Baan Rao Thai Restaurant v. Michael Pompeo

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 19, 2020 Decided January 22, 2021

No. 19-5231

BAAN RAO THAI RESTAURANT, ET AL.,

APPELLANTS

v.

MICHAEL R. POMPEO, SECRETARY OF THE U.S. DEPARTMENT

OF STATE AND UNITED STATES OF AMERICA,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00058)

Scott D. Pollock argued the cause for appellants. With him

on the briefs were Christina J. Murdoch and Thomas K.

Ragland.

Matthew J. Glover, Counsel, U.S. Department of Justice,

argued the cause for appellees. With him on the brief were R.

Craig Lawrence and Peter C. Pfaffenroth, Assistant U.S.

Attorneys.

Before: SRINIVASAN, Chief Judge, and HENDERSON and

PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge HENDERSON.

2

KAREN LECRAFT HENDERSON, Circuit Judge: The

doctrine of consular nonreviewability prevents a federal court

from second-guessing a United States consular officer’s

decision to issue or withhold a visa. Appellants Baan Rao Thai

Restaurant (Baan Rao), Somporn Phomson and Napaket

Suksai (Phomson and Suksai) seek review of a consular

officer’s decision to deny visas for Phomson and Suksai,

asserting their claims fall within one of the doctrine’s narrow

exceptions. Specifically, they argue the Treaty of Amity and

Economic Relations between the United States and Thailand—

the underlying authority for the visas Phomson and Suksai

seek—expressly provides that judicial review is available.

Their argument fails, as it seeks to fashion a longstanding,

common and well understood treaty provision into something

it is not. Using the consular nonreviewability doctrine, the

district court dismissed their claims for lack of subject matter

jurisdiction. As recently clarified by the United States Supreme

Court, however, a dismissal pursuant to the consular

nonreviewability doctrine is a dismissal on the merits.

Accordingly, we affirm the district court’s dismissal but do so

on the merits.

I. BACKGROUND

Since 2008 Baan Rao has provided Minot, North Dakota

with Thai cuisine. It often employs Thai nationals as chefs. In

order to work for Baan Rao, Thai nationals utilize E-2

“essential employee” visas under the Treaty of Amity and

Economic Relations between the United States and Thailand

(U.S.-Thailand Treaty or Treaty). See Treaty of Amity and

Economic Relations, Thai.-U.S., art. I, May 29, 1966, 19

U.S.T. 5843 [hereinafter U.S.-Thai. Treaty]. Phomson and

Suksai are Thai nationals who previously worked as chefs at

Baan Rao on E-2 “essential employee” visas. Phomson was

3

first granted an E-2 visa and admitted to the United States in

2012; he extended his visa in 2014, 2016 and 2017. He worked

as a Baan Rao chef from 2012 to 2018. Suksai was granted an

E-2 visa and admitted to the United States from 2010 to 2012

and she worked as a Baan Rao chef during that time.

In June 2018, in order to return to the United States and

continue their employment as Baan Rao chefs, Phomson and

Suksai applied for new E-2 visas at the U.S. Embassy in

Thailand, asserting they were “employed . . . in a responsible

capacity” within the meaning of the Treaty. See U.S.-Thai.

Treaty, art. I, ¶ 1; 8 U.S.C. § 1101(a)(15)(E)(ii); 8 C.F.R.

§ 214.2(e). In July 2018, the Embassy denied Phomson’s and

Suksai’s applications, concluding both “did not meet all of the

requirements of an E-2 essential employee as specified in [the

Department of State’s Foreign Affairs Manual].” Compl. at 4,

Baan Rao Thai Rest. v. Pompeo, No. 19-cv-00058 (D.D.C. July

29, 2019), ECF No. 1. Phomson and Suksai reapplied for E-2

visas in September 2018 and the Embassy again denied both

applications.

