Amalgamated Transit Union v. Laidlaw Transit Services, Inc. ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMALGAMATED TRANSIT UNION 
LOCAL 1309, AFL-CIO; SELMA
No. 05-56567
SHACKLEFORD; GREGORY PASSMORE;
RONALD G. DUNCAN; TIMOTHY D.C. No.
THURMANN; SAMUEL J. FRANK; CV 05-1199 IEG
ALEXANDER BRADLEY; MICHELE L. SD Cal.
BOSWELL; JOHN A. TAYLOR; ORDER
TERRENCE SANDIDGE; KUNIYUKI
KASHIUAGI; GWENAIDA COLE; LELA  AMENDING
DISSENT FROM
SHIPMAN; SHARON K. HARRIS; FABIS THE DENIAL OF
HORTON III; PHILIP BINGHAM, REHEARING
Plaintiffs-Appellants, EN BANC AND
v. ORDER AND
AMENDED
LAIDLAW TRANSIT SERVICES, INC.;
DISSENT
FIRST TRANSIT, INC.,
Defendants-Appellees.

Filed May 22, 2006
Amended May 31, 2006
Before: Alfred T. Goodwin, A. Wallace Tashima, and
Raymond C. Fisher, Circuit Judges.
Order;
Dissent by Judge Bybee
ORDER
The dissent from the denial of rehearing en banc, filed on
May 22, 2006, is amended as follows:
5893
5894 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
1. In the dissent from the denial of rehearing en banc, slip
opinion page 5584, lines 2-3: replace “the very same day that”
with “ten days after”.
2. In the dissent from the denial of rehearing en banc, slip
opinion page 5584, lines 9-12: replace “151 CONG. REC.
H5598 (daily ed. June 30, 2005) (stating that the President
notified the Clerk of the House that he signed the CAFA into
law on February 28, 2005)” with “http://www.whitehouse.
gov/news/releases/2005/02/20050218-12.html (stating that the
President signed CAFA into law on February 18, 2005)”.
ORDER
A judge of the court called for a vote on whether to rehear
the matter en banc. On such vote, a majority of the non-
recused active judges failed to vote in favor of en banc rehear-
ing.1 But a small minority of active judges has dissented from
the majority’s denial of en banc rehearing.
As we stated in our initial Order (the “Order”), when we
interpret a statute, “our purpose is always to discern the intent
of Congress.” Amalgamated Transit Union Local 1309 v.
Laidlaw Transit Serv., Inc., 435 F.3d 1140, 1146 (9th Cir.
2006) (citation omitted). And in pursuing that end, we recog-
nized the Supreme Court’s teaching that there is a “strong pre-
sumption that Congress has expressed its intent in the
language it chose.” Id. (citing INS v. Cardoza-Fonseca, 480
U.S. 421, 432 n.12 (1987). The dissent from the denial of
rehearing en banc (the “dissent”), however, would turn that
presumption into an irrebuttable one. It would do so by ignor-
ing the substantial body of both Supreme Court and Circuit
case law on which the Order’s interpretation of 28 U.S.C.
1
When an en banc call is rejected, as it was in this case, “the panel shall
resume control of the case and no further en banc action is required.”
Ninth Cir. Gen. Order 5.5c.
AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5895
§ 1453(c) is grounded. The dissent pretends that the entire
office of statutory interpretation is comprehended within the
plain meaning rule.2 But the law, plainly, is not as the dissent
would have it.
A quarter century ago, we recognized that the plain mean-
ing rule:
does not require a court to operate under an artifi-
cially induced sense of amnesia about the purpose of
legislation, or to turn a blind eye towards significant
evidence of Congressional intent in the legislative
history. . . . [I]t is no talismanic invocation of an
exclusively privileged status for apparently unam-
biguous statutory language. Rather, it is a recogni-
tion of the practical principle that evidence is
sometimes so good in the first place to which one
turns that it is unnecessary to look further.
Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 871 (9th
Cir. 1981). This rule is consistent with the general principle
of statutory construction recently restated by the Supreme
Court:
Th[e] canons [of statutory construction] are tools
designed to help courts better determine what Con-
gress intended, not to lead courts to interpret the law
contrary to that intent. Chickasaw Nation v. United
States, 534 U.S. 84, 94 (2001) (noting that “canons
are not mandatory rules” but guides “designed to
help judges determine the Legislature’s intent,” and
that “other circumstances evidencing congressional
intent can overcome their force”).
2
It admits of only three narrow “exceptions” to the plain meaning rule.
Dissent at 5902-5903. It then spends the next five pages knocking down
these straw men. See id. at 5902-5907.
5896 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
Scheidler v. Nat’l Org. of Women, Inc., 126 S. Ct. 1264,
1273-74 (2006).
Even in Carson Harbor Village, Ltd. v. Unocal Corp., 270
F.3d 863 (9th Cir. 2001) (en banc), a case relied on by the dis-
sent to support its position, see dissent at 5899, we plainly
stated the controlling proposition here, which the dissent
strives mightily to ignore: “We will resort to legislative his-
tory, even where the plain language is unambiguous, ‘where
the legislative history clearly indicates that Congress meant
something other than what it said.’ ” Id. at 877 (quoting Perl-
man v. Catapult Entm’t, Inc. (In re Catapult Entm’t, Inc.), 165
F.3d 747, 753 (9th Cir. 1999)).3
Finally, the dissent asserts that we “justified [our] decision
by claiming that the statute was ‘illogical’.” Dissent at 5901.
This is a misreading of our Order. We did not point out the
illogic of the statute to justify our decision, but as further evi-
dence in our search for Congress’ intent. The dissent does not
even acknowledge the primary purpose of statutory interpreta-
tion — to ascertain and to effectuate the intent of Congress —
other than to scoff at it. Dissent at 5906 (“If Congress
intended something different, let Congress fix it.”). The dis-
sent would woodenly apply the plain meaning rule to the
exclusion of all other rules of statutory interpretation. But the
dissent’s unduly narrow view of the office of statutory inter-
pretation comports with neither the teaching of the Supreme
Court nor the law of our Circuit.
The sua sponte call for en banc rehearing is denied.
3
The dissent does quote a sentence to the same effect from Am. Tobacco
Co. v. Patterson, 456 U.S. 63, 75 (1982) (“Going behind the plain lan-
guage of a statute in search of a possibly contrary congressional intent is
a step to be taken cautiously even under the best of circumstances.”), dis-
sent at 5900, but ignores its teaching in its ensuing discussion.
AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5897
BYBEE, Circuit Judge, with whom Judges KOZINSKI,
O’SCANNLAIN, RYMER, CALLAHAN, and BEA join, dis-
senting from the denial of rehearing en banc:
Is less more? To lawyers, unlike philosophers, the question
may appear facetious, but the answer has real-life implica-
tions. Section 5(a) of the Class Action Fairness Act of 2005
(“CAFA”), Pub. L. No. 109-2, § 5(a), 119 Stat. 4, 12-13,
creates 28 U.S.C. § 1453(c)(1), which provides for a permis-
sive appeal when the district court refuses to accept a class
action removed from state court. See Bush v. Cheaptickets,
Inc., 425 F.3d 683, 685 (9th Cir. 2005). Specifically, section
1453(c)(1) provides:
[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) (emphasis added). Despite the clarity
of this language, the panel announced that it would read the
phrase “not less than 7 days” to mean “not more than 7 days.”
Amalgamated Transit Union Local 1309 v. Laidlaw Transit
Servs., Inc., 435 F.3d 1140, 1145-46 (9th Cir. 2006). As a
result, the appellants’ application, filed 43 days after the dis-
trict court’s order, was untimely.
