State Bar of Wisconsin

Message from the Chair

Susan R. Tyndall, CMT Legal Group

As time came to write my first message as chair of the Appellate Practice Section, the great flood of 2008 arose. Our basement flooded and the streets around our house were closed off by flood waters. We were fortunate to have only minor troubles: a small amount of damage and a week without hot water. We were more fortunate, however, because many neighbors and friends called or even stopped in with offers of help.

The State Bar responded to its members in the same fashion, offering help to lawyers whose homes or offices were damaged. A message board was set up at www.wisbar.org, providing information on small business loans, disaster recovery and other ways to help. To me, this is a primary function of the State Bar, and particularly of our section – to help one another as we practice law together. Our section offers help to appellate practitioners through our message boards, our newsletter and our programs, and I think it does so very successfully.

As our previous chair, Barbara Janaszek of Whyte Hirschboek Dudek, has pointed out, our section is successful because our members take active roles, for example, serving on our committees and speaking at our programs. Barb was instrumental in finding ways for our section members to become more active, and I am fortunate to inherit the chair from her, as it is well-organized and ready to go.

As Barb did, I encourage you to become active in the Appellate Practice Section and to take advantage of the many resources we offer. One way to become active is to accept a pro bono case. While it might require much work, some cases offer an opportunity for oral argument and a chance to burnish those skills.

Another opportunity is to write for this newsletter, De Novo. Whether your proposed article is informative or simply for entertainment, De Novo would welcome it. And since you are an appellate practitioner, it would no doubt be elegantly written.

Our program committee is always looking for new ideas for programs, and would welcome new members interested in organizing programs.  Serving on the program committee has been a wonderful opportunity to meet the some of our judges and to learn, as they give their talks, much more about appellate practice.

Opportunities abound for becoming more active in the Appellate Practice Section. Join us!

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Kudos to Barb Janaszek for Her Leadership During the Past Year

Nancy A. Kopp, Wisconsin Supreme Court Commissioner

Barbara Janaszek

Barbara Janaszek, a shareholder in the Milwaukee office of Whyte Hirschboeck Dudek S.C., recently completed her term as the chair of the Appellate Practice Section. Barb became active in the section during its formative stage when a group of lawyers on the Litigation Section's Appellate Practice Committee began exploring whether they could establish and sustain a free-standing section devoted to this subspecialty of law. She has been a member of the section since day one and a board member for the past five years.

Barb worked very hard as the section's chair during a year in which the section developed several proposed changes to rules governing appellate practice and sponsored a District IV seminar and a State Bar Annual Convention program. She increased membership in the section's committees, was interviewed by the Wisconsin Law Journal for a special issue devoted to appellate law, and spoke at a Milwaukee Bar Association seminar on appellate practice.

Colleen Ball, another former section chair said, " Barb displayed an impressive ability to run an efficient and productive board meeting. She is well-organized and wastes no time in working her way through an agenda." Sue Tyndall, the section's new chair commented, " Barb had an outstanding grasp of the issues and a steady hand at the helm. She kept the section moving forward and really worked hard to integrate section members into section activities and towards potential service on the board. I think her emphasis on 'new blood' was wonderful for the section."

Salud Garcia, the State Bar's staff liaison to the section, commented, " Barb is an exemplary section chair. Running the section takes a lot of work. It certainly takes a lot of time answering my email and phone calls, but Barb managed the section with such grace it seemed effortless."

Salud said, " I know this sounds really boring, but Barb runs a good meeting. The meeting moves along, things get done, and before you know it, the meeting is over. On time even. She's so effective and subtle, it makes me think I wouldn’t want to be her opponent in court." Salud added, " On a personal note, I love hearing Barb talk about how different the practice is for women than it was when she started. I marvel at how tough she and her contemporaries were and are to have persisted during those times."

Many thanks to Barb from the entire section for a job extremely well done.

