One point I have been making repeatedly in my jurisdictionality scholarship (here and in two forthcoming pieces) is that the Supreme Court is working hard to drop hints to lower courts that what is truly jurisdictional is extremely narrow and what is merits is comparatively broad. Lower courts are mostly getting it.
But not always, unfortunately, as this Fifth Circuit case demonstrates. (H/T: Scott Dodson).
The Miller Act provides a cause of action for subcontractors to recover for unpaid work on federal construction projects; the suit is bought to recover on the payment bond, which the general contractor must furnish. In this case, the Fifth Circuit held that the bond requirement goes to the district court’s adjudicative jurisdiction and that because no bond was provided, the district court lacked subject matter jurisdiction over the plaintiff’s claim.
This cannot be right, both as a normative matter and in light of SCOTUS’s recent jurisdictionality jurisprudence (which the Fifth Circuit did not even bother to cite or discuss). As to the latter, it is hard to imagine that if registration of a copyright as a prerequisite to a copyright action is not jurisdictional, then the bond requirement cannot be. can be jurisdictional. As to the former, the bond requirement obviously is going to a merits element, since the statute provides for “a civil action on the payment bond for the amount unpaid at the time the civil action is brought. Obviously, a claim to recover on a payment bond cannot succeed if there is no payment bond. But that defect is in the claim as defined in the statute; it does not affect the court’s jurisdiction. Ironically, the court asserted early in the opinion that there is § 1331 jurisdiction “when a plaintiff[ ] set[s] forth allegations ‘founded on a claim or right arising under the Constitution, treaties or laws of the United States.’” That is correct. And it is unaffected by any problems with that claim. Given that, there is no way the bond requirement, contained in the cause-of-action-creating provision, is jurisdictional.
The opinion could be read not as making the bond requirement jurisdictional, but rather as looking to the “requirement” (not always taken seriously) that any federal claim be “substantial” in order for § 1331 to be satisfied. Because the Miller Act claim had a “fatal defect”–the absence of a payment bond–§ 1331 was not satisfied. In other words, the Miller Act claim failed on its merits, but that failure made it insubstantial and thus deprived the court of jurisdiction. I have argued that the substantiality doctrine is wrong and unnecessary. But even accepting the doctrine, the court’s analysis was still wrong. An “insubstantial” claim is one that is frivolous or somehow unconnected to the rest of the case and asserted solely to manufacture federal jurisdiction. A case does not become “insubstantial” merely because of a defect in the claim. If that were enough, then every 12(b)(6) dismissal would become a 12(b)(1) dismissal.
Interestingly, this actually is a case in which the characterization made more than a formalist difference. After the district court dismissed the Miller Act claim because of the absence of a bond, it went on to resolve several state law claims, asserting supplemental jurisdiction. And the district court believed it could do this because it understood the dismissal of the Miller Act claim as being on the merits, giving it discretion to retain supplemental claims. In holding that the failure of the federal claim was a failure of federal-question jurisdiction, the court of appeals undid that. A district court cannot assert supplemental jurisdiction over state-law claims unless it at some point had jurisdiction over some federal claim. Because the district court never had jurisdiction over any federal claim, it never had federal jurisdiction and thus cannot assert supplemental jurisdiction.
Just a bad decision all around.
Posted by Howard Wasserman on January 26, 2012 at 02:58 PM