On January 10, 2019, Baan Rao, Phomson and Suksai filed

suit against the Secretary of the United States Department of

State (Secretary), seeking declaratory and injunctive relief on

two causes of action. In Count I, they claimed the Secretary

“erred as a matter of law and acted arbitrarily and capriciously

in denying the E-2 essential employee visa applications,” thus

“violat[ing] the Administrative Procedure Act [(APA)].” Id. at

7–8. In Count II, Baan Rao claimed the Secretary imposed an

ultra vires “requirement that an employee demonstrate he is

‘essential’ to the treaty investor’s business,” which requirement

was “inconsistent with” the U.S.-Thailand Treaty. Id. at 8.

On May 16, 2019, the Secretary moved to dismiss or, in

the alternative, transfer the case to the U.S. District Court for

4

the District of North Dakota. The Secretary argued the district

court lacked subject matter jurisdiction to review the visa

denials pursuant to the doctrine of consular nonreviewability.

Baan Rao, Phomson and Suksai opposed the motion, arguing

the U.S.-Thailand Treaty “limits the doctrine of consular

nonreviewability in cases seeking review of the Department’s

decisions to deny such visas.” Pls.’ Mem. of P. & A. in Opp’n

to the Def.’s Mot. to Dismiss or to Transfer at 1, Baan Rao Thai

Rest. v. Pompeo, No. 19-cv-00058 (D.D.C. July 29, 2019), ECF

No. 8. Baan Rao also opposed the motion to transfer.

On July 29, 2019, the district court granted the Secretary’s

motion to dismiss. Baan Rao Thai Rest. v. Pompeo, No. 19-cv-

00058, 2019 WL 3413415 (D.D.C. July 29, 2019). It found

“[j]udicial review of visa denials by consular officials at United

States Embassies, such as the denials at issue here, is generally

precluded under the broad and established doctrine of consular

nonreviewability,” concluding that the APA challenge was

“well within the scope of the consular nonreviewability

doctrine.” Id. at *2 (citing Saavedra Bruno v. Albright, 197

F.3d 1153, 1159–62 (D.C. Cir. 1999)). For the ultra vires

claim, the district court found Baan Rao and its two chefs could

not avoid the doctrine of consular nonreviewability by framing

the claim as a challenge to the Secretary’s reading of the Treaty

because the claim “squarely challenge[d] the denial of

plaintiffs’ visa applications.” Id. at *5. Accordingly, the district

court held it was without jurisdiction to consider the two

claims, granted the motion to dismiss and denied as moot the

motion to transfer. Id. at *6. Our review of the district court’s

dismissal is de novo. N. Am. Butterfly Ass’n v. Wolf, 977 F.3d

1244, 1249 (D.C. Cir. 2020).

5

II. ANALYSIS

A. Consular Nonreviewability

Consular nonreviewability shields a consular official’s

decision to issue or withhold a visa from judicial review, at

least unless Congress says otherwise. Saavedra Bruno, 197

F.3d at 1159. Decisions regarding the admission and exclusion

of noncitizens “may implicate ‘relations with foreign powers,’

or involve ‘classifications [. . .] defined in the light of changing

political and economic circumstances’” and, accordingly,

“such judgments ‘are frequently of a character more

appropriate to either the Legislature or the Executive.’” Trump

v. Hawaii, 138 S. Ct. 2392, 2418–19 (2018) (quoting Mathews

v. Diaz, 426 U.S. 67, 81 (1976)).

The Congress has partially delegated to the Executive its

power to make rules for the admission and exclusion of

noncitizens. The Immigration and Nationality Act, 8 U.S.C.

§§ 1101 et seq., grants consular officers “exclusive authority to

review applications for visas, precluding even the Secretary of

State from controlling their determinations.” Saavedra Bruno,

197 F.3d at 1156. A consular officer, then, has the authority to

grant, deny or revoke any visa. Id. at 1156–57. Nevertheless,

courts have held that claims otherwise barred by the consular

nonreviewability doctrine are subject to judicial review in two

narrow circumstances. First, an American citizen can challenge

the exclusion of a noncitizen if it burdens the citizen’s

constitutional rights. See Trump v. Hawaii, 138 S. Ct. at 2416

(citing Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)). The

second occurs whenever the “Congress says otherwise.”

