Jurisdictional procedure.

• Author: Pidot, Justin R.
• Position: Introduction through II. The Theoretical Underpinnings of Jurisdictional Procedure, p. 1-45

ABSTRACT

Scholars have lavished attention on the substance of jurisdictional doctrines such as standing, mootness, diversity, and federal question. They have left largely unexamined, however, the procedures courts use to address these doctrines; collectively, I refer to these procedures as "jurisdictional procedure." A paramount feature of jurisdictional procedure is the unique and virtually unqualified obligation federal courts possess to identify and decide issues of subject matter jurisdiction even if the parties and lower courts overlook these issues. Courts have reached no consensus about how to identify the facts necessary to effectuate this obligation. The confluence of courtinitiated legal inquiry and unpredictable factual investigation has profound consequences for the administration of justice.

The courts' duty to inquire into jurisdiction departs dramatically from the adversarial norms that dominate the American legal system. This departure, however, is necessary to preserve separation of powers. As judicial review and judicial supremacy have gained acceptance, courts have transcended the system of checks and balances through which the Constitution seeks to constrain federal power. In the absence of external checks on judicial authority, self-applied jurisdictional limitations, effectuated through an inquisitorial procedure nested within our adversarial system, fill a crucial role.

In inquiring into jurisdiction, courts often require parties to have developed the facts related to jurisdiction in the district court, even if the jurisdictional issue was not identified during that stage of the litigation. This marriage of traditional adversarial rules allocating responsibility to parties and the largely inquisitorial duty of courts to inquire into jurisdiction creates several problems. First, plaintiffs unfairly have their cases dismissed without the opportunity to provide facts related to newly arising jurisdictional concerns. Second, judicial resources go to waste because in some circumstances plaintiffs can file new claims that will require entirely new judicial proceedings. Third, courts inaccurately dismiss cases in circumstances in which jurisdiction would plainly exist if the court considered a completed factual record.

Courts can remain true to separation of powers principles while avoiding the pitfalls that often arise out of current jurisdictional procedure. To do so, they should investigate the facts necessary to correctly assess their jurisdiction. A duty to investigate jurisdictional facts would enable courts to balance their obligations to act when they have jurisdiction and to dismiss when they do not. It would more fully vindicate separation of powers. And, ultimately, it would create a fairer, more efficient, and more accurate legal process.

TABLE OF CONTENTS INTRODUCTION I. THE CONSTITUTIONAL FOUNDATIONS OF JURISDICTIONAL PROCEDURE A. Checks, Spurs, and Courts in Constitutional Design B. Evolving Judicial Power C. Internal Checks on Judicial Authority II. THE THEORETICAL UNDERPINNINGS OF JURISDICTIONAL PROCEDURE A. Adversarial Theory and Inquisitorial Theory B. Translating Theory into Practice III. THE FACTUAL DIMENSION OF JURISDICTIONAL PROCEDURE A. Facts and Subject Matter Jurisdiction B. Problems with Dismissing Based on the District Court Record 1. Unfairness 2. Inaccuracy 3. Inefficiency IV. THE REFORM OF JURISDICTIONAL PROCEDURE A. The Duty to Investigate Jurisdictional Facts B. Reposing the Duty in the District Court C. Potential Pitfalls and Alternatives CONCLUSION INTRODUCTION

Early in the Republic, the Supreme Court explained, "Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing th[at] fact and dismissing the cause." (1) To carry out that function, federal courts have developed a host of doctrines delineating the metes and bounds of subject matter jurisdiction. Plaintiffs must have standing, (2) cases must be ripe, (3) and parties must be fully diverse or present federal questions. (4)

Despite the foundational nature and profound consequences of these doctrines, the process by which courts determine whether they have jurisdiction remains sorely underexamined. Ongoing debates about the substance of jurisdictional doctrines--such as standing, mootness, diversity, and federal question--have obscured persistent issues with what I refer to as "jurisdictional procedure": the procedure that courts use to decide questions of jurisdiction. (5) Most critically, there is no consensus regarding the proper way for courts to adjudicate the facts on which jurisdiction depends.

