2.2 Pleading Requirements

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