Adorers of the Blood of Christ v. Fed. Energy Regulatory Comm'n

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-3163
_____________
ADORERS OF THE BLOOD OF CHRIST,
UNITED STATES PROVINCE,
N/K/A ADORERS OF THE BLOOD OF CHRIST,
UNITED STATES REGION, SUCCESSOR BY MERGER
TO ADORERS THE BLOOD OF CHRIST,
PROVINCE OF COLUMBIA, PA, INC.,
formerly known as SAINT JOSEPH’S CONVENT,
MOTHER HOUSE OF SISTER ADORERS OF THE MOST
PRECIOUS BLOOD, COLUMBIA, PA also known as
SISTERS ADORERS OF THE MOST PRECIOUS BLOOD,
ST. JOSEPH CONVENT, COLUMBIA, PA formerly known
as SAINT JOSEPH CONVENT MOTHERHOUSE
OF THE ADORERS OF THE BLOOD OF CHRIST,
COLUMBIA, PENNSYLVANIA, INC.;
SISTER DANI BROUGHT; SISTER MARY ALAN
WURTH; SISTER SARA DWYER; SISTER MARIA
HUGHES; SISTER THERESE MARIE SMITH,
Appellants
v.
FEDERAL ENERGY REGULATORY COMMISSION;
COMMISSIONER OF THE FEDERAL ENERGY
REGULATORY COMMISSION; TRANSCONTINENTAL
GAS PIPE LINE COMPANY, LLC,
C/O CT CORPORATION SYSTEM
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civ. No. 5-17-cv-03163)
District Judge: Honorable Jeffrey L. Schmehl
______________
Argued January 19, 2018
______________
Before: SMITH, Chief Judge, GREENAWAY, JR., and
KRAUSE, Circuit Judges
(Opinion Filed: July 25, 2018)
J. Dwight Yoder, Esq. [Argued]
Gibbel, Kraybill & Hess
2933 Lititz Pike
P.O. Box 5349
Lancaster, PA 17606
Counsel for Appellants
Susanna Y. Chu, Esq. [Argued]
Robert H. Solomon, Esq.
Federal Energy Regulatory Commission
888 1st Street, N.E.
Washington, DC 20426
2
Counsel for Appellees Federal Energy Regulatory
Commission and Commissioner Federal Energy Regulatory
Commission
Elizabeth U. Witmer, Esq. [Argued]
Saul Ewing Arnstein & Lehr
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087
Patrick F. Nugent, Esq.
Sean T. O’Neill, Esq.
John F. Stoviak, Esq.
Saul Ewing Arnstein & Lehr
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Counsel for Appellee Transcontinental Gas Pipe Line
Company, LLC
3
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
Under the Natural Gas Act (“NGA”), 15 U.S.C. §§ 717–
717z, the Federal Energy Regulatory Commission (“FERC”)
has the power to issue “certificates of public convenience and
necessity” authorizing private developers to construct, operate,
and maintain interstate natural gas pipeline projects. See 15
U.S.C. § 717f(c). But before FERC may grant such a
certificate, it must, in most circumstances, set the matter for a
hearing and provide reasonable notice to interested parties. Id.
§ 717f(c)(1)(B). If FERC ultimately issues the certificate
following the requisite hearing, any aggrieved person may seek
judicial review of its decision—either in the Court of Appeals
for the District of Columbia Circuit or the circuit wherein the
natural gas company is located or has its principal place of
business. Id. § 717r(b). The statute provides that the chosen
court of appeals then has “exclusive” jurisdiction “to affirm,
modify, or set aside” FERC’s order. Id. § 717r(b), (d)(1). Prior
to seeking review in the relevant court of appeals, however, the
aggrieved party must, within thirty days of the issuance of the
certificate, apply for rehearing before FERC. Id. § 717r(a).
Anyone who fails to first seek rehearing before FERC is
statutorily barred from later seeking judicial review. See id.
