25 Fla. L. Weekly Fed. S15a
Jurisdiction — Federal — Removal of state court action to federal court —
Amount in controversy — As specified in 28 U.S.C. §1446(a), a defendant’s
notice of removal need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold; the notice need not contain
evidentiary submissions — Evidence establishing the amount is required by
Section 1446(c)(2)(B) only when plaintiff contests, or the court questions, the
defendant’s allegation — District court erred in remanding case for want of an
evidentiary submission in notice of removal, and Court of Appeals abused its
discretion in denying review of that decision
Amount in controversy — As specified in 28 U.S.C. §1446(a), a defendant’s
notice of removal need include only a plausible allegation that the amount in
controversy exceeds the jurisdictional threshold; the notice need not contain
evidentiary submissions — Evidence establishing the amount is required by
Section 1446(c)(2)(B) only when plaintiff contests, or the court questions, the
defendant’s allegation — District court erred in remanding case for want of an
evidentiary submission in notice of removal, and Court of Appeals abused its
discretion in denying review of that decision
DART CHEROKEE BASIN OPERATING CO., LLC, et al., Petitioners v. BRANDON W.
OWENS. U.S. Supreme Court. Case No. 13-719. Argued October 7, 2014 — Decided
December 15, 2014. On Writ of Certiorari to the U.S. Court of Appeals for the
Tenth Circuit.
OWENS. U.S. Supreme Court. Case No. 13-719. Argued October 7, 2014 — Decided
December 15, 2014. On Writ of Certiorari to the U.S. Court of Appeals for the
Tenth Circuit.
Syllabus
A defendant seeking to remove a case from state to federal court
must file in the federal forum a notice of removal “containing a short and plain
statement of the grounds for removal.” 28 U.S.C. §1446(a).
Respondent Owens filed a putative class action in Kansas state
court, seeking compensation for damages class members allegedly sustained when
petitioners (collectively, Dart) underpaid royalties due under certain oil and
gas leases. Dart removed the case to the Federal District Court, invoking the
Class Action Fairness Act of 2005 (CAFA), which gives federal courts
jurisdiction over class actions if the amount in controversy exceeds $5 million,
28 U.S.C. §1332(d)(2). Dart’s notice of removal alleged that the purported
underpayments totaled over $8.2 million. Owens moved to remand the case to state
court, asserting that the removal notice was “deficient as a matter of law”
because it included “no evidence” proving that the amount in controversy
exceeded $5 million. In response, Dart submitted an executive’s detailed
declaration supporting an amount in controversy in excess of $11 million. The
District Court granted Owens’ remand motion, reading Tenth Circuit precedent to
require proof of the amount in controversy in the notice of removal itself. Dart
petitioned the Tenth Circuit for permission to appeal, see §1453(c)(1), but that
court denied review and rehearing en banc.
Held:
1. As specified in §1446(a), a defendant’s notice of removal need
include only a plausible allegation that the amount in controversy exceeds the
jurisdictional threshold; the notice need not contain evidentiary
submissions.
Section 1446(a) tracks the general pleading requirement stated in
Rule 8(a) of the Federal Rules of Civil Procedure. By borrowing Rule 8(a)’s
“short and plain statement” standard, corroborative history indicates, Congress
intended to clarify that courts should “apply the same liberal rules [to removal
allegations as] to other matters of pleading.” H. R. Rep. No. 100-889, p. 71.
The amount-in-controversy allegation of a plaintiff invoking federal-court
jurisdiction is accepted if made in good faith. See, e.g., Mt. Healthy
City Bd. of Ed. v. Doyle, 429 U.S. 274, 276. Similarly, the
amount-in-controversy allegation of a defendant seeking federal-court
adjudication should be accepted when not contested by the plaintiff or
questioned by the court. In the event that the plaintiff does contest the
defendant’s allegations, both sides submit proof and the court decides, by a
preponderance of the evidence, whether the amount-in-controversy requirement has
been satisfied, see §1446(c)(2)(B).
In remanding the case to state court, the District Court relied, in
part, on a purported “presumption” against removal, but no antiremoval
presumption attends cases invoking CAFA, a statute Congress enacted to
facilitate adjudication of certain class actions in federal court. See
Standard Fire Ins. Co. v. Knowles, 568 U.S. ___, ___. Pp.
4-7.
2. The District Court erred in remanding this case for want of an
evidentiary submission in the notice of removal, and the Tenth Circuit abused
its discretion in denying review of that decision. Pp. 7-14.
(a) This Court concludes that no jurisdictional barrier impedes
settlement of the question presented: whether evidence supporting the amount in
controversy must be included in a notice of removal. The case was “in” the Tenth
Circuit because of Dart’s application for leave to appeal, and the Court has
jurisdiction to review what the Court of Appeals did with that application. See
28 U.S.C. §1254; Hohn v. United States, 524 U.S. 236, 248. Pp.
7-8.
(b) While appellate review of a remand order is discretionary,
exercise of that discretion is not rudderless, see Highmark Inc. v.
Allcare Health Management System, Inc., 572 U.S. ___, ___, and a court
“would necessarily abuse its discretion if it based its ruling on an erroneous
view of the law,” Cooter & Gell v. Hartmarx Corp., 496 U.S.
384, 405. The Tenth Circuit had previously stated considerations bearing on the
intelligent exercise of discretion under §1453(c)(1). One of those
considerations is particularly relevant here: a court of appeals should inquire
whether, if a district court’s remand order remains undisturbed, the case will
“leave the ambit of the federal courts for good, precluding any other
opportunity for [the defendant] to vindicate its claimed legal entitlement
[under CAFA] . . . to have a federal tribunal adjudicate the merits.” BP
America, Inc. v. Oklahoma ex rel. Edmondson, 613 F. 3d 1029, 1035.
Thus the Tenth Circuit’s own guide weighed heavily in favor of accepting Dart’s
appeal. In practical effect, the Court of Appeals’ denial of review established
the law — the requirement of proof of the amount in controversy in the removal
notice — not simply for this case, but for future CAFA removals sought by
defendants in the Tenth Circuit, leaving those defendants with no realistic
opportunity to resist making the evidentiary submission.
The District Court, driven by its conscientious endeavor to follow
Circuit precedent, erred in ruling that Dart’s amount-in-controversy allegation
failed for want of proof. It was an abuse of discretion for the Tenth Circuit to
deny Dart’s request for review, for that disposition fastened on district courts
within the Circuit an erroneous view of the law. Contrary to the law the
District Court derived from Tenth Circuit precedent, a removal notice need only
plausibly allege, not detail proof of, the amount in controversy. Pp.
8-14.
Vacated and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., filed a dissenting
opinion, in which KENNEDY and KAGAN, JJ., joined, and in which THOMAS, J.,
joined as to all but the final sentence. THOMAS, J., filed a dissenting opinion.
and BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., filed a dissenting
opinion, in which KENNEDY and KAGAN, JJ., joined, and in which THOMAS, J.,
joined as to all but the final sentence. THOMAS, J., filed a dissenting opinion.
__________________
JUSTICE GINSBURG delivered the opinion of the Court.
To remove a case from a state court to a federal court, a defendant must file
in the federal forum a notice of removal “containing a short and plain statement
of the grounds for removal.” 28 U.S.C. §1446(a). When removal is based on
diversity of citizenship, an amount-in-controversy requirement must be met.
Ordinarily, “the matter in controversy [must] excee[d] the sum or value of
$75,000.” §1332(a). In class actions for which the requirement of diversity of
citizenship is relaxed, §1332(d) (2)(A)-(C), “the matter in controversy [must]
excee[d] the sum or value of $5,000,000,” §1332(d)(2). If the plaintiff’s
complaint, filed in state court, demands monetary relief of a stated sum, that
sum, if asserted in good faith, is “deemed to be the amount in controversy.”
§1446(c)(2). When the plaintiff’s complaint does not state the amount in
controversy, the defendant’s notice of removal may do so. §1446(c)(2)(A).
in the federal forum a notice of removal “containing a short and plain statement
of the grounds for removal.” 28 U.S.C. §1446(a). When removal is based on
diversity of citizenship, an amount-in-controversy requirement must be met.
Ordinarily, “the matter in controversy [must] excee[d] the sum or value of
$75,000.” §1332(a). In class actions for which the requirement of diversity of
citizenship is relaxed, §1332(d) (2)(A)-(C), “the matter in controversy [must]
excee[d] the sum or value of $5,000,000,” §1332(d)(2). If the plaintiff’s
complaint, filed in state court, demands monetary relief of a stated sum, that
sum, if asserted in good faith, is “deemed to be the amount in controversy.”
§1446(c)(2). When the plaintiff’s complaint does not state the amount in
controversy, the defendant’s notice of removal may do so. §1446(c)(2)(A).
To assert the amount in controversy adequately in the removal notice, does it
suffice to allege the requisite amount plausibly, or must the defendant
incorporate into the notice of removal evidence supporting the allegation? That
is the single question argued here and below by the parties and the issue on
which we granted review. The answer, we hold, is supplied by the removal statute
itself. A statement “short and plain” need not contain evidentiary submissions.
I
Brandon W. Owens, plaintiff below and respondent here, filed a putative class
action in Kansas state court alleging that defendants Dart Cherokee Basin
Operating Company, LLC, and Cherokee Basin Pipeline, LLC (collectively, Dart),
underpaid royalties owed to putative class members under certain oil and gas
leases. The complaint sought “a fair and reasonable amount” to compensate
putative class members for “damages” they sustained due to the alleged
underpayments. App. to Pet. for Cert. 34a, 35a.
action in Kansas state court alleging that defendants Dart Cherokee Basin
Operating Company, LLC, and Cherokee Basin Pipeline, LLC (collectively, Dart),
underpaid royalties owed to putative class members under certain oil and gas
leases. The complaint sought “a fair and reasonable amount” to compensate
putative class members for “damages” they sustained due to the alleged
underpayments. App. to Pet. for Cert. 34a, 35a.
