                      United States Court of Appeals
                              FOR THE DISTRICT OF COLUMBIA CIRCUIT



No. 08-7122                                                       September Term, 2008
                                                                  Filed On: April 6, 2009

IN RE: U-HAUL INTERNATIONAL, INC.,
                     PETITIONER


                             On Petition for Leave to Appeal from the
                      United States District Court for the District of Columbia


       Before: ROGERS,* GARLAND and BROWN, Circuit Judges.

                                         JUDGMENT

        This petition for leave to appeal was considered on the record from the United States
District Court for the District of Columbia as well as the briefs and oral arguments of counsel. It is

        ORDERED and ADJUDGED that the petition for leave to appeal is hereby denied.
Section 1453(c) of title 28 of the United States Code 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 . . . .” The court will exercise its discretion to decline
to accept an appeal from the district court’s order remanding this case back to the Superior Court
of the District of Columbia. U-Haul International, Inc. argues that a “private attorneys general
action” brought under the D.C. Consumer Protection Procedures Act must be litigated as a class
action under Rule 23. This is not clear as a matter of District of Columbia law, and the local
courts should determine how this action, purported to be a non-class representative action, should
proceed.

       No mandate will issue because no appeal has been allowed.

                                                             PER CURIAM

                                                             FOR THE COURT:
                                                             Mark J. Langer, Clerk

                                                     BY:

                                                             Deputy Clerk

*      The opinion of Circuit Judge Rogers dissenting from the denial of the petition for leave to
       appeal is attached.
     ROGERS, Circuit Judge, dissenting from the denial of the
petition for leave to appeal pursuant to 28 U.S.C. § 1453(c)(1).
Although the court is in agreement that a potentially dispositive
question of District of Columbia law should be decided by the
District of Columbia courts, as the district court’s order of
remand effectively requires, we differ on how that goal is to be
achieved under the Class Action Fairness Act of 2005, Pub. L.
No. 109-2, 119 Stat. 4 (codified in scattered sections of 28
U.S.C.) (“CAFA”). Because the petition for leave to appeal was
timely filed and it raises questions of federal law not yet
addressed by this court, the petition should be granted. However,
federal court jurisdiction under CAFA depends on whether D.C.
law permits a plaintiff to bring a claim on behalf of the general
public as a non-class representative action. The D.C. Court of
Appeals has yet to address this question, and CAFA’s time
limitations on appellate review prevent this court from certifying
the question to that court. Therefore, I would deny the appeal
and thereby afford the District of Columbia courts an
opportunity to decide the key question under the D.C. Consumer
Protection Procedures Act (“D.C. Consumer Act”), D.C. Code
§ 28-3905(k)(1).

                                    I.

     To set the context: Michael Margolis rented a U-Haul truck
that broke down twice. As a result, he filed a complaint against
U-Haul International, Inc. (“U-Haul”) in the Superior Court of
the District of Columbia pursuant to the D.C. Consumer Act.1


       1
           The D.C. Consumer Act provides, in relevant part:

              A person, whether acting for the interests of itself, its members, or the
              general public, may bring an action under this chapter in the Superior
              Court of the District of Columbia seeking relief from the use by any
              person of a trade practice in violation of a law of the District of
                                 2

In addition to pursuing his own individual claims, he sued “in a
representative capacity for similarly situated purchasers in the
District of Columbia.” Compl. at 1. Margolis describes his
complaint as a non-class representative action or a private
attorney general action on behalf of the general public that is
provided for in the D.C. Consumer Act. He seeks, on behalf of
himself and in his representative capacity on behalf of the
general public of the District of Columbia, monetary damages
(including statutory treble damages), punitive damages,
attorneys’ fees and costs, and such other relief as the court may
deem proper. For himself, he also seeks an accounting. For the
general public only, he seeks injunctive relief.

