Bombardier, Inc. v. United States Department of Labor , 145 F. Supp. 3d 21 ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BOMBARDIER, INC., :
:
Plaintiff, : Civil Action No.: 15-00604 (RC)
:
v. : Re Document Nos.: 16, 19
:
UNITED STATES DEPARTMENT OF :
LABOR, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION TO DISMISS AND
DENYING AS MOOT PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION
Plaintiff Bombardier, Inc., is a Canadian company currently embroiled in Department of
Labor administrative proceedings. Bombardier’s former employee initiated proceedings in the
Department of Labor by charging the company with discriminatory discharge in violation of the
whistleblower protection provisions of the Wendell H. Ford Aviation Investment and Reform
Act for the 21st Century (AIR21), 49 U.S.C. § 42121. While proceedings in the Department were
still pending, Bombardier filed suit in this Court to enjoin the Department from continuing its
administrative adjudication. Seeking both declaratory and injunctive relief, Bombardier claimed
that the Department acted ultra vires by exercising jurisdiction over Bombardier and thus giving
impermissible extraterritorial application to AIR21.
The Department moved to dismiss Bombardier’s complaint, whereas Bombardier moved
for a preliminary injunction. The Department argues that Bombardier failed to exhaust
administrative remedies and therefore must complete AIR21 administrative procedures before
obtaining judicial review. Bombardier contends that its suit is proper—and an injunction against
the Department is necessary—because the Department’s jurisdiction over Bombardier is ripe for
review under the Administrative Procedure Act. The Department’s reasoning has merit, whereas
Bombardier’s does not. Accordingly, the Court will grant the Department’s motion to dismiss the
complaint and deny as moot Bombardier’s motion for a preliminary injunction.
II. AIR21 ADMINISTRATIVE PROCEDURES
This case challenges administrative proceedings under the whistleblower protection
provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century
(AIR21), 49 U.S.C. § 42121.1 It is useful at the outset to review the statutes and regulations
authorizing those proceedings.
A. AIR21’s Whistleblower Protections
49 U.S.C. § 42121 creates a detailed administrative regime to protect whistleblowers who
inform their employers or the federal government about violations of federal laws relating to air
carrier safety. It declares that
[n]o air carrier or contractor or subcontractor of an air carrier may discharge an
employee or otherwise discriminate against an employee . . . because the
employee . . . provided . . . to the employer or Federal Government information
relating to any violation or alleged violation of any order, regulation, or standard
of the Federal Aviation Administration or any other provision of Federal law
relating to air carrier safety . . . .
49 U.S.C. § 42121(a). An “air carrier” is “a citizen of the United States undertaking . . . to
provide air transportation.” Id. § 40102(a)(2). Air carriers may be individual citizens of the
United States, a partnership of citizens of the United States, or corporations or associations
1
Pub. L. No. 106-181, § 519(a), 114 Stat. 61, 145–49 (2000) (codified at 49 U.S.C.
§ 42121).
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organized under the laws of the United States or any of the states. Id. § 40102(a)(15) (defining
“citizen of the United States”). A “contractor” is “a company that performs safety-sensitive
functions by contract for an air carrier.” Id. § 42121(e).
B. Administrative Proceedings in the Department of Labor
1. Complaint
When someone believes that he or she has been discharged or otherwise discriminated
against in violation of § 42121(a), the person has ninety days from the date of discharge or
discrimination to file a complaint with the Secretary of Labor. Id. § 42121(b)(1); 29 C.F.R.
§ 1979.103(d). Department of Labor regulations oblige the complainant to file the complaint
with the Occupational Safety and Health Administration (OSHA) of the United States
Department of Labor. 29 C.F.R. § 1979.103(c).
2. OSHA Dismissal, or OSHA Investigation and Findings
OSHA then has sixty days to investigate whether reasonable cause exists to believe
discrimination occurred. 49 U.S.C. § 42121(b)(2)(A); 29 C.F.R. §§ 1979.104–1979.105. But if
the complainant fails to make a prima facie showing that protected whistleblower behavior was a
factor contributing to the employer’s discriminatory action—or, if the employer shows, by clear
and convincing evidence, that it would have acted the same in the absence of the complainant’s
whistleblower behavior—then no investigation is required, and the complaint will be dismissed.
49 U.S.C. § 42121(b)(2)(B); 29 C.F.R. § 1979.104(b)–(d).
When an investigation is warranted, OSHA must conclude the investigation and release
written findings within the sixty-day period prescribed by statute. 49 U.S.C. § 42121(b)(2)(A);
29 C.F.R. § 1979.105(a). If OSHA concludes that reasonable cause exists to believe discrimination
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occurred, it must accompany its findings with a preliminary order providing relief to the
complainant. 49 U.S.C. § 42121(b)(2)(B); 29 C.F.R. § 1979.105(a)(1).
3. Objections and Request for Hearing
If any party desires review, “including judicial review,” of OSHA’s findings (or of
OSHA’s dismissal of the complaint), that party must file objections and request a hearing on the
record within thirty days after receiving the findings (or the dismissal). 29 C.F.R. § 1979.106(a);
accord 49 U.S.C. § 42121(b)(2)(A). In cases where OSHA issued a preliminary order, the order
becomes “a final order that is not subject to judicial review” if no party timely files objections
and requests a hearing. 49 U.S.C. § 42121(b)(2)(A); 29 C.F.R. § 1979.106(b)(2).
4. Hearing before an Administrative Law Judge
Hearings on objections are held before Department of Labor administrative law judges,
and must generally “commence expeditiously.” 29 C.F.R. § 1979.107(b). Administrative law
judges have broad discretion to limit discovery to expedite the hearing. Id. The hearings
themselves are “hearings de novo, on the record,” but in place of formal rules of evidence, the
administrative law judge “may exclude evidence which is immaterial, irrelevant, or unduly
repetitious” and will apply “rules or principles designed to assure production of the most
probative evidence.” Id. § 1979.107(b), (d).
5. Decision and Order by the Administrative Law Judge
After the hearing, the administrative law judge must issue a decision that includes
findings, conclusions, and an order either prescribing remedies or denying the complaint. Id.
§ 1979.109(a).
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6. Review and Final Order by the Administrative Review Board
If a party desires to seek review, “including judicial review,” of the administrative law
judge’s decision, then that party has ten days to petition the Department of Labor’s
Administrative Review Board for review. Id. § 1979.110(a). If no party timely petitions the
Board for review, then the administrative law judge’s decision becomes a final order ten business
days after the date of the decision. Id. § 1979.109(c). At that time, all proceedings before the
administrative law judge are considered concluded. Id. § 1979.110(c). Even if a party has
petitioned the Board for review within the ten-day period, the administrative law judge’s order
will still become a final order “unless the Board, within thirty days of the filing of the petition,
issues an order notifying the parties that the case has been accepted for review.” Id. § 1979.110(b).
If the Board does accept a decision for review, it must issue its own final decision no
more than 120 days after the conclusion of all proceedings before the administrative law judge.
Id. § 1979.110(c); see also 49 U.S.C. § 42121(b)(3)(A) (“Not later than 120 days after the
conclusion of a hearing . . . the Secretary of Labor shall issue a final order . . . .”). The Board’s
final order must either order appropriate remedies or deny the complaint. 49 U.S.C. § 42121(b)(3)A);
29 C.F.R. § 1979.110(d)–(e).
C. Judicial Review in a United States Court of Appeals
Only then does AIR21’s statutory scheme contemplate judicial review. If a person is
“adversely affected or aggrieved” by the final order of an administrative law judge or the
Administrative Review Board, then that person has sixty days to file a petition for review “in the
United States Court of Appeals for the circuit in which the violation [of the whistleblower
protection provisions] allegedly occurred or the circuit in which the complainant resided on the
date of such violation.” 49 U.S.C. § 42121(b)(4)(A). If a party misses the sixty-day deadline, it
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may not seek later judicial review of the final order. Id. § 42121(b)(4)(B) (“An order . . . with
respect to which review could have been obtained . . . shall not be subject to judicial review in
any criminal or other civil proceeding.”).
Bombadier, the plaintiff here, has brought this case seeking judicial review while still
entangled within AIR21’s complex statutory and regulatory framework. The Court now turns to
the facts of the case at hand.
III. FACTUAL AND PROCEDURAL BACKGROUND
A. Mr. Sobhani’s Employment and Termination
According to the Complaint, Plaintiff Bombardier, Inc. is a Canadian company, and its
operations are “substantially” conducted within Canada. Compl. ¶¶ 7, 14, ECF No. 1.
Bombardier designs and manufactures aircraft; it does not provide air transportation to the
public. Id. ¶¶ 13, 15.
Bombardier employed Jeffrey A. Sobhani at the beginning of 2014 as an Engineering
Specialist working out of the company’s facilities in Toronto, Canada. Id. ¶¶ 18–19. On January
30, 2014, Mr. Sobhani sent an internal memorandum to Bombardier that raised concerns about
the methodology used to interpret flight test data for Bombardier’s Q400 aircraft. Id. ¶ 21. The
data came from tests conducted in Wichita, Kansas in 1998, and the data were stored in Wichita
afterward. Decl. Jeff Sobhani, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. E, ECF No. 17-1. On March
7, 2014—five weeks after Mr. Sobhani released his memorandum—Bombardier terminated Mr.
Sobhani’s employment. Compl. ¶ 24. Bombardier contends that Mr. Sobhani’s termination was
part of Bombardier’s worldwide reduction-in-force, in which Bombardier terminated
approximately 1,700 employees. Id. ¶ 24.
