Mandatory Rules: A Primer

Scott Dodson Associate Professor of Law, William & Mary School of Law

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How does one determine whether a particular rule is jurisdictional or not? Over the last few years, the Court has focused on this question, most recently in a decision holding that the six-year statute of limitations in the Tucker Act is a quasi-jurisdictional bar to suit.1

The Court is right to be attentive. Whether a rule is jurisdictional or not affects both litigants and the courts in important ways, and we ought to strive for a workable and sensible methodology for answering that question.2

But the jurisdictional inquiry implicates another question that has received less attention and thought: what does the determination that a rule is jurisdictional or not mean? For a jurisdictional rule, the answer usually is easy. For a nonjurisdictional rule, however, the answer is more complicated and far less studied. Too often, courts and commentators simply assume that nonjurisdictional rules have all of the inverse effects of jurisdictional rules, without any meaningful discussion of what attributes the nonjurisdictional rule in question should have as an analytical, institutional, or normative matter. As I will explain, that assumption is a false dichotomy that obscures a wealth of rule types that can be used to better understand and categorize difficult statutory rules and judicial doctrines.

Understanding Nonjurisdictional Rules

Jurisdictional rules (usually) have clear and well-settled effects.3 A jurisdictional rule can be raised by any party at any time, including for the first time on appeal; it obligates the court to police compliance sua sponte; and it is not subject to principles of equity, waiver, forfeiture, consent, or estoppel.

By contrast, nonjurisdictional rules do not have the same rigid effects. Nevertheless, courts and commentators have tended to express nonjurisdictional rules as having the inverse effects of jurisdictional rules.4 Their assumption is that a jurisdictional characterization has one set of effects and a nonjurisdictional characterization has a wholly different set of effects.

This is a false dichotomy. Nothing prohibits nonjurisdictional rules from exhibiting attributes of jurisdictionality, and, in practice, many in fact do.5

Adherence to the dichotomy has at least two consequences. First, it obscures a rich swath of rule types that may provide the right characterization for the rule in question. Second, judicial adherence to the false dichotomy risks either overdeciding or underdeciding the case.

Take, as an example of these problems, the Supreme Court’s recent decision in Bowles v. Russell.6 There, Keith Bowles petitioned for a federal writ of habeas corpus, which was denied. After the deadline to appeal had passed, Bowles moved to reopen the time to appeal. The district court granted Bowles’ motion to reopen the time for appeal and gave Bowles seventeen days to file his notice of appeal. Bowles filed his notice of appeal sixteen days later. However, the statute that authorizes reopening of the appellate deadline limits a reopened time period to fourteen days.7 Thus, Bowles’ notice of appeal was timely under the district court’s order but untimely under the statute.

The state moved to dismiss Bowles’ appeal, arguing that the notice of appeal was untimely and that the Court of Appeals therefore lacked jurisdiction to hear the appeal. Bowles responded that the deadline was not jurisdictional and that his noncompliance with the statutory deadline should be excused for equitable reliance on the district court’s order.

The Supreme Court agreed with the state and affirmed the dismissal. The Court held the rule to be jurisdictional and, therefore, not susceptible to the equitable excuse proffered by Bowles.8 In so holding, the Court overdecided the case. The issue in Bowles, in its narrowest sense, was whether the district court had the power to extend the time to file the notice of appeal beyond the deadline for equitable reasons not recognized in the statute. By instead finding the deadline jurisdictional, the Court resolved a host of issues that, though neither presented by the facts nor addressed by the Court, necessarily follow from a jurisdictional characterization: that the deadline must be policed by the courts sua sponte, that the deadline is unsusceptible to waiver, forfeiture, or consent, and that noncompliance may be raised at any time by any party—including the party who missed the deadline in the first place.

For what it is worth, the dissent in Bowles would have underdecided the case. The dissent would have held the deadline nonjurisdictional and, therefore, amenable to the equitable excuse presented in the case.9 But a nonjurisdictional characterization, rather than leading to that result, merely begs it. Not all nonjurisdictional rules are amenable to equitable excuses, and there are good reasons why the deadline to file a notice of appeal is one of those that is not.10

Bowles therefore illustrates the two perverse effects that the false dichotomy engenders. First, the dichotomy focused the Court’s inquiry on a question whose answer was either broader than necessary (the majority’s jurisdictional characterization) or narrower than needed (the dissent’s nonjurisdictional characterization) to resolve the case. And, second, it hid from the Court a critical piece of the puzzle: the possibility that the rule might fall in the middle by being nonjurisdictional yet immune to the kind of equitable exception proffered by Bowles.

