Amicus Curiae Brief — Conestoga Wood Specialties Corp. v. Sebelius

Sirerorne Cour, US.

MLED

JAN 28 2914

LOPHICE OF THE OES |

Nos. 13-354 & 13-356

IN THE

Supreme Court of the United States

KATHLEEN SEBELIUS et al.,

Petitioners,

Vv.

Hoppy LOBBY STORES, INC., et al.,

Respondents.

CONESTOGA WOOD SPECIALTIES CORP., et ai.,

Petitioners,

Vv

KATHLEEN SEBELIUS, et al.,

Respondents.

On Writs of Certiorari

to the United States Court of Appeals

for the Third and Tenth Circuit

BRIEF OF THE INDEPENDENT

WOMEN’S FORUM AS AMICUS CURIAE

IN SUPPORT OF HOBBY LOBBY

AND CONESTOGA, ET AL.

ERIN MORROW HAWLEY

Counsel of Record

UNIVERSITY OF MISSOURI

212 Hulston Hall

Columbia, MO 65211

(573) 823-1256

hawleye@missouri.edu

Counsel for Amicus Curiae

EP ED

WILSON-EPES PRINTING CO., INC. — (202)789-0096 — WASHINGTON, D.C. 20002

Lytcary of Cann

TF ae. oes

Sat oe nd *- ,

TABLE OF CONTENTS

I. THE ANTI-INJUNCTION ACT IS NOT

JURISDICTIONAL AND THIS COURT

NEED NOT CONSIDER WHETHER IT

A. The AIA’s Text Does Not Clearly

Indicate Jurisdictional Status ............

B. The Structure Of The AIA Indicates

C. This Court’s Precedents Confirm That

The AIA Is Not Jurisdictional.............

1. Early Precedent Holds That The

AIA Is Not Jurisdictional...............

2. This Court’s Repeated Invocation

Of Two Judicially Created Excep-

tions Confirms That The AIA Is

Not Jurisdictional ........................5.

A. The Extraordinary Circum-

stances Exception .....................

B. The No Alternative Remedy At

LAW TEORIEIOR ..00.0ccccccercescocscsnes

3. This Court’s Repeated Waiver Of

The AIA Confirms That The AIA Is

Not Jurisdictional ......................00.

SN IT -sphctctritecictincianunsninechimedasnciabauniganminn

23

25

i

TABLE OF AUTHORITIES

CASES Page(s)

Acklin v. People’s Sav. Ass’n, 293 F. 392

a NT IIE sainioiccisscdinsnicistsans real nnabubaipeeicin 16

Allen v. Regents of Univ. of Georgia, 304

Ps SI ID Sinsintecinaciinintiulavanaiasunntagtein 19

Arbaugh v. Y & H Corp., 546 U.S. 500

TUN icines tuchtcilineisinthaaindisiesiaaicrwmennieinaimsiabicina 6, 8, 9, 14, 21

Bailey v. Drexel Furniture Co., 259 U.S. 20

Seay bicinnicisinnievnschitnistasoninannicnadiisionilinianinn 5

Bailey v. George, 259 U.S. 16 (1922).............. 18

Baltic Mills Co. v. Bitgood, 12 F. Supp. 132

is TR, II iis si noccusaussasisabaiatscrcinebinananniedis 17

Bob Jones Univ. v. Simon, 416 U.S. 725

PII nics iccuaickcinlaireianaaaeskicttnadlamacnteatnanenaaneaiinne 18, 21

Bowles v. Russell, 551 U.S. 205

—__,_ 5 Se Tee AE STO 8, 14, 22, 23, 24

Brushaber v. Union Pac. R.R. Co., 240

Sa Se AIEEE WachicinnccomuniiannaibnictabsiccadienAeneeinionicnane 19

Burgdorf v. District of Columbia, 7 App.

aes Te a BINED seiseicinneccnnacarncsnesnannsos 16

Cohen v. Durning, 11 F. Supp. 824

Say: MEI esienconbieninissnesinacoonmsnantiseiahamnnabuanes 17

Danahy Packing Co. v. McGowan, 11 F.

Supp. 920 (W.D.N.Y. 1935) .....................00 17

Dodge v. Brady, 240 U.S. 122 (1916)............. 18

Dodge v. Osborn, 240 U.S. 118 (1916). .......... 18

Dolan v. United States, 130 S. Ct. 2533

SII suis .citaslnrdtd niinesncsllcledapainiiebasideabecniaeteadicatant ties Q

TABLE OF AUTHORITIES—Continued

Page(s)

Enochs v. Williams Packing & Navigation

ig GU UES Be CIID vasesensesscsnsnsessnnssosenssos passim

Frayser v. Russell, 9 F. Cas. 728 (C.C.E.D.

Ti ccciinsonncudenssnankeunssanensnees 16

French Mortg. & Bond Co. v. Woodworth,

38 F.2d 841 (E.D. Mich. 1930)...........00000.... 16

Gold Medal Foods v. Landy, 11 F. Supp.

EE 17

Gonzalez v. Thaler, 132 S. Ct. 641

ea Dees iecanscatennanennssanssesexnes 8,9,13

Graham v. Du Pont, 262 U.S. 234 (1923)...... 18, 19

Grosvenor-Dale Co. v. Bitgood, 12 F. Supp.

ES BEIIIED aeecccosvcscnncscnsnconcosnsesssenss 17

Helvering v. Davis, 301 US. 619

i aiaetn sii cgtakesekanensensnseien 7,13, 14, 23, 24

Henderson ex rel. Henderson v. Shinseki,

Es EE GUIEED vsnsscniscevssessesssoversesens passim

Higgins Mfg. Co. v. Page, 20 F.2d 948

Need cscncsensabsnsstaneesssbnanse 17

Hill v. Wallace, 259 U.S. 44 (1922).....00000000... 18

Hobby Lobby Stores, Inc. v. Sebelius, 723

Pe SAN4 (IO Cir. BOTB) ........000.0.00.ccceee0 5

Huston v. Iowa Soap Co., 85 F.2d 649 (8th

TF SEEE PES NS ea 17

Inland Mill. Co. v. Huston, 11 F. Supp. 813

iin ncicidnpeiansenneswnabsacenseseans 17

iv

TABLE OF AUTHORITIES—Continued

Page(s)

John A. Gebelein, Inc. v. Milbourne, 12 F.

Supp. 106 (D. Bid. 1086).......:.......000000.0000s00 16

Jones v. Bock, 549 U.S. 199 (2007)................ 11

Kensett v. Stivers, 10 F. 517 (S.D.N-Y.

