Eleventh Circuit -- class action removal (CAFA), and right to counsel

The Eleventh Circuit is busy today, already posting three opinions this morning -- an extensive opinion on the Class Action Fairness Act (CAFA), a ruling on the right to counsel, and an opinion reviewing a number of matters in a criminal case.

First, the Eleventh Circuit (Judge Tjoflat writing) issued an extensive (77 page) opinion in Lowery v. Alabama Power, an air pollution tort case, interpreting diversity jurisdiction removal requirements in the context of the Class Action Fairness Act (CAFA).

A tricky removal question (great for law school federal courts exams) was presented when new defendants were added, post-CAFA, to a state-court "mass action" case that was not removable by the other defendants under pre-CAFA law. A new defendant timely requested removal, and all the other pre-CAFA defendants joined. The Eleventh Circuit held this removal was proper, and further held that newly added 28 U.S.C. 1332(d) should be interpreted to grant diversity jurisdiction over mass actions whose claims aggregated more than $5 million, but to require remand of only those individual claims that do not exceed $75,000 -- rejecting the alternative interpretation that remand of the entire action was required if any one claim did not exceed $75,000.

A practice note for those contemplating removal in a mass/class action: the Court also clarified that, the purpose of the CAFA (to expand federal jurisdiction over class actions) notwithstanding, defendants still bear the burden of demonstrating federal jurisdiction by a preponderance, and must demonstrate the action meets the $5 million jurisdictional threshold based solely on the factual allegations on the face of the notice of removal or the pleadings. The court should not permit discovery to learn the factual basis for what the defendant could not (or failed to) allege (subject to Rule 11) in its notice of removal. Lesson: be sure to expressly allege all elements of jurisdiction in the notice of removal.

Of the two criminal cases so far today, the most interesting is U.S. v. Garey, which reverses a conviction based on an "involuntary waiver" of the right to counsel.

The defendant, accused of calling the Macon-Bibb County (GA) 911 center and making bomb threats, requested three days before trial that the court disqualify his court-appointed counsel because Garey believed he had a conflict -- namely that his attorney's offices had been a target of his threats. Garey requested new counsel and stated he did not want to proceed pro se, but the trial court refused, telling Garey his choices were going to trial pro se or accepting his current counsel (as counsel or standby counsel). Garey ultimately agreed, in light of the choices given by the court, to "involuntarily waive" (as he called it) his right to counsel at trial, and he was convicted of all counts at trial. In a 2-1 decision, the Eleventh Circuit reversed Garey's conviction, holding that the right to counsel outweighed the right to self-representation, and Garey did not elect to proceed without counsel, but only rejected current counsel, whom he contended had a conflict. Judge Black, in dissent, contended the conviction should be upheld because, whatever the words he used, Garey voluntarily elected between the two constitutional choices presented him by the trial court.

The Court also affirmed most of the convictions of defendants engaged in a scheme to rob Colombian stash houses, with the exception of a firearms conviction of one of the defendants (which was not supported by sufficient evidence), in U.S. v. Osinord.  Robbing another criminal gang might have been a foolproof plan if it weren't for the part where they told a CI about it.

More to come this evening...