Ieg Shipman; Sharon K. Harris; Fabis Order Horton Iii; Philip Bingham v. Laidlaw Transit Services, Inc.; First Transit, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 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; No. 05-56567
TERRENCE SANDIDGE; KUNIYUKI D.C. No.
 KASHIUAGI; GWENAIDA COLE; LELA CV-05-01199-IEG
SHIPMAN; SHARON K. HARRIS; FABIS
ORDER HORTON III; PHILIP BINGHAM,
Plaintiffs-Appellants,
v.
LAIDLAW TRANSIT SERVICES, INC.;
FIRST TRANSIT, INC.,
Defendants-Appellees. 
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Filed January 26, 2006
Before: Alfred T. Goodwin, A. Wallace Tashima and
Raymond C. Fisher, Circuit Judges.
COUNSEL
John L. Anderson and Scott M. De Nardo, San Francisco,
California, for the plaintiffs-appellants.
1085

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John C. Wynne and Vivian W. Schultz, San Diego, Califor-
nia, for defendant-appellee, First Transit Services, Inc.
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 per-
fecting 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, 384 P.2d 158 (Cal. 1963), on
behalf of other employees in addition to the 15 named plain-
tiffs. On June 9, 2005, defendants removed the action to the
United States District Court for the Southern District of Cali-
fornia 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 jurisdic-
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tion 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 Fed-
eral 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 sub-
section is only one sentence long, parsing its language is a
much more lengthy undertaking. The clear purpose of the pro-
vision 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 proce-
dural requirements are met. It is in defining this proper proce-
dure that the statute becomes much less pellucid.
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Section 1453(c)(1) provides:
Section 1447 shall apply to any removal of a case
under this section, except that notwithstanding sec-
tion 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 ser-
vice on all other parties to the district-court action.
(2) The petition must be filed within the time speci-
128 U.S.C. § 1447(d) provides:
An order remanding a case to the State court from which it was
removed is not reviewable on appeal or otherwise, except that an
order remanding a case to the State court from which it was
removed pursuant to section 1443 of this title shall be reviewable
by appeal or otherwise.
2In Bush v. Cheaptickets, Inc., 425 F.3d 683 (9th Cir. 2005), appellant
followed FRAP 5 when initiating the appeal. See also Bush v. Cheap-
tickets, Inc., No. 05-80052 (9th Cir. 2005). Because we did not discuss the
applicability of the rule in that case, Bush is not controlling authority on
the issue of whether FRAP 5 governs appeals under § 1453(c)(1). See
Sakamoto v. Duty Free Shoppers, Ltd., 764 F.2d 1285, 1288 (9th Cir.
1985) (“Such unstated assumptions on non-litigated issues are not prece-
dential holdings binding future decisions.”).
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fied 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 stat-
ute 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, exclu-
sive 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 ini-
tiation 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 provi-
sion allowing for discretionary appeals, 28 U.S.C. § 1292(b),
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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 permis-
sion 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 ref-
erences 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
3Similar language is found in 28 U.S.C. § 1292(d)(1) and (d)(2), as well
as in Federal Rule of Civil Procedure 23(f), which all allow for the taking
of interlocutory, discretionary appeals.
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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 fed-
eral court orders remanding cases to state courts[; i]f a defen-
dant 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 specifi-
cally intended FRAP 5 to govern the initiation of these discre-
tionary appeals, and there are, in fact, statements that suggest
the opposite. The Senate Report, in discussing the time limita-
tions on an appeal under § 1453(c)(1), states that “parties
must file a notice of appeal within seven days after entry of
a remand order.” S. Rep. 109-14, at 49 (2005), reprinted in
2005 U.S.C.C.A.N. 3, 46 (emphasis added). In addition, the
record contains a statement that the appeal provisions would
allow for no more than 77 days to elapse while a remand
order is being appealed, presumably consisting 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,
unless all parties agree to a lengthier extension. See 151 Cong.
Rec. S1076-01, 1078-79 (2005); 28 U.S.C. § 1453(c)(1), (2)
and (3). The 77-day limit does not square with application of
FRAP 5: under that rule, there is no appeal until the petition
for permission is granted, and the entry of the order granting
permission serves as the notice of appeal for all timing issues.
See Fed. R. App. P. 5(a)(1), (d)(2); see also Bush, 425 F.3d
at 685 (calculating 60-day deadline for decision on merits of
§ 1453(c)(1) appeal from date appeal was accepted). The cal-
culation in the legislative history therefore does not account
for the time under FRAP 5 when an application would be
pending in the court of appeals, before it is granted and the
60-day deadline for a decision on the merits begins to run.