BT ckicnceicahiiviacdeieianshinsiasdigatdimenastncnsahanabdaiaaatedaetas 17

Kingan & Co. v. Smith, 16 F. Supp. 549

I I SI asics dsictictsvanncsitondtcesetedtantseraenes 17

Kontrick v. Ryan, 540 U.S. 443 (2004) ........ 6, 8, 22

Lafayette Worsted Co. v. Page, 6 F.2d 399

i: HEE ibiiiiispitduiuaaigosammamsnabentapleiihcanauasen 16

Landgraf v. USI Film Products, 511 U.S.

ee es ccsihccisisistenins ccicniectioaiaigalgkdestadaninicainipeeies 10

Larabee Flour Mills Co. v. Nee, 12 F. Supp.

TE a BCID iscansiniscennssnnanaidinairenniionn 16

Lipke v. Lederer, 259 U.S. 557 (1922)............ 18

Miller v. Standard Nut, 284 U.S. 498

Peikcrircancaccodbdicccrnencansmeedinsiialces 7, 15, 16, 20, 24

Neild Mfg. Corp. v. Hassett, 11 F. Supp.

I Ces BI, TI nc cisicercscnieeianctctsninansannsss 17

Pac. Steam Whaling Co. v. United States,

Se eis MEE Civ hckcsatssncsincrnsacnnanmsenssonc 17

Pollock v. Farmers’ Loan & Trust Co., 157

A TD wiinestnnicccensnsttemnnneinevtiotian 14, 19, 24

Reed Elsevier, Inc. v. Muchnick, 130 S. Ct.

ET Ma iicrliststhaniaiduaeciidceasatnanineiiouainens 8,11, 12, 14

Regal Drug Corp. v. Wardell, 260 U.S. 386

Sai cica'c nissieanevinkiceecnsssiiaincaieeebbiatndeadibteigaiades 18

i

TABLE OF AUTHORITIES—Continued

Page(s)

Regents of Univ. Sys. Of Georgia v. Page,

81 F.2d 577 (5th Cir. 1936) ........................ 17

Rieder v. Rogan, 12 F. Supp. 307 (S.D. Cal.

I sdicichicielishiablacsi tonics ail Siaacahiccieuhinsbsbieesibvenimebabonaonsiee 17

Republican Nat. Bank of Miami, 506 U:S.

SUIT iscsi oibeinbsude chan chainisibeigenbshiceencatctibinnen 10

Rickert Rice Mills v. Fontenot, 296 U.S.

RE eee nce n enn een rn 18

Snyder v. Marks, 109 U.S. 189 (1883)........... 17

South Carolina v. Regan, 465 U.S. 367

TT ices siciiniasaniastaincnseiintehibabitetviiaiinicaaniinina 7,10, 21, 22

State R.R. Tax Cases, 92 U.S. 575 (1875)...... 17

Steel Co. v. Citizens for a Better Environ-

Penemed,, GS A. Ge CRD cvesevcceesccssscsccsssesees 7,8

Sunshine Anthracite Coal Co. v. Adkins,

Se es I I ariiennirinadinnsienicnstioniasienioansinion 13, 23

Trinacia Real Estate Co. v. Clarke, 34 F.2d

IE «. I iceninsconenennnentonesincsestnsecs 17

Union Pac. R.R. Co. v. Brotherhood of

Locomotive Engrs & Trainmen Gen.

Comm. of Adjustment, Cent. Region, 558

RESET AR ESRC oS Oe 7

United States v. Curry, 47 U.S. 106

a aiecisdilngush timsaiscsasieaidlaasiesinbanniaisasarsiiadies 23

Zipes v. TransWorld Airlines, Inc., 455

III Sieh iccdacccidaciunsasanpubedinusixennssien

vi

TABLE OF AUTHORITIES—Continued

STATUTES Page(s)

a: Oe ns cacanaausaadiebennshanannscevess 1

Ss Ae ID veiisnncssavndsnensaaeerdssencseneaiianen 12

in cn ciisnnthinssankcassnrnencckauneaniciin 12

Se Re Se IID scsinnsasesvsveccsrensnnsconvetnssnsenens 12

Be ass WF IC EDs nc ssccncanennassssascctnesenssbasnas 12

ER, i I oilanincasuadnsinissvansnncnanssansnakiaein 12

Se Es TF PPIEID scsicsscseissesescsnessxcennnssnnaie 12

Anti-Injunction Act, 26 U.S.C. § 7421(a)

IN laa ince stalk Ack eins cdvbeghoonnaeendibenainuaseiaed passim

Tax Injunction Act, 28 U.S.C. § 1341 (2008)... 9,11

RULES

Ey es Oe MUNN nnissdsnenndnccscsnsvasnesnaieans 22

COURT FILINGS

Brief for Petioners Helvering & Welch,

Helvering v. Davis, 301 U.S. 619 (1937)

NN iia ssildabakeadsnauhianennsnanansaaoneecamaiaan 13, 14, 23

Brief for the Appellee, Sunshine Anthracite

Coal v. Adkins, 310 U.S. 381 (1940) (No.

Statement as to Jurisdiction, Sunshine

Anthracite Coal Co. v. Adkins, 310 U.S.

BPR CEO) CINO. BE) a ccecinccscesccccccccssscescsssasss 24

vii

TABLE OF AUTHORITIES—Continued

SECONDARY SOURCES Page(s)

Clarence A. Miller, Restraining the

Collection of Federal Taxes and Penalties

by Injunction, 71 U. Pa. L. REV. 318 (1922-

CSREES AS on nan 19

Douglas Laycock, The Death of the

Irreparable Injury _ 103 HARV. L. REV.

EERE Fear nN 6

John C. Gall, Enjoining the United States, 10

VA. L. REV. 194 (1923-24) .......................000 19

Jonathan Haidt, THE RIGHTEOUS MIND

ERLE “ORR - RES E NO” mene aaa 4

Joseph L. Lewinson, Restraining the Assess-

ment or Collection of a Federal Tax, 14

CAL. L. REV. 461 (1925-26) ......................0 19

Kevin Seamus Hasson, THE RIGHT TO BE

EEN ER OR aE 4

INTEREST OF AMICUS CURIAE '

The Independent Women’s Forum (“IWF”) is a

non-partisan, 501(cX3) research and educational

institution. [IWF seeks the advancement of women in

today’s marketplace and the full flourishing of human

dignity through freedom and choice. IWF believes

that gender equality and access to health care,

including preventative services like contraception, are

compelling government interests. IWF is concerned,

however, that the contraception mandate may

disadvantage women by adversely affecting health

and employment options and impinging on religious

liberty.

IWF believes that women have ready access to

affordable contraceptives. Nine in ten employer-based

insurance plans cover the full range of contraceptives.

