Dart Cherokee Basin Operating Co., LLC v. Owens

Oral argument transcript · No. 13-719 · October Term 2014 · argued October 7, 2014 · the petitioner won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

Advocates

• Nowell D. Berreth, Atlanta, Ga., for the petitioner
• Rex A. Sharp, Prairie Village, Kan., for the respondent

Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We'll hear argument next in Case 13­719, Dart Cherokee Basin Operating Company v. Owens. Mr. Berreth. ORAL ARGUMENT OF NOWELL D. BERRETH ON BEHALF OF THE PETITIONERS

Nowell D. Berreth: Mr. Chief Justice, and may it please the Court: In Section 1446(a) Congress established a pleading standard for the notice of removal, not a demand for proof. The plain language in Section 1446(a) tells us this. The plain language of Section 1446(a) provides that a notice of removal shall contain a short and plain statement of the grounds for removal. And that mirrors language that has been used in Rule 8 for more than 80 years and that has never been held to require evidence with the complaint.

Justice Scalia: Well, how do we know that the reason the court of appeals did ­­ did not ­­ or sustained the refusal to take it, how do we know that the reason was that they disagree with you on what the standard ­­ what the court of appeals' reason was? How can we ­­ Alderson Reporting Company Official

Nowell D. Berreth: Well, we know that the court of appeals let stand a district court decision.

Justice Scalia: Right, and so your ­­ your ­­ your job is to argue that that was an abuse of discretion, because the statute says that they may, right? They may take it­­

Nowell D. Berreth: Well, an abuse of discretion ­­ an abuse of discretion is not necessary to be shown here. It can be shown here, because what the circuit court did here was let stand a decision that did many things. And it's an unusual situation in the law, Justice Scalia. It let stand a decision of the district court that flouted the plain language of the statute.

Justice Kennedy: Is it always an abuse of discretion for the court of appeals to let an erroneous decision stand?

Nowell D. Berreth: Not necessarily always. In a case like this, however, when the decision that was let ­­ let to stand flouted the plain language of the statute, is a situation where if it's not corrected by this Court, it may never be corrected. And what the ­­ the problem that will never be corrected is this lack of uniformity among the circuits on a matter that's so clearly established by Congress. Alderson Reporting Company Official Congress does not require there to be evidence in a notice of removal. And defendants in Florida or defendants in California don't have to include evidence within 30 days in their notice of removal. Defendants in the six States at issue in this case do. They are treated differently.

Justice Kagan: Well, that seems a little extreme to say it may never be corrected. I mean, this was a decision that was made by eight judges. There are now twelve judges. Maybe the additional four will make a difference. Maybe even those eight will think twice about it the next time around. I mean, in fact we just don't know, right, because we don't know why they acted the way they acted. It might have been because they thought that the district court's decision was right, or it might have been because they thought it ­­ that ­­ that question is better ­­ was better decided in some other context, or it might be because they were just feeling too busy that day. And ­­ and an abuse of discretion standard would go, you know, to the ­­ just the decision whether to take it, not knowing what that decision was based on.

Nowell D. Berreth: Well, Justice Kagan, in this situation, given what the Tenth Circuit has done and Alderson Reporting Company Official given that the case has made it this far, as Judge Hartz pointed out in his dissent below, it's highly unlikely that a situation like this would arise again. It's ­­ it takes an unusual confluence of circumstances to have a case get here in the first place. But now that we are here, lawyers in the Tenth Circuit are more unlikely than ever to ­­ to allow this problem to happen in the future, to allow this to ­­ to re ­­ recur. And so that is a main part of why this is an unusual situation. It's not a garden variety decision by the court of appeals that we are faced with.

Chief Justice Roberts: I'm not sure you're joining issue with the question Justice Kagan asked. Do we really not know why the Tenth Circuit did what it did in this case?

Nowell D. Berreth: Well, the Tenth Circuit did not explain the reasons for its decision.

Chief Justice Roberts: But the dissenters in the case thought ­­ explain why they thought it was wrong. Don't you think if the Tenth Circuit relied on a different reason they would have said so?

Nowell D. Berreth: Well, they may have, they may not have. They're not required to. But they're not allowed to insulate their decisions from review simply Alderson Reporting Company Official by ­­ by not explaining them, especially in a situation like this involving the unusual situation and involving a circuit that ­­ that is ­­ that is wayward, a circuit that is not applying the plain language of Section 1446(a).

Justice Sotomayor: I mean, I'm not sure what ­­

Justice Alito: Go ahead. Has there been any suggestion at any point in this case ­­ in the district court, in the court of appeals, in the papers that have been filed here ­­ that the decision was based on anything other than the reasoning of the district court? Any other reason been given?

Nowell D. Berreth: There has not been another reason that's been given, and the reason that the district court gave was clearly erroneous. The district court clearly thought that she was constrained to ignore evidence that all parties agreed is sufficient to establish removal of jurisdiction in this case. This is a case where there's no dispute about whether all of the elements necessary for Federal court jurisdiction exist. The only impediment to Federal jurisdiction right now is that the district court felt constrained to ignore that evidence solely because of ­­ of a timing restriction that is not found Alderson Reporting Company Official in the plain language of the statute. And when ­­

Justice Kennedy: I'm ­­ I'm wondering in some later case, could attorneys who want to remove within the 30­day period seek mandate from the Tenth Circuit to mandate the judge not to require the evidence?

Nowell D. Berreth: Well, they could ­­ I suppose they could try something like that. I think that they're not required to. Congress has told us that they're not required to go to such extreme measures. Congress has told us that what defendants are supposed to do is, within 30 days of receiving the complaint or another paper, either of which would put them on notice that ­­ that there is the amount in controversy in play here, that they are required to file their notice of removal. And in the Tenth Circuit, they have to go get affidavits. Perhaps the CEO of the company is in Hawaii or something. And frequently, lawyers aren't even hired for a couple of weeks after a complaint is filed. And so you can have a situation where, in the Tenth Circuit, unlike in other circuits, maybe there's only 10 days to go find the CEO to get the affidavit that thought – that is thought to be necessary, Alderson Reporting Company Official when that requirement simply does not exist in the plain language of the statute. And it doesn't exist ­­ it's not enforced in any of the other circuits.

Justice Kagan: Mr. Berreth, I ­­ I apologize for going back to this not merits question, but on the question of why the Tenth Circuit did what it did, Judge Hartz, who was, of course, dissenting from denial, made reference to the fact ­­ and I'm just quoting here ­­ that the judges were very busy, and the appeal presented a knotty matter that requires a decision in short order. So even he, who was trying to suggest that an appeal should have been taken, was not suggesting that the court did what it did because the court agreed with the trial court.

