Jurisdictional Avoidance: Rectifying the Lower Courts' Misapplication of Steel Co.

• Author: Kulp, Brian A.

Introduction

It is well established that the federal judicial power extends only to "Cases" and "Controversies." (1) And that "'[f]ederal courts are courts of limited jurisdiction,' possessing 'only that power authorized by Constitution and statute." (2) Therefore, as the Supreme Court explained in Steel Co. v. Citizens for a Better Environment, (3) "[t]he requirement that jurisdiction be established as a threshold matter 'spring[s] from the nature and limits of the judicial power of the United States' and is 'inflexible and without exception.'" (4) "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause." (5)

The majority in Steel Co. thus set forth a simple rule: In "every" case, "the first and fundamental question is that of jurisdiction." (6) This is consistent with a long and venerable line of Supreme Court precedent, (7) and the rule also makes eminent sense. "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation and equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." (8) Simply put, "[f]or a court to pronounce upon the meaning or the constitutionality of a state or federal law when it has no jurisdiction to do so is, by very definition, for a court to act ultra vires." (9)

At the same time, Steel Co. rejected the concept of "hypothetical jurisdiction," "the practice of deciding the cause of action before resolving Article III jurisdiction." (10) Some lower courts had previously embraced such an approach when: "(1) the merits question [was] more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied." (11) But writing for the Court, Justice Scalia denounced this method of leapfrogging over the "threshold jurisdictional question." (12) A federal court could no longer--nor could it ever--decide "an 'easy' merits question ... on the assumption of jurisdiction." (13) And this holding is more than just a matter of good judicial practice. It is constitutionally compelled by Article III's case or controversy requirement. (14) "Hypothetical jurisdiction produces nothing more than a hypothetical judgment--which comes to the same thing as an advisory opinion, disapproved by [the Supreme] Court from the beginning." (15)

As the sweeping language above shows, Steel Co.'s prohibition on hypothetical jurisdiction is absolute. (16) It is not subject to exception. The wrinkle--which spawned the problem that this Note addresses--is that the Court did acknowledge that two cases which it declined to overrule seemed to "dilute[] the absolute purity of the rule that Article III jurisdiction is always an antecedent question." (17) As a consequence, the lower courts have misread those cases to continue practicing the hypothetical jurisdiction that Steel Co. explicitly forbade. But, as the Steel Co. Court's explanation makes clear, neither case (nor any other) grants a federal court license to assume jurisdiction. (18) Such a transgression of jurisdictional boundaries is antithetical to the "proper--and properly limited--role of the courts in a democratic society." (19)

Part I of this Note argues that the cases Steel Co. declined to overrule fail to support even a limited departure from the inflexible rule that jurisdiction is the first and fundamental question in every dispute. Part II then explains how and why the lower courts have misinterpreted those cases to revive one particular hypothetical jurisdiction practice which runs afoul of Steel Co.--one the appellate courts have deemed the "foreordained" exception. (20) Finally, Part III closes by recommending that the lower courts must themselves rectify their own mistake going forward.

1. An Ostensible Exception to the Jurisdictional Rule

   The wrinkle alluded to above can be ironed out by a close examination of the "extraordinary procedural postures" of the two enigmatic cases Steel Co. retained as good law (21)--Secretary of Navy v. Avrech (22) and Norton v. Mathews. (23) When read correctly and in light of Steel Co., neither authorizes the circuit courts to "bypass [a] jurisdictional question and proceed directly to the [merits]" (24) as they have continued to do.