Saavedra Bruno, 197 F.3d at 1159. In other words, an

exception to the doctrine exists if a “statute expressly

authoriz[es] judicial review of consular officers’ actions.” Id.

Neither exception applies here.

6

Here, both claims seek review of a consular officer’s visa

decisions.1 To avoid consular nonreviewability, Baan Rao,

Phomson and Suksai assert the U.S.-Thailand Treaty includes

an express authorization for judicial review.2 Their argument

takes two steps. First, Article I, Clause 1 of the Treaty

establishes a “qualified right of entry” for Thai and U.S.

nationals to one another’s country, provided they meet certain

requirements. Second, Article II, Clause 2’s “free access”

provision is the Congress’s “express authorization by law” that

allows judicial review of visa decisions in order for Thai and

U.S. nationals to enforce their Article I rights. According to

Baan Rao, Phomson and Suksai, citizens would have no way

to enforce Article I rights if Article II did not provide access to

courts. Whether Article I, Clause 1 establishes a “qualified

right” is of no issue because the “free access” provision

argument fails regardless. We cannot read a well understood

treaty provision related to procedural matters as an exception

to the broad doctrine of consular nonreviewability that courts

1

In district court, the plaintiffs argued their ultra vires claim

did not challenge a particular consular officer’s visa decision but

rather challenged whether the Secretary’s regulations properly

interpreted the Treaty. Pls.’ Mem. of P. & A. in Opp’n to the Def.’s

Mot. to Dismiss or to Transfer at 4, Baan Rao Thai Rest. v. Pompeo,

No. 19-cv-00058 (D.D.C. July 29, 2019), ECF No. 8. The district

court found their ultra vires claim challenged the consular officer’s

two visa denials. Baan Rao, 2019 WL 3413415, at *5. Their opening

brief here asserts only that the challenged visa denials are ultra vires.

To the extent they challenge the relevant regulations in reply, see

Appellants’ Reply Br. 17, the argument was forfeited. See Power Co.

of Am., L.P. v. FERC, 245 F.3d 839, 845 (D.C. Cir. 2001).

2

They argue a treaty can override the doctrine of consular

nonreviewability. The Secretary does not contest this point. Because

it is uncontested, we assume without deciding that a treaty can

authorize judicial review notwithstanding the doctrine of consular

nonreviewability.

7

have recognized for almost a century. See Saavedra Bruno, 197

F.3d at 1159–60.

“The interpretation of a treaty, like the interpretation of a

statute, begins with its text.” Medellin v. Texas, 552 U.S. 491,

506 (2008). Article II of the Treaty states, in relevant part:

Nationals and companies of either Party shall

have free access to courts of justice and

administrative agencies within the territories of

the other Party, in all degrees of jurisdiction,

both in the defense and in the pursuit of their

rights. Such access shall be allowed upon terms

no less favorable than those applicable to

nationals and companies of such other Party or

of any third country, including the terms

applicable to requirements for deposit of

security.

U.S.-Thai. Treaty, art. II, ¶ 2 (emphasis added). Under the

appellants’ reading, “free access to courts” provides for judicial

review of claims usually insulated from such review—namely,

consular officers’ visa decisions. In our view, however, “free

access to courts” is not an “express[] authoriz[ation]” for

judicial review of a claim otherwise barred by consular

nonreviewability. Saavedra Bruno, 197 F.3d at 1159. Although

“free access” to courts “both in the defense and in the pursuit

of their rights” has a broad sound, it by no means overrides the

longstanding limit on judicial review.

Our reading that “free access to courts” is not synonymous

with judicial review of claims usually insulated from review is

supported by the context and history surrounding such

provisions. The U.S.-Thailand Treaty is one of many

“friendship, commerce and navigation” treaties that include a

8

provision granting “free access” or “access” to courts.3 In 1985

Judge Henry Friendly,4 relying on Robert Wilson’s U.S.