Nowell D. Berreth: Well, in a case like this where all parties agree that there's a case in the court of appeals, so that there is jurisdiction under Section 1254, the Forsyth v. Hammond case confirms that this Court has the power, the certiorari power to ­­ to look to the whole case, to look to any aspects of the case.

Justice Ginsburg: But I thought Hohn, which I think you used as explaining why the case is in the court of appeals, but Hohn said the only thing that you can review is the COA, certificate of appealability. Alderson Reporting Company Official You can't use that handle to get to the merits. So the only question is whether the certificate was improperly denied and not the merits.

Nowell D. Berreth: Well, Justice Ginsburg, the difference in that case was that the government conceded error. Government conceded that the merits question was not in dispute. So this Court didn't need to go ahead and reach the merits. This Court has reached the merits in a similar situation in the Nixon v. Fitzgerald case.

Justice Kennedy: But I thought ­­ are you saying that all parties concede that this case is in the court of appeals, both with respect to the proper exercise of the court's jurisdiction in taking the case and as to the merits?

Nowell D. Berreth: That's right. Once the case is in the court of appeals, under Section 1254, Forsyth confirms that this Court has the power to review any aspect of the decision ­­

Justice Kennedy: Well, I ­­ I think that's contrary to Hohn, as Justice Ginsburg has just indicated.

Nowell D. Berreth: Well, Hohn did not purport to overrule Nixon v. Fitzgerald ­­

Justice Kennedy: All right. And one's a COA, and then the other's ­­ is the statute Alderson Reporting Company Official there. There may be a difference there’s, but I don't see the difference.

Nowell D. Berreth: Justice Kennedy, this ­­ this case presents different issues than were in play in Hohn. And a case that presented issues very similar to this is Nixon v. Fitzgerald. And in that case, the court did both steps. The court took both steps. The court, number one, confirmed that it had jurisdiction under Section 1254, which exists here; all parties agree. And number two, the court in Nixon v. Fitzgerald went ahead and addressed the merits question, which is what we asked the Court to do in this case, because if the Court doesn't go ahead and address the merits question in this case, there is a high likelihood that the merits question won't be addressed, and that we'll have one circuit alone that has this requirement out there that flouts congressional intent.

Justice Ginsburg: The reason is that any careful lawyer in the Tenth Circuit will ­­ will know that we ­­ we'd better put the evidence in the notice of removal. So a lawyer is not going to risk failing to do that to make ­­ to correct the Tenth Circuit's error.

Nowell D. Berreth: That's right. And ­­ and this sort of belt and suspenders approach is not what Congress tells us defendants have to do. Alderson Reporting Company Official

Justice Scalia: But the district court's opinion is not ­­ certainly not circuit law, so I think you exaggerate when you say it establishes bad law for the circuit. It just doesn't.

Nowell D. Berreth: Well, the ­­

Justice Scalia: The circuit let the district court decision stand, but that doesn't make the district court decision circuit law.

Nowell D. Berreth: The district court was relying on circuit law in making its decisions.

Justice Scalia: And maybe it was wrong.

Nowell D. Berreth: Well, the circuit law, which started this, the Laughlin case from 1995, is wrong, we would submit. And that is the case that got the Tenth Circuit off on this track.

Justice Scalia: I see. You're just not relying on this case; you're relying on the fact that the district court relied on an earlier case.

Nowell D. Berreth: That's right. This ­­ this so­called Tenth Circuit rule, which came into effect in about 1995, what set this circuit off its ­­ off track, and this is the case that can bring this circuit back on track. And to ­­ to not require the district courts to feel constrained as the district court here felt ­­ Alderson Reporting Company Official the district court here felt that she was constrained by Laughlin and by a couple of other cases in the Tenth Circuit that established this Tenth Circuit rule. And based on that constraint, which, again, finds no basis in the text of the statute, she refused to consider evidence that all parties agree establishes the amount in controversy. The amount in controversy in this case as established is more than four times the amount in the statute.

Justice Sotomayor: All right. How ­­ how would you answer this question: How did the circuit abuse its discretion?

Nowell D. Berreth: The circuit abused its discretion by letting stand a decision that so plainly violated the plain language of the statute that exists in a case in which further review is highly unlikely, so that if it's not corrected now it may never be corrected. And in doing so, it ­­ it ­­ it ran counter to this Court's desire for uniformity among the circuits in the law, especially uniformity in a matter this important and this ­­ and in which Congress has spoken as clearly as it has.

Justice Breyer: To put it more simply, you think that the circuit abused its discretion by relying upon an improper legal reason. Alderson Reporting Company Official

Nowell D. Berreth: We do believe it.

Justice Breyer: That's classic, right?

Nowell D. Berreth: We do. We don't believe ­­

Justice Breyer: Now, it isn't quite clear that they did, because they didn't say . But you think there's a good chance they did. So then I guess that you would like us to say, if that was your reason, it's improper and wrong. Now, we'll send it back to see if there is some other reason.

Nowell D. Berreth: That's right.

Justice Breyer: That's your position.

Nowell D. Berreth: That's right. And this Court reviews ­­

Justice Breyer: There is nothing more to it than that.

Nowell D. Berreth: This Court reviews judgments, not rulings.

Justice Breyer: No, no. That's a different point.

Nowell D. Berreth: And ­­

Justice Breyer: What we reviewed is the word "denied," and the question of the word "denied" is we're not certain why, but we have a good suspicion. Is that ­­ I mean, that's the argument. Is there anything Alderson Reporting Company Official else to it?

Nowell D. Berreth: What else is in the argument is that this Court is not required to find an abuse of discretion to rule in our favor in this case. Because this Court's certiorari power is broad enough so that this Court doesn't even have to wait for a circuit court to act. So if this Court doesn't have to wait for a circuit court to act, it shouldn't be restricted from doing what is right merely by a circuit court's decision not to explain its reasoning.

Justice Sotomayor: In other words, you win either way. We say they abused their discretion if they relied on the wrong law, or we go right to the law because we have that power to do it.