Invoking federal jurisdiction under the Class Action Fairness Act of 2005
(CAFA), Dart removed the case to the U.S. District Court for the District of
Kansas. CAFA gives federal courts jurisdiction over certain class actions,
defined in §1332(d)(1), if the class has more than 100 members, the parties are
minimally diverse, and the amount in controversy exceeds $5 million.
§1332(d)(2), (5)(B); see Standard
Fire Ins. Co. v. Knowles, 568 U.S. ___, ___ (2013) [24 Fla. L.
Weekly Fed. S85a] (slip op., at 3). Dart’s notice of removal alleged that all
three requirements were satisfied. With respect to the amount in controversy,
Dart stated that the purported underpayments to putative class members totaled
more than $8.2 million.
(CAFA), Dart removed the case to the U.S. District Court for the District of
Kansas. CAFA gives federal courts jurisdiction over certain class actions,
defined in §1332(d)(1), if the class has more than 100 members, the parties are
minimally diverse, and the amount in controversy exceeds $5 million.
§1332(d)(2), (5)(B); see Standard
Fire Ins. Co. v. Knowles, 568 U.S. ___, ___ (2013) [24 Fla. L.
Weekly Fed. S85a] (slip op., at 3). Dart’s notice of removal alleged that all
three requirements were satisfied. With respect to the amount in controversy,
Dart stated that the purported underpayments to putative class members totaled
more than $8.2 million.
Owens moved to remand the case to state court. The notice of removal was
“deficient as a matter of law,” Owens asserted, because it included “no
evidence” proving that the amount in controversy exceeded $5 million. App. to
Pet. for Cert. 46a, 53a. In response, Dart submitted a declaration by one of its
executive officers. The declaration included a detailed damages calculation
indicating that the amount in controversy, sans interest, exceeded $11
million. Without challenging Dart’s calculation, Owens urged that Dart’s
amount-in-controversy submission came too late. “[The] legally deficient [notice
of removal],” Owens maintained, could not be cured by “post-removal evidence
about the amount in controversy.” Id., at 100a.
“deficient as a matter of law,” Owens asserted, because it included “no
evidence” proving that the amount in controversy exceeded $5 million. App. to
Pet. for Cert. 46a, 53a. In response, Dart submitted a declaration by one of its
executive officers. The declaration included a detailed damages calculation
indicating that the amount in controversy, sans interest, exceeded $11
million. Without challenging Dart’s calculation, Owens urged that Dart’s
amount-in-controversy submission came too late. “[The] legally deficient [notice
of removal],” Owens maintained, could not be cured by “post-removal evidence
about the amount in controversy.” Id., at 100a.
Reading Tenth Circuit precedent to require proof of the amount in controversy
in the notice of removal itself, the District Court granted Owens’ remand
motion. Dart’s declaration, the District Court held, could not serve to keep the
case in federal court. The Tenth Circuit, as the District Court read Circuit
precedent, “has consistently held that reference to factual allegations or
evidence outside of the petition and notice of removal is not permitted to
determine the amount in controversy.” App. to Pet. for Cert. 26a, and n. 37
(citing Laughlin v. Kmart Corp., 50 F. 3d 871, 873 (1995);
Martin v. Franklin Capital Corp., 251 F. 3d 1284, 1291, n. 4
(2001); Oklahoma Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.
Appx. 775 (2005)).
in the notice of removal itself, the District Court granted Owens’ remand
motion. Dart’s declaration, the District Court held, could not serve to keep the
case in federal court. The Tenth Circuit, as the District Court read Circuit
precedent, “has consistently held that reference to factual allegations or
evidence outside of the petition and notice of removal is not permitted to
determine the amount in controversy.” App. to Pet. for Cert. 26a, and n. 37
(citing Laughlin v. Kmart Corp., 50 F. 3d 871, 873 (1995);
Martin v. Franklin Capital Corp., 251 F. 3d 1284, 1291, n. 4
(2001); Oklahoma Farm Bureau Mut. Ins. Co. v. JSSJ Corp., 149 Fed.
Appx. 775 (2005)).
Ordinarily, remand orders “[are] not reviewable on appeal or otherwise.”
§1447(d). There is an exception, however, for cases invoking CAFA. §1453(c)(1).
In such cases, “a court of appeals may accept an appeal from an order of a
district court granting or denying a motion to remand.” Ibid. Citing this
exception, Dart petitioned the Tenth Circuit for permission to appeal. “Upon
careful consideration of the parties’ submissions, as well as the applicable
law,” the Tenth Circuit panel, dividing two-to-one, denied review. App. to Pet.
for Cert. 13a-14a.
§1447(d). There is an exception, however, for cases invoking CAFA. §1453(c)(1).
In such cases, “a court of appeals may accept an appeal from an order of a
district court granting or denying a motion to remand.” Ibid. Citing this
exception, Dart petitioned the Tenth Circuit for permission to appeal. “Upon
careful consideration of the parties’ submissions, as well as the applicable
law,” the Tenth Circuit panel, dividing two-to-one, denied review. App. to Pet.
for Cert. 13a-14a.
An evenly divided court denied Dart’s petition for en banc review. Dissenting
from the denial of rehearing en banc, Judge Hartz observed that the Tenth
Circuit “[had] let stand a district-court decision that will in effect impose in
this circuit requirements for notices of removal that are even more onerous than
the code pleading requirements that . . . federal courts abandoned long ago.”
730 F. 3d 1234 (2013). The Tenth Circuit was duty-bound to grant Dart’s petition
for rehearing en banc, Judge Hartz urged, because the opportunity “to correct
the law in our circuit” likely would not arise again. Id., at 1235.
Henceforth, Judge Hartz explained, “any diligent attorney . . . would submit to
the evidentiary burden rather than take a chance on remand to state court.”
Ibid.
from the denial of rehearing en banc, Judge Hartz observed that the Tenth
Circuit “[had] let stand a district-court decision that will in effect impose in
this circuit requirements for notices of removal that are even more onerous than
the code pleading requirements that . . . federal courts abandoned long ago.”
730 F. 3d 1234 (2013). The Tenth Circuit was duty-bound to grant Dart’s petition
for rehearing en banc, Judge Hartz urged, because the opportunity “to correct
the law in our circuit” likely would not arise again. Id., at 1235.
Henceforth, Judge Hartz explained, “any diligent attorney . . . would submit to
the evidentiary burden rather than take a chance on remand to state court.”
Ibid.
Dart filed a petition for certiorari in this Court requesting resolution of
the following question: “Whether a defendant seeking removal to federal court is
required to include evidence supporting federal jurisdiction in the notice of
removal, or is alleging the required ‘short and plain statement of the grounds
for removal’ enough?” Pet. for Cert. i. Owens’ brief in opposition raised no
impediment to this Court’s review. (Nor, later, did Owens’ merits brief suggest
any barrier to our consideration of Dart’s petition.) We granted certiorari to
resolve a division among the Circuits on the question presented. 572 U.S. ___
(2014). Compare Ellenburg v. Spartan Motors Chassis, Inc., 519 F.
3d 192, 200 (CA4 2008) (a removing party’s notice of removal need not “meet a
higher pleading standard than the one imposed on a plaintiff in drafting an
initial complaint”), and Spivey v. Vertrue, Inc., 528 F. 3d 982,
986 (CA7 2008) (similar), with Laughlin, 50 F. 3d, at 873 (“the requisite
amount in controversy . . . must be affirmatively established on the face of
either the petition or the removal notice”).
the following question: “Whether a defendant seeking removal to federal court is
required to include evidence supporting federal jurisdiction in the notice of
removal, or is alleging the required ‘short and plain statement of the grounds
for removal’ enough?” Pet. for Cert. i. Owens’ brief in opposition raised no
impediment to this Court’s review. (Nor, later, did Owens’ merits brief suggest
any barrier to our consideration of Dart’s petition.) We granted certiorari to
resolve a division among the Circuits on the question presented. 572 U.S. ___
(2014). Compare Ellenburg v. Spartan Motors Chassis, Inc., 519 F.
3d 192, 200 (CA4 2008) (a removing party’s notice of removal need not “meet a
higher pleading standard than the one imposed on a plaintiff in drafting an
initial complaint”), and Spivey v. Vertrue, Inc., 528 F. 3d 982,
986 (CA7 2008) (similar), with Laughlin, 50 F. 3d, at 873 (“the requisite
amount in controversy . . . must be affirmatively established on the face of
either the petition or the removal notice”).
II
As noted above, a defendant seeking to remove a case to a federal court must
file in the federal forum a notice of removal “containing a short and plain
statement of the grounds for removal.” §1446(a). By design, §1446(a) tracks the
general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil
Procedure. See 14C C. Wright, A. Miller, E. Cooper, & J. Steinman, Federal
Practice and Procedure §3733, pp. 639-641 (4th ed. 2009) (“Section 1446(a)
requires only that the grounds for removal be stated in ‘a short and plain
statement’ — terms borrowed from the pleading requirement set forth in Federal
Rule of Civil Procedure 8(a).”). The legislative history of §1446(a) is
corroborative. Congress, by borrowing the familiar “short and plain statement”
standard from Rule 8(a), intended to “simplify the ‘pleading’ requirements for
removal” and to clarify that courts should “apply the same liberal rules [to
removal allegations] that are applied to other matters of pleading.” H. R. Rep.
