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Monday, December 15, 2014

Pfander on Dart

SCOTUS on Monday decided Dart Cherokee Basin Operative Co. v. Owens; the Court held that a notice of removal need only contain a short and plain statement of the amount in controversy and evidence is necessary only if the plaintiff contests the amount. It was a 5-4 decision, with Justice Scalia, joined by Justices Kennedy and Kagan and in part by Justice Thomas, in dissent, arguing that the Court lacked authority to review a court of appeals summary denial of discretionary review of a remand order. Justice Thomas also filed a separate dissent.

James Pfander and Daniel D. Birk (Northwestern) have a piece called Article III Judicial Power, the Adverse-Party Requirement, and Non-Contentious Jurisidction (Yale L.J., forthcoming); Dart fits with some of what they wrote there (see, especially, pp. 27-28 and 79-80). Jim emailed the following (posted with his permission):

Dart serves as a nice illustration of the work that a construct of non-contentious jurisdiction can do in simplifying the exercise of jurisdiction over some uncontested matters.  As you know, the problem in Dart arose from the one-sided and discretionary application for appellate review of the remand decision.  Justice Thomas, echoing a position first articulated by Justice Scalia in Hohn v. United States, argued that the petition in Dart was not a “case” in the appellate court and was therefore not a matter within the Court’s cert jurisdiction.  There were no adverse parties joined and nothing was contested.

It’s here that the construct of non-contentious jurisdiction can help.  If one recognizes that federal courts have long presided over uncontested applications for the certification or recognition of a claim of right, so long as they require the exercise of judicial judgment (as Brandeis explained in the leading case, Tutun v. United States), then the treatment of ex parte applications for discretionary review (as in Hohn and Dart) presents no real mystery.

Posted by Howard Wasserman on December 15, 2014 at 08:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink

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