Nowell D. Berreth: That's right, Justice Sotomayor. We ask you to review the Tenth Circuit's decision. There is choices the Court can make in how to handle this. We think the most logical way for the Court to handle it is to review the Tenth Circuit's decision, and in doing so, to look through that, to what the Tenth Circuit did. And when you do that, you find this clear error of law, this failure to appreciate Congress's plain language, this failure to appreciate the fact that this is not a case that's likely to come up for review in the future. Alderson Reporting Company Official

Justice Scalia: We don't know what the Tenth Circuit did. You say the Tenth Circuit's decision. The Tenth Circuit made no decision. It declined to take the case, didn't it? It may ­­ the statute says it may, and it said we won't. And we don't know why they said that. Even the dissenters in the petition for en banc didn't say, oh, the court was wrong to stand by our earlier decision which you – which you complain about. No, they said, you know, this was an important issue and we should have taken it. Now, you're saying we are going to review that decision as an abuse of discretion that you should have taken it. Right?

Nowell D. Berreth: I'm saying that once the application for an appeal was filed, there is a case in the court of appeals, therefore, this Court's power is so extensive it can review any aspect of a decision. It's not hampered by a lack of an explanation for the decision by the Tenth Circuit.

Justice Scalia: Is that right? It seems to me the statute gives the power to the court of appeals. It says the court of appeals may decline to take it. We can't override their judgment not to take it unless there is something unlawful about that judgment. You give us too much credit, you know, we don't have total power to make decisions, the courts of appeals are Alderson Reporting Company Official supposed to make.

Nowell D. Berreth: Justice Scalia, under Forsyth, though, this Court does have the power to not be constrained by the district court's ­­

Justice Breyer: I thought your answer would be, of course, he is right. But there is something unlawful about this decision. Suppose the decision had rested on his religion. Unlawful, wouldn't it have been? Suppose they didn't tell us but the dissent told us. So the question is you're arguing, yes, there was something unlawful. The unusual thing about the case is the person who tells us what they were doing is the dissent. Now, I don't know why the dissent says that was a reason ­­ as I read the dissent. Maybe other people read it differently, but as I read the dissent, the dissenter was telling us that that was a significant factor in their decision. All right. As found in the other case, we find out what they did by reading the dissent, it doesn't sound to me to be totally unusual.

Justice Scalia: Do you agree with that description of the dissent? Do you think the dissent said that that was the reason?

Nowell D. Berreth: The dissent said that the district court felt constrained by this pre­existing Alderson Reporting Company Official Tenth Circuit precedent to refuse to consider the evidence.

Justice Scalia: Yes. But the dissent didn't say why the court of appeals refused to take the case, did it? It didn't say the court of appeals refused to take it because it agreed with that prior decision. It didn't say that, did it?

Nowell D. Berreth: It did not explain that. That's right.

Justice Breyer: You have different judges who possibly read different language in the dissent to suggest what the dissent is thinking. So he doesn't say it literally, but when I read it, I thought that's what he means.

Nowell D. Berreth: But based on what happened here, there is just simply no way that the Tenth Circuit's decision can satisfy an abuse of discretion standard.

Justice Alito: Let me give you an example of something that happens quite frequently and maybe you can tell me if this situation is any different from that. A district court has to make a decision on something as to which the district court has discretion. A party urges the district court to make a particular Alderson Reporting Company Official decision based on one ground. And the one ground is based on a legal error. The district court rules in favor of that party but says absolutely nothing. Now the issue is raised on appeal, the argument is that the trial judge abused his or her discretion. Now, would that be insulate it from review for abuse of discretion on the ground that, well, we really don't know why the judge did what the judge did? The judge didn't say anything. So the judge might not have based the decision on this one ­­ on this legal error, the only ground that was urged upon the court. It might have been based on something else.

Nowell D. Berreth: No ­­

Justice Alito: What would be ­­ is that different from this situation?

Nowell D. Berreth: It's not very different from the situation. A classic abuse of discretion is an error of law. And there was an error of law here because the district court felt constrained ­­

Justice Kagan: Mr. Berreth, that assumes that when an appeals court decides whether to take an appeal, all they are doing is making a merits determination. And if that's all that appeals courts were doing when they decide whether to take an appeal, then you would be right. But, in fact, we know from Alderson Reporting Company Official everything we do every day that when a court decides to take something or not to take something, they are not just making a merits evaluation. They are doing a thousand other things as well about how they think it's best to arrange their docket. And what we don't know is whether the Tenth Circuit here did one of those things.

Nowell D. Berreth: I believe that what we do know, what we can glean from this, though, is that by failing to correct this clear error of law, that was an abuse of discretion. I don't believe an abuse of discretion was necessary here because this Court isn't constrained under the Forsyth case by what the district ­­ by what the circuit court did because this Court can act before the circuit court acts. But an abuse of discretion is shown here. We can show abuse of discretion. It's the classic abuse of discretion, of a clear error of law. But there isn't a floodgates problem here, I think, with respect to every time a circuit court commits a clear error of law that it has to be appealable.

Justice Scalia: Well, I guess it's an abuse of discretion whenever we fail to correct a clear error of law on a petition for certiorari. Right? And I'm not going to mention any names, but is that the case? It's an abuse of discretion. I thought we just had the Alderson Reporting Company Official power to say we don't feel like taking it.

Nowell D. Berreth: I don't believe it would be an abuse of discretion for this Court. This Court's power is different than the circuit courts'. The circuits courts do not have the benefit of the broad, nearly unlimited power of Forsyth ­­

Justice Kagan: But this statute gives the appellate courts tremendous discretion on this area. It says it may take an appeal, it may not take an appeal. Think of the thousand things that you want to think about, not anything invidious, not anything permissible, but, you know, whether to take an appeal. And that's the only thing we know about it. Here's a question for you, because I sympathize with you. Because the next half­hour is going to reveal that, actually, most of us agree with you on the merits. Right?

Justice Alito: That might be a little premature.

Justice Kagan: All right. I will limit it, I agree with you on the merits. All right? But I just don't see how to get around this. Here's my suggestion. Would it be sufficient for your purposes, you're worried about the sort of continuing effect of this, to just sort of get rid of this case, dismiss this Alderson Reporting Company Official case, but to ­­ we often explain why we dismiss cases and to suggest that we are dismissing it because we don't know whether the Tenth Circuit made a decision on the merits. And if and to the extent that the Tenth Circuit wants in the next case to make a decision on the merits, and if and to the extent that the Tenth Circuit wants in the next case to make a decision on the merits when it denies an appeal, it should say so, so as not to insulate that decision from review. That seems like a fair thing to say to the Tenth Circuit. Don't insulate your merits decisions from review. But it also seems to be, you know, to reflect what is true about this case, which is that we don't know whether it made a merits decision.

Nowell D. Berreth: Well, this Court doesn't need to know whether the Circuit Court made a merits decision to reverse in this case. This Court's discretionary power, this Court's certiorari power, once there's a case of the court of appeals doesn't require this Court to know why the circuit court did what it did.

