Patterson, et al v. Dean Morris LLP, et al

United States Court of Appeals
Fifth Circuit
F I L E D
March 22, 2006
Charles R. Fulbruge III
Clerk
REVISED MARCH 24, 2006
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30215
_______________
MARY PATTERSON; BRIAN BATTISTE; THOMAS THIBODEAUX;
ALEX HARTLEY; EDNA B. TAYLOR; EDWARD CARTER; HELEN CARTER; DEMETURIE
SIMMONS; MELVIN FRANKLIN; RONALD SINGLETON;
HELEN RATCLIFF; WILLIE BROWN; CHARLES K. BATTISTE;
LEONARD ACKLIN; JAWANA ACKLIN; DEBRA ELLZEY-HERRON,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P., ET AL.,
Defendants,
DEAN MORRIS, L.L.P.; LEADER MORTGAGE COMPANY, L.L.C.;
LONG BEACH MORTGAGE COMPANY;
MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC.;
COUNTRYWIDE HOME LOANS, INC.; JOHN C. MORRIS, III; GEORGE B. DEAN, JR.;
CANDICE A. COURTEAU; CHARLES H. HECK, JR.; WASHINGTON MUTUAL BANK;
CHASE HOME FINANCE, L.L.C.
AS SUCCESSOR BY MERGER TO CHASE MANHATTAN MORTGAGE CORPORATION;
NATIONAL CITY BANK,
AS SUCCESSOR BY MERGER TO THE PROVIDENT BANK;
U.S. BANK, NATIONAL ASSOCIATION,
Defendants-Appellants.

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* * * * * * * * * * * * * * *
* * * * * * * * * * * * * * *
ROBERT BAUER; SALOME LUCINEO BOYD; JIM T. BRIGHT;
DEBRA BRIGHT; LIONELL J. COLEMAN; LYNN L. COLEMAN;
KEENAN DUCKWORTH; KAREN DUCKWORTH; MERCEDES DUTTON;
MATTHEW DAVID DYER; TERRY HARDY, SR.; TERESE LABEAUD;
ALTON PIERCE; WILLIE LEE RAULS; ROSALYN VELEARY-DODGE,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P.; BANKER’S TRUST OF CALIFORNIA;
CHASE MANHATTAN MORTGAGE CORPORATION; WASHINGTON MUTUAL;
MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC.;
COUNTRYWIDE HOME LOANS, INC.;
BANK ONE CORPORATION; SUN FINANCE COMPANY, L.L.C.;
OCWEN LOAN SERVICING, L.L.C.,
SUCCESSOR IN INTEREST TO OCWEN FEDERAL BANK, F.S.B.;
JOHN C. MORRIS, III; GEORGE B. DEAN, JR.;
CANDICE A. COURTEAU; CHARLES H. HECK, JR.;
CHASE HOME FINANCE, L.L.C.,
AS SUCCESSOR BY MERGER TO
CHASE MANHATTAN MORTGAGE CORPORATION AND BANK ONE CORPORATION;
DEUTSCHE BANK TRUST COMPANY AMERICAS,
FORMERLY KNOWN AS BANKERS TRUST COMPANY,
Defendants-Appellants.
* * * * * * * * * * * * * * *

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* * * * * * * * * * * * * * *
MARY PATTERSON; LARRY PATTERSON; BRIAN BATTISTE;
DEBRA ELLZEY-HERRON; THOMAS THIBODEAUX; ALEX HARTLEY;
EDNA B. TAYLOR; EDWARD CARTER; HELEN CARTER; DEMETURIC SIMMONS;
MELVIN FRANKLIN; RONALD SINGLETON; HELEN RATCLIFF; WILLIE BROWN;
CHARLES K. BATTISTE; LEONARD ACKLIN; JAWANA ACKLIN,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P., ET AL.,
Defendants,
DEAN MORRIS, L.L.P.; LEADER MORTGAGE COMPANY, L.L.C.;
LONG BEACH MORTGAGE COMPANY;
CHASE HOME FINANCE, L.L.C.,
AS SUCCESSOR BY MERGER TO CHASE MANHATTAN MORTGAGE CORPORATION;
WASHINGTON MUTUAL BANK;
MORTGAGE ELECTRONICS REGISTRATION SYSTEMS, INC.;
COUNTRYWIDE HOME LOANS, INC.; JOHN C. MORRIS, III;
GEORGE B. DEAN, JR.; CANDICE CORTEAU;
CHARLES H. HECK, JR.; U.S. BANK, NATIONAL ASSOCIATION;
NATIONAL CITY BANK, N.A.,
SUCCESSOR BY MERGER TO PROVIDENT BANK,
Defendants-Appellants.
* * * * * * * * * * * * * * *

