Second Circuit Expands Threshold Issues Reviewable Before Determining Complex Issues Of Subject-Matter Jurisdiction

It is hornbook law that federal courts must assure themselves that they have subject-matter jurisdiction before addressing the merits of any case.¹ In Steel Co. v. Citizens for a Better Environment and Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., the Supreme Court of the United States highlighted an exception to this general rule, holding that federal courts may sometimes, in their discretion, rule on merits issues before deciding subject-matter jurisdiction - particularly when subject-matter jurisdiction is difficult to resolve and there are "non-merits," non-jurisdictional grounds for dismissal that are more straightforward. Importantly, courts may exercise this discretion only when (1) the merits question is more readily resolved than the jurisdictional question and (2) the party prevailing on the merits question is the same as the party that would prevail party if jurisdiction were denied.² Since then, the lower courts have wrestled with identifying the