No. 100-889, p. 71 (1988). See also ibid. (disapproving decisions
requiring “detailed pleading”).
file in the federal forum a notice of removal “containing a short and plain
statement of the grounds for removal.” §1446(a). By design, §1446(a) tracks the
general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil
Procedure. See 14C C. Wright, A. Miller, E. Cooper, & J. Steinman, Federal
Practice and Procedure §3733, pp. 639-641 (4th ed. 2009) (“Section 1446(a)
requires only that the grounds for removal be stated in ‘a short and plain
statement’ — terms borrowed from the pleading requirement set forth in Federal
Rule of Civil Procedure 8(a).”). The legislative history of §1446(a) is
corroborative. Congress, by borrowing the familiar “short and plain statement”
standard from Rule 8(a), intended to “simplify the ‘pleading’ requirements for
removal” and to clarify that courts should “apply the same liberal rules [to
removal allegations] that are applied to other matters of pleading.” H. R. Rep.
No. 100-889, p. 71 (1988). See also ibid. (disapproving decisions
requiring “detailed pleading”).
When a plaintiff invokes federal-court jurisdiction, the plaintiff’s
amount-in-controversy allegation is accepted if made in good faith. See,
e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274,
276 (1977) (“ ‘[T]he sum claimed by the plaintiff controls if the claim is
apparently made in good faith.’ ”) (quoting St. Paul Mercury Indemnity Co.
v. Red Cab Co., 303 U.S. 283, 288 (1938); alteration in original).
Similarly, when a defendant seeks federal-court adjudication, the defendant’s
amount-in-controversy allegation should be accepted when not contested by the
plaintiff or questioned by the court. Indeed, the Tenth Circuit, although not
disturbing prior decisions demanding proof together with the removal notice,
recognized that it was anomalous to treat commencing plaintiffs and removing
defendants differently with regard to the amount in controversy. See McPhail
v. Deere & Co., 529 F. 3d 947, 953 (2008) (requiring proof by
defendant but not by plaintiff “bears no evident logical relationship either to
the purpose of diversity jurisdiction, or to the principle that those who seek
to invoke federal jurisdiction must establish its prerequisites”).
amount-in-controversy allegation is accepted if made in good faith. See,
e.g., Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274,
276 (1977) (“ ‘[T]he sum claimed by the plaintiff controls if the claim is
apparently made in good faith.’ ”) (quoting St. Paul Mercury Indemnity Co.
v. Red Cab Co., 303 U.S. 283, 288 (1938); alteration in original).
Similarly, when a defendant seeks federal-court adjudication, the defendant’s
amount-in-controversy allegation should be accepted when not contested by the
plaintiff or questioned by the court. Indeed, the Tenth Circuit, although not
disturbing prior decisions demanding proof together with the removal notice,
recognized that it was anomalous to treat commencing plaintiffs and removing
defendants differently with regard to the amount in controversy. See McPhail
v. Deere & Co., 529 F. 3d 947, 953 (2008) (requiring proof by
defendant but not by plaintiff “bears no evident logical relationship either to
the purpose of diversity jurisdiction, or to the principle that those who seek
to invoke federal jurisdiction must establish its prerequisites”).
If the plaintiff contests the defendant’s allegation, §1446(c)(2)(B)
instructs: “[R]emoval . . . is proper on the basis of an amount in controversy
asserted” by the defendant “if the district court finds, by the preponderance of
the evidence, that the amount in controversy exceeds” the jurisdictional
threshold.1 This provision, added to §1446
as part of the Federal Courts Jurisdiction and Venue Clarification Act of 2011
(JVCA), clarifies the procedure in order when a defendant’s assertion of the
amount in controversy is challenged. In such a case, both sides submit proof and
the court decides, by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied. As the House Judiciary
Committee Report on the JVCA observed:
instructs: “[R]emoval . . . is proper on the basis of an amount in controversy
asserted” by the defendant “if the district court finds, by the preponderance of
the evidence, that the amount in controversy exceeds” the jurisdictional
threshold.1 This provision, added to §1446
as part of the Federal Courts Jurisdiction and Venue Clarification Act of 2011
(JVCA), clarifies the procedure in order when a defendant’s assertion of the
amount in controversy is challenged. In such a case, both sides submit proof and
the court decides, by a preponderance of the evidence, whether the
amount-in-controversy requirement has been satisfied. As the House Judiciary
Committee Report on the JVCA observed:
“[D]efendants do not need to prove to a legal certainty that the
amount in controversy requirement has been met. Rather, defendants may simply
allege or assert that the jurisdictional threshold has been met. Discovery may
be taken with regard to that question. In case of a dispute, the district court
must make findings of jurisdictional fact to which the preponderance standard
applies.” H. R. Rep. No. 112-10, p. 16 (2011).
Of course, a dispute about a defendant’s jurisdictional allegations cannot
arise until after the defendant files a notice of removal containing
those allegations. Brief for Dart 14.
arise until after the defendant files a notice of removal containing
those allegations. Brief for Dart 14.
In remanding the case to state court, the District Court relied, in part, on
a purported “presumption” against removal. App. to Pet. for Cert. 28a. See,
e.g., Laughlin, 50 F. 3d, at 873 (“[T]here is a presumption
against removal jurisdiction.”). We need not here decide whether such a
presumption is proper in mine-run diversity cases. It suffices to point out that
no antiremoval presumption attends cases invoking CAFA, which Congress enacted
to facilitate adjudication of certain class actions in federal court. See
Standard Fire Ins. Co., 568 U.S., at ___ (slip op., at 6) (“CAFA’s
primary objective” is to “ensur[e] ‘Federal court consideration of interstate
cases of national importance.’ ” (quoting §2(b)(2), 119 Stat. 5)); S. Rep. No.
109-14, p. 43 (2005) (CAFA’s “provisions should be read broadly, with a strong
preference that interstate class actions should be heard in a federal court if
properly removed by any defendant.”).
a purported “presumption” against removal. App. to Pet. for Cert. 28a. See,
e.g., Laughlin, 50 F. 3d, at 873 (“[T]here is a presumption
against removal jurisdiction.”). We need not here decide whether such a
presumption is proper in mine-run diversity cases. It suffices to point out that
no antiremoval presumption attends cases invoking CAFA, which Congress enacted
to facilitate adjudication of certain class actions in federal court. See
Standard Fire Ins. Co., 568 U.S., at ___ (slip op., at 6) (“CAFA’s
primary objective” is to “ensur[e] ‘Federal court consideration of interstate
cases of national importance.’ ” (quoting §2(b)(2), 119 Stat. 5)); S. Rep. No.
109-14, p. 43 (2005) (CAFA’s “provisions should be read broadly, with a strong
preference that interstate class actions should be heard in a federal court if
properly removed by any defendant.”).
In sum, as specified in §1446(a), a defendant’s notice of removal need
include only a plausible allegation that the amount in controversy exceeds the
jurisdictional threshold. Evidence establishing the amount is required by
§1446(c)(2)(B) only when the plaintiff contests, or the court questions, the
defendant’s allegation.
include only a plausible allegation that the amount in controversy exceeds the
jurisdictional threshold. Evidence establishing the amount is required by
§1446(c)(2)(B) only when the plaintiff contests, or the court questions, the
defendant’s allegation.
III
As in Standard Fire Ins. Co., 568 U.S., at ___-___ (slip op., at 2-3),
we granted review in this case after the Court of Appeals declined to hear an
appeal from a remand order. Neither party in that case or in this one questioned
our review authority under 28 U.S.C. §1254(1) (“Cases in the courts of appeals
may be reviewed . . . [b]y writ of certiorari upon the petition of any party . .
. before or after rendition of judgment.”).2 An amicus brief filed in support of Owens by
Public Citizen, Inc., however, raised a jurisdictional impediment.
we granted review in this case after the Court of Appeals declined to hear an
appeal from a remand order. Neither party in that case or in this one questioned
our review authority under 28 U.S.C. §1254(1) (“Cases in the courts of appeals
may be reviewed . . . [b]y writ of certiorari upon the petition of any party . .
. before or after rendition of judgment.”).2 An amicus brief filed in support of Owens by
Public Citizen, Inc., however, raised a jurisdictional impediment.
Section 1453(c)(1), Public Citizen noted, provides that “a court of appeals
may 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[.]” (Emphasis added.) Because court of appeals review of a remand order
is discretionary, see supra, at 3, and the Tenth Circuit exercised its
discretion to deny review, Public Citizen urged, “[b]oth parties ask this Court
to decide an issue that is not properly before it.” Brief for Public Citizen 6.
“Absent grounds for reversing the court of appeals’ decision to deny permission
to appeal,” Public Citizen asserted, “the merits of the district court’s
decision are not before any appellate court, including this one.” Ibid.
may 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[.]” (Emphasis added.) Because court of appeals review of a remand order
is discretionary, see supra, at 3, and the Tenth Circuit exercised its
discretion to deny review, Public Citizen urged, “[b]oth parties ask this Court
to decide an issue that is not properly before it.” Brief for Public Citizen 6.
“Absent grounds for reversing the court of appeals’ decision to deny permission
to appeal,” Public Citizen asserted, “the merits of the district court’s
decision are not before any appellate court, including this one.” Ibid.
Satisfied that there are indeed “grounds for reversing the [Tenth
Circuit’s] decision to deny permission to appeal,” we find no jurisdictional
barrier to our settlement of the question presented. The case was “in” the Court
of Appeals because of Dart’s leave-to-appeal application, and we have
jurisdiction to review what the Court of Appeals did with that application. See
28 U.S.C. §1254; Hohn v. United States, 524 U.S. 236, 248 (1998).
Owens, we reiterate, did not contest the scope of our review.
Circuit’s] decision to deny permission to appeal,” we find no jurisdictional
barrier to our settlement of the question presented. The case was “in” the Court
of Appeals because of Dart’s leave-to-appeal application, and we have
jurisdiction to review what the Court of Appeals did with that application. See
28 U.S.C. §1254; Hohn v. United States, 524 U.S. 236, 248 (1998).
Owens, we reiterate, did not contest the scope of our review.
