Dart Cherokee Basin Operating Co. v. Owens

(Slip Opinion) OCTOBER TERM, 2014 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DART CHEROKEE BASIN OPERATING CO., LLC,
ET AL. v. OWENS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 13–719. Argued October 7, 2014—Decided December 15, 2014
A defendant seeking to remove a case from state to federal court must
file in the federal forum a notice of removal “containing a short and
plain statement of the grounds for removal.” 28 U. S. C. §1446(a).
Respondent Owens filed a putative class action in Kansas state
court, seeking compensation for damages class members allegedly
sustained when petitioners (collectively, Dart) underpaid royalties
due under certain oil and gas leases. Dart removed the case to the
Federal District Court, invoking the Class Action Fairness Act of
2005 (CAFA), which gives federal courts jurisdiction over class ac-
tions if the amount in controversy exceeds $5 million, 28 U. S. C.
§1332(d)(2). Dart’s notice of removal alleged that the purported un-
derpayments totaled over $8.2 million. Owens moved to remand the
case to state court, asserting that the removal notice was “deficient
as a matter of law” because it included “no evidence” proving that the
amount in controversy exceeded $5 million. In response, Dart sub-
mitted an executive’s detailed declaration supporting an amount in
controversy in excess of $11 million. The District Court granted Ow-
ens’ remand motion, reading Tenth Circuit precedent to require proof
of the amount in controversy in the notice of removal itself. Dart pe-
titioned the Tenth Circuit for permission to appeal, see §1453(c)(1),
but that court denied review and rehearing en banc.
Held:
1. As specified in §1446(a), a defendant’s notice of removal need in-
clude only a plausible allegation that the amount in controversy ex-
ceeds the jurisdictional threshold; the notice need not contain eviden-
tiary submissions.
Section 1446(a) tracks the general pleading requirement stated in
2 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Syllabus
Rule 8(a) of the Federal Rules of Civil Procedure. By borrowing Rule
8(a)’s “short and plain statement” standard, corroborative history in-
dicates, Congress intended to clarify that courts should “apply the
same liberal rules [to removal allegations as] to other matters of
pleading.” H. R. Rep. No. 100–889, p. 71. The amount-in-controversy
allegation of a plaintiff invoking federal-court jurisdiction is accepted
if made in good faith. See, e.g., Mt. Healthy City Bd. of Ed. v. Doyle,
429 U. S. 274, 276. Similarly, the amount-in-controversy allegation
of a defendant seeking federal-court adjudication should be accepted
when not contested by the plaintiff or questioned by the court. In the
event that the plaintiff does contest the defendant’s allegations, both
sides submit proof and the court decides, by a preponderance of the
evidence, whether the amount-in-controversy requirement has been
satisfied, see §1446(c)(2)(B).
In remanding the case to state court, the District Court relied, in
part, on a purported “presumption” against removal, but no antire-
moval presumption attends cases invoking CAFA, a statute Congress
enacted to facilitate adjudication of certain class actions in federal
court. See Standard Fire Ins. Co. v. Knowles, 568 U. S. ___, ___.
Pp. 4–7.
2. The District Court erred in remanding this case for want of an
evidentiary submission in the notice of removal, and the Tenth Cir-
cuit abused its discretion in denying review of that decision. Pp. 7–
14.
(a) This Court concludes that no jurisdictional barrier impedes
settlement of the question presented: whether evidence supporting
the amount in controversy must be included in a notice of removal.
The case was “in” the Tenth Circuit because of Dart’s application for
leave to appeal, and the Court has jurisdiction to review what the
Court of Appeals did with that application. See 28 U. S. C. §1254;
Hohn v. United States, 524 U. S. 236, 248. Pp. 7–8.
(b) While appellate review of a remand order is discretionary, ex-
ercise of that discretion is not rudderless, see Highmark Inc. v. All-
care Health Management System, Inc., 572 U. S. ___, ___, and a court
“would necessarily abuse its discretion if it based its ruling on an er-
roneous view of the law,” Cooter & Gell v. Hartmarx Corp., 496 U. S.
384, 405. The Tenth Circuit had previously stated considerations
bearing on the intelligent exercise of discretion under §1453(c)(1).
One of those considerations is particularly relevant here: a court of
appeals should inquire whether, if a district court’s remand order
remains undisturbed, the case will “leave the ambit of the federal
courts for good, precluding any other opportunity for [the defendant]
to vindicate its claimed legal entitlement [under CAFA] . . . to have a
federal tribunal adjudicate the merits.” BP America, Inc. v. Oklaho-
Cite as: 574 U. S. ____ (2014) 3
Syllabus
ma ex rel. Edmondson, 613 F. 3d 1029, 1035. Thus the Tenth Cir-
cuit’s own guide weighed heavily in favor of accepting Dart’s appeal.
In practical effect, the Court of Appeals’ denial of review established
the law—the requirement of proof of the amount in controversy in the
removal notice—not simply for this case, but for future CAFA remov-
als sought by defendants in the Tenth Circuit, leaving those defend-
ants with no realistic opportunity to resist making the evidentiary
submission.
The District Court, driven by its conscientious endeavor to follow
Circuit precedent, erred in ruling that Dart’s amount-in-controversy
allegation failed for want of proof. It was an abuse of discretion for
the Tenth Circuit to deny Dart’s request for review, for that disposi-
tion fastened on district courts within the Circuit an erroneous view
of the law. Contrary to the law the District Court derived from Tenth
Circuit precedent, a removal notice need only plausibly allege, not de-
tail proof of, the amount in controversy.Pp. 8–14.
Vacated and remanded.
GINSBURG, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and BREYER, ALITO, and SOTOMAYOR, JJ., joined. SCALIA, J., filed a
dissenting opinion, in which KENNEDY and KAGAN, JJ., joined, and in
which THOMAS, J., joined as to all but the final sentence. THOMAS, J.,
filed a dissenting opinion.