Twenty-eight states require insurers that cover

prescription drugs to cover the full range of FDA-

approved contraceptive drugs and devices. And a

plethora of federal and state programs currently

provide free contraceptive services to women with low

incomes. Public funding for these services totaled

$2.37 billion in 2010. In addition to public sources,

clinics and other entities like Planned Parenthood

provide free access to contraception.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae

Independent Women's Forum states that no counsel for any party

authored this brief in whole or in part and that no entity or

person, aside from amicus curiae, its members, and its counsel,

made any monetary contribution toward the preparation or

submission of this brief. Pursuant to Supreme Court Rule 37.3,

counsel of record for al] parties received notice of amicus curiae’s

intent to file this brief. Petitioner and respondent have consented

to the filing of this brief and letters reflecting their consent have

been filed with the Clerk of Court.

2

For women who make too much to qualify for free

preventative care services, contraceptives are an

affordable healthcare option. Generic contraceptives

can be purchased for as low as $9 per month.

Non-prescription options with similar efficacy rates,

like condoms and vaginal sponges, are easy to

purchase and inexpensive. The American Pregnancy

Association, for example, estimates that condoms cost

as little as twenty cents each—less than a pack of

chewing gum. There is, in short, no need for the

contraception mandate.

Perhaps for this reason, the Government has

exempted over 190 million health plan participants

from the contraception mandate. The requirement

does not apply to employers with fewer than fifty full-

time employees, grandfathered health plans, and

certain religious non-profits, like churches. Exempt

from the mandate also are certain forms of

contraception—including those that can be used by

men. That the Government chose to exempt hundreds

of millions of women (and all men) undermines any

asserted compelling interest in public health or a one-

size-fits-all insurance system.

IWF believes the Government can promote public

health in other ways. It could, for example, expand

eligibility for the federal programs already in

existence, offer tax deductions, credits, or federal

reimbursements for the purchase of contraceptive

services, or provide incentives for pharmaceutical

companies to provide products free of charge. Indeed,

and ironically, the best way to broaden access to birth

control might be to heed the American College of

Obstetricians and Gynecologists recommendation and

make birth control available without a prescription.

3

IWF believes that the contraception mandate will

make contraception more expensive. Because insurers

are required to provide first-dollar coverage, price

will no longer be a consideration. This will result in

higher health-care costs and make contraceptives

less affordable, and thus less accessible, to miilions

of uninsured women. According to CBO, some 30

million people will remain uninsured after full

implementation of the Affordable Care Act. Even if

only half are women, the mandate will have a

detrimental impact on millions. And of course there is

no such thing as a free lunch, even to the insured. The

(higher) costs of contraception coverage likely will be

passed on to employees through lower salaries or

decreased benefits.

IWF also is concerned that the contraception

mandate may have other detrimental effects on

women’s health. Studies have shown, for example,

that increased access to other contraceptives

decreases condom usage—a means of preventing

sexually transmitted diseases in addition to

pregnancy.

The contraception mandate also overlooks that

women and their families benefit from a flexible work

environment that allows them the option of their

preferences. Women may choose to prioritize a higher

salary, or the ability to work from home, over more

generous contraceptive coverage. And older women, in

particular, may prioritize other health benefits, like

cancer coverage.

This case is about more than contraception. It is

about the principles of liberty that animate our

Constitution. It is about empowering women to choose

the healthcare and salary options that best fit their

needs. And it is about employers, many of them

4

women, being able to follow their deeply held religious

conviction that life begins at conception.

IWF believes in a pluralistic society and that the

Government should not require individuals to pay for

services contrary to their faith. The burden becomes

clear when one’s own moral wrong is required by law.

See JONATHAN HAIDT, THE RIGHTEOUS MIND (2012).

Take, for example, a hypothetical example of a

different administration requiring that all group

health insurance plans cover conversion and

reparative therapy. The fact that an employee would

make the individual choice to receive such therapy

would do little to assuage the moral qualms of

individuals and companies who support same-sex

couples. Such individuals and companies would be

forced to pay premiums for, and facilitate use of,

health services they find abhorrent.

There is historical precedent for precisely this

challenge of conscience versus the perceived greater

good. The Quaker faith forbids taking up arms against

another. During the Revolutionary War, the colonies

required able-bodied men to serve in the militia or

pay a stiff fine. A wealthy landowner could avoid the

draft by hiring a soldier as his substitute. But the

Quakers refused not only to fight but also to send

someone else to fight in their stead or to pay fines to

finance what they saw as a morally objectionable

war. See KEVIN SEAMUS HASSON, THE RIGHT TO BE

WRONG 49-52 (2005).

IWF believes that all of these arguments should not

be foreclosed solely because the penalties imposed by

the contraception mandate are made payable to the

IRS. The Government does not argue that the Anti-

Injunction Act applies to this case. Accordingly, the

5

defense is forfeited and poses no bar to resolution of

the critical constitutional questions at issue here.

If the Supreme Court’s privacy jurisprudence tells us

anything, it is that the deeply personal choices about

when life begins and whether or not to use birth control

are decisions for individuals and families, not the

Government. IWF believes that the Government should

leave those decisions to women and their families.

SUMMARY OF ARGUMENT

The Anti-Injunction Act (“AIA”), 26 U.S.C. § 7421(a),

provides: “no suit for the purpose of restraining the

assessment or collection of any tax shall be maintained

in any court by any person, whether or not such person

is the person against whom such tax was assessed.”

That provision does not bar review of this case. A

unanimous Tenth Circuit concluded that the Anti-

Injunction Act does not apply because the relevant

penalties are not taxes within the meaning of the

AIA. Hobby Lobby Stores, Inc. v. Sebelius, 723 F.3d

1114, 127-28 (10th Cir. 2013); see also Bailey v.

Drexel Furniture Co., 259 U.S. 20, 36-38 (1922)

(distinguishing taxes from penalties by heavy burden,

scienter, and partial enforcement by a non-IRS agency).

But there is no need to answer that question at all.

The Anti-Injunction Act does not apply first and fore-

most because it is not jurisdictional and because the

Government has forfeited any reliance on the statute.

It is a hallmark of our judicial system that, subject

to standing requirements, a litigant ordinarily is

entitled to her day in court before she suffers the

penalties for noncompliance with an unconstitutional

statute or regulation. Pre-enforcement challenges are

a commonplace. To hold that the Anti-Injunction Act

bars suit here would turn that principle on its head.

6

If the AIA were jurisdictional, the Greens and

Hahns would be forced to pay millions of dollars in

penalties and file a refund suit before raising their

First Amendment claims. This is constitutionally

troublesome. The choice between massive penalties

and conscience rights may not be a realistic one

for many employers. And more importantly, pre-

enforcement review is almost always available in

cases like this one because damage remedies (like a

refund) are wholly inadequate to compensate a

plaintiff for the loss of a First Amendment right.

