Could there be outside-the-box solutions to the jurisdictional puzzle in Dart Cherokee Basin Operating Company, LLC v. Owens? I recently chatted about this topic with Akhil Amar, one of the five people still interested in it. If you are people three to five, then this is the post for you.
I’ve already done two posts on Dart, but here’s another, more detailed statement of the relevant jurisdictional issue. The district court in Dart remanded a removed case back to state court. The defendant unsuccessfully sought discretionary review in the Tenth Circuit and then obtained cert. The Supreme Court’s certiorari statute (28 U.S.C. § 1254) provides in part that “[c]ases in the courts of appeals may be reviewed by the Supreme Court” via certiorari. Was Dart a case “in the courts of appeals”? In one sense, the answer is clearly yes. The Class Action Fairness Act (28 U.S.C. § 1453(c)(1)) provides for discretionary appellate review, and the defendant had sought such review. So there was clearly a case in the court of appeals. But, according to amicus curiae Public Citizen, the case in the court of appeals concerned only the question of discretionary appellate review—not the removal issue resolved in the district court. Because the court of appeals summarily denied review, Public Citizen argues, the removal issue never made it “in” the court of appeals. To overcome that problem, the Supreme Court would apparently have to hold that the Tenth Circuit’s denial was legal error and, therefore, that the removal issue was “in” the court of appeals as a matter of law. That’s a tall order, since the Tenth Circuit seems to have ample discretion and gave no reasons for its decision.
In my chat with Akhil, he suggested that deep constitutional principles should inform the scope of the Supreme Court’s appellate jurisdiction, including its statutory certiorari jurisdiction under 28 U.S.C. § 1254. Let me outline the basic argument and how it would apply to Dart. Article III creates “one Supreme Court” which, by default, has appellate jurisdiction over listed categories of cases. That structure seems to create a constitutional default rule in favor of Supreme Court appellate review over the listed categories, including diversity cases. Congress must act in order to overcome the constitutional default in favor of appellate jurisdiction. In particular, the Constitution’s allocation of appellate jurisdiction to the Court allows for “such exceptions … as the Congress shall make.” In Akhil’s view, Congress’s power to make “exceptions” to the constitutional default rule suggests that a clear statement rule should apply in this area. That is, in reading the relevant jurisdictional statutes, Court should err on the side of finding that it has appellate jurisdiction. This also makes structural sense, since it helps situate the “one Supreme Court” in a supervisory role within the judicial branch.
Based on this analysis, the key question in Dart is whether Congress has enacted a statute that clearly divests the Supreme Court of appellate jurisdiction over the district court’s decision. The strongest candidate for divestment—and the one that Public Citizen emphasizes—is 28 U.S.C. § 1447(d). On its face, the text of § 1447(d) looks pretty absolute: “An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise ….” Based on this text—particularly the words “… or otherwise”—Public Citizen plausibly argued that compliance with CAFA’s provision for discretionary appellate review is the only way of getting the district court’s statutory merits holding within the Supreme Court’s appellate jurisdiction. And, based on analogies to Hohn v. United States and other AEDPA cases involving certificates of appeal, Public Citizen further argued that a discretionary appeal must be accepted for the district court’s decision to be “in” the court of appeals at the time of cert.
But that approach may be too quick, at least if we assume a constitutional presumption in favor of appellate review. For one thing, CAFA’s discretionary review provision states that “Section 1447 shall apply to any removal of a case under this section, except that notwithstanding section 1447(d), a court of appeals may accept an appeal from an order of a district court ….” But whether a court of appeals has “accept[ed] an appeal” does not necessarily determine whether or what appeal is “in” the court of appeals for purposes of certiorari jurisdiction. Consider, for example, the possibility that the Court had jurisdiction to grant cert before judgment as to the merits before the court of appeals ruled on the request for appeal. CAFA seems ambiguous on this point, which suggests that the entire appeal–including the merits–may have been “in” the Tenth Circuit from the moment that the defendant first filed there. (Justice Breyer made a similar point on page 49 of the oral argument transcript.) For another thing, the Court has blurred even § 1447(d)’s apparent absolutism, including by allowing appellate review where a district court’s remand was “expressly based on the District Court’s crowded docket” (quoting Kircher v. Putnam Funds Trust (2006)) or on “discretionary choice not to hear the claims” (quoting Carlsbad Technology, Inc. v. HIF Bio, Inc. (2009))–the very sorts of reasons that may have animated the Tenth Circuit’s appeal denial in Dart.