The court now follows the misguided approach of the
Tenth Circuit, which has announced that it too will read the
phrase “not less than 7 days” as if it had been written “not
more than 7 days.” See Pritchett v. Office Depot, Inc., 420
F.3d 1090, 1093 n.2 (10th Cir. 2005). I dissent from our
refusal to rehear this case en banc because “I am convinced
the parade is marching in the wrong direction.” United States
v. Smith, 440 F.2d 521, 527 (7th Cir. 1971) (Stevens, J., dis-
senting). The Republic will certainly survive this modest, but
5898 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
dramatic, emendation of the United States Code; I am not so
sanguine that in the long term it can stand this kind of abuse
of our judicial power.
I
Plaintiffs-appellants, Amalgamated Transit Union Local
1309 and 15 individuals, filed suit against defendants-
appellees Laidlaw Transit Services, Inc. and First Transit, Inc.
in the San Diego County Superior Court. The appellants are
current and former employees of the appellees and allege that
the appellees violated California’s meal and rest period laws.
On June 9, 2005, appellees removed the action to the United
States District Court for the Southern District of California,
pursuant to 28 U.S.C. § 1446. Appellants moved to remand
the action to state court. On October 5, 2005, the district court
entered an order holding that it had subject matter jurisdiction
over the suit as a class action under 28 U.S.C. §§ 1332(d)
(1)(B) and (d)(2)(A) and denying the motion to remand.
The appellants filed a petition for permission to appeal to
this court 43 days after the district court’s order denying
remand, a period that was, plainly, “not less than 7 days after
entry of the [district court’s] order.” 28 U.S.C. § 1453(c)(1).
Nevertheless, the panel found appellants’ petition untimely.
The panel declared section 1453(c)(1) “entirely illogical”
because “[section 1453(c)(1)] as written creates a waiting
period of seven days before which an appeal is too early.”
Amalgamated, 435 F.3d at 1145. Though “troubled that, in
contrast to most statutory construction cases where we are
usually asked to construe 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 oppo-
site meaning,” the panel did just that. Id. at 1146. The panel’s
confession was forthright:
We have construed the statute to require a procedural
framework that is not readily apparent from the stat-
AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5899
utory text or its legislative history, and have changed
the statutory deadline for seeking to appeal to the
opposite of what the plain language of the statute
says. Under our interpretation, plaintiffs’ timely
notice of appeal is ineffectual and their subsequent
petition for permission to appeal was filed too late.
Id.1 Thus, the panel declared, a statute that reads “not less than
7 days” must henceforth be read to mean “not more than 7
days.” Id.; accord Pritchett, 420 F.3d at 1093 n.2.
II
The text of 28 U.S.C. § 1453(c)(1) is unmistakably clear,
and the panel should have applied the statute as written. In its
decision, the panel conceded that the language of section
1453(c)(1) is unambiguous. Amalgamated, 435 F.3d at 1145-
46. Once it recognized that the statute is unambiguous, the
panel should have stopped, for it is a paramount principle of
statutory construction that “ ‘[w]here [a statute’s] language is
plain and admits of no more than one meaning the duty of
interpretation does not arise, and the rules which are to aid
doubtful meanings need no discussion.’ ” Carson Harbor
Vill., Ltd. v. Unocal Corp., 270 F.3d 863, 878 (9th Cir. 2001)
(en banc) (quoting Caminetti v. United States, 242 U.S. 470,
485 (1917)); accord Lamie v. U.S. Tr., 540 U.S. 526, 534
(2004) (noting that “the statute is awkward, and even ungram-
matical; but that does not make it ambiguous”).
1
Although the panel declared the appellants’ petition untimely under
section 1453(c)(1), the panel nevertheless denied the defendants’ motion
to dismiss the petition in order “[t]o avoid the serious unfairness and
potential due process violation that applying our holdings to this case
might raise.” After having determined that Federal Rule of Appellate Pro-
cedure 5 governs petitions filed under section 1453(c)(1), the panel “exer-
cise[d] [its] 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[d]
plaintiffs’ timely notice of appeal and untimely petition for permission to
appeal as together constituting one timely and proper petition for permis-
sion to appeal.” Amalgamated, 435 F.3d at 1146-47.