Douglas Laycock, THE DEATH OF THE IRREPARABLE

INJURY RULE, 103 HARV. L. REV. 687, 707-09 (1990).

Religious liberty is not a freedom reserved for the

wealthy.

The Anti-Injunction Act is not jurisdictional because

its text does not contain the clear jurisdictional

limitation this Court’s cases require. Arbaugh v. Y &

H Corp., 546 U.S. 500, 515-16 (2006). It is a claims-

processing statute that speaks to the obligations of

litigants, not the power of the federal courts. It is

placed in a miscellaneous tax code provision that

governs administration and procedure. And it

contains numerous statutory and judicially created

exceptions. While the Court occasionally has referred

in passing to the AIA as “jurisdictional,” this Court’s

more recent cases teach that loose language does not a

jurisdictional provision make. It is the substance of

this Court’s decisions, and not imprecise use of the

term jurisdiction that governs. Kontrick v. Ryan, 540

U.S. 443, 454 (2004) (courts may not rely on “less than

meticulous” use of the term “jurisdictional”).

From its earliest days, moreover, this Court has

interpreted the AIA to be non-jurisdictional. The

Court consistently has held the AIA subject to

7

traditional equitable exceptions. See, e.g., Miller v.

Standard Nut, 284 U.S. 498 (1932). These exceptions

have culminated in two well-established exceptions

today. See Enochs v. Williams Packing & Navigation

Co., 370 U.S. 1 (1962); South Carolina v. Regan, 465

U.S. 367 (1984). In several cases, moreover, the Court

also has permitted the Government to waive the AIA

defense and proceeded to the merits. See, eg.,

Helvering v. Davis, 301 U.S. 619 (1937). If a provision

is truly jurisdictional, equitable exceptions are taboo

and waiver impossible. Taken individually, then, each

of these precedents would cast doubt on a

jurisdictional AIA; taken as a whole, they foreclose

that possibility.

ARGUMENT

I. THE ANTI-INJUNCTION ACT IS NOT

JURISDICTIONAL AND THIS COURT

NEED NOT CONSIDER WHETHER IT

APPLIES

The federal government has forfeited any reliance

upon the Anti-Injunction Act and this Court need not

consider whether it applies unless the prohibition is

jurisdictional. See Henderson ex rel. Henderson uv.

Shinseki, 131 S. Ct. 1197, 1202 (2011). The AIA is not

jurisdictional and this Court may proceed to the merits.

This Court recently has emphasized that

jurisdiction has become “a word of many, too many,

meanings.” Steel Co. v. Citizens for a Better

Environment, 523 U.S. 83, 90 (1998). Because courts

have been overinclusive—“profligate” even, see Union

Pac. R.R. Co. v. Brotherhood of Locomotive Eng’rs &

Trainmen Gen. Comm. of Adjustment, Cent. Region,

558 U.S. 67, 81 (2009)—in their use of the term, this

Court has sought to restore “discipline” to the phrase

jurisdictional. Henderson, 131 S. Ct. at 1202-03.

8

There is a distinction, this Court’s recent cases

teach, between “claims-processing” rules and truly

jurisdictional provisions. Jurisdictional statutes

speak to the very power of a federal court to hear a

case; they govern the court’s “adjudicatory authority.”

Kontrick, 540 U.S. at 455; see also Steel Co., 523 U.S.

at 89 (“subject-matter jurisdiction” refers to “the

courts’ statutory or constitutional power to adjudicate

the case”) (emphasis in original). In contrast, claims-

processing rules simply “seek to promote the orderly

progress of litigation by requiring that the parties take

certain procedural steps at certain specified times.”

Henderson, 131 S. Ct. at 1203.

To differentiate between claims-processing rules

and jurisdictional limitations, this Court looks to text,

structure, and context. First, the Court employs a

“clear-statement principle,” to determine whether

the text plainly indicates that a procedural

requirement is jurisdictional. Gonzalez v. Thaler, 132

S. Ct. 641, 649 (2012). The Court then considers

whether the structure of the statute compels a

jurisdictional conclusion. See Reed Elsevier, Inc. v.

Muchnick, 130 S. Ct. 1237, 1245-46 (2010). Finally,

the Court considers context, which sometimes may

include past precedent. See Bowles v. Russell, 551

U.S. 205, 209-11 (2007). Each of these factors

indicates that the Anti-Injunction Act is not

jurisdictional.

A. The AIA’s Text Does Not Clearly

Indicate Jurisdictional Status

The first question is whether the text of the AIA

contains a clear statement limiting jurisdiction.

Henderson, 131 S. Ct. at 1203 (citing Arbaugh, 546

U.S. at 515-16). The answer is no. A provision is

jurisdictional only where Congress “clearly state[s]

9

that [the] threshold limitation on a statute’s scope

shall count as jurisdictional... .” Arbaugh, 546 U.S.

at 515-16. In contrast, “when Congress does not rank

a statutory limitation as jurisdictional, then courts

should treat the provision as nonjurisdictional in

character.” Id.

The text of the AIA contains no such clear

statement. At the outset, the AIA does not mention

jurisdiction in so many words. See Thaler, 132 S. Ct.

at 651 (citing Henderson, 131 S. Ct. at 1205) (rejecting

notion that “all mandatory prescriptions, however

emphatic, are . . . properly typed jurisdictional”);

Dolan v. United States, 130 S. Ct. 2533, 2539 (2010)

(“shall” does not render a requirement jurisdictional).

This is important because Congress knows how to

speak in jurisdictional terms when it chooses.

Consider some forthrightly jurisdictional statutes.

The Tax Injunction Act, for example, is directed to the

adjudicatory power of the federal courts: “The district

courts shall not enjoin, suspend or restrain the

assessment, levy or collection of any tax under State

law where a plain, speedy and efficient remedy may be

had in the courts of such State.” 28 U.S.C. § 1341

(emphasis added). Congress’s failure to use similar

“unambiguous jurisdictional terms,” Thaler, 132 S. Ct.

at 649, “indicates” that the AIA operates differently.

Williams Packing, 370 U.S. at 6 (if Congress desired

the AIA to have the same effect as the TIA “it would

have said so explicitly”); see also Thaler, 132 S. Ct. at

649 (“unambiguous jurisdictional terms” in a related

statute are evidence that Congress “would have

spoken in clearer terms if it intended [the statute] to

have similar jurisdictional force”).

What the text indicates instead is that the AIA is a

claims-processing statute. As this Court previously

10

has explained, the AIA “was merely intended to

require taxpayers to litigate their claims in a

_ designated proceeding.” Regan, 465 U.S. at 374. This

is the very definition of a claims-processing rule. The

AIA does nothing more than “seek to promote the

orderly progress of litigation by requiring that the

parties take certain procedural steps at certain

specified times.” Henderson, 131 S. Ct. at 1203

(defining claims-processing rules).

