In yesterday’s post, I explained why, in my view, the far more vulnerable aspect of Judge Leon’s Monday ruling issuing a preliminary injunction against the bulk telephony metadata program is his conclusion that he was barred from entertaining the plaintiffs’ statutory challenge to the program–and therefore had no choice but to reach the Fourth Amendment question on which he ultimately held against the NSA. As I argued, the far more compelling analysis (and easier course) would’ve been to hold that the plaintiffs’ statutory claim (that the metadata program is not in fact authorized by section 215 of the USA PATRIOT Act) was not precluded. If Judge Leon then ruled that the statutory claim was likely to succeed on the merits, he could thereby have avoided the Fourth Amendment issue altogether.
Given that this aspect of Judge Leon’s decision was adverse to the plaintiffs, and not the government, it raises a really nerdy (but potentially significant) question of federal appellate procedure: Once the government appeals, must the plaintiffs cross-appeal in order to properly raise the statutory claim–and Judge Leon’s conclusion that he could not reach it–before the D.C. Circuit? Would a failure to cross-appeal preclude the D.C. Circuit from following such a course of action, limiting the appeal to an up-or-down vote on the Fourth Amendment question? In one sense, this question may turn on whether Judge Leon’s holding that the plaintiffs’ statutory claim is precluded is “jurisdictional.” If so, then it arguably cannot be waived by, e.g., a failure to cross-appeal, and the Court of Appeals would be empowered to reach it whether or not it was properly raised by the parties (so says the D.C. Circuit in Murphy v. IRS). If such a holding was not “jurisdictional,” then it can be waived, and so must be properly preserved by the parties, e.g., through a cross-appeal. As I explain below, although it appears that the holding was jurisdictional, it’s not open and shut…
The relevant provision of the APA, 5 U.S.C. § 701(a), provides that “This chapter applies, according to the provisions thereof, except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” In holding that section 215 precludes review of the Klayman plaintiffs’ statutory challenge to the metadata program, Judge Leon necessarily relied upon the former subsection–i.e., that plaintiffs’ APA claim was foreclosed by “statutes preclud[ing] judicial review.”
At least with regard to the latter subsection, the D.C. Circuit has most recently held that it is not jurisdictional (after a series of earlier cases that vacillated on the matter). As then-Chief Judge Sentelle explained in 2011 in Sierra Club v. Jackson, “a complaint seeking review of agency action ‘committed to agency discretion by law’ has failed to state a claim under the APA, and therefore should be dismissed under Rule 12(b)(6), not under the jurisdictional provision of Rule 12(b)(1).” In other words, the law of the D.C. Circuit appears to currently provide that preclusion of APA claims under § 701(a)(2) is not jurisdictional.
At the same time, while there does not appear to be D.C. Circuit precedent squarely resolving whether the preclusion of APA claims under § 701(a)(1) is also not jurisdictional, other circuits (and Judge Leon) have instead suggested that it is. Just last year, the First Circuit expressly held that “Section 701(a)(1) thus bars federal court jurisdiction” in cases in which it applies; and decisions by the Third, Fourth, and Sixth Circuits have reached similar conclusions. More to the point, one could also defend on logical and analytical terms such a distinction: Section 701(a)(1) bars APA claims on the ground that other statutes have withdrawn judicial power; whereas § 701(a)(2) bars APA claims on the ground that other statutes have committed the decision to the agency’s discretion. The former seems far more classically “jurisdictional” than the latter.
There’s more to say, but the short version is that it seems likely that Judge Leon’s preclusion analysis is jurisdictional–and so may not have to be cross-appealed by the plaintiffs (unless the D.C. Circuit believes that, even though the issue goes to the district court‘s jurisdiction, it doesn’t go to its jurisdiction to entertain an appeal–another possible chink in the “jurisdictionality” armor). Either way, it’s probably still wiser for the plaintiffs to cross-appeal (especially because this appears to be a question of first impression in the D.C. Circuit), but a failure to do so won’t necessarily deprive the D.C. Circuit of the power to sidestep the Fourth Amendment issue by reversing Judge Leon’s preclusion analysis, and either resolving the statutory challenge to the metadata program, or sending the case back to Judge Leon to do so.