal when an appeal is within the court of appeals' discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district-court action. (2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.

...

(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument. (1) The petition must include the following: (A) the facts necessary to understand the question presented; (B) the question itself; (C) the relief sought; (D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and (E) an attached copy of: (i) the order, decree, or judgment complained of and any related opinion or memorandum, and (ii) any order stating the district court's permission to appeal or finding that the necessary conditions are met.

...

(c) Form of Papers; Number of Copies. All papers must conform to Rule 32(c)(2). Except by the court's permission, a paper must not exceed 20 pages, exclusive of the disclosure statement, the proof of service, and the accompanying documents required by Rule 5(b)(1)(E). An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.

Fed. R.App. P. 5.

Neither § 1453(c)(1) nor the rules of appellate procedure specifically state whether we should apply FRAP 5 to the initiation of an appeal under § 1453(c)(1). On the one hand, the statute does use the permissive phrase "may accept an appeal," implying that the appeal is "by permission." On the other hand, the language differs from another statutory provision allowing for discretionary appeals, 28 U.S.C. § 1292(b), which by rule is subject to the requirements of FRAP 5. See Fed. R.App. P. 3(a)(4). Section 1292(b) provides in part: "The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order."³ Besides explicitly stating that an appeal is discretionary, the language of § 1292(b) dovetails with FRAP 5 in the sense that § 1292(b) states that the court of appeals is to grant permission to take an appeal. See Fed. R.App. P. 5(d)(2) (providing that no notice of appeal need be filed after permission to appeal is granted and that the order granting permission to appeal serves as the notice of appeal). In contrast, § 1453(c)(1) provides that the court of appeals "may accept an appeal," which could imply that an appeal already exists, but that the court of appeals must in some manner decide whether to allow it to proceed or to reject it.

Because the language of the statute is ambiguous, we turn to the legislative history to try to discern Congress' intent. See Coeur D'Alene Tribe v. Hammond, 384 F.3d 674, 692 (9th Cir.2004). Although there is not much discussion of the appellate provision in the legislative record, a review of that history nonetheless shows that the provision was intended to create a class of discretionary appeals. There are specific references to the discretionary nature of appellate review of remand orders. See S.Rep. No. 109-14, at 49 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 46 ("New subsection 1453(c) provides that an order remanding a class action to state court is reviewable by appeal at the discretion of the reviewing court."); 151 Cong. Rec. H723-01, 729 (2005) ("In addition, new subsection 1453(c) provides that an order remanding a class action to State court is reviewable by appeal at the discretion of the reviewing court."). In fact, the record shows that the creation of discretionary appeals was a specific compromise from a prior version of the legislation, which provided for appeal as of right from orders granting motions to remand. See 151 Cong. Rec. S1076-01, 1078 (2005) (stating that prior version of CAFA "would have allowed defendants to seek unlimited appellate review of federal court orders remanding cases to state courts[; i]f a defendant requested an appeal, the federal courts would have been required to hear the appeal," whereas the new, compromise legislation "grants the federal courts discretion to refuse to hear an appeal if the appeal is not in the interest of justice").

The record is, however, silent on whether Congress specifically intended FRAP 5 to govern the initiation of these discretionary appeals, and there are, in fact,...