JURISDICTIONAL IDEALISM AND POSITIVISM. - Free Online Library (2024)

TABLE OF CONTENTSINTRODUCTION. 1415I. THE QUESTION OF JURISDICTION. 1419 A. The Question and Why It Matters. 1419 B. The Current Approach. 1422II. IDEALISM OR POSFUVISM?. 1426 A. Idealism and Its Flaws. 1426 B. Positivism and Its Flaws. 1431III. IDEALISM AND POSITDTISM. 1437 A. The Approach Explained. 1437 B. The Approach Applied. 1440CONCLUSION. 1446

INTRODUCTION

On December 3, 2008, the Supreme Court gathered for oral argumentin Haywood v. Drown. (1) A key issue in the case was whether aparticular statute was "jurisdictional," that is, whether itdefined the jurisdiction of a court or rather provided substantive lawto apply after the court had obtained jurisdiction. (2) About sixminutes into the argument, Chief Justice John Roberts suggested thatjurisdictionality can sometimes be discerned from the "look"of the statute. As he put it:

[A]t some point something starts to look jurisdictional, which is,look, we're not going to hear your case at all. In other areas, even ifthey call it jurisdictional, it really doesn't seem that way, such as,well, you've got to give this much notice or you've got to--you know,maybe those things aren't really jurisdictional. But saying you can'tbring the case at all strikes me as really jurisdictional. (3)

But then, a bit later in the argument, Justice Samuel Alitosuggested a different test for jurisdictionality: "Isn'tjurisdiction whatever the legislature says it is? Do you think there issome sort of--you know, a Platonic ideal of jurisdiction versusnonjurisdiction, and that's what we apply here?" (4)

These two statements frame a current debate over subject matterjurisdiction in the federal courts. On one side are those we might callthe "jurisdictional idealists." The idealists believe thatthere is a "Platonic ideal" of jurisdiction such that somelaws will "look jurisdictional" and others will not, (5) Theidealist view is reminiscent of a quip often attributed to AbrahamLincoln: "If I should call a sheep's tail a leg, how many legswould it have? Four, because calling a tail a leg would not make itso." (6) Idealists can tell the difference between jurisdiction andnonjurisdiction, regardless of what you call it. (7)

Illustrative of the idealist approach is a new and provocativearticle by Professor Scott Dodson, a long-time scholar of federaljurisdiction. (8) In Dodson's view, jurisdiction has an"inherent identity" (9) that "[n]either Congress nor thecourts can change." (10) The essence of jurisdiction is that it"determines forum in a multiforum legal system," and thusCongress may not declare rules jurisdictional if they do not pertain toforum. (11) Dodson's approach leads to some surprising conclusions,such as the law of standing being non-jurisdictional. (12) Though wehave long called standing jurisdictional, (13) Dodson's articleargues (as Lincoln might have) that calling it jurisdictional does notmake it so. (14)

In contrast to the idealists are those we might call the"jurisdictional positivists." (15) The positivists believethat jurisdiction is "whatever the legislature says it is."(16) Congress has the power to create the lower federal courts, and ifit wants to define their jurisdiction in odd ways, it is free to doso--just as all of us are free to call a tail a leg if it serves ourpurposes. (17)

The positivist approach is best illustrated by modern Supreme Courtjurisprudence. At present, the Court will deem a statute jurisdictionalif "Congress has 'clearly state[d]' that the rule isjurisdictional"--regardless of whether the statute has an inherentconnection to forum. (18) If Congress has not made such a statement,however, "courts should treat the restriction as nonjurisdictionalin character." (19) Scholars have generally lauded the Court'spositivist stance, (20) though Professor Erin Morrow Hawley has recentlycriticized it as unnecessary. (21)

This Article critiques the idealist and positivist approaches.Although idealism properly recognizes that there is a widely sharedunderstanding of jurisdiction, (22) it fails to acknowledge thecongressional prerogative to depart from these widely sharedunderstandings if it desires. (23) Today's sheep, it is true, onlyhave four legs, but the path of evolution may one day give them five.Our Platonic ideal of a sheep, as with jurisdiction, can never bepermanent; it is always subject to change at the hands of a higherpower.

The positivist approach is also flawed. Although it appropriatelyrecognizes Congress's preeminent authority to define federaljurisdiction, (24) it fails to account for the fact that"[j]urisdiction... is a word of many, too many, meanings."(25) Congress has used the word in a multitude of ways and contexts,many of which are almost certainly nonjurisdictional. (26) To declarethat the word "jurisdiction" will always render a statutejurisdictional is like Noah Webster declaring that the word"bay" always refers to a body of water and never refers tohorse's coloring. (27) A dictionary writer's job, much likethat of the Supreme Court's, is to discern from the words spokenwhat is truly meant, not to declare by fiat what they shall meanhenceforth. (28)

If neither idealism nor positivism is the answer, what is? In thisArticle, I argue that the answer is idealism and positivism. Under thecombined approach I propose, a court would discern a statute'sjurisdictionality by focusing on the statutory text (a positivistapproach) in light of traditional conceptions of jurisdictionality (anidealist approach). For example, if Congress uses the word"jurisdiction" to define the remedial powers of districtcourts (for example, "district courts shall have jurisdiction toenjoin violations of this Act"), courts should not automaticallyconclude that the statute is jurisdictional simply because the j-word ispresent. Rather, courts should do what the clear statement rulecurrently prohibits them from doing: determine whether, in light ofjurisdiction's traditional attributes, Congress was using the wordin the traditional sense. (29) Of course, the downside of this approachis that it might deny Congress the opportunity to wield itsjurisdictional powers in uncommon ways. This is possible, but not onlyare these instances likely to be rare, Congress can likely overcome thisby making its jurisdictional choices more explicit than usual. In thissense, the solution to the current problem is not to abolish the clearstatement rule, but to reform it.

This Article unfolds as follows. Part I provides a briefexplanation of the current law, including the importance of thejurisdictional label and how federal courts determine whether to affixit to a particular statute. Part II presents the idealist and positivistapproaches and explains why neither approach, on its own, is sufficient.Part III then offers a combined approach and explains why that approach,when used with a modified clear statement rule, is superior to thealternatives. Part III next applies that new approach to an issuecurrently splitting the circuits. A short conclusion follows.

I. THE QUESTION OF JURISDICTION

Before one can assess the merits of jurisdictional idealism andpositivism, one must first understand how this question arises, thestakes underlying it, and how the Supreme Court has answered it inrecent years. This Part does that by first explaining the question ofjurisdiction and its importance, and then explaining how the SupremeCourt currently answers the question.

A. The Question and Why It Matters

The following scenario arises frequently in federal courts: aplaintiff files a lawsuit and the defendant, at some point, points out adefect in the suit. The appropriate judicial response to thedefendant's argument will depend on the nature of the defect. Forinstance, if the defect is substantive (for example, the plaintiff wascontributorily negligent), (30) the court will ordinarily dismiss thesuit with prejudice--but only if the defendant raised the defect at anappropriate time and in an appropriate way. (13) If the defendant failedto do so, the court will usually ignore the defect and allow the suit toproceed. (32)

If the defect is not substantive, it might be procedural--such asthe plaintiffs failure to file a document by a particular deadline. (33)When a defect is procedural, the court will usually impose someconsequences on the plaintiff but not dismiss the suit. (34) Indeed, inthese situations, federal courts generally have discretion to forgivesuch miscues altogether, provided the plaintiff has an innocentexplanation for the error. (35) As with substantive defects, however, itis important that the defendant raise it at the appropriate time and inthe appropriate manner. If the defendant fails to do this, he will havewaived his right to challenge it. (36)

If a defect is not substantive or procedural, it might bejurisdictional. For instance, if the plaintiff is seeking relief solelyunder state law but is a citizen of the same state as the defendant, thefederal court will probably lack subject matter jurisdiction. (37) Thecourt's treatment of jurisdictional defects, however, differs fromits treatment of other defects in four ways. First, the defendant canraise the defect at any time during the litigation, even for the firsttime on appeal. Thus, jurisdictional defects are never waived orforfeited. (38) Second, even if the defendant never raises the defect,the court is obliged to affirmatively look for a defect on its own and,if the court finds one, dismiss the suit sua sponte. (39) Third, unlikeprocedural defects, the court can never overlook a jurisdictionaldefect, even if the plaintiff is blameless in the matter. Jurisdictionallaws, the saying goes, are "inflexible" and must be strictlyapplied. (40) Fourth and finally, the court must dismiss the casewithout prejudice, thus allowing the plaintiff to refile the suit in acourt with jurisdiction. (41)

These defects, and the different judicial responses thereto, areclear enough. What is far less clear is whether a particular defect issubstantive, procedural, or jurisdictional. Statutory provisions rarelycome with labels, and federal courts are thus left to discern, as bestas they can, whether the law that was violated was jurisdictional.Sometimes the answer is easy: everyone knows that 28 U.S.C. [section]1331 (the federal question statute) contains only jurisdictional law.(42) But sometimes the question is harder.

Consider the issue presented in Arbaugh v.Y&H Corp. (41) Inthat case, a plaintiff sued her former employer for workplacediscrimination in violation of Title VII (a federal statute) and won a$40,000 jury verdict. (44) Soon after trial, however, the employerdiscovered that, although Title VII prohibits employers from behaving ashe did, a separate section of the statute defines "employer"as a company having "fifteen or more employees." (45) Becausehe had fewer than fifteen employees, he argued that the lower courtnever had jurisdiction over the suit and must vacate the judgment. (46)Of course, the employer at this point had to argue that the number ofemployees was a jurisdictional matter; if it pertained to the merits, hewould have forfeited this argument by not raising it earlier. (47)

So what is a court to do in this situation? That is, how should thecourt determine whether Title VII's employee-numerosity requirementdefines the court's jurisdiction or instead defines matters ofsubstance or procedure? It is to that matter that this Part now turns.

