« Saint Louis University Law Journal Call for Submissions | Main | Amar on exam-writing »

Monday, June 03, 2019

It's all claim-processing rules

In a decision surprising no one, a unanimous Court,, per Justice Ginsburg (of course), held in Fort Bend County v. Davis that Title VII's administrative-exhaustion requirement was a mandatory, but non-jurisdictional, claim-processing rule.

The opinion adds a bit to its framework, stating that jurisdictional is "generally reserved for prescriptions delineating classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction)." Other prescriptions can become jurisdictional if Congress includes them in a jurisdictional provision, such as an amount-in-controversy. The opinion also hints at an overwhelming presumption that a provision is non-jurisdictional. Congress must "clearly state" something as jurisdictional, otherwise courts must treat is as non-jurisdictional, pointing to a growing list of non-jurisdictional claim-processing rules and preconditions for relief.

The Court then makes quick work in classifying this as non-jurisdictional. It does not appear in either § 1331 or Title VII's statute-specific jurisdictional grant; it appears in separate (although nearby) provisions that do not speak to jurisdiction or the court's authority. Instead, they speak to a plaintiff's procedural obligations--what it must do prior to commencing civil litigation--submit papers to the EEOC and wait a specified period; this is kindred to raising objections or registering a copyright before filing suit. That the exhaustion requirement serves important purposes--encouraging conciliation and giving the EEOC first crack at enforcement--did not affect the jurisdictionality question (although it could affect whether a provision is mandatory.

Finally, it is worth noting that the list of non-jurisdictional claim-processing rules and preconditions to relief includes Arbaugh's numerosity requirement. I would have said that this is neither, but a merits rule--the scope of the statute and who is covered by it. I am not sure what to make of this conflation. But I am most interested in the merits/jurisdiction line, so it is worth following.

Posted by Howard Wasserman on June 3, 2019 at 01:27 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


It's interesting how superficially the Court attaches the "mandatory" moniker to nonjurisdictional rules. The nonjurisdictional holding is clearly correct based on precedent. But that holding does not dictate what effects the exhaustion requirement has. The Court just says it's "mandatory," which means, I gather, that (1) it can be forfeited and (2) if it is forfeited, a district court has no discretion to enforce the requirement despite the forfeiture. But the Court engages in no analysis as to why that is the case for the exhaustion requirement (and I see appreciable arguments to the contrary). I worry that in the Court's haste to do away with "drive-by jurisdiction" rulings, the Court is creating a new species of "drive-by mandatory" rulings.

Posted by: Scott Dodson | Jun 3, 2019 4:11:28 PM

Interesting and important. Just worth to note, that not only Congress may dictates whether jurisdictional or not, but, I quote:

In addition,the Court has stated it would treat a requirement as“jurisdictional” when “a long line of [Supreme] Cour[t]decisions left undisturbed by Congress” attached a jurisdictional label to the prescription.

End of quotation:

What bothers me here, is the lack of any need for any concrete inquiry from part of the court, about the motives or reasons for any delay in raising such objections. One should also consider whether good faith is involved. Whether a reasonable mistake occurred. Maybe it was beyond the control of one party. Didn't know, couldn't know about. Maybe fraud of some sort. Not knowing facts and so forth...

But nothing of that sort. As if, one litigant needs to shoot, and he has one shot, can't miss.And right after that, nothing matters anymore.


Posted by: El roam | Jun 3, 2019 2:44:48 PM

The comments to this entry are closed.