Chief Justice Roberts: Do you think it's appropriate for this Court to dismiss certiorari, in other words, the case is not before us, and then opine on the merits of the case?

Justice Kagan: No. No. No. I was not Alderson Reporting Company Official suggesting that we opine on the merits of the case. I would think that that would be not appropriate.

Chief Justice Roberts: I thought the suggestion was that we tell the Tenth Circuit that this was wrong?

Justice Kagan: No. No. No. That is not my suggestion, it might be your suggestion.

Chief Justice Roberts: Well, if we simply dismiss certiorari, what do you think we have the authority to say other than the reasons for dismissing certiorari?

Nowell D. Berreth: Well, I think number one, you have the power to rule in favor of my client in this case. I think you have the power perhaps to remand the case to the Tenth Circuit, this case, and require the Tenth Circuit to consider the appropriate factors. I don't think it would be appropriate, given where we are, given how far we've come, given the fact that all parties agree there's a case in the court of appeals, given that Forsyth teaches us that this Court need not know why the circuit court did what it did to find abuse of discretion, if an abuse of discretion is necessary, I would submit at a minimum, that this Court would remand the case to the Tenth Circuit for an appropriate balancing of the factors. Alderson Reporting Company Official But I don't believe that that is necessary because I believe that because of Forsyth and because of this Court's power, this Court has the power to reverse this case similar to what happened in the Standard Fire case.

Chief Justice Roberts: How can ­­ how can we remand for an appropriate consideration of the factors if we don't say that what took place was inappropriate?

Nowell D. Berreth: That's ­­ a decision on the merits would cover all those bases, Mr. Chief Justice. A decision on the merits here would correct the error; it would correct the error in this case, and it would correct ­­ keep any errors from happening in future cases in the Tenth Circuit.

Justice Kennedy: Is the only way that we can do that is by granting cert before judgment?

Nowell D. Berreth: I don't believe that that's the only way that that can be done. I think that it happened in ­­

Justice Kennedy: Well, let's assume that we think the case that Hohn controls and this case is in the ­­ in the court of appeals only for the purpose of determining whether the appeal should be taken. If we make that assumption, then isn't the only way for us to Alderson Reporting Company Official reach the merits to grant cert before judgment?

Nowell D. Berreth: Justice Kennedy, the Court's certiorari power is broader than that, I believe. So I don't believe a cert grant before judgment is the only way because this Court does not need to wait for the circuit courts to act. But if this Court does wait for the circuit court ­­

Justice Kennedy: Well, do we grant it on the ground that it's interesting? I mean, I don't know what your ­­ what your standard is.

Nowell D. Berreth: You grant cert on cases of national importance, on cases in which there is one wayward circuit that's so flouting the plain language of the ­­ of the statute that it ­­ that it ­­ that it should ­­ needs to be corrected, that defendants in the heartland of the country, in these six states, should have the same benefits as defendants in those other states.

Justice Kennedy: In other words, we grant cert to the district court?

Nowell D. Berreth: This Court can grant cert to the district court in very rare circumstances.

Justice Kennedy: And that's the only way we can do it, it seems to me, if you assume that the case is in the court of appeals only for the purpose of Alderson Reporting Company Official determining whether to take an appeal.

Nowell D. Berreth: Well, the Nixon v. Fitzgerald case, though, confirms that the court is not so constrained.

Justice Scalia: Well, but we would sort of frustrate the statute, wouldn't we? The statute gives the court of appeals the discretion to decide whether there will be an appeal or not. And you're saying, oh, no, if they decide there won't be you ­­ you just reach in, and you have cert before judgment. I think that's a real frustration of the purpose of this statute, which says these matters, you know, are not all that significant. So it doesn't come to federal court. It stays in state court, who cares? We trust our state courts. I mean, the whole purpose of the statute is to make this, you know, a quick and dirty judgment. That's why they don't have to state reasons. They just say no appeal, or appeal. And you're saying, oh, no. It suddenly becomes laden with ­­ with all sorts of requirements that if they're not observed, we ­­ we grant cert before judgment. I wouldn't think of doing that, well, with this statute anyway.

Nowell D. Berreth: Well, when Congress provides Alderson Reporting Company Official in 1453 for appellate jurisdiction over the remand orders, Congress is providing for jurisdiction in this Court because Congress didn't legislate to the contrary. When ­­ when Congress wants to prevent this Court from having the ability to take up a writ of certiorari, it does so, as it did in the AEDPA context, when it explicitly restricted this Court from hearing a petition for a writ of certiorari or granting one. Congress didn't so legislate here. This Court has full power to address both the ­­ address the merits question in this case. I'd like to reserve the balance of my time.

Chief Justice Roberts: Thank you, counsel. Mr. Sharp. ORAL ARGUMENT OF REX A. SHARP ON BEHALF OF RESPONDENT

Rex A. Sharp: Mr. Chief Justice, and may it please the Court: The remand order should stand for at least two reasons. First, 1447(d) bars this Court's jurisdiction to review this case at all, on appeal or otherwise, because the Tenth Circuit did not accept the remand appeal under 1453. Consequently, this Court has no jurisdiction at all to review this matter on appeal or certiorari or Alderson Reporting Company Official any other way.

Chief Justice Roberts: So ­­ so if the court of appeals said we are not accepting this petition because of the race of the person seeking removal, that's just too bad? We can't review that?

Rex A. Sharp: If they give a reason, I think this Court can review a reason. But if it doesn't give a reason, it just simply does as this Court sometimes does with a petition for certiorari ­­ denied ­­ there's nothing to review.

Chief Justice Roberts: So if every case in which parties seek removal, a particular race of a person seeking removal, their case is denied 100 out of 100 cases. We still don't have any basis and they know, gosh, the one thing we ­­ we can't do is say why we are doing it. They have a blank check? They can do that forever without any review by this Court?

Rex A. Sharp: No. I don't think you have a blank check, because at the time it goes back to state court, then comes up on final judgment, and this Court would review the final judgment on whether the remand was proper.

Justice Ginsburg: But it was just pointed out that lawyers in the Tenth Circuit are not going to take that risk. The Tenth Circuit precedent, which the Alderson Reporting Company Official district court followed, says you must produce in the notice of appeal evidence. So what lawyer is going to say to his client, now, we can easily do that, but I won't because I want to test whether the Tenth Circuit precedent is wrong. As a practical matter, this will be unreviewable because the lawyers will simply conform to what the Tenth Circuit says is the law.