B. The Current Approach

The Supreme Court's current approach to jurisdictionalitystems from 2006. Before that time, the Court had been--by its ownadmission--"less than meticulous" in its use of the term"jurisdiction." (48) It had sometimes used the term to referto "claim-processing rules" (in other words, proceduralrules), which are not "truly jurisdictional." (49) Thus, theCourt endeavored "to 'bring some discipline' to the useof the term 'jurisdictional.'" (50)

The discipline came in the form of "a 'readilyadministrable bright line' for determining whether to classify astatutory limitation as jurisdictional." (51) The "brightline" rule adopted at that time operates as follows:

If the Legislature clearly states that a threshold limitation on astatute's scope shall count as jurisdictional, then courts andlitigants will be duly instructed and will not be left to wrestle withthe issue. But when Congress does not rank a statutory limitation oncoverage as jurisdictional, courts should treat the restriction asnonjurisdictional in character. (52)

The Court's approach--often referred to as the "clearstatement rule"--has been widely praised. (53) And perhaps withgood reason, for who doesn't like clarity? Nonetheless, it is worthnoting here an oddity about the rule that this Article will return tolater: although the Court endeavored to discipline itself, it actuallychose a rule that disciplines Congress as well. And it is not at allclear that the Court is entitled to discipline Congress in this way. Asan interpreter of statutes, the federal judiciary's task is todiscern the meaning of the words chosen by Congress--not toaffirmatively dictate to Congress what its chosen words mean. (54)

The wisdom of the rule aside, the Court first applied its newapproach in Arbaugh v. Y & H Corp., the Title VII case mentionedabove in which the defendant argued that the court did not havejurisdiction because he did not have "fifteen or moreemployees." (55) Applying its clear statement test, the Court firstobserved that "Congress could make the employee-numerosityrequirement 'jurisdictional,' just as it has made anamount-in-controversy threshold an ingredient of subject-matterjurisdiction... under 28 U.S.C. [section] 1332." (56) Buttellingly, Congress did not declare the provision jurisdictional.Rather, "the 15-employee threshold appears in a [definitionalsection] that 'does not speak in jurisdictional terms or refer inany way to the jurisdiction of the district courts.'" (57)Given this, the Court concluded that the numerosity requirement "isan element of a plaintiff's claim for relief, not a jurisdictionalissue." (58)

Since adopting the clear statement rule in 2006, the Court has feltthe need to soften it a bit. Thus, while the search for a clearstatement (if any) is still the centerpiece of the analysis, the Courtdoes not demand that Congress "incant magic words" to make itsjurisdictional preferences known. (59) As the Court has explained,"context, including th[e] Court's interpretation of similarprovisions in many years past, is relevant." (60) Thus, when a"long line" of cases "has treated a similar requirementas 'jurisdictional,'" the Court presumes that"Congress intended to follow that course." (61)

Bowles v. Russell illustrates this modified approach. (62) Bowlesconcerned a notice of appeal that the would-be appellant, Keith Bowles,filed two days late. (63) Bowles filed the notice late not because hewas asleep at the switch, but because the district court erroneouslygave him the wrong deadline. (64) Bowles thus sought, on equitablegrounds, relief for the missed deadline. (65) Such relief is common inlitigation generally, (66) but not if a deadline is jurisdictional.Jurisdictional requirements, as noted above, are strictly applied. (67)The question before the Court was thus whether the filing of a notice ofappeal by the statutory deadline was jurisdictional. (68) The clearstatement rule seemed to cut in Bowles's favor, because the statutespecifying the appeal deadlines in his case did not speak injurisdictional terms. (69) But that did not affect the result. Rather,what mattered was that the "Court ha[d] long held that the takingof an appeal within the prescribed time is 'mandatory andjurisdictional.'" (70) Put differently, even though that Courtadopted a clear statement rule in Arbaugh, Bowles shows that the Courtdid mean to upset "long held" views that certain statutes arejurisdictional--even if they lack the term jurisdiction.

Bowles makes sense--to a degree. If the Court has long held thatcertain statutes are jurisdictional, it is fair to presume that Congresshas tacitly approved of those decisions by acquiescence. (71) Thus, evenstatutes that are not jurisdictional by their language alone could stillbe jurisdictional under the Arbaugh test because congressionalacquiescence--if long enough and consistent enough--could amount to atype of congressional "clear statement." (72) Yet thisapproach only works when Congress, having not spoken in jurisdictionalterms, acquiesces to the judicial use of the jurisdictional label. Amore problematic use of this approach--and one the Court has notapparently contemplated--arises when Congress uses jurisdictional termsto describe a rule that the courts have long held is not jurisdictional.This might seem like an easy case; a court need only followCongress's "clear statement." (73) As we shall see,however, the matter is not that simple.

In sum, the jurisdictional label has significant consequences. Whena statute addresses subject matter jurisdiction, litigants can invokethe statute at any time, the court must evaluate its jurisdiction in theabsence of a motion, apply the statute strictly, and dismiss the suitwithout prejudice. To discern whether a statute deserves thejurisdictional label, the Supreme Court has chosen a "clearstatement rule" that closely tracks the statutory language whilealso allowing congressional acquiescence to precedent to sometimesamount to a clear statement in favor of jurisdiction. (74) With thesematters explained, this Article now considers and critiques twodifferent ways to assess jurisdiction: the idealist and positivistapproaches.

II. Idealism or Positivism?

Whether a particular statute is jurisdictional depends on whatjurisdiction actually is. To jurisdictional idealists, jurisdictionmeans one thing, while to jurisdictional positivists, it means another.In this Part, I explain the idealist and positivist approaches and alsoexplain why each approach is ultimately flawed. The idealist approach,which holds that there is a fixed essence to jurisdiction, is flawedbecause it denies Congress the constitutional authority to controljurisdiction. A positivist approach, which holds that jurisdiction iswhatever Congress clearly states that it is, is also flawed because itignores the many different ways that Congress uses the term"jurisdiction."

A. Idealism and Its Flaws

Jurisdictional idealism, as this Article defines it, holds thatthere is a Platonic ideal of jurisdiction. An idealist would determine alaw's jurisdictionality by comparing it to jurisdiction'sPlatonic ideal. If the two are similar, the law is jurisdictional; ifthey are different, the law is not jurisdictional. Left out of thisanalysis, of course, is Congress. If Congress tried to declare a lawjurisdictional that did not fit within jurisdiction's Platonicideal, it would be ineffectual, much in the way that calling asheep's tail a leg "would not make it so." (75)

Professor Scott Dodson recently expressed an idealist view in hisarticle, Jurisdiction and Its Effects. (76) In Dodson's view, ajurisdictional law is a "boundar[y]" that "determinesforum in a multiforum legal system." (77) Thus, where a lawoperates as a boundary between forums, it is jurisdictional; where itdoes not operate in that way, it is not. To see Dodson's conceptionin practice, consider Arbaugh v. Y& H Corp., the employmentdiscrimination case discussed above. (78) In that case, the Court heldthat Title VII's "fifteen or more employees" requirementwas not jurisdictional because Congress did not clearly state that itwas. (79) In Dodson's view, the Court reached the right result butfor the wrong reason. (80) Instead of considering what Congress clearlystated, the Court should have considered whether the employee-numerosityrequirement operated as a boundary between federal courts and some otherforum. (81) Seeing nothing in the employee-numerosity provision orrelated provisions that looked boundary-ish, Dodson would declare theprovision nonjurisdiction-al. (82)

Casting jurisdiction as a system of boundaries is a usefulframework, but Dodson does not offer it only as a framework; he offersit as a command. (83) That is, he is not just arguing that the law offederal jurisdiction is best understood as a law of boundaries. (84)Rather, he is arguing that jurisdiction's "inherentidentity" (85) is one of boundaries--an identity that"[n]jeither Congress nor the courts can change." (86)Expressing the point in the context of Arbaugh, Dodson states that"it is not true, as the Supreme Court presumed, that Congress couldmake Title VII's employee-numerosity requirement jurisdictionalsimply by calling it so." (87)

Dodson's framework is a useful addition to the literature, buthe falters when he declares it binding on the courts and Congress. Thecentral flaw in jurisdictional idealism is that it overlooksCongress's long-standing power to define federal jurisdiction.Article I, Section 8 grants Congress the power to create the lowerfederal courts, (88) and, as the Supreme Court has recognized, the powerto create these courts carries with it the power to define theirjurisdiction. (89)

Congress must, of course, obey other constitutional dictates indefining federal jurisdiction, (90) but these dictates still leaveCongress extraordinary freedom in defining federal jurisdiction.

Take, for example, federal diversity jurisdiction. Article III,Section 2 permits federal courts to adjudicate "[c]ontroversies...between Citizens of different states." (91) The first Congressinstilled the federal courts with jurisdiction over diverse parties, butimportantly, also required the amount in controversy be greater than$500. (92) No one then or today doubts that the amount in controversyrequirement is jurisdictional, but Dodson's approach seems tosuggest that it is not--not because Congress did not attempt to make itjurisdictional, but that Congress could not have made it jurisdictional.(93) If Congress cannot make the number of employees in a Title VII casejurisdictional, the argument goes, then Congress presumably cannot makethe number of dollars at stake jurisdictional either.

