In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 08-8009
QUINTEN SPIVEY, individually
and on behalf of a class,
Plaintiff-Respondent,
v.
VERTRUE, INCORPORATED,
Defendant-Petitioner.
____________
Petition for Leave to Appeal from the United States
District Court for the Southern District of Illinois.
No. 07-CV-0779-MJR—Michael J. Reagan, Judge.
____________
SUBMITTED MAY 16, 2008—DECIDED JUNE 11, 2008
____________
Before EASTERBROOK, Chief Judge, and ROVNER and
EVANS, Circuit Judges.
EASTERBROOK, Chief Judge. Quinten Spivey filed suit
in state court, seeking to represent a class of persons
who do business with Vertrue, a marketer that offers
discounts to customers who use its services. Spivey
maintains that Vertrue “systematically” submits unautho-
rized charges. Spivey proposed to represent a class of
persons whose credit cards had been charged without
authorization through 22 of Vertrue’s programs.
Vertrue removed the proceeding to federal court under
28 U.S.C. §1453, a part of the Class Action Fairness Act,
2 No. 08-8009
which allows removal when the class action could have
been commenced initially in federal court under 28 U.S.C.
§1332(d). Spivey moved to remand, contending that one
requirement of §1332(d)—that the amount in controversy
exceed $5 million, see §1332(d)(2)—is unsatisfied. The
district judge agreed and remanded the case. 2008 U.S.
Dist. LEXIS 28730 (S.D. Ill. Apr. 8, 2008). Vertrue has filed
a petition for leave to appeal, a form of review authorized
by §1453(c)(1). Vertrue’s lawyer mailed the petition on
the seventh day after the district court’s remand order,
and the petition reached this court, and so was “filed,” see
Fed. R. App. P. 25(a)(2), on April 18, 2008, the tenth day
after the district court’s order. Spivey contends that this
is too late and that we lack jurisdiction.
Section 1453(c)(1) provides 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.” The petition was timely under this
language. April 18 is “not less than 7 days”—in other
words, is more than 6 days—after April 8. (Weekends
are excluded from 7-day periods by Fed. R. App. P.
26(a)(2), but “not less than 9 days” has the same applica-
tion to these events as “not less than 7 days”.)
Spivey’s argument rests not on the statutory text but on
the proposition that the law cannot mean what it says.
Someone must have set out to write “not more than 7 days”
or “not later than 7 days” or “within 7 days”—because
time limits for appeals always set the last date allowed
for action, rather than the earliest time to file some-
thing—but came up with “not less than 7 days” instead.
No one noticed the gaffe (or the misuse of the word “less”
No. 08-8009 3
when correct diction requires “fewer”) before the stat-
ute was enacted. The garble has attracted considerable
attention by both judges and law reviews, but Congress
has not enacted a technical-corrections bill. See Estate of
Pew v. Cardarelli, 2008 U.S. App. LEXIS 10269 at *6–7 (2d
Cir. May 13, 2008); Morgan v. Gay, 466 F.3d 276, 277 (3d
Cir. 2006); Amalgamated Transit Union v. Laidlaw Transit
Services, Inc., 435 F.3d 1140, 1146 (9th Cir. 2006), rehearing
en banc denied, 448 F.3d 1092 (9th Cir. 2006) (Bybee, J., and
five other judges dissenting); Pritchett v. Office Depot, Inc.,
420 F.3d 1090, 1093 n.2 (10th Cir. 2005); Miedema v. Maytag
Corp., 450 F.3d 1322, 1326 (11th Cir. 2006); David L. Horan,
Appealing Remand Orders Under the Class Action Fairness
Act, 8 J. App. Practice & Process 281 (2006); Adam N.
Steinman, “Less” is “More"? Textualism, Intentionalism, and
a Better Solution to the Class Action Fairness Act’s Appellate
Deadline Riddle, 92 Iowa L. Rev. 1183 (2007).
