What Is “Hypothetical Jurisdiction” Over An Appeal?


As we all know, courts do not issue advisory opinions on hypothetical questions – hence the requirement of an “actual case or controversy,” even in a declaratory judgment action. In certain circumstances, though, an appellate court may exercise “hypothetical jurisdiction” in order to reach the merits in an appeal where appellate jurisdiction is uncertain. The rationale for exercising hypothetical jurisdiction is that it promotes judicial economy by allowing the court to rest its decision on the most clear-cut of the dispositive issues, and thus avoid spending extensive time researching and analyzing more complex issues, disposition of which is not essential to resolving the case.

The federal courts have long recognized their power to exercise hypothetical jurisdiction, bypassing difficult jurisdictional questions in cases where the substantive merits are more clear. The Supreme Court expressly endorsed this practice in Norton v. Mathews, 427 U.S. 524, 96 S. Ct. 2771 (1976). Later, in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S. Ct. 1003 (1998), the Court somewhat limited the exercise of such jurisdiction, finding it improper in the context of Article III jurisdictional questions. In cases not involving constitutional jurisdictional issues, however, some federal appellate courts have continued to exercise hypothetical jurisdiction when they have found it appropriate. The Third Circuit has done so repeatedly in the years since the Supreme Court decided Steel Co. See, e.g., Bond v. Beard, 539 F.3d 256 (3d Cir. 2008); Bello v. Gonzales, 152 Fed. Appx. 146 (3d Cir. 2005); Bowers v. NCAA, 346 F.3d 402 (3d Cir. 2003).

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