## Facts

- Quinten Spivey filed a putative class action in Illinois state court against Vertrue, Inc., a marketer offering discount programs.
- Spivey alleged that Vertrue submitted unauthorized charges to consumers’ credit cards through 22 programs and sought relief for a class of affected cardholders.
- Vertrue removed the case to federal court under CAFA, relying on 28 U.S.C. § 1453 and CAFA’s jurisdictional grant in 28 U.S.C. § 1332(d).
- Spivey moved to remand, arguing the case did not satisfy CAFA’s jurisdictional requirements, including the requirement that the amount in controversy exceed $5 million.
- On April 8, 2008, the district court ordered the case remanded to state court.
- On April 18, 2008, Vertrue filed a petition in the Seventh Circuit seeking permission to appeal the remand order under 28 U.S.C. § 1453(c)(1). Vertrue had mailed the petition earlier, but it was “filed” on April 18 under the appellate filing rules.
- Spivey argued the Seventh Circuit lacked jurisdiction because § 1453(c)(1) says an application must be made “not less than 7 days after” entry of the remand order, and (Spivey contended) Congress must have meant “not more than 7 days” or “not later than 7 days.”

## Issues

1. Whether a petition for permission to appeal a CAFA remand order, filed 10 days after entry of the remand order, is timely under 28 U.S.C. § 1453(c)(1)’s requirement that an application be made “not less than 7 days after entry of the order.”
2. If § 1453(c)(1) is read as written (a minimum waiting period), whether any outer time limit applies to prevent an indefinite window for filing.
3. If the petition is timely and the court has authority to act, whether the court of appeals should exercise its discretion to accept the appeal from the remand order.

## Decision

- The court held Vertrue’s petition was timely under the statute’s text because a filing 10 days after April 8 is “not less than 7 days after” April 8.
- The court declined to rewrite § 1453(c)(1) to impose a 7-day deadline, even if the wording seemed unusual for an appeal provision.
- The court explained that although § 1453(c)(1) does not set a latest filing date, the Federal Rules of Appellate Procedure supply an outer limit: under Fed. R. App. P. 5(a)(2) (incorporating Rule 4’s timing), the petition must be filed within the ordinary civil-appeal time, effectively 30 days.
- Because the petition was filed within that rules-based 30-day period and after the statute’s 7-day minimum, the court had authority to consider the request.
- Exercising its discretion under CAFA’s permissive appeal mechanism, the Seventh Circuit denied permission to appeal, leaving the district court’s remand order in place.

## Legal Principles

- Statutory timing language is applied as written when it is grammatically clear and workable; a court does not replace “not less than” with “not more than” based solely on speculation about legislative intent.
- Under 28 U.S.C. § 1453(c)(1), “not less than 7 days after entry of the order” establishes an earliest permissible filing date for a CAFA remand-appeal application, not a 7-day deadline.
- When a statute creating a discretionary appeal does not specify a maximum filing time, the Federal Rules of Appellate Procedure can supply the default outer limit through Fed. R. App. P. 5(a)(2) and Rule 4 (generally 30 days in a civil case).
- CAFA remand-order review under § 1453(c) is discretionary (“may accept an appeal”); even with a timely petition, the court of appeals may deny permission to appeal.
- In the CAFA removal context, the amount-in-controversy requirement functions as a pleading requirement at the removal stage rather than a demand for full proof before jurisdiction can attach.

## Conclusion

The Seventh Circuit held that § 1453(c)(1) means what it says: a party seeking permission to appeal a CAFA remand order must wait at least seven days after the remand order, and a petition filed on the tenth day is timely. Any outer time limit comes from the appellate rules (generally 30 days), not by rewriting the statute. Although the court had authority to consider the request, it denied permission to appeal and allowed the remand to stand.


Spivey v. Vertrue, Inc., 528 F.3d 982 (2008)