Jurisdiction, That Is the Question: Keeping Your Case in Federal Court After the 11th Circuit Issues a Jurisdictional Question That Stalls Your Appeal.

• Author: Yagoda, Jay A.
• Position: Appellate Practice

The case you spent years successfully litigating was firmly planted in federal court. At the time, you had no reason to think otherwise. Whether your case began in federal district court or was channeled there by virtue of the removal process, the court's authority to both hear and rule upon your cause was never questioned. The party adverse to your favorable judgment then timely appealed to the U.S. Court of Appeals for the 11th Circuit. A briefing schedule was set, you eventually received the other side's opening brief, and, as a matter of course, you started preparing to defend the merits of your hard-fought, district court victory.

But just days into your preparation, the case came to an abrupt--and entirely unexpected--stop. Why? The clerk of the 11th Circuit advised you, via letter, that a potentially fatal defect in your case affects the appellate court's ability to proceed. The letter reads: "After review of the district court docket entries, order and/or judgment appealed from, and the notice of appeal, it appears that this court may lack jurisdiction over this appeal. If it is determined that this court is without jurisdiction, this appeal will be dismissed." (1)

The 11th Circuit refers to the document that accompanies this letter as a "jurisdictional question," the answer to which theoretically could undo the federal court judgment you expended considerable time and effort (and money) to secure. (2) Most often, jurisdictional questions require practitioners to go all the way back to their case-instituting papers, asking them whether the pleadings or notice of removal filed in federal court adequately alleged the parties' citizenship in order to invoke the district court's subject-matter jurisdiction on diversity grounds.

Now, for the first time on appeal, you could be forced to confront a deficiency in the jurisdictional allegations that either you or perhaps another attorney drafted years before. As a consequence, you might "struggle to find jurisdiction that could have been established with the stroke of a pen," or, in an extreme scenario, "the inattention leads to calamity" due to the risk of dismissal of your case "for want of complete diversity although it had been tried to conclusion." (3)

In responding to jurisdictional questions issued by the 11th Circuit, it does not always have to be a struggle, however. Aside from the additional, unforeseen legwork, if you can confirm the parties' citizenship and the existence of complete diversity without dispute, the solution might be a simple one that avoids the needless expenditure of judicial resources. If, on the other hand, a party contests the jurisdictional facts or those facts reveal diversity of citizenship did not exist at the time the case was filed in or removed to federal court, it could lead to a severe penalty: re-litigating a case you already won in the alternative forum of a state court. In the end, the (sometimes difficult) lesson to learn from any path you choose in attempting to cure jurisdictional defects discovered on appeal is to avoid overlooking questions of subject-matter jurisdiction the moment you take your first step through the federal courthouse doors.

The 11th Circuit's Practice of Issuing Jurisdictional Questions

The 11th Circuit's decision to issue jurisdictional questions while an appeal is pending is not an arbitrary screening method. Rather, the court's longstanding practice arises out of its "obligation] to raise concerns about the district court's subject-matter jurisdiction sua sponte." (4) The 11th Circuit scrutinizes jurisdictional allegations made at the district court level, even when those allegations have absolutely no bearing on the merits of an appeal, for one very basic and legitimate reason: "the inferior federal courts are courts of limited jurisdiction," and the appellate court, in turn, "is without power to do anything in the case" unless and until it can be assured subject-matter jurisdiction exists. (5) In other words, "jurisdiction takes precedence over the merits." (6) This means that in the absence of allegations that sufficiently demonstrate a basis for federal subject-matter jurisdiction, the 11th Circuit ultimately is "obligated by the restrictions [of] Article III [of the U.S. Constitution] ... to vacate a judgment without any examination of its correctness," no matter how much the parties have spent and no matter how late in the proceedings the defect comes to light. (7)

Typically, the 11th Circuit's jurisdictional questions revolve around whether the complaint or notice of removal filed in federal district court properly alleges citizenship of the parties to an action. (8) Under 28 U.S.C. [section]1332, the federal district courts have original jurisdiction over all civil actions between parties of diverse citizenship, when the amount in controversy exceeds $75,000. (9) For over 200 years, [section]1332 has been construed as requiring opposing parties to be completely diverse; every plaintiff must be diverse from every defendant. (10) If an action originally filed in state court could have been brought in federal court pursuant to diversity jurisdiction, then 28 U.S.C. [section]1441 grants defendants the option to remove that action to federal district court as well. (11) Regardless of which avenue litigants pursue in bringing actions to federal court (whether through the direct filing of a complaint or through removal), an adequate basis for the district court's subject-matter jurisdiction must be pleaded or alleged. (12) When those allegations are premised upon diversity jurisdiction under [section]1332, they "must include the citizenship of...