In this case, the Appellants are the Adorers of the Blood
of Christ (the “Adorers”), a vowed religious order of Roman
Catholic women that owns a parcel of land in Columbia,
Pennsylvania affected by FERC’s decision to issue a certificate
of public convenience and necessity to Transcontinental Gas
4
Pipe Line Company, LLC (“Transco”), authorizing the
company to construct a roughly two-hundred-mile-long
pipeline (“Pipeline Project” or “Project”). The Adorers object
to the use of their land as part of the Project, explaining that
their deeply-held religious beliefs require that they care for the
land in a manner that protects and preserves the Earth as God’s
creation. But despite receiving notice of the proposed project,
the Adorers never raised this objection before FERC. Instead,
over five months after FERC granted Transco the certificate,
the Adorers filed suit in the District Court for the Eastern
District of Pennsylvania, raising a claim under the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb-1.
The District Court promptly dismissed the Adorers’ complaint,
concluding that it lacked subject matter jurisdiction in light of
the NGA’s specific provisions addressing judicial review of
FERC orders.
On appeal, the Adorers contend that the District Court
erred because their RFRA claim raises a federal question, over
which the court had jurisdiction pursuant to 28 U.S.C. § 1331.
We disagree, and hold that a RFRA cause of action, brought by
invoking a court’s general federal question jurisdiction, does
not abrogate or provide an exception to a specific and exclusive
jurisdictional provision prescribing a particular procedure for
judicial review of an agency’s action. Accordingly, we will
affirm the order of the District Court.
I1
1
“In an appeal from a grant . . . of a motion to dismiss
for lack of subject matter jurisdiction pursuant to Rule
12(b)(1), this Court reviews only whether the allegations on the
face of the complaint, taken as true, allege sufficient facts to
5
A
The Pipeline Project proposed by Transco consists of
199.5 miles of new pipeline in Pennsylvania connecting to
existing pipelines running to South Carolina. The Pipeline
Project is marketed as potentially supplying more than seven
million American homes with enough natural gas to meet their
daily needs by connecting natural gas producing Pennsylvania
regions to markets in the mid-Atlantic and southeastern states.
The Pipeline Project consists of many subsections,
including “Central Penn Line South,” a proposed 127.3-mile
section of the Project that will run from Lancaster County,
Pennsylvania to Columbia, Pennsylvania, with a forty-two-
inch diameter capable of transporting 1.7 dekatherms (billion
cubic feet) of natural gas per day, and a maximum operating
pressure of 1,480 pounds per square inch. The subsection
would facilitate the extraction, harnessing, transportation, and
use of natural gas. The Pipeline Project would run through the
Adorers’ property in Columbia, Pennsylvania.
B
On July 29, 2014, FERC published a Notice of Intent to
Prepare an Environmental Impact Statement for the Planned
Atlantic Sunrise Expansion, Request for Comments on
Environmental Issues, and Notice of Public Scoping Meetings
(“NOI”) in the Federal Register, see 79 Fed. Reg. 44,023(2014), and mailed it to nearly 2,500 interested parties,
invoke the jurisdiction of the District Court.” Oss Nokalva,
Inc. v. European Space Agency, 617 F.3d 756, 761 n.2 (3d Cir.
2010).
6
including affected property owners, to provide notice of the
proposed Pipeline Project. The NOI provided a synopsis of the
Pipeline Project and a preliminary list of issues identified by
FERC’s staff. It also described the environmental review
process, invited written comments on issues that should be
addressed, listed the date and location of four public meetings
to be held in the area surrounding the Project, and provided a
deadline of August 18, 2014, for all comments.
According to FERC, it received over six hundred
written comments from various interested parties, and ninety-
three speakers provided comments at the scoping meetings
held between August 4 and 7, 2014. The Adorers did not
provide a written comment or attend any one of these meetings.
Transco filed its project application with FERC for a
certificate of public convenience and necessity for the Pipeline
Project on March 31, 2015. On October 22, 2015, FERC
mailed letters to landowners potentially affected by the
proposed Pipeline Project. The letter briefly described
proposed project reroutes under consideration, invited newly
affected landowners to participate in the environmental review
process, and provided a special thirty-day limited scoping
period. Among the recipients of the October 22, 2015 letter
were the Adorers, who failed to respond to the letter.
The Adorers are “an ecclesial group of women living in
community” and practicing their deeply-held religious
convictions, App. 28, “whose religious practice includes
protecting and preserving creation, which they believe is a
revelation of God,” App. 24. They believe that “God calls
humans to treasure land as a gift of beauty and sustenance that
should not be used in an excessive or harmful way.” App. 24.
