Notice & Comment

D.C. Cir. Review – Reviewed: Jurisdiction Edition

The D.C. Circuit issued four decisions this week, all of which dismissed the claims before the Court at least partly on jurisdictional grounds.

The two cases closest to the admin law heartland are ones where the litigants wanted to bring APA challenges but could not.

In Federal Law Enforcement Officers Ass’n v. Ahuja, No. 21-5266 (D.C. Cir. Mar. 14, 2023), the Civil Service Reform Act (CSRA), rather than the APA, provided the exclusive path to judicial review. The Association challenged the Office of Personnel Management’s (OPM) method for apportioning a certain retirement benefit between federal retirees and their ex-spouses following divorce. Under the CRSA, challenges to OPM retirement determinations—like challenges to most OPM actions—must be channeled through administrative review to the Federal Circuit. But the district court held that the Association’s challenge fell within an exception for pre-enforcement challenges to rules, which it derived from footnote 8 of NTEU v. Devine, 733 F.2d 114 (D.C. Cir. 1984). (The district court nonetheless ruled against the Association on the merits).

On appeal, the D.C. Circuit reversed, holding the district court lacked jurisdiction. The court (Judge Pillard writing) first applied the two-part Thunder Basin analysis to determine “whether a statutory scheme of administrative and judicial review is … exclusive.” Slip op. at 9. The first element—whether Congress’s intent to allocate initial review to an administrative body is “fairly discernible”—was not seriously contested. Slip op. at 10-12. For the second—whether the claims at issue are the type that Congress intended to be reviewed within the applicable statutory structure—the D.C. Circuit found the closest question to be presented by the Association’s claim that OPM should have undertaken notice-and-comment rulemaking. However, meaningful judicial review of that claim was available under the CRSA (in the Federal Circuit). And the claim was not wholly collateral to the CRSA review system, because the relief sought is the same as could be sought under the CRSA. Accordingly, the D.C. Circuit held that the CRSA was the exclusive avenue for relief. Slip op. at 17-20. Turning to the NTEU footnote carving out pre-enforcement challenges, on which the district court had relied, the panel expressed some skepticism that it remained good law. But the panel left the footnote undisturbed because it was not applicable to the Association’s claims anyway, as the claims were not “pre-enforcement” for everyone affected by the rule; the rule had already been applied to some retirees. The upshot: no district court APA action was available.

In Abuzeid v. Mayorkas, No. 21-5003 (D.C. Cir. Mar. 17, 2023), the D.C. Circuit affirmed the district court’s holding that it lacked jurisdiction, this time because Congress had precluded judicial review altogether. The United States Citizenship and Immigration Services had denied a doctor’s application to adjust his status to a lawful permanent resident, finding him ineligible. Judge Pan—in what I believe is her first opinion writing for the D.C. Circuit—interpreted 8 U.S.C. § 252(a)(2)(B)(i), which “strips federal courts of jurisdiction to review ‘any judgment’ related to adjustment of status under § 1255, subject to an exception that allows review of ‘constitutional claims or questions of law’ made in removal proceedings.” Slip op. at 5. Applying the Supreme Court’s recent(-ish) decision in Patel v. Garland, 142 S. Ct. 1614 (2022)—which held that the statute “does not restrict itself to certain kinds of decisions,” but “prohibits review of any judgment regarding the granting of relief,” 142 S. Ct. at 1621-22 (emphasis in original)—the D.C. Circuit held that Congress had precluded judicial review of Abuzeid’s claims. Although Patel considered a petition for review of a removal order, and reserved the question of the statute’s application to APA cases, the D.C. Circuit saw “no basis for [a] distinction.” Slip op. at 11.

In brief, the two other decisions from this week, which are farther afield from admin law:

  • Metro. Wash. Chapter, Assoc. Builders & Contractors v. District of Columbia, No. 22-7014 (D.C. Cir. Mar. 14, 2023): The D.C. Circuit (Senior Judge Rogers writing) upheld D.C.’s ordinance requiring contractors on D.C.-government-assisted construction projects to give hiring preferences to D.C. residents, against a host of constitutional challenges. The jurisdictional holding came on standing; the D.C. Circuit held that the trade association representing contractors lacked standing to raise claims under the Privileges and Immunities Clause because all of its members were corporations (and thus cannot bring claims under Constitution Art. IV, section 2) and it did not have the requisite close relationship to assert the claims of individual workers who reside outside the District and would potentially be burdened by the resident preference. Slip op. at 5-11. On the merits, the D.C. Circuit rejected the trade association’s dormant Commerce Clause claim because the ordinance applies to D.C.-government-assisted projects, and thus D.C. is acting as a market participant. Slip op. at 11-14.
  • Lewis v. Mutond, No. 21-7120 (D.C. Cir. Mar. 17, 2023): An American veteran who had worked as a security advisor to a former presidential candidate in the Democratic Republic of Congo (DRC) brought a lawsuit under the Torture Victim Protection Act, alleging that two DRC officials had tortured him in the DRC to extract a false confession that he was an American mercenary. The court affirmed the district court’s holding that it lacked personal jurisdiction over the officials, because there were insufficient minimum contacts with the United States. Judge Rao wrote a concurring opinion suggesting that in the appropriate case, there are reasons to reconsider whether the due process limits on jurisdiction under the Fifth Amendment are the same as under the Fourteenth.
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