Amicus Curiae Brief — Pierre Yassue Nashun Riley, Petitioner v. Pamela Bondi, Attorney General

Supreme Court briefJan 10, 2025

Ask Donna

What actually matters in this document.

Text

No. 23-1270

In the Supreme Court of the United States

PIERRE YASSUE NASHUN RILEY,

Petitioner,

MERRICK B. GARLAND, ATTORNEY GENERAL,

Respondent.

On Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

BRIEF FOR CENTER FOR LITIGATION & COURTS

AS AMICUS CURIAE

IN SUPPORT OF NEITHER PARTY

SCOTT DODSON

JOSHUA P. DAVIS

Counsel of Record

Berger Montague PC

LEAH SPERO

505 Montgomery St.

Center for Litigation & Courts Suite 625

UC College of the Law – SF

San Francisco, CA 94111

200 McAllister St.

jdavis@bm.net

San Francisco, CA 94102

(925) 285-1445

dodsons@uclawsf.edu

TABLE OF CONTENTS

Table of Authorities ................................................... ii

Interest of Amicus Curiae .......................................... 1

Summary of Argument ............................................... 2

Argument .................................................................... 2

The Court Should Adopt A Magic-Words

Rule For Determining The Jurisdictional

Character Of Filing Deadlines.............................. 2

Conclusion ................................................................... 8

TABLE OF AUTHORITIES

CASES

Arbaugh v. Y & H Corp.,

546 U.S. 500 (2006) ............................................... 3

Boechler, P.C. v. Comm’r of Internal Revenue,

596 U.S. 199 (2022) ........................................... 5–6

Bowles v. Russell,

551 U.S. 205 (2007) ............................................... 7

Fort Bend Cnty. v. Davis,

587 U.S. 541 (2019) ............................................... 8

Grupo Dataflux v. Atlas Global Grp.,

541 U.S. 567 (2004) ............................................... 2

Hamer v. Neighborhood Hous. Servs. of Chi.,

583 U.S. 17 (2017) ................................................. 5

Harrow v. Dep’t of Defense,

601 U.S. 480 (2024) ........................................... 4–6

Henderson v. Shinseki,

562 U.S. 428 (2011) ........................................... 4–6

Hertz Corp. v. Friend,

559 U.S. 77 (2010) ............................................. 2–3

Holmes Grp. v. Vornado Air Circulation Sys.,

535 U.S. 826 (2002) ............................................... 2

Irwin v. Dep’t of Veterans Affairs,

498 U.S. 89 (1990) ................................................. 6

John R. Sand & Gravel Co. v. United States,

552 U.S. 130 (2008) ............................................... 7

iii

Lapides v. Bd. of Regents,

535 U.S. 613 (2002) ........................................... 2–3

Mussachio v. United States,

577 U.S. 237 (2016) ............................................... 5

Patchak v. Zinke,

583 U.S. 244 (2018) ............................................... 5

Santos-Zacaria v. Garland,

598 U.S. 411 (2023) ........................................... 6–8

Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145 (2013) ........................................... 4–6

United States v. Wong,

575 U.S. 402 (2015) ....................................... 4–6, 8

Wilkins v. United States,

598 U.S. 152 (2023) ........................................... 5–8

Zipes v. Trans World Airlines, Inc.,

455 U.S. 385 (1982) ........................................... 4, 6

RULES AND STATUTES

26 U.S.C. § 6330(e)(1) ................................................. 6

OTHER

Scott Dodson, The Complexity of Jurisdictional

Clarity, 97 Va. L. Rev. 1 (2011) ............................ 3

Scott Dodson, A Critique of Jurisdictionality,

39 Rev. Litig. 353 (2020) ....................................... 4

Erin Morrow Hawley, The Supreme Court’s

Quiet Revolution: Defining the Meaning of

Jurisdiction, 56 Wm. & Mary L. Rev. 2027

(2015) ..................................................................... 4

Oral Arg. Transcr., Harrow v. Dep’t of Defense,

2024 WL 1311129 (May 25, 2024) ........................ 5

INTEREST OF AMICUS CURIAE

The Center for Litigation and Courts (“Center”) is

a nonpartisan, academic research center at the

University of California Law, San Francisco. Its

mission includes sharing knowledge of civil litigation

with courts. In furtherance of that mission, the Center

has filed briefs in this Court and others on issues

relevant to its expertise in civil litigation.