7
Part of their practice is to “protect, preserve and treasure the
land that [they] own.” App. 24.
The Adorers own the parcel of land in Columbia,
Pennsylvania that is at issue here. The land has been used to
sponsor the St. Anne’s Retirement Community, and for
growing crops by local farmers. The Adorers assert that their
intentional decision on how to use the land “is an integral part
of exercising their well-established and deeply-held religious
beliefs as active and engaged stewards of God’s earth.” App.
32.
In 2015, the Adorers followed an encyclical 2 letter titled
“Laudato Si’ of the Holy Father Francis on Care for our
Common Home,” written by Pope Francis. In the letter, Pope
Francis provides a comprehensive theological basis that, as an
act of religious belief and practice, members of the Roman
Catholic Church must preserve the Earth as God’s creation.
Specifically, Pope Francis identifies that climate change based,
among other things, “on the great concentration of greenhouse
gases related mainly as a result of human activity” and
“aggravated by a model of development based on the intensive
use of fossil fuels . . . is a global problem.” Pope Francis,
Laudato Si’ of the Holy Father Francis on Care for our
Common Home 18–19, 20–21 (2015). Accordingly, the letter
makes a calling “to devise larger strategies to halt
2
An encyclical letter is a letter sent by a bishop or high
church official that treats a matter of grave or timely
importance and is intended for extensive circulation.
Encyclical, Webster’s Third New International Dictionary 747
(4th ed. 1976).
8
environmental degradation and to encourage a ‘culture of care’
which permeates all of society.” Id. at 166–67.
On May 5, 2016, FERC issued a draft Environmental
Impact Statement (“EIS”) addressing the issues raised during
the scoping period and up to its publication. Notice of the draft
EIS was published in the Federal Register on May 12, 2016,
and mailed to the affected parties, several environmental
entities, as well as to additional affected parties that were added
after the issuance of the NOI. FERC then held four public
comment meetings between June 13 and June 16, 2016, where
approximately 203 speakers provided comments regarding the
draft EIS. FERC also received over 560 written comments
from affected parties regarding the draft EIS. As a result of the
oral and written comments, FERC postponed the issuance of
the final EIS, and nearly 100 additional comments were filed
related to the Pipeline Project. The Adorers failed to provide a
comment or otherwise participate in any of these fora.
On February 3, 2017, FERC issued an “Order Issuing
Certificate” to Transco authorizing the construction and
operation of the Pipeline Project. Among other things, the
Order granted Transco the right to take private property on the
Pipeline Project by eminent domain, should landowners refuse
to voluntarily convey a right to use their land. See 15 U.S.C. §
717f(h).
Based on the issuance of the Order, the Adorers refused
to grant Transco an easement on the land to begin
construction. 3 On April 14, 2017, Transco initiated
3
The Adorers aver that they have “consistently and
repeatedly denied all monetary offers from Transco to acquire
their Property and made it clear that, as a matter of religious
9
condemnation proceedings against them in the Eastern District
of Pennsylvania, pursuant to the NGA and Federal Rule of
Civil Procedure 71.1. Two months later, given that the Adorers
had failed to answer the complaint or file any sort of responsive
motion, Transco filed an “Emergency Motion for Default
Judgment and for Possession of Rights of Way in Unopposed
Condemnation Action,” and soon after moved for a
preliminary injunction for possession of those rights of way,
which the Adorers opposed. The District Court then issued an
order granting Transco’s right to condemn the relevant section
of the Adorers’ land on July 7. On August 23, the District
Court entered a preliminary injunction granting Transco access
to and the rights of way on the Adorers’ land upon the posting
of a bond in the amount of $329,220 (which Transco paid one
week later).
The Adorers did not object, appeal or seek rehearing
regarding any order issued related to these condemnation
proceedings.
Instead, on July 14, 2017, a week after the District Court
issued the order granting Transco’s right to condemn, the
Adorers filed their own complaint against FERC in the Eastern
District of Pennsylvania seeking declaratory judgment,
alleging that FERC violated their rights under RFRA, and
additionally seeking injunctive relief preventing the Pipeline
Project from running across their land. They later filed an
conviction, no amount of money would change their mind.”
Adorers Br. 14.