Commercial Treaties and International Law (1960), discussed

the history and scope of “access provisions.” See Blanco v.

United States, 775 F.2d 53, 61–62 (2d Cir. 1985). “Free access”

provisions “were a common feature of the generation of

commercial treaties signed prior to World War I.” Id. at 61.

Their definition of “access” “made it clear that the guarantee

extended only to procedural rights” like “filing fees, the

employment of lawyers, legal aid, security for costs and

judgment, and so forth.” Id. at 61–62; see also Tagger v.

Strauss Grp. Ltd., 951 F.3d 124, 127 (2d Cir. 2020). Citizens

of the treaty nations were to be afforded the same procedural

protections whenever validly in court in the other nation.

After World War II, access provisions like those in the

U.S.-Thailand Treaty “demonstrate[d] even more clearly that

use of the term ‘access’ . . . [was] intended to guarantee treaty

nationals equal treatment with respect to procedural matters.”

Blanco, 775 F.2d at 62. For example, a 1951 treaty between the

U.S. and Israel gave “access to the courts of justice and to

administrative tribunals and agencies . . . in all degrees of

jurisdiction, both in pursuit and in defense of their rights.”

3

See, e.g., Treaty of Friendship, Commerce and Navigation,

Republic of Korea-U.S., art. V, ¶ 1, Nov. 28, 1956, 8 U.S.T. 2217;

Treaty of Friendship, Commerce and Navigation, Japan-U.S., art. IV,

¶ 1, Apr. 2, 1953, 4 U.S.T. 2063; Treaty of Friendship, Commerce

and Navigation, Den.-U.S., art. V, ¶ 1, Oct. 1, 1951, 12 U.S.T. 908;

Treaty of Amity and Economic Relations, Eth.-U.S., art. VII, ¶ 2,

Sept. 7, 1951, 4 U.S.T. 2134; Treaty respecting Friendship,

Commerce and Navigation, It.-U.S., art. V, ¶ 4, Feb. 2, 1948, 63 Stat.

2255.

4

Judge Friendly was “a practitioner of international law for

many years before his appointment” to the Second Circuit. United

States v. Yousef, 327 F.3d 56, 103 n.38 (2d Cir. 2003).

9

Treaty of Friendship, Commerce and Navigation, Isr.-U.S., art.

V, ¶ 1, Aug. 23, 1951, 5 U.S.T. 550. The treaty provided that

“access” “comprehends, among other things, legal aid and

security for costs and judgment.” Id. Protocol 1. In 1956, the

U.S. entered a treaty with the Republic of Korea that similarly

defined “access” to wit “access” “comprehends, among other

things, legal aid and security for costs and judgment.” Treaty

of Friendship, Commerce and Navigation, Republic of Korea-

U.S., art. V, ¶ 1 & Protocol 2, Nov. 28, 1956, 8 U.S.T. 2217.

These treaties—one signed only ten years before the U.S.-

Thailand Treaty—make clear that their access provisions relate

to procedural matters. And consular reviewability is no

procedural matter. It is a longstanding judicial principle

recognizing that the power to exclude aliens is “inherent in

sovereignty, necessary for maintaining normal international

relations and defending the country against foreign

encroachments and dangers.” Saavedra Bruno, 197 F.3d at

1159 (quoting Mandel, 408 U.S. at 765). Accordingly, it is “‘a

power to be exercised exclusively by the political branches of

government’ and not ‘granted away or restrained on behalf of

anyone.’” Id. (quoting Mandel, 408 U.S. at 765; The Chinese

Exclusion Case, 130 U.S. 581, 609 (1889)). If the U.S.-

Thailand Treaty intended to depart from this longstanding

principle, one would expect some mention of such a change

somewhere in the Treaty’s enactment history. Instead, the

Treaty’s enactment history suggests it is one in a long line of

standard-form commercial treaties.

