Baan Rao Thai Restaurant v. Michael Pompeo ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 19, 2020 Decided January 22, 2021
No. 19-5231
BAAN RAO THAI RESTAURANT, ET AL.,
APPELLANTS
v.
MICHAEL R. POMPEO, SECRETARY OF THE U.S. DEPARTMENT
OF STATE AND UNITED STATES OF AMERICA,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00058)
Scott D. Pollock argued the cause for appellants. With him
on the briefs were Christina J. Murdoch and Thomas K.
Ragland.
Matthew J. Glover, Counsel, U.S. Department of Justice,
argued the cause for appellees. With him on the brief were R.
Craig Lawrence and Peter C. Pfaffenroth, Assistant U.S.
Attorneys.
Before: SRINIVASAN, Chief Judge, and HENDERSON and
PILLARD, Circuit Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: The
doctrine of consular nonreviewability prevents a federal court
from second-guessing a United States consular officer’s
decision to issue or withhold a visa. Appellants Baan Rao Thai
Restaurant (Baan Rao), Somporn Phomson and Napaket
Suksai (Phomson and Suksai) seek review of a consular
officer’s decision to deny visas for Phomson and Suksai,
asserting their claims fall within one of the doctrine’s narrow
exceptions. Specifically, they argue the Treaty of Amity and
Economic Relations between the United States and Thailand—
the underlying authority for the visas Phomson and Suksai
seek—expressly provides that judicial review is available.
Their argument fails, as it seeks to fashion a longstanding,
common and well understood treaty provision into something
it is not. Using the consular nonreviewability doctrine, the
district court dismissed their claims for lack of subject matter
jurisdiction. As recently clarified by the United States Supreme
Court, however, a dismissal pursuant to the consular
nonreviewability doctrine is a dismissal on the merits.
Accordingly, we affirm the district court’s dismissal but do so
on the merits.
I. BACKGROUND
Since 2008 Baan Rao has provided Minot, North Dakota
with Thai cuisine. It often employs Thai nationals as chefs. In
order to work for Baan Rao, Thai nationals utilize E-2
“essential employee” visas under the Treaty of Amity and
Economic Relations between the United States and Thailand
(U.S.-Thailand Treaty or Treaty). See Treaty of Amity and
Economic Relations, Thai.-U.S., art. I, May 29, 1966, 19
U.S.T. 5843 [hereinafter U.S.-Thai. Treaty]. Phomson and
Suksai are Thai nationals who previously worked as chefs at
Baan Rao on E-2 “essential employee” visas. Phomson was
3
first granted an E-2 visa and admitted to the United States in
2012; he extended his visa in 2014, 2016 and 2017. He worked
as a Baan Rao chef from 2012 to 2018. Suksai was granted an
E-2 visa and admitted to the United States from 2010 to 2012
and she worked as a Baan Rao chef during that time.
In June 2018, in order to return to the United States and
continue their employment as Baan Rao chefs, Phomson and
Suksai applied for new E-2 visas at the U.S. Embassy in
Thailand, asserting they were “employed . . . in a responsible
capacity” within the meaning of the Treaty. See U.S.-Thai.
Treaty, art. I, ¶ 1; 8 U.S.C. § 1101(a)(15)(E)(ii); 8 C.F.R.
§ 214.2(e). In July 2018, the Embassy denied Phomson’s and
Suksai’s applications, concluding both “did not meet all of the
requirements of an E-2 essential employee as specified in [the
Department of State’s Foreign Affairs Manual].” Compl. at 4,
Baan Rao Thai Rest. v. Pompeo, No. 19-cv-00058 (D.D.C. July
29, 2019), ECF No. 1. Phomson and Suksai reapplied for E-2
visas in September 2018 and the Embassy again denied both
applications.