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B. Mr. Sobhani’s Whistleblower Complaint Against Bombardier
at the Federal Aviation Administration
After his termination, Mr. Sobhani called on United States agencies for aid. He lodged a
whistleblower complaint with the Federal Aviation Administration (FAA) and charged
Bombardier with quality control problems in its Q400 flight testing. Id. ¶ 22; Letter from
Dorenda D. Baker to David Trumbull 1, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. B-2, ECF No.
17-1. But the FAA declined to investigate because it decided that investigating the matter would
be beyond the FAA’s jurisdiction: it determined that the quality control process in question was
used for Canadian certification, and that “it is not within the jurisdiction of the FAA to
investigate another country’s certification program.” Compl. ¶ 22.
C. Mr. Sobhani’s Discrimination Complaint Against Bombardier
at the Department of Labor
Around this time, Mr. Sobhani also initiated administrative proceedings with the
Department of Labor, the defendant in this case.
1. Complaint
Invoking AIR21’s whistleblower protection provisions, Mr. Sobhani filed a
discrimination complaint on March 19, 2014 with the OSHA regional office in Kansas City,
Missouri. Id. ¶ 26; Decision & Order Den. Resp’t’s Mot. Summ. Decision 1, Pl.’s Opp’n Defs.’
Mot. Dismiss Ex. H, ECF No. 17-1. Mr. Sobhani alleged that Bombardier “discriminated against
him by terminating his employment in retaliation for reporting safety of flight issues on the Q400
aircraft.” Order Den. Dismissal Compl. Failure State Claim 3, Pl.’s Opp’n Defs.’ Mot. Dismiss
Ex. G, ECF No. 17-1.
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2. OSHA Dismissal
OSHA dismissed Mr. Sobhani’s complaint for lack of jurisdiction in early May 2014.
Decision & Order Den. Resp’t’s Mot. Summ. Decision 2. It found that Bombardier was not
covered under AIR21 because Bombardier was “not an air carrier within the meaning of 49
U.S.C. § 42121 and 49 U.S.C. § 40102(a)(2)” and because Mr. Sobhani likewise was “not an
employee within the meaning of 49 U.S.C. § 42121.” Compl. ¶ 28.
3. Mr. Sobhani’s Objections and Request for Hearing
Mr. Sobhani timely objected to the dismissal and requested a hearing before an
administrative law judge. Id. ¶ 29. He argued that, contrary to OSHA’s views on the matter,
AIR21 applied to Bombardier: Bombardier offered transportation to Wichita, Kansas in the
United States and Bombardier conducted business with United States air carriers, so Bombardier
was an “air carrier” or a “contractor” of an air carrier for AIR21 purposes. Order Den. Dismissal
Compl. Failure State Claim 2. Similarly, Mr. Sobhani asserted that he merited AIR21 protections
because he was an employee of an “air carrier” or a “contractor” of an air carrier. Id.
4. Pre-Hearing Proceedings Before Administrative Law Judges
a. Dismissal Denied
Chief Administrative Law Judge Stephen L. Purcell issued a Notice of Docketing and
Order to Show Cause on June 19, 2014. Compl. ¶ 30; Notice of Docketing and Order to Show
Cause, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. F, ECF No. 17-1. He ordered the parties to show
cause within thirty days for why the case should not be dismissed for lack of jurisdiction. Notice
of Docketing and Order to Show Cause 2 (“If Bombardier is not an employer and Sobhani is not
an employee as defined by AIR21, then this case must be dismissed . . . .”).
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Chief Judge Purcell ultimately declined to dismiss the complaint. Compl. ¶ 31. His July
31, 2014 order emphasized “the minimal pleading requirements” in Department of Labor
whistleblower protection proceedings. Order Den. Dismissal Compl. Failure State Claim 5. The
judge’s written decision explained that Mr. Sobhani had stated sufficient facts to provide “fair
notice” that, for AIR21 purposes, Bombardier is a contractor and Sobhani is an employee of a
contractor. Id. The decision did, however, note that “[t]o the extent further development of the
evidentiary record prior to trial shows that Sobhani’s allegations are untrue, [Bombardier] is
entitled to seek summary judgment.” Id.b. Summary Decision Denied
After the case was assigned to Administrative Law Judge Scott R. Morris, Bombardier
proceeded to file a motion for summary judgment on October 2, 2014. Compl. ¶¶ 32–33. Judge
Morris construed the motion as one for “summary decision,” which is the relevant motion in
hearings before administrative law judges. Decision & Order Den. Resp’t’s Mot. Summ.
Decision 2 n.6; see 29 C.F.R. § 18.72 (“A party may move for summary decision . . . .”).
Judge Morris denied Bombardier’s motion on November 4, 2014. Compl. ¶ 36. Although
Bombardier and the judge agreed that AIR21’s whistleblower protection provisions do not apply
extraterritorially, the judge found that the record at the time showed “a significant nexus”
between Bombardier and the United States. Decision & Order Den. Resp’t’s Mot. Summ.
Decision 15. In particular, Judge Morris found the fact that Q400 test flights occurred in or
around Wichita, Kansas to be an “essential element” that created a “substantial geographic nexus
between the alleged violations underlying [Mr. Sobhani’s] complaint and the territorial borders
of the United States.” Id. at 14. The judge therefore held that Mr. Sobhani’s allegations sought a
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domestic application of AIR21, which the presumption against extending American laws abroad
would not forbid. Id. at 15.
The judge qualified his findings and explained that they did not mean that Mr. Sobhani
was entitled to relief, or that he had even established a prima facie case. Id. He explained that his
holding was “narrowly tailored” to the issues presented in Bombardier’s motion and based on the
record at the time. Id. Put another way, to resolve genuine issues of material fact, Judge Morris
held that Mr. Sobhani’s complaint deserved “a full and fair development” before final
adjudication. Id. The judge also noted that the parties were still free to submit dispositive
motions during the discovery process. Id. at 15 n.36.
c. Reconsideration and Certification for Interlocutory Appeal Denied
Unhappy with the summary decision denial and aware that the denial was a pre-hearing
interlocutory decision, Bombardier filed a motion on November 14, 2014 that requested Judge
Morris to certify his denial for interlocutory review with the Administrative Review Board.
Compl. ¶ 44. Bombardier’s motion argued that its case was one of first impression and that the
record did not support the contacts between Bombardier and the United States that the judge
noted in his written decision. Order Den. Resp’t’s “Motion for Certification or, Alternatively,
Reconsideration” 3, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. I, ECF No. 17-1. Accordingly,
Bombardier requested leave to file an interlocutory appeal to the Administrative Review Board,
as well as a stay of the discovery process pending the Board’s decision. Id. In the alternative,
Bombardier asked the judge to reconsider his decision. Id.Judge Morris denied all of Bombardier’s requests. Compl. ¶ 45. Explaining that the
case’s unresolved issues were questions of fact that the parties must develop through continued
litigation, the judge found no basis to certify the case for interlocutory appeal. Order Den.
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Resp’t’s “Motion for Certification or, Alternatively, Reconsideration” 4. He likewise affirmed
his prior ruling denying summary decision. Id. at 6. The judge emphasized the standard of review
undergirding that ruling: “when viewed in a light most favorable to [Mr. Sobhani], the
preponderance of the evidence . . . before me show[ed] that the essential elements of the
complaint . . . demonstrate[d] a significant nexus with the United States.” Id.d. Discovery Pending
Discovery came next, but Bombardier continued to resist the administrative process. The
company filed a motion to stay the proceedings pending mediation, but Judge Morris denied the
motion in March 2015. Pl.’s Opp’n Defs.’ Mot. Dismiss 9, ECF No. 17; Order Den. Resp’t’s
Mot. Stay Proceedings, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. K, ECF No. 17-1. The judge cited
AIR21’s mandate that “hearings shall be conducted expeditiously,” and he inferred that staying
the proceedings would be at odds with “the letter and spirit” of the statute. 49 U.S.C.
§ 42121(b)(2)(A); Order Den. Resp’t’s Mot. Stay Proceedings 4.
Meanwhile, Bombardier had failed to produce documents requested by Mr. Sobhani, and
Mr. Sobhani filed a motion to compel production. Mem. Supp. Defs.’ Mot. Dismiss 8, ECF No.
16-1. To justify its resistance, Bombardier contended that Sobhani had requested “highly
sensitive trade secrets” and an “immense” amount of data stored in servers located worldwide.
Pl.’s Opp’n Defs.’ Mot. Dismiss 9–10. But Judge Morris sided with Mr. Sobhani again: at a
hearing on the motion to compel on March 20, 2015, the judge ordered Bombardier to produce
nearly all the documents Mr. Sobhani had requested. Id.Discovery is still ongoing; the current discovery deadline is January 29, 2016. Joint Mot.
Proposed Briefing Schedule 1, ECF No. 20. The administrative law judge has postponed the
hearing on the merits until May 9, 2016. Id. Thus, Bombardier’s administrative proceedings are
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still interlocutory. Until the administrative law judge holds the hearing on the merits, neither Mr.
Sobhani nor Bombardier will have a final order that is appealable to the Department’s
Administrative Review Board or to a United States Court of Appeals. See generally 49 U.S.C.
§ 42121(b).