10
amended complaint reiterating the same claims, listing
additional plaintiffs, and adding Transco as a defendant. 4
In the amended complaint, the Adorers claimed that
allowing Transco to complete the Pipeline Project would
interfere with their ability to use their land in a manner
consistent with their religious beliefs. In particular, the
Adorers alleged that the drilling and subsequent extraction of
natural gas from wells in the land would cause leakage of
methane. This leakage, they contended, would contribute to
global warming in a manner contrary to their religious beliefs.
The Adorers also alleged that the expansion of natural gas
would be harmful to the environment by accelerating global
warming and consequently harming the Earth and humans.
On September 28, 2017, the District Court in the RFRA
action granted FERC’s and Transco’s motions to dismiss for
4
We need not reach the issue of whether a holder of a
section 7 certificate fully assumes the role of a state actor when
exercising eminent domain rights. While RFRA, by its terms,
only applies to state actors, see 42 U.S.C. § 2000bb-1
(“Government shall not substantially burden a person’s
exercise of religion . . . .”), Transco did not raise a state-actor
defense in its briefs or even invoke one in response to
questioning at oral argument, see Oral Argument at 30:22–
31:25, Adorers of the Blood of Christ v. F.E.R.C., No. 17-3163,
http://www.ca3.uscourts.gov/oral-argument-recordings. Thus,
the issue of whether an entity in Transco’s position qualifies as
a state actor—which we have previously recognized is an open
question in our circuit, see Goadby v. Phila. Elec. Co., 639 F.2d
117, 120 n.2 (3d Cir. 1981)—is one we will leave for another
day.
11
lack of subject matter jurisdiction. The court held that RFRA
did not allow the Adorers to circumvent the specific procedure
prescribed by the NGA for challenging a FERC order. In other
words, the Adorers’ RFRA claim did not change the basic fact
that, under the NGA, “no entity may seek judicial review of a
FERC order unless it first sought rehearing from the agency.”
App. 8. Because the Adorers had failed to seek FERC
rehearing, the court concluded that it was foreclosed from
hearing their claims. The Adorers then filed this appeal.
II 5
According to the Adorers, the District Court erred in
dismissing the complaint for lack of subject matter jurisdiction
because RFRA grants them a statutory right to assert an
appropriate claim in district court. The NGA, they contend,
cannot be used to foreclose that statutory right because
Congress explicitly provisioned RFRA to supersede all other
Federal law. Thus, to the extent that RFRA and the NGA
conflict, the Adorers argue that the latter must yield. While we
agree that the NGA would have to necessarily yield to RFRA
if the two statutes indeed conflicted, we conclude that the two
statutes do not conflict. Rather, the NGA merely provides for
complementary procedural requirements that a claimant must
5
“[E]very federal appellate court has a special
obligation to ‘satisfy itself not only of its own jurisdiction, but
also that of the lower courts in a cause under review[.]’” Bruce
v. Warden Lewisburg USP, 868 F.3d 170, 177 (3d Cir. 2017)
(quoting Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,
541 (1986)). This Court has jurisdiction pursuant to 28 U.S.C.
§ 1291.
12
adhere to when exercising their RFRA right to a “judicial
proceeding.” 42 U.S.C. § 2000bb-1(c).
“When reviewing an order dismissing a claim for lack
of subject matter jurisdiction, we exercise plenary review over
legal conclusions and review findings of fact for clear error.”
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d Cir.
2010).
We begin by examining the two statutory schemes that
the Adorers argue are in conflict. Section 7 of the NGA grants
FERC the authority to approve or deny the construction of
interstate natural gas pipelines. See 15 U.S.C. § 717f. Indeed,
before a private developer can begin construction on any
pipeline project, FERC must grant the developer a “certificate
of public convenience and necessity,” id. § 717f(c)(1)(A)—
also referred to as a “section 7 certificate” or a “certificate.”
FERC may grant a certificate only upon a finding that the
project at issue will serve the public interest of convenience
and necessity. Id. § 717f(e). FERC may also “attach to the
issuance of the certificate . . . reasonable terms and conditions
as the public convenience and necessity may require.” Id. §
717f(e).
