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.

J U D G M E N T

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.
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

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
2

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). 

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
3

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

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
4

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”).

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
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

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; UHaul 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
6

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). 

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
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 UHaul’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), UHaul 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 UHaul’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.