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Notes from the Clerk’s Office

David R. Schanker, Clerk, Wisconsin Supreme Court/Court of Appeals

Over the past year, the Clerk’s Office has been working with the appellate courts and the Circuit Court Automation Project (CCAP) to develop an appellate e-filing system. A significant first formal step toward this goal was taken on June 19, 2008, when the Court of Appeals filed a petition with the Supreme Court requesting that the Court adopt a new procedural rule that would require attorneys to file an electronic copy of all appellate briefs and no-merit reports.

Under the proposed rule, the filing of an electronic brief or no-merit report will be mandatory for attorneys and optional for the self-represented. The filing of electronic documents will be accomplished using the web-based e-filing system created by CCAP. This e-filing system, which will be governed by a new rule, Wis. Stat. s. 801.17 (effective July 1, 2008), is the same system that attorneys will use for e-filing in the circuit courts. It will automatically associate the electronically filed document with the correct case in the courts’ internal case management system. E-filed documents will then be available on-line to judges, court staff, and the attorneys in the case. The documents will not be publicly accessible. All filed materials (unless confidential or sealed) will be available to the public at the Clerk’s Office in the usual manner. Please note that under the proposed rule, the required electronic copy will be in addition to the paper copies currently required under the appellate rules.

The proposed rule sets forth several requirements for electronic briefs and no-merit reports. First, the electronic versions must be in text-searchable Portable Document Format (PDF). A text-searchable PDF document is converted directly from Word or WordPerfect rather than scanned. Some versions of Word and WordPerfect include a conversion feature. Otherwise, Adobe Acrobat software may be used, and there are a number of other free or inexpensive conversion options available. Second, the brief document must not contain the Appendix. Third, you must e-file your electronic brief on or before the date you file your paper copies – meaning by 5:00 PM on that day. Fourth, the brief will be required to contain a certification that the text of the electronic version of the brief is identical to the text of the paper briefs.

Under the proposed rule, the filing of an electronic version of the appendix is permitted but will not be mandatory. Creating an electronic version of an appendix requires the use of a scanner, and we understand that this level of technology is not available to many attorneys. The requirements for appendices will be slightly different from those for briefs. First, an electronic copy of an appendix must be a PDF image document, which means it is scanned into PDF rather than converted. Second, it cannot be part of the same document as the brief – though of course for the paper copies you will continue to bind them together unless the appendix is particularly large. Third, if the appendix is greater than 250 pages, the electronic version should be split into smaller documents. Fourth, like the brief, you will need to get the electronic appendix filed the same day as the paper copies. And fifth, you must include a certification that content of the electronic appendix is identical to the text of the paper appendix. The proposed rule provides some sample language for that certification.

The benefits of this project are at least three-fold. First, it will aid judicial efficiency; access to electronic briefs will help appellate judges and court staff do their jobs more expeditiously. Second, it’s a small step toward e-filing. Over the next few years, we will be moving toward e-filing on the appellate level, and accomplishing this first step will make the eventual transition easier. Third, it presents the possibility of filing briefs enhanced with internal and external links to cases or statutes cited in the brief.

The Court of Appeals will ask the Supreme Court for an effective date of July 1, 2009 for the proposed rule, though it is expected that the system will be up and running well before then, and we hope that attorneys will begin to use the system on a voluntary basis early in 2009.

The Clerk’s Office looks forward to working with the appellate bar to get this project off the ground as smoothly as possible. As always, your feedback is appreciated at clerk@wicourts.gov.

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In Chambers: Burnie Bridge, Judge, District IV Court of Appeals

Nicholas C. Zales, Zales Law Office

Judge Burnie Bridge

Judge Burnie Bridge is the newest member of the District IV Court of Appeals. Appointed to the court by Governor Jim Doyle in early 2007 to fill out the term of retiring Judge David Deininger, she ran unopposed in the Spring 2008 election and earned her own six-year term that runs through July of 2014. Born in Grand Rapids, MN, a small town of 8,000 people, located 150 miles north of Minneapolis in the heart of Minnesota’s grand resort and recreation areas, Burnie Bridge’s life has taken her to Ohio for college, to Mississippi to work for the ACLU and then on to Wisconsin where she graduated from the U.W. Law School and began to devote her professional life’s work to public service in government.

