Federal Law Enforcement Officers Association v. Kiran Ahuja

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 14, 2022 Decided March 14, 2023

No. 21-5266

FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION,

APPELLANT

v.

KIRAN AHUJA, IN HER OFFICIAL CAPACITY AS DIRECTOR OF

THE UNITED STATES OFFICE OF PERSONNEL MANAGEMENT,

AND OFFICE OF PERSONNEL MANAGEMENT,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:19-cv-00735)

Ryan E. Griffin argued the cause and filed the briefs for

appellant.

Anna O. Mohan, Attorney, U.S. Department of Justice,

argued the cause for appellees. With her on the brief were

Brian M. Boynton, Principal Deputy Assistant Attorney

General, Charles W. Scarborough, Attorney, and Allison Kidd-

Miller, Deputy General Counsel, U.S. Office of Personnel

Management. Thomas G. Pulham, Attorney, U.S. Department

of Justice, entered an appearance.

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Before: HENDERSON and PILLARD, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge: The Office of Personnel

Management (OPM) administers retirement benefits for

civilian employees of the U.S. government. OPM typically

pays retirement benefits to retirees themselves. But when a

retiree’s benefits are subject to division pursuant to a divorce

decree, OPM divides them between the retiree and his or her

former spouse according to the terms of the decree. The

Federal Law Enforcement Officers Association (Association)

brought this action against OPM in district court, claiming that

OPM’s method of apportioning one type of retirement benefit,

the Annuity Supplement, violates the Administrative

Procedure Act. OPM moved to dismiss the complaint on

jurisdictional grounds.

As a general matter, the Civil Service Reform Act and

Federal Employees’ Retirement System Act preclude district

court review of challenges to federal employee retirement

benefits determinations. Those statutes provide for

administrative review, with final agency decisions subject to

appeal directly to the U.S. Court of Appeals for the Federal

Circuit. The district court acknowledged that federal

employees’ claims for retirement benefits are generally routed

through that system of review, but held that the Association’s

claims fell within an exception allowing pre-enforcement

challenges to agency rules to proceed in district court.

Exercising jurisdiction, the district court dismissed one of the

Association’s counts for failure to state a legally cognizable

claim and, after the administrative record was filed, granted

summary judgment to OPM as to the others.

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Our de novo review persuades us that the district court

lacked jurisdiction to review the Association’s claims. We

therefore vacate the district court’s orders and remand with

instructions to dismiss for lack of jurisdiction.

BACKGROUND

A. Statutory Framework

The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C.

§ 1101 et seq., established a comprehensive system for

administrative and judicial review of personnel actions

involving federal employees. United States v. Fausto, 484 U.S.

439, 455 (1988); Am. Fed’n of Gov’t Emps. v. Sec’y of Air

Force (AFGE I), 716 F.3d 633, 636 (D.C. Cir. 2013). The

system involves two levels of review. In general, a claimant

seeking to challenge a personnel action may first appeal to the

Merit Systems Protection Board (MSPB or the Board). See 5

U.S.C. § 7701(a). A party that does not prevail there may seek

judicial review of a final decision of the Board. See id.

§ 7703(b)(1). The CSRA provides for appeal of final MSPB

decisions directly to the Federal Circuit. See id.; 28 U.S.C.

§ 1295(a)(9). In reviewing MSPB decisions, the Federal

Circuit “shall review the record and hold unlawful and set aside

any agency action, findings, or conclusions” that are “(1)

arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law; (2) obtained without procedures required

by law, rule, or regulation having been followed; or (3)

unsupported by substantial evidence.” 5 U.S.C.

§ 7703(a)(1), (c). “The CSRA provides ‘the exclusive avenue

for suit’ to a plaintiff whose claims fall within its

scope.” AFGE I, 716 F.3d at 636 (quoting Grosdidier v.

Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C.

Cir. 2009)); accord Filebark v. U.S. Dep’t of Transp., 555 F.3d

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1009, 1013 (D.C. Cir. 2009); Fornaro v. James, 416 F.3d 63,

66-67 (D.C. Cir. 2005).

The Federal Employees’ Retirement System (FERS) Act

of 1986, 5 U.S.C. § 8401 et seq., establishes a system of

retirement benefits for federal employees and their survivors.

With limited exceptions, it tasks OPM with administering that

system and “adjudicat[ing] all claims under [the FERS Act]

administered by [OPM].” Id. § 8461(b), (c). As relevant here,

the FERS Act channels claims regarding OPM benefits

determinations through the CSRA’s two-tier system of review,

beginning with the MSPB. See id. § 8461(e)(1). The FERS

Act provides that, subject to certain exceptions, “an

administrative action or order affecting the rights or interests

of an individual or of the United States under the provisions of

[the FERS Act] administered by [OPM] may be appealed to the

Merit Systems Protection Board under procedures prescribed

by the Board.” Id.; see Rodriguez v. United States, 852 F.3d

67, 83 (1st Cir. 2017); cf. Fornaro, 416 F.3d at 64-67

(describing the parallel remedial regime under the Civil Service

Retirement System Act).

The FERS Act entitles eligible federal employees to

certain defined retirement benefits, including a Basic Annuity

and Social Security payments. See 5 U.S.C. §§ 8403, 8412,

8415; 42 U.S.C. §§ 402, 414, 415. Federal employees who are

legally required to retire at an age before they are eligible for

Social Security—such as law enforcement officers, 5 U.S.C.

§ 8425(b)—are also entitled to an Annuity Supplement to their

Basic Annuity until they age into Social Security benefits, see

id. § 8421.