D. Bombardier’s Complaint against the Department of Labor
and Proceedings in this Court
Bombardier filed suit in this Court against the Department of Labor in April 2015, after
the administrative law judge ordered the company to comply with Mr. Sobhani’s discovery
requests. See Compl. ¶¶ 41–63. The company’s Complaint charged the Department with
exceeding the bounds of its statutory authority: Bombardier contended that, by exercising
jurisdiction over Bombardier, the Department was giving impermissible extraterritorial
application to AIR21. Id. ¶¶ 48–57. Bombardier also alleged that the Department’s assertion of
authority was a final agency action, suitable for review in this Court. Id. ¶¶ 58–60. To right the
wrongs purportedly done to it, Bombardier sought a declaration that AIR21 applies only
domestically, that it applies only to domestic contractors and subcontractors to air carriers, and
that it therefore does not authorize the Department to adjudicate Mr. Sobhani’s complaint against
Bombardier. Id. ¶¶ 61–63. And more importantly, Bombardier sought an injunction against the
Department that would bar it from exercising further adjudicative authority over Bombardier and
Mr. Sobhani’s complaint. Id. ¶¶ 6, B.
The Department has moved to dismiss Bombardier’s Complaint. See Defs.’ Mot.
Dismiss, ECF No. 16. The Department argues that Bombardier failed to exhaust administrative
remedies and must complete the Department’s administrative procedures before obtaining
judicial review. See Mem. Supp. Defs.’ Mot. Dismiss 9–29.
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Meanwhile, Bombardier has moved for a preliminary injunction. See Pl.’s Mot. Prelim.
Inj., ECF No. 19.2 Following the reasoning in its Complaint, Bombardier’s motion maintains that
the Department’s adjudication of Mr. Sobhani’s AIR21 complaint is ultra vires, that the
Department’s exercise of adjudicative authority is reviewable now, and that an injunction is
necessary. See Mem. Supp. Pl.’s Mot. Prelim. Inj. 9–27, ECF No. 19-1.
Because the Court agrees with the Department’s view of this case, the Court will grant
the motion to dismiss the complaint and deny as moot Bombardier’s motion for a preliminary
injunction.
IV. ANALYSIS
The Department of Labor offers two reasons to dismiss the Complaint: (1) Bombardier
has failed to exhaust administrative remedies, and (2) the existing administrative scheme, which
allows Bombardier to seek review of a final Department order in a United States Court of
Appeals, precludes review by a district court now. See Defs.’ Mot. Dismiss 9–25. Because the
Court finds the Department’s second argument persuasive, the Court need not address the
Department’s exhaustion argument to dismiss Bombardier’s complaint.
A. Statutory Preclusion
When Congress intends for a “special statutory review scheme” to be the exclusive
means of obtaining judicial review, and when that review scheme does not contemplate district
court review, this Court lacks jurisdiction. See Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015).
2
Bombardier’s first motion for a preliminary injunction was filed contemporaneously
with its Complaint. See Pl.’s Mot. Prelim. Inj., ECF No. 3. The Court denied that motion without
prejudice after the parties agreed to submit briefing on a motion to dismiss first. See May 8, 2015
Minute Order. Bombardier’s second motion for a preliminary injunction, filed on September 30,
2015, is currently pending before the Court. See Pl.’s Mot. Prelim. Inj., ECF No. 19.
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The AIR21 whistleblower protection statute creates a statutory scheme whereby judicial review
of final orders occurs in a United States Court of Appeals. See 49 U.S.C. § 42121(b)(4). As the
Department correctly argues, the statute therefore precludes judicial review in the federal district
courts. See Mem. Supp. Defs.’ Mot. Dismiss 24–26, ECF No. 16-1.
1. Legal Standard
Federal courts are courts of limited jurisdiction, and they possess “only that power
authorized by Constitution and statute.” Gunn v. Minton, 133 S. Ct. 1059, 1064 (2013) (quoting
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)). Thus, “[w]ithin
constitutional bounds, Congress decides what cases the federal courts have jurisdiction to
consider.” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (quoting Bowles v. Russell, 551 U.S.
205, 212, (2007)).
To survive a motion to dismiss for lack of jurisdiction, a plaintiff bears the burden of
establishing that a court has jurisdiction over its claim. See Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 103–04 (1998) (standing and Article III jurisdiction); Moms Against Mercury
v. FDA, 483 F.3d 824, 828 (D.C. Cir. 2007) (subject-matter jurisdiction). To determine whether
jurisdiction exists, a court may “consider the complaint supplemented by undisputed facts
evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s
resolution of disputed facts.” Coal. for Underground Expansion v. Mineta, 333 F.3d 193, 198
(D.C. Cir. 2003).
The D.C. Circuit has recently explained that when a “special statutory review scheme”
exists, “it is ordinarily supposed that Congress intended that procedure to be the exclusive means
of obtaining judicial review in those cases to which it applies.” Jarkesy, 803 F.3d at 15 (quoting
City of Rochester v. Bond, 603 F.2d 927, 931 (D.C. Cir. 1979)). To determine whether Congress
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intended a statutory scheme to be the exclusive means of obtaining judicial review, this Court
must find that “(i) such intent is ‘fairly discernible in the statutory scheme,’ and (ii) the litigant’s
claims are ‘of the type Congress intended to be reviewed within [the] statutory structure.’” Id.(alteration in original) (quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 207, 212
(1994)).
2. Fairly Discernible Intent to Preclude
To determine whether it is “fairly discernible” that Congress precluded district court
jurisdiction, this Court must examine the statutory review scheme’s text, structure, and purpose.
Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126, 2133 (2012). As discussed above, the AIR21
whistleblower protection statute creates a detailed review scheme, with multiple opportunities for
administrative appeal before judicial review is possible. See 49 U.S.C. § 42121(b); see also
supra Part II. Its structure has much in common with other review schemes that preclude
premature district court review.
The Federal Mine Safety and Health Amendments Act of 1977 (Mine Act)3 created one
such scheme. The Mine Act gave the Department of Labor authority to cite and sanction mine
operators for health and safety violations. See 30 U.S.C. §§ 814(a), 815(a), 820. It also
established a detailed review scheme whereby mine operators may challenge those citations. See
30 U.S.C. §§ 815, 816, 823. When the scheme came before the Supreme Court for review in
Thunder Basin Coal Co. v. Reich, the Supreme Court held that the review scheme precluded
district courts from exercising jurisdiction over challenges to the Department’s decisions. See
510 U.S. 200, 202, 207–16 (1994).
3
Pub. L. No. 95-164, 91 Stat. 1290 (1977) (codified in scattered sections of 30 U.S.C.).
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The Mine Act review scheme in Thunder Basin has the same structure as the AIR21
review scheme here. Both review schemes begin with a first-level Department of Labor decision:
a decision to issue a Mine Act citation with proposed penalties, see 30 U.S.C. §§ 814(a), 815(a),
or a decision under AIR21 to issue a preliminary order or deny a complaint, see 49 U.S.C.
§ 42121(b)(2)(A). Both schemes then give an aggrieved party thirty days to challenge that initial
decision and seek review before an administrative law judge. See 30 U.S.C. § 815(a); 42 U.S.C.
§ 42121(b)(2)(a); 29 C.F.R. §§ 1979.106–1979.109. Failure to do so in either review scheme
means the initial Department order and penalties become final and exempt from later review. See
30 U.S.C. § 815(a); 42 U.S.C. § 42121(b)(2)(A); 29 C.F.R. § 1979.106(b)(2). If a party obtains
review before an administrative law judge, both review schemes then allow for another
administrative appeal: to the Federal Mine Safety and Health Review Commission in Mine Act
cases, or to the Department of Labor’s Administrative Review Board in AIR21 whistleblower
protection cases. See 30 U.S.C. § 815(d); 29 C.F.R. § 1979.110. Both schemes withhold judicial
review until after this second administrative appeal, and even then, they authorize review only in
a United States Court of Appeals—not a federal district court. See 30 U.S.C. § 816; 42 U.S.C.
§ 42121(b)(4)(A).
In Thunder Basin, the Supreme Court held that the Mine Act’s structure “demonstrates
that Congress intended to preclude” a challenge brought by a mine operator who sought district
court review before completing the administrative process. 510 U.S. at 208–09. The Court
explained that the Mine Act “expressly authorizes district court jurisdiction in only two
provisions”; those two provisions empower the Secretary of Labor to enforce its orders and to
coerce payment of penalties. Id. at 209; see also 30 U.S.C. §§ 818(a), 820(j). Because mine
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operators “enjoy no corresponding right,” the Court held that the Mine Act’s text and structure
favored precluding district court jurisdiction. Thunder Basin, 510 U.S. at 207–09.
The AIR21 scheme is similar. It authorizes district court jurisdiction in just two
provisions: one allows the Secretary of Labor to enforce a Department order, and the other
allows the “person on whose behalf an order was issued” to do the same. 49 U.S.C. § 42121(b)(5),
(b)(6)(A). Given the many resemblances between the AIR21 scheme and the Mine Act scheme,
this Court follows Thunder Basin and finds that AIR21’s structure favors precluding this Court’s
jurisdiction.
The Supreme Court’s more recent decision in Elgin v. Department of the Treasury, 132
S. Ct. 2126 (2012), provides another point of comparison. Elgin, like Thunder Basin, held that a
statutory review scheme—the one created by the Civil Service Reform Act of 1978 (CSRA)4 to
review major adverse employment actions taken against federal employees—provided the
exclusive avenue to judicial review and thus precluded district court jurisdiction. See 132 S. Ct.
at 2130, 2132. The CSRA scheme, like the Mine Act scheme in Thunder Basin, mirrors the
AIR21 whistleblower protection scheme in its structure. The scheme gives an aggrieved
employee the right to a “written decision” from the employing agency taking the adverse
action—which resembles, procedurally, the AIR21 preliminary order from OSHA. See 5 U.S.C.