In addition to her work for the State of Wisconsin, she has been an active leader in groups such as the Legal Association for Women, The Wisconsin Law Foundation and the State Bar of Wisconsin. She has been an instructor at her alma mater, teaching torts, and a mentor in the U.W. law school’s Legal Education Opportunities program.

Extremely bright and personable, Judge Bridge has excellent taste in matters of style and function as evidenced by her tasteful dress and warm and friendly chambers. Even when working on an appeal involving many boxes and thousands of record pages, her chambers still look neat as a pin. In Judge Bridge’s chambers, everything is in its place and her excellent taste is punctuated by flowers from her garden and artwork from her travels. They say an orderly office is a sign of an orderly mind. If so, then Judge Bridge has one of the most orderly minds in the State of Wisconsin.

Growing up in Minnesota

Tell us about your family; where are you from?

“My family was from far northern Minnesota, near Leech Lake. We used to ‘go down’ to Duluth as my family said. My parents grew up in that area. After they graduated from high school, they both joined the Navy. My father was a sailor deployed to the South Pacific and my mother was an airplane mechanic. They were married in their Navy uniforms while on leave. The Navy was their ticket to see the world. I don’t think they would ever have left northern Minnesota had it not been for that opportunity. Like so many of their generation, not only was military service their civic duty, but it was also a very exciting and life-changing opportunity for them to see other parts of the world and meet new people.

When they moved back to Minnesota after the war, they lived under some very hard conditions. My father used a team of workhorses and felled trees while camping out in the winter in order to build a resort which would become my parents’ business. The resort was located several miles outside of Remer, Minnesota, a town of about 100 people, and my parents operated it for several years. It was quite remote, and my parents worked very hard at the business. I came along and three years later my brother Gary was born. My father drove a school bus in order to augment the income from the resort. One of my earliest and most pleasant childhood memories is riding with my father on his rural bus route, where I could sit on the heater up in front with all the “big kids” in the back. I thought that was a really big deal. It was also nice to have that time to spend with my father. Over the years my family moved several times, because my father was always trying to better himself. Without a college education, he really had to scramble. We moved to other parts of Minnesota, to South Dakota, to Ohio and then back to Minnesota again. Except for the moving, which of course I didn’t understand the need for, I have very positive memories of my childhood.”

College in Ohio

Why did you attend Miami University of Ohio?

“It would not have occurred to us that I would go to college. It was something we just did not talk about. We moved to Port Clinton, Ohio, as I began my senior year of high school. My grades were quite good, and a teacher suggested that college might be a possibility for me. So we decided, somewhat on the spur of the moment, that I might be able to go. A friend and I drove down to Miami of Ohio, on a beautiful fall day to take a look around. I loved the Georgian architecture and it looked like a dream campus as far as I could tell. Of course, I don’t know that I ever actually saw another campus. In any event, my friend and I both applied, with no other alternatives in mind, and I was accepted and she was not. Around that time my parents moved back to Minnesota and so I was left there to do my thing. It all worked itself out.

I graduated in 1970 with a degree in English Literature, which was not worth the paper it was printed on in terms of job prospects, and I ended up moving to Minneapolis. I did not know anyone there, but it was the biggest city I could remember from when I was growing up. I took a job as a secretary and moved on to become an assistant at a public relations firm. I was just trying to work my way to a decent living at that point.”

So the Court of Appeals was not on your mind at that time?

“Not in the least. Law school was the furthest thing from my mind. Through a series of events, in 1970 I became aware of and successfully applied for a job as the director of the American Civil Liberties Union in Mississippi. It was an amazing experience for me to be there at that time in history. It was not very far removed from the turmoil of the 1960’s. Most of the work we did was directed at racial discrimination. It was a very profound experience for me. Not only was it a different culture, completely different from my Midwest upbringing, but it was a highly-charged time both politically and socially. It was impossible not to learn and grow from being in the middle of that mix.”

Why did you decide to go to law school and why UW Madison?

