Federal Law Enforcement Officers Association v. Kiran Ahuja

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 14, 2022 Decided March 14, 2023
No. 21-5266
FEDERAL LAW ENFORCEMENT OFFICERS ASSOCIATION,
APPELLANT
v.
KIRAN AHUJA, IN HER OFFICIAL CAPACITY AS DIRECTOR OF
THE UNITED S TATES OFFICE OF P ERSONNEL M ANAGEMENT,
AND OFFICE OF P ERSONNEL M ANAGEMENT,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00735)
Ryan E. Griffin argued the cause and filed the briefs for
appellant.
Anna O. Mohan, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, Charles W. Scarborough, Attorney, and Allison Kidd-
Miller, Deputy General Counsel, U.S. Office of Personnel
Management. Thomas G. Pulham, Attorney, U.S. Department
of Justice, entered an appearance.

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Before: HENDERSON and P ILLARD, Circuit Judges, and
EDWARDS , Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge P ILLARD.
P ILLARD, Circuit Judge: The Office of Personnel
Management (OPM) administers retirement benefits for
civilian employees of the U.S. government. OPM typically
pays retirement benefits to retirees themselves. But when a
retiree’s benefits are subject to division pursuant to a divorce
decree, OPM divides them between the retiree and his or her
former spouse according to the terms of the decree. The
Federal Law Enforcement Officers Association (Association)
brought this action against OPM in district court, claiming that
OPM’s method of apportioning one type of retirement benefit,
the Annuity Supplement, violates the Administrative
Procedure Act. OPM moved to dismiss the complaint on
jurisdictional grounds.
As a general matter, the Civil Service Reform Act and
Federal Employees’ Retirement System Act preclude district
court review of challenges to federal employee retirement
benefits determinations. Those statutes provide for
administrative review, with final agency decisions subject to
appeal directly to the U.S. Court of Appeals for the Federal
Circuit. The district court acknowledged that federal
employees’ claims for retirement benefits are generally routed
through that system of review, but held that the Association’s
claims fell within an exception allowing pre-enforcement
challenges to agency rules to proceed in district court.
Exercising jurisdiction, the district court dismissed one of the
Association’s counts for failure to state a legally cognizable
claim and, after the administrative record was filed, granted
summary judgment to OPM as to the others.

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Our de novo review persuades us that the district court
lacked jurisdiction to review the Association’s claims. We
therefore vacate the district court’s orders and remand with
instructions to dismiss for lack of jurisdiction.
BACKGROUND
A. Statutory Framework
The Civil Service Reform Act of 1978 (CSRA), 5 U.S.C.
§ 1101 et seq., established a comprehensive system for
administrative and judicial review of personnel actions
involving federal employees. United States v. Fausto, 484 U.S.
439, 455 (1988); Am. Fed’n of Gov’t Emps. v. Sec’y of Air
Force (AFGE I), 716 F.3d 633, 636 (D.C. Cir. 2013). The
system involves two levels of review. In general, a claimant
seeking to challenge a personnel action may first appeal to the
Merit Systems Protection Board (MSPB or the Board). See 5
U.S.C. § 7701(a). A party that does not prevail there may seek
judicial review of a final decision of the Board. See id.
§ 7703(b)(1). The CSRA provides for appeal of final MSPB
decisions directly to the Federal Circuit. See id.; 28 U.S.C.
§ 1295(a)(9). In reviewing MSPB decisions, the Federal
Circuit “shall review the record and hold unlawful and set aside
any agency action, findings, or conclusions” that are “(1)
arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; (2) obtained without procedures required
by law, rule, or regulation having been followed; or (3)
unsupported by substantial evidence.” 5 U.S.C.
§ 7703(a)(1), (c). “The CSRA provides ‘the exclusive avenue
for suit’ to a plaintiff whose claims fall within its
scope.” AFGE I, 716 F.3d at 636 (quoting Grosdidier v.
Chairman, Broad. Bd. of Governors, 560 F.3d 495, 497 (D.C.
Cir. 2009)); accord Filebark v. U.S. Dep’t of Transp., 555 F.3d

