Dodson: Three Muted Cheers for John R. Sand & Gravel

(Prof. Scott Dodson frequently contributes to our blog.  He summarized Bowles v. Russell here, Twombly here, and today he again provides a timely and thoughtful summary of a Supreme Court decision. --RR)

Three Muted Cheers for John R. Sand & Gravel

This morning, the Court decided John R. Sand & Gravel Co. v. U.S. and, relying principally on stare decisis, held that the Court of Appeals properly raised and applied the Tucker Act’s six-year limitations period on its own motion and despite an earlier concession by the United States that the claim was timely.

There are many good arguments against the Court’s result, and the opinion is hardly satisfying.  In particular, its heavy reliance on stare decisis is a disappointing sidestep of a more nuanced and thoughtful approach to the difficult characterization issue before it.

But let me point to a few bright spots that I see in the Court’s reasoning.

First, the Court finally seems cognizant of the difficult nature and nuanced features of jurisdictional characterization inquiries.  The question presented by the Petitioner was, in a nutshell, whether the Tucker Act’s limitations period was “jurisdictional.”  Nowhere does the Court answer that question.  Notably, its opinion reframes the question presented into the following nonjurisdictional issue: “whether a court must raise on its own the timeliness of a lawsuit filed in the Court of Federal Claims, despite the Government’s
waiver of the issue.”  (This phrasing closely tracks the Government’s phrasing of the question presented.)  The Court also backtracks away from the “jurisdictional” ruling of Bowles v. Russell, which almost certainly was incorrect (even if the ultimate result of Bowles was not). 

Second, and relatedly, the Court has signaled its willingness to look to middle paths – that a rule might be nonjurisdictional yet nevertheless have jurisdictional features such as being unsusceptible to the kind of waiver that took place.  The Court framed the issue in this case (and, retrospectively, in cases like Bowles) as whether the limits are “more absolute” rather than whether they are “jurisdictional.”  Implicitly, the Court is
suggesting that it need not reach the question of whether the rule is jurisdictional or not because even nonjurisdictional rules might nevertheless have some jurisdictional attributes, such as a judicial obligation to raise and police them sua sponte.

Third, it decides the case on the very narrow grounds presented by the facts, rather than the broader jurisdictional grounds.  Thus, it avoids the problem that Bowles fell into – overdeciding the case.  Had it held the limitation to be jurisdictional, the Court would have ended up deciding a host of other questions never presented (may the rule be forfeited, is it susceptible to equitable excuses, etc.).

Ultimately, the Court fails to truly wrestle with even the difficult question of whether the limitations period is “more absolute” or not and what that moniker might mean in particular cases (jurisdiction-lite?).  And, it remains to be seen whether “more absolute” is a broad category encompassing a variety of nonjurisdictional rules having jurisdictional-like features or is just a euphemism for “jurisdictional.”  But, in the spirit of
optimism that accompanies those last few days before classes begin, I’ll give the Court three muted cheers for being more careful than it was in Bowles.

-- Scott Dodson