The Basic Annuity and Annuity Supplement are typically

paid to the retirees themselves. However, when a retiree’s

benefits are subject to division pursuant to a divorce decree, the

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FERS Act establishes rules for apportioning those benefit

payments between the retiree and his or her former spouse. See

id. §§ 8421(c), 8467. As codified, the FERS directs OPM, as

a general matter, to pay the retiree’s former spouse “if and to

the extent expressly provided for in the terms of” the divorce

decree. Id. § 8467(a). As for the Annuity Supplement

specifically, section 8421(c) provides that the Annuity

Supplement “shall, for purposes of section 8467, be treated in

the same way as” the Basic Annuity. Id. § 8421(c).

B. OPM’s Challenged Guidance

The Federal Law Enforcement Officers Association

challenges OPM’s practice of apportioning the Annuity

Supplement pursuant to its interpretation of sections 8421(c)

and 8467 of the FERS Act as codified. OPM set forth its

interpretation in two internal guidance documents. First, in late

2014, OPM issued an internal Retirement Policy Memorandum

interpreting sections 8421(c) and 8467 to require OPM to

divide the Annuity Supplement whenever, and to the same

extent, a divorce decree requires division of the Basic Annuity.

Second, on June 28, 2016, OPM issued an internal “Retirement

and Insurance Letter” (2016 Guidance) restating that

interpretation with an added caveat: “[I]f the court order

expressly excludes the FERS annuity supplement from the

computation of the former spouse’s share,” then OPM is not

required to divide the Annuity Supplement in the same way as

the Basic Annuity. J.A. 65 (2016 Guidance). The 2016

Guidance also directed OPM specialists to manually update the

benefits calculation for affected retirees to reduce future

payments to correct for past overpayments to retirees, and to

calculate and pay to former spouses the accrued benefits to

which they were entitled but that were paid to the retiree.

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C. Procedural History

In March 2019, nearly three years after OPM issued its

2016 Guidance, the Association filed this Administrative

Procedure Act (APA) suit in district court. It challenges

OPM’s apportionment policy on three grounds. First, the

Association claims that OPM’s policy of dividing the Annuity

Supplement to the same extent as the Basic Annuity is

arbitrary, capricious, and contrary to law because the FERS Act

permits division of retirement benefits only “to the extent

expressly provided for in the terms of” a divorce decree or other

court order. 5 U.S.C. § 8467(a); see J.A. 14-15 (Complaint).

According to the Association, the FERS Act thus prohibits

OPM from dividing a retiree’s Annuity Supplement unless a

divorce decree expressly references and calls for division of the

Annuity Supplement itself. Second, the Association challenges

the 2016 Guidance as procedurally invalid because it was not

promulgated by notice and comment rulemaking. And third, it

claims that OPM’s application of its new apportionment policy

to payments already disbursed exceeds its statutory authority.

As relief, the Association asks the court to “[d]eclare invalid

OPM’s practice of apportioning the FERS Annuity Supplement

absent a court order expressly directing such apportionment”

and to “[p]ermanently enjoin [OPM] from continuing to do so.”

J.A. 16 (Complaint).

The district court granted in part and denied in part OPM’s

motion to dismiss the complaint. Addressing OPM’s assertion

that it lacked jurisdiction, the district court acknowledged that

the CSRA and FERS Act generally channel claims related to

federal employees’ retirement benefits exclusively through the

MSPB, subject to direct review in the Federal Circuit. But the

court applied an “exception” articulated by this court in a

footnote in NTEU v. Devine, 733 F.2d 114 (D.C. Cir. 1984),

that allows for pre-enforcement review of rules. Fed. L. Enf’t

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Officers Ass’n v. Rigas, No. 19-CV-735 (CKK), 2020 WL

4903843, at *4, *8 (D.D.C. Aug. 20, 2020) (citing Devine, 733

F.2d at 117 n.8). The court held that, because OPM’s 2016

Guidance is an interpretive rule rather than a statement of

policy, the Association could challenge it in district court under

Devine.

Having determined that OPM’s 2016 Guidance qualifies

as an interpretive rule, however, the court dismissed the

Association’s notice and comment rulemaking claim on the

ground that the APA does not require agencies to promulgate

interpretive rules by notice and comment. After OPM filed the

administrative record, the parties cross-moved for summary

judgment. The district court denied the Association’s motion

and granted OPM’s cross-motion on the Association’s two

remaining claims. It sustained OPM’s Guidance as “consistent

with the unambiguous statutory directive that annuity

supplements be ‘treated in the same way’ as basic annuity.”

Fed. L. Enf’t Officers Ass’n v. Ahuja, No. 19-CV-735 (CKK),

2021 WL 4438907, at *4 (D.D.C. Sept. 28, 2021). The

statutory requirement to treat the Supplement “in the same

way” as the Basic Annuity, the district court held,

unambiguously requires OPM to apply a divorce decree

provision dividing the Basic Annuity to the Supplement as

well. Id. at *4-6. The court was unpersuaded by the

Association’s argument that, because the statute requires any

division of the Basic Annuity to be “expressly provided for” in

the decree, the same-treatment requirement demands separate,

express provision for any division of the Supplement. Id. The

district court also rejected the Association’s claim that OPM

exceeded its authority in requiring “retroactive” recovery and

re-direction of payments that the statute required to be divided

but had been erroneously disbursed in full to the retiree. Id. at

*6-7. Rather, OPM’s remedial actions to recoup overpayments

from retirees’ future benefit amounts and to pay former spouses

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their due were reasonable and lawful “corrective measures to

correctly implement the statute.” Id. at *7.