Once FERC has issued a certificate to a developer, the
certificate holder has the ability to acquire “the necessary right-
of-way to construct, operate and maintain a pipe line or pipe
lines” from unwilling landowners by eminent domain. Id. §
717f(h). As such, any party who is “aggrieved” by a FERC
certificate may seek redress by petitioning the federal court of
appeals, which would have “exclusive” jurisdiction “to affirm,
modify, or set aside” the certificate, provided that the party first
seek rehearing before FERC. Id. § 717r(a)-(d); id. § 717r(b)
13
(“Any party to a proceeding under this chapter aggrieved by an
order issued by the Commission in such proceeding may obtain
a review of such order in the court of appeals of the United
States . . . by filing in such court, within sixty days after the
order of the Commission upon application for rehearing[.]”).
RFRA, meanwhile, instructs that the “[g]overnment
shall not substantially burden a person’s exercise of religion
even if the burden results from a rule of general applicability”
unless the government demonstrates that the burden “is the
least restrictive means” to further a “compelling government
interest.” 42 U.S.C. § 2000bb-1(a)–(b). The statute’s judicial
relief provision further provides that “[a] person whose
religious exercise has been burdened in violation of this section
may assert that violation as a claim or defense in a judicial
proceeding and obtain appropriate relief against the
government.” Id. § 2000bb-1(c).
III
A
The Adorers contend that the plain language of this
judicial relief provision grants them a statutory right to assert
their RFRA claim in district court. We disagree. The NGA is
a detailed statute, setting forth specific provisions on the
procedure by which approval and subsequent review of a
pipeline project may be attained. The statute provides that
“[a]ny party . . . aggrieved by an order issued by the
Commission . . . may obtain a review of such order in the court
of appeals of the United States . . . by filing in such court,
within sixty days after the order of the Commission upon
application for rehearing.” 15 U.S.C. § 717r(b). Once issued,
the FERC order was undoubtedly under the exclusive purview
of the NGA’s provision for appellate review of the circuit
14
courts of appeals. See id. RFRA, on the other hand, provides
that “[a] person whose religious exercise has been burdened in
violation of this section may assert that violation as a claim or
defense in a judicial proceeding and obtain appropriate relief
against the government.” 42 U.S.C. § 2000bb-1(c) (emphasis
added). Nowhere does the text specifically confer jurisdiction
to the federal district courts to hear RFRA claims. 6
As such, the NGA’s procedural regime is controlling
here. It explicitly states that jurisdiction is “exclusive” with
“the court[s] of appeals of the United States.” 15 U.S.C. §
717r(b). Moreover, the statute’s exhaustion provision,
requiring that objections to FERC’s order be “urged before the
Commission in the application for rehearing unless there is
reasonable ground for failure so to do” before appellate review,
6
Were we to interpret RFRA’s reference to a “judicial
proceeding” as necessarily requiring a district court hearing,
we would have to conclude that the NGA unlawfully conflicted
with RFRA. See 42 U.S.C. § 2000bb-3(a) (“This chapter
applies to all Federal law, and the implementation of that law,
whether statutory or otherwise, and whether adopted before or
after November 16, 1993.”). But the NGA’s procedural
requirements, which permit parties to seek review in a court of
appeals following an initial agency hearing, qualify as a
“judicial proceeding” under RFRA. Although an agency
proceeding alone would not qualify as such a “judicial
proceeding,” we conclude that the NGA’s “FERC + Court of
Appeals” framework so qualifies. In this sense, then, the NGA
and RFRA do not conflict with each other. Rather, the NGA
simply lays out what procedural rules a claimant must adhere
to when exercising their RFRA right to a “judicial proceeding”
in the pipeline context.
15
id., makes clear Congress’ intent to confer exclusive
jurisdiction to the NGA by a highly reticulated statute
nullifying any procedural alternatives an aggrieved party may
otherwise have. Indeed, the NGA is the exclusive remedy for
matters relating to the construction of interstate natural gas
pipelines. It forms the paradigm by which FERC operates in
matters related to interstate natural gas pipelines. By failing to
avail themselves of the protections thereunder, the Adorers
have foreclosed judicial review of their substantive RFRA
claims.