Dodson might respond that the amount in controversy requirementacts as a "boundary" because cases that do not meet therequirement are instead referred to state court for resolution. But thesame thing can be said of the employee-numerosity requirement. (94) Ifthat requirement is jurisdictional, then plaintiffs suing employers withfewer than fifteen employees can simply take their cases to statecourts. Put differently, just as Congress can decide that low-valuediversity claims belong in state courts, it can also decide thatlow-employee Title VII claims belong in state courts as well. The coreproblem with Dodson's claim, therefore, is not necessarily that hehas incorrectly defined jurisdiction as a "boundary," but thathe fails to acknowledge that Congress has a wide-ranging power to drawboundaries.

An additional way to understand this point is to consider what afederal court would do if Congress explicitly declared theemployee-numerosity requirement jurisdictional. That is, suppose thatCongress, dissatisfied with the result in Arbaugh, amended Title VII tostate that "federal district courts shall only have jurisdiction toconsider claims under this Act if the employer accused of violating theAct has fifteen or more employees." If a court were to adoptDodson's view, and find the numerosity requirementnonjuris-dictional, how would it explain its holding? The court couldnot say that the statute is unconstitutional for, as noted above, theConstitution plainly does not prohibit such statutes. (95) Nor could thecourt declare that, as a matter of federal common law, the statutefalters. Federal common law is subject to modification by Congress. (96)The only way to explain its decision would be to hold that, as a matterof natural law, such definitions of jurisdiction are impermissible. Thisis not the place to enter the debate between positivism and natural law,but it is enough to state here that, to the limited extent that naturallaw may have a role in our nation's largely positivist approach tolaw, the role is confined to circ*mstances in which widely held moralconvictions are implicated. In the realm of subject matter jurisdiction,there are no such widely held moral convictions (excepting, perhaps,those held by the occasional, out-of-touch law professor).

Thus, the chief problem with idealism is its incompatibility withour fundamentally positivist system--a system that gives Congress nearplenary control over federal jurisdiction. Dodson might nonethelesscounter that his approach still reserves a role for Congress. Thoughunable to define jurisdiction on its own, Congress, according to Dodson,can "exert some control over the effects of a particularjurisdictional law." (97) Referring to Bowles, (98,) the notice ofappeal case discussed above, (99) Dodson explains that, even if Congressis stuck with the jurisdictional label there, it could nonetheless"make the deadline to file a notice of appeal, or even the noticeof appeal itself, subject to the principles of equity." (100) 1agree that Congress could do this, just as it could also makejurisdictional laws subject to waiver or forfeiture, not subject to suasponte inquiry, or impose any other effect commonly attached tojurisdictional laws. (101)

Dodson's allowance for congressional control overjurisdictional effects addresses idealism's incompatibility withcongressional power, but in the process, it creates a new problem: itrenders jurisdiction functionally irrelevant. Take for instance thecommon rule that jurisdictional objections can never be forfeited. (102)Dodson believes that Congress is free to change this; in other words,that it is free to make jurisdictional objections forfeitable if notraised at a particular time or in a particular way. (103) He isundoubtedly correct, but Congress's power in this regard extendsfar beyond the realm of jurisdiction. If Congress decided to, forexample, it could allow defendants to raise statute of limitationsdefenses for the first time on appeal. (104) But if Congress can apply ajurisdictional effect to a nonjurisdictional rule, what is the point offorbidding Congress from declaring something jurisdictional? Congresscan get exactly what it wants simply by speaking in terms of effects, aslong as it omits the magic word "jurisdictional."

The upshot of such an approach is that the law of jurisdiction willbe replaced with the law of effects. There is nothing necessarily wrongwith that as a normative matter (some scholars believe that is theproper course), (105) but it is contrary to Dodson's overallargument--that the Court's current positivist stance is"incoherent" because it "renders [jurisdiction]irrelevant except as a proxy for a defined set of effects." (106)Put differently, although Dodson's position will prevent Congressfrom redefining jurisdiction, (107) it will do nothing to preventCongress from making jurisdiction irrelevant.

In sum, the idealist position advanced by Professor Dodson fails toaccount for Congress's dominant role in defining federal subjectmatter jurisdiction without also rendering the concept of jurisdictionirrelevant. Idealist insights ought not to be jettisoned entirely,however, as illustrated by the discussion in Part III .A. For now, thisArticle turns to an assessment of jurisdictional positivism.

B. Positivism and Its Flaws

Unlike idealists, jurisdictional positivists eschew any"essential concept of jurisdiction" (108) and instead believethat jurisdiction is "whatever the legislature says it is."(109) The biggest star in the positivist universe is, at present, theSupreme Court. As noted above, the Supreme Court adheres to a"clear statement" approach that works as follows:

If the Legislature clearly states that a threshold limitation on astatute's scope shall count as jurisdictional, then courts andlitigants will be duly instructed and will not be left to wrestle withthe issue. But when Congress does not rank a statutory limitation oncoverage as jurisdictional, courts should treat the restriction asnonjurisdictional in character. (110)

Since adopting the clear statement rule in 2006, the Court hasbacked off of it a bit. In particular, it considers "context,including th[e] Court's interpretation of similar provisions inmany years past." (111) Thus, when Congress has left undisturbed a"long line" of cases treating a particular "requirementas 'jurisdictional,'" the Court "presume[s] thatCongress intended to follow that course." (112)

Given the discussion above describing Congress's broad powersover federal jurisdiction, it would seem hard to challengejurisdictional positivism. (113) If Congress clearly states that aparticular requirement is jurisdictional, and the declaration isconstitutional, on what ground could the Court ever ignoreCongress's declaration?

The problem with the Court's approach arises fromCongress's varied use of the term "jurisdiction." Asearch of Westlaw turns up 7022 instances in which Congress has used theword "jurisdiction." (114) Some statutes predicate thedistrict courts' "jurisdiction" on whether a case"aris[es] under" (115) or is "brought under" (116) aparticular statute, while other statutes predicate jurisdiction onwhether the plaintiff is seeking an "injunction" (117) orinstead seeking "appropriate relief." (118) Still othersappear to make jurisdiction contingent upon whether a claim is"founded upon" certain types of contracts, (119) or whether aplaintiff is seeking relief for an injury "caused by a vessel onnavigable waters." (120) And yet other statutes use"jurisdiction" to refer to a political unit (for example,"State or other local jurisdiction" (121)) or judicial powerover a party (for example, "jurisdiction over such person"(122)). It is a curious rule that declares that seven thousand usages ofthe same word, spread out over hundreds of years, all undoubtedly meanthe same thing.

For an example of Congress using the word "jurisdiction"in a nonjurisdictional sense, consider the Emergency Planning andCommunity Right-To-Know Act of 1986. (123) Section 11046(a) of thestatute requires companies handling hazardous chemicals to inform thegovernment of their activities so persons interacting with the companiesmay gauge their risk of harm. (124) In 1995, a group known as Citizensfor a Better Environment learned that Steel Company, which was subjectto the Act, had failed to submit its inventory forms for the pastseveral years. (125) Realizing its mistake, Steel Company quickly filedthe necessary forms. (126) Nonetheless, Citizens for a BetterEnvironment brought suit, alleging that the company's prior failureto submit the forms constituted a violation of [section] 11046(a). (127)Steel Company disagreed, arguing that, now that it had filed theappropriate forms, there was no violation upon which it could be sued.(128)

The issue for the Supreme Court in Steel Co. v. Citizens for aBetter Environment was whether [section] 11046(a)--which the Courtreferred to as "subsection (a)"--permitted suits for prior, asopposed to ongoing, violations of the Act. (129) This would seem like amerits issue, but it actually came up in the context of subject matterjurisdiction because of the content of subsection (c), which stated:"The district court shall have jurisdiction in actions broughtunder subsection (a)... to enforce [the Act] and to impose any civilpenalty provided for [in the Act]." (130)

Subsection (c) quite plainly uses the word"jurisdiction," and it plainly authorizes district courts totake jurisdiction over suits "brought under subsection(a)."' (131) Thus, if the clear statement rule is to be takenseriously, a court's jurisdiction will depend on an interpretationof subsection (a). If a suit is brought within the terms of subsection(a), the court has jurisdiction; if a suit is not brought within theterms of subsection (a), the court has no jurisdiction. To determine itsjurisdiction, therefore, a court must determine what subsection (a)requires. (132)

Though the clear statement rule suggests that subsection (a) isjurisdictional, a more nuanced analysis would suggest otherwise.Subsection (a), by all accounts, imposes substantive obligations oncompanies. (133) To wit, the provision requires companies to reportcertain chemicals in certain circ*mstances, but allows them not toreport other chemicals in other circ*mstances. (134) Thus, if subsection(a) is jurisdictional, two odd consequences would follow. First, federalcourts would be required to conduct a sua sponte inquiry into the meritsof the case, a task fundamentally at odds with the adversarial model ofAmerican litigation. (135) Second, if federal courts found theplaintiff's case to fail on the merits, it would be required todismiss the suit for lack of jurisdiction--which, because it would be adismissal without prejudice, would allow the plaintiff to refile instate court without any fear of res judicata. (136) Thus, if subsection(a) is treated as jurisdictional, plaintiffs will get two bites at theapple, one in state court and one in federal court. This makes littlesense and is good reason to conclude that Congress did not intend tomake subsection (a) jurisdictional.