DISCUSSION

On appeal, the Association argues that the district court

erred as a matter of law in ruling against it on the merits of its

claims. OPM counters that the district court lacked jurisdiction

over the Association’s claims, and thus should have dismissed

the entire case at the outset. We review de novo the district

court’s exercise of jurisdiction, and its rulings on the motions

to dismiss and for summary judgment. See True the Vote, Inc.

v. Internal Revenue Serv., 831 F.3d 551, 555 (D.C. Cir. 2016);

Genus Med. Techs. LLC v. U.S. Food & Drug Admin., 994 F.3d

631, 636 (D.C. Cir. 2021).

We conclude that the district court lacked jurisdiction

because the CSRA and FERS Act preclude district court review

of the Association’s claims. Under those Acts, judicial review

of claims challenging OPM’s method of apportioning

retirement benefits is available only in the Federal Circuit

following administrative exhaustion. We therefore vacate the

district court’s orders and remand with instructions to dismiss

for lack of jurisdiction.

A.

The CSRA’s hybrid administrative and judicial regime is

the exclusive process for challenges to OPM’s calculation of

FERS retirement benefits, thereby displacing district court

review. “Within constitutional bounds, Congress decides what

cases the federal courts have jurisdiction to consider.” Bowles

v. Russell, 551 U.S. 205, 212 (2007). “Litigants generally may

seek review of agency action in district court under any

applicable jurisdictional grant,” Arch Coal, Inc. v. Acosta, 888

F.3d 493, 498 (D.C. Cir. 2018), “but Congress may preclude

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district court jurisdiction by establishing an alternative

statutory scheme for administrative and judicial review” as an

exclusive system of review, Am. Fed’n of Gov’t Emps., AFL-

CIO v. Trump (AFGE II), 929 F.3d 748, 754 (D.C. Cir. 2019).

“If 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 v. SEC, 803 F.3d 9, 15 (D.C. Cir.

2015) (quoting City of Rochester v. Bond, 603 F.3d 927, 931

(D.C. Cir. 1979)).

To determine whether a statutory scheme of administrative

and judicial review is the exclusive means of review, we follow

the two-step analysis described in Thunder Basin Coal Co. v.

Reich, 510 U.S. 200 (1994). Under that analysis, a statutory

remedial scheme displaces district court review where: (1)

Congress’s intent to allocate initial review exclusively to an

administrative body is “fairly discernible in the statutory

scheme” based on the statute’s text, structure, and purpose, id.

at 207 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340,

351 (1984)); and (2) the claims at issue are “of the type

Congress intended to be reviewed within th[at] statutory

structure,” id. at 212; accord Elgin v. Dep’t of Treasury, 567

U.S. 1, 10 (2012); AFGE II, 929 F.3d at 754; Jarkesy, 803 F.3d

at 15. Congress need not expressly deem a statutory regime to

be exclusive for it to satisfy step one. See Elgin, 567 U.S. at

10-12. Rather, Congress’s intent to displace district court

jurisdiction may be “implied”—for instance, by the

comprehensive nature of the statutory system of review and

Congress’s purpose in enacting it. Id. at 12; see id. at 9-14.

Here, both steps of the inquiry support the conclusion that

the CSRA bars district court review of the Association’s

challenge.

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1.

At step one, the Association does not seriously dispute that

Congress intended to route challenges to FERS retirement

benefits determinations exclusively through the CSRA’s

remedial regime. See Reply Br. 12. Nor could it. We have

already held that the CSRA provides the exclusive avenue for

review of claims challenging “how OPM calculates civil

service [retirement] benefits for particular classes of

beneficiaries.” Fornaro, 416 F.3d at 68; see id. at 66-69.

In Fornaro v. James, a group of eight plaintiffs who sought

to represent a class of retired, disabled federal law enforcement

officers and firefighters sued OPM for an upward adjustment

to their disability benefits under the Civil Service Retirement

System—the legacy system that preceded the FERS. See id. at

64. The plaintiffs argued that their action could proceed in

district court under the APA’s waiver of sovereign immunity.

Id. We held the APA’s waiver inapplicable and affirmed the

district court’s dismissal for lack of jurisdiction “because

Congress ha[d] prescribed a route other than suit under the

APA for vindicating claims for civil service benefits”—the

CSRA’s system of review. Id. As we explained, “[a] series of

opinions from the Supreme Court and this court make clear that

[the CSRA’s remedial regime is] exclusive, and may not be

supplemented by the recognition of additional rights to judicial

review having their sources outside the CSRA.” Id. at 66; see

id. at 66-69 (citing Fausto, 484 U.S. at 444-49; Lindahl v.

OPM, 470 U.S. 768, 798-99 (1985); Carducci v. Regan, 714

F.2d 171, 174-75 (D.C. Cir. 1983); Graham v. Ashcroft, 358

F.3d 931, 933-36 (D.C. Cir. 2004)); see also Elgin, 567 U.S. at

10-15, 23; AFGE II, 929 F.3d at 754-61; AFGE I, 716 F.3d at

636-40; Grosdidier, 560 F.3d at 496-98; Nyunt v. Chairman,

Broad. Bd. of Governors, 589 F.3d 445, 448-49 (D.C. Cir.

2009).

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We grounded our holding in Fornaro in the terms,

structure, and purpose of the CSRA and Civil Service

Retirement System, as interpreted by those precedents. Like

the FERS, the Civil Service Retirement System channels

appeals of OPM’s retirement benefits determinations into the

CSRA’s two-tier system of review: After OPM finally

adjudicates a retirement benefits claim, the losing party may

appeal to the MSPB, subject to appeal directly to the Federal

Circuit. See Fornaro, 416 F.3d at 66 (citing 5 U.S.C.

