M.M.V. v. Merrick Garland ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 11, 2020 Decided June 18, 2021
No. 20-5106
M.M.V., ET AL.,
APPELLANTS
v.
MERRICK B. GARLAND, ATTORNEY GENERAL OF THE UNITED
STATES, ET AL.,
APPELLEES
Consolidated with 20-5129
Appeals from the United States District Court
for the District of Columbia
(No. 1:19-cv-02773)
Caroline J. Heller argued the cause for appellants. With
her on the briefs were Gregory P. Copeland, Sarah T. Gillman,
Steven G. Barringer, and James E. Gillenwater.
Erez Reuveni, Assistant Director, Office of Immigration
Litigation, U.S. Department of Justice, argued the cause for
appellees. With him on the brief were Ethan P. Davis, Acting
Assistant Attorney General, and R. Craig Lawrence and
Christopher C. Hair, Assistant U.S. Attorneys.
2
Before: SRINIVASAN, Chief Judge, KATSAS, Circuit Judge,
and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KATSAS.
KATSAS, Circuit Judge: The plaintiffs here seek to
challenge eleven alleged policies on how asylum officers
conduct interviews in expedited-removal proceedings. As to
ten of the policies, the district court lacked jurisdiction because
either the policy was unwritten or the challenges to it were
time-barred. As to the only other policy, which some plaintiffs
had timely challenged, the district court permissibly declined
to add new plaintiffs with parallel but untimely challenges.
I
A
The Illegal Immigration Reform and Immigrant
Responsibility Act (IIRIRA) sets forth expedited procedures to
remove certain inadmissible aliens arriving at the border. 8
U.S.C. § 1225(b)(1). Aliens subject to expedited removal may
either claim a fear of persecution or seek to apply for asylum.
Id. § 1225(b)(1)(A)(i). If an alien does either, an asylum
officer must interview the alien and determine whether he has
a “credible fear of persecution.” Id. § 1225(b)(1)(A)(ii),
(B)(ii). If the asylum officer finds such a credible fear, the alien
must receive a full removal proceeding before an immigration
judge, subject to further review in the Board of Immigration
Appeals and a court of appeals. Id. §§ 1225(b)(1)(B)(ii),
1229a; Grace v. Barr, 965 F.3d 883, 887–88 (D.C. Cir. 2020).
If the asylum officer finds no credible fear of persecution, the
alien may seek review before an immigration judge. 8 U.S.C.
§ 1225(b)(1)(B)(iii)(III). If the judge then disagrees with the
asylum officer, the alien is placed in full removal proceedings.
3
See id. § 1225(b)(1)(B)(ii); 8 C.F.R. § 1208.30(g)(2)(iv)(B),
(C). If the judge agrees with the asylum officer, the alien may
be removed without further review. See 8 U.S.C.
§ 1225(b)(1)(B)(iii)(I); 8 C.F.R. § 1208.30(g)(2)(iv)(A).1
The Attorney General and the Secretary of Homeland
Security “may by regulation establish additional limitations
and conditions … under which an alien shall be ineligible for
asylum.” 8 U.S.C. § 1158(b)(2)(C). Invoking this authority,
the Attorney General and the Secretary jointly published
regulations establishing new requirements for seeking asylum.
Asylum Eligibility and Procedural Modifications, 84 Fed. Reg.
33,829 (July 16, 2019) (Transit Rule). The Transit Rule
provides that aliens seeking to enter the United States at the
southern border are ineligible for asylum unless they have
already applied for asylum in a country through which they
traveled while en route. See id. at 33,843. The Transit Rule
does not bar aliens claiming to fear persecution from seeking
other relief such as withholding of removal or protection under
the Convention Against Torture. See id. at 33,837–38.2
1
The Attorney General used to conduct expedited removals and
is still referenced in the governing IIRIRA provisions, but Congress
has transferred this authority to the Secretary of Homeland Security.
6 U.S.C. § 251(2). The relevant statutory references to the Attorney
General now denote the Director of the United States Citizenship and
Immigration Services (USCIS), an agency within the Department of
Homeland Security. See id. §§ 271(b)(3), 275(a)(1), 557.
2
The Transit Rule was initially issued as an interim rule and
was set aside for lack of notice-and-comment procedures. Capital
Area Immigrants’ Rights Coalition v. Trump, 471 F. Supp. 3d 25(D.D.C. 2020), appeal pending, No. 20-5271 (D.C. Cir.). It was then
re-promulgated after a period of public comment. Asylum Eligibility
and Procedural Modifications, 85 Fed. Reg. 82,260 (Dec. 17, 2020).