§ 7513(b)(4); cf. 42 U.S.C. § 42121(b)(2)(A); 29 U.S.C. §§ 1979.104–1979.105. After the
employing agency takes the adverse action against the employee, the CSRA gives the employee
the right to appeal the agency’s action to the Merit Systems Protection Board, which may
initially refer the appeal to an administrative law judge before review by the full Board. See 5
U.S.C. §§ 7513(d), 7701(b)(1); 5 C.F.R. §§ 1201.111–1201.114. This structure is familiar;
4
Pub. L. No. 95-454, 92 Stat. 1111 (1978) (codified in scattered sections of 5 U.S.C.).
17
AIR21 also gives aggrieved parties the right to appeal adverse agency decisions to an
administrative law judge and then to a higher board (the Administrative Review Board). See 42
U.S.C. § 42121(b)(2)–(3); 29 C.F.R. §§ 1979.106–1979.110. Lastly, like AIR21, the CSRA
makes judicial review of a Merit Systems Protection Board decision available in a federal court
of appeals, and not in federal district court. See 5 U.S.C. § 7703; 49 U.S.C. § 42121(b)(4). The
Supreme Court held that the CSRA’s “elaborate” framework, set out in “painstaking detail,”
showed Congress’s intent to foreclose extrastatutory review. Elgin, 132 S. Ct. at 2133–34
(quoting United States v. Fausto, 484 U.S. 439, 443 (1988)). This Court does the same for
AIR21 here.
The D.C. Circuit’s recent opinion in Jarkesy v. SEC points the same direction. There, the
D.C. Circuit held that the statutory regime established for Securities and Exchange Commission
administrative proceedings comes with a fairly discernible intent to preclude suits in federal
court. Jarkesy v. SEC, 803 F.3d 9, 15–17 (D.C. Cir. 2015). The securities laws allow the
Commission to prosecute securities law violators in an administrative proceeding. Id. at 12
(citing 15 U.S.C. §§ 78u-2, 78u-3). When the Commission does so, it may designate an
administrative law judge to preside over an initial hearing. Id. (citing 17 C.F.R. § 201.110).
Parties may then appeal the administrative law judge’s decision to the full Commission; doing so
is a prerequisite to later judicial review. Id. (citing 17 C.F.R. § 201.410(a)); 17 C.F.R.
§ 201.410(e). After the Commission issues a final order, an “‘aggrieved’ respondent may seek
review in [the D.C. Circuit] or the circuit where he resides or has his principal place of business.”
Id. at 13 (quoting 15 U.S.C. § 78y(a)(1)).
Again, the statutory review scheme in Jarkesy has a familiar structure: agency action,
then review before an administrative law judge, then review by a higher agency board or
18
commission, then finally judicial review. It echoes the statutory review schemes in Elgin,
Thunder Basin, and indeed, AIR21. Elgin, Thunder Basin, and Jarkesy all hold that statutes
structured this way preclude district court jurisdiction, and this Court sees no reason to part ways
with precedent. The AIR21 whistleblower protection scheme, like the other statutory review
schemes, carries a fairly discernible congressional intent to preclude extrastatutory district court
suits.5
3. Claims of the Type Intended To Be Reviewed Within the Statutory Structure
The second prong of the statutory preclusion analysis directs this Court to examine
whether “the litigant’s claims are ‘of the type Congress intended to be reviewed within [the]
statutory structure.’” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir. 2015) (alteration in original)
(quoting Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 212 (1994)). Bombardier’s claims are.
Claims are presumed to escape preclusion “if a finding of preclusion could foreclose all
meaningful judicial review; if the suit is wholly collateral to a statute’s review provisions; and if
the claims are outside the agency’s expertise.” Jarkesy, 803 F.3d at 17 (quoting Free Enter. Fund
v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 489–90 (2010)). These three considerations
do not comprise “a strict mathematical formula,” but instead are “general guideposts useful for
5
The Supreme Court has at times looked to legislative history in this prong of the
statutory preclusion inquiry. See, e.g., Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 209–12
(1994) (examining the Mine Act’s legislative history). Here, however, the AIR21 whistleblower
protection statute’s sparse legislative history does not affect the Court’s analysis.
AIR21 as a whole was enacted to improve airline safety, which was “of paramount
concern” to Congress at the time of AIR21’s passage. See 146 Cong. Rec. H1002 (daily ed. Mar.
15, 2000) (statement of Rep. Reynolds). In line with that goal, the whistleblower protection
statute sought to allow airline employees to “reveal legitimate safety problems without fear of
retaliation.” See id. at H1008 (statement of Rep. Boehlert); 145 Cong. Rec. H4256 (daily ed.
June 15, 1999) (statement of Rep. Reynolds).
Because AIR21’s sparse legislative history does not clearly favor or disfavor precluding
district court jurisdiction, the Court does not base its opinion on it.
19
channeling the inquiry into whether the particular claims at issue fall outside an overarching
congressional design.” Id. None of the considerations apply here.
a. Meaningful Review Still Possible
Requiring Bombardier to continue litigating before the Department does not foreclose all
meaningful judicial review. Indeed, the statute expressly allows for judicial review after the
Department issues its final order. See 49 U.S.C. § 42121(b)(4).
Even though Bombardier must wait to obtain that review, delayed judicial review does
not foreclose meaningful review in the meantime. Jarkesy is instructive on this point: when a
party can have his claims heard administratively without bringing a “Trojan-horse challenge” to
an unrelated agency action and without subjecting himself to unnecessary sanction, then the
administrative scheme “presents an entirely ‘meaningful’ avenue of relief.” Jarkesy v. SEC, 803
F.3d 9, 20 (D.C. Cir. 2015) (distinguishing Jarkesy from Free Enterprise Fund v. Public
Company Accounting Oversight Board, 561 U.S. 477 (2010)). In other words, a party lacks
meaningful review of its claims only when administrative procedures create burdensome barriers
to those claims being heard at all. See, e.g., Free Enterprise Fund, 561 U.S. at 490–91
(explaining how, when the Securities and Exchange Commission’s administrative review scheme
“provides only for judicial review of Commission action, and not every [Public Company
Accounting Oversight] Board action is encapsulated in a final Commission order or rule,” the
administrative scheme is not a “meaningful” avenue of relief for constitutional claims
challenging the Board’s existence).
That is not the case here. Bombardier’s challenge to the Department’s jurisdiction over it
has been adjudicated (and readjudicated) by the Department since Mr. Sobhani filed his initial
complaint with OSHA. Bombardier’s jurisdictional challenge prompted OSHA to dismiss Mr.
20
Sobhani’s complaint in May 2014, and multiple administrative law judge decisions addressed it
afterward. See Order Den. Dismissal Compl. Failure State Claim 5, Pl.’s Opp’n Defs.’ Mot.
Dismiss Ex. G, ECF No. 17-1; Decision & Order Den. Resp’t’s Mot. Summ. Decision 2, 15,
Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. H, ECF No. 17-1; Order Den. Resp’t’s “Motion for
Certification or, Alternatively, Reconsideration” 6, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. I, ECF
No. 17-1. Furthermore, AIR21’s applicability to Bombardier remains an open issue for future
Department decisions. As the administrative law judge put it, discovery through the
administrative process is necessary because the Department “is not yet equipped to provide final
resolution” on the jurisdictional issue. Order Den. Resp’t’s “Motion for Certification or,
Alternatively, Reconsideration” 5. Because the Department will continue to consider AIR21’s
applicability to Bombardier, and because Bombardier may appeal an adverse decision to a court
of appeals, Bombardier’s claim about AIR21’s applicability can receive meaningful review
through the administrative process.
Nor does the burden of discovery compliance make that review less meaningful.
Bombardier contends that “[s]ubstantial compliance with the . . . order compelling the production
of data and documents would, at a minimum, cost Bombardier hundreds of thousands of dollars.”
Compl. ¶ 42. But though the burden of discovery compliance is not to be underestimated, it does
not signify an absence of meaningful judicial review. See Jarkesy v. SEC, 803 F.3d 9, 25 (D.C.
Cir. 2015) (observing that harm from the administrative process “does not mean [the plaintiff’s]
claims should receive preemptive resolution in a district court”). As the Supreme Court has
repeatedly affirmed, “[m]ere litigation expense, even substantial and unrecoupable cost, does not
constitute irreparable injury.” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 244 (1980)
(quoting Renegotiation Bd. v. Bannercraft Clothing Co., 415 U.S. 1, 24 (1974)). Rather, “the
21
expense and annoyance of litigation is part of the social burden of living under government.”
Jarkesy, 803 F.3d at 26 (quoting Standard Oil, 449 U.S. at 244).
Though Bombardier objects that the United States government’s administrative process is
out of line here, its objection highlights exactly why that process continues—so that the
Department can determine whether Bombardier’s actions fall under United States regulatory
authority. See Order Den. Resp’t’s “Motion for Certification or, Alternatively, Reconsideration”
4–5. Like the Jarkesy plaintiffs, the only harms that Bombardier faces from the administrative
process are “the burdens abided by any respondent in an enforcement proceeding.” Jarkesy v.
