Next this morning in case 18525, Fort Bend County versus davis. Ms. Sinzdak. Mr. Chief justice, may it please the court, when title 7s exhaustion requirement is satisfied, the power to address an employment discrimination claim shifts from the executive to the judicial branch. The exhaustion requirement is therefore jurisdictional in the plaintiffs sense of that word, and that is confirmed in at least three ways. First, the text and structure of section 2000 e 5 demonstrates that the exhaustion requirement is jurisdictional, ensuring that courts do not reach the merits of a claim before it has been presented to the expert agency. But the expert agency, unlike the examples that you give of agencies that have add jude ca tory authority, the eeoc has no authority to adjudicate. Yes, you have to let the complaint stay there for 180 days, but they dont decide anything or even if they decide to dismiss your claim, that has no preclusive effect in the court. So its one thing to say when Congress Sets up a scheme where the agency is the equivalent of a court of first instance, it makes a decision, and that decision is reviewed. But in a title 7 case, the court is never reviewing the decision of the eeoc because they dont have any authority to make decisions. Well, justice ginsberg, i think the important question with we respect to jurisdiction is whether the agency has been empowered to attempt to resolve a claim. I dont think the way that it resolves it the way its been empowered to resolve it, whether its add jude catory, or nonadversarial, i dont think that matters. What matters is whether congress Vested Authority in the agency to attempt to resolve it. I think with respect to title 7, its correct. The agency not using adversarial proceedings, and thats because, as we know, congress intended for employment discrimination claims to be resolved in a nonadversarial manner, to be resolved through conciliation or cooperation or means like that. So it wanted the agency to have the power to do that. And leaving the door open for the adversarial judicial process at the same time would certainly have undercut that intention. And i would also say that the agency does, in fact, make decisions. It makes a nocause or a cause determination, and it supervises conciliation, and if theres a conciliation, then there is no right, then, to go to the court. Its also the case that if the eeoc does nothing within 180 days, you can go to court, and the agency has done absolutely nothing at all. Thats correct. Its similar to mcneil, another case this court had with the federal torts claim act where the federal torts claim act did have a question federal tort claims act, you are suing the government. You are suing the United States. The United States has sovereign immunity, and it can say, you cant sue us unless. Theres no question about sovereign immunity here. There very much is in two important ways. First of all, state sovereign immunity is certainly implicated by section 2000 e 5 because it gives parties a right to sue states. But also section 2000 e 5 and the exhaustion requirement lets go back. How does Congress Give the states give a party the right to sue a state as congress has waived immunity . Thats thats correct. But the question is how narrowly to construe the waiver of sovereign immunity. This court has repeatedly held that waivers of sovereign immunity need to be narrowly construed. Section 2000 e 5 does implicate the federal governments sovereign immunity because section 2000 e 5 f is expressly incorporated in section 2000 e 16, which is the provision that allows for parties to sue the federal government. Yes, but i thought the title 7 waives that immunity. It waives the immunity, but, again, the question is how broad a waiver is there. And we know it needs to be narrowly construed. If congress said, yes, you can bring suit against the federal government, yes, you may bring suits against a state, but only after you have attempted to resolve this claim through nonadd jude ca tory methods, then we need to honor Congress Decision about the breadth of the waiver thats at stake in that case. Do you think that congress meant that if you take a case, title 7 case, take it to a District Court, take it to a court of appeals, the defendant has said not one word about exhaustion, the defendant loses in District Court, loses in the court of appeals, and says, aha, there was no shauexhaustion. All bets are off. We win. I think that is one effect of this being jurisdictional. Yes, congress did say this is a jurisdictional rule. But i think that is focusing on one relatively rare instance rather than on the reasons that congress would make a provision like this jurisdictional. What about the notion that if Congress Wants to make something jurisdictional, of course it can like its made the amounting controversy jurisdictional in diversity cases. But it didnt do that here. It didnt say its jurisdictional. I think that it did. I think that the text of section 2000 e 5 makes very clear that a civil action may be brought only after the eeoc has either dismissed the claim or has 180 days have passed, and then section 2000 e 5 f 3 only confers jurisdiction over actions brought under this subchapter. So i think theyre two separate sections. One is the jurisdictional section. Thats f3, and that doesnt say anything at all about exhaustion. Exhaustion is in a separate