The Fifth Circuit recently addressed the scope of appellate jurisdiction under the Class Action Fairness Act (CAFA). CAFA allows federal courts of appeals to hear, on a discretionary basis, appeals from “an order of a district court granting or denying a motion to remand a class action.” 28 U.S.C. § 1453(c)(1). The Fifth Circuit has held, contrary to some other circuits (such as the Seventh Circuit), that on such an appeal it can only consider whether federal jurisdiction exists under CAFA, not any other basis for the district court’s order. The Fifth Circuit recently maintained the same position notwithstanding a recent Supreme Court decision reaching a different outcome under an analogous statute.

In Stewart v. Entergy Corporation, No. 22-30177, — F.4th –, 2022 WL 1711659 (5th Cir. May 27, 2022), the defendant argued that in a CAFA appeal, the court of appeals could consider an additional ground for federal jurisdiction (bankruptcy jurisdiction), relying on BP P.L.C. v. Mayor of Baltimore, 141 S. Ct. 1532 (2021). In BP P.L.C., the Supreme Court addressed 28 U.S.C. § 1447(d), which permits appellate review of a remand “order” if the removal was under Section 1442 (applicable to suits against federal officers or agencies) or Section 1443 (applicable to certain federal civil rights claims). The Supreme Court held that under the plain text of Section 1447(d), the entire “order” is appealable, not merely the part of it that addresses Section 1442 or 1443. The Court has reached the same result under Section 1292(b), which allows interlocutory appeals from an “order” certified by the district court as involving a “controlling question of law” on which there is a “substantial ground for difference of opinion.” Under that statute, the Court previously held that the entire order is appealable, not merely the question(s) identified.

In Stewart, the Fifth Circuit concluded that B.P. P.L.C. had not “unequivocally overruled our precedent or established a law inconsistent with it,” and thus the panel was bound by prior circuit precedent limiting CAFA appeals to CAFA issues. The Fifth Circuit also reasoned that CAFA’s requirement that petitions for permission to appeal be filed within 10 days, and that appeals be decided within 60 days of permission to appeal being granted, would make it difficult, as a practical matter, to decide appeals involving multiple issues. The Fifth Circuit also noted that appeals are discretionary under CAFA, unlike under the statute construed by the Supreme Court in B.P. P.L.C.

I have doubts about whether Stewart will hold up if reviewed en banc or if this issue reaches the Supreme Court. Distinguishing CAFA from other statutes that allow appeals from an “order” is difficult. Although not addressed in Stewart, Section 1453(c)(1) allows appeals from remand orders in a “class action”; it does not exclude bases other than CAFA for jurisdiction in a class action. Given that CAFA appeals are discretionary, a court of appeals might have discretion to limit the issues to be addressed in an order granting leave to appeal, as the Supreme Court does sometimes when granting certiorari. It may not be easy for defendants to obtain interlocutory appellate review of issues unrelated to CAFA jurisdiction in a class action, but it seems a stretch to conclude that CAFA makes that impossible.