|
Article Excerpt
INTRODUCTION
I. UNDERSTANDING NON JURISDICTIONAL RULES A. Avoiding the False Dichotomy B. The Effects of the False Dichotomy II. A ROLE FOR MANDATORY RULES A. Mandatory Rules Defined B. Institutional Benefits C. A Case Study: Section 2107 1. Non jurisdictional 2. Mandatory 3. Some conclusions III. MANDATORY SOVEREIGN IMMUNITY A. A Brief Background on State Sovereign Immunity B. The Case for a Non jurisdictional State Sovereign Immunity 1. Presumption of jurisdictionality 2. Function 3. Effects 4. Doctrinal and cross-doctrinal consistency C. The Case for a Mandatory Sovereign Immunity 1. No sua sponte requirement 2. Forfeitability 3. No availability of equity CONCLUSION
INTRODUCTION
How does one determine whether a particular rule is jurisdictional or not? Over the last few years, the Court has focused on this question. Since 2004, the Court has determined that Bankruptcy Rule 4004, which gives a Chapter 7 creditor sixty days after the first creditors' meeting to object to debtor discharge, (1) is nonjurisdictional; (2) that Federal Rule of Criminal Procedure 33(b)(2), which sets a time limit to file a motion for a new trial, (3) is nonjurisdictional; (4) that Title VII's "employee-numerosity requirement" (5) is a nonjurisdictional element of the claim; (6) and that the time limit to extend the filing of a notice of appeal in a civil lawsuit (7) is jurisdictional. (8) And, just a few months ago, the Court decided that the six-year statute of limitations in the Tucker Act is a quasi-jurisdictional bar to suit. (9)
The Court is right to be attentive. Whether a rule is jurisdictional or not affects both litigants and the courts in important ways. Though I believe that the Court has yet to develop a principled framework for resolving the issue, (10) the Court is correct to recognize the issue as an important one and to continue to strive for a workable and sensible resolution.
But the jurisdictional inquiry also implicates another question of equal importance, but that has received less attention and thought. What does the determination that a rule is jurisdictional or not mean? For a jurisdictional rule, the answer is (usually) easy. (11) A jurisdictional rule can be raised by any party at any time, including for the first time on appeal; it obligates the court to police compliance sua sponte; and it is not subject to principles of equity, waiver, forfeiture, consent, or estoppel. (12)
By contrast, the effects of a nonjurisdictional characterization are far less studied. Often, courts and commentators simply assume that nonjurisdictional rules have all of the inverse effects of jurisdictional rules: that is, they must be raised by a particular party by a particular time or they are forfeited; they are subject to consent and waiver and estoppel; and they are subject to principles of equity. Thus, some courts and commentators have assumed that if a rule has any attributes of jurisdictionality, it must be jurisdictional, and that if a rule is nonjurisdictional, then it must have no attributes of jurisdictionality. (13) In addition, that assumption is made without any meaningful discussion of what attributes the nonjurisdictional rule in question should have as an institutional, analytical, or normative matter. (14) As I will explain, that assumption is wrong, and reliance on it reflects a deep misunderstanding of, and underappreciation for, nonjurisdictional rules.
This Article is the first to take a hard look at nonjurisdictional rules and the important roles they can play. Part I illustrates how courts and commentators have tended to confine nonjurisdictional rules to the mirror inverse of jurisdictional rules, and it exposes this rigid treatment of jurisdictional and nonjurisdictional rules as a false dichotomy. Nonjurisdictional rules need not have the opposite effects of jurisdictional rules--nor do they invariably in practice. The point is that characterizing a rule as nonjurisdictional does not tell us much about the rule's effects, and identifying a particular jurisdictional attribute of a rule does not tell us whether the rule is jurisdictional or not. As a result, courts and commentators falling victim to this false dichotomy often commit one of two errors. Either they erroneously mischaracterize a nonjurisdictional rule as jurisdictional, or they erroneously mischaracterize a nonjurisdictional rule as having no jurisdictional effects.
Part II argues that this false dichotomy also obscures the opportunity to explore a more nuanced approach, in which a nonjurisdictional rule has some, but not all, of the attributes commonly associated with jurisdictionality. As an example, this Part focuses on the importance of the oft-overlooked "mandatory" rule, a species of nonjurisdictional rules that has both nonjurisdictional and jurisdictional effects. A mandatory rule is susceptible to waiver, forfeiture, and consent, and it need not be policed by the court sua sponte. But it is, like jurisdictional rules, immune to equitable excuses for noncompliance. The benefits of such a rule are important, though--unfortunately--overlooked.