Indeed, this is exactly what the Supreme Court did--though not inso many words. Writing for the Court before adopting the clear statementrule in 2006, Justice Scalia explained that "[i]t is unreasonableto read [subsection (c)] as making all the elements of the cause ofaction under subsection (a) jurisdictional, rather than as merelyspecifying the remedial powers of the court, viz., to enforce the [Act]and to impose civil penalties." (137) Addressing the import of theword jurisdiction in subsection (c), Justice Scalia continued:'"[j]urisdiction,' it has been observed, 'is a wordof many, too many, meanings,' and it is commonplace for the term tobe used as it evidently was here," in other words, to designate aremedy. (138) Thus, prior to the Court's adoption of the clearstatement rule in 2006, the Court was well aware that Congress oftenused the word jurisdiction to address matters that it did not intend tomake jurisdictional. (139) By adopting the clear statement rule in 2006,however, the Court abruptly, and without explanation, cast off thisprior observation. (140)

Defenders of positivism and the clear statement rule mightnonetheless push back against this argument in two ways. First,defenders might argue that this attack on the clear statement rule isreally just an attack on textualism as a form of statutoryinterpretation. Textualism, of course, will sometimes yield odd results,but the interpretive method is hardly proven deficient by these resultsalone. (141) One must also consider the benefits of such anapproach--something that this Section has not done. This pushback wouldhave some traction if this Section staked out an antitextualistposition. But it has not.

Textualism focuses on the semantic meaning of statutory text, butit has never dismissed context as a tool for discerning that semanticmeaning. (142) When a word is subject to multiple meanings, textualismdoes not advocate picking the most common meaning and applying thatmeaning to all uses of the word. Rather, textualism accepts that contextmay be used to help discern the meaning of a word. (143) As JusticeScalia illustrated the idea, "If you tell me, T took the boat outon the bay,' I understand 'bay' to mean one thing; if youtell me, 'I put the saddle on the bay,' I understand it tomean something else." (144) Thus, the criticisms of the clearstatement rule made here should resonate with textualists andpurposvists alike. The criticisms are simply based on the observationthat the context in which Congress uses the word"jurisdiction" contains useful information aboutCongress's purpose in using that term.

A second response to these criticisms of the clear statement rulemight be that it throws the baby out with the bathwater. That is, oneneed not jettison the entire rule simply to solve the problems that itmight create in cases like Steel Co. (145) Just as the Court lookedbeyond the clear text in Bowles (in which a statute was heldjurisdictional even though the statute did not contain the word"jurisdiction"), (146) the argument goes, the Court could alsolook beyond the clear text in cases like Steel Co. (in which a statutethat contains the word "jurisdiction" could be heldnonjurisdictional). (147) The problem with this argument, however, isthat it effectively guts the positivist's clear statement rule. Ifthe absence of the word "jurisdiction" does not make somethingnonjurisdictional (as in Bowles), (148) and the presence of the word"jurisdiction" does not make something jurisdictional (as inSteel Co.), (149) what is the point of the clear statement rule? It isbetter to abandon the rule altogether--or, as we shall see next, reformit.

In sum, neither idealism nor positivism will lead to normativelydesirable jurisdictional decisions. Idealism inappropriately diminishesCongress's prerogative to control jurisdiction, and positivisminappropriately diminishes commonsense interpretive tools that could beuseful in discerning jurisdiction. What is needed is an approach tojurisdiction that lies somewhere in between--an approach that is bothidealist and positivist.

III. IDEALISM AND POSITIVISM

As with many either/or dilemmas, the best answer to theidealist/positivist dilemma is... both. By combining the two approachesinto one, the benefits of both can be harnessed without giving effect toany of their flaws. Section A below explains and defends theidealist-positivist approach, and Section B applies it to an issuecurrently splitting the circuit courts.

A. The Approach Explained

The best way to determine whether a particular statutory provisionis jurisdictional is to evaluate Congress's chosen words (apositivist approach) in light of the traditional characteristics ofjurisdiction (an idealist approach). This combined approach makes use ofpositivism's strong suit, namely its recognition that Congress hasthe prerogative to specify federal jurisdiction, as well asidealism's strong suit, namely its willingness to give weight tojurisdiction's traditional characteristics. At the same time, thecombined approach also keeps in check the flaws of each individualapproach. When idealism would tie Congress's hands in definingjurisdiction, positivism makes sure to give effect to congressionalchoices. Similarly, when the clear statement rule places dispositiveweight on the word "jurisdiction," idealism requires courts tolook more broadly at context to determine if jurisdiction makes anysense.

Part II.B, above, in its critique of the positivist approach,provided a partial illustration of this approach. (150) That Sectionused a statute containing the word "jurisdiction" to arguethat Congress did not likely intend to make the statute jurisdictionaland that, as a result, the clear statement rule would lead to incorrectresults. (151) To show that Congress did not likely intend to make therule jurisdictional, Part II.B invoked two common characteristics ofsubject matter jurisdiction, namely (1) the court's obligation toconduct a sua sponte inquiry into the existence of jurisdiction, (152)and (2) the obligation to dismiss suits lacking jurisdiction withoutprejudice. (153) If the statute there was treated as jurisdictional, itwould have led to the extraordinarily odd circ*mstance of a courtconducting its own sua sponte investigation of the merits of a lawsuitand, if the merits were deficient, allowing the plaintiff to retry theentire case in state court. (154) A far better interpretation of thestatute, which is what the Court chose in the end, treated the word"jurisdiction" as an effort to "specify [] the remedialpowers of the court." (155)

This illustration, however, gives rise to a conundrum: What isCongress to do if it sincerely desires an unorthodox jurisdictionalresult? The combined approach would seem to put this option nearly offlimits because every unorthodox attempt to make something jurisdictionalwould likely be reinterpreted to render it an orthodox jurisdictionalrule. For this reason, the combined approach should contain a type ofclear statement rule, but importantly, not a rule that operated like theone just criticized in Part II.B.

The clear statement rule proposed here would not hinge on the mereuse of the word "jurisdiction." After all, because"[j]urisdiction ... is a word of many, too many, meanings,"(156) the word itself will often fail to evince Congress'sjurisdictional desires. A better clear statement rule would--in cases inwhich jurisdiction would be unorthodox--look for various"jurisdictional indicators." Consider, for example, thestatute at issue in Steel Co.: "The district court shall havejurisdiction in actions brought under subsection (a)... to enforce the[Act] and to impose any civil penalty provided for [in the Act]."(157)

As explained above, this provision should not be interpreted asjurisdictional because it would be quite odd for Congress to requirecourts to make a sua sponte inquiry into the merits of a claim and, ifthe merits were found lacking, to dismiss the suit without prejudice.(158) If, however, Congress truly desired that the statute bejurisdictional, it could address these factors by rewriting the statuteas follows:

(c) The district court shall have subject matter jurisdiction inactions brought under subsection (a) only if the court determines, onits own inquiry or upon the presentation of any party, that each andevery element of subsection (a) is satisfied. If the court finds anelement of subsection (a) unproven, it shall dismiss the suit withoutprejudice.

This rewritten statute better communicates Congress'sjurisdictional desires (to the extent it might have any). To be clear,this version of the clear statement rule does not require Congress toalways speak with such clarity; it only requires Congress to do so whenit wishes to make unorthodox jurisdictional choices.

There are two criticisms one might lodge against this reformedversion of the clear statement rule. First, one might argue thatrequiring extra indicators of jurisdiction reeks of irony. Earlier, thisArticle argued that the clear statement rule is unworkable. (159) Butnow it is arguing that that rule should be replaced with, in effect, thereally clear clear statement rule. But the irony here is not nearly asrich as it might seem. Because "[j]urisdiction... is a word ofmany, too many, meanings," a rule that focuses on the wordjurisdiction alone was hardly designed to promote clarity. (160) Thus,the rule proposed here is not an ironic replacement for the Court'sclear statement rule, but rather, it is the first clear statement rulethat actually promotes clarity.

Second, one might argue that requiring Congress to add extra"jurisdictional indicators" for unorthodox jurisdictionalchoices may, over time, create a new baseline against which the Courtwill measure jurisdiction. For example, one could imagine litigantscontesting the jurisdictionality of a plainly jurisdictional statutelike 28 U.S.C. [section] 1331 by arguing that it contains no extra"jurisdictional indicators"--indicators that Congress knowshow to use if it wants to. (161) This criticism falters for two reasons.First, a court's search for extra indicators of jurisdiction shouldbe limited to those cases in which jurisdiction would be unorthodox.These situations, by definition, will be uncommon. Second, inasmuch as anew baseline develops, it will be the natural--and preferable--result ofacknowledging that the word "jurisdiction," on its own,retains ambiguity. When a word is susceptible to many meanings, all whoencounter the word will necessarily look for extra informationindicating which meaning the speaker has attached to the word. (162) Tothe extent these many meanings persist, people will frequently searchfor indicators of meaning--so frequently that a new baseline fordiscerning meaning will develop. Thus, in the unlikely circ*mstance thata new baseline develops with regard to jurisdictional statements, itwill likely be because a new baseline was necessary. (163)

With the hope that the combined approach has been adequatelyexplained and defended, the Article now illustrates the approach.

