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KARO v. NAU COUNTRY INS. CO.

Cite as 297 Neb. 798

Matt Karo and Michael Karo, 

appellees, v. NAU Country

Insurance Company, appellant.

___ N.W.2d ___

Filed September 22, 2017. No. S-16-810.

1. Judgments: Jurisdiction. A jurisdictional issue that does not involve a 

factual dispute presents a question of law.

2. Arbitration and Award: Federal Acts: Contracts. If arbitration arises 

from a contract involving interstate commerce, it is governed by the 

Federal Arbitration Act.

3. Arbitration and Award: Federal Acts: Contracts: Insurance: Crops. 

The arbitration of disputes arising under federally reinsured crop insurance contracts plainly involves interstate commerce and, as such, is 

governed exclusively by the Federal Arbitration Act.

4. Jurisdiction: Appeal and Error. Before reaching the legal issues 

presented for review, it is the duty of an appellate court to determine 

whether it has jurisdiction over the matter before it. This is so even 

where neither party has raised the issue.

5. Federal Acts: Jurisdiction: Time. To determine whether a time limit 

in a federal statute is a jurisdictional requirement, an appellate court 

inquires whether Congress has “clearly stated” that the rule is jurisdictional; absent such a clear statement, courts should treat the restriction 

as nonjurisdictional in character.

6. Arbitration and Award: Federal Acts: Jurisdiction: Notice: 

Limitations of Actions: Appeal and Error. The clear language of 9 

U.S.C. § 9 (2012) indicates Congress intended the statutory time limits 

on serving notice of an application for judicial review under the Federal 

Arbitration Act to be jurisdictional.

7. Arbitration and Award: Federal Acts: Limitations of Actions: 

Appeal and Error. Under the Federal Arbitration Act, once the arbitrator has heard a case and entered an award, Congress has placed 

strict limitations on judicial review of the arbitration award by placing 

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www.nebraska.gov/apps-courts-epub/

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temporal limits on when a court is authorized to review an award and 

by limiting the grounds upon which a court is authorized to vacate or 

modify an award. In that regard, streamlined judicial review of an arbitrator’s award under the Federal Arbitration Act is similar to a restricted 

appellate review.

8. Jurisdiction: Limitations of Actions: Appeal and Error. Statutory 

time limits on appellate review are almost always considered jurisdictional in nature, both historically and presently, and strict compliance 

with such time limits is necessary.

9. Jurisdiction: Limitations of Actions: Dismissal and Nonsuit: Appeal 

and Error. The statutory time limits on notices of appeal are more 

than simple claim-processing rules, and when an appeal has not been 

prosecuted in the manner directed, within the time limited by the acts of 

Congress, it must be dismissed for want of jurisdiction.

10. Arbitration and Award: Federal Acts: Notice: Time: Appeal and 

Error. Similar to a notice of appeal, the Federal Arbitration Act’s 

requirement that those seeking expedited judicial review must serve 

notice of their application in a certain manner and within a specified 

timeframe is more than a simple claim-processing rule; it is the statutory 

procedure that defines which forum has authority over the dispute and 

delineates the classes of cases the court may review.

11. Arbitration and Award: Federal Acts: Jurisdiction: Motions to 

Vacate: Notice: Time. The notice requirement under 9 U.S.C. § 12 

(2012) is jurisdictional in nature, and a party’s failure to serve notice of 

an application for judicial vacatur in the manner directed and within the 

time limits required has jurisdictional consequences.

12. Judgments: Jurisdiction. When a court lacks jurisdiction and nonetheless enters an order, such order is void.

13. Judgments: Final Orders: Jurisdiction: Appeal and Error. A void 

order is a nullity which cannot constitute a judgment or final order that 

confers appellate jurisdiction on a court.

Appeal from the District Court for Holt County: Mark D. 

Kozisek, Judge. Vacated and dismissed.

Thomas M. Locher and Amy Locher, of Locher, Pavelka, 

Dostal, Braddy & Hammes, L.L.C., and Mitch D. Carthel, of 

Mullin, Hoard & Brown, L.L.P., for appellant.

Sean A. Minahan, of Lamson, Dugan & Murray, L.L.P., 

for appellees.
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Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Stacy, J.

This is an appeal from a judgment of the Holt County 

District Court vacating an arbitration award under the Federal 

Arbitration Act (FAA).1 Because we conclude the district court 

lacked jurisdiction to vacate the arbitration award, we vacate 

the district court’s judgment and dismiss the appeal.

I. FACTS

Matt Karo and Michael Karo farm together in Holt County, 

Nebraska. They each obtained federally reinsured crop insurance policies, serviced by NAU Country Insurance Company 

(NAU), for the acres at issue in this dispute.

In 2012, the Karos submitted “prevented planting” claims 

under their crop insurance policies, claiming they were unable 

to plant corn on certain acres due to wet conditions. Federal 

crop insurance policies are uniform, and the provisions of the 

policies are codified at 7 C.F.R. § 457.8 (2017). “Prevented 

planting” for the purpose of federal crop insurance is defined 

as follows:

Failure to plant the insured crop by the final planting 

date designated in the Special Provisions for the insured 

crop in the county, or within any applicable late planting 

period, due to an insured cause of loss that is general 

to the surrounding area and that prevents other producers from planting acreage with similar characteristics. 