On January 10, 2019, Baan Rao, Phomson and Suksai filed
suit against the Secretary of the United States Department of
State (Secretary), seeking declaratory and injunctive relief on
two causes of action. In Count I, they claimed the Secretary
“erred as a matter of law and acted arbitrarily and capriciously
in denying the E-2 essential employee visa applications,” thus
“violat[ing] the Administrative Procedure Act [(APA)].” Id. at
7–8. In Count II, Baan Rao claimed the Secretary imposed an
ultra vires “requirement that an employee demonstrate he is
‘essential’ to the treaty investor’s business,” which requirement
was “inconsistent with” the U.S.-Thailand Treaty. Id. at 8.
On May 16, 2019, the Secretary moved to dismiss or, in
the alternative, transfer the case to the U.S. District Court for
4
the District of North Dakota. The Secretary argued the district
court lacked subject matter jurisdiction to review the visa
denials pursuant to the doctrine of consular nonreviewability.
Baan Rao, Phomson and Suksai opposed the motion, arguing
the U.S.-Thailand Treaty “limits the doctrine of consular
nonreviewability in cases seeking review of the Department’s
decisions to deny such visas.” Pls.’ Mem. of P. & A. in Opp’n
to the Def.’s Mot. to Dismiss or to Transfer at 1, Baan Rao Thai
Rest. v. Pompeo, No. 19-cv-00058 (D.D.C. July 29, 2019), ECF
No. 8. Baan Rao also opposed the motion to transfer.
On July 29, 2019, the district court granted the Secretary’s
motion to dismiss. Baan Rao Thai Rest. v. Pompeo, No. 19-cv-
00058, 2019 WL 3413415 (D.D.C. July 29, 2019). It found
“[j]udicial review of visa denials by consular officials at United
States Embassies, such as the denials at issue here, is generally
precluded under the broad and established doctrine of consular
nonreviewability,” concluding that the APA challenge was
“well within the scope of the consular nonreviewability
doctrine.” Id. at *2 (citing Saavedra Bruno v. Albright, 197
F.3d 1153, 1159–62 (D.C. Cir. 1999)). For the ultra vires
claim, the district court found Baan Rao and its two chefs could
not avoid the doctrine of consular nonreviewability by framing
the claim as a challenge to the Secretary’s reading of the Treaty
because the claim “squarely challenge[d] the denial of
plaintiffs’ visa applications.” Id. at *5. Accordingly, the district
court held it was without jurisdiction to consider the two
claims, granted the motion to dismiss and denied as moot the
motion to transfer. Id. at *6. Our review of the district court’s
dismissal is de novo. N. Am. Butterfly Ass’n v. Wolf, 977 F.3d
1244, 1249 (D.C. Cir. 2020).
5
II. ANALYSIS
A. Consular Nonreviewability
Consular nonreviewability shields a consular official’s
decision to issue or withhold a visa from judicial review, at
least unless Congress says otherwise. Saavedra Bruno, 197
F.3d at 1159. Decisions regarding the admission and exclusion
of noncitizens “may implicate ‘relations with foreign powers,’
or involve ‘classifications [. . .] defined in the light of changing
political and economic circumstances’” and, accordingly,
“such judgments ‘are frequently of a character more
appropriate to either the Legislature or the Executive.’” Trump
v. Hawaii, 138 S. Ct. 2392, 2418–19 (2018) (quoting Mathews
v. Diaz, 426 U.S. 67, 81 (1976)).
The Congress has partially delegated to the Executive its
power to make rules for the admission and exclusion of
noncitizens. The Immigration and Nationality Act, 8 U.S.C.
§§ 1101 et seq., grants consular officers “exclusive authority to
review applications for visas, precluding even the Secretary of
State from controlling their determinations.” Saavedra Bruno,
197 F.3d at 1156. A consular officer, then, has the authority to
grant, deny or revoke any visa. Id. at 1156–57. Nevertheless,
courts have held that claims otherwise barred by the consular
nonreviewability doctrine are subject to judicial review in two
narrow circumstances. First, an American citizen can challenge
the exclusion of a noncitizen if it burdens the citizen’s
constitutional rights. See Trump v. Hawaii, 138 S. Ct. at 2416
(citing Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)). The
second occurs whenever the “Congress says otherwise.”
