We granted permission to appeal on September 1, 2009, pursuant to 28 U.S.C. §

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1453(c), under Case No. 09-34.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10851

Summary Calendar

LETICIA ALVAREZ; DAVID ANGUIANO; ROBERT BARDWELL; WILLIAM

BOULDIN; BRUCE CONWAY; ET AL, 

Plaintiffs - Appellants

v.

MIDLAND CREDIT MANAGEMENT, INC.; JAY A. TAYLOR, P.C.; HENRY

MCDONALD AND JAMES, P.C.; HOSTO AND BUCHAN, P.L.L.C.; MANN

BRACKEN, L.L.C., Successor by Merger to Wolpoff and Abramson L.L.P.;

RLI INSURANCE COMPANY; WESTERN SURETY COMPANY; MELVIN

THATHIAH; TRAVELERS CASUALTY & SURETY COMPANY OF

AMERICA; JAY A. TAYLOR; UNIVERSAL SURETY OF AMERICA,

Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas 

Before KING, STEWART, and HAYNES, Circuit Judges.

HAYNES, Circuit Judge:

This case involves an interlocutory appeal of a denial of a motion to 1

remand in a case removed pursuant to the Class Action Fairness Act of 2005

(“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (codified in scattered sections of 28

United States Court of Appeals

Fifth Circuit

F I L E D

October 19, 2009

Charles R. Fulbruge III

Clerk
No. 09-10851

 After we granted permission to appeal and the appeal was docketed in this court, a

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number of the original 154 plaintiffs settled with the defendants and filed stipulations of

dismissal. The effect of these dismissals was to bring the number of plaintiffs down to a

number under the CAFA threshold of 100 plaintiffs. Citing this fact, the district court entered

an order of remand on September 30 and denied reconsideration of that order on October 8.

We requested briefing on the question of whether this appeal is moot and whether the district

court lacked jurisdiction to enter the order of remand because of the pendency of this appeal.

We conclude that the district court lacked jurisdiction to enter the September 30 order and,

therefore, it is void and does not moot the appeal. See, e.g., Marrese v. Am. Acad. of

Orthopaedic Surgeons, 470 U.S. 373, 379 (1985) (“In general, filing of a notice of appeal confers

jurisdiction on the court of appeals and divests the district court of control over those aspects

of the case involved in the appeal.”) (internal citation and quotation marks omitted); Dayton

Indep. Sch. Dist. v. U.S. Mineral Prods. Co., 906 F.2d 1059, 1063 (5th Cir. 1990). Because the

order is void and because we are dismissing this appeal, we also vacate our prior order,

entered October 13, staying the September 30 order of remand. We express no opinion on the

merits of the district court’s reasoning in that order.

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U.S.C.), citing 28 U.S.C. § 1453(b). For the reasons set forth herein, we

VACATE our September 1 order granting permission to appeal and remand to

the district court.2

I. Background

Few details of the procedural background of this case matter to our

decision here. We will describe only the pertinent background. A lawsuit was

filed in a Texas state district court. The Third Amended Petition named 154

plaintiffs and sought a “maximum of $100,000 each.” The case was styled as a

suit for damages and alleged that at least some of the plaintiffs were the victims

of fraudulently obtained judgments by defendant Midland Credit with the aid

of various lawyers and law firms, also named as defendants. Midland Credit

and its attorneys were accused of improper and fraudulent collection efforts

against the parties who are now the Plaintiffs-Appellants before us. One fraud

alleged was the obtaining of judgments based upon debts not actually owned by

Midland Credit.

Midland Credit removed the case to federal district court under 28 U.S.C.

§ 1332(d). Plaintiffs-Appellants moved to remand, urging several grounds. The

district court denied the motion to remand in July of 2009. 
No. 09-10851

Rooker v. Fid. Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460

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U.S. 462 (1983).

 We imply no improper motives by this statement. Plaintiffs-Appellants contend that

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changed circumstances have led to the changed approach. 

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Plaintiffs-Appellants then sought permission from this court under 28

U.S.C. § 1453(c) to file an interlocutory appeal of the denial of their remand

motion. The § 1453 petition, filed August 3, 2009, articulated two grounds for

appeal that are unique to CAFA: (1) what constitutes “significant relief” under

CAFA’s local controversy exception, and (2) what“event or occurrence” means

under § 1332(d)(11)(B)(ii)(I). The petition also articulated two grounds that are

not unique to CAFA: (1) whether the causes of action asserted are subject to the

Rooker-Feldman limitations on federal jurisdiction, and (2) whether Midland 3

Credit waived its right of removal, if any, by failing to file the notice of removal

sooner. On the basis of this petition, we granted permission to appeal on

September 1.