Failure to plant because of uninsured causes such as lack 

of proper equipment or labor to plant the acreage, or use 

of a particular production method, is not considered prevented planting.2

The policies issued to the Karos also provided, “[I]f it is possible for you to plant on or prior to the final planting date 

1 9 U.S.C. § 1 et seq. (2012).

2 7 C.F.R. § 457.8, ¶ 1.
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when other producers in the area are planting and you fail to 

plant, no prevented planting payment will be made.”3

It is undisputed that in 2012, the Karos did not plant their 

corn crop on the insured acres prior to the final planting 

date. The Karos claimed continuous wet conditions prevented 

them from doing so. The Karos did not attempt to plant corn 

during the late planting period, but did plant soybeans on 

some acres.

NAU denied the Karos’ prevented planting claims. It found 

that excessive moisture was not general to the surrounding area 

and did not prevent other producers from planting acres with 

similar characteristics.

1. Arbitration

Pursuant to a mandatory arbitration clause in the crop insurance policies,4

 the parties submitted their disputes to binding 

arbitration. After an evidentiary hearing, the arbitrator issued 

a final arbitration award in favor of NAU, denying the Karos’ 

claims under the “prevented planting coverage” of the crop 

insurance policies. The arbitration award denying coverage 

was issued January 21, 2014.

In denying coverage, the arbitrator found “[t]he evidence 

as presented, concerning the excessive moisture in the area in 

early spring, did not prevent most other producers with acreage 

with similar characteristics from planting their acres.”

2. The Karos Seek to Judicially

Vacate Arbitration Award

On May 15, 2014, the Karos filed what they termed a 

“Petition for Judicial Review” in the Holt County District 

Court seeking to vacate the arbitration award under § 10 of the 

FAA.5 Section 10(a) provides:

3 Id., § 457.8, ¶ 17(d)(2).

4 See id., § 457.8, ¶ 20(a) (“[For Reinsured Policies]”).

5 See 9 U.S.C. § 10.
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In any of the following cases the United States court in 

and for the district wherein the award was made may 

make an order vacating the award upon the application of 

any party to the arbitration—

(1) where the award was procured by corruption, fraud, 

or undue means;

(2) where there was evident partiality or corruption in 

the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in 

refusing to postpone the hearing, upon sufficient cause 

shown, or in refusing to hear evidence pertinent and 

material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or 

so imperfectly executed them that a mutual, final, and 

definite award upon the subject matter submitted was 

not made.

The Karos relied on § 10(a)(4) to support their request to 

vacate the award.

NAU filed a motion to dismiss pursuant to Neb. Ct. R. Pldg. 

§ 6-1112(b)(6), alleging the Karos had failed to state a claim 

upon which relief could be granted. The district court overruled the motion and required NAU to file an answer. NAU’s 

answer generally denied the Karos’ complaint for vacatur, and 

it set forth several affirmative defenses, but NAU did not file 

an application or motion to confirm the award.6

In March 2016, all parties moved for summary judgment. 

After an evidentiary hearing, the court granted the Karos’ summary judgment motion and vacated the arbitration award under 

§ 10(a)(4) of the FAA, finding that the arbitrator exceeded his 

powers and manifestly disregarded the law.

NAU timely appealed from that judgment, and we granted 

its petition to bypass the Nebraska Court of Appeals.

6 See 9 U.S.C. § 9.
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II. ASSIGNMENTS OF ERROR

NAU assigns, restated, that the district court erred in (1) 

reviewing and vacating the arbitration award; (2) applying 

the manifest disregard of the law doctrine; (3) ruling that the 

arbitrator exceeded his powers or so imperfectly executed them 

that a mutual, final, and definite award upon the subject matter submitted was not made; and (4) refusing to grant NAU’s 

motion for summary judgment.

III. STANDARD OF REVIEW

[1] A jurisdictional issue that does not involve a factual dispute presents a question of law.7

IV. ANALYSIS

1. FAA Governs This Appeal

[2,3] As a threshold matter, we agree with the district court 

and the parties that the issues presented in this appeal are 

governed by the FAA. It is well-settled that “if arbitration 

arises from a contract involving interstate commerce, it is governed by the FAA.”8

 The arbitration of disputes arising under 

federally reinsured crop insurance contracts plainly involves 

interstate commerce and, as such, is governed exclusively by 

the FAA.9

2. Judicial Vacatur Under FAA

[4] Before reaching the legal issues presented for review, 

it is the duty of an appellate court to determine whether it 

7 In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017).

8 Aramark Uniform & Career Apparel v. Hunan, Inc., 276 Neb. 700, 703, 

757 N.W.2d 205, 209 (2008).

9 Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538 

(2010); Svancara v. Rain and Hail, LLC, No. 8:09CV144, 2009 WL 

2982906 (D. Neb. Sept. 11, 2009) (unpublished memorandum and order) 

(citing Nobles v. Rural Community Ins. Services, 122 F. Supp. 2d 1290 

(M.D. Ala. 2000)).
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has jurisdiction over the matter before it.10 This is so even 

where, as here, neither party has raised the issue.11 The threshold issue we must address is whether the Karos satisfied 

the statutory preconditions to seeking judicial vacatur under 

the FAA.

