Baan Rao Thai Restaurant v. Michael Pompeo
985 F.3d 1020
| D.C. Cir. | 2021Background
- Baan Rao Thai Restaurant employs Thai nationals; Somporn Phomson and Napaket Suksai previously worked for Baan Rao on E-2 “essential employee” visas under the U.S.-Thailand Treaty.
- Phomson and Suksai applied for new E-2 visas in June and September 2018 at the U.S. Embassy in Thailand; both applications were denied for failing to meet the Department of State Foreign Affairs Manual criteria for essential employees.
- In January 2019 Baan Rao, Phomson, and Suksai sued the Secretary of State seeking declaratory and injunctive relief: Count I (APA challenge to visa denials) and Count II (ultra vires challenge to the Secretary’s interpretation of the Treaty).
- The district court dismissed the suit for lack of subject-matter jurisdiction under the doctrine of consular nonreviewability, concluding the claims effectively sought review of consular visa decisions.
- The D.C. Circuit affirmed the dismissal but held that dismissal on consular nonreviewability is a merits disposition under Rule 12(b)(6) (not a jurisdictional 12(b)(1) dismissal) and affirmed on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the U.S.-Thailand Treaty’s Article II “free access to courts” clause constitute an express authorization for judicial review of consular visa denials? | The Treaty’s “free access” provision allows nationals to enforce Article I rights in courts, thus authorizes judicial review of visa denials. | “Free access” is a procedural-equality guarantee (filing fees, counsel, security for costs, etc.) and does not override consular nonreviewability. | “Free access” does not authorize review of consular visa decisions; consular nonreviewability bars the claims. |
| Can plaintiffs avoid consular nonreviewability by framing an ultra vires challenge to the Secretary’s interpretation of the Treaty rather than a direct challenge to visa denials? | The ultra vires claim challenges the Secretary’s regulatory interpretation of the Treaty, not a particular consular decision. | The claim in substance challenges the visa denials and thus is barred; regulatory-interpretation argument was forfeited if raised only in reply. | Court treats the ultra vires theory as effectively challenging visa denials and barred; regulatory challenge was forfeited in reply. |
| Is a dismissal under the doctrine of consular nonreviewability jurisdictional (Rule 12(b)(1)) or merits-based (Rule 12(b)(6))? | District court treated it as jurisdictional; plaintiffs accept dismissal on that basis. | Supreme Court precedent (Trump v. Hawaii) treats the doctrine as non-jurisdictional; dismissal should be on the merits. | The doctrine is non-jurisdictional; the D.C. Circuit affirms dismissal but as a merits disposition under Rule 12(b)(6). |
Key Cases Cited
- Saavedra Bruno v. Albright, 197 F.3d 1153 (D.C. Cir. 1999) (establishes and explains the doctrine of consular nonreviewability)
- Trump v. Hawaii, 138 S. Ct. 2392 (2018) (treats consular nonreviewability as non-jurisdictional and assumes statutory claims reviewable for resolution on the merits)
- Kleindienst v. Mandel, 408 U.S. 753 (1972) (recognizes narrow constitutional-exception to consular nonreviewability for U.S. citizens’ rights)
- Mathews v. Diaz, 426 U.S. 67 (1976) (explains political-branch primacy in immigration and admission decisions)
- The Chinese Exclusion Case, 130 U.S. 581 (1889) (historical principle of sovereign power to exclude aliens)
- Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) (distinguishes jurisdictional limits from other case-processing rules)
- Medellin v. Texas, 552 U.S. 491 (2008) (treats treaty interpretation as beginning with text)
- Blanco v. United States, 775 F.2d 53 (2d Cir. 1985) (historical analysis that "access" treaty provisions protect procedural rights)
- Almaqrami v. Pompeo, 933 F.3d 774 (D.C. Cir. 2019) (applies Trump v. Hawaii principle and proceeds to merits notwithstanding consular nonreviewability)