A Role for Mandatory Rules

These hybrid rules, found between the two boxes in the false dichotomy, have a role to play. Jurisdictional attributes can be combined in various ways to create different species of hybrid rules, so let me discuss the one relevant to the rule at issue in Bowles, what I have called “mandatory rules.”

A mandatory rule is nonjurisdictional but nevertheless has the jurisdictional attribute of being unsusceptible to equitable excuses for noncompliance.11 Thus, a mandatory rule has the nonjurisdictional attributes of being waivable, forfeitable, and consentable, and a court has no obligation to monitor it sua sponte. However, if the rule is properly invoked by the party for whose benefit it lies, a court has no discretion to excuse noncompliance.

The benefits of such a rule are numerous. Waiver, consent, and forfeiture allow the parties to designate which issues require court decision and which are of such relative unimportance to the parties that they would rather forgo the costs of litigating them. They promote finality by ensuring that a relatively unimportant rule that is waived and quickly forgotten will not rise later on its own to unravel months or years worth of litigation and the settled expectations and choices of the parties. And, they reduce the unfairness of allowing the noncomplying party to raise her own default as a basis for overturning an adverse result. In sum, mandatory rules further efficiency and economy, encourage settlement, maintain finality, and promote fairness, all while preserving litigant autonomy and the adversarial process.

In addition, a mandatory but nonjurisdictional characterization relieves the court of the burden to police the rule sua sponte, an obligation that can impose significant costs on a court. Thus, mandatory rules further accuracy and conserve judicial resources by ensuring that the courts need only resolve the issue when the parties have raised and briefed it.

Inflexibility—even in the face of equity—also has its virtues. Precluding equitable excuses incentivizes compliance, maintains finality and reliance interests, constrains judicial discretion and thus promotes fairness and equity across cases, furthers the rule of law, and conserves judicial resources by avoiding the need to litigate a host of potential equitable issues. The primary detraction is that the preclusion of equitable excuses might be harsh and unfair in specific cases. But, at least in theory, some situations call for a rule that values inflexibility over equity.

Neither a jurisdictional rule nor a nonjurisdictional, nonmandatory rule can boast of all of these benefits. That is not to say that a mandatory characterization is warranted in every situation. To the contrary, other situations may call for a jurisdictional rule, or perhaps for a nonjurisdictional rule that must be policed sua sponte by the courts. But my point is that we ought to break from the dichotomy to explore the various combinations available in the middle of the road that ought also, at least in theory, to occupy beneficial niches. Mandatory rules are just the one I have chosen to illustrate here.

Mandatory Sovereign Immunity

In the Article, I make the case for a mandatory characterization of the deadline to file a notice of appeal. Though powerful, it is a relatively ordinary case of statutory interpretation. To demonstrate the value of a broader appreciation for mandatory rules and other hybrid rules, I want to show here how they might resolve a nonstatutory rule: the complex doctrine of state sovereign immunity, which, simply stated, is the prerogative of a nonconsenting sovereign not to be sued.

State sovereign immunity is a good example because it has fallen victim to the false dichotomy. Sovereign immunity is inherent in the nature of sovereignty and, as such, ought to be important enough to exhibit jurisdictional features. Yet it can be waived and consented to, which undermines its jurisdictional status, thereby defying both boxes in the false dichotomy. As a result, the Supreme Court has struggled to characterize it definitively, instead adding confusing gloss such as stating that immunity “partakes of the nature of a jurisdictional bar.”12

The answer may very well be to break away from the false dichotomy and look for hybrid possibilities, and a mandatory characterization may be just the ticket. To make the case, I will discuss each feature of a mandatory rule and explain how it fits with state sovereign immunity.

