Bland v. Bondi

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) ANDRE BLAND, et al., ) ) Plaintiffs, ) ) v. ) Case No. 25-cv-03499 (APM) ) TODD BLANCHE, et al., ) ) Defendants.1 ) _________________________________________ )

MEMORANDUM OPINION

I.

Under Chapter 154 of the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), a state may request the Attorney General of the United States certify that it “has

established a mechanism for the appointment, compensation, and payment of reasonable litigation

expenses of competent counsel in State postconviction proceedings brought by indigent prisoners

who have been sentenced to death.” 28 U.S.C. § 2265(a). Certification changes certain procedures

applicable to federal habeas review of the state’s capital cases. Such changes include a shorter

statute of limitations, more limited grounds for tolling the statute of limitations, and restrictions

on petitioners’ ability to amend their petitions. Id. § 2263; First Am. Compl. for Declaratory and

Injunctive Relief, ECF No. 29 [hereinafter Am. Compl.], ¶ 30.

In June 2025, the state of Tennessee applied for such certification. Am. Compl. ¶ 57.

As part of its review, the Attorney General solicited public comments. Id. The two Plaintiff

federal public defender organizations have expended substantial resources to write and submit

1 The court substitutes the current Acting Attorney General, Todd Blanche, for former Attorney General Pamela J. Bondi. See Fed. R. Civ. P. 25(d). comments opposing certification. Pls.’ Opp’n to Mot. to Dismiss [hereinafter Pls.’ Opp’n], ECF

No. 35, Ex. B, ECF No. 35-2, ¶¶ 3–7; Pls.’ Opp’n, Ex. C, ECF No. 35-3, ¶¶ 3–7. The Attorney

General’s review remains ongoing. See Status Report, ECF No. 43, ¶ 3 (citing Letter from Daniel

E. Burrows, U.S. Assistant Att’y Gen., to Jonathan Skrmetti, Tennessee Att’y Gen. & Rep. (Mar.

27, 2026), https://perma.cc/SW3B-U7A8 [hereinafter Letter]). On March 27, 2026, the

Department of Justice sent a letter to Tennessee’s Attorney General stating that the Department

“hope[s] to have a decision within the next 60 days.” Letter at 1. As far as the court is aware, no

such decision has been made.

Plaintiffs—the two aforementioned organizations and three individuals who have been

sentenced to death in Tennessee—challenge the validity of the review process. They allege that

vesting certification authority in the Attorney General is unconstitutional for two reasons: (1) it

violates the Fifth Amendment’s Due Process Clause because the Attorney General is an inherently

biased decisionmaker, and (2) it violates the separation of powers because granting the Attorney

General such authority “encroaches upon core judicial functions under Article III to decide habeas

corpus petitions.” Am. Compl. ¶¶ 91–99.

Plaintiffs initially moved for a temporary restraining order, which the court denied. Order,

ECF No. 20 [hereinafter Order]. Plaintiffs did not establish a substantial likelihood that this court

had statutory jurisdiction over their claims; rather, such jurisdiction rested exclusively with the

D.C. Circuit. Id. at 2–4. Plaintiffs also did not demonstrate they would suffer irreparable harm

absent emergency relief. Id. at 4–5. Afterward, Plaintiffs filed an amended complaint. See Am.

Compl. Defendants now move to dismiss. See Defs.’ Mot. to Dismiss for Lack of Jurisdiction

and Standing, ECF No. 31 [hereinafter Defs.’ Mot.].

2 For the same reasons as in its prior order, the court concludes that it lacks statutory

jurisdiction to hear Plaintiffs’ claims. See Order at 2–4.2

II.

A.

Congress granted the D.C. Circuit “exclusive jurisdiction” over “[t]he determination by the

Attorney General regarding whether to certify a State under this section.” 28 U.S.C. § 2265(c).

Under Circuit precedent, that “exclusive jurisdiction” extends beyond review of the Attorney

General’s determination itself. “[W]here a statute commits review of agency action to the Court

of Appeals, any suit seeking relief that might affect the Circuit Court’s future jurisdiction is subject

to the exclusive review of the Court of Appeals.” Telecomms. Rsch. & Action Ctr. v. FCC (TRAC),

750 F.2d 70, 78–79 (D.C. Cir. 1984). So, under § 2265(c), the D.C. Circuit has exclusive

jurisdiction to review not only a final certification decision by the Attorney General, but also any

claim that “might affect” its future power to review such a decision. Plaintiffs’ claims—which

challenge the validity of ongoing review of a state’s certification request—are of that type.

