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U.S. Supreme Court experts say that justices allow legal questions to “percolate” in the lower courts before settling the matter with a high court ruling. But to Judge Gerald B. Tjoflat of the 11th U.S. Circuit Court of Appeals, one issue has boiled over, and it’s time for the high court to step in. In an 82-page dissent from the 11th Circuit’s refusal to reconsider an appeal by ExxonMobil Corp., Tjoflat last week pleaded for the Supreme Court to take up the matter and declare which side of a 5-3 split between circuit courts is right. Adding to the unusual nature of this case, four of the court’s 12 judges recused, which Tjoflat addressed as well. An appellate lawyer not involved in the case called Tjoflat’s dissent a “gift” to ExxonMobil’s cert petition to the high court. “The circuit courts have been wrestling with this issue on their own for close to a decade,” wrote Tjoflat, joined by Judge Stanley F. Birch Jr. “In the absence of Supreme Court intervention, it is highly unlikely that this rupture will mend itself.” At stake is how hard it will be for plaintiffs from one state to bring federal class action suits against defendants in another state — so-called “diversity” cases for which federal courts have jurisdiction. Tjoflat acknowledged that “one’s eyes may glaze over with bored indifference” when first considering the matter, but he added that the case raised nothing less than “fundamental questions concerning constitutional law, statutory interpretation, and the integrity of the judicial system … “ At least $500 million is at stake in the case at hand, so the chances the parties’ lawyers will drift to sleep probably are nil. Attorneys for ExxonMobil have argued that claims by 10,000 gas station owners that the company overcharged them for seven years should not have been combined into a federal class action because some of the individual claims did not amount to more than $50,000. That amount was, when the case was filed in 1991, the minimum required to be at stake for a federal court to have jurisdiction over a diversity case (federal law now sets the minimum at $75,000). But a federal judge in Miami and, last year, a three-judge panel of the 11th Circuit ruled against ExxonMobil. Without help from the Supreme Court, the energy giant will be on the hook to pay a jury’s $500 million award to the gas station owners-plus what a plaintiffs’ lawyer says is another $800 million in interest that has been accruing at about $1 million a week. Jerrold J. Ganzfried of Howrey Simon Arnold & White, who argued the case for ExxonMobil, referred a call to his client. An ExxonMobil spokeswoman said the company “acted in good faith” with the gas station owners and plans to ask the Supreme Court to hear its appeal. A BOON FOR EXXONMOBIL Much of ExxonMobil’s work in drafting a petition for certiorari appears to have been done by Tjoflat, whose dissent set out exactly why the justices should take the case. “A dissent like this,” said Laurie Webb Daniel, who chairs Holland & Knight’s appellate practice group, “is quite a gift to a party considering a cert petition.” “This is extraordinary,” added Emory University law professor Richard D. Freer, “to have a judge essentially writing a brief why the Supreme Court should grant certiorari.” Freer has been writing about the jurisdiction question for 13 years, arguing, like Tjoflat, that the high court should step in to resolve a conflict between a 1990 law, 28 U.S.C. � 1367, and a 1973 Supreme Court decision, Zahn v. International Paper Co., 414 U.S. 291. But like the circuit courts around the country, Freer and Tjoflat view the matter from opposite sides. In Zahn, the high court voted 6-3 that each plaintiff in a federal class action must satisfy the minimum alleged damages amount for the court to have jurisdiction. William H. Rehnquist, now the chief justice, is the only remaining member of the 1973 majority on the court. Freer and rulings by the 4th, 5th, 7th and 9th circuits — plus last year’s 11th Circuit panel decision — say that � 1367 overrules Zahn and allows a federal court to have jurisdiction over class members whose claims do not meet the minimum amount requirement. Courts may exercise “supplemental jurisdiction” according to � 1367 in certain circumstances. Judge Charles R. Wilson wrote for the 11th Circuit panel that those circumstances included cases where class representatives satisfied the minimum amount in dispute while other class members had “closely related” claims. Allapattah Services v. Exxon