Cite as: 574 U. S. ____ (2014) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–719
_________________
DART CHEROKEE BASIN OPERATING COMPANY,
LLC, ET AL., PETITIONERS v.
BRANDON W. OWENS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[December 15, 2014]
JUSTICE GINSBURG delivered the opinion of the Court.
To remove a case from a state court to a federal court, a
defendant must file in the federal forum a notice of re-
moval “containing a short and plain statement of the
grounds for removal.” 28 U. S. C. §1446(a). When re-
moval is based on diversity of citizenship, an amount-in-
controversy requirement must be met. Ordinarily, “the
matter in controversy [must] excee[d] the sum or value of
$75,000.” §1332(a). In class actions for which the re-
quirement of diversity of citizenship is relaxed, §1332(d)
(2)(A)–(C), “the matter in controversy [must] excee[d]
the sum or value of $5,000,000,” §1332(d)(2). If the
plaintiff ’s complaint, filed in state court, demands mon-
etary relief of a stated sum, that sum, if asserted in
good faith, is “deemed to be the amount in controversy.”
§1446(c)(2). When the plaintiff ’s complaint does not state
the amount in controversy, the defendant’s notice of re-
moval may do so. §1446(c)(2)(A).
To assert the amount in controversy adequately in the
removal notice, does it suffice to allege the requisite
2 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Opinion of the Court
amount plausibly, or must the defendant incorporate into
the notice of removal evidence supporting the allegation?
That is the single question argued here and below by the
parties and the issue on which we granted review. The
answer, we hold, is supplied by the removal statute itself.
A statement “short and plain” need not contain eviden-
tiary submissions.
I
Brandon W. Owens, plaintiff below and respondent
here, filed a putative class action in Kansas state court
alleging that defendants Dart Cherokee Basin Operating
Company, LLC, and Cherokee Basin Pipeline, LLC (collec-
tively, Dart), underpaid royalties owed to putative class
members under certain oil and gas leases. The complaint
sought “a fair and reasonable amount” to compensate
putative class members for “damages” they sustained due
to the alleged underpayments. App. to Pet. for Cert. 34a,
35a.
Invoking federal jurisdiction under the Class Action
Fairness Act of 2005 (CAFA), Dart removed the case to the
U. S. District Court for the District of Kansas. CAFA
gives federal courts jurisdiction over certain class actions,
defined in §1332(d)(1), if the class has more than 100
members, the parties are minimally diverse, and the
amount in controversy exceeds $5 million. §1332(d)(2),
(5)(B); see Standard Fire Ins. Co. v. Knowles, 568 U. S.
___, ___ (2013) (slip op., at 3). Dart’s notice of removal
alleged that all three requirements were satisfied. With
respect to the amount in controversy, Dart stated that the
purported underpayments to putative class members
totaled more than $8.2 million.
Owens moved to remand the case to state court. The
notice of removal was “deficient as a matter of law,”
Owens asserted, because it included “no evidence” proving
that the amount in controversy exceeded $5 million. App.
Cite as: 574 U. S. ____ (2014) 3
Opinion of the Court
to Pet. for Cert. 46a, 53a. In response, Dart submitted a
declaration by one of its executive officers. The declara-
tion included a detailed damages calculation indicating
that the amount in controversy, sans interest, exceeded
$11 million. Without challenging Dart’s calculation,
Owens urged that Dart’s amount-in-controversy submission
came too late. “[The] legally deficient [notice of removal],”
Owens maintained, could not be cured by “post-removal
evidence about the amount in controversy.” Id., at 100a.
Reading Tenth Circuit precedent to require proof of
the amount in controversy in the notice of removal itself,
the District Court granted Owens’ remand motion. Dart’s
declaration, the District Court held, could not serve to
keep the case in federal court. The Tenth Circuit, as the
District Court read Circuit precedent, “has consistently
held that reference to factual allegations or evidence out-
side of the petition and notice of removal is not permitted
to determine the amount in controversy.” App. to Pet.
for Cert. 26a, and n. 37 (citing Laughlin v. Kmart Corp.,
50 F. 3d 871, 873 (1995); Martin v. Franklin Capital Corp.,
251 F. 3d 1284, 1291, n. 4 (2001); Oklahoma Farm Bureau
Mut. Ins. Co. v. JSSJ Corp., 149 Fed. Appx. 775 (2005)).
Ordinarily, remand orders “[are] not reviewable on
appeal or otherwise.” §1447(d). There is an exception,
however, for cases invoking CAFA. §1453(c)(1). In such
cases, “a court of appeals may accept an appeal from an
order of a district court granting or denying a motion to
remand.” Ibid. Citing this exception, Dart petitioned the
Tenth Circuit for permission to appeal. “Upon careful
consideration of the parties’ submissions, as well as the
applicable law,” the Tenth Circuit panel, dividing two-to-
one, denied review. App. to Pet. for Cert. 13a–14a.
An evenly divided court denied Dart’s petition for en
banc review. Dissenting from the denial of rehearing en
banc, Judge Hartz observed that the Tenth Circuit “[had]
let stand a district-court decision that will in effect impose
4 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Opinion of the Court
in this circuit requirements for notices of removal that are
even more onerous than the code pleading requirements
that . . . federal courts abandoned long ago.” 730 F. 3d
1234 (2013). The Tenth Circuit was duty-bound to grant
Dart’s petition for rehearing en banc, Judge Hartz urged,
because the opportunity “to correct the law in our circuit”
likely would not arise again. Id., at 1235. Henceforth,
Judge Hartz explained, “any diligent attorney . . . would
submit to the evidentiary burden rather than take a
chance on remand to state court.” Ibid.Dart filed a petition for certiorari in this Court request-
ing resolution of the following question: “Whether a de-
fendant seeking removal to federal court is required to
include evidence supporting federal jurisdiction in the
notice of removal, or is alleging the required ‘short and
plain statement of the grounds for removal’ enough?” Pet.
for Cert. i. Owens’ brief in opposition raised no impedi-
ment to this Court’s review. (Nor, later, did Owens’ merits
brief suggest any barrier to our consideration of Dart’s
petition.) We granted certiorari to resolve a division
among the Circuits on the question presented. 572 U. S.
