Matters in abatement.

AuthorPetty, Aaron R.
PositionAppellate review of non-jurisdictional matters

    Section 2105 of the Judicial Code, which forbids appellate review of non-jurisdictional matters in abatement, is perhaps the most commonly ignored limitation on federal jurisdiction. (1) Certainly it is one of the most puzzling. Although it has been on the books, in one form or another, since the Judiciary Act of 1789, it has received scant attention from the bench, bar, and academy. What little regard the legal community does pay it is largely negative. Wright, Miller & Cooper, one of the few authorities that appears to be aware of this provision's existence, (2) went so far as to call for its "[p]rompt repeal," suggesting that it could not be applied coherently, and that sporadic invocation, facile avoidance, and blatant disregard were all inferior alternatives to its speedy demolition. (3)

    I believe such concerns are overwrought. Congress acted wisely in removing non-jurisdictional matters in abatement from the field of appellate concerns. The courts, unfortunately, do not appear to have made as much of the statute as they might. Particularly in light of the increasing workload of the federal courts of appeals, (4) the time has come to resurrect [section] 2105, dust off the decades of disuse, and apply it with renewed vigor. Here, I suggest how that might be done, and how a better understanding of abatement could draw new light into the void between jurisdiction and merits.

    In Part II, I trace the history of the provision from its initial enactment as part of the first Judiciary Act to its reincarnation in its present form as part of the wholesale revision of the Judicial Code in 1948. In Part III, I describe how courts have employed the provision over the years, with particular emphasis on the roles played by its three main substantive components: "reversal," "matters in abatement," and "involve jurisdiction." I conclude that, in an attempt to minimize the statute's reach (and avoid analysis of "abatement"), courts have improperly read the core of the statute too narrowly and its main exception too broadly. After offering what I believe to be a more robust reading of the statute, I then proceed in Part IV to discuss ways in which courts might think about abatement generally, with a special focus on where to place it on the jurisdiction-merits spectrum and how this ancient plea could be rationally incorporated into a modern procedural system. I suggest that applying the emerging notion of mandatory rules to identify matters in abatement assists in its categorization, and that abatement adds color to this recently recognized concept.

    I conclude that when properly construed, the prohibition on review of matters in abatement other than jurisdiction is a narrow, useful bar on resorting to the federal courts of appeals. Avoidance of section 2105 by the courts is neither necessary nor warranted. Rather than repeal, increased awareness of this little provision by the bench and bar would assist them in achieving the "just, speedy, and inexpensive determination" (5) of many actions by preventing another round of litigation where none should be had.


    Passed shortly before the first session of the Supreme Court (and therefore before the federal government truly began functioning), (6) the Judiciary Act of 1789 (7) has been lauded as "probably the most important and the most satisfactory Act ever passed by Congress."(8) Through its thirty-five sections, the Act establishes the Supreme Court and inferior federal courts (9) and defines the scope of their powers, from such minutia as directing the timing of their sessions and place of meeting, and permitting the appointment of clerks and marshals (10) to the scope of federal jurisdiction and its allocation between the district, circuit, and Supreme courts. (11)

    Section 22 of the Judiciary Act of 1789 concerns the appellate jurisdiction of the circuit courts and Supreme Court. (12) It provides that in civil actions in which the matter in dispute exceeds fifty dollars (exclusive of costs), final judgments of the district courts "may be re-examined, and reversed or affirmed in a circuit court, holden in the same district, upon a writ of error." (13) Similarly, it allows for direct appeals to the Supreme Court from final judgments and decrees in civil actions and suits in equity (either original actions or actions removed from state court) where the matter in dispute exceeds two thousand dollars. (14) And then it addresses matters in abatement, using language that foreshadows the language now in section 2105:

    But there shall be no reversal in either court on such writ of error for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as in the nature of a demurrer, or for any error in fact. (15) Laws governing the structure of the federal judiciary underwent considerable change in the early years of the Republic, (16) but the prohibition on review of pleas in abatement continued on, more or less unchanged, until the 1948 revisions to the Judicial Code. (17) In that year, the statute, which had been codified initially in the then-new U.S. Code as section 879 of Title 28, was moved to its present location at section 2105. (18) More significantly, the prohibition on review of facts was lifted. The revisers' notes observe that the language was deleted "to avoid any construction that matters of fact are not reviewable in nonjury cases." (19) The previous incarnation of the statute had applied only to writs of error, which were available only in actions at law. (20) As the Federal Rules of Civil Procedure, enacted in 1938, abolished any distinction in federal courts between actions at law and suits in equity, (21) the revisers concluded that clarification was appropriate. Their comments also note that as Rule 7(c) abolished all pleas and required that all requests for a court order be made by motion, it was necessary to replace the phrase plea abatement" with "matter in abatement." (22) Changes were made to phraseology as well. (23)

    The result is the little-known statute that we are left with today. Its twenty-seven words read: "There shall be no reversal in the Supreme Court or a court of appeals for error in ruling upon matters in abatement which do not involve jurisdiction. (24)


    Given the paucity of cases construing--or even applying-section 2105, (25) it is hardly surprising that no overarching theory has developed to explain what falls within its ambit. How much jurisdiction section 2105 removes from federal appellate courts is governed by three terms in the statute: "reversal," "involve jurisdiction," and "matters in abatement." (26)

    As section 2105 is generally thought a nuisance (or at best a relic of a bygone legal era), the general tendency with regard to "reversal" and "involve jurisdiction" has been to construe the former narrowly and the latter broadly, so as to make section 2105 applicable in as few cases as possible. (27) The meaning of the phrase "matters in abatement," as the courts have come to realize, is a difficult question. The biggest problem seems to be that no one knows what it means, and a number of courts have suggested that this has been the case for some time. (28) The result is a poorly developed, poorly understood, and poorly grounded body of law. Before courts can apply this statute in a consistent, sensible manner, it is necessary to interpret each of its functional clauses in a way that is internally consistent with each of the others and that gives substantive content to the statute as a whole.

    1. "Reversal"

      One way in which courts have avoided applying section 2105 has been to construe the statute as prohibiting only reversal in the narrowest sense of the word. In United States v. Alcon Laboratories, (29) the FDA initiated a seizure and injunction action against Alcon for distributing a drug called WANS without having undergone the necessary procedure for new drugs. (30) Alcon responded that WANS was not a "new drug," and moved for a remand to the FDA for a determination of whether WANS was a "new drug." (31) The district court remanded the action with instructions to defer regulatory action until WANS's "new drug"-status had been determined. (32) The government appealed, and the First Circuit held, inter alia, that the remand order was appealable under the collateral order doctrine, but in so doing was obliged also to respond to Alcon's argument on appeal that section 2105 prevented it from taking jurisdiction of the matter. (33) Without reaching the question whether the issue involved a "matter in abatement," the court reasoned that its vacating the district court's order and remanding for further proceedings was "not, technically, a 'reversal.'" (34)

      Wright, Miller & Cooper find this reasoning unpersuasive, (35) and I agree. Conditioning appellate jurisdiction on the outcome of an appeal is absurd. Jurisdiction grants courts the authority to reach the merits of a dispute. (36) Reading the statute to require a court to reach the merits in order to decide whether it could reach the merits is utter nonsense. Of course, courts always retain jurisdiction to determine their own jurisdictions. (37) But that rule permits courts to determine facts and reach legal conclusions generally apart from (although sometimes overlapping with) the merits of the case. (38) Collapsing jurisdiction and merits into a single--if not backward--inquiry would work an extraordinarily significant alteration in federal practice, one that should not be assumed absent a clear congressional directive. (39)

      Moreover, the word "reversal" in section 2105 reaches back to the first version of the statute in the Judiciary Act of 1789. (40) Section 22 of the Act provides for appellate jurisdiction of the circuit courts and Supreme Court, noting that in each, final judgments may "be re-examined and reversed or affirmed."...

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