“Congress enacted the FAA to replace judicial indisposition to arbitration with a ‘national policy favoring [it] and 

plac[ing] arbitration agreements on equal footing with all 

other contracts.’”12 The FAA includes mechanisms for enforcing arbitration awards in state and federal courts that have 

jurisdiction,13 including provisions for obtaining judicial confirmation of the award,14 and separate provisions for judicial 

vacatur15 or modification16 of an award. The U.S. Supreme 

Court has described these provisions as providing “expedited 

judicial review”17 of arbitration awards, and it has observed 

that “[a]n application for any of these orders will get streamlined treatment as a motion, obviating the separate contract 

action that would usually be necessary to enforce or tinker with 

an arbitral award in court.”18

We observe that in the present case, the district court 

and the parties appear to have treated the Karos’ request for 

10 Clarke v. First Nat. Bank of Omaha, 296 Neb. 632, 895 N.W.2d 284 

(2017).

11 Schlake v. Schlake, 294 Neb. 755, 885 N.W.2d 15 (2016).

12 Hall Street Associates, L. L. C. v. Mattel, Inc., 552 U.S. 576, 581, 128 S. 

Ct. 1396, 170 L. Ed. 2d 254 (2008).

13 Hall Street Associates, L. L. C., supra note 12.

14 9 U.S.C. § 9.

15 Id., § 10.

16 Id., § 11

17 Hall Street Associates, L. L. C., supra note 12, 552 U.S. at 592.

18 Id., 552 U.S. at 582. See, also, 9 U.S.C. § 6 (“[a]ny application to the 

court [under the FAA] shall be made and heard in the manner provided 

by law for the making and hearing of motions, except as otherwise herein 

expressly provided”).
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judicial vacatur not as a motion, but, rather, as an ordinary 

civil complaint, governed by the Nebraska Court Rules of 

Pleading in Civil Cases and amenable to motions for summary 

judgment under Neb. Rev. Stat. § 25-1330 et seq. (Reissue 

2016). While the procedure used here runs contrary to that 

mandated by the FAA and threatens to develop expedited 

judicial vacatur into full scale litigation with evidentiary hearings and dispositive motions,19 no one assigns this as error, 

and in any event, the procedure followed does not drive our 

disposition of this case. Instead, our disposition focuses on 

the statutory 3-month notice requirement for seeking judicial 

vacatur under the FAA20 and whether that requirement is jurisdictional in nature.

Section 12 of the FAA governs motions to vacate and 

modify awards under §§ 10 and 11 of the FAA.21 Section 12 

provides, in relevant part:

Notice of a motion to vacate, modify, or correct an 

award must be served upon the adverse party or his 

attorney within three months after the award is filed or 

delivered. If the adverse party is a resident of the district 

within which the award was made, such service shall be 

made upon the adverse party or his attorney as prescribed 

by law for service of notice of motion in an action in 

the same court. If the adverse party shall be a nonresident then the notice of the application shall be served 

by the marshal of any district within which the adverse 

party may be found in like manner as other process of 

the court.

19 See O.R. Securities v. Professional Planning Assoc., 857 F.2d 742 (11th 

Cir. 1988) (under FAA and Federal Rules of Civil Procedure, proper way 

to request judicial vacatur is filing motion in district court rather than 

complaint; one defending award should not have burden of dismissing 

complaint).

20 9 U.S.C. § 12.

21 See id., §§ 10 through 12.
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Use of the terms “must” and “shall” in 9 U.S.C. § 12 of 

the FAA leaves little room to argue that the requirements 

of serving notice are permissive rather than mandatory. And 

we understand the 3-month notice requirement to implicitly 

require filing the application within the same timeframe.

Here, the record shows the arbitration award was issued 

January 21, 2014. It was received January 23, but the Karos 

did not move to vacate the award until May 15, when they 

filed the application in the district court and provided NAU 

notice of the same via U.S. mail. Because the Karos’ motion 

to vacate was filed and served outside the 3-month period 

mandated by § 12, we must determine the legal effect, if 

any, of the Karos’ delay. The U.S. Supreme Court has not 

addressed this question, but the Eighth Circuit Court of 

Appeals has.

In Piccolo v. Dain, Kalman & Quail, Inc.,

22 the Eighth 

Circuit determined that serving notice within the 3-month 

timeframe under § 12 is a statutory precondition to judicial 

review of an arbitration award. In that case, pro se parties to an arbitration award governed by the FAA sought to 

vacate the award more than 3 months after it was issued. 

The federal district court dismissed the matter, finding that 

the parties’ failure to serve notice within 3 months of the 

arbitration award deprived the court of power to review 

the award under the FAA. The Eighth Circuit Court of 

Appeals agreed, reasoning that “[a] party to an arbitration 

award who fails to comply with the statutory precondition of timely service of notice [under § 12 of the FAA] 

forfeits the right to judicial review of the award [under 

§ 10 of the FAA].”23 The court went on to conclude that a 

party’s “failure to serve [a motion] to vacate within three 

months of the award deprived [the district court] of power 

22 Piccolo v. Dain, Kalman & Quail, Inc., 641 F.2d 598 (8th Cir. 1981).

23 Id. at 600. See 9 U.S.C. §§ 10 and 12.
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to review the award.”24 Other courts have reached similar 