5900 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
Despite the fact that section 1453(c)(1) is clear and, there-
fore, the duty of interpretation did not arise, the panel never-
theless relied on legislative history to trump the statutory
language. See Amalgamated, 435 F.3d at 1145-46. After find-
ing that the statute itself was not good evidence of Congress’s
intent, the panel simply substituted the legislative history for
the statute itself. But “[g]oing behind the plain language of a
statute in search of a possibly contrary congressional intent is
a step to be taken cautiously even under the best of circum-
stances.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 75
(1982) (internal quotations omitted); see also Lamie, 540 U.S.
at 539 (declaring resort to the legislative history of a facially
clear statute “unnecessary”).
This is troubling enough “under the best of circumstances,”
but even more disturbing is the fact that the report upon which
the panel relied, Senate Report 109-14, was not submitted
until eighteen days after the Senate had passed the bill, eleven
days after the House had passed the bill, and ten days after
that the President signed the bill into law. See S. REP. NO.
109-14, at 49 (2005), reprinted in 2005 U.S.C.C.A.N. 3, 46
(dated February 28, 2005); 151 CONG. REC. H755 (daily ed.
Feb. 17, 2005) (establishing that the House passed the CAFA
on February 17, 2005); 151 CONG. REC. S1249 (daily ed. Feb.
10, 2005) (establishing that the Senate passed the CAFA on
February 10, 2005); http://www.whitehouse.gov/news/
releases/2005/02/20050218-12.html (stating that the President
signed CAFA into law on February 18, 2005). Accordingly,
the panel read a statute to mean the exact opposite of what it
says based on a Senate report that no senator—much less
members of the House or the President—ever saw.2
2
See Heppner v. Alyeska Pipeline Serv. Co., 665 F.2d 868, 871 n.1 (9th
Cir. 1981) (“There is even the possibility that some legislative history is
manufactured for the purpose of misleading the courts as to what most
members of Congress intended to enact.”); United States v. Anderson, 895
F.2d 641, 647 (9th Cir. 1990) (Kozinski, J., dissenting) (“[Legislative] his-
tory is rarely written by the same people who wrote the legislation; it is
AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5901
The panel justified its decision by claiming that the statute
was “illogical.” Amalgamated, 435 F.3d at 1146. However,
the courts’ role is to give effect to statutes as Congress enacts
them; it is not the courts’ role to assess whether a statute is
wise or logical. See United States v. Locke, 471 U.S. 84, 93-
96 (1985). Had I been a member of Congress, or an attorney
reviewing the statute prior to recommending that the President
sign the CAFA, I might have agreed with the panel’s observa-
tion that the statute is “illogical.” We might also think it was
“dumb” and “stupid.” Those labels have no legal meaning
here. We are a court—charged with interpretation, not
legislation—and I know of no “illogicality” doctrine that per-
mits us to change the words in a statute when we think there
is a more logical way that Congress could have written it.
There are, of course, doctrines by which we may deal with
various interpretive dilemmas but, as I discuss in the next sec-
tion, none of our existing exceptions to the plain meaning rule
justifies the panel’s decision.
III
No recognized exception to the plain language rule allows
the panel to redraft 28 U.S.C. § 1453(c)(1) to its liking. There
are three doctrines, of which I am aware, that might justify a
creative interpretation of problematic literal language: the
doctrine of constitutional avoidance, the scrivener’s error
exception, and the absurdity doctrine.
seldom, if ever, even seen by most of the legislators at the time they cast
their votes.”) (citing Hirschey v. FERC, 777 F.2d 1, 7-8 & n.1 (D.C. Cir.
1985) (Scalia, J., concurring)); see also Dan Eggen, Record Shows Sena-
tors’ “Debate” That Wasn’t, WASH. POST, Mar. 29, 2006, at A6 (discuss-
ing 15 pages of “debate” between two senators over the Detainee
Treatment Act that never actually occurred, but was inserted into the Con-
gressional Record minutes before the Senate approved the legislation, and
was subsequently cited to the Supreme Court in the Hamdan case).