Rex A. Sharp: Your Honor, I think that's what the dissent pointed out, is that, what lawyer would not put on evidence after having that Tenth Circuit rule set forth as it has been for the last 20 years. But yet, we do have this case where evidence wasn't presented. Why their evidence was not presented, no one knows, but it was clear that Dart had the evidence to present at the time of this notice of removal but didn't present it. Perhaps it wanted to challenge this issue to the Tenth Circuit ­­

Justice Ginsburg: Maybe ­­ maybe because it thought there wouldn't be any controversy. Maybe they thought the defendant thought the plaintiff would agree that the amount was over the jurisdictional order.

Rex A. Sharp: That's a good point, Your Honor, and that's entirely possible. That, as it turns out, Alderson Reporting Company Official would not be this case, because as we get deeper into the evidence in this particular case, this one doesn't meet $5 million. It's not going to get close to meeting $5 million.

Justice Breyer: You actually started out by saying 1447(d), which I thought had nothing to do with this case. That is, I thought that they ­­ they were going ­­ the relevant statute is 1453(c)(1), which says a court of appeals may accept an appeal, notwithstanding Section 1447(d), from an order of the district court granting or denying a motion to remand. All right? So we are not talking about 1447(d); we are talking about 1453(c)(1). Now, what they did is they said they have an order, and the order says, no, we won't accept it. And the question is, is that order reviewed in this Court? I didn't think there was disagreement that it is reviewable. If they had said, We will not accept it because if we think that it only applies to stoppage in transitu cases, they would have their reason. Their reason would have been wrong, and I guess we could review it. Is that right or not?

Rex A. Sharp: Well, Your Honor ­­

Justice Breyer: Yes or no? Alderson Reporting Company Official

Rex A. Sharp: No, Your Honor.

Justice Breyer: No, we can't review any case when they turn it down, no matter what their reason. Do you have any authority for that proposition?

Rex A. Sharp: ­­ as you pointed out, 1453(c) and 1453 in total adopts the entirety of 1446 and 1447, with limited exception.

Justice Breyer: No. It doesn't adopt it. It says notwithstanding Section 1447(d), a court of appeals may accept an appeal. So please accept my appeal; court of appeals says no. My question to you is, does this Court have the authority to review the order that says no?

Rex A. Sharp: And my answer is still ­­

Justice Breyer: No, it doesn't ­­

Rex A. Sharp: ­­ still the same ­­

Justice Breyer: No matter how terrible the reason, it doesn't. That's your answer?

Rex A. Sharp: No. My answer is because they did not accept the appeal, then you go back to 1447(d) ­­

Justice Breyer: No, no. I'm saying my hypothetical is they do not accept the appeal.

Rex A. Sharp: As in this case.

Justice Breyer: They say we do not accept Alderson Reporting Company Official the appeal because 1453 only applies to stoppage in transitu. Okay? A totally wrong reason. Now, are you saying we do not have the jurisdictional authority to review that order which says "denied"?

Rex A. Sharp: Denied for some clearly improper reason?

Justice Breyer: Yes, denied for some clearly improper reason. Are you saying that? And if so, I'd like to know the authority for that because we have plenty of cases that go with the analogous certificate of appeal in habeas cases ­­ cases where we take it.

Rex A. Sharp: I understand, Your Honor, and I don't think I have any cases, but ­­

Justice Breyer: All right. If you don't have any cases, we might file the other way. If you agree, and you don't ­­ all right, I don't know where to go from here because if you're going to say we can't take authority where they absolutely can't hear the case, where it's absolutely clear they're wrong, then I don't know where to go.

Rex A. Sharp: Well, let me see if I can ­­

Justice Breyer: I don't do that, but, I mean, but I'm not going to get you to say anything more. Alderson Reporting Company Official

Rex A. Sharp: Let me see if I can address it, Your Honor. Hohn and Miller L. are not remand cases and Nixon was not a remand case. 1447(d) expressly deals with remand cases and Section 1453(c)(1) says when there is an accepted appeal under 1453, then 1447(d), it doesn't apply. But all the rest of 1447(d) applies and all of 1447 applies if the appeal is not accepted. That puts you right back into the 1440(c)(d) realm and 1447(d) says this Court doesn't have any jurisdiction under Gravitt. This is a similar case to like Kircher v. Putnam Funds where this Court basically said the district court got it wrong, but we don't have jurisdiction to hear it.

Justice Scalia: Do you think it's ­­ it's constitutional for Congress to say that certain minor issues or what it regards as minor issues shall not be appealable for any reason whatever? So even if it's decided you're going to do it for a plainly improper reason, like religion or race or something, still and all it ain't ­­ it ain't worth our trouble, right? Could Congress do that?

Rex A. Sharp: Your Honor, I don't think Congress can ­­ no, I don't think Congress ­­

Justice Scalia: You don't think Congress did that here. Alderson Reporting Company Official

Rex A. Sharp: I don't think they did that here. I think they made a ­­

Justice Scalia: I think you're going to lose then.

Rex A. Sharp: I think they made a simple declaration in 1447(d) that remand orders are not worth the time of the Court to handle on review, and with respect to class actions, we're going to let the court of appeals make that choice of whether it makes ­­ if it merits any attention on appeal. And if the court of appeals says it does ­­

Justice Ginsburg: Do you pay any attention at all to the obvious purpose of the Class Action Fairness Act, which was to get cases out of the State courts and into the Federal courts? Usually, we don't have that strong Federal policy of having the adjudication in the Federal court.

Rex A. Sharp: Yes, Your Honor. CAFA, I think, made clear that certain larger cases, interstate type cases, belong in Federal court. This isn't that kind of a case, but if it was, you also have ­­

Justice Ginsburg: You said that you would argue that the amount in controversy was not satisfied and it seems to me that most plaintiffs who are bringing class actions are not going to be argued, oh, we can't Alderson Reporting Company Official prove $500,000.

Rex A. Sharp: Your Honor, as much as my client would like to see this be a bigger case than it really is, this particular case, as the Court knows, when the original allegation was made on a conclusory basis of $8.2 million, that was made on the basis of all of the potential damages for all of the royalty owners. But in this oil and gas context, about 62 percent of all of the oil and gas leases were express deduction leases; in other words, they expressly authorized the deductions that we complained about. There goes about 40 percent of our damages right there as a matter of law. The second thing is that it turns out, as we get deeper into this case, that Dart doesn't have all of the working interest in this particular oil and gas patch. They have more along the lines of half. There goes another half of our damages. Now we're down to 20 to 25 percent of the total damages.