“It was my experience in Mississippi that prompted thoughts of law school. We had a lawyer on our staff, and through that perspective I came to realize the power of advocacy, as well as the power of the legal system to make lasting changes.

So I applied to three law schools and chose Wisconsin, because even though I had never lived in Wisconsin, it was in proximity to Minnesota. It was close to my family but not too close. I drove a $100 car from Mississippi to Madison to begin law school when I was 30. I really enjoyed those years. At the time, about 25% of my class were women. Things were changing and I worked very hard in classes and as a member of the law review. Not having any real exposure to legal reasoning was unnerving for me as it is for many new law students, but I dedicated myself to figuring it out and I ended up graduating cum laude in 1982. There is something to be said for being in a place that does not fit your comfort level. Sometimes it brings out your best.”

Judge Bridge’s Professional Career

“When I graduated there was a lot of pressure at that time to take a job with a big firm and I just wasn’t sure whether that was my cup of tea or not. I took a position with a small law firm in Minneapolis named Lommen, Nelson, Sullivan & Cole. It has since been swallowed up by larger firms. I was only the second woman attorney to join the firm, and the first quit two weeks after I started. So it was challenging in that way. Although I did a little of everything, I ended up doing a fair amount of insurance defense litigation. I often worked out of the firm’s satellite office in Hudson because I was licensed in Wisconsin as well as Minnesota. I would regularly receive a call at night from the overextended partner in the Hudson office asking me to cover a deposition or hearing that was scheduled the next day somewhere in the western part of Wisconsin. That meant driving in the middle of the night from St. Paul to Hudson to pick up the file, driving to my destination and sitting in the parking lot reading the file, and then going in to do whatever it was that needed to be done. It was terrifying, but also a good learning experience. I learned by doing and watching others. It was a lot better than carrying someone else’s briefcase.”

What brought you to Wisconsin?

“My work in Minnesota only lasted a couple of years because my husband John took a job in Madison and we both moved back here. I was looking for work and had decided that I wanted to work at the Attorney General’s Office. Bronson La Follette was attorney general at the time. I was hired as an assistant attorney general in 1985 and I worked in a unit that handled a wide range of civil matters for state agencies. I worked on everything from agriculture to health issues to taxes to issues affecting natural resources. The subject matter was extremely varied. It was another great learning experience.

Then I was promoted to unit director, which means a supervisor, and I did that for another three or four years. In the meantime Don Hanaway was elected as attorney general and then Jim Doyle. I had the occasion to come into contact with then-Attorney General Doyle, because I was called upon to brief him on several matters. It was a fair amount of contact over a year or so, and he asked me if I would be interested in serving as his deputy attorney general. That was a tremendous honor. Pat Gorence had been his first deputy, and she left to become a Federal Magistrate Judge after about a year as deputy. I served as deputy attorney general during the rest of the Doyle term from 1993-2003, when he was elected governor.”

When Jim Doyle became governor, he appointed Burnie Bridge to be chair of the Public Service Commission, a position she held from 2003-2005. Then Governor Doyle called on her to administer the Division of Children and Family Services, where she oversaw the State’s child welfare system between 2005 and 2006. As she said about those times: “Some people think of government work as bland, boring and one-dimensional. It’s been anything but that for me. It’s been every kind of experience from kids to nuclear power plants to constitutional law, and I am very grateful for my experience in government service. I found it rewarding and I’ve met some tremendously dedicated people, many of whom are my treasured friends to this day. So I am very grateful for having that opportunity.”

What did you do next then?

“Then I retired briefly. There were some health circumstances involving my family, but fortunately things stabilized and this job became available after nine months or so of retirement. I just could not resist. I applied and was fortunate enough to be appointed to the Court of Appeals. I replaced Dave Deininger who is a fine judge and was very helpful and supportive to me. It’s been a steep learning curve, but I have had those before. I was not so much interested in the trial court, because in much of my prior experience, the work was always highly structured and each moment of the day was accounted for. The idea of being able to move into an environment that was self-directed and more contemplative with the ability to think more deeply about things; not to have to manage large groups of people; and not to have subject matter changing every fifteen minutes, appealed to me. I tell my friends that working at the Court of Appeals is like working in a church; it’s very quiet all of the time. I am happy with it. It’s is very self-directed and tremendously rewarding.”