A.     Waiver and Consent

Waiver and consent have been part and parcel of state sovereign immunity since the beginning of its long historical acceptance.13 They advance the primary function of immunity, which is to protect the dignity of the state,14 by putting control of the immunity right in the hands of the right holder. And, they give the state the opportunity to strike a balance between the importance of redressability for wrongs and important policy considerations involving the state and its fisc. These are powerful reasons why waiver and consent should be features of state sovereign immunity.

B.     Sua Sponte Requirement

The existence of sovereign immunity as a bar to suit should not have to be raised by the court sua sponte if no party raises it. There is little reason for the court to take an independent interest in immunity, particularly when the entity in the best position to assert or waive it—the state—is a party defendant. That is not to say that a court may never raise the issue on its own. There may be compelling reasons to do so in individual cases. For example, if it is unclear whether an entity is an arm of the state entitled to assert immunity or not, and the court cannot determine if the entity is consenting to suit or merely does not realize that it may be able to assert immunity, then a court may wish to raise the issue to determine whether or not the entity is truly consenting to suit. But these situations are more likely to come up on a case-by-case basis and should not require a blanket requirement. Far better, and more consonant with the underlying policies, to allow courts discretion to raise the issue when the need arises. In sum, courts should not be required to raise the immunity issue sua sponte.

C.     Forfeitability

There are good reasons why immunity should be forfeitable like any other affirmative defense. Requiring the defense to be asserted in a timely fashion, such as in the answer, allows the issue to be litigated at the outset, potentially avoiding the waste of judicial and litigant resources if it is asserted late in litigation or for the first time on appeal. Also, requiring a timely assertion prevents the state from intentionally delaying the assertion for some tactical advantage. In addition, it promotes clarity, consistency, and fairness in the litigation. And, finally, if immunity exists in substantial part to protect states from the burdens of suit, it makes logical sense to require the defense to be raised as early in the litigation as possible.

If immunity were difficult to determine, I might rethink forfeiture. After all, state sovereign immunity is designed to ensure respect for the states, and a rule that requires a decision whether or not to assert immunity at an early stage in the litigation when that decision cannot yet be made does not show much respect for the states and the doctrine of immunity. But the availability of immunity should be, in the vast majority of instances, readily apparent at the outset. Even if the availability of immunity is unclear, an entity usually can—and will have ample incentive to—assert the defense early anyway.15

There are two practical arguments against forfeiture, but they strike me as fairly weak. The first is that a no-forfeiture rule would protect those state entities that erroneously believed that they were not entitled to assert immunity but suddenly realized their mistake before the litigation ended but after the forfeiture deadline had expired. A no-forfeiture rule for those cases might enable a court to resolve whether the state entities had consented to suit voluntarily. But, as I mentioned above, these cases strike me as very rare indeed, and, to the extent they arise, defendants already have the opportunity to amend their answers to assert affirmative defenses previously omitted if justice so requires.16 The risk that a nonconsenting state entity will unknowingly forfeit an available immunity defense and be unable to assert it, particularly with the opportunity of a court to raise the issue sua sponte, seems extremely low and provides very little support for a no-forfeiture rule of state sovereign immunity.

The second practical argument is that states may need time to consider carefully whether to waive immunity or not in specific cases, a decision that may not be able to be made without information from the discovery process. Respect for the states and their prerogative to invoke or waive immunity counsels against a strict and early forfeiture rule in these circumstances. However, it is not clear to me, as an empirical matter, whether such situations come up often enough to justify it. Even if so, there is an easy solution: a state should assert the immunity defense in its answer but decline to move to dismiss the case before discovery and, instead, after discovery has closed, either waive immunity or move for summary judgment. The point is that the state can preserve its immunity against forfeiture by asserting it in a timely fashion without seeking dismissal on the basis of immunity until it is ready to do so.

D.     Equity

The final attribute to consider is the availability of equity to prevent an assertion of the immunity bar. In other words, might there be equitable reasons why a court could hear a claim against an unconsenting state despite its otherwise proper invocation of immunity? Two reasons suggest that the answer is no. First, the Court’s stringent waiver rules indicate that anything outside of a clear and voluntary waiver or declaration of consent will not deprive a state of its immunity right. These rules suggest that equitable estoppel, to the extent that it is a kind of implied waiver or consent, should not be available to prevent a state from asserting immunity. Second, immunity is inherent in sovereignty, and, as a result, is of a mandatory and inflexible nature subject only to the prerogative of the sovereign. The sovereign interests served by state sovereign immunity—deference to state dignity and protection of the state fisc—transcend individualized notions of fairness that arise in the context of a specific litigation. Indeed, the whole point is to prevent an injured citizen from recovering for unlawful state conduct. They ought not be subject to the whim of circumstances or the parties’ actions, save where those actions manifest a valid waiver or consent by the state.