Start with their bias claim. The D.C. Circuit has spoken clearly on the subject. It has held

that claims of decisionmaker bias “might affect the Court of Appeals’ future statutory power of

review” and are therefore subject to its “exclusive jurisdiction.” Air Line Pilots Ass’n, Int’l v.

Civ. Aeronautics Bd., 750 F.2d 81, 88 (D.C. Cir. 1984). And while the D.C. Circuit has not

explicitly held as such with respect to separation-of-powers claims, they have the power to affect

its future jurisdiction just the same. In fact, Plaintiffs acknowledge that a decision in their favor

would deprive the D.C. Circuit of any ability to review an eventual certification determination.

See Pls.’ [Corrected] Opp’n to Defs.’ Mot., ECF No. 36-1 [hereinafter Pls.’ Corrected Opp’n], at

2 In light of this conclusion, the court does not reach Defendants’ standing and ripeness arguments. Defs.’ Mot., Defs.’ Mem. in Supp. of Defs.’ Mot., ECF No. 31-1, at 14–20.

3 19. Plaintiffs nevertheless submit that, if the court so holds, the D.C. Circuit “would not have

jurisdiction to protect” (because the Attorney General would be foreclosed from making a

certification “determination”) and thus there is no “interfere[nce] with the Court of Appeals’

subsequent jurisdiction over the merits of a final agency decision.” Id. But regardless of how it

is framed, such an outcome necessarily entails this court rendering a decision “affect[ing]” that

very jurisdiction. TRAC, 750 F.2d at 78–79. This the court cannot do.

B.

Plaintiffs raise several counterarguments. None are persuasive. Plaintiffs start with the

statutory text, emphasizing that the statute grants the D.C. Circuit the exclusive power to review

only the Attorney General’s “determination” whether to certify a state. Pls.’ Corrected Opp’n at

4–5. Plaintiffs’ constitutional challenges to the structure of the review process, they reason, are

distinct from that ultimate certification decision. See id. That may be. But as already explained,

the D.C. Circuit interprets jurisdictional provisions like these to grant it exclusive review over

claims that might affect its future jurisdiction to review the agency’s final decision. TRAC,

750 F.2d at 78–79. Plaintiffs’ claims fit that bill.

Plaintiffs’ citation to McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), does

not move the needle. Pls.’ Corrected Opp’n at 4. In McNary, the Court interpreted § 210(e)(1) of

the Immigration and Nationality Act, which provides that “[t]here shall be no administrative or

judicial review of a determination respecting an application for adjustment of status,” except as to

an order of exclusion or deportation in the courts of appeals. 8 U.S.C. § 1160(e)(1), (3).

Notwithstanding that provision, the plaintiffs filed a class action in district court challenging on

statutory and constitutional grounds the process by which the agency made status eligibility

decisions. McNary, 498 U.S. at 487–88. The Court held that the INA did not jurisdictionally bar

4 their suit. Id. at 494. It reasoned that § 210(e)(1) “describ[ed] the process of direct review of

individual denials of . . . status, rather than as referring to general collateral challenges to

unconstitutional practices and policies used by the agency in processing applications.” Id. at 492.

The plaintiffs’ suit therefore was properly before the district court. Id. at 494. Plaintiffs in this

case would have the court read § 2265(c) the same way—as applying only to reviews of

“[certification] determination[s] by the Attorney General” and not to constitutional challenges to

the certification process.

There are indeed some parallels between the statutory language at issue in McNary and that

contained in § 2265(c). But several additional considerations supported the Court’s conclusion in

McNary that are absent here. Those included that the statute confined the scope of review to the

administrative record, the agency’s determinations were subject to abuse-of-discretion review, and

the plaintiffs would have no opportunity for meaningful judicial review otherwise. See id. at 492–

96. Such considerations—particularly the final one—make McNary inapposite. See Miriyeva v.

U.S. Citizenship & Immigr. Servs., 9 F.4th 935, 943–44 (D.C. Cir. 2021). The D.C. Circuit has

long emphasized that access to meaningful review is the “focus” of McNary and its progeny.