     U-Haul removed the case to the federal district court on
September 19, 2007 on the basis that the district court had
jurisdiction over the complaint as a class action under 28 U.S.C.
§ 1332(d)(2)(A), (B), or, in the alternative, had traditional
diversity jurisdiction under 28 U.S.C. § 1332(a)(1), (2). The
district court, sua sponte, requested briefing on subject matter
jurisdiction. On September 8, 2008, the district court
determined it lacked subject matter jurisdiction and ordered the
case be remanded to the D.C. Superior Court: the amount in
controversy did not exceed $75,000 for each claim, as required
for federal jurisdiction under 28 U.S.C. § 1332(a), and the



            Columbia and may recover or obtain the following remedies: (A)
            treble damages, or $1,500 per violation, whichever is greater, payable
            to the consumer; (B) reasonable attorney’s fees; (C) punitive
            damages; (D) an injunction against the use of the unlawful trade
            practice; (E) in representative actions, additional relief as may be
            necessary to restore to the consumer money or property, real or
            personal, which may have been acquired by means of the unlawful
            trade practice; or (F) any other relief which the court deems proper.

       D.C. Code § 28-3905(k)(1).
                                   3

complaint was not a “class action” under CAFA, 28 U.S.C. §
1332(d)(2). On September 12, 2008, U-Haul filed a petition in
this court for permission for leave to appeal the order of remand
pursuant to 28 U.S.C. § 1453(c), with respect to jurisdiction
under section 1332(d)(2).

                                  II.

    In CAFA, Congress set two time limits of significance
here.2 The first involves the timing of an application for


        2
             More generally, CAFA revises class action rules and
diversity jurisdiction requirements to address some concerns regarding
class action practice. The legislative history in the 109th Congress,
when CAFA was enacted, is extremely limited. There is no House or
Conference Report, no amendments were adopted on the Senate floor,
and the House adopted the Senate bill without amendment. Compare
S. 5, 109th Cong. (as reported by S. Comm. on the Judiciary, Feb. 3
2005), with S. 5 (as passed by the Senate, Feb. 10, 2005); see 151
Cong. Rec. S1610 (daily ed. Feb. 17, 2005) (reporting that House
passed S. 5 without amendment). The Report of the Senate Judiciary
Committee was filed on the date that the President signed the bill into
law, S. Rep. 109-14, 109th Cong. 1st Sess., at 79 (Feb. 28, 2005),
reprinted in 2005 U.S.C.C.A.N. 3 (additional view of Sen. Leahy), and
thus its persuasive force regarding congressional intent is problematic,
cf. Hamdan v. Rumsfeld, 548 U.S. 557, 580 n.10 (2006); but see
Louisiana ex rel. Caldwell v. Allstate Ins. Co., 536 F.3d 418, 424 (5th
Cir. 2008) (relying on S. Rep. 109-14). According to CAFA’s
supporters on the Senate Judiciary Committee, CAFA’s three key
components were designed to protect consumers, to allow federal
courts to hear more interstate class actions, and to ensure that
attorneys’ fees were determined “in a fair and reasonable way.” S.
Rep. 109-14 at 5. The removal provision was designed, according to
these proponents, “to prevent plaintiffs from evading federal
jurisdiction by hiding the true nature of their case.” Id. at 9.
However, CAFA’s proponents on the Committee understood that
CAFA would leave in state court complaints filed on behalf of the
                                   4

appellate review of a remand order. CAFA provides for such
review at the discretion of the appellate court where an
application for appeal is filed “not less than 7 days” after the
entry of the district court’s remand order. 28 U.S.C. §
1453(c)(1).3 U-Haul filed an application for appeal 4 days after
the district court entered its order remanding this case to the
D.C. Superior Court. There is a circuit split with respect to
whether the phrase “not less than 7 days” should be read literally
or to mean “more.”4 The circuits agree, however, that an
application filed prior to seven days is either timely, see, e.g.,
Estate of Pew v. Cardarelli, 527 F.3d 25, 28 (2d Cir. 2008), or
may be treated as a premature application that ripens into a
timely application by analogy to Rule 4(a)(2) of the Federal


general public under “a law like the California Unfair Competition
Law, which allows individuals to bring a suit on behalf of the general
public.” Id. at 47.
        3
            Section 1453(c)(1) provides, in relevant part:

                  [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).
        4
          Compare Estate of Pew v. Cardarelli, 527 F.3d 25, 28 (2d
Cir. 2008); Morgan v. Gay, 466 F.3d 276, 277–79 (3d Cir. 2006);
Amalgamated Transit Union Local 1309 v. Laidlaw Transit Servs.,
Inc., 435 F.3d 1140, 1145–46 (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); with Spivey v.
Vertrue, Inc., 528 F.3d 982, 983–85 (7th Cir. 2008). See also S. Rep.
109-14 at 49 (stating that “parties must file a notice of appeal within
seven days after entry of a remand order”).
                                   5

Rules of Appellate Procedure, see Spivey v. Vertrue, Inc., 528
F.3d 982, 984 (7th Cir. 2008). Thus, whether the statute is read
to require filing within or after seven days, U-Haul’s application
would be deemed timely.

     Margolis’ suggestion that this court lacks jurisdiction of this
appeal because the district court acted sua sponte and not in
response to a motion to remand a class action from one of the
parties is without merit. A court acting sua sponte acts on its
“own motion.” Cf. Wachovia Bank, Nat’l Ass’n v. Schmidt, 546
U.S. 303, 316 (2006). The district court here properly afforded
the parties an opportunity to brief the question by issuing an
order to show cause. In turn, Margolis argued for remand
because this was a non-class representative action not subject to
CAFA or Rule 23 of the Federal Rules of Civil Procedure; U-
Haul argued against remand as this was a class action under
CAFA. Under the circumstances, U-Haul’s application for leave
to appeal is properly before this court as the remand order falls
within section 1453(c)(1). Upon accepting the appeal, our
review of the dismissal for lack of subject matter jurisdiction is
de novo. See Nix v. Billington, 448 F.3d 411, 414 (D.C. Cir.
2006); Lowery v. Ala. Power Co., 483 F.3d 1184, 1193 (11th
Cir. 2007).

     CAFA also sets a time limit for appellate proceedings,
requiring this court to “complete all action on such appeal,
including rendering judgment, not later than 60 days after the
date on which such appeal was filed.” 28 U.S.C. § 1453(c)(2).5


        5
            Section 1453(c)(2) provides:

                  If the court of appeals accepts an appeal under
                  paragraph (1), the court shall complete all action on
                  such appeal, including rendering judgment, not later
                  than 60 days after the date on which such appeal was
                                    6

The appellate court itself may extend the period for 10 days, id.
§ 1453(c)(3), and the parties may also agree to an extension of
any length, id. However, if the court fails to act within the time
provided by CAFA, the appeal must be denied, id. § 1453(c)(4).
As interpreted by all of our sister circuits that have addressed the
issue, the 60 days does not begin to run until the appellate court
grants permission to file the appeal.6 This consensus is based on
interpreting section 1453 in light of Rule 5(d)(2) of the Federal
Rules of Appellate Procedure, which provides that “[t]he date
when the order granting permission to appeal is entered serves
as the date of the notice of appeal for calculating time under
these rules.” Even assuming that this court’s time to act began


                filed, unless an extension is granted under paragraph
                (3).

28 U.S.C. § 1453(c)(2). Paragraph (3) provides:

                The court of appeals may grant an extension of the
                60-day period described in paragraph (2) if –

                          (A) all parties to the proceeding agree to
                          such extension, for any period of time; or

                          (B) such extension is for good cause shown
                          and in the interests of justice, for a period not
                          to exceed 10 days.

28 U.S.C. § 1453(c)(3).
        6
           See DiTolla v. Doral Dental IPA of N.Y., LLC, 469 F.3d
271, 274-75 (2d Cir. 2006); Morgan v. Gay, 471 F.3d 469, 471-72 (3d
Cir. 2006); Patterson v. Dean Morris, LLP, 444 F.3d 365, 368-69 (5th
Cir. 2006); Hart v. FedEx Ground Package Sys. Inc., 457 F.3d 675,
678-79 (7th Cir. 2006); Lowdermilk v. U.S. Bank Nat’l Ass’n, 479
F.3d 994, 996-97 (9th Cir. 2007); Evans v. Walter Indus., Inc., 449
F.3d 1159, 1162-63 (11th Cir. 2006).
                                 7

to run when U-Haul’s petition for permission to appeal was
filed, the parties have agreed that this court’s time to resolve U-
Haul’s appeal will not expire until April 6, 2009.