When President Lyndon Johnson submitted the U.S.-

Thailand Treaty to the Senate for its advice and consent, he

described it as “of the short, simplified type that the United

States has negotiated with a number of countries, but it contains

the general substance of the typical treaty of friendship,

commerce and navigation.” Lyndon B. Johnson, Message from

10

the Pres. of the U.S. Transmitting the Treaty of Amity and

Economic Relations Between the United States of America and

the Kingdom of Thailand, 89th Cong. Executive P. No. 89-2,

at 1. Then-Secretary of State Dean Rusk stated that the Treaty

was “another in the series of treaties of friendship, commerce

and navigation,” was “generally similar to treaties concluded

with Ethiopia and Iran” and “contains the usual provisions

covering such subjects as . . . access to courts.” Dean Rusk,

Report to the President, 89th Cong. Executive P. No. 89-2, at 2

(citations omitted). Leonard Meeker, the State Department’s

then-legal advisor, testified before the Senate Foreign

Relations Committee, describing the Treaty as “a shorter

version of our standard treaties of friendship, commerce, and

navigation” “similar to others that are now in effect.” 90th

Cong., Sen. Exec. Rep. No. 14, at 3–4. Meeker stated “[t]he

provisions of the new treaty with Thailand are based upon

existing treaty practices” and “introduce no new types of

commitments affecting domestic law.” Id. Then-Senator Mike

Mansfield introduced the Treaty in the Senate and was the only

Senator to speak during Senate consideration of the Treaty. 113

Cong. Rec. 24,375 (1967). He noted the Treaty “is the 21st in

a series of commercial treaties which have been negotiated

since 1946” and “contains the usual provisions found in other

commercial treaties to which the United States is a party”

including “access to courts.” Id. That the record is devoid of

any indication that those involved with the Treaty’s creation

understood it to be anything other than a standard treaty of

friendship, commerce and navigation indicates that it was not

meant to abrogate a broad and important limit on judicial

review.

Simply put, the U.S.-Thailand Treaty’s “free access”

provision ensures uniform procedural protections to the

Treaty’s nationals. Access provisions were longstanding and

well understood at the time the U.S.-Thailand Treaty was

11

entered into—and that understanding was that the provisions

relate to procedural rights. Had the President or the Senate

meant otherwise, we would expect to see an indication of that

in the Treaty’s enactment history. None exists. Accordingly,

we conclude the doctrine of consular nonreviewability bars

review of Baan Rao’s, Phomson’s and Suksai’s claims and no

exception to the doctrine applies.

B. Jurisdictional vs. Merits Dismissal

The district court dismissed Baan Rao’s, Phomson’s and

Suksai’s claims for lack of subject matter jurisdiction pursuant

to Federal Rule of Civil Procedure 12(b)(1). Baan Rao, 2019

WL 3413415, at *2–6. Dismissal based on consular

nonreviewability, however, is a merits disposition under

Federal Rule of Civil Procedure 12(b)(6). We may affirm the

district court on a ground different from the district court’s,

however, if its ultimate disposition is nonetheless correct.

Kleiman v. Dep’t of Energy, 956 F.2d 335, 339 (D.C. Cir.

1992).

The district court was not without a basis for its

determination that dismissal pursuant to the doctrine of

consular nonreviewability is jurisdictional. In Saavedra Bruno

v. Albright, we used “jurisdiction” in discussing the doctrine.

197 F.3d at 1162–63 (“For many of the reasons just given and

for another about to be discussed, the government maintains

that federal courts have no jurisdiction over actions such as

Saavedra’s.”). Our Circuit’s district court has followed the

Saavedra Bruno language5 and we have summarily affirmed

5

See, e.g., Aboutalebi v. Dep’t of State, No. 19-cv-2605, 2019

WL 6894046, at *4–5 (D.D.C. Dec. 18, 2019); Jathoul v. Clinton,

880 F. Supp. 2d 168, 171–72 (D.D.C. 2012); Mostofi v. Napolitano,

841 F. Supp. 2d 208, 213 (D.D.C. 2012).

12

several like decisions.6 But jurisdiction “is a word of many, too

many, meanings.” Steel Co. v. Citizens for a Better Env’t, 523

U.S. 83, 90 (1998) (quoting United States v. Vanness, 85 F.3d

661, 663 n.2 (D.C. Cir. 1996)). As the Seventh Circuit noted,

Saavedra Bruno “was written in 1999, before the Supreme

Court’s series of more recent decisions clarifying and

narrowing the scope of subject matter jurisdictional doctrines,

as distinct from a host of other case-processing rules.”