provision. Theyre not linked together in one provision. So they are both in subsection f. One is subsection f1, and the other is f3. They are certainly linked by the specific textual cues, which is subsection f3 says you only have jurisdiction over actions brought under this subchapter. Then subsection f1, in exactly the same terms, says a civil action may be brought only after the claims have been dismissed by the eeoc or after 180 days have passed. How does that differ from a suit for Copyright Infringement may not be brought until the copyright is registered . Well, there i dont think it wasnt in the same provision as the express jurisdictional grant. I also think, you know, were not just looking at text in isolation. You have to look at text in context. And here we have this very this text linking explicitly to the jurisdictional provision, and its part of an intricate scheme for statutory and judicial review. And this court, in case after case, has said that when congress you just used the word review. Its not judicial review. Its an agency, and then the court is hearing the case de novo. It is not reviewing anything that the agency has done. Well, the court has used the term review to refer to what the agency does. So i dont think its using review in the sense that there has to be a decision in front of it that its looking at. In fact, we know that but you use the word judicialry vijudicial review. But here in the title 7 case, the judiciary is reviewing nothing. No. Its reviewing the actions. Its reviewing the claim of employment discrimination in the same way that the agency reviewing the its adjudicating that claim de novo. The word review review is reviewing something. It isnt its taking a first view, and a first view is different from review. Well, im not sure thats how the court has been using it because it refers to administrative review, and we all agree that the agency is acting in the first instance. So i think it is referring to reviewing a claim, and certainly the courts are reviewing a claim. But, again, i dont want to get too bogged down in this. There is de novo review, but we think again that is because congress was setting out a scheme that was designed to encourage litigants to first go to this nonadversarial process. Thats satisfied by making it mandatory. This is a mandatory rule, and if the defendant raises it, thats it. But when a defendant doesnt raise it, let me ask you about a question about the premises of our system. Ordinarily we follow, as civil law courts dont, the principle of party presentation. So its left to parties to frame their complaint, frame their answer, and the court doesnt frame the questions, and they dont frame the defenses. So what youre suggesting really runs up against that main theme that its up to the parties to state their claims, up to the defendant to raise objections, defenses. I think that in john r. Sand, the court recognized that jurisdictional rules dont function in that way, and they dont function in that way because theyre generally intended to vindicate systemrelated goals. And its very clear here that title 7s exhaustion requirement is vindicating systemrelated goals. As we were discussing, its helping to protect sovereign immunity. Its also ensuring that the eeoc has its central role in the employment discrimination context. And it cant have that role if litigants are able to sort of do side agreements and just evade the eeoc entirely. What do we do with one other facet of title 7 . Title 7 is written for employees to state their grievances, and in many of these cases, these people are not represented at all, or if they are represented, its not counsel of real quality. Is that a factor that should be taken into account . I think that in enforcing the exhaustion requirement, courts have taken that into account. Its sort of similar to the notice of appeal setting where a notice of appeal is a jurisdictional requirement. But this court has been relatively flexible in order to recognize that sometimes there might be difficulty in satisfying that and to ensure that people do have their day in court. So i think if you look at no. I mean maybe weve been flexible in regarding some things as notices of appeal when theyre not phrased as such. But thats the end of it. Weve never been thats the whole point. Its jurisdictional. You dont get any slack no matter how equitable it may seem to give you some. Thats exactly right, mr. Chief justice, and i wouldnt disagree with that. But it is that flexibility in what is regarded as a notice of appeal that i think has translated into the eeoc context where theres some flexibility in what is regarded as an adequate charge. But what there is no flexibility on and i would agree with you completely because this is a jurisdictional requirement, there isnt flexibility on whether a charge is required. And, again, i think theres multiple reasons for that. Theres a long line but you place some considerable reliance on 2000 e 5 f 3, the jurisdictional provision for title 7. But what if that didnt exist so that a plaintiff would have to rely solely on 1331 . Would you have the same argument . It would be a different argument because we do have a textual link between the exhaustion requirement and a explicit grant of jurisdiction. But we know that when title 7 was first enacted in 1964, this was it because 2000 e 5 f 3 was it because 1331 had this