Besides, even if the NGA did not expressly preclude
jurisdiction in this case, we would nonetheless find that it did
so implicitly under the two-step framework provided in
Thunder Basin Coal v. Reich, 510 U.S. 200 (1994). At the first
step, the court asks whether Congress’ intent to preclude
district court jurisdiction is “fairly discernible in the statutory
scheme,” based on an examination of the statute’s text,
structure, and purpose. Id. at 207. The second step, in turn,
asks whether plaintiffs’ claims “are of the type Congress
intended to be reviewed within this statutory structure.” Id. at
212. At this stage the court considers three factors: (1)
whether the statutory scheme “foreclose[s] all meaningful
judicial review;” (2) the extent to which the plaintiff’s claims
are “wholly collateral” to the statute’s review provision; and
(3) whether “agency expertise could be brought to bear on the
. . . questions presented.” Id. at 212–13.
Here, Congress’ intent to vest jurisdiction in circuit
courts is “fairly discernible in the” NGA. See Thunder Basin,
510 U.S. at 207 (setting forth first prong of two-part test). Only
“the court of appeals of the United States” where the natural
gas company is located or has its principal place of business or
the District of Columbia Circuit may “affirm, modify, or set
16
aside [a FERC] order in whole or in part.” § 717r(b). By
challenging the permissibility of the Pipeline Project under
RFRA, the Adorers are seeking to “modify or set aside”
FERC’s order—a matter the NGA places in the “exclusive”
purview of the court of appeals, only after administrative
exhaustion.
At step two, we think the Adorers’ claims “are of the
type Congress intended to be reviewed within this statutory
structure.” Thunder Basin, 510 U.S. at 212. First, the statutory
authority, the NGA, does not foreclose all meaningful judicial
review because it vests the courts of appeals with jurisdiction
to review FERC orders. See id. at 212–13. Second, the claims
asserted here are not “wholly collateral” because they “inhere
in the controversy;” that is, if the Adorers are successful in their
administrative challenge, the FERC order will be modified or
set aside. Id. Finally, although the constitutional claims may
be outside of FERC’s expertise, this is tempered by the court
of appeals’s review, which regularly resolves constitutional
issues. See Massieu v. Reno, 91 F.3d 416, 420 n.4 (3d Cir.
1996) (“[T]he [Thunder Basin] Court’s fundamental point, we
think, was that both statutory and constitutional claims could
be meaningfully addressed in the court of appeals.”); see also
Elgin v. Dep’t of Treas., 567 U.S. 1, 19 (2012) (“We see
nothing extraordinary in a statutory scheme that vests
reviewable factfinding authority in a non-Article III entity that
has jurisdiction over an action but cannot finally decide the
legal question to which the facts pertain.”).
We are therefore not convinced that “the plain language
of RFRA” grants the Adorers, Adorers Br. 22, the statutory
right to assert their RFRA claim in a federal district court. As
the Supreme Court has explained, the general “principle” that,
“when federal law creates a private right of action . . . district
17
courts possess federal-question jurisdiction under § 1331,” is
one that does not “endure[]” where “Congress divests federal
courts of their § 1331 adjudicatory authority.” Mims v. Arrow
Fin. Servs., LLC, 565 U.S. 368, 378–79 (2012). Thus, we
reject the Adorers’ contention that the District Court
committed an error of law when it applied the provisions of the
NGA to conclude it lacked subject matter jurisdiction to hear
their substantive RFRA claims. 7
7
This analysis is consistent with our decision in Francis
v. Mineta, 505 F.3d 266 (3d Cir. 2007). In Francis, we noted
that “Congress did not intend RFRA to subsume other statutory
schemes,” and thereby acknowledged that “nothing in RFRA
alters the exclusive nature of Title VII with regard to
employees’ claims” because of “Title VII’s exclusive and
comprehensive scheme.” Id. at 270. The Court concluded that,
despite the plaintiff’s attempt to invoke a RFRA claim, Title
VII affords plaintiffs “the exclusive remedy for job-related
claims of federal religious discrimination.” Id. at 272.
Judge Stapleton’s Concurrence in Francis, with which
the Majority did “not disagree”, id. at 272 n.7, is of particular
relevance here. Judge Stapleton relied on Brown v. General
Services Administration, 425 U.S. 820 (1976) to highlight the
Supreme Court’s analysis in enunciating that Title VII
provides “the exclusive, pre-emptive [sic] administrative and
judicial scheme for the redress of federal employment
discrimination.” Id. at 272 (Stapleton, J., concurring) (quoting
Brown, 425 U.S. at 829). As Judge Stapleton observed, the
Supreme Court opined that Title VII should supersede general
statutes under the canon of statutory interpretation that resolves
tension between specific and general statutes, favoring specific
statutes. Francis, 505 F.3d at 272 (Stapleton, J., concurring).
