Matters in Abatement

I. INTRODUCTION Section 2105 of the Judicial Code, which forbids appellate review of non-jurisdictional matters in abatement, is perhaps the most commonly ignored limitation on federal jurisdiction. (1) Certainly it is one of the most puzzling. Although it has been on the books, in one form or another, since the Judiciary Act of 1789, it has received scant attention from the bench, bar, and academy. What little regard the legal community does pay it is largely negative. Wright, Miller & Cooper, one of the few authorities that appears to be aware of this provision's existence, (2) went so far as to call for its "[p]rompt repeal," suggesting that it could not be applied coherently, and that sporadic invocation, facile avoidance, and blatant disregard were all inferior alternatives to its speedy demolition. (3) I believe such concerns are overwrought. Congress acted wisely in removing non-jurisdictional matters in abatement from the field of appellate concerns. The courts, unfortunately, do not appear to have made as much of the statute as they might. Particularly in light of the increasing workload of the federal courts of appeals, (4) the time has come to resurrect [section] 2105, dust off the decades of disuse, and apply it with renewed vigor. Here, I suggest how that might be done, and how a better understanding of abatement could draw new light into the void between jurisdiction and merits. In Part II, I trace the history of the provision from its initial enactment as part of the first Judiciary Act to its reincarnation in its present form as part of the wholesale revision of the Judicial Code in 1948. In Part III, I describe how courts have employed the provision over the years, with particular emphasis on the roles played by its three main substantive components: "reversal," "matters in abatement," and "involve jurisdiction." I conclude that, in an attempt to minimize the statute's reach (and avoid analysis of "abatement"), courts have improperly read the core of the statute too narrowly and its main exception too broadly. After offering what I believe to be a more robust reading of the statute, I then proceed in Part IV to discuss ways in which courts might think about abatement generally, with a special focus on where to place it on the jurisdiction-merits spectrum and how this ancient plea could be rationally incorporated into a modern procedural system. I suggest that applying the emerging notion of mandatory rules to identify matters in abatement assists in its categorization, and that abatement adds color to this recently recognized concept. I conclude that when properly construed, the prohibition on review of matters in abatement other than jurisdiction is a narrow, useful bar on resorting to the federal courts of appeals. Avoidance of section 2105 by the courts is neither necessary nor warranted. Rather than repeal, increased awareness of this little provision by the bench and bar would assist them in achieving the "just, speedy, and inexpensive determination" (5) of many actions by preventing another round of litigation where none should be had. II. HISTORY OF SECTION 2105 Passed shortly before the first session of the Supreme Court (and therefore before the federal government truly began functioning), (6) the Judiciary Act of 1789 (7) has been lauded as "probably the most important and the most satisfactory Act ever passed by Congress."(8) Through its thirty-five sections, the Act establishes the Supreme Court and inferior federal courts (9) and defines the scope of their powers, from such minutia as directing the timing of their sessions and place of meeting, and permitting the appointment of clerks and marshals (10) to the scope of federal jurisdiction and its allocation between the district, circuit, and Supreme courts. (11) Section 22 of the Judiciary Act of 1789 concerns the appellate jurisdiction of the circuit courts and Supreme Court. …