supreme courtAlthough the Supreme Court is scheduled to hear oral arguments on October 7 in a case addressing the scope of removal jurisdiction under the Class Action Fairness Act (CAFA)—Dart Cherokee Basin Operating Co. v. Owens—Public Citizen has urged the Court to dismiss the case as improvidently granted based on what it views as procedural roadblocks to reaching the merits. Last Friday, Columbia Law Professor Ronald Mann’s column for SCOTUSblog spotlighted Public Citizen’s amicus argument and stated, “[M]y sense is that the jurisdictional question [raised by Public Citizen] will seem a lot more contestable to the Justices than the issue on the merits,” adding that the Court might even consider dismissing the petition. Mann is probably correct that the Court is likely to be unimpressed by the lower courts’ merits decision—that a removal petition is deficient unless accompanied by documentary evidence supporting the petition’s allegations that the prerequisites for removal have been met. But the Court is likely to be equally unimpressed by Public Citizen’s “jurisdictional” argument, which has not been raised by the parties at any stage of these proceedings.

Public Citizen bases its argument on the fact that the Tenth Circuit did not directly address the district court’s decision to remand a case removed from state court by the Petitioners under CAFA. CAFA permits defendants in class actions to appeal remand decisions, but they first must petition the appeals court for an order accepting the appeal. In this case, the Tenth Circuit (by an equally divided 4-4 vote) denied the defendants’ petition for permission to appeal. Public Citizen contends that the only issue properly before the Supreme Court is whether the Tenth Circuit abused its discretion in denying permission for an appeal, not whether the district court erred in remanding the case.

That contention is without merit. First, the issue raised by Public Citizen cannot even remotely be deemed “jurisdictional” in nature. The Supreme Court has appellate jurisdiction over any case that has come before a federal appeals court, whether “before or after rendition of judgment or decree.” 28 U.S.C. § 1254(1). Supreme Court jurisdiction does not depend on whether the appeals court has rendered a judgment on the merits of the trial court’s determination. Because this appeal came before the Tenth Circuit, the Supreme Court has jurisdiction to review it.

Of course, the plaintiff could have argued in his brief opposing certiorari that the Court should deny review of the remand determination because the petitioner failed to demonstrate that the Tenth Circuit’s denial of permission to appeal constituted an abuse of discretion. But the plaintiff waived that argument by failing to raise it in either his opposition brief or his merits brief. An amicus curiae, such as Public Citizen, is not permitted to inject new issues into a case that have not been raised by any party. The only issue before the Court is the one on which it granted certiorari: must the removal petition include detailed evidence to support its allegation that the prerequisites for removal have been met, or may the defendant delay presenting such evidence until after those allegations have been challenged?

Moreover, because the Tenth Circuit did not explain its decision not to grant permission to appeal (despite a dissenting opinion from four members of the court who urged that permission be granted because, they concluded, the district court’s legal reasoning was unsound), there is no basis to assume that it had any grounds for denying permission other than that it agreed with the district court’s rationale for remanding the case. Under those circumstances, the abuse-of-discretion issue is largely subsumed within the merits issue.

Finally, and perhaps most importantly, the Supreme Court is unlikely to endorse a procedural rule that would grant appeals courts the absolute power to prevent the Court from exercising its appellate jurisdiction. But that is the logical implication of Public Citizen’s argument. According to Public Citizen, any appeals court that wants to prevent Supreme Court review can simply deny permission to appeal and then (as here) decline to provide an explanation for its action.

Any such rule would severely impair the Supreme Court’s ability to review federal court decisions. The Court has not in the past viewed denials of permission to appeal as an impediment to its authority to hear a case. For example, federal law does not grant an automatic right to appeal the denial of a habeas corpus petition; rather, a petitioner first must convince a judge to issue a “certificate of appealability” based on a determination that the appeal makes “a substantial showing of denial of a constitutional right.” 28 U.S.C. § 2253(c). Yet, the Court has on more than a few occasions granted review in habeas cases for which the appeals court denied a certificate of appealability.

In sum, despite the wishes of the plaintiffs’ bar, there is little if any likelihood that the Supreme Court will conclude that procedural obstacles prevent it from deciding the question presented in Dart Cherokee Basin. And for the reasons explained in the amicus brief filed by the Washington Legal Foundation in support of the Petitioners, the Court is likely to use the case to explain to lower courts that there are no valid reasons for narrowly construing federal removal jurisdiction.

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