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.