B. The Approach Applied

As explained in Section A of this Part, the best way to measure thejurisdictionality of a statute is to evaluate Congress's chosenwords (a positivist approach) in light of the traditionalcharacteristics of jurisdiction (an idealist approach). This Sectionapplies that approach to a circuit split involving the jurisdictionalityof the "final agency action" requirement (164) in theAdministrative Procedure Act (APA). (165)

To understand the split, it is first necessary to understand theAPA and its potential intersection with federal jurisdiction. The APAdoes many things but chief among them is waive the federalgovernment's sovereign immunity. (166) The federal government, likestate governments, is immune from suit unless it consents to suit bywaiving its immunity. (167) Importantly, sovereign immunity isjurisdictional--meaning that when a sovereign is immune, the federalcourt must dismiss the suit for lack of jurisdiction, not on the merits.(168) Although courts have long considered sovereign immunityjurisdictional, it is telling that statutes addressing immunity (inother words, statutes that enable federal jurisdiction) do not alwayscontain the word "jurisdiction." Instead, these statutorywaivers often simply contain an authorization to bring suit. (169)

Given sovereign immunity's jurisdictional nature, but theusual absence of the word "jurisdiction" in statutory waivers,one can already see the trouble with a clear statement rule. Under itsoriginal iteration, the Court's clear statement rule would declarethese waivers nonjurisdictional because they do not contain a clearstatement of jurisdictionality. (170) This, however, would upsetlongstanding precedent. (171) Seeing problems like this, the Court (aswe have seen) reformed its clear statement rule somewhat in Bowles[upsilon]. Russell. (172) There, the Court limited the effect of Arbaugh(albeit without specifically acknowledging problems created by Arbaugh)by declaring where a "long line" of cases "has treated asimilar requirement as 'jurisdictional,'" a court shouldcontinue to treat the statute as jurisdictional. (173) Bowles was a stepin the right direction, but it falls short of solving the problem. Forexample, what should a court do when there is no "long line ofcases" (174) pointing it in the right direction--such as wherethere is a split among the circuits?

This dilemma brings us to the circuit split over the APA'sfinal agency action requirement. The requirement is contained in 5U.S.C. [section] 704: "Agency action made reviewable by statute andfinal agency action for which there is no other adequate remedy in acourt are subject to judicial review." (175) The purpose of therequirement is to ensure that the federal courts do not evaluate agencyaction until the agency has completed its decision-making process--inother words, until it has reached a "final" decision. (176)The statute is clear on its face that suits challenging nonfinal agencyaction may not proceed, but what is not clear is whether such suitsshould be dismissed for lack of jurisdiction or dismissed on the merits.At present, five circuits treat the requirement as jurisdictional (177)and five do not. (178) Under the Supreme Court's current approach,the requirement would be classified as nonjurisdictional because (1)Congress did not clearly state that the provision was jurisdictional and(2) there does not exist a "long line" of cases"treat[ing] a similar requirement as'jurisdictional.'" (179)

A much better analysis would look at the text in light of commonunderstandings of jurisdiction. The first thing one notices about thetext is that, even though [section] 704 does not contain the wordjurisdiction, it arguably operates as an authorization for suit bystating that final agency action is "subject to judicialreview." (180) Waivers of sovereign immunity, as noted above, oftentake the form of authorizations to bring suit and, because sovereignimmunity is jurisdictional, such authorizations would havejurisdictional implications as well. (181)

However, this is not the only permissible interpretation. Twoarguments could be mounted to the contrary. First, a nearby provision, 5U.S.C. [section] 702, also seems to contain an authorization to sue.Indeed, the text of [section] 702 might be a better candidate for astatutory waiver: "A person suffering legal wrong because of agencyaction... is entitled to judicial review thereof. An action in a courtof the United States seeking relief other than money damages... shallnot be dismissed... on the ground that it is against the UnitedStates." (182)

This section not only appears to authorize suit, it also containsuncommon but revealing language addressing sovereign immunity. Thesecond sentence of that provision, by stating that a suit "shallnot be dismissed... on the ground that it is against the UnitedStates" is the best candidate yet for evidence of statutory waiver.(183) This language is in a different section than the "finalagency action" requirement--which would suggest that therequirement is not jurisdictional. But focusing on how the provisionsare in different statutory sections may be misguided. For one, bothsections--because they both focus on "agency action"--may beinterlocking. (184) For another, in the field of sovereign immunity,criteria far removed from the statutory waiver can be deemed part of thewaiver itself, and thus jurisdictional. (185) Thus, thiscounterargument, though reasonable, is not so strong as to carry theday.

A second counterargument would involve the jurisdictional holdingin Califano v. Sanders. (186) Califano answered the question of whetherthe APA (of which [section] 702 and [section] 704 are a part) "isan independent grant to district courts of subject-matterjurisdiction." (187) The Court held that those provisions were notindependent grants of jurisdiction and that the federal questionstatute-28 U.S.C. [section] 1331-served as the jurisdictional grant forreview of agency actions. (188) On its face, Califano would seem toeasily resolve the circuit split on whether final agency action isjurisdictional. Given that the APA is not an independent grant ofjurisdiction, then the final agency action requirement in [section] 704obviously cannot be jurisdictional. (189) This analysis is a bit toofacile, however. To say that [section] 1331, not the APA, provides agrant of subject matter jurisdiction is not to say that the APA cannotclaw back or otherwise impact jurisdiction. (190) The APA clearlyattempts to waive sovereign immunity and sovereign immunity is, as notedabove, jurisdictional. (191) It is possible to conclude that, although[section] 1331 authorizes district courts to take jurisdiction, it doesnot accomplish the separate and essential jurisdictional task of waivingsovereign immunity. Indeed, even if the Court concluded that the APAdoes not touch on jurisdiction in any way, it would have to walk backits many other statements that a statutory authorization to sue agovernment accomplishes a waiver or abrogation of sovereignimmunity--and thus has jurisdictional implications. (192) Thiscounterargument, like the one before it, is not so strong that it winsthe day.

Given these inconclusive arguments concerning the text of the APA,a further exploration of traditional characteristics of jurisdiction canhelp considerably. One characteristic that would appear especiallyrelevant here is that jurisdictional dismissals are dismissals withoutprejudice. (193) Given this, the question becomes whether a plaintiffwho brings suit before an agency has reached its final decision shouldbe able to come back when the decision is final, or should be foreverbarred from suit. If one believes that Congress wanted the plaintiff tohave a chance to return, that would militate in favor ofjurisdictionality.

On this issue, there are two reasons to think that a nonprejudicialdismissal, and thus a jurisdictional label, makes sense. First, when asuit is filed prior to final agency action, the suit is in a similarposture to an unripe suit. The ripeness requirement, like the finalagency action requirement, ensures that the suit is fit for judicialreview and relief. (194) Importantly, ripeness is jurisdictional; itallows plaintiffs to return to court once their suit is fit forresolution. (195) Second, a suit filed prior to final agency action alsomimics a suit filed before exhaustion of administrative remedies. Theexhaustion of such remedies is not always jurisdictional, (196) butimportantly, the Supreme Court has held it jurisdictional in tort suitsfiled against the federal government--suits that also predicate a waiverof sovereign immunity on whether a demand for relief has been'"finally denied' by th[e] agency." (197) In lightof these two considerations, a jurisdictional characterization wouldseem appropriate.

Another common characteristic of subject matter jurisdiction--itsstrict application--also seems to point toward a jurisdictional labelhere. (198) The strict application prevents federal courts fromexpanding their power by loosely interpreting and applyingjurisdictional rules. (199) A strict application of the final agencyaction requirement makes sense because it prevents courts from invadingthe province of a coordinate branch. Were courts able to developequitable exceptions to the final agency action requirement (as theyroutinely do with nonjurisdictional rules), (200) agencies would besubject to judicial review while in the midst trying to render their owndecisions.

In light of these common jurisdictionalcharacteristics--nonjurisdictional dismissals and strict application ofjurisdictional rules--a jurisdictional label is likely appropriate. Thisconclusion, though contrary to the dictates of the Court's currentclear statement rule, is sensible because it recognizes that"jurisdiction" is more than a word in a vacuum. It is a wordused in the context of widely recognized jurisdictional characteristicsand the statute's connection with sovereign immunity.

CONCLUSION

Congress controls federal jurisdiction but, because it does nothave to live with the ambiguity its statutes create, may be less thanprecise in its use of the term "jurisdiction." Scholars andthe Supreme Court are understandably interested in sorting out theproblems that arise from congressional imprecision, but the propersolution here is not to search for an ideal form of jurisdiction oradopt magic-word requirements. Idealist jurisdiction would deny Congressits constitutional authority, and a positivist magic-word approach wouldignore the way Congress actually uses the word "jurisdiction."Instead, the solution is to listen to Congress. Like all speakers,Congress speaks in a particular context, and context is an essentialpiece of all interpretive regimes. The context that is particularlyrelevant here consists of the commonly accepted characteristics ofjurisdiction, and by keeping these in mind, courts are far more likelyto reach the appropriate jurisdictional result.

JOHN F. PREIS (*)

(*) Professor, University of Richmond School of Law. Special thanksto Jud Campbell, Jessica Erickson, Kevin Walsh, Howard Wasserman, andparticipants at the Third Annual Civil Procedure Workshop at Universityof Arizona School of Law for their thoughts on different aspects of thisArticle. In addition, thank you to Jake Samuelson for expeditiousresearch assistance.

(1.) 556 U.S. 729 (2009).

(2.) Id. at 734-37.

(3.) Transcript of Oral Argument at 8, Haywood, 556 U.S. 729 (No.07-10374).

(4.) Id. at 20-21.

(5.) See, e.g., Scott Dodson, Jurisdiction and Its Effects, 105GEO. L.J. 619, 621-22 (2017).

(6.) See George W. Julian, Lincoln and the Proclamation ofEmancipation, in REMINISCENCES OF ABRAHAM LINCOLN BY DISTINGUISHED MENOF HIS TIME 227, 242 (Allen Thorndike Rice ed., Harper & Bros, new& rev. ed. 1909) (1886) ("[H]e used to liken the case to thatof the boy who, when asked how many legs his calf would have if hecalled its tail a leg, replied, 'Five,' to which the promptresponse was made that calling the tail a leg would not make it aleg.").

(7.) See Dodson, supra note 5, at 637.

(8.) See id.