Pew, Morgan, Laidlaw Transit Services, Pritchett, and
Miedema all say that “less” should be read as “more,”
because the latter word best fits with the norm in appellate
deadlines and the likely goal of the legislature—to com-
pel prompt action that will resolve with dispatch the
question which court will conduct the litigation. Section
1453(c)(2) requires the court of appeals to makes its deci-
sion (if it accepts the appeal) “not later than 60 days after
the date on which such appeal was filed” unless an ex-
tension is granted under another subsection. See Hart v.
FedEx Ground Package System, Inc., 457 F.3d 675 (7th Cir.
2006). There’s not much point in directing the court of
appeals to make a swift decision, if the aggrieved party can
take forever to appeal—and, if “less” really means “less,”
then forever is how much time the party displeased by
the remand can take, as far as §1453(c)(1) is concerned.
4 No. 08-8009
Congress sometimes enacts cooling-off periods, but
§1453(c)(1) lacks the deadline that usually accompanies
such a period. See, e.g., Hallstrom v. Tillamook County,
493 U.S. 20 (1989).
That Congress has written a deadline imprecisely, or
even perversely, is not a sufficient reason to disregard
the enacted language. So the Supreme Court held in Dodd
v. United States, 545 U.S. 353 (2005), and United States v.
Locke, 471 U.S. 84 (1985). See also, e.g., Lamie v. United States
Trustee, 540 U.S. 526, 533–39 (2004). Turning “less” into
“more” would be a feat more closely associated with the
mutating commandments on the barn’s wall in Animal
Farm than with sincere interpretation. (Ludwig Mies van
der Rohe, the architect who designed the courthouse in
which the Seventh Circuit sits, adopted “less is more” as
his motto, but this credo of Bauhaus design did no vio-
lence to any enacted text.)
To the extent that our colleagues in other circuits hold
that a petition filed within seven days of the district
court’s order should be accepted, rather than thrown out
with instructions to submit another once a week has
passed, we concur. Whether a petition filed within a
week after the remand is timely was the question actually
presented in those appeals. An affirmative answer tracks
Fed. R. App. P. 4(a)(2), which says that a premature
notice of appeal remains on file and springs into effect
when the decision becomes appealable. It makes sense to
use the same approach for a premature permission for
leave to appeal.
But to the extent that language in other circuits’ opin-
ions implies that they would deem a petition filed on the
eighth day (or, here, the tenth) jurisdictionally and thus
irreparably late, we do not concur. Even judges who,
No. 08-8009 5
like the dissenters in Locke, think that a statute should
be construed to prevent litigants from being sand-
bagged by misleading language, would not pull the rug
out from under a litigant who relied on the enacted text.
None of the other circuits whose opinions we have cited
dismissed a petition as untimely. Doubtless many Mem-
bers of Congress wanted a short deadline for appeals,
but legislative history can not justify reading a statute to
mean the opposite of what it says. See, e.g., Exxon Mobil
Corp. v. Allapattah Services, Inc., 545 U.S. 546 (2005); In re
Sinclair, 870 F.2d 1340 (7th Cir. 1989). Legislative history
may help disambiguate a cloudy text by showing how
words work in context; it does not permit a judge to turn a
clear text on its head.
Vertrue’s lawyers knew that some courts have read
“less” to mean “more”. They tried to avoid the problem by
straddling the deadline. They mailed the petition on
the seventh day, expecting it to reach the court soon
thereafter. Then if we took “less” to mean “less” the
petition would be accepted even though it had been
mailed on the seventh day; and they submit that if we
take “less” to mean “more” then the mailing should suf-
fice. Spivey says that Rule 25(a)(2), which says that a
notice of appeal or petition for leave to appeal is filed
when received, requires us to ignore the mailing date
and thus prevents Vertrue’s straddle from working.
Perhaps so. But this just illustrates why it would be
foolish, as well as counter-textual, to throw out of court a
petition that is timely under the statute actually enacted.
Whatever scope courts may have to accept petitions or
appeals that meet the legislative objective of prompt filing
(and could be re-filed in a few days agreeably to the
statute’s text), there is none for rejecting a petition or
6 No. 08-8009
appeal that is timely under the enacted law. Litigants and
lawyers always should be safe in relying on a statute’s
actual language.