Discretion to review a remand order is not rudderless. See Highmark
Inc. v. Allcare Health Management System, Inc., 572 U.S. ___, ___
(2014) [24 Fla. L. Weekly Fed. S729a] (slip op., at 4) (“matters of discretion
are reviewable for abuse of discretion” (internal quotation marks omitted)). A
court “would necessarily abuse its discretion if it based its ruling on an
erroneous view of the law.” Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990). This case fits that bill.3
Inc. v. Allcare Health Management System, Inc., 572 U.S. ___, ___
(2014) [24 Fla. L. Weekly Fed. S729a] (slip op., at 4) (“matters of discretion
are reviewable for abuse of discretion” (internal quotation marks omitted)). A
court “would necessarily abuse its discretion if it based its ruling on an
erroneous view of the law.” Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384, 405 (1990). This case fits that bill.3
There are many signals that the Tenth Circuit relied on the legally erroneous
premise that the District Court’s decision was correct. In an earlier case, the
Tenth Circuit, following the First Circuit’s lead, stated considerations that it
regards as relevant to the intelligent exercise of discretion under §1453(c)(1).
BP America, Inc. v. Oklahoma ex rel. Edmondson, 613 F. 3d 1029,
1034-1035 (2010) (adopting factors set out in College of Dental Surgeons of
Puerto Rico v. Connecticut Gen. Life Ins. Co., 585 F. 3d 33, 38-39
(CA1 2009)).4 When the CAFA-related
question presented in an appeal from a remand order is “important, unsettled,
and recurrent,” the First Circuit instructed, a court of appeals should inquire:
“Absent an interlocutory appeal, [will the question] in all probability escape
meaningful appellate review.” Id., at 39. Or, as phrased by the Tenth
Circuit, if a district court’s remand order remains undisturbed, will the case
“leave the ambit of the federal courts for good, precluding any other
opportunity for [the defendant] to vindicate its claimed legal entitlement
[under CAFA] . . . to have a federal tribunal adjudicate the merits.” BP
America, 613 F. 3d, at 1035. See also Coffey v. Freeport McMoran
Copper & Gold, 581 F. 3d 1240, 1247 (CA10 2009) (noting that “the
purpose of §1453(c)(1) is to develop a body of appellate law interpreting CAFA”
(brackets and internal quotation marks omitted)). Thus, the Tenth Circuit’s own
guide weighed heavily in favor of accepting Dart’s appeal. That the Court of
Appeals, instead, rejected Dart’s appeal strongly suggests that the panel
thought the District Court got it right in requiring proof of the amount in
controversy in the removal notice.
premise that the District Court’s decision was correct. In an earlier case, the
Tenth Circuit, following the First Circuit’s lead, stated considerations that it
regards as relevant to the intelligent exercise of discretion under §1453(c)(1).
BP America, Inc. v. Oklahoma ex rel. Edmondson, 613 F. 3d 1029,
1034-1035 (2010) (adopting factors set out in College of Dental Surgeons of
Puerto Rico v. Connecticut Gen. Life Ins. Co., 585 F. 3d 33, 38-39
(CA1 2009)).4 When the CAFA-related
question presented in an appeal from a remand order is “important, unsettled,
and recurrent,” the First Circuit instructed, a court of appeals should inquire:
“Absent an interlocutory appeal, [will the question] in all probability escape
meaningful appellate review.” Id., at 39. Or, as phrased by the Tenth
Circuit, if a district court’s remand order remains undisturbed, will the case
“leave the ambit of the federal courts for good, precluding any other
opportunity for [the defendant] to vindicate its claimed legal entitlement
[under CAFA] . . . to have a federal tribunal adjudicate the merits.” BP
America, 613 F. 3d, at 1035. See also Coffey v. Freeport McMoran
Copper & Gold, 581 F. 3d 1240, 1247 (CA10 2009) (noting that “the
purpose of §1453(c)(1) is to develop a body of appellate law interpreting CAFA”
(brackets and internal quotation marks omitted)). Thus, the Tenth Circuit’s own
guide weighed heavily in favor of accepting Dart’s appeal. That the Court of
Appeals, instead, rejected Dart’s appeal strongly suggests that the panel
thought the District Court got it right in requiring proof of the amount in
controversy in the removal notice.
In practical effect, the Court of Appeals’ denial of review established the
law not simply for this case, but for future CAFA removals sought by defendants
in the Tenth Circuit. The likelihood is slim that a later case will arise in
which the Tenth Circuit will face a plea to retract the rule that both Owens and
the District Court ascribed to decisions of the Court of Appeals: Defendants
seeking to remove under CAFA must be sent back to state court unless they submit
with the notice of removal evidence proving the alleged amount in controversy.
See supra, at 3. On this point, Judge Hartz’s observation, dissenting
from the Tenth Circuit’s denial of rehearing en banc, see supra, at 4,
bears recounting in full:
law not simply for this case, but for future CAFA removals sought by defendants
in the Tenth Circuit. The likelihood is slim that a later case will arise in
which the Tenth Circuit will face a plea to retract the rule that both Owens and
the District Court ascribed to decisions of the Court of Appeals: Defendants
seeking to remove under CAFA must be sent back to state court unless they submit
with the notice of removal evidence proving the alleged amount in controversy.
See supra, at 3. On this point, Judge Hartz’s observation, dissenting
from the Tenth Circuit’s denial of rehearing en banc, see supra, at 4,
bears recounting in full:
“After today’s decision any diligent attorney (and one can assume
that an attorney representing a defendant in a case involving at least $5
million — the threshold for removal under CAFA — would have substantial
incentive to be diligent) would submit to the evidentiary burden rather than
take a chance on remand to state court.” 730 F. 3d, at 1235.
With no responsible attorney likely to renew the fray, Judge Hartz
anticipated, “the issue will not arise again.” Ibid. Consequently, the
law applied by the District Court — demanding that the notice of removal
contain evidence documenting the amount in controversy — will be frozen in
place for all venues within the Tenth Circuit.5
anticipated, “the issue will not arise again.” Ibid. Consequently, the
law applied by the District Court — demanding that the notice of removal
contain evidence documenting the amount in controversy — will be frozen in
place for all venues within the Tenth Circuit.5
Recall that the Court of Appeals denied Dart’s petition for review “[u]pon
careful consideration of the parties’ submissions, as well as the applicable
law.” App. to Pet. for Cert. 13a. What did the parties submit to the Tenth
Circuit? Their presentations urged conflicting views on whether a removing
defendant must tender prima facie proof of the amount in controversy as part of
the removal notice. And what was “the applicable law” other than the rule
recited by the Tenth Circuit in Laughlin and follow-on decisions,
i.e., to remove successfully, a defendant must present with the notice of
removal evidence proving the amount in controversy.6
careful consideration of the parties’ submissions, as well as the applicable
law.” App. to Pet. for Cert. 13a. What did the parties submit to the Tenth
Circuit? Their presentations urged conflicting views on whether a removing
defendant must tender prima facie proof of the amount in controversy as part of
the removal notice. And what was “the applicable law” other than the rule
recited by the Tenth Circuit in Laughlin and follow-on decisions,
i.e., to remove successfully, a defendant must present with the notice of
removal evidence proving the amount in controversy.6
From all signals one can discern then, the Tenth Circuit’s denial of Dart’s
request for review of the remand order was infected by legal error. The District
Court erred in ruling that Dart’s amount-in-controversy allegation failed for
want of proof, but that error was driven by the District Court’s conscientious
endeavor to follow Circuit precedent. The parties trained their arguments in the
Tenth Circuit, as they did here, on the question whether Dart could successfully
remove without detailing in the removal notice evidence of the amount in
controversy. See Tr. of Oral Arg. 47 (acknowledgment by Owens’ counsel that “the
issues . . . provided to . . . the Tenth Circuit were very similar to what you
see in this Court, with the exception of [the question raised by Public Citizen]
whether this Court has jurisdiction”). Dissenting from the denial of rehearing
en banc, Judge Hartz explained at length why the Tenth Circuit “owe[d] a duty to
the bench and bar” to correct the District Court’s misperception and to state as
the Circuit’s law: “[A] defendant seeking removal under CAFA need only allege
the jurisdictional amount in its notice of removal and must prove that amount
only if the plaintiff challenges the allegation.” 730 F. 3d, at 1234, 1238. In
this regard, we note, the Tenth Circuit has cautioned against casual rulings on
applications like Dart’s. “The decision whether to grant leave to appeal” under
§1453(c), the Tenth Circuit stressed, calls for the exercise of the reviewing
court’s correctly “informed discretion.” BP America, 613 F. 3d, at
1035 (emphasis added); see supra, at 8-9.
request for review of the remand order was infected by legal error. The District
Court erred in ruling that Dart’s amount-in-controversy allegation failed for
want of proof, but that error was driven by the District Court’s conscientious
endeavor to follow Circuit precedent. The parties trained their arguments in the
Tenth Circuit, as they did here, on the question whether Dart could successfully
remove without detailing in the removal notice evidence of the amount in
controversy. See Tr. of Oral Arg. 47 (acknowledgment by Owens’ counsel that “the
issues . . . provided to . . . the Tenth Circuit were very similar to what you
see in this Court, with the exception of [the question raised by Public Citizen]
whether this Court has jurisdiction”). Dissenting from the denial of rehearing
en banc, Judge Hartz explained at length why the Tenth Circuit “owe[d] a duty to
the bench and bar” to correct the District Court’s misperception and to state as
the Circuit’s law: “[A] defendant seeking removal under CAFA need only allege
the jurisdictional amount in its notice of removal and must prove that amount
only if the plaintiff challenges the allegation.” 730 F. 3d, at 1234, 1238. In
this regard, we note, the Tenth Circuit has cautioned against casual rulings on
applications like Dart’s. “The decision whether to grant leave to appeal” under
§1453(c), the Tenth Circuit stressed, calls for the exercise of the reviewing
court’s correctly “informed discretion.” BP America, 613 F. 3d, at
1035 (emphasis added); see supra, at 8-9.