5902 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
A
The constitutional avoidance doctrine fails to justify the
panel’s interpretation of section 1453(c)(1). This doctrine
allows a court to deviate from the language of a statute when
giving effect to the statute’s apparent meaning would likely
render the statute unconstitutional. See Pub. Citizen v. U.S.
Dep’t of Justice, 491 U.S. 440, 465-66 (1989) (construing the
Federal Advisory Committee Act narrowly to avoid “formida-
ble constitutional difficulties”); Green v. Bock Laundry Mach.
Co., 490 U.S. 504, 510-11 (1989) (deviating from the plain
language of Federal Rule of Evidence 609 because a plain
reading of the rule would violate the Due Process Clause). In
the instant case, however, no constitutional infirmity stems
from giving effect to the plain language of section 1453(c)(1)
and, thus, the constitutional avoidance doctrine cannot justify
the panel’s decision. Indeed, the principle of constitutional
avoidance cuts in the entirely opposite direction, as the panel
implicitly recognizes when it refuses to apply its own holding
to the case at hand. See n.1 supra.
B
Congress’s use of the term “less,” as opposed to a word that
means the exact opposite, is not a scrivener’s error that this
court may casually correct. The scrivener’s error exception to
the plain meaning rule allows a court to “correct” Congress’s
mistakes only when a statute contains obvious clerical or
typographical errors. See, e.g., U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 462 (1993) (cor-
recting a scrivener’s error of misplaced punctuation marks);
United States v. Coatoam, 245 F.3d 553, 557 (6th Cir. 2001)
(correcting a scrivener’s error that cross-referenced the wrong
subsection of an act); United States v. Scheer, 729 F.2d 164,
169 (2d Cir. 1984) (correcting a scrivener’s error that required
a certificate to be furnished “upon request of the . . . request,”
instead of “upon receipt of the . . . request”); King v. Hous.
Auth., 670 F.2d 952, 954 n.4 (11th Cir. 1982) (correcting a
AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5903
scrivener’s error that cross-referenced the wrong subsection
of the statute).
We cannot declare Congress’s choice of the statutory lan-
guage in 28 U.S.C. § 1453(c)(1) a clerical error simply
because we disagree with the logic of the terms that Congress
used. Although the Tenth Circuit has declared section
1453(c)(1)’s use of the term “less” a “typographical error,”
Pritchett, 420 F.3d at 1093 n.2, it is not at all clear that this
is the case. Section 1453(c)(1) makes perfect sense; it is fully
grammatical and can be understood by people of ordinary
intelligence. That we think Congress might choose a different
word if it decides to redraft the statute hardly means that
someone made a “typographical error” that the court may
blithely correct. “ ‘It is beyond [the Court’s] province to res-
cue Congress from its drafting errors, and to provide for what
we might think . . . is the preferred result.’ ” Lamie, 540 U.S.
at 542 (ellipsis in original) (quoting United States v. Grander-
son, 511 U.S. 39, 68 (1994) (Kennedy, J., concurring)).
C
Finally, section 1453(c)(1), as written, does not produce
any absurdity in the Act. Under the absurdity doctrine, courts
may refuse to give effect to Congress’s chosen words when
applying the plain language of the statute would lead to
patently absurd results. See United States v. Brown, 333 U.S.
18, 27 (1948). For example, if a reading of a statute would
render another section within the statute or within the act
inoperative or contradictory, then the court will try to read the
statute as a whole to make sense. See, e.g., Yates v. Hendon,
541 U.S. 1, 17-18 (2004) (avoiding “absurd results” by refus-
ing to adopt a reading of ERISA that would result in “intoler-
able conflict” between separate titles of the Act) (citation
omitted); Barnhart v. Sigmon Coal Co., 534 U.S. 438, 461-62
(2002) (declining to invoke an exception to the plain language
rule because the plain language of the statute did not contain
“conflicting provisions”); Brown, 333 U.S. at 25-27 (refusing
5904 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
to give effect to the plain language of the statute when doing
so would render the statute unenforceable as to many poten-
tial offenders).
