In this case, the defendant (Dart Cherokee) removed a class action from state to federal court, and the federal court sent the case back to state court because the notice of removal did not provide sufficient facts to show satisfaction of the $5 million amount-in-controversy requirement for federal jurisdiction under the Class Action Fairness Act (CAFA). Dart Cherokee applied for permission to appeal to the U.S. Court of Appeals for the Tenth Circuit under a provision of CAFA that allows appeals of remand orders (which are normally prohibited by federal law) if the court of appeals grants permission. The Tenth Circuit denied permission to appeal, and Dart Cherokee sought review by the Supreme Court not of the denial of permission, but of the merits of the underlying remand order. The question presented to the Court by Dart Cherokee, and briefed by the parties, was whether a notice of removal must include evidence supporting federal jurisdiction, or whether it is enough to allege short and plain statement of the grounds for removal.
Public Citizen filed an amicus brief supporting the respondent. Our brief did not address the question disputed by the parties, but urged the Court to focus on a predicate issue: the scope of its jurisdiction to consider that question in this case. Because the Tenth Circuit had discretion to deny the defendant’s application for leave to appeal from the district court’s order remanding the case to state court, our brief argued that the Supreme Court cannot reach the pleading issue on which it granted certiorari, but has jurisdiction only to review the Tenth Circuit’s decision to deny permission to appeal. Because the record presents no basis for finding that the Tenth Circuit abused its discretion in making that decision, the brief argued that the Court should either affirm the Tenth Circuit or dismiss the case as “improvidently granted” because it does not actually present the question argued by the parties. Following an argument that focused largely on the issues raised in our amicus brief, the Supreme Court ruled by a 5-4 margin that it did have jurisdiction to review the denial of permission to appeal. The Court accepted our argument that its review could only be for abuse of discretion; but it found an abuse of discretion here because it inferred that the Tenth Circuit based its denial of review on acceptance of the district court's erroneous view that evidence must be attached to a removal petition. The four dissenters would have accepted our arguments in their entirety.