Friday, August 4, 2017

Chief Judge Wood Calls on Practitioners to Comply with the Appellate Rule for Jurisdictional Statements

By Louis J. Manetti
Attorney, Codilis and Associates, PC

Chief Judge Wood recently issued a call to comply with a rule that requires parties to summarize jurisdiction. In Baez-Sanchez v. Sessions, Nos. 16-3784 and 17-1438, 2017 U.S. App. LEXIS 12306, at *1 (7th Cir. July 10, 2017), Chief Judge Wood released an opinion in two consolidated cases. Id. The chief judge expounds why the jurisdictional summary rule is important to the Court, explicitly reviews the rule’s requirements, and criticizes the widespread failure to follow all aspects of the rule. She states, “I am issuing this opinion in the hope that attorneys practicing in the Seventh Circuit, as well as our pro se litigants, will take heed and avoid these errors in the future.” Id. at *2.

The opinion explains that the Seventh Circuit screens all of its appeals to make sure that there are no jurisdictional problems—either in the district court or on appeal. Id. at *1-2. To screen cases, the Court relies on jurisdictional information that the parties supply. Id. at *2. The Court must have full and accurate jurisdictional statements because “for centuries it has been recognized that federal courts have an obligation—to assure themselves of their own jurisdiction.” Id. at *8 (quoting Kelly v. U.S., 29 F.3d 1107, 1113 (7th Cir. 1994)). Cases like Belleville Catering Co. v. Champaign Market Place, LLC, 350 F.3d 691, 693 (7th Cir. 2003) stress how seriously the Court takes jurisdiction. There, the appellee suggested that the Seventh Circuit should simply rule on the appeal’s merits—even though it was discovered that diversity jurisdiction was lacking—because it would establish finality, and surely the court had ruled despite jurisdiction in the past. Id. The Court emphasized that this statement “leaves us agog . . . . [t]he proposition that the Seventh Circuit has [ruled without jurisdiction] in the past—a proposition unsupported by any citation—accuses the court of dereliction combined with usurpation.” Id. The jurisdictional summary acts as a bulwark against these threats.

Federal Rule of Appellate Procedure 28, and its corresponding circuit rule unique to the Seventh Circuit, mandate what must be in a jurisdictional statement. Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *3. The appellant or petitioner must establish four things. First, appellants must show the basis for the district court’s jurisdiction. Id. at *3. This includes identifying the specific statute if federal question jurisdiction is involved, and showing the jurisdictional amount and citizenship—not residence—of each party if the case concerns diversity jurisdiction. Id. at *3-4. The opinion cautions that to articulate citizenship for an organization the litigant must work back through the ownership structure until either an individual human being or a formal corporation is identified. Id. at *7. Second, the jurisdictional statement must demonstrate the appellate court’s jurisdiction. Id. at *3. Third, it must articulate the dates showing that the appeal is timely—including the specific dates to show the judgment, any postjudgment motions and when they were resolved, and when the notice of appeal was filed. Id. at *3-4. Last, the statement must provide facts establishing the judgment’s finality or an exception to the final-judgment rule. Id. at *3.

The opinion then turns to appellees, who have their own “equally important” obligations under the rule. Id. at *6. The appellee must explicitly state whether the appellant’s jurisdictional summary is complete and correct. Id. Chief Judge Wood points out that “complete” and “correct” are not synonyms, and the appellee must verify that the appellant’s statement is both. Id. at *7. If it is not, the appellee must provide a complete jurisdictional summary. Id. at *6.

The opinion notes that “a distressing number of briefs filed in this court do not comply with the requirements” for jurisdictional statements. Id. at *2; see also The Practitioner’s Handbook for Appeals, at 134, located at (reporting that the clerk’s office rejects about 10-15% of all submitted briefs because of rule violations). The appellees’ briefs submitted to the chief judge in the two consolidated cases illustrated this problem. In one case, the Attorney General of the United States’s brief reported that the petitioner’s “jurisdictional statement is correct.” Id. at *8-9. The statement was inadequate because it did not say anything about completeness. Id. at *9. The brief in the second case made “the mirror-image problem.” Id. That is, it declared that the appellant’s statement provided “a complete jurisdictional summary”—saying nothing about its correctness. Id. Hence, the Court struck both briefs and ordered the parties to file complying briefs within seven days. Id. at *10.

The chief judge’s frustration with the widespread failure to follow Appellate Procedure Rule 28 and its corresponding circuit rule was palpable. “There is no reason why, month after month, year after year, the court should encounter jurisdictional statements with such obvious flaws.” Id. at *9. For guidance, the opinion directs litigants to a jurisdictional checklist that the Court provides,, and the recently updated Practitioner’s Handbook for Appeals, Id. at *8. In closing, Chief Judge Wood expresses her hope that the opinion “will prevent the same problems from continuing to arise.” Baez-Sanchez, 2017 U.S. App. LEXIS 12306, at *10.

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