Quite plainly, the absurdity doctrine does not apply here.
Nothing in section 1453(c)(1) renders any part of the Act con-
tradictory or unenforceable. Although the apparent seven-day
waiting period and no-outside-limit-on-when-the-appeal-can-
be-filed provision may seem inconsistent with the tight dead-
lines in the CAFA, the provision does not actually contradict
any other provision in the Act. Furthermore, the section is
capable of enforcement and does not render any provision of
the CAFA superfluous.
Congressionally-imposed deadlines are “inherently arbi-
trary” and are not absurd, even when they may seem irratio-
nal. Locke, 471 U.S. at 94 (quoting United States v. Boyle,
469 U.S. 241, 249 (1984)). The arbitrary deadline at issue in
Locke required mining claimants to file certain applications
“prior to December 31 of each year.” Id. at 87 n.2 (emphasis
added). Although the Court recognized that the wording of the
statue understandably led claimants to believe they could file
the requisite applications on December 31, the Court refused
to second guess the wisdom of the filing deadline that Con-
gress had imposed. Id. at 95. The Court declared that, while
use of the “phrase ‘prior to’ may be clumsy, . . . its meaning
is clear.” Id. at 96. Accordingly, the Court enforced the statute
as written, so that anything filed after December 30 was late.
Id. at 95. Despite confusion that may arise from a filing dead-
line, Congress’s failure to act with foresight regarding the
consequences of the terms it imposes does not justify a court’s
redrafting of the statute. Id.
The panel cannot declare with any certainty that Congress
would never have intended to impose a waiting period before
which filing a petition for permission to appeal is too early.
Although Congress frequently uses the phrase “not more than
AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5905
__ days,”3 it has also used the phrase “not less than ___ days”
in other statutes to create mandatory waiting periods that may
seem “illogical.” See, e.g., 22 U.S.C. § 276c-4 (2000) (requir-
ing the Secretary of State to report to Congress “not less than
180 days after October 28, 1991,” but giving no deadline
before which the Secretary must report); 42 U.S.C.
§ 610(b)(2) (2000) (requiring the Department of Health and
Human Services to wait “not less than 60 days” before issuing
a determination of an appeal but creating no upper limit
before which the Department must render a decision); 42
U.S.C. § 12705(c)(3) (2000) (requiring the Secretary of Hous-
ing and Urban Development to wait “not less than 30 days”
after receiving a submission to render a decision, but creating
no deadline before which the Secretary must render his or her
decision); 49 U.S.C. § 47509(d) (2000) (requiring the Admin-
istrator of the Federal Aviation Administration to report to
Congress “not less than 280 days after August 23, 1994,” but
giving no deadline before which the Administrator must
report to Congress). In light of Congress’s practice of creating
mandatory waiting periods without imposing deadlines before
which filings must be made, we cannot say that Congress’s
decision to do so in section 1453(c)(1) leads to results so
absurd that Congress could not possibly have intended them.
IV
There are real consequences to a court’s well-intentioned
decision to fix Congress’s mistakes. First, if courts are going
to correct whatever they perceive to be Congress’s mistakes,
Congress should lose all confidence that courts will enforce
3
See, e.g., 15 U.S.C. § 6758(e)(2)(B) (declaring that disciplinary action
against an insurance agent or broker is subject to review by NAIC if filed
“not more than 30 days after” notice of action is filed or received); 20
U.S.C. § 7705(d)(2) (stating that the Secretary of Education shall approve
an application filed “not more than 60 days” after deadline, less ten per-
cent reduction in payment); 28 U.S.C. § 2243 (requiring the court to set
a date for hearing on a petition for habeas corpus “not more than five
days” after the writ or order is returned).