18
Our sister circuits also agree. In American Energy
Corporation v. Rockies Express Pipeline LLC, the Sixth
Circuit concluded that the NGA’s reticulated procedure
provides that the “relevant court of appeals . . . has ‘exclusive’
jurisdiction ‘to affirm, modify, or set aside [FERC’s] order in
whole or in part’” and that “no entity may seek judicial review
of a FERC order unless it first sought rehearing from the
agency.” 622 F.3d 602, 605 (6th Cir. 2010) (internal citations
omitted). The court emphasized that “[e]xclusive means
exclusive, and the [NGA] nowhere permits an aggrieved party
otherwise to pursue collateral review of a FERC certificate in
state court or federal district court.” Id.; see also La Voz Radio
de la Comunidad v. F.C.C., 223 F.3d 313, 319 (6th Cir. 2000)
(concluding that RFRA “does not provide that the ‘judicial
proceeding’ must be in the district court as opposed to a
designated court of appeals” and reasoning that “Congress has
equipped the FCC with an impressive arsenal of remedies,” of
which the “effectiveness . . . would be largely nullified if
[plaintiffs] could simply run to the district court and enjoin the
FCC from utilizing them”); Gen. Fin. Corp. v. F.T.C., 700 F.2d
366, 368 (7th Cir. 1983) (“You may not bypass the specific
method that Congress has provided for reviewing adverse
agency action simply by suing the agency in federal district
court under 1331 or 1337; the specific statutory method, if
adequate, is exclusive.”).
In addition, the Supreme Court reasoned that, as a practical
matter, Title VII’s remedial provisions would be entirely
undermined “if a plaintiff could circumvent its procedural
requirements by ‘the simple expedient of putting a different
label on the pleadings.’” Id. (quoting Brown, 425 U.S. at 833).
19
Indeed, the Supreme Court has long held that the
Federal Power Act’s (“FPA”), statutory review scheme, 16
U.S.C. § 825l, which is materially identical to the NGA’s, 8
“necessarily preclude[s] de novo litigation between the parties
of all issues inhering in the controversy, and all other modes of
judicial review,” and that challenges brought in the district
court outside that scheme are therefore “impermissible
collateral attacks.” City of Tacoma v. Taxpayers of Tacoma,
357 U.S. 320, 336, 341 (1958); see also Me. Council of the Atl.
Salmon Fed. v. Nat’l Me. Fisheries Serv., 858 F.3d 690, 693
(1st Cir. 2017) (Souter, J., sitting by designation) (“The
Supreme Court has made clear that the jurisdiction provided by
[the Federal Power Act’s jurisdictional provision] is
‘exclusive,’ not only to review the terms of the specific FERC
order, but over any issue ‘inhering in the controversy.’”
(quoting City of Tacoma, 357 U.S. at 336)).
Thus, the District Court did not err in concluding that it
lacked subject matter jurisdiction.
B
The Adorers further claim that, even if they had
indulged the administrative process, they could not have
asserted their rights under RFRA within the NGA because they
would have had “to have anticipated a possible RFRA violation
and affirmatively acted to become a party to a private third
8
The FPA, 16 U.S.C. § 791a, is a statutory scheme
recognized as “substantially identical” to the NGA and subject
to “interchangeabl[e]” precedent. Ark. La. Gas Co. v. Hall, 453
U.S. 571, 578 n.7 (1981).
20
party’s administrative application.” Adorers Br. 41-42. We
disagree. 9
The Adorers’ contention is unavailing because FERC
may hear any claim raised before it—even potential violations
of federal law. There is no inherent inhibition to FERC hearing
a potential claim in the first instance because it is statutorily
granted the authority to hear any claim from an affected party
when raised timely. It may adjudicate these claims in a way it
believes appropriate. If an affected party disagrees with the
adjudication of her claim, she has the opportunity for direct
appeal before a federal court of appeals. 10
9
Our conclusion here should not be interpreted as
precluding the filing of a proper freestanding due process claim
pursuant to Mathews v. Eldridge, 424 U.S. 319, 349 (1976).