A district court has preliminary enjoined the final Transit Rule.
4
B
The original plaintiffs in this case are 126 inadmissible
aliens caught trying to enter the country across the southern
border. Each of them seeks asylum or claims to fear
persecution but has received an adverse credible-fear
determination. The plaintiffs do not challenge the Transit Rule
itself. Instead, they challenge the government’s administration
of credible-fear interviews under IIRIRA and the Transit Rule,
as allegedly reflected in eleven sub-regulatory policies. The
plaintiffs allege the following:
1. Aliens receive no meaningful guidance on how
interviews are conducted.
2. Interviewers are improperly trained.
3. Interviewers make decisions before the interview is
complete.
4. Interviewers do not produce an adequate record.
5. Interviews are adversarial.
6. Interviews occur without adequate notice.
7. Interviews occur without access to counsel.
8. Interviewers do not apply the proper circuit precedent.
9. Credible-fear determinations are automatically
reviewed for fraud.
10. Interviewers do not adequately state the basis for their
decisions.
E. Bay Sanctuary Covenant v. Barr, No. 19-cv-04073-JST, 2021 WL
607869 (N.D. Cal. Feb. 16, 2021).
5
11. Children are subjected to long, adversarial interviews.
The plaintiffs argue that these policies violate the Immigration
and Nationality Act, the Administrative Procedure Act, and the
First and Fifth Amendments.
The plaintiffs sought a temporary restraining order barring
their removal. The district court granted an administrative stay,
but never actually ruled on the TRO. While the administrative
stay was in effect, the plaintiffs filed two amended complaints
adding some 129 new plaintiffs to the case. They also filed five
motions to join 65 additional plaintiffs. For its part, the
government filed a motion to dismiss most of the claims by
most of the actual and proposed plaintiffs.
The district court granted the motion to dismiss, denied the
joinder motions, and lifted the administrative stay for all but 18
of the plaintiffs. M.M.V. v. Barr, 456 F. Supp. 3d 193 (D.D.C.
2020). The court held that it lacked jurisdiction to review all
but one of the alleged policies, either because the policy was
unwritten or because the challenge to it was untimely. Id. at
209–20. As to the ninth challenged policy, the court held that
only 18 of the plaintiffs had both timely challenged the policy
and been themselves subjected to it. The court thus dismissed
the challenges made by all other plaintiffs, and it refused to join
the would-be plaintiffs. Id. at 220–23. The court then entered
final judgment under Federal Rule of Civil Procedure 54(b) on
the claims of the dismissed plaintiffs. Those plaintiffs
appealed, and we have jurisdiction under 28 U.S.C. § 1291.33
“A ‘final decision’ under section 1291 ordinarily must resolve
every claim of every party in a case.” Attias v. CareFirst, Inc., 969
F.3d 412, 416 (D.C. Cir. 2020). In Attias, we held that a rule 54(b)
certification was inappropriate because the certified claims
“appeared highly intertwined with claims still pending below,”
6
II
The district court held that IIRIRA barred its review of ten
of the eleven alleged policies because either the policy was
unwritten or the challenges to it were untimely. We agree.
A
In a section titled “Matters not subject to judicial review,”
IIRIRA states that “[n]otwithstanding any other provision of
law … no court shall have jurisdiction to review” four specified
categories of agency action. 8 U.S.C. § 1252(a)(2)(A). The
fourth of these covers, “except as provided in subsection (e),
procedures and policies adopted by the Attorney General to
implement the provisions of section 1225(b)(1) of this title.”
Id. § 1252(a)(2)(A)(iv). Subsection (e), the referenced
exception, permits judicial review of any “regulation, or a
written policy directive, written policy guideline, or written
procedure issued” under section 1225(b). Id.
§ 1252(e)(3)(A)(ii).
The bar on review of “procedures and policies adopted” to
implement section 1225(b)(1) plainly extends to the alleged
policies at issue here, which govern credible-fear interviews in
expedited-removal proceedings under section 1225(b)(1). The
plaintiffs object that if the policies are unwritten, they cannot
including some claims raised by the would-be appellants, and we had
“no assistance in the form of an explanation from the district court.”
