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Don’t lean too hard on jurisdictional truisms

Two recent decisions of the D.C. Circuit provide reminders that even jurisdictional truisms are not absolute.

Truism #1:  If Congress says something is jurisdictional, it’s jurisdictional.  This familiar principle has common-sense appeal.  “If the Legislature clearly states that a threshold limitation on a statute’s scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue.”  Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006).  Seems straightforward enough.

But the limits of the maxim were exposed in Cause of Action Institute v. OMB (No. 20-5006, Aug. 20, 2021), which addressed the Freedom of Information Act’s grant of “jurisdiction to enjoin the agency from withholding agency records.”  5 U.S.C. § 552(a)(4)(B).  The litigants wanted the court simply to decide the substantive question whether certain information (Internet browsing histories) was an “agency record” subject to a FOIA request.  The D.C. Circuit, however, insisted first on deciding whether that question was jurisdictional because the statute spoke in terms of jurisdiction.

The answer was no.  According to the court, the provision merely “confers upon courts the power to order a particular remedy”—namely, an injunction.  Slip Op. 5.  Here the court relied on Steel Co. v. Citizens for Better Environment, 523 U.S. 83 (1998), which famously lamented that jurisdiction is “a word of many, too many, meanings.”  Id. at 90 (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C. Cir. 1996)).  As Steel Co. explained, “it is ‘commonplace’ for the term “jurisdiction” to be used in the sense of “specifying the remedial powers of the court.”  Slip Op. 5 (quoting 523 U.S. at 90).  Likewise, the FOIA “jurisdiction” provision went only that far.  Slip Op. 5-6.

Thus, the word “jurisdiction” in a statute, though necessary to implicate subject matter jurisdiction, was once again not sufficient to do so.  “Whether requested documents are ‘agency records’ goes to the merits of the dispute,” the Court concluded, “not the court’s subject matter jurisdiction.”  Slip Op. 6.  (On the merits, the court held that agency Internet browsing records are not “agency records” discoverable under FOIA.  Id. at 13.)

Truism #2:  Jurisdiction can’t be waived.  This proposition is even more well-worn.  Time and again, we’re told that “subject-matter jurisdiction, because it involves a court’s power to hear a case, can never be forfeited or waived.”  United States v. Cotton, 535 U.S. 625, 630 (2002). 

But what about after the case itself is over?  Even then, a new D.C. Circuit decision reminds us, Rule 60 provides only a very narrow opening for challenging a judgment as “void” thanks to a jurisdictional defect.  No. 20-5085, Lee Memorial Hosp. v. Becerra (Aug. 20, 2021).  In that situation, courts “generally have reserved relief only for the exceptional case in which the court that rendered judgment lacked even an ‘arguable basis’ for jurisdiction.”  Id. (quoting United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260, 269–70 (2010)).

But that “arguable” basis was satisfied in Lee Memorial in part because of a jurisdictional argument that the plaintiffs “themselves advanced and urged our court to accept.”  Slip Op. 10.  After that, the ruling could not be undone.  It was implicitly waived because the plaintiffs waited for more than a year after losing on appeal to decide that jurisdiction was lacking after all.  By then it was too late.

Our takeaway from Cause of Action Institute and Lee Memorial?  Be careful about relying too heavily even on hardy jurisdictional axioms.