amount in controversy requirement, and so congress created a special grant of jurisdiction. It textually linked that to the exhaustion requirement, and i dont think this court has ever held that 1331 can sort of be used as a get out of jail free card. You know, the general grant does not apply where a specific remedial scheme has demonstrated that it isnt available. We see that in Thunder Basin, and in elgin where the court is looking at whether that general grant of jurisdiction under 1331 has been displaced by a specific remedial scheme. When congress does that, as it did in Social Security act so we have 405, and it says, 1331 is not available. So when congress doesnt want 1331 to be there, it says so. I dont think thats always true. In fact, again, in Thunder Basin, it was facially silent, and yet this court held that 1331 was displaced. Even in some of this courts Social Security act cases, it has said, well, this particular claim isnt really covered by these explicit provisions, but we dont think that congress would have wanted claimants to be able to evade this remedial scheme by using 1331. And thats exactly, again, what we have here. As we note, its not just these more recent cases, but cases dating back over 100 years. Yes, 100 years when courts use expressions like mandatory and jurisdictional. And as you know, this court has said courts have used the word jurisdictional to mean many things, too many things. And this court tried to bring some order into a division between claim processing rules and jurisdictional rules. And your argument seems to back away from that division. No, absolutely not. Our argument is that this type of exhaustion requirement fundamentally affects the power of the courts because congress, rather than vesting power in the court, congress vests power in the can you imagine any administrative scheme that would not be jurisdictional . You seem to imply that we were wrong in re isever, and in homer city, because in both of them there were administrative processes, and yet we didnt find their preconditions to be jurisdictional. So tell me i think its a new rule. Ive never seen us say it. If you have to exhaust, its always jurisdictional if you dont. Why does congress bother writing into statutes Something Like they did in Thunder Basin where they said, if you dont raise something before the agency, the court cant consider it . Why bother with that . Thats what youre saying no. No. Were absolutely not saying that. Were not saying that every single type of exhaustion requirement out there, whether its about notice and comment, rulemaking, or state administrative procedures or whether its a statute that makes clear that the administrative scheme is exclusive, no, no, the exhaustion requirement is jurisdictional. No. Were saying that when Congress Sets out a scheme that is it goes to the court of appeals. We use the decision. The eeoc does not have that type of authority. You cannot make any finding. Only if the both sides agreed to. They have been repeatedly lifting as the model for the remedial position. The following requirement is not jurisdictional. That is why the following should be nonjurisdictional. The court did not think that difference was significant. It is not significant in this case even. Congress empowered the agency. Not the court. To address title vii claims. Not to resolve it. That is the normal difference. We decide the case. The court then reviews it. I do not think that because of this court decision. They acknowledged it was very possible that the agency had no authority to decide the constitutional claims. Nonetheless, the court held that it was a jurisdictional role. Even though we may have a constitutional question. The case may drop out on the ground. Before the court will never have to get to the constitutional questions. Social security has to go before the agency first. He may have a constitutional question. That is what the agency can do. Before the court can consider the case. What this court does with the case or claim may be fully resolved before the judicial grant had to wait in. That is exactly what we have here. They created a scheme that limited the jurisdiction of the judiciary. By giving authorities first to an agency that would resolve some of the claims so that they never have to pass on that. Not based on any legal question. It only has the role. Both parties have to say yes to facilitate. You agreed to that. Have no authority to decide. There is the normal review. It is performing a very effective function regardless. In 2016, they had about 70,000 claims. They estimate there is about 7000 eeoc losses. It is performing the function. The practical matter that will still be true so long as dependents raise the argument. On the practical implications, what your role putting the burden on the courts to look through the record to make sure each claim was specifically exhausted. Is it that very fact bound. Why should the courts be able to rely on defendants to do that in the first instance rather than doing it themselves in each and every case. The scent of the defendant has not allowed to the goals of the exhaustion requirement. There is going to be instances where defendants are not raising the requirement. They have to address it. In congress intended. Why did the defendant not want to raise any objection. It will result in the dismissal of the case. Returned to court. In