Justice Ginsburg: You had alleged in your complaint that the damages that you were seeking were under $500,000. If that's what you thought, then you would be ­­

Rex A. Sharp: We ­­ we had no idea at that time, Your Honor. We didn't know how much. We just Alderson Reporting Company Official didn't have any information whatsoever at that time.

Justice Ginsburg: But when they ­­ when they did allege in the notice of removal that the amount in controversy was met, you didn't contest that.

Rex A. Sharp: We didn't need to at that time. We already had taken on the issue long before any evidence was presented to us that they had not proffered any evidence with the notice of removal. Under ­­ under the JCV's ­­ the JVCA ­­

Justice Ginsburg: But what you didn't say is that there is no such evidence and that our damages are less than $500,000.

Rex A. Sharp: We ­­ we didn't know ­­ we didn't have any evidence at all as to what the amount in controversy was so we didn't allege it in our petition. And when that was removed without anything other than an allegation that it was worth 8.2 million, we couldn't do anything other than say how do we know? Where's your evidence? We have nothing.

Justice Ginsburg: But there's a peculiar ­­ this State doesn't require the complaint to state the amount in controversy. But if you were bringing this case in the Federal court in the first instance would you have said as plaintiff, the damages that we seek are under 5,000 ­­ 500,000? Alderson Reporting Company Official

Rex A. Sharp: In ­­ if I had been in ­­ in the ­­ in the know at the time this case was filed, I would have alleged what the amount of damages were. I also may have alleged the case in a completely different way than I did. But I didn't have that evidence. So consequently, when the removal was made without any evidence at all from which we could determine what the amount in controversy really was, we said let's remand this case because you haven't come up with the actual evidence. They should have waited and presented all of the damage evidence and waited for another paper, like most of the ­­ other defendants do, but they didn't. They wanted to jump the gun and get it into Federal court and they didn't come with their evidence like they were supposed to. The JVCA is not governed by ­­

Justice Ginsburg: If there's only one circuit then, I mean, that is so antithetical with the whole notion of the Federal rules that you don't plead evidence. Plain statement doesn't include evidence and it is quite an extreme interpretation and counter to the whole thrust of the Federal rules, which you make a plain statement and then the evidence comes later.

Rex A. Sharp: Well, the ­­ the way I read the JVCA in 1446(a) is that the grounds must be just plainly Alderson Reporting Company Official stated, just like a regular pleading. The grounds are diversity. The grounds are a Federal question. And then (c)(2) specifically addresses the amount in controversy. (A) does not say anything about the amount in controversy. (C) and (c)(2) addresses the amount in controversy. And (c)(2) says ­­

Justice Sotomayor: I just have never ­­ I'm a little hard­pressed to understand why the district court would be without power to decide this question. They came in with evidence afterwards. Why couldn't you have come in with evidence and the district court decide which one is right?

Rex A. Sharp: Certainly, that could have been done if they had gotten over the procedural hurdle to begin with. The Tenth Circuit rule is pretty simple and it also follows the JVCA, which basically says if you want to jump the gun into Federal court and you're not going to wait on the plaintiff to virtually admit their way into Federal court, then you're going to have to put on some evidence. In the Tenth Circuit, they require prima facie evidence. If plaintiff looks at that prima facie evidence and does nothing, under Wilson, you're in. There's nothing more that need be done.

Justice Kagan: But I don't see where you Alderson Reporting Company Official get that. You know, you say (c)(2), which is the preponderance standard, but that's just a standard that the court is going to use to make the determination about whether to be in Federal court or not. But it seems to me that the statute is best read ­­ is really only read to comport as Justice Ginsburg said, with the rest of the Federal rules. It's notice pleading, then the original plaintiff has a choice. The original plaintiff can contest the ­­ the removal and present evidence and in that case, the defendant comes back with evidence and the defendant bears the burden of proof and the court makes its decision on the basis of that two sets of evidence. But why one should think of the original notice as needing to contain evidence is just ­­ I guess I don't understand where that comes from.

Rex A. Sharp: Well, the reason for that, I think, is that the original notice is not a pleading. It is not like plaintiff originating the case in Federal court. It's not a pleading. It's actually a motion. And as with most motions, you generally have to submit your evidence, you have to prove a motion, and you usually have to submit your evidence with the motion.

Justice Ginsburg: But this is ­­ this is a provision for removal. It tracks the language of Rule Alderson Reporting Company Official 8(a). And so you're asking for ­­ oh, even though it copies Rule 8(a), which certainly doesn't require that you plead evidence, we do have to do it for notice of removal.

Rex A. Sharp: You have to for the notice of removal because (c)(2) does a couple of things. (C)(2) says if plaintiff alleges something less than the amount in controversy, that's golden and conclusive. It doesn't matter that defendant thinks it's different or that it's higher and would meet the Federal jurisdictional amount. It's done. But under (c)(2)(a), if there's a silent petition in the State court, defendant can jump the gun and say, you know what, I want to allege. I want to say how much I think is at issue. You can allege that under (a). But that's not conclusive. There's nothing in (c)(2)(a) that says what defendant says is conclusive.

Justice Ginsburg: If ­­ if the plaintiff wanted to challenge that, I could understand your position and then you would have the respective parties putting in their evidence. But if the defendant makes an allegation amount in controversy is met and the plaintiff doesn't say no, doesn't say that we don't have the amount in controversy. Alderson Reporting Company Official

Rex A. Sharp: Justice Ginsburg, in this case as in most class actions, plaintiffs have no evidence that they could possibly put on. They couldn't dispute anything that the defendant actually said. But this particular issue as to when the ­­ when the evidence must be presented, the reason it's done with the notice of removal is so that the evidence is out there for the court to make a sua sponte decision if the court wants to or plaintiff to make ­­

Justice Ginsburg: But when you bring a class action, you're looking for big bucks and the likelihood that it's going to be controverted, that the plaintiff who's brought a class action in the State court is going to say, oh, no, we can't ­­ we can't make the amount in controversy, that sounds very strange to me. Most class action plaintiffs are not going to contest that their claim is worth at least $500,000.

Rex A. Sharp: Well, in this particular case, this case really isn't worth $5 million. So there was nothing ­­ no way, though, at that point for us to contest one way or another. If the plaintiff is going to make any kind of a contest, there has to be some presentation of evidence to begin with. There's not going to be anything other than a plaintiff saying if ­­ if the simple allegation is, well, it's worth more than Alderson Reporting Company Official $5 million, plaintiff has nothing.

Justice Ginsburg: Well, I don't follow that because ordinarily a plaintiff would state what the plaintiff's damages are.