§§ 7703(b)(1), 8347(b), (d)(1); 28 U.S.C. § 1295(a)(9)).

Congress designed this system to “replace the haphazard

arrangements for administrative and judicial review of

personnel action” that existed prior to the CSRA’s enactment.

Id. at 67 (quoting Fausto, 484 U.S. at 444). Pre-CSRA,

claimants often appealed adverse agency decisions to district

courts across the country through a wide variety of forms of

action, including suits for mandamus, injunction, and

declaratory judgment. Id. Congress enacted the detailed

CSRA review system to ensure greater uniformity of process

and consistency of interpretation. See id. at 67, 69; see also

Elgin, 567 U.S. at 13-14; Fausto, 484 U.S. at 444-45, 451. By

requiring initial resort to the MSPB, Congress fostered a

consistent executive branch approach. It also sought to

increase efficiency by directing review from the MSPB to the

court of appeals, eliminating what Congress viewed as an

“unnecessary layer” of review in district court. Fornaro, 416

F.3d at 67 (quoting Fausto, 484 U.S. at 449). And, by

centralizing review of final MSPB decisions in the Federal

Circuit, Congress expected increased uniformity of judicial

decisions as well. See id. at 69; see also Fausto, 484 U.S. at

449; Lindahl, 470 U.S. at 798.

Just as the CSRA’s reticulated remedial scheme and

purpose foreclosed district court review of the Fornaro

plaintiffs’ claims, the FERS Act bars district court review of

12

challenges to OPM’s calculation of retirement benefits. The

statutory system of review for FERS retirement benefits

determinations is materially identical to the system for Civil

Service Retirement System benefits determinations considered

in Fornaro. Compare 5 U.S.C. § 8347(b), and id.

§ 8347(d)(1), with id. § 8461(c), and id. § 8461(e)(1). The

FERS Act channels appeals of OPM’s retirement benefits

determinations through the CSRA’s system of review: After

OPM adjudicates the claim, claimants may appeal adverse

decisions to the MSPB, id. § 8461(e)(1); see id. § 7701(a),

subject to direct judicial review in the Federal Circuit,

id. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). And the Association

offers no reason why the step one inquiry under Thunder Basin

should differ as between the FERS and the Civil Service

Retirement System. See Reply Br. 3-4, 12. We can thus fairly

discern—for the same reasons articulated in Fornaro, 416 F.3d

at 66-69—that Congress intended to channel disputes over

OPM calculation of FERS retirement benefits for particular

classes of beneficiaries exclusively through the CSRA’s

remedial regime.

2.

The Association’s claims are also “of the type” Congress

intended for CSRA review. Thunder Basin, 510 U.S. at 212.

Per Fornaro, “actions challenging how OPM calculates civil

service [retirement] benefits for particular classes of

beneficiaries” fall within the CSRA’s exclusive scope. 416

F.3d at 68. We presume, however, that Congress did not intend

to preclude district court review of a litigant’s claims “when (1)

a finding of preclusion might foreclose all meaningful judicial

review; (2) the claim[s] [are] wholly collateral to the statutory

review provisions; and (3) the claims are beyond the expertise

of the agency.” AFGE II, 929 F.3d at 755 (quoting Arch Coal,

888 F.3d at 500); see Elgin, 567 U.S. at 15; Free Enter. Fund

13

v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 489 (2010).

Those considerations are not “three distinct inputs into a strict

mathematical formula.” Jarkesy, 803 F.3d at 17. Rather, they

act as “general guideposts useful for channeling the inquiry

into whether the particular claims at issue fall outside an

overarching congressional design.” Id. Because our analysis

of these considerations differs in some respects as between the

Association’s claims challenging the substance of OPM’s 2016

Guidance as opposed to the procedures by which OPM issued

that Guidance, we examine each set of claims in turn.

a.

Beginning with the Association’s substantive claims—i.e.,

that OPM’s apportionment policy is arbitrary, capricious, and

contrary to law and that OPM exceeded its statutory authority

in applying that policy “retroactively,” J.A. 14-16

(Complaint)—all three considerations plainly support

preclusion of district court review.

For starters, the Association does not dispute that the

CSRA provides individual claimants with an opportunity for

meaningful judicial review of those substantive claims: appeal

of final MSPB decisions directly to the Federal Circuit. See 5

U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); Reply Br. 3-4,

12-13. Indeed, individual claimants have already used the

CSRA’s administrative process to challenge OPM’s 2016

Guidance as applied to their own Annuity Supplement

payments. The MSPB has issued four initial decisions on those

cases. See Young v. OPM, No. PH-831M-19-0459-I-1, 2020

WL 698466 (MSPB Initial Decision Feb. 7, 2020); Kuebbeler

v. OPM, No. AT-0843-19-0356-I-1, 2019 WL 4252309

(MSPB Initial Decision Sept. 4, 2019); Moulton v. OPM, No.

DE-0841-18-0053-I-1, 2018 WL 1919715 (MSPB Initial

Decision Apr. 16, 2018); Simon v. OPM, No. CH-0845-18-

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0088-I-1, 2018 WL 1036536 (MSPB Initial Decision Feb. 22,

2018). And OPM recounted that, as of the date it filed its brief,

three petitions for review of initial decisions were pending

before the full Board. Gov’t Br. 26. Once the Board rules on

those petitions, judicial review is available in the Federal

Circuit. See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). A

ruling that the CSRA precludes district court review would not

“foreclose all meaningful judicial review” of the types of

substantive claims the Association advanced in district court.