conclusions.25

Although the Eighth Circuit in Piccolo did not expressly 

hold the 3-month notice requirement under § 12 jurisdictional, 

it implied as much by holding that a court’s “power to review 

the award” is present only when the statutory preconditions 

of § 12 have been met.26 “Jurisdiction” is a term that “refers 

to a court’s adjudicatory authority,”27 and the U.S. Supreme 

Court has observed that “jurisdictional statutes ‘speak to the 

power of the court rather than to the rights or obligations of 

the parties.’”28

The Eighth Circuit’s opinion in Piccolo has been cited 

with approval by one panel of the 10th Circuit Court of 

Appeals,29 but another panel of the same circuit has concluded that the notice requirement in § 12 is more “in 

the nature of a statute of limitations, which is subject to 

waiver.”30 Other courts have relied upon the 3-month notice 

requirement under § 12 to preclude judicial consideration 

of untimely vacatur requests without expressly addressing 

whether the requirement is jurisdictional in nature.31 And 

24 Piccolo, supra note 22, 641 F.2d at 600.

25 See, Pfannenstiel v. Merrill Lynch, Pierce, 477 F.3d 1155 (10th Cir. 2007); 

Franco v. Prudential Bache Securities, Inc., 719 F. Supp. 63 (D. Puerto 

Rico 1989).

26 Piccolo, supra note 22, 641 F.2d at 600.

27 Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154, 160, 130 S. Ct. 1237, 176 

L. Ed. 2d 18 (2010).

28 Landgraf v. USI Film Products, 511 U.S. 244, 274, 114 S. Ct. 1483, 128 

L. Ed. 2d 229 (1994).

29 See Pfannenstiel, supra note 25.

30 See Foster v. Turley, 808 F.2d 38, 41 (10th Cir. 1986). See 9 U.S.C. § 12.

31 See, e.g., Lafarge Conseils et Etudes, S.A. v. Kaiser Cement, 791 F.2d 

1334 (9th Cir. 1986); White v. Mayflower Transit, LLC, 481 F. Supp. 2d 

1101 (C.D. Cal. 2007); M.J. Woods, Inc. v. Conopco, Inc., 271 F. Supp. 2d 

576 (S.D.N.Y. 2003); Federated Rural Elec. Ins. Ex. v. Nationwide Mut., 

134 F. Supp. 2d 923 (S.D. Ohio 2001).
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while some courts have indirectly approached the jurisdictional question by considering whether the time limit 

in § 12 is subject to equitable tolling, those courts have 

reached inconsistent conclusions despite applying similar 

legal principles.32

The present case requires us to squarely address this unsettled question of federal law and decide whether the 3-month 

time limit in § 12 is a jurisdictional requirement. If it is, the 

Karos’ delay in filing their application and serving notice 

deprived the district court of jurisdiction to vacate the award. 

If, however, the time limit is more in the nature of an affirmative defense, then NAU waived it by failing to raise it in the 

district court.33

Before undertaking this jurisdictional analysis, we pause 

to clarify that the question before us has little to do with the 

unrelated, but equally unsettled, question of when a federal 

court has subject matter jurisdiction under the FAA.34 We 

are aware of the U.S. Supreme Court’s decision in Vaden 

v. Discover Bank35 and its holding that federal courts may 

hear claims under the FAA only when there is an independent basis for federal jurisdiction. In Vaden, the Court 

32 Compare, e.g., Move, Inc. v. Citigroup Global Markets, Inc., 840 F.3d 

1152 (9th Cir. 2016) (3-month time limit under FAA is subject to equitable 

tolling), and Chilcott Entertainment v. John G. Kinnard, 10 P.3d 723 

(Colo. App. 2000) (3-month notice requirement under § 12 of FAA is not 

subject to equitable tolling).

33 See John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 128 

S. Ct. 750, 169 L. Ed. 2d 591 (2008) (unless statutory time limitation 

is jurisdictional, law typically treats statute of limitations defense as 

affirmative defense that must be raised or is waived). Cf. State v. Crawford, 

291 Neb. 362, 865 N.W.2d 360 (2015).

34 See, e.g., Kristen M. Blankley, A Uniform Theory of Federal Court 

Jurisdiction Under the Federal Arbitration Act, 23 Geo. Mason L. Rev. 

525 (2016).

35 Vaden v. Discover Bank, 556 U.S. 49, 129 S. Ct. 1262, 173 L. Ed. 2d 206 

(2009).
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explained that the “‘body of federal substantive law’” generated by the FAA is “equally binding on state and federal 

courts”36 but:

“As for jurisdiction over controversies touching arbitration,” however, the [FAA] is “something of an anomaly” 

in the realm of federal legislation: It “bestow[s] no federal jurisdiction but rather requir[es] [for access to a 

federal forum] an independent jurisdictional basis” over 

the parties’ dispute. . . . Given the substantive supremacy 

of the FAA, but the [FAA’s] nonjurisdictional cast, state 

courts have a prominent role to play as enforcers of 

agreements to arbitrate.37

The Karos filed their application for judicial vacatur in 

state court rather than federal court, so we are not concerned 

here with questions of federal court jurisdiction. Rather, the 

threshold question presented is whether the 3-month time limit 

under § 12 of the FAA is jurisdictional in nature, such that 

it cannot be waived and courts must consider the issue sua 

sponte even when the parties do not raise it.38

(a) Framework Under Federal Law 

for Determining When Statutory 

Time Limits Are Jurisdictional

Because the question presented requires this court to interpret federal law, we look to federal court decisions for guidance. The U.S. Supreme Court has, in recent years, endeavored 