Consider these examples. In Heartwood, Inc. v. Agpaoa, a pane] of the Sixth Circuit raised standing at oral argument, asking whether the district court record contained evidence that the environmental-organization plaintiffs had members who used the precise corner of a national forest slated for timber harvest. (6) Neither the government defendant nor the district court had ever questioned standing. (7) Nonetheless, based solely on the state of the record at the time of final judgment in the district court, the Sixth Circuit ordered the case dismissed. (8) In America's Best Inns, Inc. v. Best Inns of Abilene, L.P., the Seventh Circuit noticed that the district court record lacked evidence of citizenship of each partner in a limited partnership. (9) The court required the parties to "enlarge the record" so that the court could assess the existence of diversity jurisdiction. (10) After considering affidavits filed after oral argument, the court dismissed. (11) And in Bartee v. Reed, the Fifth Circuit considered a death-row prisoner's claim that the prosecution had not conducted court-ordered DNA testing and the prosecution's argument that the testing was underway. (12) Without prompting from the parties, the court explained that the case may have become moot and remanded to the district court because "the mootness determination depends on record development that does not commonly take place in appellate courts." (13)

We thus have three courts, three decisions related to subject matter jurisdiction, and three different approaches that may result in different outcomes. Note, however, a striking similarity. All three courts of appeals raised the issue of subject matter jurisdiction sua sponte.

That may sound blindingly obvious. The courts raised the question of jurisdiction on their own because subject matter jurisdiction is so fundamental a limitation on the authority of courts that, as the Supreme Court has explained, courts "are not of course precluded from reexamining ... jurisdiction ... merely because no challenge was made by the parties." (14) Indeed, courts have an "independent obligation to assure [them]selves that jurisdiction is proper," (15) an obligation that I refer to as "the duty of jurisdictional inquiry."

Jurisdictional procedure has largely escaped consideration. (16) Yet it diverges significantly from the ordinary course of business in federal courts. The American legal system is perhaps the most avowedly adversarial system of law in history. (17) It is an article of faith that the presentation of facts and legal issues by opposing sides in a case is the best way to divine truth, respect autonomy, and secure justice. (18) Courts do occasionally deviate from the adversarial formula, for example, to apply the "right body of law" even when it has not been articulated properly by the parties. (19) But these deviations are exceptional. (20)

The opposite is true of jurisdictional procedure. Courts have an unflagging obligation to raise and resolve questions of jurisdiction. (21) In so doing, they take on an active role in litigation that bears a striking resemblance to the role assumed by courts from inquisitorial traditions. (22)

Courts approach jurisdictional facts, however, based on diverging and unspoken assumptions about the nature of jurisdiction. Different treatment of jurisdictional facts transcends substantive doctrines. With respect to standing, for example, courts most often adhere to the Heartwood model and raise and resolve questions of standing based on whatever facts happen to be in the district court record at the time of final judgment. (23) But occasionally, courts expand the record on appeal (24) or remand to the district court to allow further factual development. (25) Without any clear pattern, panels within the same circuit, often without explanation, apply these different mechanisms to determine their jurisdiction. (26)

Each approach involves a different mixture of inquisitorial and adversarial process. (27) The duty of jurisdictional inquiry is essentially inquisitorial insofar as it obliges judges to play an active role in litigation. Courts, however, adjudicate jurisdictional facts along a spectrum. When courts leave the development of jurisdictional facts to the parties, they rely more heavily on adversarial norms, and when courts inquire into those facts themselves, they rely more heavily on inquisitorial norms.

These choices matter to case outcomes. The facts in Heartwood strongly suggest that the organization could have satisfied the standing test articulated by the Sixth Circuit had the court either requested additional information or remanded for further fact-finding: the case involved a plan to commercially harvest 4,845 acres of the 706,000 acre Daniel Boone National Forest; the efforts of Kentucky Heartwood, one of the plaintiff organizations, focused on that national forest; and the organization had over 200 members. (28) This means that had the Heartwood court chosen to expand the record or remand for further fact-finding, the case would likely not have been dismissed.

Courts and commentators have failed to identify an appropriate uniform approach to jurisdictional procedure, explain its theoretical underpinnings, or even consider its importance. This is all the more...