The jurisdictional label: use and misuse.

• Author: Lees, Alex

INTRODUCTION I. THE PROBLEM OF JURISDICTION: LABELS AND CONSEQUENCES A. The Jurisdictionality of Time Limits B. The Jurisdictionality of Claim Processing Rules C. The Problem II. WHAT MAKES A RULE JURISDICTIONAL: PREVIOUS EXPLANATIONS A. Jurisdiction as Power B. Jurisdiction as Legitimacy-Preserving Device C. Jurisdiction as Legislative Decree II. WHAT MAKES A RULE JURISDICTIONAL: DRAWING BOUNDARIES OF AUTHORITY A. Federal Subject Matter Jurisdiction: Boundaries Between State and Federal Judiciaries B. Justiciability Rules: Boundaries Between the Judiciary and the Political Branches C. The Final Judgment Rule: Boundaries Between Trial Courts and Appellate Courts IV. JUSTIFYING THE RIGIDITY OF THE DOCTRINES OF JURISDICTION A. Jurisdictional Rigidity: Preserving Institutional Identity B. Nonjurisdictional Flexibility: Preserving Fairness V. ALTERNATIVES TO JURISDICTION CONCLUSION INTRODUCTION

It is a basic axiom of American jurisprudence that legal issues are classified as either "jurisdictional" or "nonjurisdictional." (1) If a rule or requirement is classified as jurisdictional, then "courts will interpret and apply it rigidly, literally, and mercilessly." (2) Jurisdictional defects are absolutely fatal to a claim. Moreover, parties neither waive jurisdictional requirements nor consent to noncompliance with them. Parties can raise jurisdictional defects at any time in the litigation, including for the first time on appeal, and courts are obliged to raise such defects sua sponte, even after litigation on the merits. Finally, courts may not consider using equitable doctrines to bend jurisdictional rules under any circumstances.

But how are courts to know when a rule is jurisdictional? How are they to know when to apply a rule with jurisdictional rigidity? One answer is that a rule's jurisdictional status (its "jurisdictionality") should follow from the consequences of a rule: a court decides first that the rule should be applied rigidly and then labels the rule jurisdictional. The problem with this approach is that it turns the word "jurisdiction" into a legal "trope"--that is, a word that courts invoke as a convenient way of reaching certain consequences that have come to be associated with it. (3) The word becomes "a hook that judges use when they want to achieve certain ends, like construing a rule strictly and literally, or raising a legal issue sua sponte, or engaging in collateral review of another court's judgment." (4) The jurisdictional label thus becomes "only a conclusory label for a judicial refusal to act." (5) This in turn leads to two problematic results. First, it leads to opaque court decisions. If jurisdiction is a trope, then courts can declare, essentially in a word ("jurisdictional!"), that a rule should be applied rigidly, without ever explaining why the rule should be applied rigidly. Moreover, and perhaps more problematically, when the jurisdictional label is an expedient tool of reaching harsh consequences, it allows courts to apply rules rigidly even where such consequences seem unfair and unnecessary. For example, the Sixth Circuit used the jurisdictional label to deny an appeal to a pro se litigant who submitted an otherwise timely and complete notice of appeal, but who signed the notice by typewriter instead of by hand. (6) The Supreme Court used the jurisdictional label to deny certiorari to a litigant's petition that arrived at the courthouse two days late because a massive snow storm delayed the mail. (7)

In the words of Wright and Miller, "unthinking use of the [jurisdictional] label" leads to "untoward consequences." (8) The Supreme Court recently agreed in Kontrick v. Ryan, (9) and noted that "jurisdiction" is a word of "too many meanings," (10) is used too freely, and is attached to too many legal issues. The Court lamented the tendency of courts to call certain claim processing rules "jurisdictional," and to apply the doctrines of jurisdiction to them, when such harshness is neither necessary nor justified. (11) In the very same Term, in Scarborough v. Principi, (12) the Court went so far as to accuse courts of "misusing" the label of jurisdiction. (13) In both Kontrick and Scarborough, the Court saw a need to eliminate such misuse. If jurisdiction entails such harsh consequences, the Court implied, it ought not to be invoked too freely. (14)