What is a typical day like for you?

“It is a mix of different matters. We are always on a rotation to hear motions, and a certain amount of time is set aside each month to prepare for the regular screening of incoming cases. After we screen incoming cases, incoming opinions are assigned for writing. In the meantime, other judges’ draft opinions are circulated back and forth, as are mine. In addition, the judges oversee per curium and summary opinions that may be written by staff attorneys. It’s really a mixture. It’s not possible to simply take one opinion and work on it to the exclusion of all other matters until it’s done. A day’s activities can touch upon several different responsibilities.”

What do you enjoy most about serving on the court?

“At the moment, for me, I think it is writing an opinion when I am moving through it at a good pace and I just feel as if it’s coming together and I am confident of the outcome. That is very satisfying. It doesn’t happen all that often, but it feels good when it does. What I like least is dictation. I do not dictate my opinions, but I do dictate notes for incoming case screenings and need to work on my dictation skills. I hope that will improve over time. I am also fortunate to work with a group of very bright colleagues in a supportive, collegial setting.”

How can attorneys write better briefs?

“I feel that appellate writing is in many respects much like any other kind of effective legal writing. You think about your audience and try and make your point as directly and persuasively as possible. But for some reason, it often happens that lawyers feel the need to add as many arguments as they can possibly think of. Lengthy, overly detailed briefs usually aren’t helpful. In contrast, just telling a story as directly as possible is very effective. Confronting difficult arguments directly is also extremely effective. Too often attorneys attempt to obscure the ‘hard’ facts or law and go off and talk about other things. That does not help the judges when we have to rule on that difficult issue. For me, effective written advocacy is simply a matter of common sense and the ability to stay your hand and not pile on argument after argument.”   

Should a Statement of the Issues be long or short?

“I like something in between. I like to be able to understand right from the beginning what it is I am going to be reading next. So I like to have the context set early. But I don’t want it set in such detail that I lose the forest for the trees. The issues are best fleshed out in the Argument.”

How important are citations to the record?

“I think adding record cites authenticates what you are saying. Human nature is such that a judge may be inclined to think that either the lawyer just did not bother including the record cite, or perhaps the record does not confirm what the lawyer has asserted. I should say that most lawyers who engage in a regular appellate practice have figured that out.”

What do you like to do when you are not being a judge?

“I like gardening. The peonies on my desk are from my garden. I do a fair amount of flower gardening at our Madison home and my husband and I also rent space in a community garden that is shared by many U.W. Madison graduate students from all over the world. English is definitely not the most common language spoken at the gardens. We love being around the young families there. We also enjoy sharing the garden’s tomatoes with neighbors. It’s a good thing to be able to do, and it occasionally results in freshly baked bread or a pie in return. A very good deal, in my view.

Oddly enough, I also like reading, even when I leave here at the end of the day. Books, magazines, newspapers – I enjoy reading pretty much anything. I also like to cook and to eat good food. And traveling and eating foreign foods is another of life’s great pleasures. A few years ago I went on a culinary tour in Italy, and later this year my husband and I are going on a culinary tour of Mexico. I am fortunate to be able to have these adventures, and each trip only makes me hungrier for more.”

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Lewis Beilin Wins Pro Bono Appeal Before the Seventh Circuit Court of Appeals

Erin O'Connor, Reinhart Boerner Van Deuren S.C.

Erin O'Connor

Lewis Beilin, a litigation attorney at Reinhart Boerner Van Deuren, s.c.'s Madison office, accepted an appointment by the Seventh Circuit to represent a woman who alleged she had been discriminated against by her employer. As a result of Lewis's hard work and dedication to his client, the Seventh Circuit reversed the district court's grant of summary judgment in favor of the employer on two of her three claims. See Benders v. Bellows and Bellows, 515 F.3d 757 (7th Cir. 2008). Here's how it happened.

