Friday, November 13, 2009

Coverage of SCOTUS Argument in Hertz Corp. v. Friend (Where Is a Corporation's Principal Place of Business?)

One notable event during this oral argument (previewed here and covered here) was this exchange between Chief Justice Roberts and respondent's counsel:

MR. SCHNEIDER: Mr. Chief Justice, did the Court have interest in the jurisdictional argument?

CHIEF JUSTICE ROBERTS: I don't know.

(Laughter.)

CHIEF JUSTICE ROBERTS: I can only speak for one member of the Court, and that one doesn't.

The Blog of Legal Times has coverage here ("Lawyer Learns that Roberts Speaks Only for Himself").

The "jurisdictional argument" to which respondent's counsel referred appears in two paragraphs at the very beginning of respondent's brief. The theory is that Supreme Court review is precluded by 28 U.S.C. § 1447(d), because CAFA's exception to 1447(d)'s bar on review of remand orders (28 U.S.C. § 1453(c)) does not explicitly allow for Supreme Court review. Here's the relevant text from respondent's brief:

Respondents dispute Petitioner’s assertion that appellate jurisdiction exists here pursuant to 28 U.S.C. § 1254. Generally, there is no appellate review of a district court order remanding a case for lack of subject matter jurisdiction. 28 U.S.C. § 1447(d); Carlsbad Tech., Inc. v. HIF BIO, Inc., 129 S. Ct. 1862, 1866 (2009). This prohibition manifests a long-standing Congressional policy opposing “interruption of the litigation of the merits of a removed case by prolonged litigation of questions of jurisdiction of the district court.” See, e.g., Kircher v. Putnam Funds Trust, 547 U.S. 633, 640 (2006).

The Class Action Fairness Act (“CAFA”) created a limited exception, codified at 28 U.S.C. § 1453(c), which provides only a 70-day window in which an appeal must be brought to final judgment. 28 U.S.C. § 1453(c)(4) (“If a final judgment on appeal under paragraph (1) is not issued before the end of [70 days], the appeal shall be denied”). However, nothing in that section provides for additional review by this Court. There is no tension between applying § 1453(c)’s limited window of appellate review and holding that § 1447(d)’s prohibition of appellate review applies thereafter; the express language of § 1453(c) and the legislative history confirm that is what Congress intended. See 28 U.S.C. § 1453(c)(1) (stating that § 1447 applies to CAFA remands, excepting the limited appeal provided elsewhere in § 1453). Here, appellate jurisdiction terminated, at the latest, 70 days after the appeal was docketed by the Ninth Circuit (i.e., November 4, 2008).

For additional coverage of the argument, see the National Law Journal and SCOTUSblog.

(Hat Tip: Beth Thornburg)

--A

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