Much like avid followers of this blog, the U.S. Supreme Court, of late, has started to take an interest in CAFA litigation, having issued decisions in CAFA cases in the past two terms. Mississippi ex rel. Hood v. AU Optronics Corp., 134 S. Ct. 736 (2014); Standard Fire Ins. Co. v. Knowles, 133 S. Ct. 1345 (2013).  For the third year in a row, the Court has another CAFA case on its docket, Dart Cherokee Basin Operating Co., LLC v. Owens, which was argued on October 6, 2014.

Dart Cherokee concerns whether a defendant removing a case to federal court under CAFA need simply plead the $5 million amount in controversy or instead submit evidence of the jurisdictional amount in its removal notice.  The defendants argued that the CAFA removal rules set forth a pleading requirement akin to Rule 8’s notice pleading requirement for original complaints.  Defendants claimed that only when the amount in controversy is challenged by the plaintiff or by the district court does the defendant need to submit evidence to prove that the amount at issue exceeds $5 million.  Along these lines, the briefs submitted by the parties at the certiorari stage and at the merits stage focused on this issue.    

An amicus brief filed by Public Citizen, Inc., however, added a very interesting wrinkle.  Public Citizen argued that the Supreme Court did not have jurisdiction to review the merits issue, because the Court’s jurisdiction is generally limited to cases “in the courts of appeal.”  According to Public Citizen, this case was never in the court of appeal, because the Tenth Circuit had declined to exercise its discretion to accept the Defendants’ petition to appeal the district court’s remand ruling.  In denying the petition to appeal, the Tenth Circuit panel did not give any reasons for its denial.  Likewise, a divided en banc panel declined to grant an en banc petition, again without any reasons.   Public Citizen thus contended that the only thing that the Supreme Court could review was whether the Tenth Circuit abused its discretion in denying the petition to appeal.  Because the Tenth Circuit did not give any reasons for its denial, Public Citizen claimed that the Court should dismiss the case as improvidently granted.

In light of Public Citizen’s amicus brief, the October 6^th oral argument before the Court largely concerned whether the Court has the power to review the remand ruling at issue, even though several members of the Court appeared to agree with the defendants’ position on the merits.  Justice Kagan went so far as to comment that she thought most of the court agreed with the defendants’ merits arguments, but was unsure how the Court could reach that issue.  For now, CAFA followers will have to wait and see whether the Court does reach the merits of the issue or instead dismisses the appeal as improvidently granted.