To the possibility that this gives litigants forever to
appeal, and thus interferes with the objective of ascer-
taining the correct forum as quickly as possible, we say:
No way. The open-ended “not less than 7 days” means
that there is no terminal date for appeal. And the Fed-
eral Rules of Appellate Procedure cover the possibility
that some laws or rules allowing interlocutory appeals
omit deadlines. Rule 5(a)(2) says that, when there is no
other limit, a petition for permission to appeal must be
filed “within the time provided by Rule 4(a) for filing a
notice of appeal.” That time is 30 days. (If the United
States, or a federal officer or agency, is a party, the
limit is 60 days—but then removal would be possible
without regard to the Class Action Fairness Act.) Reading
§1453(c)(1) to mean what it says thus does not authorize
indefinite delay. Although it may allow a party 23 days
more than the authors anticipated, our reading avoids
nasty surprises for litigants who believe—and are en-
titled to believe—that courts will honor the language in
the enrolled bill that the President signs. Vertrue’s peti-
tion is timely.
Vertrue calculated the amount in controversy at more
than $5 million because its billings, for 4 of the 22 programs
in Illinois alone, come to almost $7 million. (An affidavit
to that effect has been filed in the district court.) The
district judge thought this insufficient because Vertrue did
not concede that more than $5 million in charges was
unauthorized. Yet the statute does not make federal
jurisdiction depend on how much the plaintiff is sure to
recover. The question is what amount is “in controversy”.
No. 08-8009 7
See Brill v. Countrywide Home Loans, Inc., 427 F.3d 446
(7th Cir. 2005). The complaint alleges that Spivey’s
credit card was charged without authorization and that
Vertrue’s practices are “common to all Class Members”.
The complaint also alleges that making unauthorized
charges is a standard practice at Vertrue. Spivey’s allega-
tions thus put into “controversy” the propriety of all of
Vertrue’s charges, and the complaint demands refunds
for all unauthorized charges.
Brill lays out the protocol for removals under the
Class Action Fairness Act. The removing party, as the
proponent of federal jurisdiction, bears the burden of
describing how the controversy exceeds $5 million. This
is a pleading requirement, not a demand for proof. Dis-
covery and trial come later. A removing defendant need
not “confess liability in order to show that the contro-
versy exceeds the threshold.” 427 F.3d at 449. “[T]he
removing party’s burden is to show not only what the
stakes of the litigation could be, but also what they are
given the plaintiff’s actual demands. . . . The demonstration
concerns what the plaintiff is claiming (and thus
the amount in controversy between the parties), not
whether plaintiff is likely to win or be awarded every-
thing he seeks.” Ibid. (emphasis in original).
Once the proponent of federal jurisdiction has ex-
plained plausibly how the stakes exceed $5 million, cf. Bell
Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), then the
case belongs in federal court unless it is legally impossible
for the plaintiff to recover that much. See St. Paul Mercury
Indemnity Co. v. Red Cab Co., 303 U.S. 283 (1938); Normand
v. Orkin Exterminating Co., 193 F.3d 908 (7th Cir. 1999);
Gardynski-Leschuck v. Ford Motor Co., 142 F.3d 955 (7th
Cir. 1998). The district judge did not find that recovery of
8 No. 08-8009
more than $5 million is impossible. Instead the judge
said that Vertrue’s failure to admit what portion of all
charges was unauthorized makes it uncertain how high
the judgment (if any) will be. Uncertainty differs from
impossibility, the standard that St. Paul Mercury Indemnity
adopted for determining whether a litigant’s estimate of
the stakes may be rejected.
We grant Vertrue’s petition and accept the appeal.
Vertrue need not file a notice of appeal but must pay
all applicable fees. See Fed. R. App. P. 5(d). The decision
is reversed and the case is remanded for adjudication on
the merits in federal court.
USCA-02-C-0072—6-11-08