The AIA, in other words, is not jurisdictional

because it is addressed to litigants, not the adjudica-

tory authority of federal courts. “[J]urisdictional

statutes ‘speak to the power of the court rather than

to the rights or obligations of the parties.” Landgraf

v. USI Film Products, 511 U.S. 244, 274 (1994)

(quoting Republican Nat. Bank of Miami, 506 U.S. 80,

100 (1992) (Thomas, J., concurring)). The AIA focuses

on party obligations. Section 7421(a) provides that “no

suit [to restrain taxes] shall be maintained in any

court by any person.” 26 U.S.C. § 7421(a) (emphasis

added). Congress amended the AIA in 1964 to add the

phrase “by any person whether or not the person is the

person against whom such tax was assessed.” This

phrase clarifies that the AIA applies to persons

whether or not that person bears the incidence of the

tax, see Regan, 465 U.S. at 377, and confirms that the

AIA speaks to litigants, not the federal courts.

The requirement that a party satisfy some step

prior to bringing suit in federal court is hardly novel:

it is an exhaustion requirement. Exhaustion require-

ments are “quintessential claims-processing rules.”

Henderson, 131 S. Ct. at 1203. Because exhaustion

requirements merely “seek to promote the orderly

progress of litigation by requiring that the parties take

certain procedural steps at certain specified times,”

11

id., this Court has time and again found them to be

non-jurisdictional. See e.g., Reed alsevier, Inc., 1305S.

Ct. at 1246-47 (citing cases).

In Jones v. Bock, for instance, this Court held that

the Prison Litigation Reform Act’s administrative

exhaustion requirement—“no action shall be brought

with respect to prison conditions . . . until such

administrative remedies as are available are

exhausted” is not jurisdictional. 549 U.S. 199, 211-12

(2007). So too here. The AIA is not jurisdictional

because it focuses on a litigant’s exhaustion

obligations. And like other exhaustion regimes, the

AIA does not forever bar federal court review of a class

of cases (as does the Tax Injunction Act), but instead

assumes that suits blocked by the AIA eventually may

end up in federal court.

Reed Elsevier, Inc. v. Muchnick is also instructive.

In that case, the Court held Section 411(a) of the

Copyright Act—“no civil action for infringement of the

copyright in any United States work shall be

instituted” until the copyright is registered—to be

non-jurisdictional. Reed Elsevier, 130 S. Ct. at 1249.

Because Section 411(a) placed conditions on plaintiffs

(and not the federal courts), the Court found the

provision did not “clearly state[]” that its registration

requirement was jurisdictional. Jd. at 1245-46. The

relevant text of Section 411(a)—‘“no civil action...

shall be instituted”—bears a striking resemblance to

the AIA’s language—“no suit . . . shall be maintained.”

Both are addressed to particular litigants, couched in

mandatory language, and part of a remedial scheme.

Like Section 411(a), the AIA does not “clearly state”

that its pre-payment requirement is jurisdictional.

In sum, the text of the AIA does not clearly indicate

jurisdictional status. The statute does not employ

12

jurisdictional language, it is addressed to private

litigants, and it is part of an exhaustion regime that

eventually provides for federal court review.

B. The Structure Of The AIA Indicates

That The Statute Is Not Jurisdictional

The structure of the Anti-Injunction Act also

indicates that the statute is a “claims-processing” rule,

not a jurisdictional bar. Congress did not locate the

operative provision in a jurisdiction granting section.

This fact supports a non-jurisdictional reading. Reed

Elsevier, 130 S. Ct. at 1245 (finding provision non-

jurisdictional because it “is located in a provision

‘separate’ from those granting federal courts subject-

matter jurisdiction”). Rather, signaling its claims-

processing nature, the AIA resides instead in a

miscellaneous tax code section that governs procedure

and administration.

Moreover, that the AIA expressly authorizes some

pre-enforcement tax challenges indicates’ that

Congress did not mean to impose an absolute bar

on federal court review. The Reed Elsevier Court

found it “important” that Section 411(a) permitted

the adjudication of unregistered claims in three

circumstances. Reed Elsevier, 130 S. Ct. at 1246. The

AIA contains fourteen statutory exceptions. 26 U.S.C.

§ 7421(a). A taxpayer who receives a deficiency notice

may file suit notwithstanding the AIA. §§ 6213(a) and

§ (c). So too for taxpayers who are innocent joint filers,

§ 6015(e), who have a third-party interest in property,

8§ 7426(a) and (b)(1), and whose property has been

levied. § 6330(e)(1). As this Court has explained, “[i]t

would be at least unusual to ascribe jurisdictional

significance to a condition subject to these sorts of

exceptions.” See Reed Elsevier, 130 S. Ct. at 1246;

Zipes v. TransWorld Airlines, 455 U.S. 385, 393-94,

13

397 (1982) (exception to EEOC filing requirement

indicates the provision is non-jurisdictional).

This Court has sometimes looked to the purpose of a

statute as part of its context inquiry. See Thaler, 132

S. Ct. at 650. Here, the purpose of the AlA—to

facilitate the prompt and efficient assessment and

collection of taxes on which the Government depends,

see Williams Packing, 370 U.S. at 7—suggests that the

AIA is not jurisdictional. As the Government has

repeatedly explained, this purpose often may be best

served by pre-enforcement review.

In Helvering v. Davis, 301 U.S. 619 (1937), for

example, a shareholder brought suit to restrain the

Edison corporation from deducting payroll taxes as

required by the Social Security Act. In light of the

serious budgetary and administrative problems that

would result from a delay in determining the validity

of the Social Security tax, the Government intervened

and sought pre-enforcement review from this Court.

Brief for Petitioners Helvering & Welch at 22,

Helvering, 301 U.S. 619 (1937) (No. 910). The AIA

did not apply, the Government argued, because it

“was enacted to promote, not to discourage, the

orderly administration and collection of Government

revenues.” Id. at 31. And in Helvering, “the litigation

of an injunction suit [wa]s more important for the

protection of the revenues than insistence upon

adherence to the ordinary procedure of payment

followed by a suit for refund.” 7d.

Helvering was not a one-off decision. The

Government also sought preenforcement review of the

Bituminous Coal Act of 1937 in Sunshine Anthracite

Coal Co. v. Adkins, 310 U.S. 381 (1940). Brief for the

Appellee at 9, Sunshine Anthracite, 310 U.S. 381

(1940) (No. 804). Similarly, the Government urged the

14

Court to review the constitutionality of a tax prior to

its enforcement in Pollock v. Farmers’ Loan & Trust

Co., 157 U.S. 429, 554 (1895).