Recall, moreover, that Owens never suggested in his written submissions to
this Court that anything other than the question presented accounts for the
Court of Appeals’ disposition. If Owens believed that the Tenth Circuit’s denial
of leave to appeal rested on some other ground, he might have said so in his
brief in opposition or, at least, in his merits brief. See this Court’s Rule
15.2; Granite
Rock Co. v. Teamsters, 561 U.S. 287, 306 (2010) [22 Fla. L.
Weekly Fed. S593a]. He said nothing of that order, for he, like Dart,
anticipated that the question presented was ripe for this Court’s resolution.
this Court that anything other than the question presented accounts for the
Court of Appeals’ disposition. If Owens believed that the Tenth Circuit’s denial
of leave to appeal rested on some other ground, he might have said so in his
brief in opposition or, at least, in his merits brief. See this Court’s Rule
15.2; Granite
Rock Co. v. Teamsters, 561 U.S. 287, 306 (2010) [22 Fla. L.
Weekly Fed. S593a]. He said nothing of that order, for he, like Dart,
anticipated that the question presented was ripe for this Court’s resolution.
In the above-described circumstances, we find it an abuse of discretion for
the Tenth Circuit to deny Dart’s request for review. Doing so froze the
governing rule in the Circuit for this case and future CAFA removal notices,
with no opportunity for defendants in Dart’s position responsibly to resist
making the evidentiary submission. That situation would be bizarre for a
decisionmaker who did not think that the amount in controversy in diversity
cases is a matter a removal notice must demonstrate by evidence, not merely
credibly allege.7 And if the Circuit
precedent on which the District Court relied misstated the law, as we hold it
did, then the District Court’s order remanding this case to the state court is
fatally infected by legal error.
the Tenth Circuit to deny Dart’s request for review. Doing so froze the
governing rule in the Circuit for this case and future CAFA removal notices,
with no opportunity for defendants in Dart’s position responsibly to resist
making the evidentiary submission. That situation would be bizarre for a
decisionmaker who did not think that the amount in controversy in diversity
cases is a matter a removal notice must demonstrate by evidence, not merely
credibly allege.7 And if the Circuit
precedent on which the District Court relied misstated the law, as we hold it
did, then the District Court’s order remanding this case to the state court is
fatally infected by legal error.
Careful inspection thus reveals that the two issues Public Citizen invites us
to separate — whether the Tenth Circuit abused its discretion in denying
review, and whether the District Court’s remand order was erroneous — do not
pose genuinely discrete questions. Instead, resolution of both issues depends on
the answer to the very same question: What must the removal notice contain? If
the notice need not contain evidence, the Tenth Circuit abused its discretion in
effectively making the opposing view the law of the Circuit. By the same token,
the District Court erred in remanding the case for want of an evidentiary
submission in the removal notice. We no doubt have authority to review for abuse
of discretion the Tenth Circuit’s denial of Dart’s appeal from the District
Court’s remand order, see supra, at 8, and in doing so, to correct the
erroneous view of the law the Tenth Circuit’s decision fastened on district
courts within the Circuit’s domain.8
to separate — whether the Tenth Circuit abused its discretion in denying
review, and whether the District Court’s remand order was erroneous — do not
pose genuinely discrete questions. Instead, resolution of both issues depends on
the answer to the very same question: What must the removal notice contain? If
the notice need not contain evidence, the Tenth Circuit abused its discretion in
effectively making the opposing view the law of the Circuit. By the same token,
the District Court erred in remanding the case for want of an evidentiary
submission in the removal notice. We no doubt have authority to review for abuse
of discretion the Tenth Circuit’s denial of Dart’s appeal from the District
Court’s remand order, see supra, at 8, and in doing so, to correct the
erroneous view of the law the Tenth Circuit’s decision fastened on district
courts within the Circuit’s domain.8
* * *
For the reasons stated, the judgment of the U.S. Court of Appeals for the
Tenth Circuit is vacated, and the case is remanded for further proceedings
consistent with this opinion.
Tenth Circuit is vacated, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
__________________
1Section 1446(c)(2) applies to removals
“sought on the basis of the jurisdiction conferred by section 1332(a),”
and §1446(c)(2)(B) provides that “removal of the action is proper . . . [if] the
amount in controversy exceeds the [in excess of $75,000] amount specified in
section 1332(a)” (emphasis added). We assume, without deciding, a point
the parties do not dispute: Sections 1446(c)(2) and 1446(c)(2)(B) apply to cases
removed under §1332(d)(2), and removal is proper if the amount in controversy
exceeds $5 million, the amount specified in §1332(d)(2). See Frederick v.
Hartford Underwriters Ins. Co., 683 F. 3d 1242, 1247 (CA10 2012)
(“[T]here is no logical reason why we should demand more from a CAFA defendant
than other parties invoking federal jurisdiction.” (internal quotation marks
omitted)).
“sought on the basis of the jurisdiction conferred by section 1332(a),”
and §1446(c)(2)(B) provides that “removal of the action is proper . . . [if] the
amount in controversy exceeds the [in excess of $75,000] amount specified in
section 1332(a)” (emphasis added). We assume, without deciding, a point
the parties do not dispute: Sections 1446(c)(2) and 1446(c)(2)(B) apply to cases
removed under §1332(d)(2), and removal is proper if the amount in controversy
exceeds $5 million, the amount specified in §1332(d)(2). See Frederick v.
Hartford Underwriters Ins. Co., 683 F. 3d 1242, 1247 (CA10 2012)
(“[T]here is no logical reason why we should demand more from a CAFA defendant
than other parties invoking federal jurisdiction.” (internal quotation marks
omitted)).
2Today’s dissenters joined the opinion in
Standard
Fire Ins. Co. v. Knowles, 568 U.S. ___ (2013) [24 Fla. L. Weekly
Fed. S85a], without suggesting any lack of jurisdiction to reach the merits.
Standard
Fire Ins. Co. v. Knowles, 568 U.S. ___ (2013) [24 Fla. L. Weekly
Fed. S85a], without suggesting any lack of jurisdiction to reach the merits.
3JUSTICE SCALIA’s dissent (hereafter
dissent) faults Dart for asserting, late in the day, that the Tenth Circuit
abused its discretion, observing that Dart did so only in its reply brief.
Post, at 6. But Public Citizen teed up that issue after the
parties filed their merits briefs. In view of this Court’s decision in
Standard Fire Ins. Co., 568 U.S. ___, see supra, at 7-8, the
parties had no cause to address the matter earlier.
dissent) faults Dart for asserting, late in the day, that the Tenth Circuit
abused its discretion, observing that Dart did so only in its reply brief.
Post, at 6. But Public Citizen teed up that issue after the
parties filed their merits briefs. In view of this Court’s decision in
Standard Fire Ins. Co., 568 U.S. ___, see supra, at 7-8, the
parties had no cause to address the matter earlier.
4Neither court stated the listed
considerations as an inflexible test. We have no occasion in this case to review
each of the factors identified by the First and Tenth Circuits.
considerations as an inflexible test. We have no occasion in this case to review
each of the factors identified by the First and Tenth Circuits.
5The dissent suggests that the Tenth
Circuit may have another opportunity to set Circuit precedent straight: A lawyer
may be irresponsible or fail to learn from Dart’s experience; or perhaps a
lawyer will put in evidence the district court deems insufficient, and then have
a go at arguing that the evidence was sufficient and, in any event, “no evidence
is required at all.” Post, at 5-6. That such a case will occur, and that
the Tenth Circuit would then seize the very opportunity it passed up in Dart’s
case, is hardly probable.
Circuit may have another opportunity to set Circuit precedent straight: A lawyer
may be irresponsible or fail to learn from Dart’s experience; or perhaps a
lawyer will put in evidence the district court deems insufficient, and then have
a go at arguing that the evidence was sufficient and, in any event, “no evidence
is required at all.” Post, at 5-6. That such a case will occur, and that
the Tenth Circuit would then seize the very opportunity it passed up in Dart’s
case, is hardly probable.
6The dissent posits that “the applicable
law” might have been something other than the law governing the parties’
submissions. Post, at 3, 4. That is a strained reading of the Tenth
Circuit’s expression. Perhaps the Tenth Circuit found this case a “poor
vehicle,” the dissent suggests, post, at 2, but no potential vehicle
concerns were urged by Owens, and the dissent identifies none. Or the Tenth
Circuit might have doubted its “ability to quickly resolve the issue” within the
60-day time limit provided in §1453(c)(2)-(3). Ibid.; see also
post, at 4. Section 1453(c)’s timing provision, however, was designed to
promote expedition, not to discourage Courts of Appeals from acting on petitions
for appeal. As a third “maybe,” the dissent observes that proof of the amount in
controversy in removal notices is not “a question unique to [CAFA].” Post,
at 3. True, the Tenth Circuit demands such proof in ordinary diversity
cases. See Laughlin v. Kmart Corp., 50 F. 3d 871, 873 (1995). But
that does not make the imposition one whit less in CAFA cases.
law” might have been something other than the law governing the parties’
submissions. Post, at 3, 4. That is a strained reading of the Tenth
Circuit’s expression. Perhaps the Tenth Circuit found this case a “poor
vehicle,” the dissent suggests, post, at 2, but no potential vehicle
concerns were urged by Owens, and the dissent identifies none. Or the Tenth
Circuit might have doubted its “ability to quickly resolve the issue” within the
60-day time limit provided in §1453(c)(2)-(3). Ibid.; see also
post, at 4. Section 1453(c)’s timing provision, however, was designed to
promote expedition, not to discourage Courts of Appeals from acting on petitions
for appeal. As a third “maybe,” the dissent observes that proof of the amount in
controversy in removal notices is not “a question unique to [CAFA].” Post,
at 3. True, the Tenth Circuit demands such proof in ordinary diversity
cases. See Laughlin v. Kmart Corp., 50 F. 3d 871, 873 (1995). But
that does not make the imposition one whit less in CAFA cases.