Part III argues that closer attention to nonjurisdictional rules with jurisdictional attributes can have a positive doctrinal impact. Shedding the blinders of the false dichotomy can help explain and conceptualize some of the more curious doctrinal anomalies. State sovereign immunity is one example. Though often characterized as a jurisdictional doctrine, it can be waived or consented to. The false dichotomy separating nonjurisdictional rules from jurisdictional rules has no place for this strange doctrine, and, as a result, scholars and courts have struggled to explain it. But taking the blinders off reveals that a mandatory characterization goes a long way towards reconciling the anomaly and bringing some consistency to what has been a tortuous doctrine.
I conclude by zooming out to a broader view. A greater appreciation for nonjurisdictional rules with jurisdictional attributes can alleviate blind adherence to the false dichotomy and potentially be a powerful tool for a richer understanding of both complex and everyday doctrines.
I. UNDERSTANDING NON JURISDICTIONAL RULES
Nonjurisdictional rules are routinely misunderstood. If a court decrees a rule to be nonjurisdictional, its next step often is not analytical at all, but instead is formalistic: the court simply gives the nonjurisdictional rule the inverse effects of jurisdictionality, without further analysis. As I explain in more detail below, that dispensation is too facile.
A. Avoiding the False Dichotomy
Jurisdictional rules (usually) have clear and well-settled effects. (15) A jurisdictional rule can be raised by any party at any time, including for the first time on appeal; it obligates the court to police compliance sua sponte; and it is not subject to principles of equity, waiver, forfeiture, consent, or estoppel. (16)
By contrast, nonjurisdictional rules do not have the same rigid effects. Nevertheless, courts and commentators have tended to express nonjurisdictional rules as having the inverse effects of jurisdictional rules. (17) Even the Supreme Court has contributed to the trend. In Day v. McDonough, the Court stated that nonjurisdictional deadlines are subject to waiver and forfeiture and impose no obligation on courts to raise them sua sponte. (18)
Thus, as Perry Dane has noted in the specific context of time prescriptions, the characterization question "always rests on an explicit contrast.... [I]f a time limit is jurisdictional, the court will read it or treat it one way; if it is not jurisdictional, the court will read it or treat it another way." (19) The assumption behind the question is that a jurisdictional characterization has one set of effects and a nonjurisdictional characterization has a wholly different set of effects.
This automatic characterization of nonjurisdictional rules as the inverse of jurisdictional rules--that they are subject to waiver, consent, forfeiture, and equitable exceptions and that they need not be raised (or cannot be raised) sua sponte by the court--is erroneous.
In truth, nonjurisdictional rules do not have so rigid a set of effects as jurisdictional rules, indeed, many nonjurisdictional rules exhibit some attributes of jurisdictionality. For example, certain nonjurisdictional bankruptcy rules may not be susceptible to consent or equitable exception. (20) Certain nonjurisdictional criminal procedure rules have been characterized as "inflexible," suggesting that they are immune from equitable exceptions. (21) The nonjurisdictional exhaustion requirement imposed on a state prisoner seeking a federal writ of habeas corpus cannot be forfeited by the State or subject to estoppel. (22) And federal courts may, in appropriate circumstances, raise a petitioner's procedural default sua sponte to bar habeas corpus review under the nonjurisdictional independent and adequate state grounds doctrine, even if the state forfeited the argument. (23) Courts may raise and decide many other nonjurisdictional limits sua sponte. (24) And several commentators have picked up on the idea that nonjurisdictional rules can be mandatory or nonwaivable. (25)
As these examples show, nonjurisdictional rules are not inherently prohibited from having jurisdictional effects. As a result, it is wrong to assume that jurisdictional rules have one set of fixed effects and nonjurisdictional rules have another. The dichotomy is simply false.
B. The Effects of the False Dichotomy
Adherence to the dichotomy has at least two consequences, both of which lead to analytically inconsistent results. First, it obscures a middle path that may be more accurate. For example, a rule might be nonjurisdictional yet exhibit jurisdictional traits. The false dichotomy does not allow for such a rule and therefore may lead to an incorrect result or doctrinal confusion.
Second, judicial adherence to the false dichotomy risks either over- or underdeciding the case. Imagine, for example, a case that presents the question of whether a rule is susceptible to equitable exceptions. A court that construes the rule as jurisdictional might resolve the question but only by overdeciding it: by characterizing the rule as jurisdictional, the court has silently resolved other questions not presented (and likely never briefed), such as whether the rule must be policed sua sponte by the court or whether the rule is subject to equitable exceptions. On the other hand, a court that construes the rule as nonjurisdictional but decides nothing further has underdecided the issue by merely begging the question of what jurisdictional attributes (such as being unsusceptible to equitable exceptions) the rule nonetheless might have.