Id. at 418 (cleaned up). Here, in contrast, the district court certified
only the claims of entirely dismissed plaintiffs, and it explained that
“[t]he remaining plaintiffs’ claims are narrow and separate from the
claims that were dismissed.” J.A. 515–16. We thus conclude that
the rule 54(b) certification was appropriate and created a final order
appealable under section 1291.
7
be “adopted” within the meaning of section 1252(a)(2)(A)(iv).
But adoption does not require a writing, as the plaintiffs’ own
cited dictionary confirms. Adopt, Merriam-Webster’s
Collegiate Dictionary (10th ed. 1999) (“to accept formally and
put into effect”). Moreover, the statutory exception permits
review of any “written policy directive, written policy
guideline, or written procedure” to implement section 1225(b).
8 U.S.C. § 1252(e)(3)(A)(ii) (emphases added). A bar on
reviewing “adopted” policies, subject to an exception
permitting review of “written” policies, would make no sense
if all “adopted” policies had to be written, for the exception
would then be coextensive with the rule.
The plaintiffs also contend that the challenged policies fall
outside section 1252(a)(2)(A)(iv) because they were not
lawfully adopted. The plaintiffs invoke district-court decisions
holding that the then-Acting Director of USCIS was unlawfully
appointed, L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 24–29
(D.D.C. 2020), and that the Transit Rule was unlawfully
promulgated, Capital Area Immigrants’ Rights Coalition v.
Trump, 471 F. Supp. 3d 25, 44–57 (D.D.C. 2020). But section
1252(a)(2)(A)(iv) requires only that the disputed policies be
“adopted.” And its bar on judicial review of certain “policies
adopted” would be ineffective if “adopted” were construed to
mean “lawfully adopted” as determined by a reviewing court.
Next, the plaintiffs argue that the alleged policies fall
within the exception permitting review of written procedures
or policies. But they identify no written documents
implementing alleged policies 1, 3, 4, 5, 7, 8, 10, and 11 in their
list above. The plaintiffs argue that a writing is unnecessary
because subsection (e) permits review of regulations as well as
written policy directives, guidelines, and procedures. But the
subsection permits review of “such a regulation,” and that
phrase references “any regulation issued to implement” section
8
1225(b). 8 U.S.C. § 1252(e)(3)(A). Because issued
regulations must be published in the Federal Register, they
must be written. See 5 U.S.C. § 552(a)(1). Moreover, this
reading best harmonizes “such a regulation” with the following
phrase “or a written policy directive, written policy guideline,
or written procedure,” which covers only written items. See
Yates v. United States, 574 U.S. 528, 543 (2015) (“a word is
known by the company it keeps”).
The plaintiffs invoke the presumption of reviewability.
“Although we presume that agency action is judicially
reviewable, that presumption, like all presumptions used in
interpreting statutes, may be overcome by specific language
that is a reliable indicator of congressional intent.” DCH Reg’l
Med. Ctr. v. Azar, 925 F.3d 503, 505 (D.C. Cir. 2019) (cleaned
up). Here, Congress obviously foreclosed judicial review: In
a section titled “Matters not subject to judicial review,” it
provided that “no court shall have jurisdiction to review”
several broad categories of agency action, subject only to
exceptions specifically set forth. 8 U.S.C. § 1252(a)(2)(A).
For the reasons explained above, we think it clear that one of
these review bars applies, and its exception does not.
The plaintiffs also invoke the constitutional-doubt canon.
But that interpretive tool does not apply if the statute at issue is
unambiguous, Jennings v. Rodriguez, 138 S. Ct. 830, 842
(2018), as the provisions discussed above are. In any event,
our reading of section 1252(a)(2) does not raise any
constitutional doubts. Just last term, the Supreme Court
confirmed that aliens apprehended while trying to enter the
country have no due process rights beyond what Congress has
provided by statute, and that section 1252 thus does not violate
due process by precluding judicial review of an “allegedly
flawed credible-fear proceeding.” DHS v. Thuraissigiam, 140
S. Ct. 1959, 1981–83 (2020).
9
Alternatively, the plaintiffs argue the district court erred in
finding that the challenged policies noted above were
unwritten. To the extent that a jurisdictional dismissal is based
on disputed facts, we review the district court’s factual findings
for clear error. Herbert v. Nat’l Acad. of Scis., 974 F.2d 192,
197 (D.C. Cir. 1992). The government submitted an affidavit
from the Deputy Chief of the Asylum Division of USCIS, who
averred that a search of agency records revealed no written
directives related to these challenged policies. The plaintiffs’
competing evidence showed only that the policies had been
regularly applied. The district court carefully reviewed this
evidence and concluded that the plaintiffs failed “to bridge the
gap between instances of certain conduct—or even an
apparently consistent or settled practice—and the existence of
a written directive calling for that conduct.” M.M.V., 456 F.