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* * * * * * * * * * * * * * *
MARY PATTERSON; LARRY PATTERSON; BRIAN BATTISTE;
DEBRA ELLZEY-HERRON; THOMAS THIBODEAUX; ALEX HARTLEY;
EDNA B. TAYLOR; EDWARD CARTER; HELEN CARTER; DEMETURIC SIMMONS;
MELVIN FRANKLIN; RONALD SINGLETON; HELEN RATCLIFF; WILLIE BROWN;
CHARLES BATTISTE; LEONARD ACKLIN; JAWANA ACKLIN,
Plaintiffs-Appellees,
VERSUS
DEAN MORRIS, L.L.P., ET AL.,
Defendants,
DEAN MORRIS, L.L.P.; LEADER MORTGAGE COMPANY, L.L.C.;
LONG BEACH MORTGAGE COMPANY;
CHASE HOME FINANCE, L.L.C.,
AS SUCCESSOR BY MERGER TO CHASE MANHATTAN MORTGAGE CORPORATION;
WASHINGTON MUTUAL BANK; U.S. BANK, NATIONAL ASSOCIATION;
MORTGAGE ELECTRONICS REGISTRATION SYSTEM, INC.;
COUNTRYWIDE HOME LOANS, INC.; JOHN MORRIS, III;
GEORGE B. DEAN, JR.; CANDICE A. COURTEAU; CHARLES H. HECK, JR.;
NATIONAL CITY BANK, N.A.,
SUCCESSOR BY MERGER TO PROVIDENT BANK,
Defendants-Appellants.

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_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:05-CV-2191
m 2:05-CV-2189
m 2:05-CV-2178
m 2:05-CV-2177
_________________________
Before SMITH, GARZA and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
This appeal comes to us under the Class Ac-
tion Fairness Act of 2005 (“CAFA”), Pub. L.
109-2, 119 Stat. 4 (2005). We have motions to
decide before briefing is completed on the mer-
its. Because of CAFA’s limitations on the peri-
od of time in which we must rule on the merits
of the appeal, we need to determine whether
that period begins with the filing of the petition
for leave to appeal or, instead, with our order
granting leave to appeal. We conclude that the
time runs from the order.
I.
CAFA includes specialprocedural provisions
to exempt certain class actions from 28 U.S.C.
§ 1447(d), which generally prohibits appellate
review of orders of remand. A new section of
the Judicial Code, id. § 1453, entitled “Removal
of Class Actions,” establishes limited appellate
review of orders granting or denying remand in
class actions, as follows:
(1) In general.SSSection 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 re-
moved if application is made to the court of
appeals not less than 7 days after entry of
the order.
(2) Time period for judgment.SSIf the court
of appeals accepts an appeal under para-
graph (1), the court shall complete all
action on such appeal, including rendering
judgment, not later than 60 days after the
date on which such appeal was filed, unless
an extension is granted under paragraph
(3).
(3) Extension of time period.SSThe court
of appeals may grant an extension of the
60-day period described in paragraph (2)
ifSS
(A) all parties to the proceeding agree
to such extension, for any period of
time; or
(B) such extension is for good cause
shown and in the interests of justice,
for a period not to exceed 10 days.