___ (2014). Compare Ellenburg v. Spartan Motors Chas-
sis, Inc., 519 F. 3d 192, 200 (CA4 2008) (a removing party’s
notice of removal need not “meet a higher pleading stand-
ard than the one imposed on a plaintiff in drafting an
initial complaint”), and Spivey v. Vertrue, Inc., 528 F. 3d
982, 986 (CA7 2008) (similar), with Laughlin, 50 F. 3d, at
873 (“the requisite amount in controversy . . . must be
affirmatively established on the face of either the petition
or the removal notice”).
II
As noted above, a defendant seeking to remove a case to
a federal court must file in the federal forum a notice of
removal “containing a short and plain statement of the
grounds for removal.” §1446(a). By design, §1446(a)
Cite as: 574 U. S. ____ (2014) 5
Opinion of the Court
tracks the general pleading requirement stated in Rule
8(a) of the Federal Rules of Civil Procedure. See 14C C.
Wright, A. Miller, E. Cooper, & J. Steinman, Federal
Practice and Procedure §3733, pp. 639–641 (4th ed. 2009)
(“Section 1446(a) requires only that the grounds for re-
moval be stated in ‘a short and plain statement’—terms
borrowed from the pleading requirement set forth in Fed-
eral Rule of Civil Procedure 8(a).”). The legislative history
of §1446(a) is corroborative. Congress, by borrowing the
familiar “short and plain statement” standard from Rule
8(a), intended to “simplify the ‘pleading’ requirements for
removal” and to clarify that courts should “apply the same
liberal rules [to removal allegations] that are applied to
other matters of pleading.” H. R. Rep. No. 100–889, p. 71
(1988). See also ibid. (disapproving decisions requiring
“detailed pleading”).
When a plaintiff invokes federal-court jurisdiction, the
plaintiff ’s amount-in-controversy allegation is accepted if
made in good faith. See, e.g., Mt. Healthy City Bd. of Ed.
v. Doyle, 429 U. S. 274, 276 (1977) (“ ‘[T]he sum claimed by
the plaintiff controls if the claim is apparently made in
good faith.’ ”) (quoting St. Paul Mercury Indemnity Co. v.
Red Cab Co., 303 U. S. 283, 288 (1938); alteration in origi-
nal). Similarly, when a defendant seeks federal-court
adjudication, the defendant’s amount-in-controversy alle-
gation should be accepted when not contested by the
plaintiff or questioned by the court. Indeed, the Tenth
Circuit, although not disturbing prior decisions demand-
ing proof together with the removal notice, recognized that
it was anomalous to treat commencing plaintiffs and
removing defendants differently with regard to the
amount in controversy. See McPhail v. Deere & Co., 529
F. 3d 947, 953 (2008) (requiring proof by defendant but not
by plaintiff “bears no evident logical relationship either to
the purpose of diversity jurisdiction, or to the principle
that those who seek to invoke federal jurisdiction must
6 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Opinion of the Court
establish its prerequisites”).
If the plaintiff contests the defendant’s allegation,
§1446(c)(2)(B) instructs: “[R]emoval . . . is proper on the
basis of an amount in controversy asserted” by the defend-
ant “if the district court finds, by the preponderance of the
evidence, that the amount in controversy exceeds” the
jurisdictional threshold.1 This provision, added to §1446
as part of the Federal Courts Jurisdiction and Venue
Clarification Act of 2011 (JVCA), clarifies the procedure in
order when a defendant’s assertion of the amount in con-
troversy is challenged. In such a case, both sides submit
proof and the court decides, by a preponderance of the
evidence, whether the amount-in-controversy requirement
has been satisfied. As the House Judiciary Committee
Report on the JVCA observed:
“[D]efendants do not need to prove to a legal certainty
that the amount in controversy requirement has been
met. Rather, defendants may simply allege or assert
that the jurisdictional threshold has been met. Dis-
covery may be taken with regard to that question. In
case of a dispute, the district court must make find-
ings of jurisdictional fact to which the preponderance
standard applies.” H. R. Rep. No. 112–10, p. 16
(2011).
——————
1 Section 1446(c)(2) applies to removals “sought on the basis of the
jurisdiction conferred by section 1332(a),” and §1446(c)(2)(B) provides
that “removal of the action is proper . . . [if] the amount in controversy
exceeds the [in excess of $75,000] amount specified in section 1332(a)”
(emphasis added). We assume, without deciding, a point the parties do
not dispute: Sections 1446(c)(2) and 1446(c)(2)(B) apply to cases re-
moved under §1332(d)(2), and removal is proper if the amount in
controversy exceeds $5 million, the amount specified in §1332(d)(2).
See Frederick v. Hartford Underwriters Ins. Co., 683 F. 3d 1242, 1247
(CA10 2012) (“[T]here is no logical reason why we should demand more
from a CAFA defendant than other parties invoking federal jurisdic-
tion.” (internal quotation marks omitted)).
Cite as: 574 U. S. ____ (2014) 7
Opinion of the Court
Of course, a dispute about a defendant’s jurisdictional
allegations cannot arise until after the defendant files a
notice of removal containing those allegations. Brief for
Dart 14.
In remanding the case to state court, the District Court
relied, in part, on a purported “presumption” against
removal. App. to Pet. for Cert. 28a. See, e.g., Laughlin, 50
F. 3d, at 873 (“[T]here is a presumption against removal
jurisdiction.”). We need not here decide whether such a
presumption is proper in mine-run diversity cases. It
suffices to point out that no antiremoval presumption
attends cases invoking CAFA, which Congress enacted to
facilitate adjudication of certain class actions in federal
court. See Standard Fire Ins. Co., 568 U. S., at ___ (slip
op., at 6) (“CAFA’s primary objective” is to “ensur[e] ‘Fed-
eral court consideration of interstate cases of national
importance.’ ” (quoting §2(b)(2), 119 Stat. 5)); S. Rep. No.
