How An Upcoming Supreme Court Case Illustrates and Continues the Court's Current Interest in "Jurisdictional" Questions
By VIKRAM DAVID AMAR
|Friday, Sep. 14, 2007|
An interesting recent and continuing trend in the Supreme Court has been its inclination to grant review in cases raising "jurisdictional" questions. Such cases require the Court to decide whether a particular element of a federal-court lawsuit goes to the court's lawful power to hear the matter in question (its jurisdiction), or instead goes to the question of who should win on the merits.
In this column, I'll consider recent decisions, and also an upcoming case, that illustrate the trend and what it might mean.
A High-Profile Recent Jurisdictional Case: A Judge's Error Leads to a Prisoner's Losing His Chance At a Habeas Corpus Appeal
For starters, consider last Term's Bowles v. Russell decision. After a federal district court rejected a prisoner's request for habeas corpus relief, the prisoner sought to appeal. But the Supreme Court held that the appeals court lacked jurisdiction to hear the matter, because the so-called notice of appeal was filed two days after the deadline mandated by Federal Rule of Appellate Procedure 4(a).
Missing a deadline often results in losing a chance to be heard in court. But the question in Bolles was more complicated, because the federal district judge had mistakenly told the prisoner the wrong deadline, and the prisoner had complied with that erroneous deadline.
Even though the prisoner had seemingly relied on the judge's statement of the when he could file his notice of appeal, the Supreme Court still held by a 5-4 vote that the prisoner was out of luck -- because Rule 4(a)'s timeline was "jurisdictional." In other words, because the Rule itself was said to limit federal courts' power, it could not be changed by a federal court - by innocent mistake or otherwise.
As a result, the prisoner lost an opportunity to have a federal court of appeals look at the constitutional mistakes that he alleged had infected his criminal conviction.
Other Recent Decisions Also Raised the Jurisdictional/Merits Issue
Other recent decisions have also raised the issue of which rules are jurisdictional - but have come out the other way. In 2005, in Eberhart v. United States, the Court held that the time limit for filing a new criminal trial embodied in the Federal Rules of Criminal Procedure was not jurisdictional. In 2004, in Scarborough v. Principi, the Court ruled that the statutory provision governing the timing for making an application for attorneys' fees by a prevailing party in a suit against the United States was also not jurisdictional. And in Kontrick v. Ryan, also in 2004, the Court ruled that the time limit prescribed under the Bankruptcy Rules for a creditor to object to a debtor's discharge was not jurisdictional.
Addressing another jurisdictional question (though not one about timelines), the Court held in 2006 in Arbaugh v. Y & H Corp. that the threshold number of employees an employer must have to be considered a covered "employer" under Title VII was not a jurisdictional question. As a result, if a plaintiff sues a firm that has too few employees to be covered under Title VII, he or she may lose on the merits - but the court still has the power to entertain his or her claim.
Thus, the number of recent cases considering whether rules are jurisdictional is at least five - which seems to be not coincidence, but rather an indication of a keen interest by the Court (or at least some of its members) in these issues. An upcoming case that will be heard this Term, moreover, reflects the same interest.
This Term's Upcoming Jurisdictional/Merits Case, and Why It Matters
That case is John R. Sand & Gravel Co. v. United States. It asks whether a six-year statute of limitation period governing certain damage suits against the United States is jurisdictional.
In this case, plaintiff sued the United States for money damages, alleging that the federal government had physically taken its leasehold property without paying just compensation. At the Court of Appeals stage, the U.S. did not argue that the plaintiff had filed its action too late. However, the Court of Appeals sua sponte (that is, on its own) dismissed plaintiff's complaint for this reason: It held that not only was plaintiff late, but the lateness was fatal, for the six-year time line was jurisdictional.
The John R. Sand & Gravel Co. case demonstrates two key reasons why the jurisdictional label is important. Jurisdiction questions are never "waived"; parties can raise them at any time, even if they have not raised them earlier. Moreover courts can - and indeed, have an obligation to - address them sua sponte, even if (as was the case in John R. Sand & Gravel Co.) the party who would benefit by raising the matter fails to do so. There is a third reason, too: As
Bolles v. Russell (the habeas prisoner case) reminds us, if a rule is jurisdictional, then the ability of courts to fashion exceptions is very constrained.
