Jurisdictional procedure.

• Author: Pidot, Justin R.
• Position: III. The Factual Dimension of Jurisdictional Procedure through Conclusion, with footnotes, p. 45-81

3. THE FACTUAL DIMENSION OF JURISDICTIONAL PROCEDURE

   The reliance of many courts on an adversarial process to surface the facts necessary to resolve an inquisitorial obligation poses particular problems of fairness, accuracy, and efficiency. This Part begins by outlining the important role of jurisdictional facts and then discusses each problem in turn.

   1. Facts and Subject Matter Jurisdiction

      Many questions of jurisdiction involve little or no factual component. For example, in Florida v. Thomas, the Supreme Court held that a decision of the Florida Supreme Court did not constitute a final judgment and, as a result, the Supreme Court lacked jurisdiction.(214) The jurisdictional question turned entirely on the nature of the decision below and the proper interpretation of the statute granting the Supreme Court jurisdiction. (215) Similarly, in Louisville & Nashville Railroad Co. v. Mottley, the Supreme Court held that the possibility that a defendant would raise a federal law defense in a breach of contract suit did not trigger federal question jurisdiction. (216) In neither case did the Court need to consider jurisdictional facts.

      In other circumstances, the factual bases of jurisdiction are uncomplicated and often beyond dispute. Cases involving diversity jurisdiction, for example, may require courts to consider the citizenship of the parties, (217) and admiralty jurisdiction often turns on whether the activity that gave rise to the suit predominantly occurred at sea. (218) Although courts need some information to correctly determine if they can assert diversity or admiralty jurisdiction, the necessary jurisdictional facts will often, but not always, be limited in nature and easily obtained. (219)

      Questions of standing, ripeness, and mootness, on the other hand, often require consideration of substantially more complex and disputable facts. To assess standing, courts must undertake a tripartite inquiry into injury in fact, causation, and redressability. (220) Each of these issues involves facts, and these facts are often bitterly contested. Similarly, to assess ripeness, courts must consider the "fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." (221) Assessing hardship, in particular, requires examination of the factual record in order to assess the circumstances of the plaintiff. Mootness also often implicates complex factual issues. As a general rule, a case becomes moot when events have transpired such that the court can no longer provide meaningful relief. (222) That itself raises factual issues. But the general rule of mootness also has two exceptions: Cases do not become moot when a defendant voluntarily ceases allegedly illegal conduct, unless "subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior [can]not reasonably be expected to recur." (223) And, courts retain jurisdiction over otherwise moot cases when alleged legal violations are capable of repetition but evading review. (224) Untangling those issues requires substantial factual information about the current and future state of affairs.

      Courts typically glean this information through affidavits or declarations proffered by the parties. When parties fail to provide sufficient information on their own, district courts retain broad authority to order parties to supplement the record with information relevant to a potential jurisdictional problem. (225)

      When, however, a jurisdictional problem is not identified until the case is on appeal and the factual record established in district court proceedings is insufficient to resolve it, the situation is more complicated and courts have utilized starkly different procedures. Sometimes courts permit or require an expansion of the factual record on appeal ("expansion"), (226) although this approach may be invalid after the Supreme Court's decision in Summers v. Earth Island Institute; (227) sometimes courts remand for further fact-finding by the district court ("remand"); (228) and sometimes courts dismiss for lack of jurisdiction without considering new information or even asking the parties to address the issue at all ("dismissal"). (229)

      Two examples illustrate the expansion approach. In Ouachita Watch League v. Jacobs, the Eleventh Circuit addressed a standing issue raised for the first time on appeal and relied on a declaration submitted on appeal to find that standing existed. (230) The court explained that "it is in the interests of justice and efficiency to consider the supplemental declarations." (231) The Seventh Circuit took a more aggressive approach in America's Best Inns, Inc. v. Best Inns of Abilene, L.P. (232) In considering a contract dispute, the court recognized that the district court record did not disclose the citizenship of every member of a limited partnership and, therefore, the court could not determine if it possessed diversity jurisdiction. (233) "At oral argument ... the court stated that it would be necessary to enlarge the record to show the citizenship of every partner as of the date the complaint was filed." (234) The court then considered post-argument affidavits before resolving its jurisdiction. (235)

