February 7, 2005
LAW: Rocket Docket
There are a number of noteworthy features to Senate Bill No. 5, the Class Action Fairness Act of 2005, which was recently voted out of the Judiciary Committee to go to the full Senate. One that I'm sure the federal appeals courts will hate is this one, permitting appellate review of orders remanding certain class actions to state court:
`(c) REVIEW OF REMAND ORDERS-
`(1) IN GENERAL- 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.
`(2) TIME PERIOD FOR JUDGMENT- If the court of appeals accepts an appeal under paragraph (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- The court of appeals may grant an extension of the 60-day period described in paragraph (2) if--
`(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.
`(4) DENIAL OF APPEAL- If 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.
Now, there's an escape hatch here - the court can get the parties to consent to a saner schedule for briefing and argument - but if the plaintiffs are in the mood to be obstructionist (defendants won't have any such incentive, given the provision in subpart (d) that says they lose if the court doesn't move fast enough), as is more likely to happen in complex tort cases with multiple plaintiffs' firms jockeying for advantage, the court could find itself having to get two sets of briefs, review them, maybe hold argument, and render a decision all inside of two months, a schedule that's miles from the usual pace at which federal appeals courts work. (One result is that I assume most courts will routinely decide cases without oral argument if there's no extension of time).
Looks to me like the key word is "may." Courts of appeals undoubtedly will not accept such appeals routinely. I haven't checked what the grant/deny rates are on petitions for permission to appeal under 1292(b), another permissive appeal, but I suspect those petitions are regularly denied.
Sheesh! Now that football's over, shouldn't we be talking baseball instead of appellate jurisdiction?
It's more like appeals of class certification orders under Rule 23(f), as to which the appellate courts have been pretty generous in agreeing to hear them (especially Seventh Circuit panels with Judge Easterbrook, who loves this stuff), except for the Second Circuit. As with 23(f), some courts may particularly try to decide some of the recurring issues sooner rather than later to give guidance.