that instance. Isnt there a time problem . There may or may not be. Such as one that filed the lawsuit without having into the eeoc, they will be promptly dismissed. In some circumstances there is actually 300 days. The idea that every time if an employer raises the right, that would be the city. There likely to be a real waste of time. They have been litigating for five years. You would have them go back. Lets go back to the eeoc and see if we can work this out. Trying to win. There will be no real purpose in sending it back. The question is what congress intended. It is very rare as far as we can tell. They have been able to point to it. This is not something that is coming up all of the time. The question is, what did congress dictate. The structure. That demonstrate that it did. After 2006. It seems to be about the time we adopted a much more focused understanding of jurisdictional required a pretty clear statement. I do not think that is correct. The text makes it pretty clear. From 2006 on, the court has readily recognized that the clear statement applies to the extent inaccurately reflects. That means that when the long line of this precedent undisturbed by Congress Grants a particular type of statutory condition, they will present their policy. There was a long line of this precedent that establishes that when congress creates an intricate judicial review, and generally intense. How do you distinguish it . It is about notice and comment review. It is about a scheme designed to make sure that the claim or the issue is first raised to the agency. The idea that we take that into account. We are talking about individualized claim resolution. We need to go to the agency or to the court. It was about notice and comment review. First of all that is not individualized. What is individualized, you are saying we should presume that congress did the exhausting scheme . That is what this court needs to look up. Individualized claim proceeding , that is all we know. As they said, you look at the text message and the structure. You look at the text to see how it is this game and a comprehensive visit. It is a example of that. The court did not find it concluded any direct avenue to the District Court. As you look at the text, you look at the structure. There is a bit of a overlap. Is there a detailed administrative review scheme. Again, you have that here. You look at the purposes. Is this the team that would best be forwarded by channeling all things to the administrative agency. Again that is certainly the case here. Thank you counsel. This court has held numerous times. In many other cases. The statute of limitations is not jurisdictional. That is meant to be a bright line rule. There is a statute that was passed before that. Yes your honor. I think the statement is intended to be the best way to discern congressional intent. That is what this court said in henderson. You talk about a situation where congressman be doing something unusual. Doing it in the jurisdictional status. A waste of time. The button that this will place on the District Court. I think it is right that the court should demand a clear statement from congress. Before saying they made the jurisdictional role. You do in other types of context. Things like that. You asked for a clear statement. If i can answer a question. You have held. Resisting stages again and again. Every single case was applied the clear statement role. How does that make sense . Starting out. Hereby knows it was a real mess before then. Prior to the time that we said that. This is the way of concerning intent in these important cases. The question we are asking, is this of the highlevel that would have to be a jurisdictional status. Are going to want to impose this type of coast. Do we want to give congress clear guidance. When they are deciding what to do with statutes. That is probably right. The clear statement. History. We follow the history. It is a way of discerning clear statements. There is absolutely no history. Is a ,100. There is nothing like that in this case. Cases that are taught in our favor. Schema similar to us. You have to do something before you go to District Court. They look exactly like our kids. This course is how they are not jurisdictional. All those cases. All of them, our way. The language and the text of the statute. What about belgian. They have a very different set of circumstances. These are cases where there are stripped from the District Court. And adjudicates the case. Judicial review. It does not matter. It is funneled to the court. These are completely different. There is no review. There is no risk. Some of them are friends. But inconsistency. Across the country. There is nothing like that here either. All those cases. Addressed very different. Are you suggesting that they did resolve these kinds of claims that there would be a different answer . I am not saying if it resolved in the normal that you talk about. What im saying is that you designed the structure that looked like it again. The get counsel. There is no District Court solution at all. Get that additional record. Congress would do that if they wanted to. Everything in this statutory structure. The eeoc had actually been given the ability to resolve claims. I think the case comes out the same. I think it looks to like a exhaustion requirement. I do not think there is an exception. Even if there is