(9.) See id. at 622.

(10.) Id. at 637.

(11.) Id. at 621-22. Dodson does allow Congress to control theeffects of the jurisdictional label, such as whether jurisdiction issubject to equitable exceptions. See id. at 622, 646.

(12.) Id. at 646-48.

(13.) See, e.g., Steel Co. v. Citizens for a Better Env't, 523U.S. 83,102 (1998); United States v. Hays, 515 U.S. 737, 742 (1995).

(14.) See Dodson, supra note 5, at 647-48 ("But characterizingstanding as jurisdictional causes tensions with sister doctrines derivedfrom Article III, including 'prudential' standing (which somedeem a nonjurisdictional creation of the courts), ripeness (which can,at times, be waived by the parties), and mootness (which containsjudicially created exceptions)." (footnotes omitted)).

(15.) This use of the term "positivist" is likely tostrike legal philosophers as incorrect. In their world, "positivelaw" can issue from any legal institution (whether a legislature orotherwise) that society recognizes as authoritative. See H.L.A. HART,THE CONCEPT OF LAW 100 (2d ed. 1994) (discussing the rule ofrecognition). Nonetheless, perhaps for ease of reference, scholarsstudying the law of federal jurisdiction have adopted the"positivist" descriptor to describe jurisdictional law createdby the legislature (as opposed to the courts). See Dodson, supra note 5,at 631-32 (using the term "positive law" to refer tolegislatively created law); Evan Tsen Lee, The Dubious Concept ofJurisdiction, 54 HASTINGS L.J. 1613, 1629 (2003) (same); Howard M.Wasserman, Jurisdiction and Merits, 80 WASH. L. REV. 643, 691-93 (2005)(same). Thus, at the risk of annoying legal philosophers, but with thegoal of addressing current scholarship in this area, this Article usesthe term "positive law" to refer only to law enacted byCongress.

(16.) Transcript of Oral Argument, supra note 3, at 20-21.

(17.) See Palmore v. United States, 411 U.S. 389, 401 (1973)("Nor, if inferior federal courts were created, was [Congress]required to invest them with all the jurisdiction it was authorized tobestow under Art. III."); Sheldon v. Sill, 49 U.S. (8 How.) 441,449 (1850) ("Congress may withhold from any court of its creationjurisdiction of any of the enumerated controversies [in ArticleIII].").

(18.) See Sebelius v. Auburn Reg'1 Med. Ctr., 568 U.S. 145,153 (2013) (alteration in original) (quoting Arbaugh v. Y & H Corp.,546 U.S. 500, 515 (2006)); see also Arbaugh v. Y & H Corp., 546 U.S.500, 515-16 (2006) ("If the Legislature clearly states that athreshold limitation on a statute's scope shall count asjurisdictional, then courts and litigants will be duly instructed andwill not be left to wrestle with the issue." (footnote omitted)).

(19.) Arbaugh, 546 U.S. at 516.

(20.) See, e.g., Stephen R. Brown, Hearing Congress'sJurisdictional Speech: Giving Meaning to the "Clearly-States"Test in Arbaugh v. Y & H Corp., 46 WILLAMETTE L. REV. 33, 51-52(2009); Scott Dodson, In Search of Removal Jurisdiction, 102 Nw. U. L.REV. 55, 66-67 (2008); Lee, supra note 15, at 1629, 1631; Howard M.Wasserman, Jurisdiction, Merits, and Procedure: Thoughts on aTrichotomy, 102 Nw. U. L. REV. 1547, 1548 (2008).

(21.) Erin Morrow Hawley, The Supreme Court's QuietRevolution: Redefining the Meaning of Jurisdiction, 56 WM. & MARY L.REV. 2027, 2032 (2015) ("The Court is right to demand precision asto jurisdiction. But the clear statement rule is a clumsy, distracting,and ultimately unnecessary attempt to carry that mandate intoeffect."). Professor Andy Hessick has also criticized the clearstatement rule. See F. Andrew Hessick III, The Common Law of FederalQuestion Jurisdiction, 60 ALA. L. REV. 895, 926-29 (2009) (explainingwhy it is "difficult to defend" the clear statement rule).

(22.) Dodson, supra note 5, at 621-22.

(23.) See supra text accompanying note 18.

(24.) Lee, supra note 15, at 1629.

(25.) Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,90 (1998) (quoting United States v. Vanness, 85 F.3d 661, 663 n.2 (D.C.Cir. 1996)).

(26.) Cf. Dodson, supra note 5, at 657.

(27.) This example is borrowed from Justice Antonin Scalia. SeeANTONIN SCALIA, AMATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 26(1997).

(28.) This criticism of positivism is not overcome by simplyarguing that textualism is a superior method of statutoryinterpretation, for textualists readily acknowledge that a word'smeaning can and should be derived from context. Thus, as Justice Scaliaexplains, "If you tell me, 'I took the boat out on thebay,' I understand 'bay' to mean one thing; if you tellme, 'I put the saddle on the bay,' I understand it to meansomething else." Id.

(29.) See supra text accompanying notes 18-19.

(30.) See FED. R. CIV. P. 8(c)(1) (permitting a party to respond toa pleading with affirmative defenses).

(31.) See FED. R. CIV. P. 12(b) (requiring that "[e] verydefense to a claim for relief in any pleading must be asserted in theresponsive pleading").

(32.) See, e.g., FED. R. CIV. P. 12(h) (specifying circ*mstances inwhich a defending party will be deemed to waive an affirmative defense).

(33.) See, e.g., FED. R. CIV. P. 26(a) (stating deadlines fordisclosing materials during discovery).

(34.) See, e.g., FED. R. CIV. P. 37(c)(1) ("If a party failsto provide information or identify a witness as required by Rule26(a)..., the party is not allowed to use that information or witness tosupply evidence on a motion, at a hearing, or at a trial, unless thefailure was substantially justified or is harmless.").

(35.) See, e.g., FED. R. Civ. P. 60(b)(1) (permitting courts torelieve a party from the effect of a judgment or order due to theparty's "mistake, inadvertence, surprise, or excusableneglect").

(36.) See, e.g., FED. R. CIV. P. 33(b)(4) ("Any ground notstated in a timely objection [to a discovery response] is waived unlessthe court, for good cause, excuses the failure.").

(37.) 28 U.S.C. [section] 1331 (2012) (granting federal districtcourts jurisdiction of questions arising under federal law); id.[section] 1332 (granting federal district courts jurisdiction overclaims between completely diverse parties when the amount in controversyexceeds $75,000). Although these are the most common predicates forfederal jurisdiction, other grounds for jurisdiction could potentiallyexist.

(38.) United States v. Cotton, 535 U.S. 625, 630 (2002)("[S]ubject-matter jurisdiction, because it involves a court'spower to hear a case, can never be forfeited or waived.").

(39.) See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999)("[S]Jubject-matter delineations must be policed by the courts ontheir own initiative even at the highest level.").

(40.) See Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites deGuinee, 456 U.S. 694, 702 (1982) ("[T]he rule, springing from thenature and limits of the judicial power of the United States isinflexible and without exception, which requires this court, of its ownmotion, to deny its jurisdiction... where such jurisdiction does notaffirmatively appear in the record." (quoting Mansfield, Coldwater& Lake Mich. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884))).

(41.) See FED. R. CIV. P. 41(b); Semtek Int'l Inc. v. LockheedMartin Corp., 531 U.S. 497, 505 (2001) ('The primary meaningof'dismissal without prejudice,' we think, is dismissalwithout barring the plaintiff from returning later, to the same court[or in most cases, to]... other courts."); S. Walk at BroadlandsHomeowner's Ass'n v. OpenBand at Broadlands, LLC, 713 F.3d175, 185 (4th Cir. 2013) ("A dismissal for lack of standing--or anyother defect in subject matter jurisdiction--must be one withoutprejudice, because a court that lacks jurisdiction has no power toadjudicate and dispose of a claim on the merits.").

(42.) See 28 U.S.C. [section] 1331 ("The district courts shallhave original jurisdiction of all civil actions arising under theConstitution, laws, or treaties of the United States.").

(43.) 546 U.S. 500 (2006).

(44.) Id. at 503-04.

(45.) Id. at 503-04 (quoting 42 U.S.C. [section] 2000e(b) (2000)).

(46.) Id. at 504.

(47.) See FED. R. CIV. P. 12(h) (stating that most affirmativedefenses not raised in a responsive pleading are forfeited).

(48.) Arbaugh, 546 U.S. at 511.

(49.) Gonzalez v. Thaler, 565 U.S. 134, 141 (2012) (quotingKontrick v. Ryan, 540 U.S. 443, 454-55 (2004)).

(50.) Id. (quoting Henderson ex rel. Henderson v. Shinseki, 562U.S. 428, 435 (2011)).

(51.) Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145, 153(2013) (quoting Arbaugh, 546 U.S. at 516)).

(52.) Arbaugh, 546 U.S. at 515-16 (footnote omitted) (citationomitted).

(53.) See supra note 20 and accompanying text.

(54.) See Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54(1992) ("[C]ourts must presume that [Congress] says in a statutewhat it means and means... what it says.").

(55.) 546 U.S. at 503 (quoting 42 U.S.C. [section] 2000e(b)(2000)).

(56.) Id. at 514-15 (emphasis added).

(57.) Id. at 515 (quoting Zipes v. Trans World Airlines, Inc., 455U.S. 385, 394 (1982)).

(58.) Id. at 516.

(59.) Sebelius v. Auburn Reg! Med. Ctr., 568 U.S. 145, 153 (2013).

(60.) Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010).

