How to Make the Seventh Circuit Unhappy
Mark M. Leitner
There is one foolproof way to anger the Seventh Circuit: mess up the jurisdictional statement that is required in all parties’ appellate briefs. A quick refresher: Circuit Rule 28(a) specifies the detailed information that the appellant must provide in order for the Court of Appeals to confirm the existence of both federal jurisdiction in the first place, and jurisdiction over the appeal. Circuit Rule 28(b) requires the appellee’s brief to state whether the appellant’s jurisdictional statement is “complete and correct,” and if it is not, to provide “a complete jurisdictional summary” using the information required by Circuit Rule 28(a).
If you read and follow the instructions to the letter, it’s pretty much impossible to make a mistake. But lots of lawyers make mistakes, which is why the Seventh Circuit gets so mad. Before it devotes time to resolving a case on the merits, any federal court must be satisfied that it has jurisdiction to do so, because it is a court of limited jurisdiction. So “for centuries it has been recognized that federal courts have an obligation … to assure themselves of their own jurisdiction.” And when lawyers screw up the jurisdictional statement, the Seventh Circuit has to ask them to do it over.
Last month, lawyers fumbling the jurisdictional statements in two civil appeals got Chief Judge Diane Wood sufficiently irked to write an opinion about it. In the district court, all sides in both cases agreed to have a magistrate judge hear the entire case through final judgment. So far, so good; when all parties consent, it’s not unusual for a magistrate judge – appointed for ten years, rather than the lifetime appointment of a judge under Article III of the Constitution, but able to exercise many of the same powers that an Article III judge can exercise – to decide the merits and enter a final judgment.
“If you read and follow the instructions to the letter, it’s pretty much impossible to make a mistake. But lots of lawyers make mistakes, which is why the Seventh Circuit gets so mad.”
When a magistrate’s decision is appealed, Circuit Rule 28(a)(2)(v) requires the appellant to specify “the dates on which each party consented in writing” to the magistrate entering final judgment. This is important because without unanimous consent the magistrate simply lacks the power to decide the case. And the Circuit Rule could not be clearer: include the dates of consent.
Enter the objects of Judge Wood’s scorn in Lowrey v. Tilden (7th Cir., Feb. 3, 2017; Wood, C.J., in chambers). In one case, the lawyers did not provide the dates of each party’s consent to magistrate judge jurisdiction; in the other, the lawyers did not even mention that the appeal was being taken from a final judgment entered by a magistrate judge. Circuit Rule 28 “is not a secret,” Judge Wood wrote, and she expressed “hope that this reminder will serve its intended purpose and that such readily avoided flaws will cease.”
A few years earlier, Judge Wood had issued a similar opinion reminding lawyers how to submit a jurisdictional statement that was both complete and correct:
These terms are not synonyms. A statement might be complete in the sense of covering all required topics, yet contain inaccuracies. Alternatively, everything furnished might be correct, but the statement might be missing something critical, such as the citizenship of a party, the particular statute at issue, or the dates on which the court’s jurisdiction depends. If the appellant’s statement is not complete, or not correct, the appellee must file a “complete jurisdictional summary.” It is not enough simply to correct the misstatement or omission and “accept” the balance of the appellant’s statement.
As in Lowrey, Judge Wood was not pleased with the lawyers’ lack of attention to simple rules: “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.” She ordered all deficient briefs stricken, and the offending lawyers had to undergo the time and expense of filing new briefs that complied with the rule.
It’s hard enough trying to persuade a court that it should rule in your favor. If that court has to correct your violations of simple but important rules, you are forfeiting credibility, one of your most important assets as a lawyer – and for no good reason.