not one that we should recognize one great one. Exception for administrative exhaustion schemes. Tech that directly. I think it would be a bad idea for several reasons. We will be having is asking District Courts in every single case to look into not whether there was a charge filed. The courts can probably do that. Into whether or not the charge captures the things in the complaint. Consistent with the roles. It could also be reasonably related. Not just that is directly what is in the charge. Is extremely articulate her. We have to show themselves. That is in extraordinary burden to place on the District Court. All kinds of other litigation. You said it would be a burden on the party. It would be a burden on the plaintiff. Not necessarily on the defendant. Let me turn a little bit to this incentives that they have to pick up this defense. I do not understand this argument. The do not have the incentive to bring up the lack of the charge and the fact that it is not. As we noted, we point out the defense manual. These defenses admittedly. Was the time you will be able to get rid of the client. It is a mandatory requirement. The claim will be dismissed. There is not enough time for the plaintiff to go to the agency and get a amended charge. In those cases, is effectively to get this case out. If it is just a mandatory claims process. Do you think the District Court will nevertheless have discretion to raise it . I think so. The one caveat is that it is different. That was just the time calculation. As i was just talking about a couple minutes ago. This is quite complicated. You may have to figure out whether or not the charge could grow into the complaint. I would urge you not to do it in general. I think they have the discretion to do. We have been talking about the incentives defendants are. Plaintiffs also have extremely strong incentives to go to the eeoc. That is a big problem. You want to have a chance that they will be on your side. There is a reconciliation process that could be useful for plaintiffs to use. There is also mediations. I think the incentives are even more powerful to comply with the eeoc. Have any idea what percentage of charges filed with the eeoc are resolved . I do not have the exact number. I know it is very low. I think most cases do not get resolved. I think the United States may have that number. I think it is under 20 percent. The incentives they have a very strong for going to the eeoc. Even 20 percent. What to be important from the perspective of the courts to require the plaintiffs to do that . It is absolutely important. It has been the charge of crime that is crucial. We do not dispute that. That is just not a jurisdictional. The highlevel of burden. Again, on one of the point. On these incentives. We have been running a natural experiment across this country. We have already adopted our role. There is no evidence that our friends can point to that there is a problem with how it is working. Indeed, the eeoc is with us in this case. They do not think the prerogatives are being met. Whats your evidence are you looking for . It would be very hard to find her. We get this argument. There is no great crisis. To figure out how this evidence would be compiled. I have two different niches from that. I think the eeoc has the empirical tools to observe what is happening. To assure the same number of charges going forward. The rule is not jurisdictional. Think they can see if something was happening. It is their role. It is true. It is hard for to bubble up. This kind of cases are rare. I still think you would see some evidence in the courts of appeal as people come with these claims. Is there is not a single case that was like that. Is discharge sufficient . There is not a single case like that . Maybe i am misremembering but i do not think we found a case that is like what im describing. Most of them will be unreported in the first place. Is. If there was no charge. How many cases have you found like this one . The party has basically raised the mandatory role. In the footnotes. Also, when i think about that question. It has come up before in this court. It was actually brought up after trial. That just shows you that this kind of problem can be very harmful. To the way the courts work. If there are no further questions, i can leave this court with one final. They have done a lot of work in the last 15 years to clear the word jurisdictional. The following requirement is not jurisdictional. Congress did not clearly state that it is. The court to a manufacturer exception to that rule based on the documents. This to reject them for several reasons. First, the exceptions do not exist in this case law. I think it has come up already. The do not apply here in any event. I want to touch on for particular plans. One percent per year. The second, federal employer discrimination claims. Finally, the analogy. Has already been explored. They do not in any event. This already recognizes. It is not deciding anything. Nonfederal employer side. Actually worked against the petitioner. The nra was much of a model. They do not copy over the critical feature. It is the provision that grants jurisdiction. Ignorance review to the court. That goes on to say. There is no jurisdiction over issues not visual to the board. They do not recognize this type of exception. The recognize any kind of rule. The agencys decision. The losing