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

• Author: Adam N. Steinman
• Position: Assistant Professor of Law, University of Cincinnati College of Law
• Pages: 1186-1234

Assistant Professor of Law, University of Cincinnati College of Law. J.D., Yale Law School; B.A., Yale College. I would like to thank Chris Bryant, Jenny Carroll, Tom Eisele, Steve Goldblatt, Emily Houh, Michael Solimine, Larry Solum, and Suja Thomas for their helpful comments and suggestions. This Article also benefited greatly from comments received during presentations at the Chicago-Kent College of Law and the University of Cincinnati College of Law. In addition, thanks to Drew Brinkman and Pam Leist, who both provided excellent research assistance. The research for this Article was supported by a grant from the Harold C. Schott Foundation.

Page 1186

"When I use a word, . . . it means just what I choose it to mean-neither more nor less."¹

Introduction

For the last two decades, courts and commentators have engaged in an enlightening and constructive debate about the proper method of statutory interpretation.² Spurred in large part by the Supreme Court's "new textualism" of the mid-1980s,³ scholars and judges have debated the relative merits of "textualism"-a theory of statutory interpretation that generally seeks to apply the meaning of the statutory text without speculating about the legislative intent underlying that text-and "intentionalism"-a rival theory that generally seeks to effectuate the legislature's intent, even if that intent is inartfully expressed in the statutory text.⁴ The exchange has been so productive that some scholars have recently declared that the debate is essentially over and that the competing camps have reached consensus on what had previously appeared to be major areas of dispute.⁵

Page 1187

A sharp divide among federal appellate judges over the Class Action Fairness Act of 2005 ("CAFA")⁶ confirms that the debate is very much alive.⁷ Among CAFA's major changes to class action litigation was a substantial expansion of federal jurisdiction over class actions.⁸ Coupled with this expansion was a unique provision allowing greater appellate review over jurisdictional decisions. When a class action is removed from state court to federal court, CAFA authorizes discretionary appeals of district court decisions on whether removal is proper, but only "if application is made to the court of appeals not less than 7 days after entry of the order."⁹ According to the legislative history, the purpose of this language was to set a seven-day deadline for pursuing such appeals.¹⁰ A careful reading of the statutory text reveals that this language has precisely the opposite effect. Rather than set a seven-day deadline, CAFA's text imposes a seven-day waiting period. An application filed six days after the district court's order would be untimely because it was filed less than seven days after entry of the order. An application filed eight days (or eight months) after the district court's order would be timely because it was filed not less than seven days after entry of the order.¹¹

Federal appellate judges have recently begun to grapple with this issue. Four circuits have simply rewritten the statute, construing CAFA to require an application "not more than 7 days" after entry of the district court order.¹² However, a vigorous dissenting opinion authored by Judge Bybee on behalf of six Ninth Circuit judges chastised this approach as an abuse of judicial authority.¹³ These judges argued that our constitutional structure requiresPage 1188 courts to follow the text of properly enacted legislation; under CAFA's plain language, there is no outer deadline for invoking the statute's appellate provision once a litigant waits the required seven days.¹⁴

The robust judicial and scholarly discourse over the last two decades has illuminated many aspects of statutory interpretation. This dialogue has failed, however, to address squarely the sort of interpretive problem that CAFA poses. At first glance, CAFA's appellate provision appears to present a classic choice between textualism and intentionalism. Judge Bybee's approach would follow the statute's text, while the majority approach would follow Congress's intent. On closer analysis, however, CAFA's appellate provision simply does not fit the paradigm that has shaped the recent discourse. In the paradigmatic cases-from Green v. Bock Laundry Machine Co.¹⁵ to Church of the Holy Trinity v. United States¹⁶ to Puffendorf's classic example about the medieval Italian surgeon¹⁷-the choice is to either (1) follow the statutory text's plain meaning or (2) adopt a restricted or unusual definition of statutory terms in order to give effect to the underlying legislative purpose. Faced with such a choice, an intentionalist might argue that the term "defendant" should include only criminal defendants;¹⁸ that a prohibition on aliens performing "labor or service of any kind" should be narrowed to mean only manual labor;¹⁹ and that a prohibition on "[drawing] blood in the streets" should not criminalize a surgeon's efforts to save a life.²⁰ Thus, an intentionalist would typically seek to accomplish the legislature's true purpose, even though that purpose does not fit the statutory text perfectly.²¹ A textualist, on the other hand, would typically heed the statute's plain meaning in these circumstances, questioning both the judiciary's competence to discern unenacted legislative intent and thePage 1189 reliability of the sources (such as legislative history) used to uncover that intent.²²

CAFA's appellate provision differs from the paradigmatic interpretive puzzle in two critical ways. First, CAFA is accompanied by uniquely reliable evidence of legislative intent, both from the legislative history and from the structure of the statute itself.²³ Thus, even textualists might question whether CAFA deserves their traditional skepticism of unenacted legislative intent. Second, construing the term "less" to mean "more" would work unprecedented violence to the text of the statute itself.²⁴ Accordingly, even intentionalists-who generally tolerate judicial tinkering with the ordinary meaning of statutory terms-might balk at reading a statute to mean the exact opposite of what it says. CAFA's appellate provision thus reveals that the scholarly and judicial discourse on statutory interpretation is incomplete; it has yet to confront the sort of interpretive riddle that CAFA's appellate provision poses: how to interpret a statute whose unambiguous language creates a result exactly the opposite of the legislature's clear intent.

CAFA's appellate deadline riddle is a difficult one indeed. While the Supreme Court has recognized the judiciary's authority to deviate from a statute's literal meaning,²⁵ it has never endorsed the kind of extreme revision that would be needed to "correct" CAFA.²⁶ Nor have scholars attempted to defend such a drastic interpretive step.²⁷ On the other hand, to insist that there is no deadline for pursuing CAFA appeals would fly in the face of common sense and Congress's manifest intent to have CAFA appeals resolved expeditiously. This Article proposes a solution that avoids both pitfalls. I accept the plain text of CAFA, which itself imposes no outer deadline on CAFA appeals. However, I argue that the normal operation of the Federal Rules of Appellate Procedure would require litigants to pursue a CAFA appeal within thirty days of the district court's order. Admittedly, this deadline is not as stringent as the seven-day deadline that Congress apparently had in mind. But my rule-based solution avoids blatant judicial revision of CAFA's text while still imposing a workable system with meaningful deadlines.

Part I of this Article summarizes CAFA's jurisdictional and appellate provisions. It explains how CAFA expands federal jurisdiction over class actions and authorizes discretionary appellate review for certain jurisdictional decisions. Part II examines CAFA's requirement that litigantsPage 1190 must pursue such appeals "not less than 7 days after entry of the order." ²⁸ It describes the conflict between CAFA's legislative history and statutory text and summarizes the current split among federal appellate judges over how to interpret the seven-day requirement. Part III of this Article summarizes the foundations of the debate between textualism and intentionalism, as well as the Supreme Court's conflicting guidance on how to interpret statutes where the literal text conflicts with the apparent intent of Congress.

Part IV of this Article analyzes the two current interpretive approaches to CAFA's appellate provision. It...