Elgin, 567 U.S. at 15 (quoting Free Enter. Fund, 561 U.S. at

489). And the Association does not argue that meaningful

judicial review is nonetheless unavailable because the

Association’s representative character might prevent it from

advancing substantive claims through the CSRA’s remedial

regime. See Reply Br. 12-13; cf. AFGE I, 716 F.3d at 638-39.

We therefore decline to consider any such argument.

Second, the Association’s substantive claims are not

wholly collateral to the CSRA’s system of review. A challenge

is not “wholly collateral” to a statutory scheme if the plaintiff

“aim[s] to obtain the same relief [it] could seek” through the

statutory regime, especially where the claims are “inextricably

intertwined with the conduct of the” statutory scheme’s

proceedings. Jarkesy, 803 F.3d at 23; see Elgin, 567 U.S. at

22; AFGE II, 929 F.3d at 759-60. “This consideration is

‘related’ to whether ‘meaningful judicial review’ is available,

and the two considerations are sometimes analyzed together.”

AFGE II, 929 F.3d at 759 (quoting Jarkesy, 803 F.3d at 23).

Here, the gravamen of the Association’s claims is that OPM’s

policy memo and letter unlawfully direct apportionment of an

individual retiree’s Annuity Supplement to a former spouse

“absent a court order expressly directing such apportionment.”

J.A. 16 (Complaint). As relief, the Association seeks a

declaratory judgment to that effect and a permanent injunction

barring OPM from continuing to apportion the Annuity

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Supplement in that manner. Id. That challenge goes directly

to “how OPM calculates civil service benefits for [a] particular

class[] of beneficiaries,” Fornaro, 416 F.3d at 68, and seeks to

“obtain the same relief [individual claimants] could seek in the

agency proceeding,” AFGE II, 929 F.3d at 760 (quoting

Jarkesy, 803 F.3d at 23); see also Elgin, 567 U.S. at 22. It thus

falls squarely within the scope of the CSRA’s exclusive

remedial regime. See Fornaro, 416 F.3d at 68; see AFGE II,

929 F.3d at 759-60.

Finally, the Association’s substantive claims are not

“outside the MSPB’s expertise.” Elgin, 567 U.S. at 22. The

MSPB “routinely considers” statutory challenges to OPM’s

FERS authority and benefits determinations and “regularly

construes” the provisions of the FERS Act underlying the

Association’s substantive claims. Id. at 23; see, e.g.,

Kuebbeler, 2019 WL 4252309; Moulton, 2018 WL 1919715.

There is no dispute that the MSPB’s expertise can therefore be

“brought to bear” on the Association’s substantive claims.

Elgin, 567 U.S. at 23 (quoting Thunder Basin, 510 U.S. at 214-

15).

The Association advances two principal

counterarguments. First, it contends that its claims do not fall

within the CSRA’s scope because it brings a systemic

challenge to OPM policy, not a challenge to an individual

benefits determination. See Reply Br. 6, 12-13. But in

Fornaro we considered the argument that “[t]he CSRA

regime’s exclusivity for individual benefits determinations

does not preclude . . . a collateral, systemwide challenge to

OPM policy.” 416 F.3d at 67. As we explained in rejecting

that argument, “[a]llowing an alternative route to relief in the

district court because plaintiffs frame their suit as a systemwide

challenge to OPM policy would substitute an entirely different

remedial regime for the one Congress intended to be

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exclusive.” Id. at 68. “Such an approach would reintroduce

‘the haphazard arrangements for administrative and judicial

review of personnel action’” that the CSRA was designed to

address. Id. (quoting Fausto, 484 U.S. at 444). It would also

“impermissibly create a right of access to the courts more

immediate and direct than the [CSRA] provides, thus fracturing

the unifying authority . . . of the MSPB, and undermining the

consistency of interpretation by the Federal Circuit envisioned

by the Act.” Id. at 69 (internal citations and quotation marks

omitted); see also Elgin, 567 U.S. at 11-15 (rejecting on similar

grounds petitioners’ request to “carve out an exception to

CSRA exclusivity for facial or as-applied constitutional

challenges to federal statutes”); AFGE I, 716 F.3d at 639. In

keeping with that precedent, we decline to sanction the

Association’s attempted end run around the CSRA here.

Second, the Association argues that CSRA exclusivity

applies only to claims brought under the FERS, i.e., Chapter 84

of Title 5 of the U.S. Code, as opposed to claims brought under

the APA. See Reply Br. 12-13. That argument, too, is

foreclosed. We have repeatedly admonished in prior CSRA

decisions that litigants “may not circumvent the [CSRA’s]

requirements and limitations by resorting to the catchall APA.”

Grosdidier, 560 F.3d at 497; see also AFGE I, 716 F.3d at 639

(noting this rule “applies to a ‘systemwide challenge’ to an

agency policy interpreting a statute just as it does to the

implementation of such a policy in a particular case” (quoting

Nyunt, 589 F.3d at 449)); Fornaro, 416 F.3d at 67-69. The

Association cannot bypass the CSRA’s remedial regime by

relying on the APA.

In light of the foregoing, we conclude that the

Association’s challenge to OPM’s apportionment policy as

arbitrary, capricious, and contrary to law and its claim that

OPM exceeded its statutory authority in applying that policy to

17

recoup and redirect payments made in error are both “of the

type Congress intended to be reviewed within” the CSRA’s

system of review. Thunder Basin, 510 U.S. at 212.

b.