7Caution is in order when attributing a
basis to an unreasoned decision. But we have not insisted upon absolute
certainty when that basis is fairly inferred from the record. See Taylor
v. McKeithen, 407 U.S. 191, 193, n. 2 (1972) (per curiam)
(rejecting “possible, but unlikely” basis for unreasoned decision); Nixon
v. Fitzgerald, 457 U.S. 731, 742-743 (1982) (facing an unreasoned
Court of Appeals decision, we projected what the Court of Appeals “appears to
have” reasoned); Tr. of Oral Arg. 18-19 (observing that an appellate court often
assumes that a first instance court based its unexplained discretionary decision
on the ground the prevailing party presented).
basis to an unreasoned decision. But we have not insisted upon absolute
certainty when that basis is fairly inferred from the record. See Taylor
v. McKeithen, 407 U.S. 191, 193, n. 2 (1972) (per curiam)
(rejecting “possible, but unlikely” basis for unreasoned decision); Nixon
v. Fitzgerald, 457 U.S. 731, 742-743 (1982) (facing an unreasoned
Court of Appeals decision, we projected what the Court of Appeals “appears to
have” reasoned); Tr. of Oral Arg. 18-19 (observing that an appellate court often
assumes that a first instance court based its unexplained discretionary decision
on the ground the prevailing party presented).
8Our disposition does not preclude the
Tenth Circuit from asserting and explaining on remand that a permissible ground
underlies its decision to decline Dart’s appeal.
Tenth Circuit from asserting and explaining on remand that a permissible ground
underlies its decision to decline Dart’s appeal.
__________________
JUSTICE SCALIA, with whom JUSTICE KENNEDY and JUSTICE KAGAN join, and with
whom JUSTICE THOMAS joins as to all but the final sentence, dissenting.
whom JUSTICE THOMAS joins as to all but the final sentence, dissenting.
When Dart removed this class action to federal court, it was required to file
a “notice of removal” containing “a short and plain statement of the grounds for
removal.” 28 U.S.C. §1446(a). In accordance with what it thought to be Tenth
Circuit jurisprudence, the District Court interpreted this to require evidence
(as opposed to mere allegations) supporting federal jurisdiction. After finding
that Dart’s notice of removal did not include evidence of the jurisdictionally
required amount in controversy, the District Court remanded the case to state
court. App. to Pet. for Cert. 25a-28a. Dart sought permission to appeal this
order under §1453(c)(1), which provides that “a court of appeals may
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”
(emphasis added). Without stating its reasons, the Tenth Circuit issued an order
denying Dart’s request. App. to Pet. for Cert. 13a.
a “notice of removal” containing “a short and plain statement of the grounds for
removal.” 28 U.S.C. §1446(a). In accordance with what it thought to be Tenth
Circuit jurisprudence, the District Court interpreted this to require evidence
(as opposed to mere allegations) supporting federal jurisdiction. After finding
that Dart’s notice of removal did not include evidence of the jurisdictionally
required amount in controversy, the District Court remanded the case to state
court. App. to Pet. for Cert. 25a-28a. Dart sought permission to appeal this
order under §1453(c)(1), which provides that “a court of appeals may
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”
(emphasis added). Without stating its reasons, the Tenth Circuit issued an order
denying Dart’s request. App. to Pet. for Cert. 13a.
Eager to correct what we suspected was the District Court’s (and the Tenth
Circuit’s) erroneous interpretation of §1446(a), we granted certiorari to decide
whether notices of removal must contain evidence supporting federal
jurisdiction. After briefing we discovered a little snag: This case does not
present that question. Because we are reviewing the Tenth Circuit’s
judgment, the only question before us is whether the Tenth Circuit abused
its discretion in denying Dart permission to appeal the District Court’s remand
order. Once we found out that the issue presented differed from the issue we
granted certiorari to review, the responsible course would have been to confess
error and to dismiss the case as improvidently granted.
Circuit’s) erroneous interpretation of §1446(a), we granted certiorari to decide
whether notices of removal must contain evidence supporting federal
jurisdiction. After briefing we discovered a little snag: This case does not
present that question. Because we are reviewing the Tenth Circuit’s
judgment, the only question before us is whether the Tenth Circuit abused
its discretion in denying Dart permission to appeal the District Court’s remand
order. Once we found out that the issue presented differed from the issue we
granted certiorari to review, the responsible course would have been to confess
error and to dismiss the case as improvidently granted.
The Court, however, insists on deciding whether the District Court erred in
remanding this case to state court. How can it do that, one might ask, when the
only issue in this case concerns the propriety of the Tenth Circuit’s rejection
of Dart’s appeal? The Court hits upon a solution: It concludes that the Tenth
Circuit decided not to hear the appeal because it agreed with the District
Court’s analysis. Attributing the District Court’s reasoning to the Tenth
Circuit allows the Court to pretend to review the appellate court’s exercise of
discretion while actually reviewing the trial court’s legal analysis.
remanding this case to state court. How can it do that, one might ask, when the
only issue in this case concerns the propriety of the Tenth Circuit’s rejection
of Dart’s appeal? The Court hits upon a solution: It concludes that the Tenth
Circuit decided not to hear the appeal because it agreed with the District
Court’s analysis. Attributing the District Court’s reasoning to the Tenth
Circuit allows the Court to pretend to review the appellate court’s exercise of
discretion while actually reviewing the trial court’s legal analysis.
There are problems with this approach that are, in a rational world,
insuperable. To begin with, the Tenth Circuit’s short order does not tell us why
it decided not to hear Dart’s appeal. It might have done so for an
impermissible reason — for example, agreement with the District Court’s legal
reasoning. But it might instead have done so for countless other, permissible,
reasons — for example, a concern that this would be a poor vehicle for deciding
the issue presented by Dart’s appeal, or a concern regarding the court’s ability
to quickly resolve the issue, see §1453(c)(2)-(3) (providing that appeals
accepted under §1453(c)(1) must be decided within 60 days, absent consent of the
parties, with a 10-day extension for “good cause shown and in the interests of
justice”).
insuperable. To begin with, the Tenth Circuit’s short order does not tell us why
it decided not to hear Dart’s appeal. It might have done so for an
impermissible reason — for example, agreement with the District Court’s legal
reasoning. But it might instead have done so for countless other, permissible,
reasons — for example, a concern that this would be a poor vehicle for deciding
the issue presented by Dart’s appeal, or a concern regarding the court’s ability
to quickly resolve the issue, see §1453(c)(2)-(3) (providing that appeals
accepted under §1453(c)(1) must be decided within 60 days, absent consent of the
parties, with a 10-day extension for “good cause shown and in the interests of
justice”).
Not long ago we held, unanimously, that “[a]n appellate court should not
presume that a district court intended an incorrect legal result when the order
is equally susceptible of a correct reading, particularly when the applicable
standard of review is deferential.” Sprint/United
Management Co. v. Mendelsohn, 552 U.S. 379, 386 (2008) [21 Fla.
L. Weekly Fed. S93a]. There, we corrected the Tenth Circuit for doing precisely
what the Court itself does today in reviewing (deferentially) the Tenth
Circuit’s denial of permission to appeal: presuming that the lower court adopted
a legally erroneous argument advanced by one party. Id., at 384-385. We
explained to the Tenth Circuit that “it would be inappropriate for the reviewing
court to assume, absent indication in the District Court’s opinion, that
the lower court adopted a party’s incorrect argument.” Id., at 385, n. 2
(emphasis added). Today, however, this Court blatantly violates that rule.
presume that a district court intended an incorrect legal result when the order
is equally susceptible of a correct reading, particularly when the applicable
standard of review is deferential.” Sprint/United
Management Co. v. Mendelsohn, 552 U.S. 379, 386 (2008) [21 Fla.
L. Weekly Fed. S93a]. There, we corrected the Tenth Circuit for doing precisely
what the Court itself does today in reviewing (deferentially) the Tenth
Circuit’s denial of permission to appeal: presuming that the lower court adopted
a legally erroneous argument advanced by one party. Id., at 384-385. We
explained to the Tenth Circuit that “it would be inappropriate for the reviewing
court to assume, absent indication in the District Court’s opinion, that
the lower court adopted a party’s incorrect argument.” Id., at 385, n. 2
(emphasis added). Today, however, this Court blatantly violates that rule.
The only “indication in the opinion” that the Court relies on is the
following language from the order denying permission to appeal: “Upon careful
consideration of [1] the parties’ submissions, as well as [2] the applicable
law, the Petition [for permission to appeal the remand order] is denied.” App.
to Pet. for Cert. 13a-14a. This, the Court tells us, means the Tenth Circuit
must have denied Dart’s petition because it agreed with the District Court’s
legal conclusion. Of course it means no such thing.
following language from the order denying permission to appeal: “Upon careful
consideration of [1] the parties’ submissions, as well as [2] the applicable
law, the Petition [for permission to appeal the remand order] is denied.” App.
to Pet. for Cert. 13a-14a. This, the Court tells us, means the Tenth Circuit
must have denied Dart’s petition because it agreed with the District Court’s
legal conclusion. Of course it means no such thing.