Supp. 3d at 214. On this record, that finding was not clearly
erroneous.4
The plaintiffs further contend that the district court should
have separately considered whether the jurisdictional bar
covers their First Amendment and APA claims. But the bar is
keyed to the nature of the challenged agency action, not the
basis for the challenge. The plaintiffs invoke the First
4
For their claim that interviewees receive no meaningful
orientation, the plaintiffs identified Form M-444 as the governing
written policy. This form, which has long been provided to aliens to
explain the interview process, was last updated in May 2019. To
make their challenge timely, the plaintiffs contend that the form
became outdated on July 16, 2019, when the Transit Rule took effect.
But, as the district court explained, the claim thus asserts that the
government should have updated the form, and it is barred because
the plaintiffs identify no written directive to use an outdated form.
See M.M.V., 456 F. Supp. 3d at 218.
10
Amendment and the APA to contend that the challenged
policies are unlawful, which still amounts to a challenge to
“policies adopted” to implement section 1225(b)(1). 8 U.S.C.
§ 1252(a)(2)(A)(iv). Likewise, while the plaintiffs
characterize their APA challenge as procedural rather than
substantive, the bar plainly covers both kinds of challenges.
Finally, the plaintiffs contend that they were entitled to
jurisdictional discovery. But they did not move for discovery
below, so they cannot raise this argument on appeal. See
Dunning v. Quander, 508 F.3d 8, 11 (D.C. Cir. 2007).
B
The second alleged policy was not timely challenged.
Section 1252(e)(3) permits legal challenges to “a regulation, or
a written policy directive, written policy guideline, or written
procedure” to implement expedited-removal proceedings
under section 1225(b), 8 U.S.C. § 1252(e)(3)(A)(ii), but it
requires any such challenge to be “filed no later than 60 days
after the date the challenged section, regulation, directive,
guideline, or procedure ... is first implemented,” id.§ 1252(e)(3)(B). The district court correctly concluded that
this deadline jurisdictionally barred review of the second
alleged policy.
The plaintiffs seek to challenge what they describe as a
new policy of allowing untrained employees of the United
States Customs and Border Protection (CBP) to conduct
asylum interviews. The relevant writing is an agreement
signed by USCIS and CBP on July 10, 2019. This agreement
permits CBP agents to conduct credible-fear interviews upon
receiving adequate training to act as asylum officers. On July
15, 2019, CBP agents began conducting interviews pursuant to
the agreement. On September 9, 2019, CBP agents began
11
conducting interviews at the South Texas Family Residential
Center, where the original plaintiffs were interviewed.
The plaintiffs filed this lawsuit on September 16, 2019.
We need not consider whether the policy was first implemented
on July 10, when the agreement became effective, or July 15,
when CBP agents began conducting interviews pursuant to it,
for the September 16 challenge was untimely either way. The
plaintiffs argue that the policy was not implemented until
September 9, when CBP agents began conducting interviews
at the facility where they were detained. But the same written
agreement governed all interviews by CBP agents. And the
statutory time limit begins to run when a “written policy
directive” is “first implemented,” not when it is first applied to
specific facilities or aliens. 8 U.S.C. § 1252(e)(3). The district
court correctly held that the plaintiffs’ challenge to the use of
CBP agents to conduct asylum interviews was untimely.5
The plaintiffs object that their claims are subject to
equitable tolling. But jurisdictional filing deadlines are not
subject to tolling, see Bowles v. Russell, 551 U.S. 205, 213–15
(2007), and the time limit here is jurisdictional. In American
Immigration Lawyers Association v. Reno, 18 F. Supp. 2d 38(D.D.C. 1998) (AILA), the district court held that the 60-day
time limit in section 1252(e)(2)(B) “is jurisdictional rather than
a traditional limitations period.” Id. at 47. We affirmed that
conclusion “substantially for the reasons stated in the court’s
thorough opinion.” 199 F.3d 1352, 1357 (D.C. Cir. 2000).