SEC, 803 F.3d 9, 28 (D.C. Cir. 2015). “The judicial system tolerates those harms, and they are
insufficient . . . to infer an exception to an otherwise exclusive scheme.” Id.Bombardier does not prove otherwise by contending that, given the Canadian genesis of
Mr. Sobhani’s termination, AIR21’s judicial review provision would not allow any federal court
of appeals to review the Department’s final order, and thus later judicial review is foreclosed.
See Pl.’s Opp’n Defs.’ Mot. Dismiss 17, ECF. No. 17 (arguing that, because Mr. Sobhani’s
termination happened in Canada and Mr. Sobhani resided in Canada when he was terminated,
“there is no Court of Appeals that would have jurisdiction”). AIR21 allows parties aggrieved by
a final Department order to obtain review in just two possible United States Courts of Appeals:
(1) the Court of Appeals “for the circuit in which the violation, with respect to which the order
was issued, allegedly occurred,” or (2) the Court of Appeals for “the circuit in which the
complainant resided on the date of such violation.” 49 U.S.C. § 42121(b)(4)(A). But this
limitation does not foreclose Bombardier from obtaining meaningful judicial review. If the
Department maintains its current position that Mr. Sobhani’s allegations “warrant a domestic
application” of AIR21, then the domestic location where the Department finds “a significant
22
nexus with the United States” could provide the requisite toehold for federal appellate review.
See Mem. Supp. Defs.’ Mot. Dismiss 25, ECF No. 16-1; Decision & Order Den. Resp’t’s Mot.
Summ. Decision 15, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. H, ECF No. 17-1. Bombardier has not
proven otherwise.
Bombardier also errs when it assumes that AIR21’s judicial review provision limits the
appellate courts’ jurisdiction. 49 U.S.C. § 42121(b)(4)(A) instead speaks to venue, in line with
courts’ interpretations of similar judicial review provisions.
For instance, the D.C. Circuit has repeatedly held in the National Labor Relations Board
(NLRB) context that “all intermediate federal courts have jurisdiction to review and enforce
orders of the NLRB,” because the statutes limiting judicial review to certain courts “are
concerned only with venue.” NLRB v. Wilder Mfg. Co., 454 F.2d 995, 998 n.12 (D.C. Cir. 1971)
(per curiam); accord Fed. Labor Relations Auth. v. Soc. Sec. Admin., 846 F.2d 1475, 1478–79
(D.C. Cir. 1988) (per curiam) (referring to the judicial review provisions as “venue provisions”);
see also Brentwood at Hobart v. NLRB, 675 F.3d 999, 1002 (6th Cir. 2012) (holding that the
review limitations “go to venue, not subject-matter jurisdiction”). A person aggrieved by NLRB
final orders may obtain judicial review (1) in the circuit where the unfair labor practice “was
alleged to have been engaged in,” (2) in the circuit where the aggrieved person “resides or
transacts business,” or (3) “in the United States Court of Appeals for the District of Columbia.”
29 U.S.C. § 160(f). AIR21 review is structured similarly: a person aggrieved by the
Administrative Review Board’s final order may obtain judicial review in the circuit where the
statutory violation allegedly occurred, and in the circuit where the complainant resided at the
time of the violation. See 49 U.S.C. § 42121(b)(4)(A). That the NLRB review provision is a
23
venue provision rather than a jurisdictional provision indicates that AIR21’s review provision is
also a venue provision.
Courts have also interpreted other similar provisions as venue provisions, not
jurisdictional ones. See, e.g., Stern v. Marshall, 131 S. Ct. 2594, 2606 (2011) (holding that 28
U.S.C. § 157(b)(5) “is not jurisdictional”);6 Panhandle E. Pipe Line Co. v. Fed. Power Comm’n,
324 U.S. 635, 638–39 (1945) (holding that section 19(b) of the Natural Gas Act “goes to venue
not to jurisdiction”);7 U.S. Sec. & Exchange Comm’n v. E-Smart Techs., Inc., 926 F. Supp. 2d
231, 236 (D.D.C. 2013) (interpreting 15 U.S.C. §§ 77v(a), 78aa as venue provisions);8 Noisette
6
28 U.S.C. § 157(b)(5) declares that, in the bankruptcy context, “personal injury tort and
wrongful death claims shall be tried in the district court in which the bankruptcy case is pending,
or in the district court in the district in which the claim arose.”
7
Section 19(b) of the Natural Gas Act declares that “[a]ny party . . . aggrieved by an
order issued by the [Federal Power] Commission . . . may obtain a review of such order in the
circuit court of appeals of the United States for any circuit wherein the natural-gas company to
which the order relates is located or has its principal place of business, or in the United States
Court of Appeals for the District of Columbia . . . .” Natural Gas Act, Pub. L. No. 75-688,
§ 19(b), 52 Stat. 821, 831 (1938) (codified as amended at 15 U.S.C. § 717r(b)).
The Supreme Court read the statute “to invest all intermediate federal courts with the
power to review orders of the Commission.” Panhandle E. Pipe Line Co. v. Fed. Power
Comm’n, 324 U.S. 635, 638 (1945) (emphasis added). The Court justified its holding by
explaining that “[v]enue relates to the convenience of litigants” and “[t]he provisions of § 19(b)
plainly are of that character.” Id. at 639.
8
15 U.S.C. § 77v governs “[j]urisdiction of offenses and suits” under the Securities Act.
See 15 U.S.C. § 77v (heading); U.S. Sec. & Exchange Comm’n v. E-Smart Techs., Inc., 926 F.
Supp. 2d 231, 236–37 (D.D.C. 2013). It specifies that “[t]he district courts of the United
States . . . shall have exclusive jurisdiction,” but it also declares that suits “may be brought in the
district wherein the defendant is found or is an inhabitant or transacts business, or in the district
where the offer or sale took place.” 15 U.S.C. § 77v(a). Although the two statements are found in
the same subsection, this Court interpreted the second as a venue provision. See E-Smart Techs.,
Inc., 926 F. Supp. 2d at 236–37.
15 U.S.C. § 78aa governs “[j]urisdiction of offenses and suits” under the Securities
Exchange Act. See 15 U.S.C. § 78aa (heading); E-Smart Techs., Inc., 926 F. Supp. 2d at 236–37.
It likewise begins by specifying that “[t]he district courts of the United States . . . shall have
exclusive jurisdiction” before declaring that suits “may be brought in the district wherein any act
or transaction constituting the violation [of the Securities Exchange Act] occurred . . . or in the
district wherein the defendant is found or is an inhabitant or transacts business.” 15 U.S.C.
24
v. Geithner, 693 F. Supp. 2d 60, 63 (D.D.C. 2010) (interpreting the latter portion of 42 U.S.C.
§ 2000e-5(f)(3) as a venue provision).9 At times, Congress has also clarified that review
provisions like these are venue provisions. See, e.g., 12 U.S.C. § 94 (labeling with the heading
“[v]enue of suits” a statute declaring that certain actions involving banks shall be brought in the
district, county, or city where the bank’s “principal place of business is located”); 40 U.S.C.
§ 3133(b)(3) (labeling with the subheading “[v]enue” a provision declaring that certain civil
actions involving federal contractors must be brought “in the United States District Court for any
district in which the contract was to be performed and executed”).10 AIR21’s judicial review
provision falls in line as one of many provisions specifying the venues available for judicial
review of agency action.
Because AIR21’s judicial review provision is, therefore, not jurisdictional, it cannot
foreclose Bombardier from obtaining judicial review of an adverse final Department order in all
of the courts of appeals. Just as the D.C. Circuit found that the NLRB review provision gave “all
intermediate federal courts” jurisdiction to review NLRB orders, NLRB v. Wilder Mfg. Co., 454
§ 78aa(a). Again, although the statements are in the same subsection, this Court interpreted the
statements about where suits may be brought as venue provisions. See E-Smart Techs., Inc., 926
F. Supp. 2d at 236–37.
9
42 U.S.C. § 2000e-5(f)(3) declares that, though each federal district court “shall have
jurisdiction,” employment discrimination suits may be brought in a district court “in the State in
which the unlawful employment practice is alleged to have been committed,” “in the judicial
district in which the employment records relevant to such practice are maintained,” “in the
judicial district in which the aggrieved person would have worked but for the alleged unlawful
employment practice,” or if all of these options are not viable, “within the judicial district in
which the respondent has his principal office.”
10
See generally Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47
(2008) (“[S]tatutory titles and section headings ‘are tools available for the resolution of a doubt
about the meaning of a statute.’” (internal quotation marks omitted) (quoting Porter v. Nussle,
534 U.S. 516, 528 (2002))).
25
F.2d 995, 998 n.12 (D.C. Cir. 1971), so too here, the AIR21 review provision gives all the courts
of appeal jurisdiction to review final AIR21 whistleblower protection orders.
Of course, Bombardier can echo its jurisdictional argument by asserting that 49 U.S.C.
§ 42121(b)(4)(A) still prevents judicial review, because no proper venue would exist for that
review. 11 But venue, unlike subject matter jurisdiction, is a waivable defense. See Neirbo Co. v.
Bethlehem Shipbuilding Corp., 308 U.S. 165, 167 (1939) (“Being a privilege, it may be lost.”);
see also Citizens & S. Nat’l Bank v. Bougas, 434 U.S. 35, 38 (1977) (extending the waiver
principle to cases brought under 12 U.S.C. § 94, a statutory venue provision that resembles 49
U.S.C. § 42121(b)(4)(A)).
If Bombardier eventually seeks review in the circuit where the Department finds “a
significant geographic nexus with the United States,” see Decision & Order Den. Resp’t’s Mot.