The Center has a particular expertise in the

matters of federal jurisdiction at issue in this case.

Because neither the parties nor the courts below have

offered the position articulated in this amicus brief,

the Center believes the brief will aid the Court’s

adjudication.

The Center is interested in the informed

development and application of jurisdictional law. The

Center has no interest in the ultimate outcome of this

litigation. Rather, the Center’s interest is that of a true

friend of the court.1

1 No person or entity other than the Center and its

counsel authored this brief in whole or in part or

contributed money intended to fund the preparation or

submission of this brief.

SUMMARY OF THE ARGUMENT

Jurisdictional rules should be clear and easy to

apply. Yet despite this Court’s admonitions, the lower

courts repeatedly have failed to correctly characterize

filing deadlines as nonjurisdictional. Those errors

have wasted party and court resources, including

resources of this Court.

To stave off future waste and uncertainty, this

Court should adopt a magic-words rule for filing

deadlines: a filing deadline is nonjurisdictional unless

Congress has used the term “jurisdiction” to clearly

characterize it as such.

Such a rule will save time and resources for

litigants and courts alike. It reflects an appropriate

understanding of Congress’s likely intent. And it

requires no overruling of any precedent. The Court

should adopt it.

ARGUMENT

The Court Should Adopt A Magic-Words Rule

For

Determining

The

Jurisdictional

Character Of Filing Deadlines.

1. Jurisdictional rules should be clear and simple.

Hertz Corp. v. Friend, 559 U.S. 77, 94 (2010)

(“[A]dministrative simplicity is a major virtue in a

jurisdictional statute.”); Grupo Dataflux v. Atlas

Global Grp., 541 U.S. 567, 582 (2004) (“Uncertainty

regarding the question of jurisdiction is particularly

undesirable.”); Holmes Grp. v. Vornado Air

Circulation Sys., 535 U.S. 826, 829–32 (2002) (valuing

“the clarity and ease of administration of the wellpleaded-complaint doctrine”); Lapides v. Bd. of

Regents, 535 U.S. 613, 621 (2002) (“[J]urisdictional

rules should be clear.”).

Jurisdictional clarity and simplicity are virtues

because uncertain jurisdiction can divert time and

resources away from the merits of the case. Hertz, 559

U.S. at 94 (“Complex jurisdictional tests complicate a

case, eating up time and money as the parties litigate,

not the merits of their claims, but which court is the

right court to decide those claims.”). And because

subject-matter defects cannot be waived or consented

to, all parties and the court must spend time and effort

on every unclear issue of subject-matter jurisdiction.

Scott Dodson, The Complexity of Jurisdictional

Clarity, 97 VA. L. REV. 1, 8 (2011). Worse, unclear

jurisdictional rules “produce appeals and reversals,”

burdening a second court and doubly burdening the

parties. Hertz, 559 U.S. at 94.

For these reasons, this Court has purported to

establish a clear-statement test for determining when

a statutory limit is jurisdictional:

If the Legislature clearly states that a

threshold limitation on a statute’s scope shall

count as jurisdictional, then courts and

litigants will be duly instructed and will not be

left to wrestle with the issue. But when

Congress does not rank a statutory limitation

on coverage as jurisdictional, courts should

treat the restriction as nonjurisdictional in

character.

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

(internal citations omitted). The Court has asserted

that this test establishes a “readily administrable

bright line.” Id. at 516. It does not.