109–14, p. 43 (2005) (CAFA’s “provisions should be read
broadly, with a strong preference that interstate class
actions should be heard in a federal court if properly re-
moved by any defendant.”).
In sum, as specified in §1446(a), a defendant’s notice of
removal need include only a plausible allegation that the
amount in controversy exceeds the jurisdictional thresh-
old. Evidence establishing the amount is required by
§1446(c)(2)(B) only when the plaintiff contests, or the
court questions, the defendant’s allegation.
III
As in Standard Fire Ins. Co., 568 U. S., at ___–___ (slip
op., at 2–3), we granted review in this case after the Court
of Appeals declined to hear an appeal from a remand
order. Neither party in that case or in this one questioned
our review authority under 28 U. S. C. §1254(1) (“Cases in
the courts of appeals may be reviewed . . . [b]y writ of
certiorari upon the petition of any party . . . before or after
8 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Opinion of the Court
rendition of judgment.”).2 An amicus brief filed in support
of Owens by Public Citizen, Inc., however, raised a juris-
dictional impediment.
Section 1453(c)(1), Public Citizen noted, provides that “a
court of appeals may accept an appeal from an order of
a district court granting or denying a motion to remand a
class action to the State court from which it was re-
moved[.]” (Emphasis added.) Because court of appeals
review of a remand order is discretionary, see supra, at 3,
and the Tenth Circuit exercised its discretion to deny
review, Public Citizen urged, “[b]oth parties ask this Court
to decide an issue that is not properly before it.” Brief for
Public Citizen 6. “Absent grounds for reversing the court
of appeals’ decision to deny permission to appeal,” Public
Citizen asserted, “the merits of the district court’s decision
are not before any appellate court, including this one.”
Ibid.
Satisfied that there are indeed “grounds for reversing
the [Tenth Circuit’s] decision to deny permission to ap-
peal,” we find no jurisdictional barrier to our settlement of
the question presented. The case was “in” the Court of
Appeals because of Dart’s leave-to-appeal application, and
we have jurisdiction to review what the Court of Appeals
did with that application. See 28 U. S. C. §1254; Hohn v.
United States, 524 U. S. 236, 248 (1998). Owens, we reit-
erate, did not contest the scope of our review.
Discretion to review a remand order is not rudderless.
See Highmark Inc. v. Allcare Health Management System,
Inc., 572 U. S. ___, ___ (2014) (slip op., at 4) (“matters of
discretion are reviewable for abuse of discretion” (internal
quotation marks omitted)). A court “would necessarily
abuse its discretion if it based its ruling on an erroneous
——————
2 Today’s dissenters joined the opinion in Standard Fire Ins. Co. v.
Knowles, 568 U. S. ___ (2013), without suggesting any lack of jurisdic-
tion to reach the merits.
Cite as: 574 U. S. ____ (2014) 9
Opinion of the Court
view of the law.” Cooter & Gell v. Hartmarx Corp., 496
U. S. 384, 405 (1990). This case fits that bill.3
There are many signals that the Tenth Circuit relied on
the legally erroneous premise that the District Court’s
decision was correct. In an earlier case, the Tenth Circuit,
following the First Circuit’s lead, stated considerations
that it regards as relevant to the intelligent exercise of
discretion under §1453(c)(1). BP America, Inc. v. Okla-
homa ex rel. Edmondson, 613 F. 3d 1029, 1034–1035 (2010)
(adopting factors set out in College of Dental Surgeons of
Puerto Rico v. Connecticut Gen. Life Ins. Co., 585 F. 3d 33,
38–39 (CA1 2009)).4 When the CAFA-related question
presented in an appeal from a remand order is “important,
unsettled, and recurrent,” the First Circuit instructed, a
court of appeals should inquire: “Absent an interlocutory
appeal, [will the question] in all probability escape mean-
ingful appellate review.” Id., at 39. Or, as phrased by the
Tenth Circuit, if a district court’s remand order remains
undisturbed, will the case “leave the ambit of the federal
courts for good, precluding any other opportunity for [the
defendant] to vindicate its claimed legal entitlement [un-
der CAFA] . . . to have a federal tribunal adjudicate the
merits.” BP America, 613 F. 3d, at 1035. See also Coffey
v. Freeport McMoran Copper & Gold, 581 F. 3d 1240, 1247
(CA10 2009) (noting that “the purpose of §1453(c)(1) is
to develop a body of appellate law interpreting CAFA”
(brackets and internal quotation marks omitted)). Thus,
——————
3 JUSTICE SCALIA’s dissent (hereafter dissent) faults Dart for assert-
ing, late in the day, that the Tenth Circuit abused its discretion, observ-
ing that Dart did so only in its reply brief. Post, at 6. But Public
Citizen teed up that issue after the parties filed their merits briefs. In
view of this Court’s decision in Standard Fire Ins. Co., 568 U. S. ___,
see supra, at 7–8, the parties had no cause to address the matter
earlier.
4 Neither court stated the listed considerations as an inflexible test.
We have no occasion in this case to review each of the factors identified
by the First and Tenth Circuits.
10 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Opinion of the Court
the Tenth Circuit’s own guide weighed heavily in favor of
accepting Dart’s appeal. That the Court of Appeals, in-
stead, rejected Dart’s appeal strongly suggests that the
panel thought the District Court got it right in requiring
proof of the amount in controversy in the removal notice.