to “‘bring some discipline’” to its “use of the term ‘jurisdictional’” due to what it described as its “‘less than meticulous’ 

use of the term in the past.”39 Generally speaking, it has done 

so by attempting to distinguish between those statutory time 

36 Id., 556 U.S. at 59.

37 Id.

38 See, John R. Sand & Gravel Co., supra note 33; 9 U.S.C. § 12.

39 Gonzalez v. Thaler, 565 U.S. 134, 141, 132 S. Ct. 641, 181 L. Ed. 2d 619 

(2012).
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limits which are merely “‘claim-processing rules’” and those 

which affect a court’s “‘adjudicatory authority’” and thus 

are jurisdictional.40

Over the past decade or so, the Court has granted certiorari 

in several cases to determine whether statutory time limitations 

were jurisdictional and, in most of those cases, concluded they 

were not.41 The Supreme Court has observed that “[m]ost statutes of limitations seek primarily to protect defendants against 

stale or unduly delayed claims” and for that reason, “the law 

typically treats a limitations defense as an affirmative defense 

that the defendant must raise at the pleadings stage and that 

is subject to rules of forfeiture and waiver.”42 The Court has 

described these ordinary statutory filing deadlines as “‘quintessential claim processing rules’” which “‘seek to promote 

the orderly process of litigation,’ but do not deprive a court 

of authority to hear a case.”43 Alternatively, when statutory 

time limitations “seek not so much to protect a defendant’s 

case-specific interest in timeliness as to achieve a broader 

40 Id.

41 Compare, e.g., U.S. v. Kwai Fun Wong, ___ U.S. ___, 135 S. Ct. 1625, 

191 L. Ed. 2d 533 (2015) (statutory requirement that suit under Federal 

Tort Claims Act be filed within 6 months after claim denied by federal 

agency is not jurisdictional); Sebelius v. Auburn Regional Medical 

Center, 568 U.S. 145, 133 S. Ct. 817, 184 L. Ed. 2d 627 (2013) (180-day 

filing deadline for filing appeals to Medicare’s Provider Reimbursement 

Review Board is not jurisdictional); and Henderson v. Shinseki, 562 U.S. 

428, 131 S. Ct. 1197, 179 L. Ed. 2d 159 (2011) (120-day deadline for 

filing notice of appeal seeking de novo review before Board of Veterans’ 

Appeals is not jurisdictional), with John R. Sand & Gravel Co., supra

note 33 (6-year statutory limitation on filing claims before U.S. Court 

of Federal Claims is jurisdictional and cannot be waived); Bowles 

v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 168 L. Ed. 2d 96 (2007) 

(statutory time limits for taking appeal in civil case are mandatory and 

jurisdictional).

42 John R. Sand & Gravel Co., supra note 33, 552 U.S. at 133.

43 Kwai Fun Wong, supra note 41, 135 S. Ct. at 1632 (quoting Henderson, 

supra note 41).
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system-related goal,” they more often are considered jurisdictional in nature.44

The Court has “urged that a rule should not be referred to 

as jurisdictional unless it governs a court’s adjudicatory capacity, that is, its subject-matter or personal jurisdiction.”45 But 

the Court has also recognized that even where a statutory time 

limitation appears to be a claim-processing rule, it may nevertheless be jurisdictional because “Congress is free to attach 

the conditions that go with the jurisdictional label to a rule 

that we would prefer to call a claim-processing rule.”46 The 

Court has acknowledged that “[w]hile perhaps clear in theory, 

the distinction between jurisdictional conditions and claimprocessing rules can be confusing in practice.”47

[5] To make it easier for courts applying federal law to 

determine whether statutory time limits are jurisdictional, the 

U.S. Supreme Court has recently adopted what it refers to 

alternatively as the “clear statement rule”48 or the “‘bright 

line’” rule.49 In Sebelius v. Auburn Regional Medical Center,

50

the Court explained the rule as follows:

To ward off profligate use of the term “jurisdiction,” 

we have adopted a “readily administrable bright line” 

for determining when to classify a statutory limitation 

as jurisdictional. . . . We inquire whether Congress 

has “clearly state[d]” that the rule is jurisdictional; 

absent such a clear statement, we have cautioned, 

“courts should treat the restriction as nonjurisdictional 

44 John R. Sand & Gravel Co., supra note 33, 552 U.S. at 133.

45 Henderson, supra note 41, 562 U.S. at 435.

46 Id.

47 Reed Elsevier, Inc., supra note 27, 559 U.S. at 161.

48 Kwai Fun Wong, supra note 41, 135 S. Ct. at 1632. See, also, Gonzalez,

supra note 39.

49 Sebelius, supra note 41, 568 U.S. at 153.

50 Sebelius, supra note 41.
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in character.” . . . This is not to say that Congress must 

incant magic words in order to speak clearly. We consider “context, including this Court’s interpretations of 

similar provisions in many years past,” as probative of 

whether Congress intended a particular provision to rank 

as jurisdictional.51

With these principles in mind, we review the statutory 

language of the FAA for any clear indication that Congress 

intended the statutory time limits on serving notice of an application for expedited judicial review to be jurisdictional.