Rex A. Sharp: Plaintiff in a class action generally does not have the evidence of how many class members there are or how much they've been damaged. It's the defendant that deals with all of the class members on a class­wide or company­wide basis. The plaintiff generally does not have that information available, defendant does, and it usually has to be determined through a discovery process which usually occurs in State court, at which point the defendant sends a request for admissions or ask at a deposition.

Justice Ginsburg: In ­­ in the ­­ let's take a case in the Federal court, a class action case. Plaintiffs don't state what the amount in controversy is?

Rex A. Sharp: If they know what the amount in controversy is, they could state what the amount of controversy is. But they generally do not. I certainly did not in this particular case. And in most class actions that get filed that I'm aware of, plaintiff doesn't know what their damages are before they filed the suit. Alderson Reporting Company Official

Justice Ginsburg: But you would say that all that the plaintiff would say is we meet the amount in controversy?

Rex A. Sharp: They could say the amount in controversy is 5 million or it's 7 million or whatever it may be. Whether that has any validity at all after this Court's ruling in Knowles v. Standard Fire, I don't know. It's clear that you can't allege something lower to try to stay under the limit. I don't know whether you can say something over. I'm not sure that you have the authority to bind the class until you're already a class representative, have already been appointed as class counsel. Nonetheless, these particular cases end up in which the defendant has the evidence, plaintiff does not, and this particular case and this particular statute shows that that evidence has to come in at the time of removal. If it doesn't come in at the time of removal, their suggestion is it comes in at the time of remand. If that were the case, you would find this evidentiary requirement in the text under 1447 where the remand rules are found, not in the removal of 1446. You wouldn't find it at all there. You'd find it ­­

Justice Kagan: I'm sorry. I just ­­ you said if it doesn't come in at the time of removal, it Alderson Reporting Company Official comes in at the time of remand. But there's an alternate position, which is the notice of removal is just the allegation, if the plaintiff wants to contest that, the plaintiff can contest that, and then the defendant has to come forward with something because the defendant has the burden of proof. Likewise, if the court thinks that the allegation is not appropriate, the court can sua sponte say, you know, you have to show me more because I'm not sure I have jurisdiction over this. But either way, it all happens in the Federal court after the notice of removal, which is merely an allegation, is filed. And that makes perfect sense. It means that most allegations will just be accepted as is and the only ones that everybody will have to come forward with evidence are when there's some reason to contest it, when either the plaintiff or the court has some serious doubt about it.

Rex A. Sharp: Well, plaintiff usually has absolutely no idea what the allegation may be. For instance, when they came forward and said the amount of damages is 8.2 million, we had no way to contest that with any evidence of any kind. Now, if all we had to do to contest it was say, we contest it, we don't think it's worth $8.2 Alderson Reporting Company Official million, prove it, every plaintiff would say: Show me your hand; you've got to show your cards.

Justice Breyer: Not necessarily. I mean, it's the same as a complaint. They allege paragraph 1, paragraph 2, paragraph 3, and the defendant comes in and says admitted, denied; admitted, denied; not enough information. All right. So you do the same thing. What's the problem?

Rex A. Sharp: It ­­ it could be ­­ if 1446 was written such that 1446(a) was the end of it and there was no further part of the statute, then all they would have to do is make an allegation and that would be the end of it. And under 1447 ­­

Justice Breyer: They have to allege the facts. They have to allege facts. They have to say the allegation is and so forth. And you say they're not.

Rex A. Sharp: Yeah. And that was part of the district court's opinion. There were two parts. One was that there wasn't any evidence; and the second part was that it was conclusory, that there were no facts. All you said was 8.2 million. And so both of those were possible ­­

Justice Breyer: Isn't that a fact?

Rex A. Sharp: Excuse me, Your Honor?

Justice Breyer: Isn't 8.2 million a fact? Alderson Reporting Company Official

Rex A. Sharp: It's a conclusory fact.

Justice Breyer: Well, it's a fact. They said in their view ­­

Rex A. Sharp: It's a conclusion.

Justice Breyer: All right. I don't know what a conclusory fact is as opposed to a regular fact. That seems like a lot of money to me, but I ­­

Rex A. Sharp: I would agree with Your Honor. And it sometimes is difficult, but I think we deal with those a lot now that Twombly has been adopted by this Court. Conclusory ­­ conclusions are not sufficient in terms of pleading for the plaintiff. And if this particular Court were going to find that evidence is not required under 1446, we urge the Court to at least say go ­­ go the distance and ­­ and treat the 1446 allegation like a Twombly allegation and conclusory would not be sufficient. That's what the district court found, both that you should have put on some evidence, if you had it you should have put it on; and secondly, that what you did say was conclusory. But let me ­­ let me draw back to this ­­

Justice Ginsburg: Where ­­ where was that said about conclusory? I thought that the district court's position was, sorry, you're too late; I won't Alderson Reporting Company Official entertain anything about 8.2 million or whatever it was.

Rex A. Sharp: The district court did both, Your Honor. You are exactly correct. It said: I see you've got some evidence, but you didn't put it on when you were supposed to; and secondly, she said the 8.2 was not sufficient by itself because it was conclusory. That's consistent with Tenth Circuit law and I think she followed the Tenth Circuit law. What the Tenth Circuit ultimately decided I have absolutely no idea. They simply denied it. We don't know whether they denied it for constitutional grounds, whether they denied it because their docket was too busy, they denied it because they didn't think this was a clean vehicle to ­­ to change their Tenth Circuit rule.

Chief Justice Roberts: Well, one thing we know is that they denied it upon careful consideration of the parties' submissions as well as the applicable law. Was there anything in the parties' submissions other than the question on which we granted cert?

Rex A. Sharp: The ­­ no, I don't think so, Your Honor. I think the issues that were provided to the court there in the Tenth Circuit were very similar to what you see here in this Court, with the exception of whether this Court has jurisdiction under either Alderson Reporting Company Official 1447(d) or, as this Court has suggested, maybe under Hohn; and under Hohn, then, that this Court would have some type of review of whether that was an abuse of discretion to simply say, denied. But no one has come to this Court and said, we want certiorari granted on ­­ what should be the factors, what should the Court decide, when it says we're not going to take that appeal under 1453.

Justice Ginsburg: Do I remember it wrong in ­­ in thinking that in your briefing you didn't raise this question? You just argued what the notice of removal must contain and it wasn't until there was one green brief Public Citizen that brought up this question. So you were content until a friend of the court made the suggestion to argue this case on the merits.

