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Tuesday, January 22, 2013

Is anything jurisdictional anymore?

Today's SCOTUS decision in Sebelius v. Auburn Regional Med. Cen. (good summary of the main issue--equitable tolling--at SCOTUSBlog) required a brief detour into the jurisdictionality of the 180-day statutory period for filing an administrative review of Medicare reimbursement. And once again, the Court unanimously held that a filing period is not jurisdictional, again applying Arbaugh's plain statement rule.the The provision lacks any jurisdictional language or words with "jurisdictional import." Plus, filing periods typically are non-jurisdictional. That this provision was surrounded by other provisions that were jurisdictional does not change the conclusion. Nor does the fact that Congress expressly made other provisions non-jurisdictional; the Court would not accept that as anything more than a canon of construction that need not apply in all cases, in light of the text of the statute at issue.

We are on a roll in terms of non-jurisdictionality. The Court now seems to be going out of its way to find provisions (properly) non-jurisdictional. In fact, neither the government nor the medical providers wanted to argue that the provision is jurisdictional--recognizing the overwhelming direction of the doctrine; the Court appointed John Manning of Harvard as  amicus to make the argument. Indeed, I am beginning to wonder whether anything, other than an outright jurisdictional grant, ever will be treated as jurisdictional again.

Posted by Howard Wasserman on January 22, 2013 at 03:02 PM in Civil Procedure, Howard Wasserman | Permalink

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