Johnson v. U.S. R.R. Ret. Bd., 969 F.2d 1082, 1086 (D.C. Cir. 1992); see also Daniels v. Union

Pac. R.R. Co., 530 F.3d 936, 943–44 (D.C. Cir. 2008) (“[T]he availability of effective judicial

review is the touchstone of the McNary exception.”). Plaintiffs can raise and receive meaningful

review of their constitutional claims before the D.C. Circuit. See Jarkesy v. SEC, 803 F.3d 9, 21

(D.C. Cir. 2015) (describing the “high price of accessing review” as “the key factor supporting

district-court jurisdiction” (cleaned up)). Moreover, Plaintiffs’ purely legal claim does not depend

on any factual development in the administrative record. “Unlike in McNary, the court [of appeals]

is thus not handcuffed to the administrative record at all or otherwise constrained by the agency’s

5 resolution.” Miriyeva, 9 F.4th at 944; see also Jarkesy, 803 F.3d at 21. Finally, § 2265(c) provides

for “de novo review,” 28 U.S.C. § 2265(c)(3), which “‘lends substantial credence to the

conclusion’ that the review scheme applies to [Plaintiffs’] challenges.” Miriyeva, 9 F.4th at 944

(quoting McNary, 498 U.S. at 493). McNary therefore does not control this case’s outcome.

Plaintiffs also attempt to circumscribe TRAC’s reach. They describe its “limited holding”

as decided in the “particular context of unreasonable agency delay.” Pls.’ Corrected Opp’n at 17.

They then characterize it as applying only to a “narrow band” of claims, emphasizing that “cases

transferred to appellate courts under TRAC have only presented claims challenging final agency

action, the manner in which agency process was implemented, or the agency’s jurisdiction on

statutory grounds.” Id. (internal quotation marks omitted) (citing cases). While that may be the

trend, TRAC itself contains no such limitation. Quite the opposite: it observed that “[t]here may

be a small category of cases in which the underlying claim is not subject to the jurisdiction of the

Court of Appeals (and thus adjudication of the claim in the District Court will not affect any future

statutory review authority of the Circuit Court).” TRAC, 750 F.2d at 78 (emphasis added). These

are “very limited circumstance[s]” where “a denial of review in the District Court will truly

foreclose all judicial review.” Id. Thus, contrary Plaintiffs’ description, it is the “exception” to

the exclusive-jurisdiction rule that is “narrow,” not the rule itself. Id. And Plaintiffs’ claims do

not fall within this narrow exception because, as already described, they can raise their challenges

in the D.C. Circuit. See Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 550 (D.C. Cir. 1992).

Plaintiffs’ attempt to distinguish Air Line Pilots fares no better. As they did at the

emergency relief stage, Plaintiffs note that, unlike here, “the alleged bias at issue in Air Line Pilots

was not a structural constitutional claim,” but rather a “claim that particular actors involved in a

specific administrative proceeding were biased.” Pls.’ Corrected Opp’n at 19. Plaintiffs still have

6 not explained why this distinction matters. See Order at 3. They point out that the Air Line Pilots

court declined to address the bias claim on interlocutory review in part because of the possibility

that the decisionmaker may change over the course of the administrative proceedings.

Pls.’ Corrected Opp’n at 19. Their alleged bias claim is different, they argue, because it inheres in

the office of the decisionmaker, regardless of who actually occupies it, and thus is “not amenable

to any potentially ameliorating change in circumstances.” Id. at 20. But the D.C. Circuit’s decision

not to exercise its interlocutory jurisdiction is entirely separate from the exclusivity of that

jurisdiction. See Air Line Pilots, 750 F.2d at 88 (“[A]lthough we recognize our jurisdiction over

interlocutory claims of bias, we will take no action on the merits of the bias claim at this time.”).

Its reasons for declining to exercise its jurisdiction there thus do not affect this court’s lack of

jurisdiction here.

Lastly, Plaintiffs invoke Axon Enterprise, Inc. v. FTC, 598 U.S. 175 (2023), and like cases

as standing for the proposition that “statutory review schemes do not silently strip district courts

of jurisdiction over structural constitutional claims to enabling legislation.” Pls.’ Corrected Opp’n

at 16; see also id. at 5–6, 10, 20. Axon emphasized the “‘here-and-now injury’ of subjection to an

unconstitutionally structured decisionmaking process,” which “cannot be undone” after the fact.

Axon, 598 U.S. at 191–92 (citation omitted). “[N]owhere in its post-Axon decisions,” Plaintiffs

continue, “does the D.C. Circuit suggest that district courts lack jurisdiction under Axon because

of TRAC and its progeny.” Pls.’ Corrected Opp’n at 16.

Plaintiffs overread Axon. “In Axon, the question before the Supreme Court was whether

parties to an ongoing proceeding before a governmental agency had to first go through the agency’s

administrative process before suing in federal court to challenge the administrative proceeding’s

structural constitutionality.” Alpine Sec. Corp. v. FINRA, 121 F.4th 1314, 1335 (D.C. Cir. 2024).

