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It’s not unheard of for a judge troubled by a persistent quarrel among the circuits to urge the Supreme Court to step in and settle the matter. What’s unusual is for a judge to go to great lengths to lay out the arguments favoring certiorari and to discredit the arguments against it, so much so that he seems to imply that only a Supreme Court blind to its duties could fail to act. Judge Gerald B. Tjoflat of the 11th U.S. Circuit Court of Appeals did just that on March 15, when he dissented from the denial of en banc review in Allapattah Services Inc. v. Exxon Corp., No. 01-15575. The question at issue is whether the Judicial Improvements Act of 1990 overrides a 1973 Supreme Court decision, Zahn v. International Paper Co., 414 U.S. 291, ruling that every plaintiff in a diversity-based class action must satisfy the amount-in-controversy requirement of 28 U.S.C. 1332 (that is, each plaintiff must allege damages of a certain amount, currently set at $75,000). Three circuits, the 3d, 8th and 10th, have held that the act leaves Zahn undisturbed. Five circuits have ruled that a section of the act, codified at 28 U.S.C. 1367, overturns Zahn and thus opens the way for unnamed plaintiffs who fall short of the amount-in-controversy to join federal class actions as long as the named plaintiffs meet the requirement. The five circuits are the 4th, 5th, 7th, 9th, and, as of last June, the 11th. It was the full 11th Circuit’s failure to review that June panel decision that prompted Tjoflat’s dissent. “[T]his seemingly obtuse issue raises fundamental questions concerning constitutional law, statutory interpretation, and the integrity of the judicial system,” Tjoflat wrote. Among the concerns Tjoflat discussed in his 103-page dissent was the federal judiciary’s duty to bow to Congress’ authority to set the jurisdiction of the federal courts. Depending on which view one holds to be correct, a substantial number of courts are either overstepping the lines drawn by Congress or are denying thousands of litigants the recourse to the federal courts that Congress intended, Tjoflat wrote. He also argued that the schism raises federalism concerns since the scope of diversity jurisdiction constrains how many state law claims can be diverted from state to federal court. Though favoring the minority position, Tjoflat pleaded with the Supreme Court just to give an answer-any answer. “[A]fter ten years of percolation, it is time for the [court] to smell the coffee,” he wrote, borrowing a metaphor from a 1992 D.C. Circuit case. Tjoflat’s examination of � 1367 takes him into territory with far broader implications: He argues that the Supreme Court must clarify the rules of statutory construction. Section 1367 spells out the powers of federal judges to consider “supplemental” claims, that is, claims that by themselves fall outside federal jurisdiction, but that are so closely related to other claims properly within the federal system that Congress thought they should be considered together. Tjoflat noted that some courts have found that the statute clearly supersedes Zahn and thus see no need to look at legislative history. Others have held that the statute is unclear. Still others have apparently deemed the statute clear, but still feel the need to consult legislative history. (In Tjoflat’s view, that history favors the minority position.) Curiously, Tjoflat does not mention the Class Action Fairness Act pending in Congress, which deals with class action jurisdiction. Was his plea directed at Congress as well as the high court? Young’s e-mail address is [email protected].

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