Corp., No. 01-15575 (11th Cir. June 11, 2003). Tjoflat and Birch agreed with the 3rd, 8th and 10th circuits, which have held that � 1367 did not overrule Zahn. But Tjoflat focused his dissent less on why his panel was wrong, and more on why the Supreme Court should take the case. “At first blush,” he wrote in a footnote, “it might appear unseemly for an individual circuit judge to advocate in a dissenting opinion that the Supreme Court grant certiorari in a particular case.” But he cited similar dissenting opinions urging high court review by judges in the 3rd, 5th and 9th circuits. Tjoflat wrote that regardless of which side of the � 1367 debate is right, “the fact remains that a large number of courts — unelected judges who are not democratically accountable — are either abdicating or abusing their authority; maintenance of such a status quo is intolerable.” Jay Solowsky of Miami’s Pertnoy, Solowsky & Allen, who represents the class, called ExxonMobil’s chances of winning certiorari a “long shot.” But he added that even if the high court were to reverse the 11th Circuit, his clients would prevail in the end. The worst-case scenario, he said, would be having to file individual cases in state courts. But he argued that the federal jury’s review of the facts would require a similar finding against ExxonMobil, meaning the company still would have to pay. Solowsky added that the issue could be made moot if Congress passes the Class Action Fairness Act, which would federalize most state class action cases. FOUR JUDGES RECUSED Tjoflat found room in another footnote to address a voting oddity in the 11th Circuit’s rehearing debate. Although there are 12 active judges, the vote was 5-2 against ExxonMobil’s motion for the court to hear the case en banc. “This was far from an ordinary en banc poll,” Tjoflat wrote. Indeed, four judges — R. Lanier Anderson III, Joel F. Dubina, Frank M. Hull and Stanley Marcus — recused themselves. Judge William H. Pryor Jr., who came on the bench by recess appointment barely a month ago, did not participate. Tjoflat’s dissent refers only to “11 active judges,” suggesting the court had voted before Pryor became the court’s 12th member. Anderson and Dubina confirmed in brief interviews that they owned stock in ExxonMobil, requiring their recusal. Hull’s 2001 financial disclosure report shows she owned ExxonMobil stock, but she could not be reached to verify if she owns shares in the company. Marcus could not be reached. RULES FOR EN BANC REVIEW Regardless of the reasons or the numbers of recused judges, the court’s internal operating procedures state that the court will hear a case en banc only if agreed to by a strict majority of the court’s active members — six in this case. With only seven members left to vote, Tjoflat wrote, “once two judges voted against rehearing the case en banc, it became impossible to obtain the requisite number of votes” for en banc review to be ordered. While not advocating specifically for a change, Tjoflat noted that “a good number of circuits instead require only that a majority of non-recused active judges vote to hear the case.” Reflecting his overall argument — that the Supreme Court should take the ExxonMobil case in order to give each court the same jurisdictional rules — Tjoflat noted that in 1992 the Advisory Committee on Appellate Rules proposed a uniform national rule to govern the way recusals are counted in en banc polls. The proposal failed, he reported, because four chief judges argued that the method is one to be determined by individual courts. Daniel, the Holland & Knight appellate lawyer, suggested that the 11th Circuit’s rule “appears to have the practical effect of making it much harder for large, publicly-held corporations to obtain en banc review,” given that judges are more likely to own big companies’ stock. Daniel recalled that several years ago in a case involving Salomon Smith Barney, she had a problem getting to oral argument because so many judges had accounts with the firm and recused themselves. Eventually, she said, both sides submitted a letter to the court stating that they did not consider a judge’s having an account with the firm to be a conflict. In 2000, a recusal by Justice Sandra Day O’Connor forced the Supreme Court to sidestep the supplemental jurisdiction questions presented by Zahn and � 1367. In Free v. Abbot Laboratories, 529 U.S. 333, the court split 4-4. A tie vote on the high court affirms the lower court opinion but has little precedential value.

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