   First, prior to the Court's ruling in Avrech, the merits issue in the case had been conclusively resolved by a companion case argued the same day. (25) Following oral argument, the Court noticed a potential issue that it (erroneously) characterized as "jurisdictional" and ordered that the parties submit supplemental briefing. (26) But because the merits issue had been definitively resolved by a companion case, the Avrech Court concluded that "[w]ithout the benefit of further oral argument, [it was] unwilling to decide the difficult jurisdictional issue which the parties ha[d] briefed." (27) It did so on the "belief] that even the most diligent and zealous advocate could find his ardor somewhat dampened in arguing a jurisdictional issue where the decision on the merits [was] thus foreordained." (28)

   This language notwithstanding, and as Steel Co. noted, "[t]he first thing to be observed about Avrech is that the supposed jurisdictional issue was technically not that." (29) Although Avrech "characterized [the] question as jurisdictional," the Supreme Court "later held squarely that it was not." (30) That means that Avrech never involved a question of hypothetical jurisdiction in the first place. And that explains why Steel Co. declined to overrule the case. Bypassing a non-jurisdictional question was not an error. (31)

   The second (and far more complex) case seeming to support hypothetical jurisdiction was Norton. There, the dispute came to the Supreme Court on direct appeal from a three-judge district court. (32) Once again, a companion case had squarely resolved the merits issue, (33) and the unique procedural posture was critical to the result. At the time, a now-repealed statute had required a three-judge district court to convene for any request for an "injunction restraining the enforcement, operation, or execution of any Act of Congress for repugnance to the Constitution." (34) Norton presented a subtle issue as to whether an injunction was available at all.

   Petitioner Gregory Norton, Jr., was born out of wedlock and, after his father died in Vietnam, his grandmother filed an application for a surviving child's benefit under the Social Security Act (SSA). (35) Norton lost in an administrative hearing and then again on appeal "because his father, at the time of his death, was neither living with [him] nor contributing to [his] support." (36) Norton then sought judicial review against the Secretary of Health, Education, and Welfare on both statutory and constitutional grounds. Setting aside the statutory issue, Norton argued that the SSA discriminated against illegitimate children by denying them the "presumption of dependency," allegedly in violation of the Constitution's guarantee of equal protection. (37)

   This is where the subtle jurisdictional issue comes in. The SSA provided that after a final decision by the Secretary, "[n]o action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of title 28 to recover on any claim arising under [the SSA]." (38) Accordingly, the Solicitor General argued that a district court lacked the authority to issue an injunction in Norton's case, "because [section] 205(h) [of the Social Security Act] specifically exclude[d] any other source of review," and [section] 205(g) "specifie[d] that a district court may enter a judgment only 'affirming, modifying, or reversing the decision of the Secretary.'" (39) As Norton explained, "[i]f the court was not empowered to enjoin the operation of a federal statute, then three judges were not required to hear the case," and in turn, the Supreme Court would lack jurisdiction to entertain the direct appeal. (40)

   Writing for the Court, Justice Blackmun "did not use the pretermission of the jurisdictional question as a device for reaching a question of law that otherwise would have gone unaddressed," (41) as some courts have erroneously suggested. (42) "Rather, the Court held that it did not need to decide the particular jurisdictional question at issue in Norton in order to affirm on the merits because under either possible answer to that question, the outcome would be the same." (43) It explained:

   Assuming that the three-judge court was correctly convened, and that we have jurisdiction over the appeal, the appropriate disposition, in the light of [the companion case], plainly would be to affirm the judgment entered in this case in favor of the Secretary. Assuming, on the other hand, that we lack jurisdiction because the three-judge court was needlessly convened, the appropriate disposition would be to dismiss the appeal. When an appeal to this Court is sought from an erroneously convened three-judge district court, we retain the power "to make such corrective order as may be appropriate to the enforcement of the limitations" which 28 U.S.C. [section] 1253 imposes. What we have done recently, and in most such cases where the jurisdictional issue was previously unsettled ... has been to vacate the district court judgment and remand the case for the entry of a fresh decree from which an appeal may be taken to the appropriate court of appeals. ... In the present case, however, the decision in Lucas has rendered the constitutional issues insubstantial and so much so as not even to support the jurisdiction of a three-judge district court to consider their merits on remand. Thus, there is no point in remanding to enable the merits to be considered by a court of appeals...