Summ. Decision 15, improper venue would become a problem only if Mr. Sobhani or the
11
Along these lines, the Supreme Court has articulated that “Congress does not in general
intend to create venue gaps, which take away with one hand what Congress has given by way of
jurisdictional grant with the other.” Smith v. United States, 507 U.S. 197, 203 (1993) (quoting
Brunette Machine Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 710 n.8 (1972)). “Thus, in
construing venue statutes it is reasonable to prefer the construction that avoids leaving such a
gap.” Brunette Machine Works, 406 U.S. at 710 n.8. In Smith, the Supreme Court applied this
principle to hold that the Federal Tort Claims Act (FTCA) cannot apply to claims arising in
Antarctica, because applying the FTCA to Antarctica claims would create a venue gap. See 507
U.S. at 202–03 (explaining that, if the FTCA applied to Antarctica claims, “no venue would exist
unless the claimant happened to reside in the United States”).
Apart from the reasons expressed below to reject the lack-of-venue argument, Smith is
inapposite to Bombardier’s case because it arises from a different legal context. There, the issue
was whether to apply the FTCA abroad; here, the issue is whether Mr. Sobhani’s complaint
“involves a domestic application” of AIR21. Decision & Order Den. Resp’t’s Mot. Summ.
Decision 15. The Department has already declared that “AIR21’s whistleblower provision does
not have extraterritorial reach.” Id. at 9. Thus, if Bombardier is liable under the statute, its
liability must arise from conduct committed within the United States, see id. at 10, which means
that under 49 U.S.C. § 42121(b)(4)(A) a circuit “in which the violation . . . allegedly occurred”
would exist. No venue gap is possible here, so Smith does not bear on this case.
26
Department raised it.12 Otherwise, Mr. Sobhani and the Department would waive the venue
objection. See Barnstead Broad. Co. v. Offshore Broad. Co., 869 F. Supp. 35, 38 (D.D.C. 1994)
(“An objection to . . . venue may be waived ‘by submission [in a cause] through conduct.’”
(quoting Manchester Knitted Fashions v. Amalgamated Cotton Garment Fund, 967 F.2d 688,
692 (1st Cir. 1992))).
And Bombardier could argue that Mr. Sobhani and the Department waived any objection
to venue through their conduct during the administrative proceeding. For if Mr. Sobhani and the
Department conclude that Mr. Sobhani’s claims have a domestic basis, the law does not allow
them to change their position to prevent review. In the Supreme Court’s words, “where a party
assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he
may not thereafter, simply because his interests have changed, assume a contrary position,
especially if it be to the prejudice of the party who has acquiesced in the position formerly taken
by him.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (alteration omitted) (quoting Davis
v. Wakelee, 156 U.S. 680, 689 (1895)); see also Aera Energy LLC v. Salazar, 642 F.3d 212, 219
(D.C. Cir. 2011) (applying this principle to bar parties from adopting a theory inconsistent with
the one they advanced in the administrative proceeding before). Assuming Bombardier seeks
review in the circuit where the Department found a domestic basis for AIR21 jurisdiction, a
12
A party petitioning a court of appeals for review under 49 U.S.C. § 42121(b)(4)(A)
names the Department of Labor, and sometimes the other party to the administrative proceeding,
as a respondent in the petition for review. See, e.g., Misuzawa v. U.S. Dep’t of Labor, 524 F.
App’x 443, 443 (10th Cir. 2013) (naming the Department as the respondent, and showing the
employer United Parcel Service’s involvement as an intervenor); Yadav v. L-3 Commc’ns Corp.,
462 F. App’x 533, 533 (6th Cir. 2012) (naming both the Department and the employer L-3
Communications Corporation as respondents); Hoffman v. Solis, 636 F.3d 262, 262 (6th Cir.
2011) (naming the Secretary of Labor as the respondent); Williams v. Dep’t of Labor, 370 F.
App’x 97, 97 (Fed. Cir. 2010) (per curiam) (naming the Department as the respondent); Vieques
Air Link, Inc. v. U.S. Dep’t of Labor, 437 F.3d 102, 102 (1st Cir. 2006) (per curiam) (same).
27
venue objection from Mr. Sobhani or the Department would not square with their prior position
that Bombardier’s liability arises from domestic activity. Because a venue objection would
therefore lack merit, venue would not obstruct Bombardier’s judicial review.13
AIR21’s judicial review provision therefore does not prevent Bombardier from obtaining
meaningful judicial review of an eventual final order from the Department. And of course,
Bombardier may not even need judicial review. After the hearing on the merits, the Department’s
administrative law judge might ultimately agree with Bombardier and find that AIR21 cannot
apply to Bombardier. Or the Administrative Review Board could rule for Bombardier on its
review of the matter. Either of these outcomes would moot Bombardier’s objection and eliminate
Bombardier’s wish for judicial review. Bombardier’s situation shows us precisely why courts
tend to “await the termination of agency proceedings”: so that the agency proceedings may
“obviate all occasion for judicial review.” Jarkesy v. SEC, 803 F.3d 9, 27 (D.C. Cir. 2015)
(quoting Standard Oil, 449 U.S. at 244 n.11). This is “a feature” of the administrative process,
“not a bug.” Id.b. Suit Not Wholly Collateral
Bombardier also cannot defend its position by arguing that its claims are wholly
collateral to the AIR21 whistleblower protection statute’s review provisions. A suit is not
“wholly collateral” to a statute’s review provisions when it “attacks the [agency’s] decision to
13
Even if Bombardier erroneously sought review in a circuit other than “the circuit in
which the [AIR21] violation . . . allegedly occurred,” courts commonly cure these kinds of venue
defects by transfer, not dismissal. See, e.g., Williams v. Dep’t of Labor, 370 F. App’x 97, 97–98
(Fed. Cir. 2010) (per curiam) (transferring an AIR21 petition, brought in the Federal Circuit, to
the appropriate regional circuit court); Carson v. Dir., Office of Workers’ Comp. Programs,
No. 97-1203, 1997 WL 573483, at *1 (D.C. Cir. Aug. 26, 1997) (per curiam) (transferring a
petition brought in the wrong circuit under the Longshore and Harbor Workers’ Compensation
Act).
28
place [a party] in administrative proceedings in the first place.” Jarkesy v. SEC, 803 F.3d 9, 22
(D.C. Cir. 2015). Likewise, claims are not wholly collateral to an administrative enforcement
scheme when they arise from agency actions taken in the course of that scheme. Id. at 23–24. Far
from being wholly collateral, these types of claims are “inextricably intertwined” with the
enforcement scheme. See id. at 23 (quoting Jarkesy v. SEC, 48 F. Supp. 3d 32, 38 (D.D.C.
2014)). Furthermore, a challenge to an administrative proceeding’s validity is not wholly
collateral when it is actually the “vehicle by which [the party] seeks to prevail in his
administrative proceeding.” Id. at 23 (quoting Elgin v. Dep’t of the Treasury, 132 S. Ct. 2126,
2139–40 (2012)).
Here, Bombardier attacks the Department’s decision to subject Bombardier to AIR21
administrative proceedings in the first place. See Compl. ¶¶ 4–6 (“Defendants have no statutory
authority to proceed against Bombardier . . . .”). This simple fact alone reveals that Bombardier’s
suit is not wholly collateral to AIR21 enforcement and review. But Bombardier also makes the
same argument in this Court as it did before the agency: that AIR21 cannot apply extraterritorially,
and so it cannot apply to Bombardier, a Canadian company. See Compl. ¶¶ 3–6; Decision &
Order Den. Resp’t’s Mot. Summ. Decision 6. Bombardier’s claim to jurisdiction in this Court is
thus also the “vehicle by which” it seeks to prevail before the Department. Hence, its claim is not
wholly collateral to the Department’s administrative proceedings.
This case closely parallels Jarkesy v. SEC, and this Court merely reaches the same
conclusion as the one the D.C. Circuit reached there. In Jarkesy, the plaintiffs sought to escape
the Securities and Exchange Commission’s administrative proceedings by filing suit in this
Court. See Jarkesy v. SEC, 803 F.3d 9, 13 (D.C. Cir. 2015). Like Bombardier, the Jarkesy
plaintiffs filed suit before their agency proceedings culminated in a hearing before an
29
administrative law judge. See id. Injunctive and declaratory relief was necessary, they argued, to
prevent the Commission from continuing an administrative proceeding that violated, among
other things, the plaintiffs’ constitutional rights. Id. at 13–14.
The D.C. Circuit refused to entertain the plaintiffs’ arguments. It described their attempt
to manufacture district court jurisdiction as one seeking “to short-circuit the administrative
process through the vehicle of a district court complaint.” Id. at 24 (quoting Sturm, Ruger & Co.
v. Chao, 300 F.3d 867, 876 (D.C. Cir. 2002)). Rather than allowing the plaintiffs to “make an
end run” around the administrative process, the D.C. Circuit declared that the district court
rightly dismissed the plaintiffs’ complaint. Id. (quoting Sturm, Ruger & Co., 300 F.3d at 876).
The court specified that, because the plaintiffs pressed identical claims as affirmative defenses
before the agency, those claims were not “collateral” to the agency’s decisions. Id. at 23–24.
