Justice Neil Gorsuch is not a fan of the Thunder Basin factors: the three factors from Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), used to determine whether a statutory review scheme (typically allowing review after the agency’s process is over) has implicitly displaced immediate review in the district court. In Axon Enterprises, Inc. v. FTC, 143 S. Ct. 890 (2023), the Supreme Court held that the factors—whether precluding jurisdiction would “foreclose all meaningful judicial review,” whether a claim is “wholly collateral to [the] statute’s review provisions,” and whether the claim is “outside the agency’s expertise”—do not displace district court jurisdiction over separation-of-powers challenges to the structure of the Federal Trade Commission and the Securities and Exchange Commission. Gorsuch wrote separately to denigrate the Thunder Basis factors as “a judge-made, multi-factor balancing test” that should be tossed out in favor of following the jurisdictional statute’s plain text. As he explained, not only do the factors represent lawmaking by the judiciary, but they are also incoherent: “[W]hat happens when the factors point in different directions, some in favor and others against immediate judicial review? No one knows. You get to guess.”
The Supreme Court, however, is not the only court to recently address the Thunder Basin factors. The D.C. Circuit has also done so—twice. And in one of the cases, the D.C. Circuit addressed the very scenario identified by Justice Gorsuch: What happens if the Thunder Basin factors cut different ways?
In Federal Law Enforcement Officers Association v. Ahuja, 62 F.4th 551 (D.C. Cir. 2023), the D.C. Circuit addressed a challenge to an Office of Personnel Management (OPM) retirement benefits policy. The plaintiffs alleged that OPM’s approach is ultra vires, arbitrary and capricious, and procedurally improper because the agency did not use the notice-and-comment process. Ordinarily, challenges to OPM benefits determinations are appealed to the Merit Systems Protection Board (MSPB) and then the Federal Circuit. The district court, however, concluded that this challenge could be heard directly in district court. The D.C. Circuit disagreed. Relevant here, the court concluded that these claims are “of the type” that fall outside of district court review under Thunder Basin. The court reasoned that for the ultra vires and arbitrary-and-capricious claims, all three Thunder Basin factors “plainly” cut against district court review: Congress provided meaningful review elsewhere, the substantive claims are not collateral to the review scheme, and the agency has considerable expertise resolving such claims. But what about notice and comment? Again, the court concluded that Congress provided for meaningful review in the Federal Circuit and that the claim was not wholly collateral because it sought “a substantive determination that falls within the statutory regime’s exclusive scope.” But as to the third factor, the court announced that, “even assuming without deciding that the [plaintiffs’] notice and comment claim raises questions that are ‘outside the MSPB’s expertise,’” that assumption “does not outweigh the other two factors that counsel in favor of precluding district court review.”
In Payne v. Biden, 62 F.4th 598 (D.C. Cir. 2023), the D.C. Circuit again addressed the Thunder Basin factors. That case concerned Executive Order 14,043, which broadly mandates executive branch employees to be vaccinated against COVID-19. A civilian employee of the Navy brought a constitutional challenge in district court, which concluded that he must first go through the agency, followed by review in the Federal Circuit. The D.C. Circuit affirmed because, in its view, all three Thunder Basin factors cut against district court review. Although Payne could face discipline for not being vaccinated during the agency review, the court reasoned that later review by the Federal Circuit would still be meaningful. The court also concluded that his constitutional challenge was not wholly collateral to the specific review scheme, reiterating that under D.C. Circuit precedent, a plaintiff generally cannot escape the scheme for adverse employment actions merely by framing a claim as constitutional. “Such gamesmanship would be inconsistent with Congress’s intent to set the boundaries of an exclusive avenue for review.” The court also concluded that this challenge fell within the agency’s expertise, noting that “the MSPB’s expertise remains applicable to the various threshold questions attached to the claims and any preliminary issues particular to the employment context.”