In practical effect, the Court of Appeals’ denial of review
established the law not simply for this case, but for future
CAFA removals sought by defendants in the Tenth Cir-
cuit. The likelihood is slim that a later case will arise in
which the Tenth Circuit will face a plea to retract the rule
that both Owens and the District Court ascribed to deci-
sions of the Court of Appeals: Defendants seeking to re-
move under CAFA must be sent back to state court unless
they submit with the notice of removal evidence proving
the alleged amount in controversy. See supra, at 3. On
this point, Judge Hartz’s observation, dissenting from the
Tenth Circuit’s denial of rehearing en banc, see supra, at
4, bears recounting in full:
“After today’s decision any diligent attorney (and one
can assume that an attorney representing a defendant
in a case involving at least $5 million—the threshold
for removal under CAFA—would have substantial in-
centive to be diligent) would submit to the evidentiary
burden rather than take a chance on remand to state
court.” 730 F. 3d, at 1235.
With no responsible attorney likely to renew the fray,
Judge Hartz anticipated, “the issue will not arise again.”
Ibid. Consequently, the law applied by the District
Court—demanding that the notice of removal contain
evidence documenting the amount in controversy—will be
frozen in place for all venues within the Tenth Circuit.5
——————
5 The dissent suggests that the Tenth Circuit may have another op-
portunity to set Circuit precedent straight: A lawyer may be irresponsi-
ble or fail to learn from Dart’s experience; or perhaps a lawyer will put
in evidence the district court deems insufficient, and then have a go at
Cite as: 574 U. S. ____ (2014) 11
Opinion of the Court
Recall that the Court of Appeals denied Dart’s petition
for review “[u]pon careful consideration of the parties’
submissions, as well as the applicable law.” App. to Pet.
for Cert. 13a. What did the parties submit to the Tenth
Circuit? Their presentations urged conflicting views on
whether a removing defendant must tender prima facie
proof of the amount in controversy as part of the removal
notice. And what was “the applicable law” other than the
rule recited by the Tenth Circuit in Laughlin and follow-on
decisions, i.e., to remove successfully, a defendant must
present with the notice of removal evidence proving the
amount in controversy.6
From all signals one can discern then, the Tenth Cir-
cuit’s denial of Dart’s request for review of the remand
order was infected by legal error. The District Court erred
in ruling that Dart’s amount-in-controversy allegation
failed for want of proof, but that error was driven by the
District Court’s conscientious endeavor to follow Circuit
——————
arguing that the evidence was sufficient and, in any event, “no evidence
is required at all.” Post, at 5–6. That such a case will occur, and that
the Tenth Circuit would then seize the very opportunity it passed up in
Dart’s case, is hardly probable.
6 The dissent posits that “the applicable law” might have been some-
thing other than the law governing the parties’ submissions. Post, at 3,
4. That is a strained reading of the Tenth Circuit’s expression. Per-
haps the Tenth Circuit found this case a “poor vehicle,” the dissent
suggests, post, at 2, but no potential vehicle concerns were urged by
Owens, and the dissent identifies none. Or the Tenth Circuit might
have doubted its “ability to quickly resolve the issue” within the 60-day
time limit provided in §1453(c)(2)–(3). Ibid.; see also post, at 4. Section
1453(c)’s timing provision, however, was designed to promote expedi-
tion, not to discourage Courts of Appeals from acting on petitions for
appeal. As a third “maybe,” the dissent observes that proof of the
amount in controversy in removal notices is not “a question unique to
[CAFA].” Post, at 3. True, the Tenth Circuit demands such proof in
ordinary diversity cases. See Laughlin v. Kmart Corp., 50 F. 3d 871,
873 (1995). But that does not make the imposition one whit less in
CAFA cases.
12 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Opinion of the Court
precedent. The parties trained their arguments in the
Tenth Circuit, as they did here, on the question whether
Dart could successfully remove without detailing in the
removal notice evidence of the amount in controversy. See
Tr. of Oral Arg. 47 (acknowledgment by Owens’ counsel
that “the issues . . . provided to . . . the Tenth Circuit were
very similar to what you see in this Court, with the excep-
tion of [the question raised by Public Citizen] whether this
Court has jurisdiction”). Dissenting from the denial of
rehearing en banc, Judge Hartz explained at length why
the Tenth Circuit “owe[d] a duty to the bench and bar” to
correct the District Court’s misperception and to state as
the Circuit’s law: “[A] defendant seeking removal under
CAFA need only allege the jurisdictional amount in its
notice of removal and must prove that amount only if the
plaintiff challenges the allegation.” 730 F. 3d, at 1234,
1238. In this regard, we note, the Tenth Circuit has cau-
tioned against casual rulings on applications like Dart’s.
“The decision whether to grant leave to appeal” under
§1453(c), the Tenth Circuit stressed, calls for the exercise
of the reviewing court’s correctly “informed discretion.”
BP America, 613 F. 3d, at 1035 (emphasis added); see
supra, at 8–9.
Recall, moreover, that Owens never suggested in his
written submissions to this Court that anything other
than the question presented accounts for the Court of
Appeals’ disposition. If Owens believed that the Tenth
Circuit’s denial of leave to appeal rested on some other
ground, he might have said so in his brief in opposition or,
at least, in his merits brief. See this Court’s Rule 15.2;
Granite Rock Co. v. Teamsters, 561 U. S. 287, 306 (2010).
He said nothing of that order, for he, like Dart, antici-
pated that the question presented was ripe for this Court’s
resolution.
In the above-described circumstances, we find it an
abuse of discretion for the Tenth Circuit to deny Dart’s
Cite as: 574 U. S. ____ (2014) 13
Opinion of the Court
request for review. Doing so froze the governing rule in
the Circuit for this case and future CAFA removal notices,
with no opportunity for defendants in Dart’s position
responsibly to resist making the evidentiary submission.
That situation would be bizarre for a decisionmaker who
did not think that the amount in controversy in diversity
cases is a matter a removal notice must demonstrate by
evidence, not merely credibly allege.7 And if the Circuit
precedent on which the District Court relied misstated the
law, as we hold it did, then the District Court’s order
remanding this case to the state court is fatally infected by
legal error.