Rex A. Sharp: Your Honor, I'm comfortable and have argued this case on the merits as ­­ as you know, but nonetheless, I think I'm duty bound, as all the parties are, to determine whether this Court has jurisdiction and what the extent of that jurisdiction is. You are correct that the amicus first raised the issue of jurisdiction. In the reply brief, they had the opportunity to say what they thought was the jurisdictional issue which they believed was under Alderson Reporting Company Official Nixon. I don't believe Nixon or Hohn, either one of those cases, govern here because neither of those cases are remand cases. I think 1447(d) controls on the remand side only because of the limited exception, not because of the ­­

Justice Breyer: Briefly, the Court has jurisdiction of cases in the court of appeals.

Rex A. Sharp: Certainly, Your Honor.

Justice Breyer: All right. Now, when in fact a party appeals a district court's remand, he files that appeal paper in the court of appeals. The case is there. Before they decide it, we could take it. After they decide it, and if they affirm it, or if they decide to hear it, we could take it. It's there. But suppose they say no. Does that remove it from the court of appeals? If the answer to that question, which is your position that you're arguing, is now this Court can't take it, then it can't take anything. It can't take the same things down in the ­­ in the habeas cases. It can't take the attorney's fees things. It can't take anything, I would guess because it would say where a court has discretion and says, no, we are not taking it, it's not reviewable in this Court because it's no longer in the court of appeals. Now, what's ­­ is that your position? You Alderson Reporting Company Official can see I don't think it's a very good position from my tone of voice. But if there's something else, maybe there's a better one.

Rex A. Sharp: Well, then I won't take that position, Your Honor.

Justice Breyer: Well, no, you ­­ I mean, I'm often wrong in these things.

Rex A. Sharp: But the position I would take is that there is a clear distinction in 1447(d) that addresses remand and has nothing to do with Hohn or Miller L or Nixon. And so this Court was not wrong in Miller L or Hohn or Nixon because, of course, those cases, as the Court points out, were in fact in. But so was Gravitt and so was Kircher. Those cases were in fact in the court of appeals when the Court granted certiorari.

Justice Alito: Maybe you answered this before, but is it your position that under the Class Action Fairness Act the court of appeals has absolute discretion, unlimited discretion, to decide whether to take an appeal or not?

Rex A. Sharp: I believe that's correct, Your Honor.

Justice Alito: Any reason whatsoever is okay? Alderson Reporting Company Official

Rex A. Sharp: Any reason whatsoever is okay, as long as ­­ I would guess, as I think Justice Scalia pointed out, as long as it's not a constitutional violation.

Justice Alito: So what if the court of appeals says, we are not taking this because we just don't like the Class Action Fairness Act. We think it's bad public policy; we are never going to take one of these. That's okay?

Rex A. Sharp: I don't know if that would be a constitutional violation, Your Honor. I think if it's not a constitutional violation, I think it probably would be okay. But if it is a constitutional violation, it probably would not, and I think that's a question that I'm ill prepared to answer. But I do think that there is that discretion and that discretion is ­­ is relatively absolute. It's not completely absolute because the Tenth Circuit is bound to honor the Constitution before it does any of the congressional issues.

Justice Alito: I was going say ­­ and this is not certainly true of the Tenth Circuit ­­ but suppose things change and we get to the point where each judge on the Tenth Circuit is sitting on ten cases a year, and so they can have a ten­ month vacation. And Alderson Reporting Company Official they say, well, we don't want to take this, because, you know, we may not have a ten­month vacation, we'll have a nine­month vacation. Would that be all right?

Rex A. Sharp: Again, I think it ­­ it's that line of what ­­ when the judge is doing his job, when he is not doing his job, and whether there's a constitutional violation. But that's the necessary evil with respect to discretion in an ­­ in an appeal. You have that discretion and that discretion is fairly absolute. There are no ­­ in 1453 there's no ­­

Justice Alito: Well, all the Class Action Fairness Act says is, I believe, is that the court may take the case. It doesn't ­­ it doesn't specify the scope of discretion. It doesn't say it's absolute.

Rex A. Sharp: It doesn't, Your Honor. You are absolutely correct. It doesn't provide any parameters whatsoever as to whether that is an absolute discretion or how that discretion is to be exercised. And so consequently, the circuit courts have no ­­ they have no direction from Congress and at this point no direction from this Court as to how much discretion they have under 1453 when they deny that particular appeal, and whether this Court then has anything from which it can say, well, I've seen why you denied it and we would like to review that. Alderson Reporting Company Official

Justice Alito: Outside of the Class Action Fairness Act, may a district court ­­ is a court of appeals barred from reviewing a decision of the district court to remand the case based on docket control?

Rex A. Sharp: Not under Thermtron as it exists at this point, Your Honor.

Justice Alito: Can we infer anything from that as to whether Congress thought that that would be a proper reason under the Class Action Fairness Act?

Rex A. Sharp: Your Honor, I see my time is up.

Chief Justice Roberts: You can't escape that easily.

Rex A. Sharp: Thank you, Your Honor. I think that indicates that it's not absolute. I know that this Court has suggested perhaps Thermtron needs to be revisited, but nonetheless Thermtron is the law of the land as we stand today, which indicates it's not absolute and that discretion probably is not absolute, but how to review that without something more is not clear.

Chief Justice Roberts: Thank you, counsel.

Rex A. Sharp: Thank you.

Chief Justice Roberts: Mr. Berreth, you have three minutes remaining. REBUTTAL ARGUMENT OF NOWELL D. BERRETH Alderson Reporting Company Official ON BEHALF OF THE PETITIONERS

Nowell D. Berreth: It's ­­ it's simply improper to allow courts of appeals to insulate their decisions from review by not giving reasons for ­­ for their decisions. If ­­ if Congress wants to prevent this Court from exercising its power to review decisions, Congress can. It knows how to do it. It did it in AEDPA, as I mentioned before. And it didn't do it here. Instead, through 1453 Congress enacted a statute that is a grant of jurisdiction to this Court. It's one of the unusual ­­ the rare instances where Congress granted jurisdiction over remand issues. And the Forsyth case answers a lot of questions in this case. It provides that the power of this Court, the certiorari power of this Court, after the Court has jurisdiction of a case, which it does here, the certiorari power of this Court may be exercised before or after any decision by that Court and irrespective of any ruling or determination therein, irrespective of any determination or ruling therein. This Court's power is comprehensive and it should result in a reversal in this case. If there are not any more questions, thank you.

Chief Justice Roberts: Thank you, counsel. Alderson Reporting Company Official The case is submitted. (Whereupon, at 12:02 p.m., the case in the above­entitled matter was submitted.)