Saavedra Bruno, 197 F.3d at 1159. In other words, an
exception to the doctrine exists if a “statute expressly
authoriz[es] judicial review of consular officers’ actions.” Id.Neither exception applies here.
6
Here, both claims seek review of a consular officer’s visa
decisions.1 To avoid consular nonreviewability, Baan Rao,
Phomson and Suksai assert the U.S.-Thailand Treaty includes
an express authorization for judicial review.2 Their argument
takes two steps. First, Article I, Clause 1 of the Treaty
establishes a “qualified right of entry” for Thai and U.S.
nationals to one another’s country, provided they meet certain
requirements. Second, Article II, Clause 2’s “free access”
provision is the Congress’s “express authorization by law” that
allows judicial review of visa decisions in order for Thai and
U.S. nationals to enforce their Article I rights. According to
Baan Rao, Phomson and Suksai, citizens would have no way
to enforce Article I rights if Article II did not provide access to
courts. Whether Article I, Clause 1 establishes a “qualified
right” is of no issue because the “free access” provision
argument fails regardless. We cannot read a well understood
treaty provision related to procedural matters as an exception
to the broad doctrine of consular nonreviewability that courts
1
In district court, the plaintiffs argued their ultra vires claim
did not challenge a particular consular officer’s visa decision but
rather challenged whether the Secretary’s regulations properly
interpreted the Treaty. Pls.’ Mem. of P. & A. in Opp’n to the Def.’s
Mot. to Dismiss or to Transfer at 4, Baan Rao Thai Rest. v. Pompeo,
No. 19-cv-00058 (D.D.C. July 29, 2019), ECF No. 8. The district
court found their ultra vires claim challenged the consular officer’s
two visa denials. Baan Rao, 2019 WL 3413415, at *5. Their opening
brief here asserts only that the challenged visa denials are ultra vires.
To the extent they challenge the relevant regulations in reply, see
Appellants’ Reply Br. 17, the argument was forfeited. See Power Co.
of Am., L.P. v. FERC, 245 F.3d 839, 845 (D.C. Cir. 2001).
2
They argue a treaty can override the doctrine of consular
nonreviewability. The Secretary does not contest this point. Because
it is uncontested, we assume without deciding that a treaty can
authorize judicial review notwithstanding the doctrine of consular
nonreviewability.
7
have recognized for almost a century. See Saavedra Bruno, 197
F.3d at 1159–60.
“The interpretation of a treaty, like the interpretation of a
statute, begins with its text.” Medellin v. Texas, 552 U.S. 491,
506 (2008). Article II of the Treaty states, in relevant part:
Nationals and companies of either Party shall
have free access to courts of justice and
administrative agencies within the territories of
the other Party, in all degrees of jurisdiction,
both in the defense and in the pursuit of their
rights. Such access shall be allowed upon terms
no less favorable than those applicable to
nationals and companies of such other Party or
of any third country, including the terms
applicable to requirements for deposit of
security.
U.S.-Thai. Treaty, art. II, ¶ 2 (emphasis added). Under the
appellants’ reading, “free access to courts” provides for judicial
review of claims usually insulated from such review—namely,
consular officers’ visa decisions. In our view, however, “free
access to courts” is not an “express[] authoriz[ation]” for
judicial review of a claim otherwise barred by consular
nonreviewability. Saavedra Bruno, 197 F.3d at 1159. Although
“free access” to courts “both in the defense and in the pursuit
of their rights” has a broad sound, it by no means overrides the
longstanding limit on judicial review.
Our reading that “free access to courts” is not synonymous
with judicial review of claims usually insulated from review is
supported by the context and history surrounding such
provisions. The U.S.-Thailand Treaty is one of many
“friendship, commerce and navigation” treaties that include a
8
provision granting “free access” or “access” to courts.3 In 1985
Judge Henry Friendly,4 relying on Robert Wilson’s U.S.
