Dart Cherokee Basin Operating Co. v. Owens

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 actions if the amount in controversy exceeds $5 million, 28 U. S. C. § 1332(d)(2). Dart's notice of removal alleged that the purported underpayments 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 submitted an executive's detailed declaration supporting an amount in controversy in excess of $11 million. The District Court granted Owens' remand motion, reading Tenth Circuit precedent to require proof of the amount in controversy in the notice of removal itself. Dart petitioned 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 include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold; the notice need not contain evidentiary submissions. Section 1446(a) tracks the general pleading requirement stated in Rule 8(a) of the Federal Rules of Civil Procedure. By borrowing Rule 8(a)'s “short and plain statement” standard, corroborative history indicates, 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 antiremoval 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. 588, 595. Pp. 87–89. 2. The District Court erred in remanding this case for want of an evidentiary submission in the notice of removal, and the Tenth Circuit abused its discretion in denying review of that decision. Pp. 89–96.

(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. 89–90. (b) While appellate review of a remand order is discretionary, exercise of that discretion is not rudderless, see Highmark Inc. v. Allcare Health Management System, Inc., 572 U. S. 559, 563, and a court “would necessarily abuse its discretion if it based its ruling on an erroneous 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. Oklahoma ex rel. Edmondson, 613 F. 3d 1029, 1035. Thus the Tenth Circuit'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 removals sought by defendants in the Tenth Circuit, leaving those defendants 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 flailed for want of proof. It was an abuse of discretion for the Tenth Circuit to deny Dart's request for review, for that disposition 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 detail proof of, the amount in controversy. Pp. 90–96. 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, post, p. 96. Thomas, J., filed a dissenting opinion, post, p. 102.

Nowell D. Berreth argued the cause for petitioners. With him on the briefs were Brian D. Boone, Jonathan D. Pa-rente, and Matthew J. Salzman.

Rex A. Sharp argued the cause for respondent. With him on the brief were Barbara C. Frankland, David E. Sharp, and John F. Edgar.*

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 removal “containing a short and plain statement of the grounds for removal.” 28 U. S. C. § 1446(a). When removal is based on diversity of citizenship, an amount-in-controversy require-

To assert the amount in controversy adequately in the removal notice, does it suffice to allege the requisite 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 evidentiary submissions.

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 (collectively, 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 par-

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. to Pet. for Cert. 46a, 53a. In response, Dart submitted a declaration by one of its executive officers. The declaration 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 outside of the petition and notice of removal is not permitted to determine the amount in controversy.” Id., at 26a, and n. 37 (citing Laugh-lin 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,

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 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 dutybound 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 requesting resolution of the following question: “Whether a defendant 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 impediment 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. 1045 (2014). Compare Ellenburg v. Spartan Motors Chassis, Inc., 519 F. 3d 192, 200 (CA4 2008) (a removing party's notice of removal need not “meet a higher pleading standard than the one imposed on a plaintiff in drafting an initial complaint”), and Spivey v.

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) 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 removal be stated in `a short and plain statement'—terms borrowed from the pleading requirement set forth in Federal 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. (disap-proving 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 original)). Similarly, when a defendant seeks federal-court adjudication, the defendant's amount-in-controversy allegation should be accepted when not contested by the plaintiff or questioned by the court. Indeed, the Tenth Circuit, although not disturb-

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 defendant “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 controversy 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. Discovery may be taken with regard to that question. In case of a dispute, the district court must make findings of jurisdictional fact to which the preponderance standard applies.” H. R. Rep. No. 112–10, p. 16 (2011).

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 595 (“CAFA's primary objective” is to “ensur[e] `Federal 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 removed 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 threshold. Evidence establishing the amount is required by § 1446(c)(2)(B) only when the plaintiff contests, or the court questions, the defendant's allegation.

As in Standard Fire Ins. Co., 568 U. S., at 591–592, we granted review in this case after the Court of Appeals declined to hear an appeal from a remand order. Neither

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 removed.” (Emphasis added.) Because court of appeals review of a remand order is discretionary, see supra, at 86, 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 appeal,” 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 reiterate, 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. 559, 563 (2014) (“matters of discretion are reviewable for abuse of discretion” (internal quotation marks

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. Oklahoma 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 meaningful 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, preclud-ing any other opportunity for [the defendant] to vindicate its claimed legal entitlement [under 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)).

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 Circuit. 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 decisions of the Court of Appeals: Defendants seeking to remove 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 85. On this point, Judge Hartz's observation, dissenting from the Tenth Circuit's denial of rehearing en banc, see supra, at 86, 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 incentive 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

From all signals one can discern then, the Tenth Circuit'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 flailed for want of proof, but that error was driven by the District Court's conscientious endeavor to follow Circuit precedent. The parties trained their arguments in the Tenth Circuit, as they

that the evidence was sufficient and, in any event, “no evidence is required at all.” Post, at 101. 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.

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, anticipated 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 request for review. Doing so froze the governing rule in the Circuit for this case and future CAFA removal notices, with no

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 erroneous—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 contain? 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 90–91, and in doing so, to correct the erroneous view of the law the Tenth

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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.

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 interpreted this to require evidence (as opposed to mere allegations) supporting federal jurisdiction. After finding that Dart's notice of removal did not include evidence of the jurisdictionally required amount in controversy, the District 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 notices of removal must contain evidence supporting federal jurisdic-

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 impermissible 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 consent 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 court should not presume that a district court intended an

The only “indication in the opinion” that the Court relies on is the following language from the order denying permission 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). Response 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 appeal. BP America, Inc. v. Oklahoma ex rel. Edmonson, 613 F. 3d 1029, 1034 (2010) (internal quotation marks omitted).)

Besides relying on the utterly uninformative language of the order, the Court makes one other attempt to demonstrate that the Tenth Circuit's order was based upon its agreement with the holding of the District Court. It asserts that denying Dart permission to appeal “froz[e] in place” the District Court's rule. Ante, at 92. 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

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. 266 (2012), responsible attorneys, and even responsible judges, sometimes make mistakes, see, e. g., 572 U. S. 1045 (2014) (order granting certiorari in this case). Indeed, Dart's own (seemingly responsible) lawyers flailed 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).

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 Court attempts to bolster its conclusion with an unprincipled and unequal application of the waiver doctrine. 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 94 (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 responsible for failing to argue that the Tenth Circuit abused its discretion, see Republic of Argentina v. NML Capital, Ltd., 573 U. S. 134, 140, n. 2 (2014) (“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” whether the Tenth Circuit abused its discretion until the issue was raised in Public Citizen's amicus brief. Ante, at 91, 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 Citizen 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.

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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, since we have absolutely no basis for concluding that it abused its discretion.

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.

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 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 exists, 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 argument 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.