Careful inspection thus reveals that the two issues
Public Citizen invites us to separate—whether the Tenth
Circuit abused its discretion in denying review, and
whether the District Court’s remand order was errone-
ous—do not pose genuinely discrete questions. Instead,
resolution of both issues depends on the answer to the
very same question: What must the removal notice con-
tain? If the notice need not contain evidence, the Tenth
Circuit abused its discretion in effectively making the
opposing view the law of the Circuit. By the same token,
the District Court erred in remanding the case for want of
an evidentiary submission in the removal notice. We no
doubt have authority to review for abuse of discretion the
Tenth Circuit’s denial of Dart’s appeal from the District
Court’s remand order, see supra, at 8, and in doing so, to
——————
7 Caution is in order when attributing a basis to an unreasoned deci-
sion. But we have not insisted upon absolute certainty when that basis
is fairly inferred from the record. See Taylor v. McKeithen, 407 U. S.
191, 193, n. 2 (1972) (per curiam) (rejecting “possible, but unlikely”
basis for unreasoned decision); Nixon v. Fitzgerald, 457 U. S. 731, 742–
743 (1982) (facing an unreasoned Court of Appeals decision, we projected
what the Court of Appeals “appears to have” reasoned); Tr. of Oral
Arg. 18–19 (observing that an appellate court often assumes that a first
instance court based its unexplained discretionary decision on the
ground the prevailing party presented).
14 DART CHEROKEE BASIN OPERATING CO. v. OWENS
Opinion of the Court
correct the erroneous view of the law the Tenth Circuit’s
decision fastened on district courts within the Circuit’s
domain.8
* * *
For the reasons stated, the judgment of the U. S. Court
of Appeals for the Tenth Circuit is vacated, and the case is
remanded for further proceedings consistent with this
opinion.
It is so ordered.
——————
8 Our disposition does not preclude the Tenth Circuit from asserting
and explaining on remand that a permissible ground underlies its
decision to decline Dart’s appeal.
Cite as: 574 U. S. ____ (2014) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–719
_________________
DART CHEROKEE BASIN OPERATING COMPANY,
LLC, ET AL., PETITIONERS v.
BRANDON W. OWENS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[December 15, 2014]
JUSTICE SCALIA, with whom JUSTICE KENNEDY and
JUSTICE KAGAN join, and with whom JUSTICE THOMAS
joins as to all but the final sentence, dissenting.
When Dart removed this class action to federal court, it
was required to file a “notice of removal” containing “a
short and plain statement of the grounds for removal.” 28
U. S. C. §1446(a). In accordance with what it thought to
be Tenth Circuit jurisprudence, the District Court inter-
preted this to require evidence (as opposed to mere allega-
tions) supporting federal jurisdiction. After finding that
Dart’s notice of removal did not include evidence of the
jurisdictionally required amount in controversy, the Dis-
trict Court remanded the case to state court. App. to Pet.
for Cert. 25a–28a. Dart sought permission to appeal this
order under §1453(c)(1), which provides that “a court of
appeals may accept an appeal from an order of a district
court granting or denying a motion to remand a class
action to the State court from which it was removed”
(emphasis added). Without stating its reasons, the Tenth
Circuit issued an order denying Dart’s request. App. to
Pet. for Cert. 13a.
Eager to correct what we suspected was the District
Court’s (and the Tenth Circuit’s) erroneous interpretation
of §1446(a), we granted certiorari to decide whether no-
2 DART CHEROKEE BASIN OPERATING CO. v. OWENS
SCALIA, J., dissenting
tices of removal must contain evidence supporting federal
jurisdiction. After briefing we discovered a little snag:
This case does not present that question. Because we are
reviewing the Tenth Circuit’s judgment, the only question
before us is whether the Tenth Circuit abused its discre-
tion in denying Dart permission to appeal the District
Court’s remand order. Once we found out that the issue
presented differed from the issue we granted certiorari to
review, the responsible course would have been to confess
error and to dismiss the case as improvidently granted.
The Court, however, insists on deciding whether the
District Court erred in remanding this case to state court.
How can it do that, one might ask, when the only issue in
this case concerns the propriety of the Tenth Circuit’s
rejection of Dart’s appeal? The Court hits upon a solution:
It concludes that the Tenth Circuit decided not to hear the
appeal because it agreed with the District Court’s analysis.
Attributing the District Court’s reasoning to the Tenth
Circuit allows the Court to pretend to review the appellate
court’s exercise of discretion while actually reviewing the
trial court’s legal analysis.
There are problems with this approach that are, in a
rational world, insuperable. To begin with, the Tenth
Circuit’s short order does not tell us why it decided not to
hear Dart’s appeal. It might have done so for an imper-
missible reason—for example, agreement with the District
Court’s legal reasoning. But it might instead have done so
for countless other, permissible, reasons—for example, a
concern that this would be a poor vehicle for deciding the
issue presented by Dart’s appeal, or a concern regarding
the court’s ability to quickly resolve the issue, see
§1453(c)(2)–(3) (providing that appeals accepted under
§1453(c)(1) must be decided within 60 days, absent con-
sent of the parties, with a 10-day extension for “good cause
shown and in the interests of justice”).
Not long ago we held, unanimously, that “[a]n appellate
Cite as: 574 U. S. ____ (2014) 3
SCALIA, J., dissenting
court should not presume that a district court intended an
incorrect legal result when the order is equally susceptible
of a correct reading, particularly when the applicable
standard of review is deferential.” Sprint/United Man-
agement Co. v. Mendelsohn, 552 U. S. 379, 386 (2008).