The plaintiffs urge that AILA has been overtaken by recent
Supreme Court decisions stressing that time limits are
jurisdictional only if clearly stated as such. United States v.
5
The plaintiffs do not challenge the district court’s holding that
their challenge to the sixth alleged policy was also untimely.
12
Kwai Fun Wong, 575 U.S. 402, 409 (2015). This clear-
statement rule is satisfied if the statute expressly “speak[s] in
jurisdictional terms,” Musacchio v. United States, 577 U.S.
237, 246 (2016), or “conditions the jurisdictional grant on the
limitations period,” Kwai Fun Wong, 575 U.S. at 412.
Section 1252 does both. First, it states that “no court shall
have jurisdiction to review” agency “procedures and policies”
to implement the expedited removal of aliens, “except as
provided in subsection (e).” 8 U.S.C. § 1252(a)(2)(A).
Subsection (a) thus conditions jurisdiction on satisfaction of the
requirements of subsection (e). In turn, the first paragraph of
subsection (e) likewise provides that “no court may … enter
declaratory, injunctive, or other equitable relief in any action
pertaining to an order to exclude an alien in accordance with
section 1225(b)(1) of this title except as specifically authorized
in a subsequent paragraph of this subsection.” Id.§ 1252(e)(1)(A). This formulation—restricting the courts
rather than conferring rights and duties on the parties—is also
framed in jurisdictional terms. Kwai Fun Wong, 575 U.S. at
410–11 & n.4 (“jurisdictional statutes speak about jurisdiction,
or more generally phrased, about a court’s powers”). And it
too conditions jurisdiction on satisfying the requirements that
follow later in the subsection. Paragraph (3) of the subsection
follows by authorizing judicial review “limited to” certain
challenges to statutes, regulations, and written policies, 8
U.S.C. § 1252(e)(3)(A), with a deadline for “[a]ny action
instituted under this paragraph,” id. § 1252(e)(3)(B). Section
1252 thus twice conditions the relevant “jurisdictional grant”
upon the associated “limitations period,” which makes the time
limit itself jurisdictional. Kwai Fun Wong, 575 U.S. at 412; see
Arbaugh v. Y & H Corp., 546 U.S. 500, 514–15 (2006)
(statutory requirement is jurisdictional if made a “threshold
ingredient” of jurisdiction); Myers v. Comm’r, 928 F.3d 1025,
1035 n.‡ (D.C. Cir. 2019) (timeliness is jurisdictional if the
13
“grant of jurisdiction is followed by ... [a] clause that expressly
conditions jurisdiction upon timely filing”).6
III
The ninth challenged policy provides for credible-fear
findings favorable to an alien to be reviewed by USCIS’s Fraud
Detection and National Security Directorate. This policy was
first implemented on August 30, 2019. And it was timely
challenged by the plaintiffs named in the original and first
amended complaints. The district court concluded that the
parallel challenges raised by all other plaintiffs or proposed
plaintiffs were jurisdictionally untimely. The court thus
dismissed the challenges to the fraud-review policy raised by
the plaintiffs added to the second amended complaint. M.M.V.,
456 F. Supp. 3d at 220. Likewise, it denied the pending joinder
motions on behalf of plaintiffs proposed to be added to the case
even later. Id. at 222–23.7
6
The government argues that the plaintiffs’ challenge to the
July 2019 agreement is moot because that agreement has expired and
been replaced by a later, materially different agreement made in
January 2020. We do not reach the mootness question because we
conclude that the challenges are jurisdictionally time-barred in any
event. Nothing in Steel Co. v. Citizens for a Better Environment, 523
U.S. 83 (1998), prevents us from addressing one jurisdictional
question before another. See Ruhrgas AG v. Marathon Oil Co., 526
U.S. 574, 584–85 (1999). We note that the plaintiffs could have, but
did not, raise a separate challenge to the January 2020 agreement.
7
The court also dismissed challenges to the fraud-review policy
raised by plaintiffs in the original and first amended complaints who
did not receive favorable credible-fear determinations overruled by
the Directorate. See M.M.V., 456 F. Supp. 3d at 222. The plaintiffs
do not challenge that ruling.
14
To preserve the later challenges, the plaintiffs invoke the
rule that if many plaintiffs seek the same relief and at least one
of them has Article III standing, the court need not determine
whether others also do. See, e.g., Rumsfeld v. Forum for Acad.
& Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006) (FAIR).
Assuming the FAIR rule governs the determination of statutory
jurisdiction as well as Article III standing, it is nonetheless
inapplicable for two reasons. First, the rule does not apply if
each plaintiff seeks “additional” individualized relief. Town of
Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017);
see Lewis v. Casey, 518 U.S. 343, 358 n.6 (1996) (“standing is
not dispensed in gross”); Wikimedia Found. v. Nat’l Sec.
Agency, 857 F.3d 193, 216 (4th Cir. 2017) (each plaintiff
seeking “individualized relief” must prove Article III
standing). Here, the plaintiffs seek an order enjoining the
government from removing any one plaintiff without providing
that plaintiff with further individualized adjudicatory process.
J.A. 66–67. Second, the FAIR line of cases stands only for the
proposition that a court “need not” decide the standing of each
plaintiff seeking the same relief. Clinton v. City of New York,
524 U.S. 417, 431 n.19 (1998). But it does not prohibit the
court from paring down a case by eliminating plaintiffs who
lack standing or otherwise fail to meet the governing
jurisdictional requirements. See, e.g., Thiebaut v. Colorado
Springs Utils., 455 F. App’x 795, 802 (10th Cir. 2011)
(“nothing … suggests that a court must permit a plaintiff that
lacks standing to remain in a case whenever it determines that
a co-plaintiff has standing”); Bruhl, One Good Plaintiff Is Not
Enough, 67 Duke L.J. 481, 492 (2017) (“Courts do not treat the
one-plaintiff rule as mandatory.”). Here, with one legal ruling,
the district court sensibly winnowed away the jurisdictionally
time-barred claims of more than 150 plaintiffs.
The plaintiffs further contend that the 60-day filing
deadline governs only the filing of an “action instituted under”
15
paragraph (3) of section 1252(e). 8 U.S.C. § 1252(e)(3)(B). In
their view, so long as one plaintiff institutes a timely “action,”
other plaintiffs may freely join it later, even if the filing
deadline would have run had they been the initial filers.
This argument is foreclosed by AILA. In that case, the
plaintiffs filed an amended complaint “adding several
individual plaintiffs” more than 60 days after the challenged
expedited-removal policies had been first implemented. See 18
F. Supp. 2d at 46–47. The district court dismissed the claims
of these plaintiffs as untimely under section 1252(e)(3)(B),
even though other plaintiffs in the case had timely challenged
the policies. It reasoned that “Congress designed the statute so
that the 60 days ran from a fixed point, the initial
implementation of the challenged provisions, rather than from
the date of application of IIRIRA to a particular alien.” Id. at
47. Moreover, it continued, because the 60-day deadline was
jurisdictional, the amended complaint could not “relate[] back”
under Federal Rule of Civil Procedure 15(c). Id. On review,
this Court specifically addressed “appeals by the individual
aliens who filed late and for that reason had their claims
dismissed.” 199 F.3d at 1356–57. And we “affirm[ed] the
dismissal of these claims substantially for the reasons stated in
the [district] court’s thorough opinion.” Id. at 1357 (citing 18
F. Supp. 2d at 46–47). The plaintiffs seek to distinguish AILA
on the ground that the district court there ended up dismissing
all claims brought by all plaintiffs. Even so, the district court
there specifically held that the claims of each plaintiff must be
filed within the 60-day time limit, and we specifically affirmed
on that basis.
The plaintiffs separately challenge the district court’s
refusal to join the proposed plaintiffs. But as explained above,
the challenges by the proposed plaintiffs to the fraud-review
policy also were untimely. The district court thus correctly
16
concluded that joinder would have been futile because the
disputed claims were untimely and there was no possibility of
equitable tolling. See Naartex Consulting Corp. v. Watt, 722
F.2d 779, 794–95 (D.C. Cir. 1983). In their reply brief, the
plaintiffs object that their second amended and proposed later
complaints relate back to their original complaint under rule
15(c). Because the plaintiffs raised this point neither in the
district court nor in their opening brief on appeal, it is twice
forfeited. See McFadden v. Ballard Spahr Andrews &
Ingersoll, LLP, 611 F.3d 1, 6 (D.C. Cir. 2010). And under
reasoning in AILA that we specifically affirmed, it is also
meritless. See 199 F.3d at 1356–57; 18 F. Supp. 2d at 46–47.
Affirmed.