Not long ago, two D.C. Circuit decisions reminded us not to lean too hard on jurisdictional truisms (e.g., “jurisdiction can’t be waived”), which, though seemingly inviolate, do have exceptions. We described the decisions here.
Well, the Court has issued yet another reminder—with Judges Katsas and Randolph splitting sharply, and at epic length, over whether a particular jurisdictional truism applies. The truism at issue in the new case, Mowrer v. DOT (No. 19-5321, Sept. 24, 2021), is that jurisdictional issues must be decided before reaching the merits. The question is whether that truism applies to jurisdictional questions grounded in a statute, or only to those grounded in the Constitution.
Judge Katsas, concurring in support of his own opinion for the Court, would have held that there is no difference: statutory jurisdictional questions and constitutional questions alike must be decided first. Judge Randolph, by contrast, would have held that only constitutional questions must be decided first. Otherwise, he points out, you wind up with odd rulings like Mowrer itself, in which Katsas (joined by Judge Wilkins) held that the United States waived the immunity of the agency at issue (and thus the Court had jurisdiction), but that, on the merits, the statute did not apply to the agency in the first place.
The opinions are scholarly and immaculately argued. Both judges pull out all the stops, tracing the history of the law of sovereign immunity and jurisdiction back to Blackstone and beyond. At one point, Judge Randolph complains that Judge Katsas begins his historical account of the common law only in 1765 with Blackstone, when he should have gone back to the thirteenth century with Bracton. In the process, the two judges identify a square circuit split and two splits within D.C. Circuit precedent, and then clash over which of the two is on the right side of those splits.
All of which would make one think that this case has legs—either for en banc review, even in the notoriously stingy D.C. Circuit, or for certiorari. But whatever happens, Mowrer is yet another warning that no matter how cut-and-dried a jurisdictional principle may seem in theory, in application it can turn into a real mess.