Commercial Treaties and International Law (1960), discussed
the history and scope of “access provisions.” See Blanco v.
United States, 775 F.2d 53, 61–62 (2d Cir. 1985). “Free access”
provisions “were a common feature of the generation of
commercial treaties signed prior to World War I.” Id. at 61.
Their definition of “access” “made it clear that the guarantee
extended only to procedural rights” like “filing fees, the
employment of lawyers, legal aid, security for costs and
judgment, and so forth.” Id. at 61–62; see also Tagger v.
Strauss Grp. Ltd., 951 F.3d 124, 127 (2d Cir. 2020). Citizens
of the treaty nations were to be afforded the same procedural
protections whenever validly in court in the other nation.
After World War II, access provisions like those in the
U.S.-Thailand Treaty “demonstrate[d] even more clearly that
use of the term ‘access’ . . . [was] intended to guarantee treaty
nationals equal treatment with respect to procedural matters.”
Blanco, 775 F.2d at 62. For example, a 1951 treaty between the
U.S. and Israel gave “access to the courts of justice and to
administrative tribunals and agencies . . . in all degrees of
jurisdiction, both in pursuit and in defense of their rights.”
3
See, e.g., Treaty of Friendship, Commerce and Navigation,
Republic of Korea-U.S., art. V, ¶ 1, Nov. 28, 1956, 8 U.S.T. 2217;
Treaty of Friendship, Commerce and Navigation, Japan-U.S., art. IV,
¶ 1, Apr. 2, 1953, 4 U.S.T. 2063; Treaty of Friendship, Commerce
and Navigation, Den.-U.S., art. V, ¶ 1, Oct. 1, 1951, 12 U.S.T. 908;
Treaty of Amity and Economic Relations, Eth.-U.S., art. VII, ¶ 2,
Sept. 7, 1951, 4 U.S.T. 2134; Treaty respecting Friendship,
Commerce and Navigation, It.-U.S., art. V, ¶ 4, Feb. 2, 1948, 63 Stat.
2255.
4
Judge Friendly was “a practitioner of international law for
many years before his appointment” to the Second Circuit. United
States v. Yousef, 327 F.3d 56, 103 n.38 (2d Cir. 2003).
9
Treaty of Friendship, Commerce and Navigation, Isr.-U.S., art.
V, ¶ 1, Aug. 23, 1951, 5 U.S.T. 550. The treaty provided that
“access” “comprehends, among other things, legal aid and
security for costs and judgment.” Id. Protocol 1. In 1956, the
U.S. entered a treaty with the Republic of Korea that similarly
defined “access” to wit “access” “comprehends, among other
things, legal aid and security for costs and judgment.” Treaty
of Friendship, Commerce and Navigation, Republic of Korea-
U.S., art. V, ¶ 1 & Protocol 2, Nov. 28, 1956, 8 U.S.T. 2217.
These treaties—one signed only ten years before the U.S.-
Thailand Treaty—make clear that their access provisions relate
to procedural matters. And consular reviewability is no
procedural matter. It is a longstanding judicial principle
recognizing that the power to exclude aliens is “inherent in
sovereignty, necessary for maintaining normal international
relations and defending the country against foreign
encroachments and dangers.” Saavedra Bruno, 197 F.3d at
1159 (quoting Mandel, 408 U.S. at 765). Accordingly, it is “‘a
power to be exercised exclusively by the political branches of
government’ and not ‘granted away or restrained on behalf of
anyone.’” Id. (quoting Mandel, 408 U.S. at 765; The Chinese
Exclusion Case, 130 U.S. 581, 609 (1889)). If the U.S.-
Thailand Treaty intended to depart from this longstanding
principle, one would expect some mention of such a change
somewhere in the Treaty’s enactment history. Instead, the
Treaty’s enactment history suggests it is one in a long line of
standard-form commercial treaties.