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(4) Denial of appeal.SSIf a final judgment on
the appeal under paragraph (1) is not issued
before the end of the period described in
paragraph (2), including any extension under
paragraph (3), the appeal shall be denied.
II.
The district court actions in which we have
this consolidated appeal were filed in state
court and were removed to federal court on the
jurisdictional basis of CAFA and federal bank-
ruptcy jurisdiction. On January 25, 2006, the
district court entered an order of remand. On
February 3, some of the defendants (hereinafter
“appellants”) filed in this court a petition for
permission to appeal the remand order.1
On March 6, this panel granted leave to
appeal. On March 7, the clerk of court issued
an expedited briefing schedule.2 Appellants
have filed a motion based on the following
statement: “It is possible that some may assert
that the 60-day period will expire prior to the
expiration of the current briefing schedule;
therefore, appellants seek an emergency order
clarifying the time of the “filing” of the appeal
and granting an extension of time as allowed
by [CAFA].”3 The appellees have refused to
agree to an extension as would be permitted by
§ 1453(c)(3)(A).
III.
The plain language of § 1453(c)(1) and (2)
is that a court of appeals has the option to
“accept” an appeal that is sought under CAFA
from an order granting or denying a motion to
remand to state court. Naturally this indicates
the appeal is discretionary with the court of
appeals, which may reject it by denying the
petition for permission to appeal, in which case
there is (and never was) an appeal in the usual
sense.
By this easy reading, a requested appeal
under CAFA is subject to Federal Rule of Ap-
pellate Procedure 5, which governs (and is en-
titled) “Appeal by Permission.” Importantly,
rule 5(d)(2) says that “[a] notice of appeal
need not be filed. The date when the order
granting permission to appeal is entered serves
as the date of the notice of appeal for calculat-
ing time under these rules.”
1 Plaintiffs argue that the appeal is untimely be-
cause the petition for permission to appeal was filed
9 calendar days after the district court’s order. This
claim is meritless. February 3 is within the
statutory 7-day limit according to the counting
procedure set forth in Federal Rule of Appellate
Procedure 26(a)(2), which “[e]xclude[s] intermedi-
ate Saturdays, Sundays, and legal holidays when the
period is less than 11 days, unless stated in calendar
days.” Accord Amalgamated Transit Union Local
1309, AFL-CIO v. Laidlaw Transit Servs., Inc., 435
F.3d 1140, 1146 (9th Cir. 2006) (reasoning that
“because the statute does not specify the deadline as
calendar days, we construe the seven days as court
days, thereby excluding intermediate weekends and
holidays”) (citing FED. R. APP. P. 26(a)(2)).
2 Under the expedited schedule, appellants’ briefs
are due March 27, appellees’ briefs are due April
10, and appellants’ reply briefs are due April 17.
3 Specifically, appellants request (1) an emer-
gency order declaring that the “‘filing date’” that
starts the 60-day deadline under 28 U.S.C. [§]
1453 began to run on March 6, 2006 and will
expire 60 days thereafter, or May 5, 2006;” (2) in
the alternative, if we deem the “filing date” to be
February 3, that we accelerate the briefing schedule
so that briefing is completed in advance of the 60th
day after February 3, which is April 4; (3) that in
the alternative we extend, by 10 days, the due date
for appellants’ briefs and extend, by the statutorily-
permitted 10 days, the deadline for this court to
render judgment; and (4) that we issue our order by
March 17.