The Association’s notice and comment rulemaking claim

presents a closer call. On balance, however, the three

considerations at step two of the Thunder Basin inquiry also

defeat the district court’s authority to hear that claim.

To begin with, meaningful judicial review is available

through the CSRA’s scheme. The Supreme Court and this

court have consistently held that an opportunity for meaningful

judicial review remains available within a special statutory

scheme so long as the claims at issue “can eventually reach ‘an

Article III court fully competent to adjudicate’ them.” Jarkesy,

803 F.3d at 19 (quoting Elgin, 567 U.S. at 17); accord AFGE

II, 929 F.3d at 758. In Elgin, for instance, the Supreme Court

held that the CSRA provides an avenue for meaningful judicial

review of challenges to the constitutionality of federal statutes

because, although the MSPB may not have the authority to pass

on a statute’s validity, the Federal Circuit has full authority to

do so. 567 U.S. at 16-21. The petitioners in Elgin sued in

district court to challenge their discharge from federal

employment for failure to register for the military draft. Id. at

6-8. They challenged on Equal Protection and Bill of Attainder

Clause grounds the statutes that required already-hired male

federal employees to register. Id. The Court concluded that,

even assuming “the MSPB lacks authority to declare a federal

statute unconstitutional,” meaningful judicial review remained

available because “the Federal Circuit has authority to consider

and decide petitioners’ constitutional claims,” and, “[t]o the

extent [they] require factual development, the CSRA equips the

18

MSPB with tools to create the necessary record.” Id. at 16, 21;

see id. at 17-21.

Similarly, in AFGE II, we held that the CSRA’s system of

review for federal employees’ labor-relations claims assured an

opportunity for meaningful judicial review of constitutional

and statutory challenges to executive orders. 929 F.3d at 755-

59. The CSRA provides for administrative review by the

Federal Labor Relations Authority (FLRA), subject to judicial

review in the courts of appeals. See id. at 752, 758. Drawing

on Elgin, we explained that, “even if the FLRA could not

address the [plaintiff’s] claims, circuit courts could do so on

appeal from the FLRA.” AFGE II, 929 F.3d at 758.

So too here. The CSRA authorizes the Federal Circuit to

review notice and comment claims like the Association’s: It

requires that court, in reviewing final MSPB decisions, to

“review the record and hold unlawful and set aside any agency

action, findings, or conclusions” that are “obtained without

procedures required by law, rule, or regulation having been

followed.” 5 U.S.C. § 7703(c)(2). And the Association

identifies no reason why the opportunity provided by the

CSRA for direct review in a federal court of appeals that was

held sufficient in Elgin and AFGE II would fall short of

ensuring “meaningful judicial review” of the notice and

comment claims at issue here. See Reply Br. 9; Elgin, 567 U.S.

at 16-21; AFGE II, 929 F.3d at 758-59.

Second, the Association’s notice and comment claim, as

pleaded, is not wholly collateral to the CSRA’s system of

review. Recall that where a challenge is merely the “vehicle”

by which a plaintiff “aim[s] to obtain the same relief [it] could

seek” through the statutory regime, the challenge is not “wholly

collateral” to that scheme. Jarkesy, 803 F.3d at 23; see Elgin,

567 U.S. at 22. Importantly, the Supreme Court has made clear

19

this inquiry does not turn on whether a specific claim “lends

itself to a ‘substantive’ rather than a ‘procedural’ label.”

Heckler v. Ringer, 466 U.S. 602, 615 (1984). Instead, we

examine whether the action “at bottom” seeks a substantive

determination that falls within the statutory regime’s exclusive

scope. Id. at 614.

Heckler v. Ringer is instructive. There, four individual

Medicare claimants challenged on both substantive and

procedural grounds the lawfulness of a policy instituted by the

Secretary of Health and Human Services regarding Medicare

Part A reimbursements. 466 U.S. at 604-09. As relevant here,

the plaintiffs challenged the Secretary’s “failure to comply with

the rulemaking requirements of the APA” in issuing the

challenged instructions and rule—including the requirement to

publish a notice of proposed rulemaking. Id. at 614; see id. at

610 & n.7; J.A. 20-22, Heckler, 466 U.S. 602 (No. 82-1772).

The Court held that section 405(g) of the Medicare Act

precluded district court review of the plaintiffs’ claims,

including their procedural challenges. Heckler, 466 U.S. at

613-17, 620-21, 627. Although some of the plaintiffs’ claims

were facially procedural, the Court reasoned,“[t]he relief that

[the plaintiffs sought] to redress their supposed ‘procedural’

objections [was] the invalidation of the Secretary’s current

policy and a ‘substantive’ declaration from her that the

expenses of [a specific type of] surgery are reimbursable under

the Medicare Act.” Id. at 614. As a result, “it ma[de] no sense

to construe the claims of [the plaintiffs] as anything more than,

at bottom, a claim that they should be paid for their . . .

surgery”—i.e., precisely the type of claim that Congress

intended to channel through the remedial regime established

under the Medicare Act. Id.; see also Elgin, 567 U.S. at 22

(referencing Heckler on this point); Shalala v. Ill. Council on

Long Term Care, Inc., 529 U.S. 1, 12 (2000) (same).

