The Irrelevance of Jurisdictionality in Fort Bend County v. Davis

1 Courts & Justice Law Journal 16 (2019)

UC Hastings Research Paper No. 358

8 Pages Posted: 13 Jun 2019 Last revised: 23 Oct 2019

Date Written: May 30, 2019

Abstract

In Fort Bend County v. Davis, the Supreme Court has been asked to decide whether Title VII's exhaustion requirement is jurisdictional. I argue that the Court should not answer that question because it is the wrong question. The real issue confronting the parties in the case is whether the district court was correct to dismiss a claim for failure to exhaust when the defendant failed to raise the exhaustion defect until summary judgment. That issue implicates the effects of the defect, not its character. Those effects can be determined from ordinary principles of statutory interpretation. The parties and the lower courts, however, used the character of the exhaustion requirement -- whether it is jurisdictional -- to resolve the issue. But the character of the exhaustion requirement does not answer the question confronting the parties. If the exhaustion requirement is nonjurisdictional, it might still be nonforfeitable or able to be raised by the court sua sponte. If the exhaustion requirement is jurisdictional, it might still be forfeitable or curable. Thus, the Supreme Court should avoid the irrelevant jurisdictional-characterization question and instead answer the effects question directly confronting the parties.

Keywords: jurisdictionality, fort bend county, title vii, exhaustion, jurisdiction

Suggested Citation

Dodson, Scott, The Irrelevance of Jurisdictionality in Fort Bend County v. Davis (May 30, 2019). 1 Courts & Justice Law Journal 16 (2019), UC Hastings Research Paper No. 358, Available at SSRN: https://ssrn.com/abstract=3396617

Scott Dodson (Contact Author)

UC Law, San Francisco ( email )

200 McAllister Street
San Francisco, CA 94102
United States
415-581-8959 (Phone)

HOME PAGE: http://www.uchastings.edu/faculty/dodson/index.php

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