To clothe the AIA with jurisdictional status would in

every case preclude this Court’s prompt review of a

tax. As the Government argued in Helvering, this

would “discourage” rather than encourage the “orderly

administration and collection of Government revenues.”

Brief for Petioners Helvering & Welch at 31,

Helvering, 301 U.S. 619 (1937) (No. 910). The AIA was

intended to protect the public treasury, not limit the

authority of federal courts. The core purpose of the

AIA, and its structure more generally, indicate that

the Anti-Injunction Act is not jurisdictional.

C. This Court’s Precedents Confirm That

The AIA Is Not Jurisdictional

Congress’s failure clearly to indicate that a

provision is jurisdictional is ordinarily dispositive.

Reed Elsevier, 130 S. Ct. at 1244; Arbaugh, 546 U.S. at

515-16 (Congress must “clearly state[] that a threshold

limitation on a _ statute’s scope shall count as

jurisdictional.”). On rare occasions, however, uniform

undeviating precedent may tip the scales. See Bowles,

551 U.S. at 209-11.

This Court’s precedents are far from uniform.

Rather, they are irreconcilable with a jurisdictional

reading of the AIA in three ways. First, the Supreme

Court’s early interpretation of the AIA as an equitable

statute subject to a number of exceptions cannot be

reconciled with a jurisdictional statute. Second, two

judicially-created exceptions to the AJA are well-

established: The Supreme Court has long held

that the AIA does not apply in “extraordinary

circumstances” and also when the party challenging a

15

tax statute has no alternative remedy at law. Finally,

the Court has repeatedly accepted the Government’s

waiver of the AIA defense, and proceeded to the

merits—actions inconsistent with a jurisdictional

reading of the AIA.

1. Early Precedent Holds That The AIA

Is Not Jurisdictional

This Court’s early interpretations of the AIA as an

equitable statute sound the death knell for a

jurisdictional interpretation. Culminating in its 1932

decision in Miller v. Standard Nut, 284 U.S. 498

(1932), this Court repeatedly has recognized a variety

of equitable exceptions to the AIA. See 284 U.S. at

510-11. Because jurisdictional statutes are strict

limits on a court’s power, each of these judicially

created exceptions demonstrates that the AIA is not

jurisdictional.

In Standard Nut, the IRS imposed a ten-cent per

pound back-tax on Southern Nut Product, a vegetable-

based spread, under the Oleomargarine Act of 1886.

284 U.S. at 505-06. Prior to the assessment, three

federal courts had held similar products non-taxable,

and, by letter-ruling, the IRS had informed Standard

Nut that its product was not subject to the tax. Id. at

504. After Standard Nut marketed its product at a

three-cent per pound profit, the IRS changed its mind

and sought to collect the ten-cent tax. Id. at 508.

Standard Nut filed a pre-enforcement suit. Id. at 505.

This Court enjoined collection of the tax. The AIA

“d{id] not apply,” this Court wrote, because of “special

and extraordinary facts and circumstances.” Id. at

511. The Act was merely “declaratory of the principle”

that equity usually disallows tax injunction suits. Id.

at 509. As a result, “extraordinary and exceptional

16

circumstances”—though not mentioned in the text of

the AIA—“render[ed] its provisions inapplicable.” Zd.

at 510. Foreshadowing the Court’s clear statement

requirement, the Standard Nut Court wrote that

“[t]he general words employed [by Congress] are not

sufficient, and it would require specific language

undoubtedly disclosing that purpose, to warrant the

inference that Congress intended to abrogate th[e]

salutary and well-established rule” that extraordinary

circumstances permit a court to enjoin a tax. Id.

at 509. The Court noted it had “never held the [AIA]

to be absolute”—as would be true of a jurisdictional

statute—“but ha[d] repeatedly indicated that extra-

ordinary and exceptional circumstances render its

provisions inapplicable.” Jd. at 509-10 (citing cases

recognizing extraordinary circumstances exceptions).

Standard Nut is no outlier. It is consistent with a

long line of prior cases treating the AIA as a claims-

processing statute subject to equitable exceptions. Early

lower courts crafted all sorts of exceptions to the AIA?

2 See, e.g., Frayser v. Russell, 9 F. Cas. 728, 729 (C.C.E.D. Va.

1878) (challenge does not fall “within the letter, or spirit, or

intention” of the AIA; multiplicity of suit exception applies);

Burgdorf v. District of Columbia, 7 App. D.C. 405, 414 (D.D.C.

1896) (exception for “additional special circumstances, bringing

the case under some recognized head of equity jurisdiction, such

as irreparable injury, multiplicity of suits, or cloud on the title of

the complainant”); Acklin v. People’s Sav. Ass’n, 293 F. 392, 394

(N.D. Ohio 1923) (recognizing the “existence of exceptional cases”

which permit review notwithstanding the AIA); Lafayette

Worsted Co. v. Page, 6 F.2d 399, 400 (D.R.I. 1925) (exceptional

circumstances exception); French Mortg. & Bond Co. v.

Woodworth, 38 F.2d 841 (E.D. Mich. 1930) (same); John A.

Gebelein, Inc. v. Milbourne, 12 F. Supp. 105, 121 (D. Md. 1935)

(enjoining tax and finding that the AIA does not apply to novel

cases resulting in “exceptional and unusual hardship” and

“irreparable damage.”); Larabee Flour Mills Co. v. Nee, 12 F.

17

and went on to enjoin various taxes.* So too for the

Supreme Court. See, e.g., State R.R. Tax Cases, 92

U.S. 575, 613-14 (1875) (AIA codifies the traditional

equitable rules that govern tax injunctions); Pac.

Steam Whaling Co. v. United States, 187 U.S. 447, 452

(1903) (considering equitable exceptions to the AIA).

Beginning in the early 1900s, this Court repeatedly

held that the AIA was “inapplicable” in “extra-

Supp. 395, 399 (W.D. Mo. 1935) (The AIA “does not prohibit a suit

in equity to restrain the collection of a tax where the tax is

illegally exacted and where the taxpayer has no adequate remedy

at law for its recovery if it is paid by him; [and such] remedy at

law must not only be adequate ... {but also) clear and

unquestioned.”); Cohen v. Durning, 11 F. Supp. 824 (S.D.NLY.

1935) (adequate remedy at law exception); Grosvenor-Dale Co. v.

Bitgood, 12 F. Supp. 416 (D. Conn. 1935) (same); Rieder v. Rogan,

12 F. Supp. 307 (S.D. Cal. 1935) (same); Huston v. lowa Soap Co.,

85 F.2d 649, 652 (8th Cir. 1936) (The AIA “is not an absolute bar

in every case to injunctive relief.”).

* Trinacia Real Estate Co. v. Clarke, 34 F.2d 325 (N.D.N.Y.