There is a fourth reason that jurisdictional questions matter, as well: In many instances, calling a question jurisdictional will determine which party bears the burden of proving facts that go to the question. Generally speaking, the party seeking to invoke the federal court's power must prove all the facts that underlie the court's jurisdiction. So, for example, if the timeline for filing a notice of appeal is jurisdictional, then the person taking the appeal will lose the benefit of the doubt if there is a question about when the notice was actually filed.
Fifth, and finally, the Court has observed that labeling a matter jurisdictional may in some circumstances mean that a judge - rather than a jury - would be the one to resolve any factual disputes that go to the jurisdictional issue. Ordinarily, juries are the primary factfinders in cases where they sit. However, since jurisdiction is said to go to the court's lawful power to hear the case (or part of it), judges themselves must take a larger role in assuring the validity of the factual predicate for the court's involvement.
What's Helpful, and What's Not, About the Recent Trend to Resolve Jurisdictional Questions
Thus, quite often a lot depends on whether we call something jurisdictional. For this reason, it is generally a good thing when the Supreme Court wants to clarify which requirements in particular litigations are jurisdictional and which are not.
Uncertainty about whether a party has waived an issue or instead whether the court has the obligation to raise it on its own - even for the first time at the appellate level - undermines the fairness of adjudication, and contributes to unequal treatment of litigants.
For example, after the decision in Bolles v. Russell, at least litigants now know - or should know - that timelines for filing civil notices of appeal are going to be read as strict limits on the appellate courts' authority to hear cases. Thus, litigants can and should build that jurisdictional rule (whether it is a sound one or not) into their litigation planning.
So, to the extent that the Court's recent trend reflects an effort to go through various areas where a dispute has arisen about whether a particular requirement is jurisdictional and clarify each of those areas, the Court's efforts here seem worthwhile.
Why a General Approach to Jurisdictional Matters Is Likely to Fail
If, however, the Court is taking and resolving these cases because it is trying to develop and refine a generalized test or approach for everyone (lower courts and litigants) to use to know whether a particular requirement should and will be considered jurisdictional or not, I think the Court will not be entirely successful. While there are often some similarities among the matters that we label jurisdictional, the reality is there is no bright-line analytic difference between jurisdictional matters and matters that go to the merits of lawsuits. As one of my colleagues, Evan Lee, has put the point, "there is no hard conceptual difference between jurisdiction and the merits." They both ultimately go to whether we think a court should provide relief to a complaining party.
Realistically, if perhaps unfortunately, whether something is jurisdictional is usually very contextual. In most, if not all, of the cases described above, the ultimate question (and even the Court seemed to acknowledge this) as to whether a requirement was jurisdictional turned on whether Congress wanted it to be considered jurisdictional. And Congressional intent varies statute by statute, rule by rule, and setting by setting.
The pending John R. Sand & Gravel Co. case illustrates this nicely. The plaintiff there points out that statutes of limitation are generally not considered by courts to be jurisdictional, but instead are characterized as affirmative defenses that a defendant must raise in a timely way or lose. (The Federal Rules of Civil Procedure treat them this way.) Courts ordinarily have no independent duty (and may not even have the power) to raise a statute of limitations issue on their own.
All that is true. But as the U.S. Solicitor General points out, Congress may very well not have wanted that traditional rule to apply when the United States is being sued for money damages. After all, such damage suits themselves require consent by the United States: a waiver of the federal government's so-called "sovereign immunity" that would otherwise insulate it from suit. And just as we have a general rule that statutes of limitation are not jurisdictional, we might have a general rule that federal governmental amenability to suit and waivers of federal sovereign immunity are to be viewed narrowly. So which rule governs? What did Congress intend? That's all very context-specific.
If someone were able to develop and sell an overarching theory about which things should always be considered jurisdictional and which should not, that would be great. But I don't think we should expect the Court to be able to come up with one anytime soon.
To be sure, there are steps the Court could take - adopting presumptions and so-called plain-statement rules in certain contexts to encourage Congress to be clear about its wishes. Unfortunately, however, there still will continue to be many cases in the lower courts in which the parties wrangle over the meaning of jurisdiction. The upshot is that the Court could - if it so desired - continue to take one or more such cases every Term for many years to come.