20

Like the plaintiffs in Heckler, the Association casts its

objection as procedural but seeks a substantive declaration and

injunction requiring the agency to change its payment

practices. The Association is not seeking notice and an

opportunity to comment, but asking the court to “[d]eclare

invalid OPM’s practice of apportioning the FERS Annuity

Supplement absent a court order expressly directing such

apportionment” and to “permanently enjoin [OPM] from

continuing to do so.” J.A. 16 (Complaint). That requested

relief goes directly to the substance of OPM’s calculation of

individual retirees’ benefits pursuant to divorce decrees, and is

“precisely the kind[] of relief that the CSRA empowers the

MSPB and the Federal Circuit to provide.” Elgin, 567 U.S. at

22. Thus, once we peel back the “‘procedural’ label,” per

Heckler, the Association’s claim is, “at bottom,” a claim that

individual retirees are entitled to a different division of their

Annuity Supplements. 466 U.S. at 614. That challenge is not

wholly collateral to the CSRA’s remedial regime; it falls within

it.

McNary v. Haitian Refugee Center, Inc., 498 U.S. 479

(1991)—a post-Heckler case cited by the Association—does

not support a contrary conclusion. McNary involved a

procedural due process challenge to the Immigration and

Naturalization Service’s administration of the special

agricultural workers (SAW) amnesty program established

under the Immigration Reform and Control Act of 1986

(IRCA). Id. at 481-88. Under the SAW amnesty program,

non-U.S. citizen farmworkers residing unlawfully in the United

States who had performed at least 90 days of qualifying

agricultural work during the 12-month period before May 1,

1986, and who met certain other criteria, could apply for SAW

status. Id. at 483. That status authorized temporary residence

and provided a pathway to lawful permanent residence. Id.

The plaintiffs, two organizations and a group of unsuccessful

21

SAW applicants, alleged that the Immigration and

Naturalization Service (INS) had violated the procedural due

process rights of the SAW applicants as well as the

requirements of IRCA by, among other things, conducting

interviews in an arbitrary manner, failing to apprise SAW

applicants of or give them an opportunity to challenge evidence

on which their SAW status denials were predicated, and failing

to provide competent interpreters. See id. at 487-88.

The question before the Court was a narrow one: whether

a provision of IRCA, which barred judicial review of individual

SAW status determinations except in the context of deportation

proceedings, foreclosed district court review of the plaintiffs’

procedural due process claims. Id. at 491 (citing 8 U.S.C.

§ 1160(e)). The Court held that it did not. See id. at 492-95.

As the Court explained, the text of the judicial review bar

“referr[ed] only to review ‘of a determination respecting an

application’ for SAW status.” Id. at 494 (emphases omitted)

(quoting 8 U.S.C. § 1160(e)(1)). Because the plaintiffs’ claims

challenged only the “procedures used by INS” and would not

“have [had] the practical effect of also deciding their claims for

benefits on the merits,” the statutory bar to judicial review did

not apply. Id. at 494-95.

Critically, in reaching that conclusion, the McNary Court

distinguished Heckler based on the essentially substantive

relief the Heckler plaintiffs requested. See id. at 495-96. The

Court explained that, “[u]nlike the situation in Heckler, the

individual [plaintiffs] in this action do not seek a substantive

declaration that they are entitled to SAW status. . . . Rather, if

allowed to prevail in this action, [the individual plaintiffs]

would only be entitled to have their case files reopened and

their applications reconsidered in light of the newly prescribed

. . . procedures.” Id. at 495.

22

Here, the relief requested by the Association places this

case on the Heckler side of the line. Unlike the McNary

plaintiffs, the Association is not seeking the procedural

opportunities that notice and comment would provide. To the

contrary, as discussed above, the Association requests a change

to OPM’s substantive method for calculating individual

retirees’ Annuity Supplement payments. See J.A. 16

(Complaint) (requesting that the court “[p]ermanently enjoin”

OPM from “apportioning the FERS Annuity Supplement

absent a court order expressly directing such apportionment”).

The Association’s procedural claim, as pleaded, is thus more

akin to the claims at issue in Heckler—which included that the

challenged Medicare policy was invalid for want of notice and

comment—than those deemed wholly collateral in McNary.

See Heckler, 466 U.S. at 612-14; McNary, 498 U.S. at 495.

Finally, even assuming without deciding that the

Association’s notice and comment claim raises questions that

are “outside the MSPB’s expertise,” Elgin, 567 U.S. at 22, that

consideration does not outweigh the other two factors that

counsel in favor of precluding district court review.

We therefore conclude that the Association’s notice and

comment claim, as pleaded, is “of the type” Congress intended

to channel through the CSRA’s exclusive remedial regime.

Thunder Basin, 510 U.S. at 212. We do not foreclose the

possibility of procedural challenges to OPM rulemaking

related to FERS retirement benefits that would fall outside the

scope of the CSRA’s system of review. See, e.g., McNary, 498

U.S. at 491-97. But here, given the substantive relief requested

by the Association and its failure to identify any reason the

claimants it represents would be unable to attain meaningful

judicial review within the CSRA review framework, we deem

district court review of this third claim also foreclosed. See

Elgin, 567 U.S. at 16-23; Heckler, 466 U.S. at 614-15.

23

B.

Without grappling with our more recent CSRA precedent,

the Association relies on our decision in NTEU v. Devine, 733

F.2d 114 (D.C. Cir. 1984), to argue that pre-enforcement,

systemic challenges to rules fall outside the CSRA’s review

framework. Devine involved a challenge to OPM policies

governing federal personnel reduction-in-force procedures,

performance management systems, and pay administration. Id.

at 115-16. The district court held that OPM’s regulations were

null and void due to a congressional resolution restricting

OPM’s authority to effectuate new personnel regulations. Id.

at 116. We affirmed the district court’s ruling. Id. at 117, 120-

21. As relevant here, in a footnote we rejected OPM’s

argument that the action could not be brought under the APA

“because provisions in the [CSRA] established the exclusive

means to review the decisions at issue.” See id. at 117 n.8. As

we explained:

It is one thing to say that when a statute provides a

detailed scheme of administrative protection for defined

employment rights, less significant employment rights

of the same sort are implicitly excluded and cannot form

the basis for relief directly through the courts. It is quite

different to suggest, as appellant does, that a detailed

scheme of administrative adjudication impliedly

precludes pre[-]enforcement judicial review of rules.