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This subsection leads us to the conclusion
that it is the order granting leave to appeal that
triggers the sixty-day period for a court of ap-
peals to enter judgment. That is the result
reached in a recent, careful opinion, on which
the dissent also relies, in Amalgamated Transit
Union Local 1309, AFL-CIO v. Laidlaw Tran-
sit Servs., Inc., 435 F.3d 1140 (9th Cir. 2006).
That court persuasively concluded that “in
enacting § 1453(c)(1) Congress intended to
mirror the procedures for taking an appeal
pursuant to [28 U.S.C.] § 1292(b).” Id. at
1145. As that court reasoned, it follows that “a
party seeking to appeal under § 1453(c)(1)
must comply with the requirements of [rule] 5.”
Id.
By reference to § 1292(b) and rule 5, the
Ninth Circuit observed that “Congress chose in
the language of the statute to require the filing
of an ‘application,’ the same word used in §
1292(b), not a ‘notice of appeal.’” Id. The
distinction is important: When a party files a
notice of appeal, there is, at that very point in
time, an appeal, albeit one that may later be
subject to dismissal for jurisdictional or pro-
cedural insufficiency. Where, however, a party
“applies” for leave to appeal, or “seeks per-
mission” to do so, there is logically no appeal
until the court vested with the authority to
grant or deny leave has done so.4
One objection the dissent raises to
recognizing the order granting leave to appeal
as the trigger for counting the sixty days is that
by delaying a decision on whether to grant
leave to appeal, a court of appeals might be
able to extend its “consideration” of the case
indefinitely. One device for so doing would be
to entertain full merits briefing (and maybe
even oral argument), then issuing an opinion
or order that either (1) denies leave to appeal
based on an evaluation of the merits of the
class certification issue or (2) grants leave to
appeal and, in the same order or opinion, rules
on the merits. Such a procedure arguably
would circumvent the evident will of Congress
to have CAFA appeals on remand issues
decided on an exceptionally tight schedule.5
The fact is, however, that abuse can occur
under either interpretation of the sixty-day lim-
it. If the period begins with the filing of the
motion for permission to appeal, a court of ap-
peals might choose just to “sit” on the motion
without ever ruling, content in the knowledge
that after sixty days, the appeal will disappear
by operation of law, and the court will never
have to consider the merits.
The better view is to trust the integrity of
the courts of appeals to recognize the Con-
gressional directive to handle CAFA appeals
expeditiously and in good faith. The reading
we adopt allows 60 days (or 70 or more, if ex-
tended) for the court to consider the actual
merits of the certification question, aside from
the issue of whether an appeal is justified in the
4 In this regard, rule 5(d)(1) provides that
“[w]ithin 10 days after entry of the order granting
permission to appeal,” the appellant must pay the
district clerk the required fees. (Emphasis added.)
By way of contrast, when a party files a notice of
appeal where no leave to appeal is required, the fees
must be tendered along with the notice of appeal. In
the former situation, there is no appeal until leave is
granted, so no appellate fee is called for until that
occurs.
5 The Seventh Circuit apparently either often or
always considers the petition for permission to ap-
peal and the merits of the appeal simultaneously.
See, e.g., Phillips v. Ford Motor Co., 435 F.3d
785 (7th Cir. 2006); Schorch v. Hewlett-Packard,
417 F.3d 748 (7th Cir. 2005).

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first place as a discretionary matter.
This reading of the statute provides enough
time for the orderly filing of the briefs, albeit on
a schedule much shorter than that normally
used in federal appeals. It also allows, where
appropriate, time for oral argument. It is not
unreasonable to assume that Congress intended
to permit at least this amount of time to ensure
thorough review of remand issues.
IV.
In summary, we conclude that in a CAFA
appeal under § 1453, the sixty-day period (or
any extended period) in which the court of ap-
peals must render judgment runs from the date
of entry by the court of appeals of an order
granting permission to appeal. Appellants’ mo-
tion for clarification, accordingly, is GRANT-
ED. The motions to extend for ten days the
time to file appellants’ briefs are DENIED. The
motion to extend all deadlines, including the
final date for rendering judgment, is DENIED.
This court retains the statutory authority, how-
ever, sua sponte to extend, for good cause
shown, the date for rendering judgment. The
motion requesting that we rule on the other
motions by March 17 is DENIED as moot.
IT IS SO ORDERED.