The purpose of this Note is to offer a solution to the problem of courts misusing the jurisdictional label. I suggest turning the assumption that jurisdictionality flows from jurisdictional consequences on its head and propose that courts should start operating instead under the assumption that jurisdictional consequences flow from a rule's jurisdictionality. In other words, there are some properties (which I call "jurisdictional properties") that a rule can have that alone justify its rigid application. The Kontrick Court suggested this approach when it recommended that the jurisdictional label be reserved only for rules that "delineat[e] the classes of cases ... falling within a court's adjudicatory authority." (15) The Court suggested looking to the function of a rule and deciding, based on this function, whether it ought to be applied rigidly. However, the Kontrick Court's recommendation is not entirely helpful, since any rule can be seen as delineating the classes of cases a court may hear: a court is authorized to hear cases in which the parties comply with the rule and not the eases in which they do not.

In this Note, I continue the project the Court set out in Kontrick of identifying what functions or properties a rule should have in order to justify its rigid application. I argue that if a rule operates to shift authority from one law-speaking institution to another in the case of compliance, and is premised on a policy decision that compliance makes that institution more proper for resolution of law than another, then the rule can justifiably be treated rigidly. This is because rules that shift authority--that say who can "speak law" under what circumstances--keep our law-speaking institutions (federal courts, state courts, legislatures, agencies, and so on) separate and distinct, and prevent them from encroaching on one another. Such rules therefore reflect our deeply seated political principle of governance that law-speaking institutions ought to be separate, that some issues are best decided through some processes, by certain people, under the auspices of some institutions as opposed to others.

As I show below in Part IV, rules with this authority-shifting function come with a built-in justification for the harsh consequences of the doctrines of jurisdiction. By virtue of having the function of preserving institutional identity, such rules embody values and interests so important and fundamental to our legal order--such as federalism and separation of powers--that they should not be manipulable by litigants or the courts that implement them. Furthermore, reserving the term "jurisdiction" for describing rules with the authority-shifting function comports with an intuitive sense, shared by lawyers and judges, of what the word "jurisdiction" means. Though we are accustomed to saying things such as "the court has jurisdiction to do this," or "the court was beyond its jurisdiction when it did that," the word "jurisdiction" can also refer to an institution itself, such as when we speak of "this jurisdiction" or "that jurisdiction." (16) Rules that outline the authority of an institution by preventing it from encroaching on the province of another institution outline the boundaries of "a jurisdiction" in this sense of the word. They tell us, for example, what makes federal courts, one jurisdiction, different and distinct from state courts, another jurisdiction. These rules give each institution, each jurisdiction, its unique identity in a complex multi-institutional legal order.

Misuse of the jurisdictional label, and the unjustified harsh results that follow, can be avoided if courts limit their uses of the label to situations where rules have these jurisdictional properties. If courts have more precise guidance than the Kontrick Court gave of when to use the jurisdictional label, they will be less likely to reach unnecessary and unjustified harsh results when applying a rule. This will also lead to less confounding and opaque court decisions. The jurisdictional label will cease to be a legal trope and will come to signify that jurisdictional properties are present and that rigid application is therefore justified. Jurisdiction will no longer have too many meanings, but instead a rather precise meaning, which courts can then use as shorthand to justify harsh application of a rule.

This Note proceeds as follows. In Part I, I expose the tendency of lower courts to "misuse" the language of jurisdiction and reach a result essentially in a word (either "jurisdictional" or "nonjurisdictional") without adequately justifying that result. I show how the Supreme Court's attempt to buck this trend in Kontrick did not give sufficient guidance to lower courts on how to distinguish between what should be classified as jurisdictional rules and what should be considered nonjurisdictional rules. In Part II, I consider some scholarly positions on how jurisdictional rules can be separated from nonjurisdictional rules. I examine the arguments that jurisdictional rules go to the power of courts, that they go to the legitimacy of court orders, and that they are whatever legislatures call "jurisdictional" in a statute. I show how these frequently proffered accounts are incomplete and so fail to give an adequate answer to the questions I have raised.

In Part III, I develop the idea that the jurisdictional status of a rule should be determined by looking to whether a rule shifts authority from one law-speaking institution to another because of a policy decision that deems one institution more proper for dispute resolution than another. In...