As for point [1], considering a submission is not the same thing as
agreeing with that submission. Worse still, correctness of the District
Court’s opinion was not the only ground that Owens’ brief in the Tenth Circuit
urged to support denial of the petition for review. It noted, for example, that
the case addressed the general removal statute, §1446(a), and so did not involve
a question unique to the Class Action Fairness Act of 2005 (CAFA). Response to
Petition for Permission to Appeal in No. 13-603, p. 3. (The Tenth Circuit
considers “the presence of an important CAFA-related question” a reason to
accept an appeal. BP America, Inc. v. Oklahoma ex rel. Edmonson,
613 F. 3d 1029, 1034 (2010) (internal quotation marks omitted).)
agreeing with that submission. Worse still, correctness of the District
Court’s opinion was not the only ground that Owens’ brief in the Tenth Circuit
urged to support denial of the petition for review. It noted, for example, that
the case addressed the general removal statute, §1446(a), and so did not involve
a question unique to the Class Action Fairness Act of 2005 (CAFA). Response to
Petition for Permission to Appeal in No. 13-603, p. 3. (The Tenth Circuit
considers “the presence of an important CAFA-related question” a reason to
accept an appeal. BP America, Inc. v. Oklahoma ex rel. Edmonson,
613 F. 3d 1029, 1034 (2010) (internal quotation marks omitted).)
As for point [2], there is no reason whatever to believe that the only
“applicable law” the Tenth Circuit considered and relied on was the law relating
to the correctness of the District Court’s decision — i.e., the law
interpreting §1446(a). After all, the “applicable law” surely includes the law
applicable to the disposition of petitions to appeal, §1453(c)(1), and that body
of law includes countless reasons to deny permission to appeal that are
unrelated to the merits of the underlying district court judgment. “Applicable
law” would allow the Tenth Circuit, for example, to deny permission to appeal
for reasons not mentioned in the parties’ briefing. It would allow it to deny
permission because it would be unable to resolve the issue within 60 days, as
required by CAFA (absent an extension). §1453(c)(2) and (c)(3); see also 730 F.
3d 1234, 1238 (Hartz, J., dissenting from denial of rehearing en banc) (“It will
always be tempting for very busy judges to deny review of a knotty matter that
requires a decision in short order”). And “applicable law” would permit numerous
other grounds for denial, including those applied by this Court in denying
petitions for certiorari. There is, to tell the truth, absolutely nothing in the
Tenth Circuit’s order to suggest that it relied on the unlawful ground that the
Court eagerly attributes to it, rather than one of many possible lawful grounds.
Thus, as we said in Mendelsohn, “it would be inappropriate for the
reviewing court [us] to assume . . . that the lower court adopted a party’s
incorrect argument.” 552 U.S., at 385, n. 2.
“applicable law” the Tenth Circuit considered and relied on was the law relating
to the correctness of the District Court’s decision — i.e., the law
interpreting §1446(a). After all, the “applicable law” surely includes the law
applicable to the disposition of petitions to appeal, §1453(c)(1), and that body
of law includes countless reasons to deny permission to appeal that are
unrelated to the merits of the underlying district court judgment. “Applicable
law” would allow the Tenth Circuit, for example, to deny permission to appeal
for reasons not mentioned in the parties’ briefing. It would allow it to deny
permission because it would be unable to resolve the issue within 60 days, as
required by CAFA (absent an extension). §1453(c)(2) and (c)(3); see also 730 F.
3d 1234, 1238 (Hartz, J., dissenting from denial of rehearing en banc) (“It will
always be tempting for very busy judges to deny review of a knotty matter that
requires a decision in short order”). And “applicable law” would permit numerous
other grounds for denial, including those applied by this Court in denying
petitions for certiorari. There is, to tell the truth, absolutely nothing in the
Tenth Circuit’s order to suggest that it relied on the unlawful ground that the
Court eagerly attributes to it, rather than one of many possible lawful grounds.
Thus, as we said in Mendelsohn, “it would be inappropriate for the
reviewing court [us] to assume . . . that the lower court adopted a party’s
incorrect argument.” 552 U.S., at 385, n. 2.
Besides relying on the utterly uninformative language of the order, the Court
makes one other attempt to demonstrate that the Tenth Circuit’s order was based
upon its agreement with the holding of the District Court. It asserts that
denying Dart permission to appeal “froz[e] in place” the District Court’s rule.
Ante, at 10. In light of that denial, the Court says, any “responsible
attorney” will include evidence supporting jurisdiction in his notice of
removal, thereby eliminating the risk of having that notice held improper for
the reason given by the District Court in this case. As a result, the Tenth
Circuit will likely never again be presented with the question whether evidence
of jurisdiction must be included with a notice of removal. Ibid. The
Court then notes that, among the many factors the Tenth Circuit considers in
deciding whether to accept an appeal under §1453(c)(1), is whether the case
presents an issue which, if not resolved in that appeal, will “leave the ambit
of the federal courts for good.” BP America, supra, at 1035. One
would have thought that this factor, if it controlled the Tenth Circuit’s
denial, means that the Tenth Circuit did not agree with the Court’s
perception that this issue will not likely reappear. The Court, however, says
(quite illogically) that it means the Tenth Circuit must have agreed with
the District Court’s incorrect legal analysis. It is hard to imagine a more
obvious non sequitur.
makes one other attempt to demonstrate that the Tenth Circuit’s order was based
upon its agreement with the holding of the District Court. It asserts that
denying Dart permission to appeal “froz[e] in place” the District Court’s rule.
Ante, at 10. In light of that denial, the Court says, any “responsible
attorney” will include evidence supporting jurisdiction in his notice of
removal, thereby eliminating the risk of having that notice held improper for
the reason given by the District Court in this case. As a result, the Tenth
Circuit will likely never again be presented with the question whether evidence
of jurisdiction must be included with a notice of removal. Ibid. The
Court then notes that, among the many factors the Tenth Circuit considers in
deciding whether to accept an appeal under §1453(c)(1), is whether the case
presents an issue which, if not resolved in that appeal, will “leave the ambit
of the federal courts for good.” BP America, supra, at 1035. One
would have thought that this factor, if it controlled the Tenth Circuit’s
denial, means that the Tenth Circuit did not agree with the Court’s
perception that this issue will not likely reappear. The Court, however, says
(quite illogically) that it means the Tenth Circuit must have agreed with
the District Court’s incorrect legal analysis. It is hard to imagine a more
obvious non sequitur.
And the argument not only tortures logic, it also distorts reality, resting
as it does on the premise that henceforth no “responsible attorney” will fail to
include evidence supporting federal jurisdiction in a notice of removal. Even
discounting the existence of irresponsible attorneys, but see, e.g., Maples
v. Thomas, 565 U.S. ___ (2012) [23 Fla. L. Weekly Fed. S86a],
responsible attorneys, and even responsible judges, sometimes make mistakes,
see, e.g., 572 U.S. ___ (2014) (order granting certiorari in this case).
Indeed, Dart’s own (seemingly responsible) lawyers failed to include evidence
supporting federal jurisdiction, despite what they argue is Circuit precedent
supporting the District Court’s holding. See Tr. of Oral Arg. 12 (counsel for
Dart, explaining that the District Court’s ruling was supported by Tenth Circuit
precedent).
as it does on the premise that henceforth no “responsible attorney” will fail to
include evidence supporting federal jurisdiction in a notice of removal. Even
discounting the existence of irresponsible attorneys, but see, e.g., Maples
v. Thomas, 565 U.S. ___ (2012) [23 Fla. L. Weekly Fed. S86a],
responsible attorneys, and even responsible judges, sometimes make mistakes,
see, e.g., 572 U.S. ___ (2014) (order granting certiorari in this case).
Indeed, Dart’s own (seemingly responsible) lawyers failed to include evidence
supporting federal jurisdiction, despite what they argue is Circuit precedent
supporting the District Court’s holding. See Tr. of Oral Arg. 12 (counsel for
Dart, explaining that the District Court’s ruling was supported by Tenth Circuit
precedent).
Even in the legal utopia imagined by the Court — a world in which all
lawyers are responsible and no lawyers make mistakes — it is easy to imagine
ways in which the issue could come back to the circuit court. If, for example, a
party appealed a district court decision addressing the sufficiency of the
jurisdictional evidence, the Tenth Circuit could accept the appeal and hold (en
banc, if necessary) that no evidence is required at all. In short, it is
impossible to credit the suggestion (irrelevant in any case) that the chances of
this issue arising again were “slim.” Ante, at 10.
lawyers are responsible and no lawyers make mistakes — it is easy to imagine
ways in which the issue could come back to the circuit court. If, for example, a
party appealed a district court decision addressing the sufficiency of the
jurisdictional evidence, the Tenth Circuit could accept the appeal and hold (en
banc, if necessary) that no evidence is required at all. In short, it is
impossible to credit the suggestion (irrelevant in any case) that the chances of
this issue arising again were “slim.” Ante, at 10.