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EMILIO M. GARZA, Circuit Judge, dissenting:
Because I conclude that the sixty-day period in which an appellate court must decide a CAFA
appeal begins to run on the date the § 1453(c) appeal is filed, I respectfully dissent.
§ 1453(c)(2) states, “[i]f the court of appeals accepts an appeal under [this subsection], the court
shall complete all action on such appeal . . . not later than 60 days after the date on which such appeal
was filed.” 28 U.S.C. § 1453(c)(2) (emphasis added). The majority reads the statute to state that
all action must be completed not later than sixty days after the appeal was accepted. By using
different words, however, the statute plainly creates a distinction between the acceptance of an appeal
and its filing.
The majority states that Congress intended CAFA appeals to be governed by the same procedures,
including Federal Rule of Appellate Procedure 5, as appeals pursuant to § 1292(b). From that
premise, the majority reasons that, because Rule 5 equates the date of an order granting permission
to appeal with the date of a notice of appeal, courts construing § 1453 should equate the date of an
order granting permission to appeal with the date on which a CAFA appeal was filed. This argument
is problematic for three reasons. First, neither the statute itself nor the legislative history evinces an
intent to have both types of appeals be governed by the same procedures. Indeed, because § 1453(c)
and § 1292(b) use different language to describe the initiation of appeals, courts should be hesitant
to read them in pari materia. Compare § 1453(c) (“[A] court of appeals may accept an appeal from
an order of a district court.”) with § 1292(b) (“The Court of Appeals . . . may . . . permit an appeal
to be taken from such order, if application is made to it within ten days after the entry of the order.”).
Second, CAFA’s appellate deadlines constitute a significant departure from the procedures that
govern § 1292(b) appeals, which do not require appellate courts to render decisions within a given

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1 Furthermore, the majority’s statement that there is potential for abuse under either interpretation is
misleading. Whenever the sixty-day period begins, the appellate court can choose to drag its feet and allow
the period to lapse. There is a unique potential for abuse, however, when the sixty-day period begins on the
date the appeal is accepted because a circuit court could delay ruling on a CAFA appeal for months. Congress
(continued...)
10
time frame. Thus, even if Congress intended the two types of appeals to be governed by similar
procedures as a general matter, Congress’s manifest intent to have CAFA appeals decided more
quickly than ordinary interlocutory appeals suggests that courts ought not look to § 1292(b)
procedures for guidance as to how to calculate time for purposes of CAFA appeals. Finally, Rule
5(d)(2) explains how courts should calculate time “under these rules.” It does not govern the time
tables in § 1453(e) or any other independent statutory provision. It is perfectly consistent, therefore,
to conclude both that CAFA appeals are subject to Rule 5 and that the sixty-day period begins on the
date the petition for permission to appeal is filed.
The majority ignores the indicator of legislative intent in the congressional record. In support of
amendments agreed to by several senators, Senator Dodd introduced a report explaining that CAFA
“[e]stablishes tight deadlines for completion of any appeals so that no case can be delayed more than
77 days.” 151 Cong. Rec. S1076-01, 1078-79 (2005). The Ninth Circuit concluded that this
seventy-seven-day period “presumably consist[s] of seven days to file an appeal, 60 days to decide
the merits of the appeal, and a possible 10-day extension of time for good cause.” Amalgamated
Transit Union Local v. Laidlaw Transit Serv., Inc., 435 F.3d 1140, 1144 (9th Cir. 2006). Under the
majority’s interpretation of the statute, a typical CAFA appeal in this circuit would likely stretch
beyond that seventy-seven day limit.
Finally, the majority misapprehends the significance of the loophole created when the sixty-day
period begins to run only when the order granting the petition for permission to appeal is filed.1 The

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1(...continued)
manifested a preference for having no review on the merits over making the parties wait indefinitely while a
court considers the issues. Interpreting the statute as the majority does allows appellate courts to ignore that
preference.
11
question is not whether courts can trust themselves not to make an end-run around the statutorily
imposed deadlines. The question is whether Congress, in imposing strict deadlines for CAFA appeals,
is likely to have intended a scheme that includes a simple way to evade those deadlines altogether.
The statutory language, the congressional record, and the conclusion that Congress did not intend
to impose a statutory timetable that could be easily circumvented, all demonstrate that the sixty-day
period should begin to run on the date the petition for permission to appeal is filed, not on the date
that petition is granted. Accordingly, I respectfully dissent.

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