The court rejected an argument it considered hogwash.

The Seventh Circuit today declined an invitation to correct, judicially, a glaring mistake by Congress.

The appeal involved an attempt to undo a remand of a class action to state court.  The defendant, Vertrue, removed it under the Class Action Fairness Act, but the district court remanded it on the ground that it didn’t satisfy the more than $5 million amount in controversy requirement.  Vertrue petitioned the Seventh Circuit for leave to appeal under CAFA section 1453(c)(1). 

But its lawyer waited to file until April 18, the seventh day (excluding the weekend) after the April 8 entry of the remand order.  Why does that matter?  Well, Blawgletter will tell you.

Section 1453(c)(1) says that "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."  Note the "not less than 7 days" part.

Spivey asked the court to dismiss the petition on the ground that Vertrue missed the deadline.  But, as the court pointed out, "April 18 is ‘not less than 7 days’ — in other words, is more than 6 days — after April 8."  Spivey v. Vertrue, Inc., No. 08-8009, slip op. at 2 (7th Cir. June 11, 2008).  And yet Spivey persisted, citing a bunch of sister circuit decisions holding that "not less than" really means "not more than".  Chief Judge Easterbrook would have none of it:

Spivey’s argument rests not on the statutory text but on the proposition that the law cannot mean what it says. . . . That Congress has written a deadline imprecisely, or even perversely, is not a sufficient reason to disregard the enacted language. . . . Turning ‘less’ into ‘more’ would be a feat more closely associated with mutating commandments on the barn’s wall in Animal Farm than with sincere interpretation.

Id. at 4.  And so the court accepted the appeal.  Reversed.  Ordered remand to the state court because Spivey didn’t rebut Verture’s affidavit putting the amount in controversy at $7 million.

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