2. “[A] clear-statement rule is supposed to make

things easy: if the provision does not ‘speak in

jurisdictional terms or refer in any way to the

jurisdiction of the . . . courts,’ the provision should be

nonjurisdictional, end of inquiry.” Scott Dodson, A

Critique of Jurisdictionality, 39 REV. LITIG. 353, 366–

67 (2020) (quoting Zipes v. Trans World Airlines, Inc.,

455 U.S. 385, 394 (1982)). But Arbaugh’s clearstatement rule, as filtered through subsequent

decisions, has become something else entirely.

This Court has declared repeatedly that Congress

need not use “magic words” to establish the necessary

clear statement. E.g., Harrow v. Dep’t of Defense, 601

U.S. 480, 484 (2024); Sebelius v. Auburn Reg’l Med.

Ctr., 568 U.S. 145, 153 (2013). Instead, courts must

consider “traditional tools of statutory construction,”

United States v. Wong, 575 U.S. 402, 410 (2015),

including text, statutory context, historical treatment,

and statutory purpose, see Harrow, 601 U.S. at 485–

86 (text); id. at 488–89 (statutory context); Sebelius,

568 U.S. at 153–54 (historical treatment); Henderson

v. Shinseki, 562 U.S. 428, 440–41 (2011) (statutory

purpose). The result is something that looks much like

ordinary statutory interpretation, not a clearstatement rule. See Dodson, Critique, at 367 (“The

result is clearly not a clear-statement rule, at least not

one that has recognizable analogues in other areas.”).

These overlays have transformed a “readily

administrable bright line” into a complex and

uncertain test. See Erin Morrow Hawley, The Supreme

Court’s Quiet Revolution: Defining the Meaning of

Jurisdiction, 56 WM. & MARY L. REV. 2027, 2049 (2015)

(“[T]he current clear statement rule does not serve

clarity’s clarion call.”). Is language that “an action . . .

shall not be filed or maintained” clearly jurisdictional

or not? Compare Patchak v. Zinke, 583 U.S. 244, 251–

52 (2018) (Thomas, J., plurality) (yes), with id. at 273–

74 (Roberts, C.J., dissenting) (no). How about a filing

deadline that, if missed, “forever bar[s]” the claim?

Compare Wong, 575 U.S. at 413 (no), with id. at 423

(Alito, J., dissenting) (yes).

The uncertainty of the Arbaugh rule is evident

from the multitude of recent decisions this Court has

had to review to resolve the jurisdictional character of

filing deadlines, including this one. See Pet. 15–19

(detailing a deep circuit split); Harrow, 601 U.S. 480;

Wilkins v. United States, 598 U.S. 152 (2023);

Boechler, P.C. v. Comm’r of Internal Revenue, 596 U.S.

199 (2022); Hamer v. Neighborhood Hous. Servs. of

Chi., 583 U.S. 17 (2017); Mussachio v. United States,

577 U.S. 237 (2016); Wong, 575 U.S. 402; Sebelius, 568

U.S. 145; Henderson, 562 U.S. 428.

Perhaps the lower courts’ repeated struggles in

these cases were what prompted Justice Kavanaugh,

in oral argument in Harrow, to ask “what would

provide the most clarity, do you think, for the

government and the courts of appeals and district

courts, the affected courts, on these kinds of matters?

Maybe . . . a magic words requirement would be better,

because it seems silly to keep having this debate. . . .

Maybe [that the deadline] just speaks directly to

jurisdiction.” Oral Arg. Transcr., Harrow v. Dep’t of

Defense, 2024 WL 1311129, at *31–32 (May 25, 2024).

3. The time has come to answer Justice

Kavanaugh’s query. This Court should adopt a magicwords clear-statement rule for filing deadlines: a filing

deadline is nonjurisdictional unless Congress has used

the term “jurisdiction” to clearly characterize it as

such. Such a rule would send the clearest possible

message to the lower courts and to litigants, thereby

staving off additional uncertainty and litigation in

both this Court and in the lower courts.

