Jurisdictional rules and final agency action.

• Author: Iyer, Sundeep

When Congress creates a statutory cause of action, some required elements of that cause of action may be considered "jurisdictional," while others may not. The difference between jurisdictional and nonjurisdictional requirements is subtle but important. A jurisdictional element limits the power and authority of the courts. If a litigant fails to satisfy a jurisdictional element of a cause of action, the court lacks the statutory authority to hear the case and issue a decision on the merits. (1) By contrast, nonjurisdictional elements have no bearing on the authority of the courts. Even when a plaintiff fails to satisfy a nonjurisdictional requirement, the court can still decide the case on the merits. If the defendant decides not to address the plaintiffs failure to satisfy a nonjurisdictional requirement, the court cannot dismiss the case sua sponte on those grounds, so the plaintiff can still win the case.

The distinction between jurisdictional and nonjurisdictional requirements has received significant attention in recent years, as the Supreme Court has issued a series of rulings narrowing the scope of what courts can properly consider jurisdictional. (2) Nonetheless, despite the Court's recent decisions narrowing the set of rules that qualify as jurisdictional, a number of lower federal courts continue to embrace the jurisdictional label, even absent clear statutory authorization. This Comment explores that phenomenon by evaluating recent doctrinal developments with respect to one salient legal rule in particular: the final agency action requirement in administrative law. Final agency action is the unusual statutory requirement that affects judicial review across a wide range of substantive issues and cases. That requirement, codified in the Administrative Procedure Act (APA), plays an important role in administrative-law litigation. (3)

Part I of this Comment explores the importance of jurisdictional treatment for courts and litigants. Erroneous jurisdictional treatment can jeopardize litigants' access to the courts and tilt the playing field in the government's favor. Part II then argues that the lower courts' treatment of the final agency action requirement is out of sync with the Supreme Court's decisions clarifying the proper scope of the jurisdictional label. In some cases, the lower courts engage with the underlying statute and simply come to the wrong result as a matter of statutory interpretation; in other cases, the courts ignore the statute altogether, using jurisdictional treatment as a mechanism for managing their rising caseloads and preventing premature judicial intervention. Part III explores how courts and Congress might recalibrate their treatment of final agency action to resolve the existing doctrinal discord. The Comment concludes by explaining that the tension between the lower courts' application of the jurisdictional label and the Court's doctrine on jurisdictional treatment appears to extend far beyond final agency action.

1. THE IMPORTANCE OF JURISDICTIONAL TREATMENT

   In recent years, the Supreme Court has paid significant attention to the boundary between jurisdictional and nonjurisdictional rules. Arguably the most important decision in this line of cases is Arbaugh v. Y & H Corp., (4) where the Court announced the doctrinal test that distinguishes jurisdictional from nonjurisdictional rules: Congress must "clearly state[] that a threshold limitation on a statute's scope shall count as jurisdictional" in order for courts to treat the limitation as such. (5) Since Arbaugh, the Court has applied this clear statement rule in a number of cases reversing lower-court decisions and narrowing the application of the jurisdictional label. (6) To be sure, the Court has acknowledged that Congress need not "incant magic words in order to speak clearly" (7) and that "context, including this Court's interpretation of similar provisions in many years past, is relevant" to whether Congress has spoken with sufficient clarity to warrant jurisdictional treatment. (8) As a result, the application of the clear statement rule sometimes can be more art than science. (9) Nonetheless, these cases have a clear message: judges must train their focus, first and foremost, on the statutory text. Lower courts do not have discretion to apply the jurisdictional label without statutory authorization from Congress.

   The distinction between jurisdictional and nonjurisdictional rules has captured the Court's attention in recent years partly because of the significant consequences jurisdictional treatment carries for litigants. First, when a particular statutory requirement is considered jurisdictional, neither party can waive or forfeit arguments about whether that requirement has been met. (10) Even when the defendant fails to argue in the trial court that a jurisdictional requirement was not satisfied, the courts can still consider that argument on appeal. By contrast, when the requirement is nonjurisdictional, litigants who fail to raise the issue in the court of first impression lose their opportunity to raise that challenge on appeal. (11) Second, when a statutory element is treated as jurisdictional, courts have "an independent obligation" to determine whether that element has been satisfied. (12) Even when the defendant concedes that the requirement has been met, the court is required to independently evaluate whether this is true. Courts are under no such obligation when the element is not considered jurisdictional. (13)

   Given the consequences of jurisdictional treatment for litigants and courts, it is unsurprising that jurisdictional treatment sometimes can affect case outcomes. Consider, for example, the D.C. Circuit's recent decision in Marcum v. Salazar. (14) The plaintiffs challenged the government's decision to deny their applications for permits to import "elephant trophies" from a hunting trip. The government did not contest the existence of final agency action in district court, but it decided to do so on appeal. (15) The D.C. Circuit explained that the government was right: the plaintiffs' claim ordinarily would not have been actionable "for want of final agency action." (16) But as the court acknowledged, and as explained in Part II, final agency action is not a jurisdictional requirement in federal-question cases brought under 28 U.S.C. [section] 1331. (17) For that reason, the government had...