Opinion analysis: Court stretches to correct anachronistic Tenth Circuit pleading rule
on Dec 16, 2014 at 9:24 am
Since the argument in Dart Cherokee Basin Operating Co. v. Owens, the only real question has been whether the Court would decide the case at all. There seemed no doubt that the Court, if it reached the merits, would reverse the Tenth Circuit. Indeed, the hostility to the Tenth Circuit at the argument was so marked that it sparked blog commentary about the Justices’ ability to send signals to the lower courts through their statements at oral argument. This morning we found out that the Court would reach the merits – but only by a vote of five to four.
The issue in this case does not sound like a Supreme Court question, if only because the answer would seem transparently obvious to any first-year civil procedure student hoping for a passing grade: when a defendant seeks to remove a case from state court to federal court, is it enough for the defendant to allege that it satisfies the requirements for diversity, or must it also incorporate into the notice of removal the actual evidence that supports those allegations? Since the demise of fact pleading more than seven decades ago, who could be in doubt: surely a short and plain statement of the allegations should be enough.
What made the case interesting was the jurisdictional tangle into which the case threw the Justices. The briefs of the parties addressed the question summarized above, and seemed to suggest that little could be said to support the Tenth Circuit’s rule requiring defendants to include evidence in the notice of removal. But Public Citizen, in an amicus brief, came valiantly to the rescue.
Raising a point never noticed before, Public Citizen pointed out that the decision of the Tenth Circuit was not a garden-variety affirmance. Rather, it was, technically, a refusal to accept an appeal from the district court’s decision to remand the case. For ordinary remand decisions, defendants have no right to appeal, but in the Class Action Fairness Act (the “CAFA”), anxious to protect defendants from state court adjudication of class actions, Congress included a special provision which indicates that a court of appeals “may accept” an appeal from a remand in a CAFA case. Because the case was not fully before the court of appeals, Public Citizen argued, the only issue before the Court, technically, was the uninteresting question of whether the Tenth Circuit’s decision not to accept the appeal warranted reversal. To underscore how impressive the Public Citizen brief was, it bears noting that the Supreme Court previously decided another case, Standard Fire Insurance Co. v. Knowles, in the same procedural posture as this one, without any apparent notice of the problem.
When the Justices discussed the issue at argument, it seemed plain that several of them thought the case warranted dismissal – just another mistake from the cert. pool. It was just as clear, though, that several of the Justices believed that the decision of the court of appeals was so plainly incorrect that it was well-nigh intolerable to let it stand.
And today we learn that it is in fact intolerable. Writing for the Court, Justice Ruth Bader Ginsburg began by addressing the merits. As you would expect, the Court had no difficulty explaining why the Tenth Circuit’s rule flies in the face of the language of the CAFA, to say nothing of the modern tradition of a “short and plain statement” as the standard for pleadings in federal court.
Once the Court has worked through that issue – on which the Court granted review – it turned to what would logically seem to be the question precedent: whether the question it has just decided is properly before the Court. The Court rested the decision to go forward on two points. First, it emphasized that Owens had not challenged the Court’s scope of review (a point arguably irrelevant to the jurisdictional question), and that all of the dissenters had joined the Court’s decision in Knowles in the same posture without objection.
More to the point, it went on to reason that the Court had the case, at least for purposes of reviewing the Tenth Circuit’s decision not to accept the case. It noted “signals” that the Tenth Circuit’s decision in fact rested on the legal question before the Court. Moreover, because leaving the decision in place as a precedent would make no sense if the court had any doubt of its correctness, it concluded that the court of appeals must have relied on its view of the legal question as a basis for letting the case go. Because that decision rested on an erroneous view of the law, the Court should be free to reverse it.
Justice Antonin Scalia responded with a blistering dissent, joined by Justices Anthony Kennedy, Elena Kagan, and Clarence Thomas. For Justice Scalia, the key point is that the Court ordinarily will not infer that a court rested its discretion on a bad reason without some evidence supporting the inference in the court’s opinion. There is, of course, no such evidence in this case.
Justice Scalia was particularly worked up about Justice Ginsburg’s reliance on his willingness to join the Court’s opinion in Knowles. He replied:
As for my own culpability in overlooking the issue [in Knowles], 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 [previously] 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.”
In a brief additional dissent, Justice Thomas went even farther, taking the view that the Court would not have had jurisdiction to examine the basis for the Tenth Circuit’s decision even if it had explained why it declined to review the case.
I think most readers of the Court’s opinion will come away with the strong impression that the Court allowed its strong view of the merits to affect its review of the abuse-of-discretion standard. If I’m right about that, the Court might end up spending several years repairing the damage to the law of review, steadily limiting the broad review of discretion applied here. Perhaps in the end, the best adage about this case will turn out to be that its discussion of review of discretion is “a restricted railroad ticket, good for this day and train only.”