Jurisdiction in Dart, With 5 Favorite Oral Argument Moments

The Court heard argument on Tuesday in Dart Cherokee Basin Operating Co. v. Owens, an important class action removal case that was unexpectedly hijacked by a jurisdictional problem pointed out by an amicus (Public Citizen). Like any good jurisdictional discussion, the argument includes funny moments, some provocative ideas, and insights into federal-court practice.

Here’s the basic situation. As you likely remember from civ pro, defendants in state courts can seek to remove their cases to federal court. When this happens, the federal court has to confirm that it has subject-matter jurisdiction. If it doesn’t, it remands the case back to state court. This kind of remand is generally unappealable. But in the Class Action Fairness Act (or “CAFA”), Congress provided that certain defendants can ask the federal court of appeals for permission to appeal a remand order. CAFA simply says that the court of appeals “may” grant this request. That language connotes discretionary review.

In Dart, a federal trial court received a removal request but ordered a remand to state court. While the trial court’s reasoning isn’t entirely clear, it may have concluded that the defendant’s notice of removal failed to include enough evidence to substantiate federal jurisdiction. That should raise eyebrows, because a removal notice is generally treated as a pleading, and pleadings don’t normally require evidence. The defendant accordingly invoked CAFA to seek discretionary review from the court of appeals. The appellate court then denied review in a summary order, over a dissent. Later, a divided en banc court of appeals also denied review.

The defendant then obtained certiorari review of the question whether the district court was right to require the evidence. But, as pointed out by Public Citizen’s terrific amicus brief, the Supreme Court at least arguably has certiorari jurisdiction only over the decision of the court of appeals, not the decision of the trial court. And all the court of appeals did was summarily deny what looks like purely discretionary review. While it’s possible that the court of appeals abused its discretion in some way, it’s hard to say so when the court of appeals gave no reason for its decision at all. At oral argument, Justice Kagan suggested that the court of appeals might not have relied on any legal rule, but might just have felt that it had better things to do. This kind of discretion is common in connection with certiorari jurisdiction, but it’s unusual in courts of appeals, which tend not to have plenary control over their own dockets.

The problem in Dart calls to mind Harrington v. Richter, which addressed habeas review of summary state-court decisions denying relief (sometimes called “postcard denials”). Richter concluded that habeas relief was proper only if the summary state-court decision was necessarily wrong—which effectively meant that habeas petitioners had to prove that there was no possible lawful basis for the state court decision. So, in many cases, the surest way for a state court to survive habeas review is to say just one word: "Denied." Ironically, reasoning is often a liability in the context of appellate review.

Anyway, the argument in Dart was held yesterday, and it has lots of great moments. Here are my favorites.

1. Justice Scalia possibly makes a veiled reference to the recent denials of certiorari in the same-sex marriage cases:

JUSTICE SCALIA: Well, I guess it's an abuse of discretion whenever we fail to correct a clear error of law on a petition for certiorari. Right? And I’m not going to mention any names, but is that the case?

2  The Chief Justice briefly floats the possibility of construing the summary court of appeals decision in light of the dissenting opinion.

CHIEF JUSTICE ROBERTS: But the dissenters in the case thought -- explain why they thought it was wrong. Don't you think if the Tenth Circuit relied on a different reason they would have said so?

This provocative approach would give dissents enormous power to encourage reason-giving by majority opinions. If it applied to the Supreme Court, for example, one might imagine more analysis in the Court’s nearly summary Wheaton stay order (discussed here), which generated a lengthy dissent by Justice Sotomayor.

3. The Chief Justice and Justice Kagan illustrate that advocates are often superfluous at One First Street.

CHIEF JUSTICE ROBERTS: Do you think it's appropriate for this Court to dismiss certiorari, in other words, the case is not before us, and then opine on the merits of the case?

JUSTICE KAGAN: No. No. No. I was not suggesting that we opine on the merits of the case. I would think that that would be not appropriate.

CHIEF JUSTICE ROBERTS: I thought the suggestion was that we tell the Tenth Circuit that this was wrong?

JUSTICE KAGAN: No. No. No. That is not my suggestion, it might be your suggestion.

CHIEF JUSTICE ROBERTS: Well, if we simply dismiss certiorari, what do you think we have the authority to say other than the reasons for dismissing certiorari?

4. The Chief Justice delivers a classic line.

JUSTICE ALITO: Can we infer anything from that as to whether Congress thought that that would be a proper reason under the Class Action Fairness Act?

SHARP: Your Honor, I see my time is up.

CHIEF JUSTICE ROBERTS: You can't escape that easily.

5. Last but not least is the moment that didn’t happen, the proverbial dog that didn’t bark: at no point in the argument did the Court indicate that it had sub silentio resolved the jurisdictional problem just last year in Standard Fire v. Knowles. By all appearances, Standard Fire raised the same jurisdictional difficulty at issue in Dart (with a different merits question). And the Court reached the merits in Standard Fire, without addressing the latent jurisdictional issue. Given the obvious interest in the jurisdictional problem in Dart, the Court's failure to address the point in Standard Fire must have been inadvertent—no matter how the Court now chooses to resolve it. This is another reminder that the Court at least sometimes follows the rule against sub silentio holdings--and that the human Justices, like all of us, sometimes make mistakes.

The above is cross-posted from Re's Judicata.