Stephen Carr


Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing caseloads to wax and wane, and continuously forcing the circuit courts to react by expanding and contracting their rules of appellate jurisdiction. The U.S. Code generally limits appellate review to “final decisions,”and the U.S. Supreme Court has usually instructed the circuit courts to take a narrow view of what constitutes a “final” decision.Nevertheless, difficult cases remain.

Dart Cherokee Basin Operating Co. v. Owens was not supposed to be a difficult case. The U.S. Supreme Court granted certiorari to resolve an issue that had arisen only in the U.S. Court of Appeals for the Tenth Circuit.According to at least one commentator, the issue presented was so simple that “the answer would seem transparently obvious to any first year civil procedure student hoping for a passing grade.”At oral argument, Justice Elena Kagan did not hesitate to express her agreement with the petitioner (Dart) on the merits and speculated that most of the Court shared her view as well.However, Justice Kagan would later break from the majority’s decision, which sided with Dart on the merits and join Justice Antonin Scalia’s dissent.Thus, the final opinion created unusual alliances across ideological lines: Justices Scalia, Anthony Kennedy, and Clarence Thomas—all Republican appointees—were joined by the Democrat-appointed Justice Kagan in dissent.In the majority, Justice Ruth Bader Ginsburg was joined by fellow Democratic appointees Justices Stephen Breyer and Sonia Sotomayor as well as two Republican appointees, Chief Justice John Roberts and Justice Samuel Alito.

This Comment seeks to explain the strange turn of events leading to these unusual alliances and to suggest that Dart provides an important window into the way the Court manipulates its certiorari jurisdiction to achieve substantive policy ends. It is not surprising that the Court stretched its certiorari jurisdiction (or at least failed to do its due diligence) in granting certiorari in a decision denying federal court access to a class action. The Court has gone out of its way in recent years to expand federal jurisdiction over class actions while simultaneously trying to defang the class action device. Although the Class Action Fairness Act (CAFA)has provided explicit support for expanding federal court jurisdiction over class actions under the theory that the federal courts provide consistent, higher-quality justice in support of national interests, the Court has not shied away from interpreting CAFA to its limits. In addition, Dart coincided with the Court’s other recent decisions attempting to clarify the pleadings standards in federal courts and featured a strong dissenting opinion below, all of which appeared to make the decision ripe for review.

Part I of this Comment addresses the changes to federal removal practices brought about by CAFA and examines the procedural background of Dart more closely. Part II argues that Dart shows the malleability of seemingly neutral principles of appellate practice and the need to consider carefully the practical repercussion of jurisdictional and appellate rules. The Conclusion discusses what modest lessons may be gleaned from a seemingly unique decision.