When President Lyndon Johnson submitted the U.S.-
Thailand Treaty to the Senate for its advice and consent, he
described it as “of the short, simplified type that the United
States has negotiated with a number of countries, but it contains
the general substance of the typical treaty of friendship,
commerce and navigation.” Lyndon B. Johnson, Message from
10
the Pres. of the U.S. Transmitting the Treaty of Amity and
Economic Relations Between the United States of America and
the Kingdom of Thailand, 89th Cong. Executive P. No. 89-2,
at 1. Then-Secretary of State Dean Rusk stated that the Treaty
was “another in the series of treaties of friendship, commerce
and navigation,” was “generally similar to treaties concluded
with Ethiopia and Iran” and “contains the usual provisions
covering such subjects as . . . access to courts.” Dean Rusk,
Report to the President, 89th Cong. Executive P. No. 89-2, at 2
(citations omitted). Leonard Meeker, the State Department’s
then-legal advisor, testified before the Senate Foreign
Relations Committee, describing the Treaty as “a shorter
version of our standard treaties of friendship, commerce, and
navigation” “similar to others that are now in effect.” 90th
Cong., Sen. Exec. Rep. No. 14, at 3–4. Meeker stated “[t]he
provisions of the new treaty with Thailand are based upon
existing treaty practices” and “introduce no new types of
commitments affecting domestic law.” Id. Then-Senator Mike
Mansfield introduced the Treaty in the Senate and was the only
Senator to speak during Senate consideration of the Treaty. 113
Cong. Rec. 24,375 (1967). He noted the Treaty “is the 21st in
a series of commercial treaties which have been negotiated
since 1946” and “contains the usual provisions found in other
commercial treaties to which the United States is a party”
including “access to courts.” Id. That the record is devoid of
any indication that those involved with the Treaty’s creation
understood it to be anything other than a standard treaty of
friendship, commerce and navigation indicates that it was not
meant to abrogate a broad and important limit on judicial
review.
Simply put, the U.S.-Thailand Treaty’s “free access”
provision ensures uniform procedural protections to the
Treaty’s nationals. Access provisions were longstanding and
well understood at the time the U.S.-Thailand Treaty was
11
entered into—and that understanding was that the provisions
relate to procedural rights. Had the President or the Senate
meant otherwise, we would expect to see an indication of that
in the Treaty’s enactment history. None exists. Accordingly,
we conclude the doctrine of consular nonreviewability bars
review of Baan Rao’s, Phomson’s and Suksai’s claims and no
exception to the doctrine applies.
B. Jurisdictional vs. Merits Dismissal
The district court dismissed Baan Rao’s, Phomson’s and
Suksai’s claims for lack of subject matter jurisdiction pursuant
to Federal Rule of Civil Procedure 12(b)(1). Baan Rao, 2019
WL 3413415, at *2–6. Dismissal based on consular
nonreviewability, however, is a merits disposition under
Federal Rule of Civil Procedure 12(b)(6). We may affirm the
district court on a ground different from the district court’s,
however, if its ultimate disposition is nonetheless correct.
Kleiman v. Dep’t of Energy, 956 F.2d 335, 339 (D.C. Cir.
1992).
The district court was not without a basis for its
determination that dismissal pursuant to the doctrine of
consular nonreviewability is jurisdictional. In Saavedra Bruno
v. Albright, we used “jurisdiction” in discussing the doctrine.
197 F.3d at 1162–63 (“For many of the reasons just given and
for another about to be discussed, the government maintains
that federal courts have no jurisdiction over actions such as
Saavedra’s.”). Our Circuit’s district court has followed the
Saavedra Bruno language5 and we have summarily affirmed
5
See, e.g., Aboutalebi v. Dep’t of State, No. 19-cv-2605, 2019
WL 6894046, at *4–5 (D.D.C. Dec. 18, 2019); Jathoul v. Clinton,
880 F. Supp. 2d 168, 171–72 (D.D.C. 2012); Mostofi v. Napolitano,
841 F. Supp. 2d 208, 213 (D.D.C. 2012).
12
several like decisions.6 But jurisdiction “is a word of many, too
many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d
661, 663 n.2 (D.C. Cir. 1996)). As the Seventh Circuit noted,
Saavedra Bruno “was written in 1999, before the Supreme
Court’s series of more recent decisions clarifying and
narrowing the scope of subject matter jurisdictional doctrines,
as distinct from a host of other case-processing rules.”