This true clear-statement rule also approximates

congressional intent. The Court has repeatedly

admonished that filing deadlines are quintessentially

nonjurisdictional. Harrow, 601 U.S. at 484; Wilkins,

598 U.S. at 158–59; Wong, 575 U.S. at 410; Sebelius,

568 U.S. at 154–55; Henderson, 562 U.S. at 435. And

the Court has long held filing deadlines presumptively

subject to equitable exceptions—anathema to

jurisdictional character. Irwin v. Dep’t of Veterans

Affairs, 498 U.S. 89, 95 (1990). E.g., Zipes, 455 U.S. at

393 (holding a Title VII deadline nonjurisdictional and

subject to waiver and tolling).

When legislating against the backdrop of those

judicial decisions, Congress “typically expects those

doctrines to apply.” Harrow, 601 U.S. at 483. See also

Santos-Zacaria v. Garland, 598 U.S. 411, 417 (2023)

(“When faced with a type of statutory requirement

that ordinarily is not jurisdictional, we naturally

expect the ordinary case, not an exceptional one.”);

Boechler, 596 U.S. at 208–09 (“Equitable tolling is a

traditional feature of American jurisprudence and a

background principle against which Congress drafts

limitation periods.”).

Confronting

such

strong

background

presumption

that

filing

deadlines

are

nonjurisdictional, Congress would know to use clear

jurisdictional language to override it, as Congress

occasionally has done. E.g., 26 U.S.C. § 6330(e)(1)

(“The Tax Court shall have no jurisdiction . . . unless a

timely appeal has been filed.”).

Because of this, the Court’s opinions already have

come close to establishing a magic-words rule for

preconditions—like filing deadlines—that ordinarily

are not jurisdictional. To be confident Congress has

made such presumptively nonjurisdictional provisions

jurisdictional, the Court has demanded “unmistakable

evidence, on par with express language addressing the

court’s jurisdiction.” Santos-Zacaria, 598 U.S. at 418.

It is hard to fathom what daylight exists between

express jurisdictional language and unmistakable

evidence on par with express jurisdictional language.

But because jurisdiction is at stake, litigants and

courts must continue to spend time and resources

striving to find any inkling of daylight.

This Court’s previous disavowal of a magic-words

rule served the useful purpose of enabling courts to

test, in a variety of cases and contexts, whether any

such daylight exists. In the nearly two decades since

Arbaugh, that experiment has achieved its result.

There is no meaningful daylight. Congress uses

express jurisdictional terms to make a filing deadline

jurisdictional. Accordingly, going forward, the test for

filing deadlines should turn on an express

jurisdictional characterization.

4. Adoption of a magic-words rule for filing

deadlines need not alter this Court’s commitment to

adhere to a “definitive earlier interpretation” of a

provision as jurisdictional. Wilkins, 598 U.S. at 159.

The Court has relied on such definitive early

interpretations twice to hold filing deadlines to be

jurisdictional, in John R. Sand & Gravel Co. v. United

States, 552 U.S. 130 (2008), and Bowles v. Russell, 551

U.S. 205 (2007). In both instances, the Court followed

a line of Supreme Court decisions left undisturbed by

Congress that had attached a jurisdictional label to

the deadline. Fort Bend Cnty. v. Davis, 587 U.S. 541,

548 (2019) (citing Bowles and John R. Sand); Wong,

575 U.S. at 416–17 (discussing John R. Sand). And the

Court has made clear that only a ruling that actually

turns on the precise provision at issue will suffice.

Santos-Zacaria, 598 U.S. at 421–22; Wilkins, 598 U.S.

at 160. Those requirements for a “definitive earlier

interpretation” both limit the likely number of such

cases and stake out clear markers for identifying

them. A magic-words rule can yield to such an

exception without substantially undermining the

clarity and predictability of the rule itself.

CONCLUSION

This Court should adopt a magic-words test for

determining the jurisdictional character of filing

deadlines.

January 10, 2025

Respectfully submitted,