“The ultimate balance involves a determination as to when,
under our constitutional system, judicial-type procedures must
be imposed upon administrative action to assure fairness.” Id.
at 348. This is consistent with Thunder Basin’s long-standing
observation that a district court may hear claims that are
considered “‘wholly collateral’ to a statute’s review provisions
and outside the agency’s expertise,” where a finding of
preclusion potentially forecloses all meaningful judicial
review. 510 U.S. at 213–14 (quoting Heckler v. Ringer, 466
U.S. 602, 618 (1984)). When such a claim arises, it “may be
challenged in a district court,” as long as it is “entirely
collateral” and “the petitioner ha[s] made a colorable showing
that full postdeprivation relief could not be obtained.” Id. at
214 (citations omitted).
10
As proof of this process, Transco submitted an Order
of Rehearing issued by FERC related to the Pipeline Project
21
(“28(j) Letter”). The 28(j) Letter indicates that the plaintiffs in
that matter requested rehearing on an order issued by FERC
authorizing construction and operation of the Pipeline Project,
which challenged several potential violations of federal laws.
As a result of following the NGA’s procedural process, the
plaintiffs’ claims will be heard by the District of Columbia
Circuit Court of Appeals. In our view, the 28(j) Letter provides
evidence that, when the procedural process of the NGA is
adhered to, all issues—whether dispositive or potential—may
be addressed at the agency level. If a party is not satisfied with
the result at that level, she may seek review in a court of
appeals—as the parties in the 28(j) Letter have done. Had the
Adorers likewise taken advantage of the NGA’s regime, we see
no reason to conclude that they would not have had an
opportunity to review their substantive RFRA claims on two
levels: at the administrative and the appellate level.
Moreover, just as an objector has a fundamental right to
raise concerns prompted by religious beliefs at the
administrative level, so, too, FERC bears a commensurate
responsibility to carefully consider those objections and to treat
respectfully the expression of sincerely-held religious beliefs.
See Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n,
138 S. Ct. 1719, 1732 (2018) (an objector is “entitled to a
neutral decisionmaker who w[ill] give full and fair
consideration to h[er] religious objection”). Likewise,
although we hold today that such objections must be raised in
the administrative forum under FERC’s exclusive regime to
preserve appellate review, nothing in this opinion should be
construed to call into question the sincerity of the deeply-held
religious beliefs expressed by the Adorers.
22
If the Adorers had participated in the administrative
process, FERC may have denied or modified the conditions of
Transco’s certificate. Or, if FERC failed to do so, the
reviewing court of appeals may have ruled in the Adorers’
favor. Under these circumstances, the Adorers would have, at
the very least, had the opportunity to seek the relief they so
desire today. 11 But because they failed to engage with the
NGA’s procedural regime, we are without jurisdiction to hear
the Adorers’ claims. 12
IV
For the foregoing reasons, we hold that a claim under
RFRA, 42 U.S.C. § 2000bb-1(c), brought pursuant to the
general jurisdictional grant of a federal question under 28
U.S.C. § 1331, does not abrogate or provide an exception to a
11
While RFRA expressly provides for damages, see 42
U.S.C. § 2000bb-1, it appears that the NGA circumscribes
FERC’s authority to issue a ruling on the merits of a certificate
of public convenience and necessity, see 15 U.S.C. § 717f(e),
and the Court of Appeals is similarly limited to “affirming,
modifying, or setting aside” the certificate, id. § 717r(b). Thus,
the ability of a RFRA claimant to receive damages through the
NGA process may indeed bear on “whether the claims can be
afforded meaningful review.” Thunder Basin, 510 U.S. at 207.
The Adorers did not request damages in their complaint; hence,
we need not reach this issue today.
12
Because we hold that neither the District Court nor
this Court have jurisdiction to adjudicate the Adorers’
substantive RFRA claim, we need not address their alternative
arguments.
23
specific and exclusive jurisdictional provision prescribed by
Congress for judicial review of an agency’s action.
Accordingly, we shall affirm the order of the District Court
granting Transco’s and FERC’s motions to dismiss.
24