In sum, I believe that a good argument can be made that state sovereign immunity might best be characterized as a nonjurisdictional, mandatory rule. But if I am wrong, then I happily revert to my broader point—regardless of the specific balance struck here, we need a more nuanced lexicon to deal with doctrines like state sovereign immunity. Regardless of whether a mandatory rule or some other characterization ultimately carries the day, we have found our way out of the false dichotomy and toward a better way to conceptualize and understand the doctrine.

At bottom, this article is not so much about arguing for a specific characterization of state sovereign immunity or the statute at issues in Bowles. Rather, the broader goal is to develop more creative thinking about these difficult characterization issues, to open our minds to the myriad of possibilities that exist for them, and to resolve them with both honesty and principle.dingbat



Copyright © 2009 Stanford Law Review.

Scott Dodson is Assistant Professor of Law at University of Arkansas School of Law.

This Legal Workshop Editorial is based on the following Article:   Scott Dodson, Mandatory Rules, 61 STAN. L. REV. 1 (2008).

  1. John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750 (2008).
  2. See Scott Dodson, In Search of Removal Jurisdiction, 102 NW. U. L. REV. 55 (2008).
  3. I say “usually” because there may be jurisdictional rules whose effects are more nuanced. See generally Scott Dodson, Appreciating Mandatory Rules: A Reply to Critics, 102 NW. U. L. REV. COLLOQUY 228 (2008),
  4. See, e.g., Day v. McDonough, 547 U.S. 198, 205 (2006); E. King Poor, Jurisdictional Deadlines in the Wake of Kontrick and Eberhart: Harmonizing 160 Years of Precedent, 40 CREIGHTON L. REV. 181, 207 n.172 (2007).
  5. For example, certain nonjurisdictional bankruptcy rules may not be susceptible to consent or equitable exception, and the nonjurisdictional exhaustion requirement imposed on a state prisoner seeking a federal writ of habeas corpus under 28 U.S.C. § 2254(b) cannot be forfeited by the State or subject to estoppel.
  6. 127 S. Ct. 2360 (2007).
  7. 28 U.S.C. § 2107(c).
  8. Bowles, 127 S. Ct. at 2366.
  9. Id. at 2367 (Souter, J., dissenting).
  10. See Scott Dodson, Jurisdictionality and Bowles v. Russell, 102 NW. U. L. REV. COLLOQUY 42, 46 (2007),
  11. See id. at 46-47. Note that my definition is critically different than Justice Souter’s, who describes a mandatory rule as one that, while “enforceable at the insistence of a party claiming its benefit or by a judge concerned with moving the docket, it may be waived or mitigated in exercising reasonable equitable discretion.” Bowles, 127 S. Ct. at 2368 (Souter, J., dissenting). I take this to mean that Justice Souter believes a mandatory rule may be mitigated through the exercise of reasonable equitable discretion. I disagree with that definition. Allowing a “mandatory” rule to be subject to equitable discretion would render the “mandatory” moniker meaningless, for there would be nothing “mandatory” about it.
  12. Edelman v. Jordan, 415 U.S. 651, 677-78 (1974).
  13. Great N. Life Ins. Co. v. Read, 322 U.S. 47, 53-54 (1944); Clark v. Barnard, 108 U.S. 436, 447 (1883).
  14. See Fed. Mar. Comm’n v. S.C. State Ports Auth., 535 U.S. 743, 760 (2002).
  15. See, e.g., N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189 (2006) (entertaining the assertion of sovereign immunity by a county whose ability to invoke immunity was unclear).
  16. See FED. R. CIV. P. 15(a); cf. Day v. McDonough, 547 U.S. 198, 208 (2006) (recognizing the utility of Rule 15 to assert defenses otherwise forfeited).

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