More Than a Legal Nicety: Why the Forum Defendant Rule of 28 U.S.C. Section 1441(b) is Jurisdictional

Brian W. Portugal, Note, More Than a Legal Nicety: Why the Forum Defendant Rule of 28 U.S.C. Section 1441(b) is Jurisdictional, 56 Baylor L. Rev. 1019 (2004)

Points out that SMJ is a constitutionally based doctrine, but then only performs a statutory interpretation analysis to determine whether the forum defendant rule should be considered constitutional. It thus isn't that interesting for me except as an example of "yet another jurisdictionality paper".

(Cited in a petition for a writ of cert. in a forum defendant case! (Writ denied.))

Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine

Katherine Florey, Note, Insufficiently Jurisdictional: The Case Against Treating State Sovereign Immunity as an Article III Doctrine, 92 Cal. L. Rev. 1375 (2004)

I more or less only skimmed this, though it seems to contain a nice analysis and a good history of the (ridiculous) sovereign immunity doctrine in the Supreme Court. It seems to make its argument as a non-federalism matter, however, but rather on some reading of Article III.

Query: does Alden v. Maine cut against the idea that sovereign immunity is, in fact, a federalism issue? This isn't really an important issue for me -- that is, it's ok if sovereign immunity isn't federalism-based, as my argument only takes effect once something has been determined to have a grounding in vertical separation of powers. If we think sovereign immunity is about something else, than I don't have an argument about its jurisdictionality.

Jurisdiction and Merits

Howard M. Wasserman, Jurisdiction and Merits, 80 Wash. L. Rev. 643 (2005)

I disagree heartily with Wasserman here. He takes a hard-line, no-way-is-this-jurisdictional approach to Title VII's employee-numerosity requirement, which is probably right as a matter of statutory interpretation, but his general discussion doesn't mention the Constitution and the relation of SMJ to limits on federal power.

For instance, he points out that the distinction between jurisdiction and merits has "primarily practical consequences" and also has "formalist consequences" (645), but does not mention the Constitution. The "formalist consequences" are merely those of "treating distinct legal concepts in a distinct manner" (which of course may or may not have any actual value, which is tied up in the pejorative (at least the way Wasserman uses it) label "formalist").

Wasserman sees jurisdictional elements as "establish[ing] legislative power to create a cause of action, but [they] have nothing to do with judicial authority to adjudicate that cause of action." (646) This seems to me to beg the question -- a jurisdictional element may or may not actually be jurisdictional. Whether it is depends on whether that element actually goes to judicial authority. The Title VII employee-numerosity requirement doesn't. The "in interstate commerce" portions of the Sherman Act, Title VII, or numerous other statutes, in my conception, does.

"Jurisdictional elements are about congressional jurisdiction ... . Jurisdictional elements have nothing to do with judicial jurisdiction ... ." 684

"If every statutory element reflects legislative choice, there is no justification for treating one choice ... as jurisdictional while treating all other choices ... as merits-based." (691) This is true enough, but the point is that the condition isn't satisfied: not every statutory element does reflect pure legislative choice -- some reflect the necessity to keep legislation within constitutional bounds.

Wasserman defines SMJ this way: "a court's constitutional and statutory power or authority to entertain, hear, decide, and resolve a legal or factual dispute in favor of one party or the other."

W also makes the argument that it's silly for something to be about SMJ in federal court but then not in state court. That's probably the best argument against my position, that a dismissal of a Title VII claim in state court would be for a different reason (failure to state a claim) than in federal court (SMJ). That said, just because the reasons are different doesn't mean this is bad. It's just a little weird. In fact, if you really dig down, maybe it's not so weird after all, because what is the court doing in each case? In the federal case, the court is saying, "We don't have power to hear this case because Congress doesn't have power to give us this case." In the state case, the court is saying, "You failed to state a claim because Congress doesn't have the power to reach that claim." In both cases, the point is that Congress couldn't reach the conduct the plaintiff is aiming at (in the Title VII case, that means discrimination by an employer in an industry not affecting interstate commerce). That the reaction to the fact that Congress didn't have such power is different in the different courts is only natural when you consider that the federal courts are different from the state courts, by Constitutional design!

References

Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004)

Davis v. Passman, 442 U.S. 228 (1979)

Evan Tsen Lee, The Dubious Concept of Jurisdiction, 54 Hastings L.J. 1613 (2003)

John Harrison, Jurisdiction, Congressional Power, and Constitutional Remedies, 86 Geo. L.J. 2513 (1998)

Kevin M. Clermont, Jurisdictional Fact (no citation; it wasn't published at the time)

Paul J. Mishkin, The Federal "Question" in the District Courts, 53 Colum. L. Rev. 157 (1953)

Hartford Fire Ins. Co. v. California, 509 U.S. 764 (Scalia, J., dissenting)

Hagans v. Lavine, 415 U.S. 528 (1974)

Rhode Island v. Massachusetts, 37 U.S. 657 (1838)

Jack H. Friedenthal, The Crack in the Steel Case, 68 Geo. Wash. L. Rev. 258 (2000)

Joan Steinman, After Steel Co.: "Hypothetical Jurisdiction" in the Federal Appellate Courts, 58 Wash. & Lee L. Rev. 855 (2001)

Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982)

Kulick v. Pocono Downs Racing Ass'n, 816 F.2d 895 (3d Cir. 1987)

Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738 (1976)

McLain v. Real Estate Board of New Orleans, 444 U.S. 232 (1980)

Stephen Calkins, The 1990-91 Supreme Court Term and Antitrust: Toward Greater Certainty, 60 Antitrust L.J. 603 (1991)

Roxane C. Busey & Peter B. Freeman, The View From the Summit: Jurisdiction and Beyond, 60 Antitrust L.J. 725 (1991)

Citing references

Kevin M. Clermont, Jurisdictional Fact, 91 Cornell L. Rev. 973 (2006)

Tara M. Stuckey, Note, Jurisdictional Hooks in the Wake of Raich: On Properly Interpreting Federal Regulations of Interstate Commerce, 81 Notre Dame L. Rev. 2101 (2006)

Is Jurisdiction Jurisdictional?

Laura S. Fitzgerald, Is Jurisdiction Jurisdictional?, 95 Nw. U. L. Rev. 1207 (2001)

Points out how the Court has a "merits-first" tradition that stands in contrast to its "SMJ uber alles" rhetoric. (Expressly) doesn't really engage in a normative critique, except for a little bit in the conclusion.

"[J]urisdiction, as a formal constraint on the federal judicial power, may matter less to the Court than its rhetoric insists." 1208

Why merits-first contradicts the Constitution: "[T]he notion that the principle of limited federal power operates on federal courts primarily through the threshold requirement that formal subject matter jurisdiction be established in every case before any judicial power is exercised." 1211

"Particularly now, as the Court continues its decade-long campaign to enforce strict constraints on Congress's jurisdiction to act ... any tradition that leads the Court to soften jurisdictional constraints on itself and other federal courts deserves careful review." 1211-12

"[T]he scope of an institution's power--its jurisdiction--must be determined by a source outside that institution itself." 1274

References

Louise Weinberg, The Article III Box: The Power of "Congress" to Attack the "Jurisdiction" of "Federal Courts", 78 Tex. L. Rev. 1405 (2000)

Cohens v. Virginia, 19 U.S. 264 (1821)

Ex parte McCardle, 74 U.S. 506 (1868)

The Federalist No. 80 (Alexander Hamilton)

Ruhrgas

Ruhrgas v. Marathon Oil, 526 U.S. 574 (1999)

Courts can decide personal jurisdiction issues before subject matter jurisdiction issues if they want (at least in removal cases, although nothing in the reasoning limits the decision to those type of cases). It's all just jurisdiction to Justice Ginsburg.

Lower court, Fifth Circuit, had determined that respect for federalism required that SMJ be determined first, but it reversed itself en banc.

References

5th Circuit opinion, 115 F.3d 315; en banc at 145 F.3d 211?

Steel Co.

Steel Co. v. Citizens for a Better Environment, 523 U.S. 83 (1998)

Scalia is so not cool with "resequencing", i.e. addressing standing before SMJ, but Stevens wants to permit it.

Scalia: "We decline to endorse such an approach because it carries the courts beyond the bounds of authorized judicial action and thus offends fundamental principles of separation of powers." 94

Again: "The statutory and (especially) constitutional elements of jurisdiction are an essential ingredient of separation of equilibration of powers, restraining the courts from acting at certain times, and even restraining them from acting permanently regarding certain subjects." 101

Finally: "For 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." 101-02

Stevens relies in part on the idea of constitutional avoidance (but recall the idea that constitutional avoidance is itself constitutionally motivated, so the very act of deciding to avoid a constitutional question is an act of interpreting the constitution (right?)).

References

Bell v. Hood, 327 U.S. 678 (1946)

Mitchell v. Maurer, 293 U.S. 237 (1934)

Bray v. Alexandria Women's Health Clinic, 506 U.S. 263 (1993)

The Fair v. Kohler Die & Specialty Co., 228 U.S. 22 (1913)

Oneida Indian Nation of N.Y. v. County of Oneida, 414 U.S. 661 (1974)

Romero v. International Terminal Operating Co., 358 U.S. 354 (1959)

Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987)

United States v. Vanness, 85 F.3d 661 (C.A.D.C. 1996)

Northwest Airlines v. County of Kent, 510 U.S. 355 (1994)

Montana-Dakota Util. v. Northwestern Public Service, 341 U.S. 246 (1951)

Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)

Great Southern Fire Proof Hotel v. Jones, 177 U.S. 449 (1900)

Leroy v. Great Western

Leroy v. Great Western United Corp., 443 U.S. 173 (1979)

Justice Stevens refers to SMJ as "fundamentally preliminary" because it is an "absolute stricture on the court". 180

References

Olberding v. Illinois Central R. Co., 346 U.S. 338 (????)

Neirbo Co. v. Bethlehem Corp., 308 U.S. 165 (????)

Mansfield v. Swan

Mansfield, Coldwater & Lake Michigan Railway Co. v. Swan, 111 U.S. 379 (1883)

Because the lower court didn't have jurisdiction, the judgment must be reversed. It isn't clear why this case is noteworthy, because it seems like it should follow directly on Capron v. Van Noorden.

"[T]he judicial power of the United States must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted." 384

The judgment must be reversed, "else the party which prevailed there would have the benefit of such judgment or decree, though rendered by a court which had no authority to hear and determine the matter in controversy." 385

References

Capron v. Van Noorden, 2 Cranch 126 (1804)