There, we corrected the Tenth Circuit for doing precisely
what the Court itself does today in reviewing (deferen-
tially) the Tenth Circuit’s denial of permission to appeal:
presuming that the lower court adopted a legally errone-
ous argument advanced by one party. Id., at 384–385. We
explained to the Tenth Circuit that “it would be inappro-
priate for the reviewing court to assume, absent indication
in the District Court’s opinion, that the lower court adopted
a party’s incorrect argument.” Id., at 385, n. 2 (empha-
sis added). Today, however, this Court blatantly violates
that rule.
The only “indication in the opinion” that the Court relies
on is the following language from the order denying per-
mission to appeal: “Upon careful consideration of [1] the
parties’ submissions, as well as [2] the applicable law, the
Petition [for permission to appeal the remand order] is
denied.” App. to Pet. for Cert. 13a–14a. This, the Court
tells us, means the Tenth Circuit must have denied Dart’s
petition because it agreed with the District Court’s legal
conclusion. Of course it means no such thing.
As for point [1], considering a submission is not the
same thing as agreeing with that submission. Worse still,
correctness of the District Court’s opinion was not the only
ground that Owens’ brief in the Tenth Circuit urged to
support denial of the petition for review. It noted, for
example, that the case addressed the general removal
statute, §1446(a), and so did not involve a question unique
to the Class Action Fairness Act of 2005 (CAFA). Re-
sponse to Petition for Permission to Appeal in No. 13–603,
p. 3. (The Tenth Circuit considers “the presence of an
important CAFA-related question” a reason to accept an
4 DART CHEROKEE BASIN OPERATING CO. v. OWENS
SCALIA, J., dissenting
appeal. BP America, Inc. v. Oklahoma ex rel. Edmonson,
613 F. 3d 1029, 1034 (2010) (internal quotation marks
omitted).)
As for point [2], there is no reason whatever to believe
that the only “applicable law” the Tenth Circuit considered
and relied on was the law relating to the correctness of the
District Court’s decision—i.e., the law interpreting
§1446(a). After all, the “applicable law” surely includes
the law applicable to the disposition of petitions to appeal,
§1453(c)(1), and that body of law includes countless rea-
sons to deny permission to appeal that are unrelated to
the merits of the underlying district court judgment.
“Applicable law” would allow the Tenth Circuit, for exam-
ple, to deny permission to appeal for reasons not men-
tioned in the parties’ briefing. It would allow it to deny
permission because it would be unable to resolve the issue
within 60 days, as required by CAFA (absent an exten-
sion). §1453(c)(2) and (c)(3); see also 730 F. 3d 1234, 1238
(Hartz, J., dissenting from denial of rehearing en banc) (“It
will always be tempting for very busy judges to deny
review of a knotty matter that requires a decision in short
order”). And “applicable law” would permit numerous
other grounds for denial, including those applied by this
Court in denying petitions for certiorari. There is, to tell
the truth, absolutely nothing in the Tenth Circuit’s order
to suggest that it relied on the unlawful ground that the
Court eagerly attributes to it, rather than one of many
possible lawful grounds. Thus, as we said in Mendelsohn,
“it would be inappropriate for the reviewing court [us] to
assume . . . that the lower court adopted a party’s incorrect
argument.” 552 U. S., at 385, n. 2.
Besides relying on the utterly uninformative language of
the order, the Court makes one other attempt to demon-
strate that the Tenth Circuit’s order was based upon its
agreement with the holding of the District Court. It as-
serts that denying Dart permission to appeal “froz[e] in
Cite as: 574 U. S. ____ (2014) 5
SCALIA, J., dissenting
place” the District Court’s rule. Ante, at 10. In light of
that denial, the Court says, any “responsible attorney” will
include evidence supporting jurisdiction in his notice of
removal, thereby eliminating the risk of having that notice
held improper for the reason given by the District Court in
this case. As a result, the Tenth Circuit will likely never
again be presented with the question whether evidence of
jurisdiction must be included with a notice of removal.
Ibid. The Court then notes that, among the many factors
the Tenth Circuit considers in deciding whether to accept
an appeal under §1453(c)(1), is whether the case presents
an issue which, if not resolved in that appeal, will “leave
the ambit of the federal courts for good.” BP America,
supra, at 1035. One would have thought that this factor,
if it controlled the Tenth Circuit’s denial, means that the
Tenth Circuit did not agree with the Court’s perception
that this issue will not likely reappear. The Court, how-
ever, says (quite illogically) that it means the Tenth
Circuit must have agreed with the District Court’s incorrect
legal analysis. It is hard to imagine a more obvious non
sequitur.
And the argument not only tortures logic, it also distorts
reality, resting as it does on the premise that henceforth
no “responsible attorney” will fail to include evidence
supporting federal jurisdiction in a notice of removal.
Even discounting the existence of irresponsible attorneys,
but see, e.g., Maples v. Thomas, 565 U. S. ___ (2012),
responsible attorneys, and even responsible judges, some-
times make mistakes, see, e.g., 572 U. S. ___ (2014) (order
granting certiorari in this case). Indeed, Dart’s own
(seemingly responsible) lawyers failed to include evidence
supporting federal jurisdiction, despite what they argue is
Circuit precedent supporting the District Court’s holding.
See Tr. of Oral Arg. 12 (counsel for Dart, explaining that
the District Court’s ruling was supported by Tenth Circuit
precedent).
6 DART CHEROKEE BASIN OPERATING CO. v. OWENS
SCALIA, J., dissenting
Even in the legal utopia imagined by the Court—a world
in which all lawyers are responsible and no lawyers make
mistakes—it is easy to imagine ways in which the issue
could come back to the circuit court. If, for example, a
party appealed a district court decision addressing the
sufficiency of the jurisdictional evidence, the Tenth Circuit
could accept the appeal and hold (en banc, if necessary)
that no evidence is required at all. In short, it is impos-
sible to credit the suggestion (irrelevant in any case) that
the chances of this issue arising again were “slim.” Ante,
at 10.