      In other cases, courts apply the remand approach. The Third Circuit adopted that approach in Pennsylvania Prison Society v. Cortes, explaining that "[b]ecause the issue of standing was raised for the first time on appeal, none of the plaintiffs have had the opportunity to present evidence or to litigate this issue." (236) As a result, the court "dismiss[ed] this appeal without prejudice for lack of jurisdiction and remand[ed] to the District Court." (237) The Fourth Circuit similarly remanded for further proceedings in Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., (238) explaining "the record is not sufficiently clear for us to decide" whether the plaintiffs' members "are among the injured." (239)

      Lastly, and most commonly, courts implement the dismissal approach, deciding jurisdiction on the record assembled in the district court. The Sixth Circuit took this approach in Heartwood, Inc. v. Agpaoa, (240) as did the Tenth Circuit in Dias v. City & County of Denver, in which the court held that plaintiffs could not seek prospective relief against the City of Denver because "none had alleged an intent to return" to the city, even though that issue had never arisen before the district court. (241) This appears to be the dominant approach of the Supreme Court. (242) In a footnote to the decision in Summers, the Court explained that it would not consider standing declarations submitted to the court of appeals because "[i] f [the plaintiffs] had not met the challenge to their standing at the time of judgment, they could not remedy the defect retroactively." (243)

      These multifarious approaches to jurisdictional procedure are fundamentally inconsistent. If jurisdiction exists only if supported by facts in the district court record, then a court of appeals exceeds its jurisdiction when it considers supplemental information or remands for further factual investigation. If, on the other hand, jurisdiction turns on facts as they actually exist, courts incorrectly dismiss cases when they decline to consider information proffered on appeal. That inconsistency would be resolved if courts of appeals read the Summers footnote to foreclose in all circumstances the augmentation of the factual record when a jurisdictional issue arises for the first time on appeal. But that would improperly exclude from judicial review cases that the courts ought to hear, and the alternative approach of remanding for further development is not inconsistent with Summers.

   2. Problems with Dismissing Based on the District Court Record

      Resolving jurisdictional questions on appeal based on the record assembled in the district court leads to an array of problems. These problems highlight the need for reform.

      1. Unfairness

         Current jurisdictional procedure requires plaintiffs to foresee possible jurisdictional issues and construct a record related to those issues, even when the opposing party and district court remain silent. (244) Attorneys are ordinarily not expected to exercise such foresight. American lawyers are steeped in the adversarial tradition; lawyers are trained to refute the claims of adversaries, not to anticipate them. Indeed, the American legal system embraces the notion that due process requires a meaningful opportunity to be heard, (245) and lawyers without robust federal practices would likely be surprised to learn that they may lose a case without ever receiving the opportunity to proffer evidence related to an issue first raised on appeal. (246)

         It is unfair to penalize parties when the record before the district court contains insufficient facts to establish jurisdiction because the fault lies, in part, with the district court itself. That is because the district court failed to fulfill its duty to determine jurisdiction so that "the failure to raise a legal error can in part be attributed to the magistrate." (247) If the district court had acted properly, then potential jurisdictional problems would have been raised at a time when the parties could respond and provide additional facts, avoiding the dismissal. (248)

         Freezing the factual record at the time the district court renders judgment also has the potential to skew litigation incentives. Defendants could strategically decline to raise jurisdictional issues before the district court. (249) Then, they could ask the court of appeals to dismiss the case because the record is incomplete. In so doing, defendants not only win--at least in the short term--but also have the ability of securing binding precedent from the court of appeals on an issue that could have been corrected below.

         Of course, plaintiffs' lawyers bear some responsibility for the factual records in the district court, and the American legal system generally charges...