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The congressional record instead is more consistent with an
understanding that a notice of appeal would be filed, which
presumably would start the 60-day period immediately.
Despite this ambiguity, we conclude that the statute and its
history show that Congress intended to create an appeal that
is within the court of appeals’ discretion. In addition, Con-
gress 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,” and further required that the application be
“made to the court of appeals,” as is the case with a § 1292(b)
petition under FRAP 5, whereas a notice of appeal is filed in
the district court. Given this legislative history and these simi-
larities, we conclude that in enacting § 1453(c)(1) Congress
intended to mirror the procedures for taking an appeal pursu-
ant to § 1292(b). See EEOC v. Luce, Forward, Hamilton &
Scripps, 345 F.3d 742, 751 (9th Cir. 2003) (en banc) (“[W]e
must assume that Congress is aware of existing law when it
passes legislation.”). Accordingly, we hold that a party seek-
ing to appeal under § 1453(c)(1) must comply with the
requirements of FRAP 5.
III. The Statutory Deadline for Filing a Petition for
Permission to Appeal
Plaintiffs did not initially comply with the requirements of
FRAP 5 by filing a petition for permission to appeal in this
court; instead, they filed a notice of appeal in the district
court. It was not until after First Transit moved to dismiss the
appeal that plaintiffs filed their petition. This passage of time
brings us to the next procedural issue: the deadline for filing
a petition for permission to take an appeal under § 1453(c)(1).
If one quickly glances at the statute, one might think that,
like most other filing deadlines Congress creates, the petition
must be filed within a week of the district court’s order. Upon
closer reading, however, we discover that the statute actually
provides that the application must be “made to the court of
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appeals not less than 7 days after entry of the order.” 28
U.S.C. § 1453(c)(1) (emphasis added). In other words, as we
noted in Bush, 425 F.3d at 685, the statute as written creates
a waiting period of seven days before which an appeal is too
early, with no upper limit to when an appeal ultimately may
be filed.
The Tenth Circuit in Pritchett v. Office Depot, Inc., 420
F.3d 1090, 1093 n.2 (10th Cir. 2005), concluded that the stat-
ute contains a “typographical error,” and the word “less”
should be read as “more,” thereby avoiding “a result demon-
strably at odds with the intentions of its drafters.” Id. (quoting
United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989)).
In Bush, we stated that we did not need to resolve the timing
issue because in that case the petition for permission to appeal
was filed on the seventh day and therefore was not filed either
less or more than seven days after the remand order. See
Bush, 425 F.3d at 685. Here, plaintiffs’ petition for permis-
sion to appeal was filed 43 days after the district court’s order
was entered, and we must, therefore, address the timing issue.4
When reviewing the language of a statute, our purpose is
always to discern the intent of Congress. Northwest Forest
Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996).
As is oft said, the plain language of the statute is usually the
best indication of the drafters’ intent. See, e.g., Church of
Scientology v. U.S. Dep’t of Justice, 612 F.2d 417, 421-22
(9th Cir. 1979). However, even where the plain language
4We note that even if plaintiffs’ notice of appeal filed in the district
court had otherwise complied with FRAP 5, we would still be required to
resolve the timeliness issue because the notice of appeal was filed only six
calendar days after entry of the district court’s order on the docket. See 28
U.S.C. § 1453(c)(1) (providing that application must be made “not less
than 7 days after entry of the order”). Moreover, pursuant to FRAP
26(a)(2), the seventh day for filing purposes was actually October 17,
2005, after the Columbus Day holiday and the weekend days are excluded,
making the notice of appeal several more days premature under a literal
reading of the statute.
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appears to settle the question, we may nonetheless look to the
legislative history to determine whether there is clearly
expressed legislative intention contrary to that language that
overcomes the strong presumption that Congress has
expressed its intent in the language it chose. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987).
We see no logical purpose attained by requiring a party to
wait seven days before seeking to appeal an order granting or
denying a motion to remand, and then allowing that party to
seek appellate review at any time in the future after the period
has passed. That result is entirely illogical. Not surprisingly,
the legislative history shows that the statute was intended to
create a time limit for appeal, specifically to require that the
party seeking to appeal do so not more than seven days after
the district court’s order. See S. Rep. 109-14, at 49 (2005),
reprinted in 2005 U.S.C.C.A.N. 3, 46 (“New subsection
1453(c) . . . also imposes time limits. Specifically, parties
must file a notice of appeal within seven days after entry of
a remand order.”) (emphasis added).