So too here. Because Bombardier’s claims in this Court are identical to those it raised in
the Department, letting Bombardier’s suit proceed would allow Bombardier to short-circuit the
Department’s administrative process. Because this Court must “respect the review process
established by Congress,” Bombardier’s complaint must be dismissed. Id. at 24 (quoting Sturm,
Ruger & Co., 300 F.3d at 876).14
14
Jarkesy also notes that the burden of enduring administrative proceedings might be
viewed either “to indicate a ‘collateral’ claim” or “to suggest an absence of meaningful judicial
review (or both).” Jarkesy v. SEC, 803 F.3d 9, 25 (D.C. Cir. 2015). But the court goes on to
declare that a burdensome administrative process does not mean preemptive district court review
is warranted: even if the party seeking review finds an agency proceeding burdensome, “the
party must patiently await the denouement of proceedings within the Article II branch.” Id. at 26(quoting USAA Federal Sav. Bank v. McLaughlin, 849 F.2d 1505, 1510 (D.C. Cir. 1988)).
As discussed above, this Court finds unpersuasive Bombardier’s claim that discovery
compliance would be burdensome. See supra Part IV.A.3.a; cf. Compl. ¶ 42 (claiming that
discovery compliance would cost Bombardier “hundreds of thousands of dollars”). This Court
follows the D.C. Circuit’s reasoning. The burden of discovery compliance does not mean
Bombardier lacks the possibility of meaningful judicial review and also does not make
Bombardier’s suit “collateral” to the Department’s administrative proceeding.
30
c. Claims Within the Agency’s Expertise
Finally, Bombardier does not levy claims that are outside the Department’s expertise. The
Department regularly adjudicates AIR21 whistleblower discrimination complaints, and its
expertise in this domain is well-recognized. See Macktal v. Garde, No. 89-2533, 1992 WL
119113, at *2 (D.D.C. May 11, 1992) (“There can be no doubt that the Department of Labor is
the governmental body with particular expertise in the area of whistleblower actions . . . .”).
Furthermore, despite Bombardier’s vigorous advocacy to the contrary, even the
jurisdictional questions here are within the Department’s expertise. Bombardier argues that
“questions regarding statutory construction and extraterritorial application are questions on
which courts—not administrative agencies—are experts.” Compl. ¶ 59. In doing so, the company
overlooks a key principle in administrative law: when it comes to ambiguities in statutes
administered by agencies, courts routinely defer to agency interpretations. See City of Arlington
v. FCC, 133 S. Ct. 1863, 1868 (2013) (“[I]f the statute is silent or ambiguous with respect to the
specific issue, the question for the court is whether the agency’s answer is based on a permissible
construction of the statute.” (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, 467
U.S. 837, 847 (1984))).
Moreover, even though Bombardier contends that the Department acted “in excess of
[its] statutory jurisdiction and authority,” Compl. ¶ 59, an agency’s interpretation of a statute it
administers is not owed any less deference because it interprets the scope of its own jurisdiction.
Montford & Co. v. SEC, 793 F.3d 76, 82 (D.C. Cir. 2015); see also City of Arlington, 133 S. Ct.
at 1868–71 (“[T]he distinction between ‘jurisdictional’ and ‘nonjurisdictional’ interpretations is a
mirage . . . .”). This Court must therefore give as much deference to the Department’s
interpretations of its statutory authority under AIR21 as it would to the Department’s
31
adjudications of the conduct that AIR21 prohibits. So even though Bombardier’s legal claims
concern the scope of the Department’s statutory authority, they do not fall outside the
Department’s expertise.
On this point, Jarkesy is again instructive. There, the D.C. Circuit explained how an
agency can bring its expertise even to claims about the validity of the agency’s enforcement
action. The agency could decline to find a violation of the statute that the agency enforces, thus
mooting the need to resolve the validity issues. Jarkesy v. SEC, 803 F.3d 9, 29 (D.C. Cir. 2015).
Or the agency could interpret the statute in a way that sheds light on the validity question. Id.Overall, “there are precious few cases involving interpretation of statutes authorizing agency
action in which [the court’s] review is not aided by the agency’s statutory construction.” Id.(quoting Mitchell v. Christopher, 996 F.2d 375, 379 (D.C. Cir. 1993)).
The same reasoning applies here. The Department of Labor is charged with enforcing
(and interpreting) the AIR21 whistleblower protection statute. See 49 U.S.C. § 42121(b). Its
interpretation of the statute could aid a future reviewing court in ways similar to those
highlighted in Jarkesy. If the Department finds AIR21 inapplicable to Bombardier, its decision
would moot the need for judicial resolution of the jurisdictional issue. Or, if the Department
finds AIR21 applicable to Bombardier, the Department’s reasoning could provide a reviewing
court with better insight into the statute’s purpose, policy, and implementation. See, e.g.,
Clemmons, ARB No. 12-105, slip op. at 8 (Dep’t of Labor Nov. 25, 2013), available at 2013 WL
6354832, at *5 (discussing AIR21’s purposes and policy). Either way, the Department’s
expertise will be useful.
* * *
32
In sum, Bombardier’s claims are of the type intended to be reviewed within the AIR21
statutory structure. Pursuing these claims administratively will not foreclose later meaningful
judicial review, the claims are not wholly collateral to AIR21 review provisions, and those
claims do not fall outside the Department’s expertise. For these reasons, and because the AIR21
statutory structure has a fairly discernible intent to preclude premature suits in federal court,
Bombardier’s complaint must be dismissed. Holding otherwise would continue the parallel
litigation of identical issues in this Court and in the Department of Labor, leaving open the
possibility of future inconsistent judgments. See generally Jarkesy v. SEC, 803 F.3d 9, 30 (D.C.
Cir. 2015) (discussing this possibility). To avoid that unwelcome result, the Court will dismiss
Bombardier’s complaint for lack of jurisdiction.15
15
The exception to statutory preclusion created by Leedom v. Kyne, 358 U.S. 184 (1958),
does not apply here. In Leedom, because the National Labor Relations Board issued an order “in
excess of its delegated powers” and contrary to a “clear and mandatory” statutory provision, the
Supreme Court allowed an aggrieved party to obtain judicial review of the order, even though it
was not final. See 358 U.S. at 187–189; see also Mittleman v. Postal Regulatory Comm’n, 757
F.3d 300, 307 (D.C. Cir. 2014) (noting that extrastatutory review may be available “to determine
whether the agency has acted “ultra vires”).
The D.C. Circuit has, however, elaborated that “[t]he invocation of Leedom
jurisdiction . . . is extraordinary.” Nat’l Air Traffic Controllers Ass’n AFL–CIO v. Fed. Serv.
Impasses Panel, 437 F.3d 1256, 1263 (D.C. Cir. 2006) (quoting Ass’n of Civilian Technicians v.
Fed. Labor Relations Auth., 283 F.3d 339, 344 (D.C .Cir. 2002)). Thus, “Leedom jurisdiction is
extremely narrow in scope.” Id. For Leedom jurisdiction to be available, Bombardier would have
to show that (1) the Department acted “‘in excess of its delegated powers and contrary to a
specific prohibition’ which ‘is clear and mandatory,’” and (2) barring judicial review now would
wholly deprive Bombardier “of a meaningful and adequate means of vindicating its statutory
rights.” See id. (quoting Bd. of Governors of the Fed. Reserve Sys. v. MCorp Fin., Inc., 502 U.S.
32, 43 (1991), and Leedom, 358 U.S. at 188).
As discussed above, Bombardier cannot show that barring judicial review now would
foreclose all meaningful judicial review. See supra Part IV.A.3.a. Leedom jurisdiction does not
apply here.
33
B. The Administrative Procedure Act
Bombardier’s asserted reliance upon the Administrative Procedure Act (APA), 5 U.S.C.
§§ 701–706, does not resuscitate its case. Even if the AIR21 statutory scheme did not preclude
this Court’s jurisdiction, Bombardier fails to state a claim under the APA.16 Neither the AIR21
statutory scheme nor the APA provides Bombardier with a valid basis for district court review.
1. Legal Standard
The APA’s review provisions are not jurisdictional. Viet. Veterans of Am. v. Shinseki, 599
F.3d 654, 661 (D.C. Cir. 2010). Instead, 5 U.S.C. § 704, which defines actions reviewable under
the APA, simply “limits causes of action under the APA.” Ctr. for Auto Safety v. Nat’l Highway
Traffic Safety Admin., 452 F.3d 798, 806 (D.C. Cir. 2006); see also Reliable Automatic Sprinkler
Co. v. Consumer Prod. Safety Comm’n, 324 F.3d 726, 731 (D.C. Cir. 2003) (noting that “[i]f
there was no final agency action here, there is no doubt that [the party] would lack a cause of
action under the APA”).
The Federal Rules of Civil Procedure require that a complaint contain “a short and plain
statement of the claim” to give the defendant fair notice of the claim and the grounds upon which
it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam).
A court considering a motion for failure to state a claim presumes that the complaint’s factual
allegations are true and construes them liberally in the plaintiff’s favor. See, e.g., United States v.
Philip Morris, Inc., 116 F. Supp. 2d 131, 135 (D.D.C. 2000).
16
Likewise, even if Bombardier has a cause of action for district court APA review, that
does not cure this Court’s lack of jurisdiction to review the Department’s administrative
proceedings. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (“Without
jurisdiction the court cannot proceed at all in any cause.” (quoting Ex parte McCardle, 74 U.S. (7
Wall.) 506, 514 (1868))). Also, “to the extent that . . . statutes preclude judicial review,” the APA
does not apply. 5 U.S.C. § 701(a).