Take, as an example of these problems, the Supreme Court's recent decision in Bowles v. Russell, about which I will have more to say later. There, Keith Bowles petitioned for a federal writ of habeas corpus, which the district court denied. (26) Under 28 U.S.C. [section] 2107, Bowles had thirty days to appeal. (27) He did not do so within that deadline. Instead, after the deadline had passed, Bowles moved to reopen the time to file an appeal, (28) a motion authorized by [section] 2107. (29) The district court granted Bowles's motion to reopen the time for appeal on February 10, 2004. (30)
In the district court's order, the district court gave Bowles seventeen days, until February 27, to file his notice of appeal. Accordingly, Bowles filed his notice of appeal on February 26. (31) However, [section] 2107(c) limits a reopened time period to fourteen days. (32) Thus, Bowles's notice of appeal was timely under the district court's order but untimely under [section] 2107(c).
The State successfully moved to dismiss Bowles's appeal, arguing that the notice of appeal was untimely under [section] 2107(c) and that the Court of Appeals therefore lacked jurisdiction to hear the appeal. Bowles sought certiorari review in the Supreme Court, arguing that the deadline was not jurisdictional and that the Court should excuse his noncompliance with the statutory deadline because he relied on the district court's order. (33)
The Supreme Court agreed with the State and affirmed the decision of the lower court in a 5-4 decision authored by Justice Thomas. Relying primarily on the statements of past cases, the Court held the rule to be jurisdictional. (34) And, because the deadline was jurisdictional, it was not susceptible to the equitable excuse proffered by Bowles. (35)
As I have argued elsewhere, there are a number of good reasons to criticize Bowles. (36) One reason, however, is particularly relevant here. The issue in Bowles, in its narrowest sense, was whether the district court had the power to extend the time to file the notice of appeal beyond the time set by [section] 2107(c) for equitable reasons not recognized in the statute. But the issue the Court actually considered was whether the statutory time limit was jurisdictional. True, in answering "yes," Bowles did resolve the narrower issue. But at the same time, the Court also resolved other issues sub silentio that, though neither presented by the facts nor addressed by the Court, necessarily follow from a jurisdictional characterization. Thus, by declaring the deadline jurisdictional, Bowles requires courts to police the deadline sua sponte, makes the deadline unsusceptible to waiver, forfeiture, or consent, and allows noncompliance to be raised at any time by any party--including the party who missed the deadline in the first place. Although none of these issues was presented by the parties in Bowles or, as far as I can tell, considered by the Court, the Court's jurisdictional ruling decided them anyway. And, as I will explain below, a more principled consideration of them might have led to a different characterization.
For what it is worth, the dissent in Bowles fell victim to the same trap. The dissent would have held the deadline nonjurisdictional and therefore amenable to the equitable excuse presented in the case. (37) But a nonjurisdictional characterization, rather than leading to that result, merely begs it. Not all nonjurisdictional rules are amenable to equitable excuses, and there are good reasons why the deadline to file a notice of appeal is one of those that is not. (38)
Thus, neither the majority nor the dissent confronted directly the narrow question presented, which was whether the deadline is mandatory (and therefore not subject to equitable exceptions). Worse, neither the majority nor the dissent even acknowledged the possibility of a middle path--that the rule might be nonjurisdictional yet unsusceptible to equitable exceptions. The Justices' focus on the false dichotomy described above obscured that possibility. That is a shame, for, as I will argue below, a mandatory but nonjurisdictional characterization of [section] 2107 has much to commend it. (39)
Bowles therefore illustrates the two perverse effects that the false dichotomy engenders. First, the dichotomy focused the Court's inquiry on a question whose answer was either broader than necessary (the majority's jurisdictional characterization) or narrower than needed (the dissent's nonjurisdictional characterization) to resolve the case. And, second, it hid from the Court a critical piece of the puzzle: the possibility that a rule might be mandatory without being jurisdictional.
II. A ROLE FOR MANDATORY RULES
Had the Court in Bowles appreciated the nuances of jurisdictional and nonjurisdictional characterizations rather than focusing on the false dichotomy, it might have avoided the problems identified above. (40) Convincing courts and commentators to look outside the dichotomy is thus a laudable goal. As a step toward that goal, I will show that the jurisdictional traits of nonjurisdictional rules can have valuable and important roles to play. Take, as just one example, the "mandatory rule."
A. Mandatory Rules Defined
A mandatory rule is nonjurisdictional but nevertheless has the jurisdictional attribute of being unsusceptible to equitable excuses for noncompliance. (41) Thus, a mandatory rule has the nonjurisdictional attributes of being waivable, forfeitable, and consentable, and a court has no obligation to monitor it sua sponte. However, if the rule is properly invoked by the party for whose benefit it lies, a court has no discretion to excuse noncompliance. (42)
B. Institutional Benefits
The benefits of such a rule in theory should be obvious. Waiver, consent, and forfeiture allow the parties to designate which issues require court decision and which are of such relative unimportance to the...
|