Ms. Evelyn Benders, an African American woman in her fifties, worked at the Bellows and Bellows, P.C. law firm in Chicago as the office administrator. In May 2003, Mr. Bellows, the firm's owner and president, had a private conversation with Ms. Benders. He told her that some other people at the firm were campaigning to remove her from her position. He encouraged her to look for new employment, but said that she could keep her position at the firm until she found the right job. Ms. Benders secretly suspected the firm did not want her around after it moved into its new offices.

Shortly thereafter, the firm hired a moving consultant, a white woman nearly ten years younger than Ms. Benders. The moving consultant assumed some of Ms. Benders' job responsibilities. Nevertheless, Ms. Benders never lost her title as office administrator and continued to be paid her usual salary.

In December 2003, Mr. Bellows asked Ms. Benders to do two things. He proposed that he would pay off a civil judgment for her student loans instead of making a contribution to the firm's 401(k) plan on her behalf. He also asked that she work as an independent contractor until early 2004, when she would be returned to status as an employee. Ms. Benders reluctantly agreed, and from mid-January 2004 her checks contained the notation " independent contractor." However, she was never asked to sign an independent contractor agreement, and the firm continued to deduct federal taxes from her paycheck. Despite Mr. Bellows' promise, the firm never restored Ms. Benders' status as an employee.

In February 2004, Ms. Benders filed a claim with the Illinois EEOC alleging race and age discrimination as a result of her apparent demotion when the firm hired the moving consultant. She also threatened the firm that she might report its conduct regarding her independent contractor status to the IRS.

After she filed the EEOC charge, Ms. Benders claimed that Mr. Bellows became increasingly hostile and made working at the firm difficult. She alleged that he approached her after she filed the EEOC charge and said he would not pay her a severance. On April 20, 2004 Mr. Bellows told Ms. Benders to leave the firm.

In November 2004, Ms. Benders filed a lawsuit in the Northern District of Illinois. She alleged three counts: (1) a claim for retaliation for filing an EEOC charge under Title VII of the Civil Rights Act of 1964; (2) a claim for interference with the attainment of a benefit under section 510 of ERISA; and (3) a claim for retaliatory discharge under Illinois common law. The firm moved for summary judgment on all three counts.

The district court granted the firm's motion for summary judgment and dismissed Ms. Benders' claims. It based this decision primarily on its finding that the firm terminated Ms. Benders' employment in May 2003 – long before Ms. Benders engaged in any protected activities. See Benders v. Bellows and Bellows, No. 04 C 7326, 2006 WL 208713 (N.D.Ill. Jan.24, 2006). Ms. Benders appealed the decision to the Seventh Circuit Court of Appeals.

Lewis became involved in Ms. Benders' appeal after the record had been transferred to the Seventh Circuit. He quickly realized that one key to the case would be figuring out how to get the court to take a closer look at what date the firm fired Ms. Benders and convince the court that she was not fired until April 2004. This meant asking the court to closely inspect the facts attested to in the affidavits contained in the summary judgment pleadings - not an easy thing to ask an appellate court to do.

However, Lewis persuaded the court to do exactly that. Based on the affidavits in the pleadings, the court found that the record was not clear that Ms. Benders was fired during her May 2003 conversation with Mr. Bellows. Rather, it held that a jury should determine this question of fact and found the district court's grant of summary judgment improper on that ground.

Another key to the case concerned the Illinois common law retaliation claim. To prevail on this claim, an employee has to show she was discharged, in retaliation for her activities, and in contravention of a clearly mandated public policy. The key to this claim concerned the last element. Lewis successfully argued that collection of tax revenues is a matter of public concern. That public policy concern, in connection with Ms. Benders' threat to put the IRS on notice of potential tax violations, propelled Ms. Benders over the summary judgment hurdle.

Ms. Benders obtained the right to a trial on the retaliation claim under Title VII and her retaliatory discharge claim under Illinois common law. Her case is back in the district court, on its way to trial. She made it there thanks to Lewis' commitment to her cause and hard work on her case.