We remain somewhat troubled that, in contrast to most stat-
utory construction cases where we are usually asked to con-
strue 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. We
nonetheless agree with the Tenth Circuit, the only other cir-
cuit to address this issue, that there is no apparent logical rea-
son for the choice of the word “less” in the statute, use of the
word “less” is, in fact, illogical and contrary to the stated pur-
pose of the provision, and the statute should therefore be read
to require that an application to appeal under § 1453(c)(1)
must be filed— in accordance with the requirements of FRAP
5— not more than 7 days after the district court’s order. See
Pritchett, 420 F.3d at 1093 n.2. Moreover, because the statute
does not specify the deadline as calendar days, we construe
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the seven days as court days, thereby excluding intermediate
weekends and holidays. See Fed. R. App. P. 26(a)(2).5
IV. Application to This Appeal
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 dead-
line for seeking to appeal to the opposite of what the plain
language of the statute says. Under our interpretation, plain-
tiffs’ timely notice of appeal is ineffectual and their subse-
quent petition for permission to appeal was filed too late. To
avoid the serious unfairness and potential due process viola-
tion that applying our holdings to this case might raise, we
exercise our authority under FRAP 2 to suspend for good
cause the requirements of FRAP 5(a)(1), (b)(1) and (c) in this
case, and construe plaintiffs’ timely notice of appeal and
untimely petition for permission to appeal as together consti-
tuting one timely and proper petition for permission to appeal.
As the Supreme Court has recently clarified in Eberhart v.
United States, 126 S. Ct. 403, 404-05 (2005) (per curiam),
and Kontrick v. Ryan, 540 U.S. 443, 452-53 (2004), claim-
processing rules of court, such as FRAP 5(a)(1), (b)(1) and
(c), are not “jurisdictional.” See Kontrick, 540 U.S. at 453
(“[I]t is axiomatic that [procedural rules adopted by the
courts] do not create or withdraw federal jurisdiction.”) (inter-
nal quotation marks omitted). In addition, in this case our duty
to dismiss for failure to comply with these particular rules is
not mandatory, given our authority to suspend the rules for
good cause. See Fed . R. App. P. 2; cf. Eberhart, 126 S. Ct.
5As with the issue of the applicability of FRAP 5, see supra, n.2, our
decision in Bush, 425 F.3d at 685, appears to have assumed without dis-
cussion that the deadline for filing a petition for permission to appeal is
seven calendar days, which is not supported by the language of the statute.
We therefore do not consider Bush controlling authority on the issue of
whether intermediate holidays and weekends are excluded.
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at 406 (describing as “mandatory” a court’s duty to dismiss an
untimely appeal when untimeliness is raised by the opposing
party). We emphasize that we are not improperly extending
the time for filing a petition for permission to appeal, because
the “petition,” as we construe it, was filed not more than
seven days after entry of the district court’s order. Rather, we
are waiving the requirements that the timely petition filed on
October 11, 2005, be filed in this court, that it explain the
details of the appeal, and that plaintiffs file the proper number
of copies.
To the extent the cases relied on by First Transit in its
motion to dismiss are still good law after Eberhart and
Kontrick, they are either inapposite or not controlling. In
Stone v. Heckler, 722 F.2d 464 (9th Cir. 1983), the sole deci-
sion of this court First Transit cites, we merely noted that the
government had not filed a petition for permission to appeal,
at any time, and that therefore we had no jurisdiction to
review its appeal under § 1292(b). See id. at 466. It is not
clear that the government had even attempted to invoke our
jurisdiction under § 1292(b), and we went on to conclude that
jurisdiction existed under 28 U.S.C. § 1291 as an appeal from
a final order. See id. at 466-67. Thus, reliance on Stone for a
jurisdictional rule that would prevent us in this case from con-
struing plaintiffs’ notice of appeal in conjunction with their
later filing as a timely and proper petition for permission to
appeal is simply unwarranted, even if the Supreme Court had
not recently clarified the “non-jurisdictional” nature of the
appellate rules.
V. Conclusion
We construe the timely notice of appeal and the late peti-
tion for permission to appeal as one timely petition satisfying
the requirements of FRAP 5. First Transit’s motion to dismiss
is denied. Appellees may file an answer in opposition to the
petition within 7 days after the filing date of this order. See
Fed. R. App. P. 5(b)(2).
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The summary, which does not constitute a part of the opinion of the court, is copyrighted
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