Updated 2015 by Jeffrey S. Gutman
The burden of pleading and demonstrating subject matter jurisdiction rests on the party invoking federal jurisdiction. Thus, a federal court plaintiff must make in the complaint “a short and plain statement of the grounds upon which the court’s jurisdiction depends.”1 Likewise, a defendant who removes a case from state court must allege the basis of federal jurisdiction in the notice of removal.2 In contrast, most state courts of general jurisdiction are presumed to have jurisdiction over all civil actions unless such jurisdiction is specifically prohibited. As a result, plaintiffs typically do not need to plead or prove the existence of subject matter jurisdiction in state court.3
Failure to plead properly the existence of jurisdiction may be cured by amendment. Indeed, 28 U.S.C. § 1653 provides that such amendment may occur in the trial or appellate courts. Because federal courts lack power to act without subject matter jurisdiction, defendants may not waive objections to jurisdiction and may move to dismiss on jurisdictional grounds at any time.4 Moreover, both trial and appellate courts may raise subject matter jurisdiction issues sua sponte, even after entry of judgment.5
The federal courts have been "less than meticulous"6 in distinguishing between statutory limitations which are jurisdictional and those which are essential elements of a claim for relief. The Supreme Court attempted to clarify this distinction in Arbaugh v. Y&H Corp.7 In Arbaugh, the plaintiff won a federal judgment after trial in a Title VII case. Subsequently, the employer moved to dismiss the action on the ground that it was not an "employer" subject to Title VII because it employed less than fifteen persons. The question presented was whether Title VII's limitation on the definition of "employer" was jurisdictional, permitting post-judgment dismissal of the action, or whether satisfying the "employer" definition was an essential element of plaintiff's claim for relief, the absence of which may be challenged in a Fed. R. Civ. P. 12(b)(6) motion, and clearly waived if not raised before judgment. The Court held that Congress must specify limitations of this sort as jurisdictional and did not do so in Title VII. In the absence of a clear statement that Congress regarded the restriction as jurisdictional, the Court held that it should be treated as nonjurisdictional.8
The Court has also considered this distinction in "claim-processing" contexts in which an individual fails to file timely an administrative appeal regarding a government benefit. The most recent such case is Henderson v. Shinseki9 a case in which a veteran failed to appeal the denial of a claim to the Veteran's Court within the 120 days prescribed by Congress. The Court held that, ordinarily, such claim-processing deadlines are not jurisdictional, and may therefore be tolled or waived, since they do not govern the court's "adjudicatory capacity" as personal and subject matter jurisdiction do.10 Congress can intend such a rule to be jurisdictional, but must do so clearly. In Henderson, no jurisdictional attributes appeared in the relevant VA statutes, which are otherwise to be interpreted in favor of veterans.11
Updated 2015 by Jeffrey S. Gutman
- 1. Fed. R. Civ. P. 8(a)(1). Plaintiffs do not need to cite the statutory basis of federal court jurisdiction as long as they plead sufficient facts to establish jurisdiction. See Andrus v. Charlestone Stone Products Company, 436 U.S. 604, 608 n.6 (1978); Radici v. Associated Insurance Companies, 217 F.3d 737, 740 (9th Cir. 2000); Jensen v. Schweiker, 709 F.2d 1227, 1229 (8th Cir. 1983). If the defendant facially challenges the jurisdictional allegations by arguing that they are insufficient to invoke federal jurisdiction, the court will employ a Fed. R. Civ. P. 12(b)(6) standard and assume the truth of sufficiently pled jurisdictional allegation for purposes of resolving the motion. If the defendant challenges the truth of the factual assertions, the court will consider evidence outside the pleading and impose on the plaintiff the burden of demonstrating the facts asserted to warrant federal jurisdiction. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004), cert. denied, 544 U.S. 1018 (2005). See 2 James Wm. Moore, et al., Moore's Federal Practice - Civil section 12-30 (2010).
- 2. 28 U.S.C. § 1446(a).
- 3. See Section 2.9 for a discussion of state court jurisdiction over federal claims.
- 4. See Fed. R. Civ. P. 12(h)(3) .
- 5. Arbaugh v. Y&H Corp., 546 U.S. 500, 506-07 (2006); see also Reed Elsevier v. Muchnick, 559 U.S. 154, 130 S. Ct. 1237 (2010) (copyright registration requirement in Copyright Act is not jurisdictional and does not preclude federal jurisdiction over suits to enforce copyright claims by those who failed to register their copyright). The Supreme Court recently listed cases in which it found certain requirements jurisdictional and nonwaivable and others waivable claims processing requirements in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers, 558 U.S. 67, 130 S. Ct. 584, 596-97 (2009).
- 6. Arbaugh, 546 U.S. at 511.
- 7. Arbaugh, 546 U.S. 500.
- 8. Id. at 515 (noting that the fifteen employee threshold requirement was not in the jurisdiction section of the statute). Compare CNA v. United States, 535 F.3d 132, 140-43 (3d Cir. 2008) (scope of employment limitation in Federal Tort Claims Act is jurisdictional as it is in the same sentence as the grant of jurisdiction).
- 9. Henderson v. Shinseki, 131 S. Ct. 1197 (2011).
- 10. Id. at 1202-03
- 11. The Court reached the same result in Sebelius v. Auburn Regional Medical Center, 133 S. Ct. 817, 824-26 (2013), where it found a Medicare statute that permitted providers to appeal reimbursement decisions to a board within 180 days not to be jurisdictional.