For Lewis' part, he found the experience to be rewarding both professionally and personally. He was pleased to be able to help Ms. Benders and was also excited to make his first oral argument in front of the Seventh Circuit. He would encourage anyone who is able to participate in this very worthy and rewarding program.

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Declining to Follow Other Circuits, The Seventh Circuit Reads the Class Action Fairness Act's Time Limit on Petitioning for Appeal to Mean What it Says

G. Michael Halfenger, Foley & Lardner LLP

G. Michael Halfenger

In Spivey v. Vertrue, Inc., the Seventh Circuit held timely a petition for appeal filed more than 7 days after entry of a district court’s order remanding a case removed pursuant to the Class Action Fairness Act (“CAFA”), 28 U.S.C. § 1453. Spivey v. Vertrue, Inc., No. 08-8009 (7th Cir. June 11, 2008). Section 1453(c)(1) of CAFA 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” (emphasis added). Other federal courts of appeals have read this to mean “not more than 7 days” in order to correct a perceived scrivener’s error resulting in a provision favoring delay over prompt appeal, contrary’s to Congress’s intent.[1] The Seventh Circuit, in a decision written by Chief Judge Easterbrook, held that a petition filed 10 days after entry of the remand order was timely, reasoning that the statute should not be construed contrary to its plain text to deprive a litigant of its appeal right.

As the court noted, the facts in Spivey differ from those of earlier cases in which other circuits have concluded that a petition filed less than 7 days after entry of the appealed order was timely. In Spivey, the appellant’s lawyers, who were aware of the perceived statutory ambiguity and other courts’ interpretations of “not less than” as meaning “not more than,” mailed the petition for leave to appeal on the seventh day after the district court entered the remand order. But, because petitions are deemed “filed” when they are received by the clerk, see Fed. R. App. P. 25(a)(2), the petition was not filed until it was delivered to the court of appeals—10 days after the remand order was entered. The respondent, relying on decisions in other circuits adopting the “not more than 7 days” statutory rewrite, argued that the appeal was untimely.

Taking up the respondent’s argument, the Seventh Circuit agreed with its sister circuits’ conclusion that a petition filed before the seventh day should not be dismissed as premature. But it reached that conclusion by a different route, reasoning that Federal Rule of Appellate Procedure 4(a)(2)’s principle of preserving notices of appeal filed too early saves petitions filed less than a week after the district court orders remand. As Judge Easterbrook explained, the court was not diverging from the earlier decisions’ outcomes:

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.

Spivey, slip op. at 4.

But the Seventh Circuit declined to follow the other circuits’ reasoning to the extent it suggests that a petition filed more than 7 days after the remand order’s entry is jurisdictionally tardy. The court concluded that the belief, relied on by those other decisions, that members of Congress wanted a short deadline does not justify judicial blue-penciling. “Doubtless many Members of Congress wanted a short deadline for appeals,” the court acknowledged, “but legislative history can not justify reading a statute to mean the opposite of what it says. . . . 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.” Id.at 5.

The statutory text thus allowed the court to consider a petition filed on the tenth day. But the court cautioned that section 1453(c)’s “not less than 7 days” does not give parties an indefinite period to petition for appeal of a remand order. The court explained that Federal Rule of Appellate Procedure 5(a)(2) sets a 30-day limit. That rule provides that, if a statute does not specify a time to petition for permissive appeal, the petition must be filed “within the time provided by Rule 4(a) for filing a notice of appeal.” That is, the petition must be filed within 30 days of the entry of the order from which an appeal is sought.

All this said, one can be sure that one’s petition is timely filed under 28 U.S.C. § 1453(c) by handing it to the clerk on the seventh day after entry of the remand order—neither “less” nor “more” than 7 days after entry. Under Spivey’s reading, if the petition gets to the Seventh Circuit’s clerk earlier or up to 23 days later, it’s still timely.

[1] See Estate of Pew v. Cardarelli, 527 F.3d 25, 28-29 (2d Cir. 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); 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).

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