     U-Haul contends on the merits that a complaint filed
pursuant to the D.C. Consumer Act that includes a request for
relief on behalf of the general public may proceed only as a class
action under Rule 23 of the Federal Rules of Civil Procedure or
Rule 23 of the D.C. Superior Court’s Rules of Civil Procedure.
It adopts the view that a “class action” under CAFA “includes
any action which ‘resemble[s]’ a class action, such that the real
parties in interest are absentees, even if that action is not brought
under Rule 23.” Petitioner-Appellant’s Br. at 4 (quoting S. Rep.
109-14 at 35). Thus, U-Haul maintains, the D.C. Consumer Act
establishes a right of action, but not a separate and distinct
procedural mechanism for pursing an action. Margolis responds
that his complaint is filed under a D.C. statute that provides “a
separate and distinct procedural vehicle from a class action,”
Breakman v. AOL, LLC, 545 F. Supp. 2d 96, 101 (D.D.C. 2008),
and he disclaims any reliance on any D.C. rule or statute
authorizing a class action.

     Under CAFA, a “class action” is defined as “any civil
action filed under Rule 23 of the Federal Rules of Civil
Procedure or similar State statute or rule of judicial procedure
authorizing an action to be brought by 1 or more representative
persons as a class action.” 28 U.S.C. § 1332(d)(1)(b) (emphasis
added). On its face this definition would appear to exclude, as
the district court ruled, a complaint that is not filed as a class
action. To the extent a further wrinkle is presented because
CAFA defines a “mass action” as “any civil action . . . in which
monetary relief claims of 100 or more persons are proposed to
be tried jointly on the ground that the plaintiffs’ claims involve
common questions of law or fact,” id. § 1332(d)(11)(B)(i), U-
Haul did not seek removal on this ground and the parties are
                                8

agreed that Margolis’ complaint does not state a “mass action.”
Were Margolis’ complaint to be treated as a “mass action,” it
would likely be removable under CAFA to the extent it does not
fall within the exclusion for “mass actions” in which “all
claims” are brought on behalf of the general public. Id. §
1332(d)(11)(B)(ii)(III). For now, however, this court has no
occasion to second guess the parties’ strategic choices. See
Gavin v. AT&T Corp., 464 F.3d 634, 640-41 (7th Cir. 2006);
Breakman, 545 F. Supp. 2d at 101-02; but see Louisiana ex rel.
Caldwell v. Allstate Ins. Co., 536 F.3d 418, 424 (5th Cir. 2008).

     Clarification by the District of Columbia courts regarding
whether Margolis’ complaint may proceed as a non-class
representative action under the D.C. Consumer Act could
dispose of the jurisdictional issue under CAFA presented by U-
Haul’s appeal. Were the D.C. Consumer Act so interpreted, the
complaint would not be a “class action” under CAFA. In the
usual situation where an open question of District of Columbia
law could be dispositive of an issue before the federal court, the
question could be certified to the D.C. Court of Appeals, the
District of Columbia’s highest court. See D.C. Code § 11-
723(a). Even assuming that CAFA’s 60-day clock does not
begin to run until this court accepts U-Haul’s appeal, so as to be
able to order the certification, that still would not afford
sufficient time for this court to receive a response from the D.C.
Court of Appeals, which has its own docket priorities.

     In sum, I would hold that U-Haul’s petition for leave to
appeal the order remanding the case to the D.C. Superior Court
was timely filed. I would grant the petition because it raises
questions under CAFA that this court has not yet addressed. It
further presents a question under District of Columbia law that
its highest court has not addressed. Because resolution of that
question could be dispositive of our jurisdiction under CAFA,
I would, under these particular circumstances, deny the appeal.
                               9

CAFA’s time limitations on appellate review effectively prevent
this court from timely obtaining the opinion of the D.C. Court of
Appeals but the district court has ordered the case be remanded.
Denying the appeal thus affords the District of Columbia courts
the opportunity to decide whether Margolis’ complaint may
proceed (with or without his individual claim) as a non-class
representative action under the D.C. Consumer Act.