7 The Court held that the challenge “can begin before the agency acts.” Id. at 1336. Axon thus

primarily answered the question of when such a suit can be brought. This case presents not a

question of when, but of where. As Air Line Pilots illustrates, Plaintiffs can, consistent with Axon,

bring their constitutional challenges before the Attorney General reaches a final decision on

Tennessee’s application—they just must do so before the D.C. Circuit. See Air Line Pilots, 750

F.2d at 88. Nothing in this opinion prevents them from following that course. Once again, Axon

“did not overrule the D.C. Circuit’s clear holdings in TRAC and Air Line Pilots.” Order at 3–4;

see also id. at 4 (“Plaintiffs, however, admitted at oral argument that the two lines of cases can be

reconciled.”). The court is therefore bound to conclude that it lacks jurisdiction over Plaintiffs’

claims.

C.

One final point bears addressing. To support their reading of TRAC, Plaintiffs cite

Judge Green’s separate opinion in Ticor Title Insurance Co. v. FTC, 814 F.2d 731 (D.C. Cir.

1987). Pls.’ Corrected Opp’n at 16. Judge Green wrote that “TRAC is inapplicable to cases

involving challenges to the constitutionality of an agency’s enabling statute. Such cases present

questions of constitutional law, which require no special administrative expertise to resolve, and

do not fall within the ‘class of claims’ covered by the typical statutory grant of appellate review

power.” Ticor, 814 F.2d at 757–58. Judge Green’s view did not garner a majority of the court.

Later, in Time Warner Entertainment Co. v. FCC, 93 F.3d 957 (D.C. Cir. 1996)—a case neither

party cites—the Circuit cited to Judge Green’s opinion in acknowledging that “TRAC’s

applicability to constitutional challenges” remained an open question. Id. at 965.

In Time Warner, the court held that “TRAC does not deprive [the district] court of its

general federal question jurisdiction to consider a facial challenge to a statute’s constitutionality

8 so long as that challenge is not raised in a suit challenging the validity of agency action taken

pursuant to the challenged statute or in a suit that is collateral to one challenging the validity of

such agency action.” Id. (emphasis added). So, rather than holding that district courts have

jurisdiction over every such challenge, the Circuit instructed that the posture of the case is key.

In Time Warner, the agency had only initiated rulemaking. Id. at 963. The Circuit thus concluded

that the district court had jurisdiction over the plaintiffs’ challenge because “the case [was] entirely

independent of any agency proceedings, whether actual or prospective.” Id. at 965.

The court contrasted the case before it with Ukiah Adventist Hospital v. FTC, in which it

concluded that the district court lacked jurisdiction. Although the challenge in Ukiah was “based

on the ‘purely legal question[]’ of [the agency’s] jurisdiction,” the plaintiff had “brought the

jurisdictional challenge after the [the agency] had issued an administrative complaint against it.”

Time Warner, 93 F.3d at 965. (first alteration in original) (emphasis added) (quoting Ukiah, 981

F.2d at 549). Therefore, if the district court were to enjoin the agency’s proceedings as requested,

“the statutory obligation of a Court of Appeals to review [the agency’s order] on the merits may

be defeated.” Id. (quoting Ukiah, 981 F.3d at 549). TRAC and Air Line Pilots were in an analogous

posture, in that individualized agency proceedings had already commenced and were ongoing.

See TRAC, 750 F.2d at 73–74 (describing specific refund disputes); Air Line Pilots, 750 F.2d at 83

(describing specific applications for agency determinations).

This case is more like Ukiah, TRAC, and Air Line Pilots than Time Warner. Plaintiffs

raised their challenge in response to Tennessee’s application for Chapter 154 certification.

See, e.g., Am. Compl. ¶ 12. And the Attorney General’s review of Tennessee’s request is ongoing.

Plaintiffs’ challenges thus are not “entirely independent of any agency proceedings,”

Time Warner, 93 F.3d at 965, but rather arise directly from them. The court therefore lacks

9 jurisdiction over Plaintiffs’ claims because they might affect the D.C. Circuit’s future jurisdiction

over the eventual final determination on Tennessee’s application.

III.

For the foregoing reasons, the court grants Defendants’ Motion to Dismiss for Lack of

Jurisdiction and Standing, ECF No. 31. A final, appealable order accompanies this Memorandum

Opinion.

Dated: July 10, 2026 Amit P. Mehta United States District Judge