34
A plaintiff need not plead all elements of a prima facie case in the complaint. See
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511–14 (2002); Bryant v. Pepco, 730 F. Supp. 2d 25,
28–29 (D.D.C. 2010). Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). This means that a plaintiff's factual allegations “must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations omitted). “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,” are
therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. More relevantly
here, a court need not accept as true a plaintiff’s legal conclusions, even when the plaintiff
couches those legal conclusions as factual allegations. Id.; Twombly, 550 U.S. at 555 (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)).17
2. No Reviewable Agency Action
5 U.S.C. § 702 provides that a litigant “adversely affected or aggrieved by agency action”
is “entitled to judicial review thereof.” But 5 U.S.C. § 704 defines actions reviewable to include
17
Although a court generally cannot consider matters beyond the pleadings at the motion
to dismiss stage, it may consider “documents upon which the plaintiff's complaint necessarily
relies even if the document is produced not by the plaintiff in the complaint but by the defendant
in a motion to dismiss.” Angelex Ltd. v. United States, No. 15-0056, 2015 WL 5011421, at *11
n.11 (D.D.C. Aug. 24, 2015) (quoting Ward v. D.C. Dep’t of Youth Rehab. Servs., 768 F. Supp.
2d 117, 119 (D.D.C. 2011)).
To lay out its APA claims, Bombardier’s complaint relies on the Department’s past
decisions in the adjudication of Mr. Sobhani’s whistleblower complaint. Compl. ¶¶ 26–45.
Bombardier’s complaint discusses the decisions specifically, see id., and Bombardier produced
the Department’s decisions as exhibits appended to its opposition to the Department’s motion to
dismiss, see Pl.’s Opp’n Defs.’ Mot. Dismiss Exs. F–I, K–L, ECF No. 17-1. For the APA
analysis, therefore, the Court considers the record established by Bombardier’s complaint and by
the Department decisions Bombardier produced.
35
just (1) “[a]gency action made reviewable by statute” and (2) “final agency action for which
there is no other adequate remedy in a court.” Section 704 further specifies that “[a] preliminary,
procedural, or intermediate agency action . . . is subject to review on the review of the final
agency action” (emphasis added).
Here, the Department’s actions are not yet reviewable by statute. AIR21 allows for
judicial review of final orders only, and, even then, review is had in the court of appeals, not this
Court. See 49 U.S.C. § 42121(b)(4)(A). Bombardier therefore cannot obtain APA review on the
basis of an “agency action made reviewable by statute.” Neither can Bombardier obtain APA
review over a “final agency action for which there is no other adequate remedy in a court.” The
Department has not issued a final order on Mr. Sobhani’s AIR21 whistleblower complaint, and
so it has yet to take final agency action. And even if the Department had taken final agency
action, Bombardier has another adequate remedy in a court: judicial review in a United States
Court of Appeals once the Department issues a final order. See id. In sum, this case does not fall
within § 704’s ambit.
Nor is APA review available on the narrow issue of the Department’s jurisdiction over
Bombardier. Bombardier argues that the Department of Labor has taken a final agency action by
asserting AIR21 jurisdiction over Bombardier. Pl.’s Opp’n Defs.’ Mot. Dismiss 13, ECF No. 17.
Courts interpret “finality” in a “pragmatic” way, particularly when an agency acts by
rulemaking. See FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239 (1980) (reviewing Abbott
Laboratories v. Gardner, 387 U.S. 136 (1967), in which the Supreme Court held that an
agency’s publication of regulations was a final agency action). But when an agency acts by
adjudication, as here, the finality analysis is often simpler: the agency action is not final while
the adjudication is still pending. See id. at 239–41 (explaining how pending administrative
36
proceedings in the agency adjudication meant that the agency’s position, as articulated in its
administrative complaint, was not yet final).
Regardless of the context, however, courts routinely look for two signals of finality. First,
the agency’s action must be “definitive,” or the “consummation” of the agency’s decisionmaking
process. See Sackett v. EPA, 132 S. Ct. 1367, 1372 (2012); Standard Oil, 449 U.S. at 239–41;
CSI Aviation Servs., Inc. v. U.S. Dep’t of Transp., 637 F.3d 408, 477–78 (D.C. Cir. 2011).
Second, the agency’s action must determine rights and obligations, so that legal consequences
flow from the agency’s action. See Sackett, 132 S. Ct. at 1371–72; CSI Aviation, 537 F.3d at 477;
see also Standard Oil, 449 U.S. at 239–42 (requiring “legal or practical effect” flowing from an
agency’s action to make it final).
Neither finality signal is present here. The Department’s actions amount to a decision to
postpone judgment on Mr. Sobhani’s whistleblower claim until it becomes clear, through
discovery, whether AIR21 jurisdiction is proper. See Decision & Order Den. Resp’t’s Mot.
Summ. Decision 15, Pl.’s Opp’n Defs.’ Mot. Dismiss Ex. H, ECF No. 17-1; Order Den. Resp’t’s
“Motion for Certification or, Alternatively, Reconsideration” 4–6, Pl.’s Opp’n Defs.’ Mot.
Dismiss Ex. I, ECF No. 17-1. Thus, the Department’s decisionmaking process has not
consummated, not even on the jurisdictional issue. The Department refused to grant Bombardier
summary decision specifically to allow discovery, including discovery on the issue of whether
AIR21 should apply to Bombardier. See Decision & Order Den. Resp’t’s Mot. Summ. Decision
13–15.
The Department’s assumption that it has jurisdiction for the time being also does not
impose the legal consequences typically associated with final agency actions. The Department
did not order Bombardier to provide relief to Mr. Sobhani, see id. at 15, and the burden of
37
discovery compliance is “different in kind . . . from the burdens attending what heretofore has
been considered to be final agency action,” FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 242
(1980). As the D.C. Circuit has held, when an agency “assumes for now that it has jurisdiction to
regulate,” it “has not yet taken the steps required under the statutory and regulatory scheme for
its actions to have any legal consequences.” Reliable Automatic Sprinkler Co. v. Consumer Prod.
Safety Comm’n, 324 F.3d 726, 731–32 (D.C. Cir. 2003). Hence, the Department’s refusal to
dismiss Bombardier from its AIR21 proceedings is not yet a final agency action suitable for this
Court’s review.
Furthermore, where Congress has already provided “special and adequate review
procedures,” the APA is not an independent source of federal court jurisdiction to review agency
action. Bowen v. Massachusetts, 487 U.S. 879, 903 (1988) (quoting U.S. Dep’t of Justice,
Attorney General’s Manual on the Administrative Procedure Act 101 (1947)); see also 5 U.S.C.
§ 703 (declaring that “[t]he form of proceeding for judicial review is the special statutory review
proceeding . . . specified by statute” unless such review is absent or inadequate). Congress “did
not intend the [APA’s] general grant of jurisdiction to duplicate the previously established
special statutory procedures relating to specific agencies.” Bowen, 487 U.S. at 903. Existing
statutory review procedures are adequate when they offer relief of the “same genre” as APA
review. Garcia v. Vilsack, 563 F.3d 519, 522 (D.C. Cir. 2009) (quoting El Rio Santa Cruz
Neighborhood Health Ctr. v. U.S. Dep’t of Health & Human Servs., 396 F.3d 1265, 1272 (D.C.
Cir. 2005)).
Here, that is what Bombardier has. Once the company obtains a final order from the
Department, AIR21 grants it the right to judicial review in a court of appeals and specifies that
appellate review must conform to the APA. See 49 U.S.C. § 42121(b)(4)(A) (“Review shall
38
conform to chapter 7 of title 5, United States Code.”); see also, e.g., Villaneuva v. U.S. Dep’t of
Labor, 743 F.3d 103, 108 (5th Cir. 2014) (explaining, in an appeal brought under 49 U.S.C.
§ 42121(b)(4)(A), that judicial review of the Administrative Review Board’s order “is governed
by the standards set out in the Administrative Procedure Act, 5 U.S.C. § 706(2)”); Hoffman v.
Solis, 636 F.3d 262, 268 (6th Cir. 2011) (same); Vieques Air Link, Inc. v. U.S. Dep’t of Labor,
437 F.3d 102, 104 (1st Cir. 2006) (per curiam) (same). In other words, AIR21’s statutory review
procedures do not just offer relief of the “same genre” as APA review; judicial review under
AIR21 exactly parallels review otherwise available under the APA. Because the AIR21 statutory
scheme establishes separate and adequate procedures for judicial review of the Department’s
actions, the APA cannot create an escape hatch for Bombardier. Bombardier must complete
administrative proceedings in the Department before seeking judicial review. And, even then, it
must seek judicial review in the courts of appeal, not before this Court.18
18
Bombardier’s argument that no court of appeals would have jurisdiction is unavailing.
As explained above, if the Department finds Bombardier has sufficient connections with the
United States to justify AIR21’s applicability, then the domestic location where the Department
finds those connections could provide the geographical basis for federal appellate review. And,
in any event, AIR21’s judicial review provision does not limit the appellate courts’ jurisdiction;
it merely specifies the appropriate venues where an aggrieved party may petition for appellate
review. See supra Part IV.A.3.a.
39
V. CONCLUSION
The AIR21 statutory scheme precludes this suit, and the APA does not create an
independent avenue for this Court’s review. Consequently, Bombardier’s suit must be dismissed
because this Court lacks jurisdiction. For the foregoing reasons, Defendant’s motion to dismiss
(ECF No. 16) is GRANTED and Plaintiff’s motion for preliminary injunction (ECF No. 19) is
DENIED AS MOOT. An order consistent with this Memorandum Opinion is separately and
contemporaneously issued.
Dated: November 12, 2015 RUDOLPH CONTRERAS
United States District Judge
40