(b) Congress Intended Notice Requirements 

Under §§ 9 and 12 to Be Jurisdictional

As noted, the FAA authorizes parties to an arbitration to 

apply for expedited judicial review of arbitration awards seeking either to confirm the award,52 vacate the award,53 or modify 

the award.54 The notice requirements for judicial confirmation 

are set out in § 9 of the FAA and the notice requirements for 

judicial vacatur and modification are set out in § 12.55 Under 

both §§ 9 and 12, it is mandatory that notice of any application be served on the adverse party, and the manner in which 

notice must be served is the same. Only the time period for 

serving the required notice is different—those applying for 

judicial confirmation may do so anytime within 1 year after 

the award,56 and those applying for judicial vacatur or modification must do so within 3 months after the award is filed 

or delivered.57

51 Id., 568 U.S. at 153-54 (citations omitted).

52 9 U.S.C. § 9.

53 Id., § 10.

54 Id., § 11.

55 Id., §§ 9 and 12.

56 Id., § 9.

57 Id., § 12.
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Section 9, which is titled “Award of arbitrators; confirmation; jurisdiction; procedure,” provides in pertinent part:

[A]ny time within one year after the award is made any 

party to the arbitration may apply to the court . . . for 

an order confirming the award, and thereupon the court 

must grant such an order unless the award is vacated, 

modified, or corrected as prescribed in sections 10 and 

11 of this title. . . . Notice of the application shall be 

served upon the adverse party, and thereupon the court 

shall have jurisdiction of such party as though he had 

appeared generally in the proceeding. If the adverse 

party is a resident of the district in which the award 

was made, such service shall be made upon the adverse 

party or his attorney as prescribed by law for service of 

notice of motion in an action in the same court. If the 

adverse party shall be a nonresident, then the notice of 

the application shall be served by the marshal of any district within which the adverse party may be found in like 

manner as other process of the court.58

Section 9 provides that an application for judicial confirmation “may” be filed anytime within 1 year after an award 

appears, and this language has caused federal courts to split 

over whether the 1-year time period is mandatory or permissive.59 But here, we are not concerned with interpreting the 

requirements for timely filing applications to confirm awards. 

Rather, we look to the language of § 9 for instruction, if 

any, on whether Congress considered the notice requirements 

attendant to the streamlined process for judicial review to be 

mandatory and jurisdictional in nature.

58 Id., § 9 (emphasis supplied).

59 See Teresa L. Elliott, Conflicting Interpretations of the One-Year 

Requirement on Motions to Confirm Arbitration Awards, 38 Creighton L. 

Rev. 661 (2005) (analyzing split in federal courts over whether 9 U.S.C. 

§ 9 allows parties to seek judicial confirmation of award more than 1 year 

after award is entered).
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Section 9 requires that notice of any application for judicial 

confirmation “shall be served upon the adverse party” and 

“shall be made” in the manner provided, and it then expressly 

provides that “thereupon,” after service of such notice, “the 

court shall have jurisdiction” over the adverse parties to the 

arbitration. This is a clear indication that Congress intended 

the statutory requirements for serving notice of an application for expedited judicial review under the FAA to be jurisdictional in nature. And while it is tempting to think about 

the FAA’s notice requirements using traditional notions of 

personal jurisdiction, we are not persuaded that the general 

jurisprudence governing obtaining and waiving personal jurisdiction in federal court actions has any proper application to 

the sort of streamlined judicial review Congress authorized 

under the FAA.

Both the title and the statutory language of § 9 indicate that 

Congress intended compliance with the notice requirement to 

carry jurisdictional consequence. This makes practical sense, 

because expedited judicial review under the FAA gets “streamlined treatment as a motion”60 and thus is not subject to the 

formal process or time restrictions on serving complaints. The 

FAA’s requirement of serving notice of an application on the 

adverse party is the only procedure governing movement of 

the case from the arbitral forum to the judicial forum.

[6] We conclude, based on the clear statutory language of 

§ 9, that the notice requirements governing judicial review 

under the FAA are intended to “govern[] a court’s adjudicatory capacity”61 and properly are termed jurisdictional. We next 

consider whether the same can be said for the 3-month time 

limit under § 12.

60 See Hall Street Associates, L. L. C., supra note 12, 552 U.S. at 582. See, 

also, 9 U.S.C. § 6 (“[a]ny application to the court [under the FAA] shall be 

made and heard in the manner provided by law for the making and hearing 

of motions, except as otherwise herein expressly provided”).

61 Henderson, supra note 41, 562 U.S. at 435.
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Under § 12, Congress used mandatory language to set out 

both the notice requirements and the timeframe for serving 

such notice. That section requires that notice of an application seeking judicial vacatur “must be served upon the adverse 

party or his attorney within three months after the award is 

filed or delivered.” Although Congress did not, in § 12, repeat 

the phrase from § 9 that “thereupon the court shall have jurisdiction” when addressing notice under § 12, we conclude it is 

appropriate to analyze §§ 9 and 12 together when considering 

the effect of the jurisdictional language.