5906 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
statutes as written. The panel has construed Congress’s admit-
tedly clear language to mean the precise opposite of what it
says. In so doing, the panel has ignored the deference we must
give to the supremacy of the legislature. See Lamie, 540 U.S.
at 538; Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531,
548 (1987); Locke, 471 U.S. at 95-96. Section 1453(c)(1) is
a validly enacted statute: Congress complied with Article I,
Section 7, and the President signed the bill. Congress should
be able to rely on the courts to give effect to the statute as
enacted, even if Congress thought it would be convenient for
us to correct its apparent mistakes.4
Furthermore, “rescuing” Congress from what the panel
assumes was a mistake forces both the legislative and judicial
branches to deviate from their respective constitutional roles.
See Lamie, 540 U.S. at 542. When courts turn the meaning of
statutes up-side-down, Congress must legislate defensively,
not by enacting statutes in the plainest possible language, but
by enacting statutes in the language that it predicts the courts
will interpret to effectuate its intentions. How can we know
Congress’s intentions except by looking to its public acts?
What if the legislative history is inaccurate? What if some
member of Congress made the change deliberately at the last
moment? What if, as is the case here, the legislative history
did not exist until well after the legislature passed the bill?
What other language could Congress have used to effect that
no interlocutory appeal could be filed under CAFA until
seven days after entry of an order? If Congress intended to do
something different, let Congress fix it.
4
If Congress had added a provision to the CAFA that said, “If any pro-
vision of this Act appears illogical, the courts may correct it,” the provi-
sion would surely violate (and thus revive) the nondelegation doctrine. See
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457 (2001); A.L.A. Schechter
Poultry Corp. v. United States, 295 U.S. 495 (1935); Panama Refining Co.
v. Ryan, 293 U.S. 388 (1935). Even if Congress invited us to correct its
“illogical” acts, we would have to decline the invitation because we cannot
amend acts by our judgments.
AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT 5907
Second, the panel’s decision strips citizens of the ability to
rely on the laws as written. This case is a prime example: The
appellants relied on section 1453(c)(1) and filed in this court
a timely petition for permission to appeal. Yet, despite the
appellants’ well-founded reliance on the statute, the panel
declared the petition untimely. Such a ruling, in light of an
unquestionably clear statute, prevents even the most prudent
citizen from ever being confident that his conduct comports
with the legislature’s laws as the court might choose to
enforce them. The panel’s decision is a trap for citizens (and
their lawyers) who can no longer trust the statute as written
to mean what it plainly says, but must look to our decisions
in every instance for a contrary construction. The United
States Code has traps enough without creating new grounds
for malpractice claims.
Third, and perhaps most importantly, the panel’s decision
undermines our own credibility. If we insist on reading “not
less than 7 days” to mean “not more than 7 days,” why should
anyone reading our opinions trust that he understands them
correctly? If words are so malleable, might we routinely read
our own precedents as saying the opposite of what they
clearly say? May one panel simply rewrite another panel’s
opinion when it thinks the prior opinion is “illogical?” And
where might our creativity lead us with provisions of the Con-
stitution that don’t make as much sense as we would like?5
May we amend even the Constitution at will? If we think that
when Congress says “less” it actually means “more,” we
should not fault anyone who might, as a result, discount other
things that we have written.
5
See, e.g., Michael Stokes Paulsen, Someone Should Have Told Spiro
Agnew, 14 CONST. COMMENT. 245, 245 (1997) (pointing out that Vice Pres-
ident Agnew, as president of the Senate, would have presided at his own
impeachment trial); see also CONSTITUTIONAL STUPIDITIES, CONSTITUTIONAL
TRAGEDIES (William N. Eskridge, Jr. & Sanford Levinson eds., 1998).
5908 AMALGAMATED TRANSIT UNION v. LAIDLAW TRANSIT
*****
We command no army; we hold no purse. The only thing
we have to enforce our judgments is the power of our words.
When those words lose their ordinary meaning—when they
become so elastic that they may mean the opposite of what
they appear to mean—we cede our right to be taken seriously.
Neither Congress, nor the parties, nor the judiciary benefits
from the panel’s decision.
I respectfully dissent from the Court’s failure to rehear this
case en banc and to correct our well-intentioned, but obvious,
error.
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