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Wednesday, March 03, 2010

Copyright and the (hopefully) end of drive-by jurisdictional rulings

A basically unanimous Supreme Court yesterday decided Reed Elsevier, Inc. v. Muchnick, holding that the statutory requirement that a copyright holder register her copyright as a precondition to filing suit was not a limit on the jurisdiction of the courts, but only a filing prerequisite that, while defeating a claim, does not deprive federal courts of jurisdiction. This ruling should allow the Google Book Settlement to go forward, although perhaps in a way that binds or benefits unregistered copyright holders who could not have brought suit in the first place (the Court expressly took no view on the merits of the settlement).

It was good to see the Court get a is-this-jurisdictional case just right and in a straight-forward way, with a minimum of complications or confusion. In particular, the Court continued its efforts to back away from a recent history of "drive-by jurisdictional rulings," in which courts have characterized issues (whether elements or filing conditions) as jurisdictional based on loose and inaccurate use of the word and without close analysis.

The majority, written by Justice Thomas, applied the clear-statement rule of Arbaugh v. Y&H Corp. and concluded that, because Congress had not expressly defined § 411(a) as jurisdictional, it should be treated as non-jurisdictional. More importantly (in my view), because the prerequisite appears in a different statute than the one that grants jurisdiction over the action (28 U.S.C. §§ 1331 and 1338), ir should not be treated as a condition on that jurisdictional grant.

Nor does it matter that the issue in § 411(a) is a filing prerequisite (what we might call a procedural requirement) while Arbaugh involved an essential element (the numerosity requirement for defining employers under Title VII), which we might call a substantive issue. The Court properly insisted there is no difference for purposes of jurisdictional characterization, which seems right; there does not seem much difference between saying a plaintiff must do X to bring suit and that a plaintiff must prove Y to prevail--either determines the individual's right to bring the case into court and to avail himself of the remedial scheme for a violation of those rights. In other words, both are about whether a plaintiff can get into court, not whether the court has the authority to hear that plaintiff. Both procedure and substance remain (and must remain) distinct from the question of the judiciary's raw authority.

The one snag in this otherwise clean analysis is 2007's Bowles v. Russell, in which a sharply divided Court held that the 30-day period for filing a notice of appeal from a final district court judgment was jurisdictional, despite the absence of a jurisdictional label. Bowles is the only recent jurisdiction/merits case in which the Court has held a provision to be jurisdictional. Both Justice Thomas and Justice Ginsburg in a concurrence struggled to reconcile Arbaugh (and the general trend towards provisions being non-jurisdictional) with Bowles. Justice Thomas emphasized the long history of the Court treating time limits of the type at issue in Bowles as "speak[ing] in jurisdictional terms," while the types of conditions in Arbaugh were not. Justice Ginsburg, on the other hand, insists that the Bowles time limit could be called jurisdictional because a long line of Supreme Court precedent had called it so and been left undisturbed by Congress. On the other hand, a similarly long string of cases (more than 200) labeling § 411(a) as jurisdictional had come from lower courts, many in "drive-by jurisdictional rulings" that should not be accorded precedential effect.

I am not sure either effort works--a point on which Scott Dodson, writing at Civ Pro/Fed Courts Blog, agrees). The point of Arbaugh was that courts should not treat a rule as jurisdictional unless Congress labels it as such, which makes Bowles irreconcilable in analytical approach, unless it survives purely as a stare decisis case (which neither Bowles itself nor Reed suggests). Nor do I buy Justice Ginsburg's distinction between SCOTUS precedent and lower-court precedent as far as congressional acquiescence. Congress is as aware and as capable of disagreeing with and overriding lower-court statutory precedent as Supreme Court precedent.

Perhaps Bowles is an outlier, the last decision to rely on older drive-bys (and its sharp ideological context and divide explain its status). Perhaps Bowles will be reconsidered at some point--although if the facts of Bowles (the appellant in a habeas case filed his notice by the date that the district judge told him was the appeal deadline) did not warrant a forgiving view of the time requirement, I am not sure what facts would. Alternatively, the solution may be the category of mandatory-but-not-jurisdictional rules (advocated chiefly by Scott; my commentary is here)--rules not allowing of exception, but understood as limiting the parties and not the authority of the courts.

In fact, I had suggested that the Court's opinion in John R. Sand & Gravel v. United States (holding that the statute of limitations in the Court of Claims was mandatory and non-waivable, although avoiding the jurisdictional label) had retroactively recast Bowles as similarly non-jurisdictional. Yesterday's decision suggests I am wrong about that. Too bad--because Bowles will continue to get in the way of clean limitations on just what is a limit on judicial/adjudicative jurisdiction.

Beyond that macro concern, however, today's opinion is a good one--unanimous and clearly signaling to lower courts to be sparing in what they label as jurisdictional limitations that deprive courts of all authority to act.

Posted by Howard Wasserman on March 3, 2010 at 08:33 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink


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Nice post, Howard. It is interesting how little of Bowles appears to remain. Aside from the longstanding historical treatment, all of the other justifications Justice Thomas wrote in Bowles for the result (statutory v. rules, purportedly distinguishable facts in Arbaugh, Scarborough, and Zipes) seem mostly discredited after Reed Elsevier. And properly so, in my view. In a way, it reminds me a little of another Thomas opinion that has received belittling treatment recently, though decidedly less justifiably...Swierkiewicz.

Posted by: Scott Dodson | Mar 3, 2010 9:48:50 AM

This ruling should allow the Google Book Settlement to go forward, although perhaps in a way that binds or benefits unregistered copyright holders who could not have brought suit in the first place (the Court expressly took no view on the merits of the settlement).

Reed Elsevier case isn't about the Google Books settlement, but about another, earlier settlement over freelance articles. The settlement class in the Google Books case was drafted to avoid the issue created by the Second Circuit's ruling by excluding the copyright owners of unregistered United States works. The class could now be expanded again, but that strikes me as unlikely, given how far along the process is, including an expensive notice program and an all-day fairness hearing.

Saying that the unregistered copyright holders "could not have brought suit" is slightly misleading; at any point, they could have registered and then sued. Another virtue of the Reed Elsevier holding is that it makes it harder for copyright holders to manipulate jurisdiction. There's Court of Appeals precedent that an unregistered copyright owner is secure from declaratory judgment actions because there's no jurisdiction under 411(a). That's presumably no longer good law.

Posted by: James Grimmelmann | Mar 3, 2010 9:22:58 AM

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