Alternatively, a constitutional presumption in favor of appellate review may support avenues of review apart from the certiorari statute. A few years ago, Jim Pfander argued that § 1447(d) is best understood to prohibit only review by courts of appeals, not by the Supreme Court. On this view, “the restriction in § 1447(d) was aimed at review conducted by the intermediate courts of appeals and did not affect the Supreme Court’s all-writs authority.” Based in part on Ex Parte Yerger’s constitutionally inflected “presumption against implied repeals of supervisory authority” and on the history of removal statutes and practice, Jim concluded that the Court can and should sidestep § 1447(d), invoke its supervisory authority over district courts, and issue discretionary common law mandamus writs to review remand decisions. If you’ve read this far, you should probably check out Jim’s paper, “Collateral Review of Remand Orders: Reasserting the Supervisory Role of the Supreme Court,” for yourself. (Also available here.) You might also review footnote 6 in Public Citizen’s brief, which tries to head-off Jim’s general approach based on § 1447(d).
In sum, a constitutionally grounded presumption in favor of Supreme Court appellate jurisdiction might have an important role to play in Dart.
The above, as usual, is cross-posted from Re’s Judicata.
Posted by Richard M. Re on October 22, 2014 at 01:39 PM
Comments
Asher, Thanks for your note. I think that the statutory language you quote actually tends to support the whole case’s being “in” the circuit in Dart. The AEDPA provision quoted in Hohn says that “[u]nless” there’s a granted COA, “an appeal may not be taken to the court of appeals” at all. So AEDPA seems to keep the appeal out of the circuit pre-COA. By contrast, CAFA contemplates that, upon a timely “application,” the circuit can “accept” an “appeal” that may already be present in that court. In other words, AEDPA specifically speaks to when an appeal can be “taken to the court of appeals,” whereas CAFA is silent on when the appeal is taken “to” (or arrives “in”) the circuit. Anyway, the real point is that there’s some ambiguity here–and to a greater extent than in 1447(d).
Posted by: Richard | Oct 23, 2014 1:54:32 PM
I suppose I’m among persons 3-5. I think the 1447(d) piece of your argument is a bit muddled; the rest I disagree with. Leaving aside the Pfander piece of what you say, your argument basically is that Congress must clearly state that the Supreme Court can’t review the district court’s remand order to bar review of the remand order. 1447(d), in tandem with the CAFA discretionary review provision appears to limit review of CAFA remands to cases in which a court of appeals accepts an appeal from a CAFA remand. But, clear statement canons may allow us to read 1447(d) more flexibly, i.e. to permit review without relying on the discretionary review provision, or read the certiorari statute as applied to the CAFA review provision to permit Supreme Court review.
Starting with 1447(d), it’s true that the Supreme Court has said that 1447(d)’s bar on review of remand orders is really limited to remands grounded on jurisdiction or a defect in removal procedure (i.e., a remand of the kind described in 1447(c)), not ones based on a crowded docket or a discretionary choice not to hear claims. But even if the Tenth Circuit’s appeal denial was animated by one of these reasons, that doesn’t get the Court around 1447(d), because the only remand order in this case is the district court’s; all the Tenth Circuit did was deny an application for appeal. And the district court’s remand order, everyone agrees, rested on that court’s view that it lacked jurisdiction under CAFA. So permissive readings of 1447(d) notwithstanding, that order’s in the heartland of what the Court’s said 1447(d) controls. Hence, the only way the Court can review the district court’s order is if the request to appeal the remand order put the whole case in the court of appeals, or if the Court can somehow divine that the Tenth Circuit abused its discretion in not accepting the appeal.
As, then, to the notion that a request to appeal the remand order possibly puts the whole “case” in the court of appeals, I don’t see how the CAFA discretionary review provision works any differently for purposes of certiorari jurisdiction than AEDPA’s COA provision did in Hohn. In Hohn, the Court says that when a habeas petitioner seeks a COA and is denied, the only “case” in the court of appeals is the application for a COA (and four dissenters didn’t even agree to that much). Here, you say that maybe a request for a discretionary appeal lodges the whole case in the court of appeals. Is CAFA’s discretionary review provision any more ambiguous than the AEDPA provision?
From the part of the provision you quote, I would have said yes; AEDPA talks about certificates of appealability that must issue before an appeal may be taken, suggesting there is no appeal until a COA’s granted, whereas the CAFA provision simply talks about courts of appeals accepting appeals. But if you read a little further, the provision goes on to say that a court of appeals may accept an appeal “if application is made to the court of appeals” within just ten days of the entry of the order. So now, it seems to me, we have a precursor proceeding to the appeal – the application – that’s just like the application for a COA in AEDPA. It’s very difficult for me to see how the “application” puts the whole case in the court of appeals if an application for a COA doesn’t. (And by the way, AEDPA doesn’t bifurcate appeals and applications as cleanly as this provision does; it talks about COA’s, but doesn’t mention applications, leaving theoretically open the possibility that a habeas petitioner simply appeals a district court’s denial of the writ and has to go through some COA-gatekeeping before the appeal proceeds. You have to go to FRAP 22 to find a distinction between appeals and “requests” for COAs.)
That said, even if the Court could have granted cert before judgment, they didn’t grant cert until the appeal was denied, and once it’s been denied I really don’t see how the case is in the court of appeals.
Posted by: Asher | Oct 23, 2014 1:38:25 AM