(61.) Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 436(2011) (first quoting Union Pac. R.R. Co. v. Bhd. of LocomotiveEng'rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 82(2009); and then quoting John R. Sand & Gravel Co. v. United States,552 U.S. 130, 133-34, 139 (2008)); John R. Sand & Gravel Co. v.United States, 552 U.S. 130, 133-34, 136 (2008) (treating a statute oflimitations provision as jurisdictional in suits against the UnitedStates, even though the provision did not use the word"jurisdiction").

(62.) 551 U.S. 205 (2007).

(63.) Id. at 207.

(64.) Id.

(65.) Id. at 213-14.

(66.) See, e.g., FED. R. CIV. P. 60(b)(1) (permitting a federalcourt to grant a party relief from judgment for "mistake,inadvertence, surprise, or excusable neglect").

(67.) See supra note 40 and accompanying text.

(68.) Bowles, 551 U.S. at 206.

(69.) Id. at 208 (citing 28 U.S.C. [section] 2107(c) (2006)). Thefederal statute worked in tandem with Rule 4 of the Federal Rules ofAppellate Procedure, see id. at 208-09, but Rule 4 did not speak injurisdictional terms either.

(70.) Id. at 209 (quoting Griggs v. Provident Consumer Disc. Co.,459 U.S. 56, 61 (1982) (per curiam)).

(71.) See Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349 (1984).To be sure, the Court did not take this approach with Bowles. Rather itducked the implications of Arbaugh altogether. The analysis here issimply an attempt to justify Bowles in light of Arbaugh.

(72.) See id.

(73.) See id.

(74.) See id.

(75.) See Julian, supra note 6, at 242.

(76.) Dodson, supra note 5.

(77.) Id. at 621.

(78.) 546 U.S. 500 (2006); see supra text accompanying notes 43-47.

(79.) Arbaugh, 546 U.S. at 515-16.

(80.) See Dodson, supra note 5, at 654.

(81.) See id. ("[The Court in Arbaugh was] wrong to look toCongress to determine if a limit [was] jurisdictional.").

(82.) Id.

(83.) Cf. id. at 637.

(84.) Cf. id.

(85.) Cf. id. at 622.

(86.) Id. at 637.

(87.) Id. (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514-16(2006)).

(88.) U.S. CONST, art. I, [section] 8, cl. 9 (authorizing Congress"[t]o constitute tribunals inferior to the Supreme Court").

(89.) Palmore v. United States, 411 U.S. 389, 401 (1973) (notingthat Congress "was not constitutionally required to create inferiorArt. III courts," or, even upon creating them, "invest themwith all the jurisdiction it was authorized to bestow under Art.Ill"); Sheldon v. Sill, 49 U.S. (8 How.) 441, 449 (1850)("Congress may withhold from any court of its creation jurisdictionof any of the enumerated controversies.").

(90.) Congress may not, for example, enact a jurisdictional statutethat predicates jurisdiction on a plaintiff's race. Such a statutewould violate the equal protection rights contained in the FifthAmendment. See Paul M. Bator, Congressional Power over the Jurisdictionof the Federal Courts, 27 VILL. L. REV. 1030, 1034 (1982).

(91.) U.S. CONST, art. III, [section] 2.

(92.) Judiciary Act of 1789, ch. 20, [section]11,1 Stat. 73, 78(granting federal trial courts jurisdiction over diverse parties"where the matter in dispute exceeds... the sum or value of fivehundred dollars").

(93.) See Dodson, supra note 5, at 637.

(94.) Dodson seems to recognize this possibility, but thinks that aboundary between state and federal courts could only be created ifCongress "created a cause of action against employers who did notmeet the employee-numerosity requirement but required that such a claimbe lodged exclusively in state court." Id. at 637 n.107. However,this argument misperceives the vesting of state court jurisdiction.State courts ordinarily receive their jurisdiction from statelegislatures (not Congress) and in nearly every instance are open tofederal claims. See Haywood v. Drown, 556 U.S. 729, 734-35 (2009).Moreover, it is widely accepted that state courts have jurisdiction overdiversity claims in which less than $75,000 is in controversy, eventhrough Congress has not affirmatively lodged such claims"exclusively in state court." Dodson, supra note 5, at 637n.107. The same could also be said of federal question jurisdiction whenan amount in controversy requirement still attached to it. See JudiciaryAct of 1875, ch. 137, [section] 1, 18 Stat. 470 (authorizing federaldistrict courts to take jurisdiction over claims arising under federallaw and when at least $500 was at stake); Federal QuestionJurisdictional Amendments Act of 1980, Pub. L. No. 96-486, Sec. 2(b), 94Stat. 2369 (codified as amended at 28 U.S.C. [section] 1331 (2012))(abolishing the amount in controversy requirement).

(95.) See supra notes 88-90 and accompanying text.

(96.) See City of Milwaukee v. Illinois, 451 U.S. 304, 313-14(1981) ("We have always recognized that federal common law is'subject to the paramount authority of Congress."'(quoting New Jersey v. New York, 283 U.S. 336, 348 (1931))).

(97.) Dodson, supra note 5, at 637 (emphasis added).

(98.) Bowles v. Russell, 551 U.S. 205 (2007).

(99.) See supra text accompanying notes 62-70.

(100.) Dodson, supra note 5, at 637; see also id. at 637 n.109,639.

(101.) Dodson appears to hold this view as well. See id. at 637.

(102.) See United States v. Cotton, 535 U.S. 625, 630 (2002)("[S]ubject-matter jurisdiction, because it involves a court'spower to hear a case, can never be forfeited or waived.").

(103.) See Dodson, supra note 5, at 638.

(104.) See FED. R. Civ. P. 12(h) (specifying which defenses will bewaived if not raised in a responsive pleading).

(105.) See, e.g., Lee, supra note 15, at 1614.

(106.) Dodson, supra note 5, at 631.

(107.) See id. at 622.

(108.) Lee, supra note 15, at 1631.

(109.) Transcript of Oral Argument, supra note 3, at 20-21.

(110.) Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006)(footnote omitted) (citation omitted).

(111.) Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 168 (2010).

(112.) Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,436(2011) (first quoting Union Pac. R.R. Co. v. Bhd. of LocomotiveEng'rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 82(2009); and then quoting John R. Sand & Gravel Co. v. United States,552 U.S. 130, 133-34, 139 (2008)).

(113.) See supra notes 88-90 and accompanying text.

(114.) Data on file with author.

(115.) See 15 U.S.C. [section] 3207(a)(1) (2012); 16 U.S.C.[section] 2440 (2012); 28 U.S.C. [section] 1331 (2012); 30 U.S.C.[section] 1467 (2012).

(116.) See 7 U.S.C. [section] 255(a) (2012); 15 U.S.C. [section]3612; 18 U.S.C. [section] 2338 (2012); 42 U.S.C. [section] 9124(a)(2012).

(117.) See 29 U.S.C. [section] 101 (2012); 47 U.S.C. [section] 36(2012).

(118.) See 15 U.S.C. [section] 3207(a)(2); 16 U.S.C. [section]2633(h); 29 U.S.C. [section] 1855(b); 42 U.S.C. [section] 5405(a)(3).

(119.) See 28 U.S.C. [section] 1346(a)(2).

(120.) See 46 U.S.C. [section] 30101(a) (2012).

(121.) 42 U.S.C. [section] 3941.

(122.) 39 U.S.C. [section] 3016(b)(2) (2012).

(123.) Pub. L. No. 99-499, 100 Stat. 1728 (1986) (codified asamended at 42 U.S.C. [section] 11001 (2012)).

(124.) 42 U.S.C. [section] 11046(a)(1)(A) (2012).

(125.) See Steel Co. v. Citizens for a Better Env't, 523 U.S.83, 87-88 (1998).

(126.) Id. at 88.

(127.) Id.

(128.) Id.

(129.) Id. at 86, 90.

(130.) Id. at 90 (quoting 42 U.S.C. [section] 11046(c) (1994)).

(131.) 42 U.S.C. [section] 11046(c) (2012).

(132.) Justice John Paul Stevens made this exact point in anopinion concurring in the judgment. See Steel Co., 523 U.S. at 113(Stevens, J., concurring in the judgment) ("[I]f [subsection (a)]authorizes citizen suits for wholly past violations, the district courthas jurisdiction over these actions; if it does not, the court lacksjurisdiction.").

(133.) See 42 U.S.C. [section] 11046(a).

(134.) See id.

(135.) See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583(1999); see also supra note 39 and accompanying text.

(136.) See Semtek Int'l Inc. v. Lockheed Martin Corp., 531U.S. 497, 501-03 (2001). Some might argue that this conclusioncontradicts Bell [upsilon]. Hood, in which the Court observed that whena defect affects both jurisdiction and merits, "dismissal of thecase would be on the merits, not for want of jurisdiction." 327U.S. 678, 682 (1946) (citing Binderup v. Pathe Exch., Inc., 263 U.S.291, 305-08 (1923); Swafford v. Templeton, 185 U.S. 487, 493-94 (1902)).Bell, however, involved an interpretation of the federal questionstatute. See id. at 684-85.

(137.) Steel Co., 523 U.S. at 90.

(138.) Id. (quoting United States v. Vanness, 85 F.3d 661, 663 n.2(D.C. Cir. 1996)).

(139.) See Arbaugh v. Y & H Corp., 546 U.S. 500, 515-16 (2006).

(140.) See id.

(141.) See, e.g., John F. Manning, What Divides Texlualists fromPurposi[upsilon]ists?, 106 COLUM. L. REV. 70, 93-94, 94 nn.90-91 (2006).

(142.) See id. at 79-80, 80 n.34.