party before the agency to get a day lawsuit in District Court. When they make the jurisdictional . Congress certainly good. This court addressed in mcneil. They began by saying subject to the provisions of title 28 which includes the resentment requirement. Satisfies the first statement role. And involves only claims federal sovereignty immunity. What he said the chief justice concern. I know youre going to tell me immediately. Besides that argument, what national do you think support is doing so. It was about reflecting ascertaining congresss intent. The severe consequences including that means they must raise it. We can wipe out litigation. The means judges instead of jerry. We certainly do apply them to existing statutes. There normally retroactive. An additional virtue. Certainly not the case that that presumption or any other applies only going forward. You will not only create a certainty. You also make it more difficult for them to say in the future whether it is that requirements of the jurisdictional. And applies across the board to elements. The provision that owning. Is very different legally and practically. The legal difference is twofold. The government agency. Second, on top of that. The language is starkly different. Is there someone is grieved by the final disposition of this complaint or the failure to act on his complaint. You is coming into court is the agency that handles reclaims. We do not think you need to resolve it. We happy for the court not to address them. That is exactly right. I can send that to the argument that the purpose of the following requirement compels this court to treat as jurisdictional. I want to emphasize that it did not undermine this purpose at all. Whether it is jurisdictional or not. To have overlearning the sense of to file a charge. If they do not do so the purpose any chance of getting assistance from the commission. The only real question. In the subset of cases. For the do not read that objection. Would not see any basis. Creates unfair surprise. Grades unjustified for the defendant. The position would extend to reconciliation efforts. At one point must the defendant raise this. We understand it to be a condition by federal. The lower court is a little uncertain. Whether it can be raised from the judgment. By the time you get to appeal all of that, he has missed a chance to raise the argument. The general point where you have two different jurisdictional grants. Is but when you have a particular one. For the reasons the court gave. Within you should hear unless congress otherwise. The pacific response. That it would not apply here. You have a statute that his argument pill back by implication. We know that is not true because this is. It was to expand jurisdiction. It was entirely different form. For nonfederal employers, there is no agency adjudicator. Ultimately decide whether to bring its own suit. Extending from the basin over here. It is not supported by any rationale the court gave them. Just to touch briefly. Some issues were beyond the agency. The court has no question. Four minutes. I want to start off and the particular respondents argument. The key is statutory intent. It is not what the practicalities. It is what Congress Actually said. A civil action. Only after a claim is dismissed. Only over actions brought under this subchapter. If we do want to address the practicalities, i think there is a little to clean up. How many of these things are being resolved. The governments own website. They are being resolved to the benefit of the employees. If you look at the Texas Workforce commission, this report suggest 25 percent of the claims that is resolving resolved to the benefit of the employer. Why would a plaintiff never exhaust. In the last two months, there are at least 50 opinions. In which the courts are existing plans. There are many reasons you can speculate. Right now in our national experiment. They are not bringing their claims to the eeoc. She started up with the complaint of genderbased discrimination. It is not that she did not follow charge. She even tried to amend. Not stating anything about it. Where there was no exhaustion. Cases like this where there was a charge of some kind. That do not charge the writing. We find a cases where there have been no trips to the eeoc at all. That is about a sixth of the cases. I would again emphasize. Universally applied and pretty plaintiff friendly position with respect to whether or not someone has exhausted or not. Were talking about, they do not even mentioned this type of discrimination. They have no idea. Something that happened after the investigation was concluded. I want to move on to my third point. We are not asking for a new role. Where pointed to cases dating back to 1907. In which this court has held. The best Authority First in the hands of an expert agency. It is tends to displace the original disposition. They give the agency the authority to do what the District Court does. It was a tribunal of first instance. That is entirely different pattern. The reviews apollo. They are not acting as income the first instance. There was a scenario exactly like this. It was to attend to reach a settlement. It was under the claims act. As it was. It does apply to the government. I would like to ask this court to reverse. The case is submitted. According to a recent survey, only about 30 percent of americans can name al