The Court attempts to bolster its conclusion with an unprincipled and unequal
application of the waiver doctrine. Owens, it says, by failing to brief the
argument that the Tenth Circuit denied Dart’s petition for reasons other than
its agreement with the District Court’s decision, waived that argument. Ante,
at 12 (citing this Court’s Rule 15.2). Dart, however, never made an argument
that would have called for such a response. It never argued that the Tenth
Circuit abused its discretion in denying permission to appeal. Aside from one
stray assertion on the final page of its reply brief, its briefing focused
entirely on whether the District Court erred in remanding the case to
state court. See, e.g., Brief for Petitioners 9 (“This Court should
reverse the district court’s order remanding the case to state court”). Rather
than hold Dart responsible for failing to argue that the Tenth Circuit abused
its discretion, see Republic
of Argentina v. NML Capital, Ltd., 573 U.S. ___, ___, n. 2 (2014)
[24 Fla. L. Weekly Fed. S855a] (slip op., at 5, n. 2) (“We will not revive a
forfeited argument simply because the petitioner gestures toward it in its reply
brief”), the Court makes the argument on Dart’s behalf and then takes Owens to
task for failing to refute it. This Court ought not embrace such an oddhanded
application of waiver principles.
application of the waiver doctrine. Owens, it says, by failing to brief the
argument that the Tenth Circuit denied Dart’s petition for reasons other than
its agreement with the District Court’s decision, waived that argument. Ante,
at 12 (citing this Court’s Rule 15.2). Dart, however, never made an argument
that would have called for such a response. It never argued that the Tenth
Circuit abused its discretion in denying permission to appeal. Aside from one
stray assertion on the final page of its reply brief, its briefing focused
entirely on whether the District Court erred in remanding the case to
state court. See, e.g., Brief for Petitioners 9 (“This Court should
reverse the district court’s order remanding the case to state court”). Rather
than hold Dart responsible for failing to argue that the Tenth Circuit abused
its discretion, see Republic
of Argentina v. NML Capital, Ltd., 573 U.S. ___, ___, n. 2 (2014)
[24 Fla. L. Weekly Fed. S855a] (slip op., at 5, n. 2) (“We will not revive a
forfeited argument simply because the petitioner gestures toward it in its reply
brief”), the Court makes the argument on Dart’s behalf and then takes Owens to
task for failing to refute it. This Court ought not embrace such an oddhanded
application of waiver principles.
The Court answers that Dart “had no cause to address” whether the Tenth
Circuit abused its discretion until the issue was raised in Public Citizen’s
amicus brief. Ante, at 9, n. 3. Not good enough. First, parties
always have “cause to address” issues on which their entitlement to relief
depends. Second, and more important, Public Citizen filed its amicus
brief after both sides had already filed their merits briefs. So if
the timing of that brief excuses Dart’s failure to address whether the Tenth
Circuit abused its discretion, it should excuse Owens’ failure as well.
Circuit abused its discretion until the issue was raised in Public Citizen’s
amicus brief. Ante, at 9, n. 3. Not good enough. First, parties
always have “cause to address” issues on which their entitlement to relief
depends. Second, and more important, Public Citizen filed its amicus
brief after both sides had already filed their merits briefs. So if
the timing of that brief excuses Dart’s failure to address whether the Tenth
Circuit abused its discretion, it should excuse Owens’ failure as well.
I come, finally, to the Court’s stinging observation that I joined the
majority opinion in Standard Fire Ins. Co. v. Knowles, 568 U.S.
___ (2013) — a case that arose in the same posture as this one, but that was
resolved without reference to the question whether the appellate court abused
its discretion. Ante, at 8, n. 2. Of course Knowles did not
address whether denials of permission to appeal under §1453(c)(1) are to be
reviewed for abuse of discretion — which is why today’s majority cannot cite it
as precedent. See Brecht v. Abrahamson, 507 U.S. 619, 630-631
(1993). As for my own culpability in overlooking the issue, I must accept that
and will take it with me to the grave. But its irrelevance to my vote in the
present case has been well expressed by Justice Jackson, in a passage quoted by
the author of today’s opinion: “I see no reason why I should be consciously
wrong today because I was unconsciously wrong yesterday.” Massachusetts
v. United States, 333 U.S. 611, 639-640 (1948) (dissenting opinion),
quoted in Burwell
v. Hobby Lobby Stores, Inc., 573 U.S. ___, ___, n. 11 (2014) [24
Fla. L. Weekly Fed. S965a] (slip op., at 12, n. 11) (GINSBURG J., dissenting).
majority opinion in Standard Fire Ins. Co. v. Knowles, 568 U.S.
___ (2013) — a case that arose in the same posture as this one, but that was
resolved without reference to the question whether the appellate court abused
its discretion. Ante, at 8, n. 2. Of course Knowles did not
address whether denials of permission to appeal under §1453(c)(1) are to be
reviewed for abuse of discretion — which is why today’s majority cannot cite it
as precedent. See Brecht v. Abrahamson, 507 U.S. 619, 630-631
(1993). As for my own culpability in overlooking the issue, I must accept that
and will take it with me to the grave. But its irrelevance to my vote in the
present case has been well expressed by Justice Jackson, in a passage quoted by
the author of today’s opinion: “I see no reason why I should be consciously
wrong today because I was unconsciously wrong yesterday.” Massachusetts
v. United States, 333 U.S. 611, 639-640 (1948) (dissenting opinion),
quoted in Burwell
v. Hobby Lobby Stores, Inc., 573 U.S. ___, ___, n. 11 (2014) [24
Fla. L. Weekly Fed. S965a] (slip op., at 12, n. 11) (GINSBURG J., dissenting).
* * *
Instead of correcting an erroneous district court opinion at the expense of
an erroneous Supreme Court opinion, I would have dismissed this case as
improvidently granted. Failing that, my vote is to affirm the Court of Appeals,
since we have absolutely no basis for concluding that it abused its discretion.
an erroneous Supreme Court opinion, I would have dismissed this case as
improvidently granted. Failing that, my vote is to affirm the Court of Appeals,
since we have absolutely no basis for concluding that it abused its discretion.
__________________
JUSTICE THOMAS, dissenting.
I agree with JUSTICE SCALIA that the merits of the District Court’s decision
are not properly before the Court. I write only to point out another, more
fundamental, defect in the Court’s disposition: We lack jurisdiction to review
even the Court of Appeals’ denial of permission to appeal.
are not properly before the Court. I write only to point out another, more
fundamental, defect in the Court’s disposition: We lack jurisdiction to review
even the Court of Appeals’ denial of permission to appeal.
Congress has granted this Court jurisdiction to review “[c]ases in the courts
of appeals” by writ of certiorari. 28 U.S.C. §1254. Purporting to act pursuant
to this grant of jurisdiction, the majority today reviews the decision of the
Court of Appeals to deny an application for permission to appeal a remand order.
But such an application is not a case: It “ ‘does not assert a grievance against
anyone, does not seek remedy or redress for any legal injury, and does not even
require a “party” on the other side.’ ” Miller-El
v. Cockrell, 537 U.S. 322, 355 (2003) [16 Fla. L. Weekly Fed.
S77a] (THOMAS, J., dissenting) (quoting Hohn v. United States, 524
U.S. 236, 256 (1998) (SCALIA, J., dissenting)).
of appeals” by writ of certiorari. 28 U.S.C. §1254. Purporting to act pursuant
to this grant of jurisdiction, the majority today reviews the decision of the
Court of Appeals to deny an application for permission to appeal a remand order.
But such an application is not a case: It “ ‘does not assert a grievance against
anyone, does not seek remedy or redress for any legal injury, and does not even
require a “party” on the other side.’ ” Miller-El
v. Cockrell, 537 U.S. 322, 355 (2003) [16 Fla. L. Weekly Fed.
S77a] (THOMAS, J., dissenting) (quoting Hohn v. United States, 524
U.S. 236, 256 (1998) (SCALIA, J., dissenting)).
To justify its action here, the majority quietly extends an opinion of this
Court holding that applications for certificates of appealability (COAs) in the
federal habeas context are “cases.” Hohn, supra. Hohn was
wrongly decided, and the majority’s uncritical extension of its holding only
compounds the error. Hohn rests tenuously on the conclusion that the
determination that must be made on an application for a COA is more like a
threshold determination than a separate judicial proceeding. See id., at
246-248. The basis for that conclusion, if any exists, must rest on features
unique to the COA: “The COA determination . . . requires an overview of
the claims in the habeas petition and a general assessment of their merits.”
Miller-El, supra, at 336 (emphasis added). The best argument one
could make in favor of Hohn is that, because a court’s decision on an
application for a COA turns on the strength of the applicant’s grievance and his
entitlement to relief, the application absorbs the case-like qualities of the
underlying merits case. See Hohn, supra, at 248.
Court holding that applications for certificates of appealability (COAs) in the
federal habeas context are “cases.” Hohn, supra. Hohn was
wrongly decided, and the majority’s uncritical extension of its holding only
compounds the error. Hohn rests tenuously on the conclusion that the
determination that must be made on an application for a COA is more like a
threshold determination than a separate judicial proceeding. See id., at
246-248. The basis for that conclusion, if any exists, must rest on features
unique to the COA: “The COA determination . . . requires an overview of
the claims in the habeas petition and a general assessment of their merits.”
Miller-El, supra, at 336 (emphasis added). The best argument one
could make in favor of Hohn is that, because a court’s decision on an
application for a COA turns on the strength of the applicant’s grievance and his
entitlement to relief, the application absorbs the case-like qualities of the
underlying merits case. See Hohn, supra, at 248.
No such osmosis could transform an application for permission to appeal a
remand order into a “case.” As JUSTICE SCALIA explains, the decision whether to
permit such an appeal requires no assessment of the merits of a remand order.
See ante, at 2 (dissenting opinion). The application here is nothing more
than a request for discretionary permission to seek review. See
Miller-El, supra, at 355 (THOMAS, J., dissenting). The Tenth
Circuit having denied that permission, no “case” ever arrived “in the court of
appeals.” I would dismiss for lack of jurisdiction.
remand order into a “case.” As JUSTICE SCALIA explains, the decision whether to
permit such an appeal requires no assessment of the merits of a remand order.
See ante, at 2 (dissenting opinion). The application here is nothing more
than a request for discretionary permission to seek review. See
Miller-El, supra, at 355 (THOMAS, J., dissenting). The Tenth
Circuit having denied that permission, no “case” ever arrived “in the court of
appeals.” I would dismiss for lack of jurisdiction.
* * *