Fifth Circuit jurisdiction

Fifth Circuit jurisdiction concerns what qualifies as viable cause of action with the jurisdiction of the U.S. Court of Appeals for the Fifth Circuit.

Background

• Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998).
• Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001) (The party asserting jurisdiction bears the burden of proof.)
• Barrera–Montenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996) (To test whether the party asserting jurisdiction has met its burden, a court may rely upon: “(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.”).
• Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001) (In considering a motion to dismiss for lack of subject-matter jurisdiction, the court accepts all factual allegations in the plaintiffs’ complaint as true.)

Suing to Block Unlawful Action by the FDA

"It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." United States v. Mitchell, 463 U.S. 206, 212, 103 S. Ct. 2961, 77 L. Ed. 2d 580 (1983). "A waiver of sovereign immunity cannot be implied but must be unequivocally expressed." United States v. Mitchell, 445 U.S. 535, 538, 100 S. Ct. 1349, 63 L. Ed. 2d 607 (1980) (quoting United States v. King, 395 U.S. 1, 4, 89 S. Ct. 1501, 23 L. Ed. 2d 52 (1969)). "[T]he United States may not be sued except to the extent that it has consented to suit by statute," and "[w]here the United States has not consented to suit or the plaintiff has not met the terms of the statute, the court lacks jurisdiction and the action must be dismissed." Alabama-Coushatta Tribe of Tex. v. United States, 757 F.3d 484, 488 (5th Cir. 2014) (quoting Koehler v. United States, 153 F.3d 263, 266 (5th Cir. 1998)). "[A] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign." Lane v. Pena, 518 U.S. 187, 192, 116 S. Ct. 2092, 135 L. Ed. 2d 486 (1996).

One way for plaintiffs to overcome sovereign immunity is claiming an ultra vires act. Where an "officer's powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions"; they are instead "ultra vires his authority and therefore may be made the object of specific relief." Danos v. Jones, 652 F.3d 577, 583 (5th Cir. 2011) (quoting Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682, 689, 69 S. Ct. 1457, 93 L. Ed. 1628 (1949)). To successfully claim an ultra vires act, "the complaint must allege facts sufficient to establish that the officer was acting 'without any authority whatever,' or without any 'colorable basis for the exercise of authority.'" Danos, 652 F.3d at 583 (quoting Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 n.11, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984)). The ultra vires doctrine is a narrow exception to sovereign immunity. Pennhurst State Sch. & Hosp., 465 U.S. at 116.

The APA provides another opportunity for plaintiffs to overcome sovereign immunity. "Section 702 of the APA 'waives sovereign immunity for actions against federal government agencies, seeking nonmonetary relief, if the agency conduct is otherwise subject to judicial review.'" Louisiana v. United States, 948 F.3d 317, 321 (5th Cir. 2020) (quoting Alabama-Coushatta Tribe, 757 F.3d at 488). To seek judicial review, § 702 requires the plaintiffs to meet two requirements.

First, the plaintiffs must identify an agency action. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 882, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990); 5 U.S.C. § 702. Agency action is defined by 5 U.S.C. § 551(13) to "include[] the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5 U.S.C. § 551(13); see 5 U.S.C. § 701(b)(2) ("For the purpose of this chapter . . . 'agency action' ha[s] the meaning[] given . . . by section 551 of this title.").

Second, the plaintiffs "must show that [they have] 'suffered legal wrong' because of the challenged agency action, or are 'adversely affected or aggrieved' by that action 'within the meaning of a relevant statute.'" Lujan, 497 U.S. at 883.

While these two requirements apply to all waivers of sovereign immunity under § 702, the APA distinguishes between two different types of claims: (1) causes of action under the general provisions of the APA, "where a 'person suffer[s] legal wrong because of the agency action,'" and (2) statutory and non-statutory causes of action, "where a person is 'adversely affected or aggrieved by agency action within the meaning of a relevant statute.'" Alabama-Coushatta Tribe, 757 F.3d at 489 (quoting 5 U.S.C. § 702). "[T]o be 'adversely affected or aggrieved . . . within the meaning' of a statute, the plaintiff[s] must establish that the injury . . . falls within the 'zone of interests' sought to be protected by the statutory provision whose violations forms the legal basis for his complaint." Lujan, 497 U.S. at 883.

"When ... review is sought ... under the general review provisions of the APA, the 'agency action' . . . must be 'final agency action.'" Id. at 882 (emphasis added) (quoting 5 U.S.C. § 704). To be a final agency action, the action must "(1) 'mark the consummation of the agency's decisionmaking process,' and (2)" be an action "by which rights or obligations have been determined, or from which legal consequences will flow." Sierra Club v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000) (quoting Bennett v. Spear, 520 U.S. 154, 178, 117 S. Ct. 1154, 137 L. Ed. 2d 281 (1997)). "A final action must be an 'identifiable action or event.'" Id. (quoting Lujan, 497 U.S. at 899).

In contrast, when review is sought pursuant to a statutory or non-statutory cause of action—completely apart from the general provisions of the APA—there is no finality requirement; the plaintiff need only show "agency action" within the meaning of 5 U.S.C. § 551(10). Alabama-Coushatta Tribe, 757 F.3d at 489.

The court believes, and the parties seem to agree, that the plaintiffs' claim in Count 1 could be analyzed under either the non-statutory claim standard of the APA or the ultra vires doctrine. See Dkts. 25 at 29 (labeling Count 1 as a non-statutory cause of action and explaining § 702's application on such a claim); 27 at 30 (arguing the ultra vires claim and simultaneously noting that § 702 waives sovereign immunity for both ultra vires and APA claims). The APA and ultra vires jurisprudence, however, are two distinct waivers of sovereign immunity, and thus it would be incorrect to use the two interchangeably.

Apter v. United States HHS, No. 3:22-cv-184, 2022 U.S. Dist. LEXIS 225612, at *5-9 (S.D. Tex. Dec. 6, 2022).