(143.) Id. at 79 ("In contrast with their ancestors in the'plain meaning' school of the late nineteenth and earlytwentieth centuries, modern textualists do not believe that it ispossible to infer meaning from 'within the four corners' of astatute. Rather, they assert that language is intelligible only byvirtue of a community's shared conventions for understanding wordsin context." (footnotes omitted)).

(144.) SCALIA, supra note 27, at 26; see also id. at 144(acknowledging that the "semantic intention" of a legislature,in that, what the legislature thought a particular word meant when itused the word, is a proper inquiry for text-based forms ofinterpretation).

(145.) Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,86 (1998).

(146.) Bowles v. Russell, 551 U.S. 205, 208-10 (2007).

(147.) Steel Co., 523 U.S. at 90.

(148.) Bowles, 551 U.S. at 208-10.

(149.) Steel Co., 523 U.S. at 90.

(150.) See supra notes 123-40 and accompanying text.

(151.) See supra notes 131-36 and accompanying text.

(152.) See supra note 135 and accompanying text.

(153.) See supra note 136 and accompanying text.

(154.) See supra notes 133-36 and accompanying text.

(155.) Steel Co. v. Citizens for a Better Env't, 523 U.S. 83,90 (1998).

(156.) Id. (quoting United States v. Vanness, 85 F.3d 661, 663 n.2(D.C. Cir. 1996)).

(157.) Id. (quoting 42 U.S.C. [section] 11046(c) (1994)).

(158.) See supra notes 135-36 and accompanying text.

(159.) See supra Part II.B.

(160.) Steel Co., 523 U.S. at 90 (quoting Vanness, 85 F.3d at 663n.2).

(161.) See 28 U.S.C. [section] 1331 (2012).

(162.) See supra note 143 and accompanying text.

(163.) There is one other challenge that might be lodged againstthe version of the clear statement rule proposed here, which ProfessorsHawley and Hessick have separately leveled at the Court's currentiteration of the clear statement rule. See Hawley, supra note 21, at2064-70; Hessick, supra note 21, at 926-29. Both Hawley and Hessickcriticize the Court's clear statement rule because courts do notinvoke it to further an underlying constitutional value--which is agenerally accepted purpose of such rules. Although that may be a validcriticism of the Court's clear statement rule, it is not a validcriticism of the clear statement rule proposed here. The rule proposedhere is designed to address the ambiguity flowing from the manydifferent uses of the word "jurisdiction." An interpretiveapproach that does not give talismanic weight to a single word but looksinstead for other indicators of statutory meaning hardly needs aconstitutional value underlying it to make it worthwhile.

(164.) 5 U.S.C. [section] 704 (2012).

(165.) In the spring of 2017, after this Article was in the processof publication, the Supreme Court decided a case that could also be usedto illustrate the approach advocated here. Bolivarian Republic ofVenezuela [upsilon]. Helmerich & Payne International Drilling Co.involved a foreign government's claim to sovereign immunity infederal court. 137 S. Ct. 1312, 1317 (2017). Such immunity, however,falls away when the suit involves "property taken in violation ofinternational law." Id. at 1316 (quoting 28 U.S.C. [section]1605(a)(3) (2012)). The question for the Court was whether a plaintiffcould overcome a foreign government's sovereign immunity by merelypleading that her "property [was] taken in violation ofinternational law," or must the plaintiff instead prove that her"property [was] taken in violation of international law." Id.The Court held that the plaintiff must prove the violation, a conclusionthat is correct under the approach advocated above. Id. at 1324; seesupra Part III.A. The statute spoke in explicit jurisdictional terms,see 28 U.S.C. 1605(a)(3) ("A foreign state shall not be immune fromthe jurisdiction of courts of the United States or of the States in anycase ... in which rights in property taken in violation of internationallaw are in issue."), and the use of jurisdiction in this contextwas entirely consistent with traditional understandings of jurisdiction.For better or worse, courts have long considered sovereign immunityjurisdictional. See FDIC v. Meyer, 510 U.S. 471, 475 (1994)("Sovereign immunity is jurisdictional in nature."). Finally,the common rule that a good faith allegation is sufficient to establishjurisdiction was not appropriate because that rule is applied in suitsin which jurisdiction is based on allegations "arising under"or "brought" under a particular law. See Bell v. Hood, 327U.S. 678, 681-82 (1946); John F. Preis, How the Federal Cause of ActionRelates to Rights, Remedies, and Jurisdiction, 67 FLA. L. REV. 849,889-90 (2015). The statute in this case contained no such language.

(166.) 5 U.S.C. [section] 702.

(167.) See Lane v. Pena, 518 U.S. 187, 192 (1996).

(168.) Meyer, 510 U.S. at 475 ("Sovereign immunity isjurisdictional in nature.").

(169.) See, e.g., United States v. Georgia, 546 U.S. 151, 159(2006) (holding that "insofar as Title II [of the Americans withDisabilities Act] creates a private cause of action for damages againstthe States for conduct that actually violates the Fourteenth Amendment,Title II validly abrogates state sovereign immunity"); Bd. of Trs.of the Univ. of Ala. v. Garrett, 531 U.S. 356, 374 (2001) (dismissingthe suit because a congressionally created cause of action did notvalidly abrogate state sovereign immunity); Emps. of Dep't of Pub.Health & Welfare of Mo. v. Dep't of Pub. Health & Welfareof Mo., 411 U.S. 279, 284-85 (1973) (holding that a cause of action toenforce the Fair Labor Standards Act did not validly abrogate statesovereign immunity).

(170.) See supra notes 55-58 and accompanying text.

(171.) United States v. Mottaz, 476 U.S. 834, 841 (1986)("When the United States consents to be sued, the terms of itswaiver of sovereign immunity define the extent of the court'sjurisdiction.").

(172.) See supra notes 59-70 and accompanying text.

(173.) Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 436(2011) (first quoting Union Pac. R.R. Co. v. Bhd. of LocomotiveEng'rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 82(2009); and then quoting John R. Sand & Gravel Co. v. United States,552 U.S. 130, 133-34, 139 (2008)).

(174.) Henderson, 562 U.S. at 436.

(175.) 5 U.S.C. [section] 704 (2012).

(176.) See, e.g., Cal. Dep't of Water Res. v. FERC, 341 F.3d906, 909 (9th Cir. 2003) (noting that judicial review should be"limited to final orders to ensure there will be no interferencewith the administrative process" (citing The Steamboaters v. FERC,759 F.2d 1382, 1387-88 (9th Cir. 1985))).

(177.) See Kobach v. U.S. Election Assistance Comm'n, 772 F.3d1183,1189 (10th Cir. 2014); Belle Co., L.L.C. v. U.S. Army Corps ofEng'rs, 761 F.3d 383, 387-88 (5th Cir. 2014); Fairbanks N. StarBorough v. U.S. Army Corps of Eng'rs, 543 F.3d 586, 591 (9th Cir.2008); Home Builders Ass'n of Greater Chi. v. U.S. Army Corps ofEng'rs, 335 F.3d 607, 614 (7th Cir. 2003); Nat'l ParksConservation Ass'n v. Norton, 324 F.3d 1229, 1236 (11th Cir. 2003).

(178.) Jama v. Dep't of Homeland Sec., 760 F.3d 490, 494 n.4(6th Cir. 2014); Iowa League of Cities v. EPA, 711 F.3d 844, 863 n.12(8th Cir. 2013); Chehazeh v. Att'y Gen. of U.S., 666 F.3d 118, 125n.11 (3d Cir. 2012); Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st Cir.2007); Trudeau v. FTC, 456 F.3d 178, 184 (D.C. Cir. 2006).

(179.) Henderson, 562 U.S. at 436 (first quoting Union Pac. R.R.Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. ofAdjustment, 558 U.S. 67, 82 (2009); and then quoting John R. Sand &Gravel Co. v. United States, 552 U.S. 130, 133-34, 139 (2008)).

(180.) 5 U.S.C. [section] 704.

(181.) See supra notes 166-69 and accompanying text.

(182.) 5 U.S.C. [section] 702.

(183.) Id.

(184.) See id. [section][section] 702, 704.

(185.) For oxample, in John R. Sand & Gravel Co. v. UnitedStates, 552 U.S. 130 (2008), the Supreme Court held that the TuckerAct's six-year statute of limitations for suits against the UnitedStates (located at 28 U.S.C. [section] 1491) was jurisdictional, eventhough the waiver of sovereign immunity which permitted those suits (andwhich was jurisdictional) was located at 28 U.S.C. [section] 2501.

(186.) 430 U.S. 99(1977).

(187.) Id. at 100-01.

(188.) See id. at 106.

(189.) Indeed, this is the approach the D.C. Circuit has taken inresolving this issue. See Trudeau v. FTC, 456 F.3d 178, 183-84 (D.C.Cir. 2006) (relying on Califano).

(190.) For instance, [section] 1331 is not the exclusive means ofconveying subject matter jurisdiction. See, e.g., 28 U.S.C. [section]1332 (2012) (conveying subject matter jurisdiction in diversity suits).

(191.) 5 U.S.C. [section] 702 (2012); see also supra notes 167-69and accompanying text.

(192.) See supra note 168 and accompanying text.

(193.) See supra note 41 and accompanying text.

(194.) Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57-58(1993).

(195.) See id.

(196.) Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (percuriam) (finding exhaustion under the Prison Litigation Reform Act to benonjurisdictional).

(197.) McNeil v. United States, 508 U.S. 106, 111-12 (1993).

(198.) See FED. R. CIV. P. 12(h)(3).

(199.) See supra note 40 and accompanying text.

(200.) See supra notes 33-36 and accompanying text.