Hearing Congress's Jurisdictional Speech: Giving Meaning to the 'Clearly-States' Test in Arbaugh V. Y & H. Corp.

42 Pages Posted: 24 Aug 2009 Last revised: 4 Mar 2010

See all articles by Stephen R. Brown

Stephen R. Brown

Alumnus, Univeristy of Cincinnati - College of Law

Date Written: August 23, 2009

Abstract

Congress has the power to limit and define the jurisdiction of lower federal courts. Absent a congressional exercise of this jurisdiction-defining power, the federal courts are presumed to be closed to a particular case.

Determining when Congress is exercising this jurisdiction-defining power - when Congress speaks to the jurisdiction of the district courts - is sometimes an easy inquiry. In 28 U.S.C. § 1332, for example, Congress states that “the district courts shall have original jurisdiction where the matter in controversy exceeds $75,000 and is between citizens of different States.” There is no question that, here, Congress was speaking to jurisdiction and exercising its jurisdiction-defining power.

But, as made clear by two recent Supreme Court cases, Arbaugh v. Y & H Corp. and Bowles v. Russell, and by a case the Supreme Court will hear in the October 2009 term, Reed Elsevier v. Muchnick, determining when Congress intended a statute to speak to jurisdiction may be difficult. This determination is complicated by Congress’s exercise of its separate, substantive powers. Congress, under its other enumerated powers, such as the power to regulate commerce, has the ability to create and define substantive rights about which there may be cases or controversies. Congress can create and define essential elements of a litigant’s claim to relief and can limit the scope of those claims, sometimes in ways that seem like limits on jurisdiction. For example, Title VII makes it unlawful for an employer to discriminate on the basis of sex, but separately says that employers with less than 15 employees are outside the scope of the statute. Is being outside the scope of the statute the same as being outside of the jurisdiction of federal district courts for a Title VII claim? The Supreme Court has acknowledged recently that this is sometimes a close question.

The question (and its answer), however, are important because a court’s decision to classify statutory language as jurisdictional has a profound effect on litigation. If statutory language is jurisdictional, a court can raise the requirement sua sponte; a party or the court can raise the requirement at any time - even after a jury trial or for the first time on appeal; a court can weigh and resolve disputed facts that underlie the requirement (without affording the protections of Federal Rules of Civil Procedure 12(b)(6) and 56 to the nonmoving party); and the requirement is not subject to principles of estoppel. The Supreme Court has said that these consequences can lead to unfairness and a waste of judicial resources. The inability of courts and litigants to determine whether Congress intended language to be jurisdictional exacerbates these problems. In light of the important consequences that attend a jurisdictional characterization, in a 2006 case, Arbaugh v. Y & H Corp., the Supreme Court established a new test for courts to apply in deciding whether the requirements set out in a statute are jurisdictional: unless Congress “clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional courts should treat the restriction as nonjurisdictional in character.” Under this test, courts and litigants will be on notice of the jurisdictionality of a statute.

Although the creation of this new “clearly-states” test was, on its own, jurisprudentially significant, the Arbaugh Court also cast doubt on the precedential value of any previous holding - from the Supreme Court down - that characterized a statutory requirement as jurisdictional. In Arbaugh, the Court noted that it had itself sometimes been “profligate in its use of the term [jurisdiction],” and had been “less than meticulous” on the distinction between a jurisdictional statute and a merits statute. With this language, the Supreme Court signaled to lower federal court a potential tectonic shift in the jurisdictional landscape. Although a leading treatise has suggested that it remains to be seen how broadly lower courts will apply this decision, at least two federal courts of appeals have overturned their precedents under Arbaugh’s reshaping. Although the Supreme Court has been fairly active on jurisdiction issues in recent terms, the Court has failed to develop an workable framework for adjudicating this issue. The same can be said for the federal courts of appeals.

The goal of this Article is to provide that principled framework. To reach this goal, the Article must start with some general concepts of jurisdiction to provide background. After this background, the Article will describe the Arbaugh case and the problems identified by the Court that provided the impetus for the “clearly-states” test. Following the examination of Arbaugh, the Article will track efforts to address the jurisdictional-characterization issue in the Supreme Court, the federal courts of appeals, and in academic literature, and suggest that none of these approaches has been adequate. This inadequacy is the result of a failure to understand Congress’s jurisdictional language - how Congress speaks in jurisdictional terms. After explaining this misunderstanding, this Article will then propose a method of adjudicating the jurisdictionality of a statute. To illustrate how this approach will provide consistent (from case to case) and correct (i.e., consistent with the policies behind the Arbaugh holding) results, the Article will examine and apply this approach to some select jurisdictional statutes, including the statute at issue in next term’s Reed Elsevier v. Muchnick case. Finally, the Article will conclude by highlighting the importance of adopting the approach defined below as it will provide notice to litigants and courts when statutory language will be treated as jurisdictional. This will, in turn, allow parties to structure litigation to avoid the harsh consequences of a jurisdictional characterization.

Keywords: Arbaugh, Reed Elsevier, Muchnick, subject-matter jurisidiction, subject matter jurisdiction, jurisdictionality, jurisdiction, 12(b)(1)

JEL Classification: K1, K3, K1, K4, K41

Suggested Citation

Brown, Stephen R., Hearing Congress's Jurisdictional Speech: Giving Meaning to the 'Clearly-States' Test in Arbaugh V. Y & H. Corp. (August 23, 2009). Willamette Law Review, Vol. 46, p. 33, 2009, Available at SSRN: https://ssrn.com/abstract=1460311

Stephen R. Brown (Contact Author)

Alumnus, Univeristy of Cincinnati - College of Law ( email )

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