1929) (issuing injunction); Higgins Mfg. Co. v. Page, 20 F.2d 948,

949 (DRI. 1927) (granting injunction; “where there is no

adequate remedy at law, the court should have power to grant

relief”); Baltic Mills Co. v. Bitgood, 12 F. Supp. 132, 135 (D. Conn.

1935) (granting injunction because of inadequate remedy at law

and multiplicity of suit); Danahy Packing Co. v. McGowan, 11 F.

Supp. 920 (W.D.N_Y. 1935) (issuing injunction); Neild Mfg. Corp.

v. Hassett, 11 F. Supp. 642 (D. Mass. 1935) (same); Inland Mill.

Co. v. Huston, 11 F. Supp. 813 (S.D. lowa 1935) (same); Gold

Medal Foods v. Landy, 11 F. Supp. 65 (D. Minn. 1935) (same);

Regents of Univ. Sys. of Georgia v. Page, 81 F.2d 577 (5th Cir.

1936) (same); Kingan & Co. v. Smith, 16 F. Supp. 549 (S.D. Ind.

1936) (same). Other early cases exist in which the federal courts

dismissed under the Anti-Injunction Act but those cases do not

indicate that the AIA is ju.isdictional. In those cases, the

taxpayers argued only that the AIA did not apply to invalid taxes

and the federal courts disagreed. See, e.g., Snyder v. Marks, 109

US. 189, 192-94 (1883); Kensett v. Stivers, 10 F. 517, 522-29

(S.D.N.Y. 1880) (describing cases).

18

ordinary and exceptional circumstance[s].” Bailey v.

George, 259 U.S. 16, 20 (1922); Dodge v. Osborn, 240

U.S. 118, 122 (1916) (the AIA “plainly forbids the

enjoining of a tax unless by some extraordinary and

entirely exceptional circumstance its provisions are

not applicable”).

The Court’s early invocation of the extraordinary

circumstances exception was not dicta. In Dodge v.

Brady, the Court relied upon the exception to find the

AIA inapplicable: “we think that this [tax] case is so

exceptional in character as not to justify us in holding

that reversible error was committed by the court below

in passing upon the case upon its merits[.]” 240 U.S.

122, 126 (1916). And in 1922, the Court held the AIA

inapplicable to tax penalties for regulatory commands

in no less than three cases. See Hill v. Wallace, 259

U.S. 44 (1922); Lipke v. Lederer, 259 U.S. 557 (1922);

Regal Drug Corp. v. Wardell, 260 U.S. 386 (1922).

While the Court subsequently clarified that the AIA

would apply to “truly revenue-raising tax statutes,” it

has not renounced the underlying equitable exception.

See Bob Jones University v. Simon, 416 U.S. 725, 743

(1974) (citing Graham v. Du Pont, 262 U.S. 234

(1923)). And in 1935, this Court granted a “motion|[]

for injunction restraining the collection of the assailed

tax” pending certiorari. Rickert Rice Mills v. Fontenot,

296 U.S. 569, 569 (1935). This remarkable injunction

and exercise of jurisdiction over a suit seeking to

“restrain[] the collection” of a tax is irreconcilable with

a jurisdictional AIA.

From its earliest days, the AIA also was interpreted

to permit a taxpayer without an adequate remedy

at law to enjoin a tax. Beginning in the late 1800s,

this Court permitted shareholders to challenge “the

assessment or collection” of corporate income taxes

19

on grounds that the shareholders had no adequate

remedy at law once tax voluntarily was paid.

Brushaber v. Union Pac. R.R. Co., 240 U.S. 1, 21-24

(1916); Graham, 262 U.S. at 257; Pollock, 157 U.S. at

554. The AIA was “inapplicable” where the remedy

provided by law was inadequate. Allen v. Regents of

University of Georgia, 304 U.S. 439, 448-49 (1938).

Each of these shareholder cases fell squarely within

the terms of the AIA, and yet because equity

authorized federal courts to enjoin tax cases when the

remedy at law was inadequate, the Court repeatedly

found jurisdiction to exist.

Early interpretations of the AIA as an equitable

statute did not escape notice. Commentators routinely

described a non-jurisdictional AIA. The AIA,

Professor Charles Miller wrote, “prohibits the

granting of an injunction restraining the collection of

federal taxes unless its provisions are rendered

inapplicable to a particular case because of extra-

ordinary and exceptional circumstances.” Clarence A.

Miller, Restraining the Collection of Federal Taxes and

Penalties by Injunction, 71 U. PA. L. REV. 318, 339

(1922-23). See also John C. Gall, Enjoining the United

States, 10 VA. L. REV. 194, 194 (1923-24) (“[DJespite

the fact that the text of the AIA does not “make any

provision whatever for unusual cases which may arise

... upon an examination of the decided cases we find

that a great number of suits of this character have

been entertained in the federal courts.”); Joseph L.

Lewinson, Restraining the Assessment or Collection of

a Federal Tax, 14 CAL. L. REV. 461, 462 (1925-26)

(summarizing case law and concluding “it would

appear that [the AIA] may not be read literally”).

Jurisdictional limits are not descriptions of general

equitable principles and the Court’s early precedents

20

holding the AIA synonymous with equitable rules are

irreconcilable with a jurisdictional reading. In short,

as the Supreme Court explained in Standard Nut,

while the early Supreme Court gave effect to the AIA

in a number of cases, “[iJt had never held the rule to

be absolute,” 284 U.S. at 510-11—as would be true of

a jurisdictional statute.

2. This Court’s Repeated Invocation Of

Two Judicially Created Exceptions

Confirms That The AIA Is Not

Jurisdictional

The early case law authorizing federal courts to

entertain tax challenges has resulted in two well-

established judicial exceptions to the AIA. Because

federal courts are not authorized to craft equitable

exceptions to jurisdictional rules, these present-day

exceptions demonstrate that the AJA is not a

jurisdictional statute.

a. The Extraordinary Circumstances

Exception

As explained above, the Supreme Court has long

taken the view that the Anti-Injunction Act does not

always apply to cases seemingly within its terms. In

1962, the Court reaffirmed that equitable exceptions

apply to the AIA. In Williams Packing, the Court of

Appeals had enjoined a tax on the ground that

“collection would destroy [the taxpayer's] business.”

370 U.S. at 2. This Court reversed, but not because

the AIA is an absolute bar on federal court review. Far

from repudiating exceptions to the AIA, the Williams

Packing Court endorsed them: “if it is clear that under

no circumstances could the Government ultimately

prevail, the attempted collection may be enjoined if

equity jurisdiction otherwise exists.” Id. at 7. This

21

merits-based inquiry cannot be squared with a

jurisdictional AIA.