The Court attempts to bolster its conclusion with an
unprincipled and unequal application of the waiver doc-
trine. Owens, it says, by failing to brief the argument that
the Tenth Circuit denied Dart’s petition for reasons other
than its agreement with the District Court’s decision,
waived that argument. Ante, at 12 (citing this Court’s
Rule 15.2). Dart, however, never made an argument that
would have called for such a response. It never argued
that the Tenth Circuit abused its discretion in denying
permission to appeal. Aside from one stray assertion on
the final page of its reply brief, its briefing focused entirely
on whether the District Court erred in remanding the case
to state court. See, e.g., Brief for Petitioners 9 (“This
Court should reverse the district court’s order remanding
the case to state court”). Rather than hold Dart responsi-
ble for failing to argue that the Tenth Circuit abused its
discretion, see Republic of Argentina v. NML Capital,
Ltd., 573 U. S. ___, ___, n. 2 (2014) (slip op., at 5, n. 2) (“We
will not revive a forfeited argument simply because the
petitioner gestures toward it in its reply brief ”), the
Court makes the argument on Dart’s behalf and then
takes Owens to task for failing to refute it. This Court ought
not embrace such an oddhanded application of waiver
principles.
The Court answers that Dart “had no cause to address”
Cite as: 574 U. S. ____ (2014) 7
SCALIA, J., dissenting
whether the Tenth Circuit abused its discretion until the
issue was raised in Public Citizen’s amicus brief. Ante, at
9, n. 3. Not good enough. First, parties always have
“cause to address” issues on which their entitlement to
relief depends. Second, and more important, Public Citi-
zen filed its amicus brief after both sides had already filed
their merits briefs. So if the timing of that brief excuses
Dart’s failure to address whether the Tenth Circuit abused
its discretion, it should excuse Owens’ failure as well.
I come, finally, to the Court’s stinging observation that I
joined the majority opinion in Standard Fire Ins. Co. v.
Knowles, 568 U. S. ___ (2013)—a case that arose in the
same posture as this one, but that was resolved without
reference to the question whether the appellate court
abused its discretion. Ante, at 8, n. 2. Of course Knowles
did not address whether denials of permission to appeal
under §1453(c)(1) are to be reviewed for abuse of discre-
tion—which is why today’s majority cannot cite it as prec-
edent. See Brecht v. Abrahamson, 507 U. S. 619, 630–631
(1993). As for my own culpability in overlooking the issue,
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 quoted by
the author of today’s opinion: “I see no reason why I
should be consciously wrong today because I was uncon-
sciously wrong yesterday.” Massachusetts v. United
States, 333 U. S. 611, 639–640 (1948) (dissenting opinion),
quoted in Burwell v. Hobby Lobby Stores, Inc., 573 U. S.
___, ___, n. 11 (2014) (slip op., at 12, n. 11) (GINSBURG J.,
dissenting).
* * *
Instead of correcting an erroneous district court opinion
at the expense of an erroneous Supreme Court opinion, I
would have dismissed this case as improvidently granted.
Failing that, my vote is to affirm the Court of Appeals,
8 DART CHEROKEE BASIN OPERATING CO. v. OWENS
SCALIA, J., dissenting
since we have absolutely no basis for concluding that it
abused its discretion.
Cite as: 574 U. S. ____ (2014) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 13–719
_________________
DART CHEROKEE BASIN OPERATING COMPANY,
LLC, ET AL., PETITIONERS v.
BRANDON W. OWENS
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[December 15, 2014]
JUSTICE THOMAS, dissenting.
I agree with JUSTICE SCALIA that the merits of the
District Court’s decision are not properly before the Court.
I write only to point out another, more fundamental,
defect in the Court’s disposition: We lack jurisdiction to
review even the Court of Appeals’ denial of permission to
appeal.
Congress has granted this Court jurisdiction to review
“[c]ases in the courts of appeals” by writ of certiorari. 28
U. S. C. §1254. Purporting to act pursuant to this grant of
jurisdiction, the majority today reviews the decision of the
Court of Appeals to deny an application for permission to
appeal a remand order. But such an application is not a
case: It “ ‘does not assert a grievance against anyone, does
not seek remedy or redress for any legal injury, and does
not even require a “party” on the other side.’ ” Miller-El v.
Cockrell, 537 U. S. 322, 355 (2003) (THOMAS, J., dissent-
ing) (quoting Hohn v. United States, 524 U. S. 236, 256
(1998) (SCALIA, J., dissenting)).
To justify its action here, the majority quietly extends
an opinion of this Court holding that applications for
certificates of appealability (COAs) in the federal habeas
context are “cases.” Hohn, supra. Hohn was wrongly
decided, and the majority’s uncritical extension of its
2 DART CHEROKEE BASIN OPERATING CO. v. OWENS
THOMAS, J., dissenting
holding only compounds the error. Hohn rests tenuously
on the conclusion that the determination that must be
made on an application for a COA is more like a threshold
determination than a separate judicial proceeding. See
id., at 246–248. The basis for that conclusion, if any ex-
ists, must rest on features unique to the COA: “The COA
determination . . . requires an overview of the claims in the
habeas petition and a general assessment of their merits.”
Miller-El, supra, at 336 (emphasis added). The best ar-
gument one could make in favor of Hohn is that, because a
court’s decision on an application for a COA turns on the
strength of the applicant’s grievance and his entitlement
to relief, the application absorbs the case-like qualities of
the underlying merits case. See Hohn, supra, at 248.
No such osmosis could transform an application for
permission to appeal a remand order into a “case.” As
JUSTICE SCALIA explains, the decision whether to permit
such an appeal requires no assessment of the merits of a
remand order. See ante, at 2 (dissenting opinion). The
application here is nothing more than a request for discre-
tionary permission to seek review. See Miller-El, supra, at
355 (THOMAS, J., dissenting). The Tenth Circuit having
denied that permission, no “case” ever arrived “in the
court of appeals.” I would dismiss for lack of jurisdiction.