Matushkina v. Nielson, 877 F.3d 289, 294 n.2 (7th Cir. 2017).
Indeed, we are guided by a recent Supreme Court decision
that clarified the scope of consular nonreviewability. In Trump
v. Hawaii, the government asserted the doctrine as a defense
but did “not argue that the doctrine of consular
nonreviewability goes to the Court’s jurisdiction.” 138 S. Ct.
2392, 2407 (2018). The Court treated the doctrine as non-
jurisdictional by “assum[ing] without deciding that plaintiffs’
statutory claims are reviewable, notwithstanding consular
nonreviewability.” Id. Had the doctrine been jurisdictional, the
Court would have had to consider the doctrine to ensure its
jurisdiction. See Steel Co., 523 U.S. at 94–95 (“The
requirement that jurisdiction be established as a threshold
matter spring[s] from the nature and limits of the judicial power
of the United States and is inflexible and without exception.”
(internal quotations omitted)). Accordingly, we understand
Trump v. Hawaii to instruct that the doctrine of consular
nonreviewability is non-jurisdictional. See also Avullija v.
Sec’y of State, No. 19-cv-10048, 2020 WL 7024485, at *3
(11th Cir. Nov. 30, 2020) (same). In fact, we have applied that
6
See, e.g., Rohrbaugh v. Pompeo, 394 F. Supp. 3d 128, 131
(D.D.C. 2019), aff’d, 2020 WL 2610600 (D.C. Cir. May 15, 2020)
(per curiam); Malyutin v. Rice, 677 F. Supp. 2d 43, 44 (D.D.C. 2009)
aff’d, 2010 WL 2710451 (D.C. Cir. July 6, 2010) (per curiam);
Antonenko v. Dep’t of State, No. 03-cv-5327, 2004 WL 1080159, at
*1 (D.C. Cir. May 13, 2004) (per curiam).
13
understanding since Trump v. Hawaii was decided. See
Almaqrami v. Pompeo, 933 F.3d 774, 784 n.3 (D.C. Cir. 2019)
(court “may assume without deciding that plaintiffs’ statutory
claims are reviewable” and proceed to the merits
“notwithstanding consular nonreviewability” (quoting Trump
v. Hawaii, 138 S. Ct. at 2407)).
Trump v. Hawaii’s treatment of the doctrine as non-
jurisdictional accords with the Constitution’s framework.
Article III confers subject matter jurisdiction to federal courts
over “all Cases, in Law and Equity, arising under this
Constitution, [and] the Laws of the United States.” U.S. Const.
art. III, § 2, cl. 1. The grant of subject matter jurisdiction is
subject to “such Exceptions, and under such Regulations as the
Congress shall make.” Id. cl. 2. As the Ninth Circuit
recognized, “[n]o statute purports to strip us of jurisdiction over
consular decisions; nor does any statute purport to confer
subject matter jurisdiction over the two exceptions.” Allen v.
Milas, 896 F.3d 1094, 1101 (9th Cir. 2018). Indeed, consular
nonreviewability is a doctrine “judicial in origin.” Id. It is
“informed by our respect for the separation of powers” but it is
not a limit on our subject matter jurisdiction as it “goes to our
willingness, not our power, to hear these cases.” Id.; see also
Matushkina, 877 F.3d at 294 n.2.
For the foregoing reasons, the district court’s judgment of
dismissal is affirmed pursuant to Federal Rule of Civil
Procedure 12(b)(6).
So ordered.