Bob Jones University also confirms that the AIA is

not jurisdictional. That case involved a University’s

constitutional challenge to the [RS’s revocation of its

tax-exempt status. Bob Jones, 416 U.S. at 735-36.

This Court first held that the action was a suit “for the

purpose of restraining the assessment or collection of

any tax” within the terms of the Anti-Injunction Act.

Id. at 737-38. But that was not the end of the matter.

The Court went on to describe a two-factor exception

to the “literal terms of § 7421(a)”: “first, irreparable

injury .. . ; and second, certainty of success on the

merits.” Jd. at 737. This Court’s recognition of a

success-on-the-merits exception means the AIA is not

jurisdictional.‘

b. The No Alternative Remedy At

Law Exception

A second present-day exception to the AIA is well-

established. As late as 1984, in South Carolina v.

Regan, this Court confirmed that the AIA does not

apply when the remedy at law is inadequate. 465 U.S.

* These two cases do refer to the AIA as “jurisdictional.” In

Williams Packing, the Supreme Court wrote, “The object of §

7421(a) is to withdraw jurisdiction from the state and federal

courts to entertain suits seeking injunctions prohibiting the

collection of federal taxes.” 370 U.S. at 5. In Bob Jones

University, the Court wrote that “the Court of Appeals did not err

in holding that § 7421(a) deprived the District Court of

jurisdiction to issue the injunctive relief petitioner sought.” Bob

Jones, 416 U.S. at 749. The substance of the cases, however, and

the equitable exceptions they endorse make plain that the statute

is anything but jurisdictional. Any loose language as to

jurisdiction is entitled to no “precedential effect.” See Arbaugh,

546 U.S. at 511-512.

22

367, 373-74 (1984). In Regan, South Carolina

challenged the constitutionality of “a tax on the

interest earned on state obligations issued in bearer

form.” Jd. at 372. The Court acknowledged that an

identical lawsuit by a bondholder would have been

barred. Id. If the AJA governed jurisdiction, the Court

would have been required to dismiss. See Fed. R. Civ.

P. 12(h)\(3) (“If the court determines at any time that

it lacks subject-matter jurisdiction, the court must

dismiss the action.”). Instead, this Court looked to the

purposes of the AIA.

Using claims-processing language, the Regan Court

noted that the AIA “was merely intended to require

taxpayers to litigate their claims in a designated

proceeding.” Regan, 465 U.S. at 374. Since South

Carolina was “unable to utilize any statutory

procedure” to challenge the bond tax, it had no

alternate remedy at law, and the AIA did not prevent

the issuance of an injunction. /d. at 378. Under

Regan, the AIA is a claims-processing rule with

equitable exceptions; it directs litigants, but does not

speak to the power of the courts.

This Court’s continued adherence to two equitable

exceptions cannot be reconciled with a jurisdictional

AIA. These judicial carve-outs cannot be gleaned

from the text of the AIA and courts have “no authority

to create equitable exceptions to jurisdictional require-

ments.” Bowles, 551 U.S. at 214; Kontrick, 540 U.S. at

452 (“Only Congress may determine a lower federal

court’s subject-matter jurisdiction”). Because the

Court’s power to hear a case is granted by Congress,

Congress alone may determine “the manner in which

the case shall be brought,” and courts “ha[ve] no power

to dispense with any of these provisions, nor to change

23

or modify them.” United States v. Curry, 47 U.S. 106,

113 (1848).

3. This Court’s Repeated Waiver Of The

AIA Confirms That The AIA Is Not

Jurisdictional

The AIA cannot be jurisdictional because, in

addition to subjecting the statute to equitable

exceptions, the Court has permitted waiver in at least

three cases. Because federal courts “must raise and

decide jurisdictional questions” on their own,

Henderson, 131 S. Ct. at 1202, waiver of a

jurisdictional limitation is “impossible.” Bowles, 551

U.S. at 216. Yet the Government repeatedly has

argued that it might waive the AIA defense, and this

Court repeatedly has proceeded to the merits.

In 1937, the Government explained its view that the

AIA “may be waived by an appropriate officer of the

United States.” Br. for Pet’rs Helvering & Welch at

31, Helvering v. Davis, 301 U.S. 619 (1937) (No. 36-

910). In Helvering, the First Circuit held that payroll

taxes violated the Tenth Amendment. 301 U.S. at 638.

Before this Court, the Government argued, not that

the First Circuit’s decision was premature, but that

the Court “should render a decision on the merits”

because “waiver [of the AIA] is certainly within the

power of the appropriate officers of the Government/[.]”

Brief for Petioners Helvering & Welch at 28, 31,

Helvering, 301 U.S. 619 (1937) (No. 910). This Court

did just that.

Helvering is not an anomaly. This Court has

accepted the Government’s waiver of the AIA in other

pre-enforcement challenges to federal taxes. In

Sunshine Anthracite, the plaintiff brought suit

“praying for a temporary injunction suspending and

24

restraining the assessing and collecting or attempting

to assess and collect” two taxes imposed by the

Bituminous Coal Act of 1937. Statement as to

Jurisdiction at 11, Sunshine Anthracite, 310 U.S. 381

(1940) (No. 804). Even though the prayer for relief fell

within the terms of the AIA, the Government

“expressly waived” its defense under the AIA, and the

Court decided the case on the merits. See Brief for the

Appellee at 9, Sunshine Anthracite, 310 U.S. 381

(1940) (No. 804). Even earlier, in Pollock, the

Government “explicitly waived” any question as to the

AIA during oral argument. 157 U.S. at 554. Once

again, the Court rendered a decision on the merits.

Waiver is not an attribute of a jurisdictional statute.

This series of cases demonstrates that this Court has

long considered the AIA to be non-jurisdictional. See

Bowles, 551 U.S. at 216 (“[I)f a limit is taken to be

jurisdictional, waiver becomes impossible[.]”).

At the end of the day, this Court’s precedents from

Standard Nut to Williams Packing to Helvering

foreclose any argument that the AIA is jurisdictional.

Under all of these cases, the federal courts retain

discretion to exercise jurisdiction in circumstances not

contemplated by the plain text. Because the AJA is not

“absolute,” Standard Nut, 284 U.S. at 509-10, it is not

jurisdictional.

25

CONCLUSION

The conscience rights asserted by the plaintiffs in

these consolidated cases raise important questions

about fundamental liberty interests. Because this

Court’s cases teach that the AIA is not jurisdictional,

it need consider the AIA no further, and may reach the

weighty constitutional issues implicated by the

contraception mandate.

Respectfully submitted,

ERIN MORROW HAWLEY

Counsel of Record

UNTVERSITY OF MISSOURI

212 Hulston Hall

Columbia, MO 65211

(573) 823-1256

hawleye@missouri.edu

Counsel for Amicus Curiae

January 28, 2004