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Wednesday, July 12, 2017

Judge Wood is not happy with Jeff Sessions and other appellees

Seventh Circuit Judge Diane Wood issued a fed-up in-chambers opinion, calling out two appellees, including Jeff Sessions, for inadequate jurisdictional statements. The order called out appellees for failing to state in their briefs that the appellants' jurisdictional summary was both "complete and correct" (both appellees certified only one but not the other) and struck appellee briefs in two cases--one by Sessions (or DOJ) and one by the Airline Pilots Association.

Judge Wood identified routine problems with appellants' jurisdictional statements that appellees waive away; many are common problems  in the jurisdictional statements in district-court pleadings that I discuss in class:

in federal question cases where jurisdiction depends on 28 U.S.C. § 1331 , the failure to specify the particular statute or constitutional provision at issue, and in diversity cases, failure to distinguish between citizenship (required by 28 U.S.C. § 1332 ) and residency (irrelevant) and, for organizations such as partnerships, LLPs, and LLCs, the failure to work back through the ownership structure until one reaches either individual human beings or a formal corporation with a state of incorporation and a state of principal place of business.

This is worth sharing with students, who often do not recognize or accept how important these details are. (I also use an Easterbrook opinion, in which he sanctions both sides for botching jurisdictional treatment of LLCs--Update: Per a request, the Easterbrook opinion is Belleville Catering v. Champaign Marketplace from 2003).

Posted by Howard Wasserman on July 12, 2017 at 07:14 PM in Civil Procedure, Howard Wasserman | Permalink


This is silly. The Seventh Circuit seems to be the only one with this requirement. If the other circuits can manage without the appellee expressly confirming that the appellant's jurisdictional statement is complete and correct, maybe the Seventh Circuit should learn to also.

Posted by: biff | Jul 16, 2017 12:50:24 AM

My point, to remove all attempts at being funny, is that the number of practitioners who will read this exasperated Order is much smaller than the number of practitioners who would read a bolded and scary sentence in the Circuit Rules.

Also the idea of having to resubmit a brief is overkill. Wasted paper. If necessary, have the Deputy Clerk send out a docket entry requiring the offending appellee to submit a letter containing the two magic words.

Posted by: Sam | Jul 15, 2017 11:12:24 AM

Why not worry about all appellees? Does the court not care about jurisdiction in all cases? They struck one institutional/repeat litigant's brief, and one brief of an association that may not be a repeat player but can certainly afford to file a modestly corrected brief. Hopefully treating these two institutional/semi-institutional litigants in this way will encourage everyone to follow this actually quite important rule. I would probably go further and strike any brief that doesn't follow the rule in any case where jurisdiction could possibly be at doubt.

Posted by: Asher Steinberg | Jul 14, 2017 12:33:35 PM

If the Court is only worried about repeat appellees, significant institutional litigants, this is fine i guess. Get the message out through Howard Bashman. But those litigants don't constitute the bulk of the "problem," I would guess.

Posted by: Sam | Jul 13, 2017 11:06:47 PM

Wood seems entirely reasonable here. Significant institutional litigants should be able to get jurisdictional statements right. If they don't, the court has to spend valuable time ferreting out whether the flawed statement is the result of ineptitude or indicative of a real problem. And litigants should want to avoid submitting briefs that cause unneeded distraction anyway.

Posted by: Curmudgeonly Ex-Clerk | Jul 13, 2017 9:01:11 PM

What form would this displeasure in the Circuit Rule take? This seems like an effective, harmless, and relatively low-cost way of getting repeat appellees at the Seventh Circuit to remember to point out jurisdictional defects.

Posted by: Asher Steinberg | Jul 13, 2017 7:25:10 PM

Yes this is silly. If the Court REALLY thinks it's necessary to have both parties "incentivized" (horrible word) to take a hard look at jurisdiction at the appellate level, then put something in the Circuit Rules that says "If we find that there was no jurisdiction because of something that Appellant overlooked and that Appellee didn't catch, then both sides are subject to our displeasure, not just Appellant." But the idea of requiring resubmission because the brief says "correct" or "complete" but not "complete and correct" is classic robe-itis.

Posted by: Sam | Jul 13, 2017 6:33:10 PM

I added a link to the Easterbook opinion.

Posted by: Howard Wasserman | Jul 13, 2017 12:26:28 PM

I'd sympathize with Judge Wood's order more if the defects were in the appellant's brief. But the order seems a bit mountain/molehill as applied to appellees' briefs. After all, the court has an independent obligation to assure itself of jurisdiction no matter what the appellee says, and, given that the appellees' briefs in these cases are pretty much understandable even if they don't use the magic words insisted on by Judge Wood, it's hard for me to understand what the use is of forcing resubmission with those magic words.

Posted by: Scott Dodson | Jul 13, 2017 11:53:09 AM

Mind linking to the Easterbrook opinion?

Posted by: John | Jul 13, 2017 11:35:12 AM

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