We are mindful that the U.S. Supreme Court has counseled 

against restrictively “parsing the language” when comparing 

similar provisions of the sections governing judicial review 

under the FAA.62 In Cortez Byrd Chips, Inc. v. Bill Harbert 

Constr. Co.,

63 the Court considered whether differences in the 

permissiveness of the venue language used in § 9 (judicial 

confirmation) could be reconciled with the more mandatory 

venue language used in §§ 10 and 11 (judicial vacatur and 

modification). There, a unanimous Court held that the language of §§ 10 and 11 should be read to “supplement, but . . . 

not supplant” the permissive language of § 9, reasoning that 

these sections “are best analyzed together, owing to their contemporaneous enactment and the similarity of their pertinent 

language.”64 The Court noted some of the practical problems 

that would result from construing the venue requirements 

differently for judicial confirmation and vacatur, and it ultimately concluded that permissive venue was more consistent 

with the FAA’s “‘statutory policy of rapid and unobstructed 

enforcement of arbitration agreements.’”65 We assume the 

same interpretive reasoning applies here.

62 Cortez Byrd Chips, Inc. v. Bill Harbert Constr. Co., 529 U.S. 193, 198, 

120 S. Ct. 1331, 146 L. Ed. 2d 171 (2000).

63 Cortez Byrd Chips, Inc., supra note 62.

64 Id., 529 U.S. at 198.

65 Id., 529 U.S. at 201.
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Although different timeframes apply for serving notice 

under §§ 9 and 12, there is no difference in the mandatory 

process by which the adverse party must be served with notice 

of the application, and no difference in the practical purpose for requiring such notice. It would make little sense for 

Congress to give clear jurisdictional weight to serving notice 

in one context but not the other, and we see nothing in the 

language or purpose of the FAA that would compel the conclusion that Congress intended the statutory notice requirements 

for expedited judicial review to be jurisdictional when a party 

seeks judicial confirmation, but not when a party seeks judicial vacatur or modification. Even though § 9 governs judicial 

confirmation, it expressly references vacating, modifying, or 

correcting awards “as prescribed in sections 10 and 11 of 

this title”66 before stating the jurisdictional impact of serving 

notice of applications for judicial review. Due to the similarity 

of the mandatory notice procedures, we analyze §§ 9 and 12 

together, and we conclude that whether an arbitrating party is 

applying for judicial review to confirm an award under § 9 or 

to vacate or modify an award under §§ 10 and 11, Congress 

intended that a party’s failure to serve notice of the application in the manner directed, and within mandatory time limits, 

would have jurisdictional consequences.

(c) Context and Purpose of § 12 

Indicate It Is Jurisdictional

Our conclusion that Congress intended the 3-month time 

limit under § 12 to be jurisdictional is supported by more 

than just the presence of clear jurisdictional language in 

§ 9. The U.S. Supreme Court has directed that in addition 

to considering whether Congress used language clearly stating that a time limitation is jurisdictional, courts should 

consider “‘context, including this Court’s interpretations of 

similar provisions in many years past,’” as probative of 

66 9 U.S.C. § 9.
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whether Congress intended a particular provision to rank as 

jurisdictional.67

In discussing the purpose of the time limit in § 12, the 

Second Circuit Court of Appeals reasoned:

The role of arbitration as a mechanism for speedy dispute 

resolution disfavors delayed challenges to the validity 

of an award. . . . Thus, when a party to an arbitration 

believes that he has been prejudiced in the proceedings 

by behavior that the [FAA] condemns he must bring a 

motion to vacate within the allotted time. When the three 

month limitations period has run without vacation of 

the arbitration award, the successful party has a right to 

assume the award is valid and untainted, and to obtain its 

confirmation in a summary proceeding.68

Under the FAA, state and federal courts have only an ancillary role in the arbitration process. The U.S. Supreme Court 

has described judicial review under §§ 9 through 11 of the 

FAA as

substantiating a national policy favoring arbitration with 

just the limited [judicial] review needed to maintain arbitration’s essential virtue of resolving disputes straightaway. Any other reading opens the door to the full-bore 

legal and evidentiary appeals that can “rende[r] informal 

arbitration merely a prelude to a more cumbersome and 

time-consuming judicial review process” . . . .69

[7] Under the FAA, once the arbitrator has heard a case and 

entered an award, Congress has placed strict limitations on 

judicial review of the arbitration award by placing temporal 

limits on when a court is authorized to review an award70 and 

67 Sebelius, supra note 41, 568 U.S. at 153-54.

68 Florasynth, Inc. v. Pickholz, 750 F.2d 171, 177 (2d Cir. 1984) (citation 

omitted).

69 See Hall Street Associates, L. L. C., supra note 12, 552 U.S. at 588.

70 See, e.g., 9 U.S.C. §§ 9 and 12.
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by limiting the grounds upon which a court is authorized to 

vacate or modify such an award.71 In that regard, the streamlined judicial review of an arbitrator’s award is similar to 

restricted appellate review, and we conclude it is appropriate to 

view the timely notice requirements governing judicial review 

in that context as well.

Before addressing the law which has developed around the 

jurisdictional nature of notices of appeal, we pause to acknowledge that the streamlined motion process which Congress 

adopted for expedited judicial review of arbitration awards is 

procedurally unique and resists easy application of the settled 

jurisprudence that federal courts apply in both actions and 

appeals. Traditional concepts of subject matter jurisdiction, 

personal jurisdiction, and appellate jurisdiction are strained by 

the FAA’s streamlined procedure for judicial review of arbitrations. But until the U.S. Supreme Court weighs in on this issue, 

we find it necessary to draw from the settled jurisprudence 

governing those traditional concepts in order to resolve the 

jurisdictional questions which are not answered in the sparse 

provisions of the FAA.

