N. Am. Butterfly Ass'n v. Nielsen
368 F. Supp. 3d 1
D.C. Cir.2019Background
- Plaintiff (NABA) sued, alleging constitutional and statutory violations related to construction activity at the Butterfly Center within an area covered by DHS Secretary’s October 2018 Waiver Determination under IIRIRA § 102.
- The Secretary’s waiver purports to "waive all legal requirements" for construction of roads and physical barriers in the defined covered area.
- Defendants moved to dismiss: statutory claims as precluded by the waiver and jurisdictional bars in IIRIRA, and constitutional claims on other grounds.
- The court treated certain justiciability/prudential questions under Rule 12(b)(6) but resolved subject-matter jurisdiction under Rule 12(b)(1) where appropriate.
- Plaintiff did not dispute that the waiver’s geographic scope covered the Butterfly Center; plaintiff argued the waiver was unlawful for failure to consult under IIRIRA § 102(b)(1)(C) (an ultra vires procedural defect).
- Court concluded statutory claims were barred by the waiver and IIRIRA’s preclusion-of-review provision; ultra vires review was considered but rejected as the consultation requirement did not impose a mandatory timing constraint that would render the waiver ultra vires.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Secretary's waiver strips court jurisdiction over NEPA and ESA claims | Waiver invalid or inapplicable; claims remain reviewable | Valid waiver deprives courts of jurisdiction over those statutory claims | Waiver validly covers the area; NEPA and ESA claims extinguished and dismissed for lack of subject-matter jurisdiction |
| Whether IIRIRA precludes review of non-constitutional challenges to the waiver | Preclusion shouldn't bar review of statutory and procedural defects | IIRIRA § 102(c)(2)(A) precludes non-constitutional review of actions taken under waiver | IIRIRA precludes non-constitutional review; only constitutional claims remain potentially reviewable |
| Whether court may entertain ultra vires (non-statutory) review of the waiver for failure to consult | Secretary acted ultra vires by failing to consult specified parties under § 102(b)(1)(C) | Ultra vires review is extremely limited and waiver is the sort shielded from review | Ultra vires claim rejected: consultation timing not a clear statutory mandate; no jurisdiction to set aside waiver on that ground |
| Validity/survivability of plaintiff's Fifth Amendment claim | Fifth Amendment claim alleged in amended complaint remains viable | Court concluded jurisdiction/prudential issues foreclose it | Plaintiff's constitutional claims dismissed without prejudice; statutory claims dismissed with prejudice |
Key Cases Cited
- Sierra Club v. Jackson, 648 F.3d 848 (D.C. Cir. 2011) (justiciability questions may be addressed under Rule 12(b)(6))
- Kontrick v. Ryan, 540 U.S. 443 (U.S. 2004) (only Congress determines lower federal courts' subject-matter jurisdiction)
- In re al-Nashiri, 791 F.3d 71 (D.C. Cir. 2015) (Congress may remove jurisdiction)
- In re Border Infrastructure Environmental Litig., 915 F.3d 1213 (9th Cir. 2019) (Secretary's valid waiver is an affirmative defense to environmental claims; waiver need not be invoked before suit to be effective)
- Aid Ass'n for Lutherans v. U.S. Postal Serv., 321 F.3d 1166 (D.C. Cir. 2003) (judicial review available when agency acts ultra vires despite statutory preclusion)
- Griffith v. Fed. Labor Relations Auth., 842 F.2d 487 (D.C. Cir. 1988) (non-statutory ultra vires review is extremely limited)
- Amgen, Inc. v. Smith, 357 F.3d 103 (D.C. Cir. 2004) (no inquiry into arbitrary or procedurally defective action when statute shields that action from review)