II. Discussion

Under CAFA, an interlocutory appeal is subject to an accelerated

timetable which is triggered by the granting of permission to appeal. Patterson

v. Dean Morris, L.L.P., 444 F.3d 365, 367–68 (5th Cir. 2006). In this case,

Plaintiffs-Appellants were required to file their brief within two weeks (by

September 15), which they did. But this brief contained only one of the four

issues listed above — whether the Rooker-Feldman doctrine precludes the

exercise of federal jurisdiction in this case. Thus, fewer than forty-five days after

Plaintiffs-Appellants set forth four grounds for the appeal, they actually sought

review on only one ground.4

The denial of a motion to remand is an interlocutory order not usually

subject to immediate appeal. See Aaron v. Nat’l Union Fire Ins. Co., 876 F.2d

1157, 1160 (5th Cir. 1989) (“A district court’s denial of a motion to remand is not
No. 09-10851

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a final order, and it therefore is not reviewable on appeal.”). Congress altered

this general rule for actions removed under CAFA, giving appellate courts the

discretion to “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). This altered rule was intended to

facilitate the development of “‘a body of appellate law interpreting [CAFA]

without unduly delaying the litigation of class actions.’” Saab v. Home Depot

U.S.C., Inc., 469 F.3d 758, 759 (9th Cir. 2006) (quoting S. Rep. No. 109–14, at 49

(2005)).

Nothing about the Rooker-Feldman doctrine, which applies “in the limited

circumstances in which [the Supreme Court’s] appellate jurisdiction over statecourt judgments precludes a United States district court from exercising subjectmatter jurisdiction in an action it would otherwise be empowered to adjudicate,”

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 291 (2005), is

unique to CAFA. Although Plaintiffs-Appellants seek to style their sole pending

issue as one of the “interplay between CAFA and Rooker-Feldman,” whether we

had one plaintiff or one thousand who claimed that they had been victimized by

unsavory collection practices as the result of an allegedly fraudulently-obtained

state-court judgment, the Rooker-Feldman question would be the same. 

Our grant of permission to appeal is discretionary. Patterson, 444 F.3d at

369. We recognize that § 1453(c) does not limit our discretionary appellate

jurisdiction to matters unique or peculiar to CAFA. However, in granting us

interlocutory discretionary review, Congress placed very short time limits on our

determination of such appeals. Therefore, in exercising our discretion to hear

such appeals we must weigh the time taken from earlier-filed appeals to tend to

the CAFA appeal against the benefit of hearing such an appeal at this juncture.

Part of this weighing necessarily involves consideration of the unique nature of
No. 09-10851

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the issues presented in the proposed appeal. See, e.g., Estate of Pew v.

Cardarelli, 527 F.3d 25, 29 (2d Cir. 2008) (“A sound exercise of discretion will be

guided by consideration of the importance and novelty of the issues raised by the

case.”); Saab, 469 F.3d at 759 (8th Cir. 2006) (explaining that Congress provided

for CAFA appellate jurisdiction in order to “develop a body of appellate law

interpreting the legislation without unduly delaying litigation of class actions”)

(internal citation and quotation marks omitted); cf. Coffey v. Freeport McMoran

Copper & Gold, No. 09-6106, 2009 U.S. App. LEXIS 19996, at *19 (10th Cir.

Sept. 4, 2009) (concluding that it had jurisdiction under CAFA to address

CERCLA issues but declining to do so because “it does not fit with the reasons

behind § 1453(c)(1) to do so”). 

Applying that analysis to this case, we conclude that, had the RookerFeldman issue been the sole issue presented at the time of the petition for

permission, we would not have granted permission to appeal. As a result of the

elimination of the unique issues under CAFA and the desire not to resolve

complex issues of federal versus state jurisdiction on a limited record with

abbreviated briefing and decisional deadlines, we conclude that our original

permission was improvidently granted. Accordingly, we VACATE our

September 1, 2009 order granting permission to appeal, deny permission to

appeal on an interlocutory basis the July 27 order denying remand, and remand

to the district court for appropriate further proceedings. In so doing, we express

no opinion on whether changed circumstances do or should alter the court’s

original July 27 order.

PERMISSION TO APPEAL VACATED; OCTOBER 13 STAY ORDER

VACATED; APPEAL DISMISSED.