[8] Unlike statutes of limitation that govern filing actions in 

the trial courts, statutory time limits on appellate review are 

almost always considered jurisdictional in nature, both historically and presently, and strict compliance with such time 

limits is necessary.72 The U.S. Supreme Court recognized as 

much in Bowles v. Russell.73

71 See, id., §§ 10 and 11; Hall Street Associates, L. L. C., supra note 12.

72 See, generally, 4 C.J.S. Appeal and Error § 361 (2007). See, also, 

Henderson, supra note 41, 562 U.S. at 438 (“time for taking an appeal 

from a district court to a court of appeals in a civil case has long 

been understood to be jurisdictional”); Fitzgerald v. Fitzgerald, 286 Neb. 

96, 835 N.W.2d 44 (2013) (appellate courts do not generally acquire 

jurisdiction of appeal unless notice of appeal is filed and docket fee is paid 

within 30 days of final order).

73 Bowles, supra note 41.
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[9] In Bowles, the Court considered whether the statutory 

time limit for filing a notice of appeal in a habeas action was 

jurisdictional. The district court had denied habeas relief and 

then gave the petitioner additional time in which to file his 

notice of appeal. According to federal statute, a notice of 

appeal must be filed within 30 days of entry of judgment,74

and district courts have limited authority to grant motions to 

reopen the time to file an appeal for a period of 14 days.75 The 

district court purported to reopen the filing period for more 

than 14 days. Because of this, the Court of Appeals found the 

notice of appeal was untimely filed and concluded it lacked 

jurisdiction over the appeal. The Supreme Court granted certiorari, and affirmed. The Court acknowledged that several of 

its recent opinions had undertaken to clarify the distinction 

between jurisdictional rules and claims-processing rules, but 

pointed out that “none of them calls into question our longstanding treatment of statutory time limits for taking an appeal 

as jurisdictional.”76 The Court went on to explain:

Because Congress specifically limited the amount of time 

by which district courts can extend the notice-of-appeal 

period in §2107(c), that limitation is more than a simple 

“claim-processing rule.” As we have long held, when an 

“appeal has not been prosecuted in the manner directed, 

within the time limited by the acts of Congress, it must 

be dismissed for want of jurisdiction.”77

Like the time-sensitive notice-of-appeal requirements considered jurisdictional in Bowles, the notice requirements that 

govern judicial review under the FAA are “more than a simple 

‘claim-processing rule.’”78 Like notices of appeal, the notice 

74 See 28 U.S.C. § 2107(a) (2012).

75 See id., § 2107(c).

76 Bowles, supra note 41, 551 U.S. at 210.

77 Id., 551 U.S. at 213.

78 Id.
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requirements for judicial review under the FAA play a critical 

role in the orderly movement of the case between forums in a 

multiforum system.

[10] The concept of jurisdiction—in its most essential form—

has been described as “erect[ing] both the fences that separate 

forums and the gates that cases may pass through.”79 The FAA’s 

requirement that one seeking judicial vacatur must serve notice 

of the application in a certain manner and within a specified 

timeframe, like the notice of appeal considered jurisdictional in 

Bowles, is the statutory procedure that defines which forum has 

authority over the dispute. Because it “‘delineat[es] the classes 

of cases’” the court may review, it is properly considered jurisdictional.80 Indeed, if the notice requirements under § 12 are 

not considered jurisdictional in nature, then we see nothing else 

in the FAA which purports to govern the movement of a case 

from the arbitral forum into the judicial forum for purposes of 

judicial vacatur or modification under §§ 10 and 11.

(d) 3-Month Notice Requirement 

Is Jurisdictional

[11] For all these reasons, we conclude that the 3-month 

notice requirement of § 12 is jurisdictional in nature and that 

the Karos’ failure to comply with the requirement deprived 

the district court of authority under the FAA to vacate the 

arbitration award under § 10. While expedited judicial review 

under § 10(a) of the FAA may not be the only way to bring an 

arbitration award before the courts,81 it was the only ground 

relied upon by the Karos in seeking vacatur, and we express no 

opinion about other possible avenues for judicial enforcement 

of this award.

79 Scott Dodson, Jurisdiction and Its Effects, 105 Geo. L.J. 619, 634 (2017).

80 Reed Elsevier, Inc., supra note 27, 559 U.S. at 160.

81 See Hall Street Associates, L. L. C., supra note 12, 552 U.S. at 590 (noting 

§§ 10 and 11 of FAA are “not the only way into court for parties wanting 

review of arbitration awards”).
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[12,13] When a court lacks jurisdiction and nonetheless 

enters an order, such order is void.82 “‘[A] void order is a nullity which cannot constitute a judgment or final order that confers appellate jurisdiction on [a] court.’”83 Because the district 

court lacked jurisdiction to enter a judgment vacating the arbitration award under the FAA, its judgment is void and NAU’s 

appeal from such judgment cannot confer appellate jurisdiction 

upon this court. Accordingly, we do not reach the other jurisdictional and legal issues briefed by the parties.

V. CONCLUSION

For the foregoing reasons, we vacate the district court’s 

judgment and dismiss this appeal for lack of jurisdiction.

Vacated and dismissed.

82 Anderson v. Finkle, 296 Neb. 797, 896 N.W.2d 606 (2017).

83 Id. at 802-03, 896 N.W.2d at 611.