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Federal Bar Update: Jurisdiction, jurisdiction, jurisdiction

September 20, 2017

FedBarMaley-sigFederal courts are sticklers on jurisdiction, both at the District Court and in the 7th Circuit. A harsh reminder comes from the recent opinion in Baez-Sanchez v. Sessions, 862 F.3d 638 (7th Cir. 2017), in which Chief Judge Diane Wood issued a published order addressing jurisdictional statements on appeal. For anyone handling 7th Circuit appeals, the opinion is a must-read.

For purposes of her in-chambers opinion, Judge Wood consolidated two appeals that had inadequate jurisdictional statements. She noted, “The Seventh Circuit, like its sister circuits, pays careful attention to the parties’ jurisdictional statements, because ‘for centuries it has been recognized that federal courts have an obligation … to assure themselves of their own jurisdiction.’ Kelly v. United States, 29 F.3d 1107, 1113 (7th Cir. 1994).”

She went so far as to provide a full review of the requirements of Fed. R. App. P. 28(a)(4) and Circuit Rule 28(a) regarding the Appellant’s Jurisdictional Statement, as well as the Appellee’s obligations in response. She explained: “FRAP 28(a)(4) sets out the four critical points that must be included in all jurisdictional statements: (1) the basis for the district court or agency’s jurisdiction; (2) the basis of the appellate court’s jurisdiction; (3) the relevant dates demonstrating that the appeal or petition is timely; and (4) information establishing either finality or the existence of a relevant exception to the final-judgment rule.” She then quoted the entire, lengthy text of Circuit Rule 28(a).

As for appellees, a common error is compliance with Circuit Rule 28(b)’s “complete and correct” requirement. As Judge Wood wrote, “FRAP 28(b) exempts the appellee from filing a jurisdictional statement unless it is ‘dissatisfied’ with the appellant’s statement. Circuit Rule 28(b) directs that ‘[t]he appellee’s brief shall state explicitly whether or not the jurisdictional summary in the appellant’s brief is complete and correct. If it is not, the appellee shall provide a complete jurisdictional summary.’” (emphasis in original).

In the cases she consolidated for her opinion, she struck both appellees’ briefs. Her final three paragraphs are worthy of verbatim quotation:

“Both of the cases I have consolidated for purposes of this in-chambers opinion have inadequate jurisdictional statements. In Baez-Sanchez v. Sessions, the respondent Attorney General of the United States submitted the following Statement of Jurisdiction: ‘Mr. Baez-Sanchez’s jurisdictional statement is correct.’ This says nothing about completeness, and so the brief must be returned to the Department of Justice. If the Department concludes that Mr. Baez-Sanchez’s jurisdictional statement is both complete and correct, it should say so in the amended brief. If petitioner’s jurisdictional statement is not complete, then the Attorney General must furnish a full jurisdictional statement that complies with FRAP 28(a) and Circuit Rule 28(a).

“The jurisdictional statement furnished in Bishop v. Air Line Pilots Association, Int’l, No. 17-1438, has the mirror-image problem. It says ‘Appellants’ jurisdictional statement provides a complete jurisdictional summary.’ Fine, but what about correctness? Once again, the court must send this back to the appellees. They must review the appellants’ jurisdictional statement for both completeness and correctness, and if the statement is wanting on either score, they must supply a comprehensive statement that complies with FRAP 28(a) and Circuit Rule 28(a).

“There is no reason why, month after month, year after year, the court should encounter jurisdictional statements with such obvious flaws. This imposes needless costs on everyone involved. The briefs filed by respondent Sessions and appellee Air Line Pilots are STRICKEN. Each one must file a new brief within seven days of this order; the new brief must contain a jurisdictional statement that complies with all of the requirements of FRAP 28(b) and Circuit Rule 28(b), and if necessary, statements that comply with FRAP 28(a) and Circuit Rule 28(a). I hope that this opinion will prevent the same problems from continuing to arise.”

Save the Date – The annual federal civil practice seminar will be held Friday, Dec. 15 from 1:15 p.m.-4:30 p.m. in Indianapolis. Save the date and watch for registration details.•

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John Maley – jmaley@btlaw.com – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.

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