Id. (citation omitted). The Association contends that those two

sentences established an exception to CSRA preclusion of

district court review for APA claims seeking

“pre[-]enforcement judicial review of rules,” id., that applies to

the Association’s claims.

We are unpersuaded by the Association’s reliance on

Devine. As an initial matter, OPM questions the continued

24

vitality of Devine in light of Thunder Basin and Elgin. Gov’t

Br. 29-30 (citing Thunder Basin, 510 U.S. at 202; Elgin, 567

U.S. at 12, 15). In Thunder Basin, the Supreme Court clarified

that Congress’s intent that an alternative statutory system

preclude district court review need only be “fairly discernible”

from the statute. 510 U.S. at 207 (quoting Block, 467 U.S. at

351). Applying that standard, it held that the comprehensive

statutory regime for reviewing agency enforcement actions set

forth in the Federal Mine Safety and Health Amendments Act

precluded district court review of a pre-enforcement challenge,

even though the Act was “facially silent with respect to pre-

enforcement claims.” Id. at 208; see id. at 207-16. In Elgin,

the Court followed Thunder Basin to conclude that the CSRA’s

text, structure, and purpose likewise “support[ed] implied

preclusion of district court jurisdiction [over challenges to

adverse personnel actions covered by the CSRA], at least as a

general matter,” and rejected the petitioners’ request to “carve

out an exception to CSRA exclusivity for facial or as-applied

constitutional challenges to federal statutes.” Elgin, 567 U.S.

at 12; see id. at 9-14. Those decisions call into question

Devine’s assumption that “a detailed scheme of administrative

adjudication,” like the CSRA’s, cannot “impliedly preclude[]

pre[-]enforcement judicial review of rules.” 733 F.2d at 117

n.8; see also Rydie v. Biden, No. 21-2359, 2022 WL 1153249,

at *6 (4th Cir. Apr. 19, 2022) (unpublished opinion); Payne v.

Biden, 602 F. Supp. 3d 147, 159 (D.D.C. 2022). But, in any

event, the Court need not and does not resolve whether footnote

eight of Devine remains good law, because Devine is

distinguishable from this case.

Devine involved a wholly pre-enforcement rulemaking

challenge; the Association’s action does not. In Devine, the

plaintiff challenged OPM’s new regulations before they came

into effect. 733 F.2d at 116. By contrast, the Association filed

suit nearly three years after OPM issued its 2016 Guidance. In

25

fact, the Association’s own complaint alleges that OPM began

implementing the 2016 Guidance long before the Association

filed its suit in March 2019. It states that “[i]n or around July

2016, OPM began apportioning Annuity Supplements to

former spouses whenever a divorce court ordered division of

the FERS Basic Annuity benefit even where that order did not

expressly divide the Annuity Supplement,” and that “[a]lso, in

or around July 2016,” OPM “began deducting” any past

overpayments “in monthly installments from affected retirees’

annuity payments.” J.A. 13 (Complaint). Additionally, the

complaint requests that the court “[d]eclare invalid OPM’s

practice of apportioning the FERS Annuity Supplement absent

a court order expressly directing such apportionment” and

“[p]ermanently enjoin [OPM] from continuing to do so.” Id. at

16 (emphasis added). The complaint thus, by its own terms,

challenges the ongoing enforcement of OPM’s 2016 Guidance.

The Association does not dispute this point. See Reply Br.

7. Instead, it argues that “there are at least two categories of

individuals affected by the OPM rule for whom this challenge

is fully ‘pre-enforcement’ to the same extent as the rulemaking

challenge[] found permissible in Devine.” Id. (citing Devine,

733 F.2d at 115). According to the Association, those two

categories are: “divorced active employees whose

Supplements will be apportioned to former spouses upon their

retirement even though their divorce decrees do not expressly

order this division,” and “retirees who ceased receiving a

Supplement before 2016 but whose Basic Annuities were

apportioned to former spouses,” as to whom OPM “has not yet

attempted to retroactively apportion the[ir] Supplements.” Id.

at 7-8. Put simply, the Association argues that it brings a pre-

enforcement challenge because there are future and current

retirees as to whom OPM has not yet applied its 2016

Guidance. See id.

26

That argument misses the mark. For starters, the

Association’s understanding of the term “pre-enforcement” is

overbroad. By the Association’s logic, every challenge to an

agency rule would qualify as a “pre-enforcement” challenge to

the extent that there are subject entities or individuals as to

whom the rule has yet to be applied. In any event, given

Devine’s uncertain vitality, we decline to extend any exception

it established for wholly pre-enforcement rulemaking

challenges—i.e., challenges to rules that have not yet been

applied to anyone—to an action that, on its face, alleges that

enforcement of the challenged rule is already ongoing. See J.A.

16 (Complaint). Thus, assuming without deciding that Devine

remains good law, it cannot salvage the Association’s claims.

***

For the foregoing reasons, we hold that the CSRA’s

system of review—which channels disputes about FERS

retirement benefits through an administrative process, subject

to direct review in the Federal Circuit—precludes district court

review of the Association’s claims. We therefore vacate the

orders of the district court and remand with instructions to

dismiss for lack of jurisdiction.

So ordered.