Matushkina v. Nielson, 877 F.3d 289, 294 n.2 (7th Cir. 2017).

Indeed, we are guided by a recent Supreme Court decision

that clarified the scope of consular nonreviewability. In Trump

v. Hawaii, the government asserted the doctrine as a defense

but did “not argue that the doctrine of consular

nonreviewability goes to the Court’s jurisdiction.” 138 S. Ct.

2392, 2407 (2018). The Court treated the doctrine as non-

jurisdictional by “assum[ing] without deciding that plaintiffs’

statutory claims are reviewable, notwithstanding consular

nonreviewability.” Id. Had the doctrine been jurisdictional, the

Court would have had to consider the doctrine to ensure its

jurisdiction. See Steel Co., 523 U.S. at 94–95 (“The

requirement that jurisdiction be established as a threshold

matter spring[s] from the nature and limits of the judicial power

of the United States and is inflexible and without exception.”

(internal quotations omitted)). Accordingly, we understand

Trump v. Hawaii to instruct that the doctrine of consular

nonreviewability is non-jurisdictional. See also Avullija v.

Sec’y of State, No. 19-cv-10048, 2020 WL 7024485, at *3

(11th Cir. Nov. 30, 2020) (same). In fact, we have applied that

6

See, e.g., Rohrbaugh v. Pompeo, 394 F. Supp. 3d 128, 131

(D.D.C. 2019), aff’d, 2020 WL 2610600 (D.C. Cir. May 15, 2020)

(per curiam); Malyutin v. Rice, 677 F. Supp. 2d 43, 44 (D.D.C. 2009)

aff’d, 2010 WL 2710451 (D.C. Cir. July 6, 2010) (per curiam);

Antonenko v. Dep’t of State, No. 03-cv-5327, 2004 WL 1080159, at

*1 (D.C. Cir. May 13, 2004) (per curiam).

13

understanding since Trump v. Hawaii was decided. See

Almaqrami v. Pompeo, 933 F.3d 774, 784 n.3 (D.C. Cir. 2019)

(court “may assume without deciding that plaintiffs’ statutory

claims are reviewable” and proceed to the merits

“notwithstanding consular nonreviewability” (quoting Trump

v. Hawaii, 138 S. Ct. at 2407)).

Trump v. Hawaii’s treatment of the doctrine as non-

jurisdictional accords with the Constitution’s framework.

Article III confers subject matter jurisdiction to federal courts

over “all Cases, in Law and Equity, arising under this

Constitution, [and] the Laws of the United States.” U.S. Const.

art. III, § 2, cl. 1. The grant of subject matter jurisdiction is

subject to “such Exceptions, and under such Regulations as the

Congress shall make.” Id. cl. 2. As the Ninth Circuit

recognized, “[n]o statute purports to strip us of jurisdiction over

consular decisions; nor does any statute purport to confer

subject matter jurisdiction over the two exceptions.” Allen v.

Milas, 896 F.3d 1094, 1101 (9th Cir. 2018). Indeed, consular

nonreviewability is a doctrine “judicial in origin.” Id. It is

“informed by our respect for the separation of powers” but it is

not a limit on our subject matter jurisdiction as it “goes to our

willingness, not our power, to hear these cases.” Id.; see also

Matushkina, 877 F.3d at 294 n.2.

For the foregoing reasons, the district court’s judgment of

dismissal is affirmed pursuant to Federal Rule of Civil

Procedure 12(b)(6).

So ordered.