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1009, 1013 (D.C. Cir. 2009); Fornaro v. James, 416 F.3d 63,
66-67 (D.C. Cir. 2005).
The Federal Employees’ Retirement System (FERS) Act
of 1986, 5 U.S.C. § 8401 et seq., establishes a system of
retirement benefits for federal employees and their survivors.
With limited exceptions, it tasks OPM with administering that
system and “adjudicat[ing] all claims under [the FERS Act]
administered by [OPM].” Id. § 8461(b), (c). As relevant here,
the FERS Act channels claims regarding OPM benefits
determinations through the CSRA’s two-tier system of review,
beginning with the MSPB. See id. § 8461(e)(1). The FERS
Act provides that, subject to certain exceptions, “an
administrative action or order affecting the rights or interests
of an individual or of the United States under the provisions of
[the FERS Act] administered by [OPM] may be appealed to the
Merit Systems Protection Board under procedures prescribed
by the Board.” Id.; see Rodriguez v. United States, 852 F.3d
67, 83 (1st Cir. 2017); cf. Fornaro, 416 F.3d at 64-67
(describing the parallel remedial regime under the Civil Service
Retirement System Act).
The FERS Act entitles eligible federal employees to
certain defined retirement benefits, including a Basic Annuity
and Social Security payments. See 5 U.S.C. §§ 8403, 8412,
8415; 42 U.S.C. §§ 402, 414, 415. Federal employees who are
legally required to retire at an age before they are eligible for
Social Security—such as law enforcement officers, 5 U.S.C.
§ 8425(b)—are also entitled to an Annuity Supplement to their
Basic Annuity until they age into Social Security benefits, see
id. § 8421.
The Basic Annuity and Annuity Supplement are typically
paid to the retirees themselves. However, when a retiree’s
benefits are subject to division pursuant to a divorce decree, the

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FERS Act establishes rules for apportioning those benefit
payments between the retiree and his or her former spouse. See
id. §§ 8421(c), 8467. As codified, the FERS directs OPM, as
a general matter, to pay the retiree’s former spouse “if and to
the extent expressly provided for in the terms of” the divorce
decree. Id. § 8467(a). As for the Annuity Supplement
specifically, section 8421(c) provides that the Annuity
Supplement “shall, for purposes of section 8467, be treated in
the same way as” the Basic Annuity. Id. § 8421(c).
B. OPM’s Challenged Guidance
The Federal Law Enforcement Officers Association
challenges OPM’s practice of apportioning the Annuity
Supplement pursuant to its interpretation of sections 8421(c)
and 8467 of the FERS Act as codified. OPM set forth its
interpretation in two internal guidance documents. First, in late
2014, OPM issued an internal Retirement Policy Memorandum
interpreting sections 8421(c) and 8467 to require OPM to
divide the Annuity Supplement whenever, and to the same
extent, a divorce decree requires division of the Basic Annuity.
Second, on June 28, 2016, OPM issued an internal “Retirement
and Insurance Letter” (2016 Guidance) restating that
interpretation with an added caveat: “[I]f the court order
expressly excludes the FERS annuity supplement from the
computation of the former spouse’s share,” then OPM is not
required to divide the Annuity Supplement in the same way as
the Basic Annuity. J.A. 65 (2016 Guidance). The 2016
Guidance also directed OPM specialists to manually update the
benefits calculation for affected retirees to reduce future
payments to correct for past overpayments to retirees, and to
calculate and pay to former spouses the accrued benefits to
which they were entitled but that were paid to the retiree.

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C. Procedural History
In March 2019, nearly three years after OPM issued its
2016 Guidance, the Association filed this Administrative
Procedure Act (APA) suit in district court. It challenges
OPM’s apportionment policy on three grounds. First, the
Association claims that OPM’s policy of dividing the Annuity
Supplement to the same extent as the Basic Annuity is
arbitrary, capricious, and contrary to law because the FERS Act
permits division of retirement benefits only “to the extent
expressly provided for in the terms of” a divorce decree or other
court order. 5 U.S.C. § 8467(a); see J.A. 14-15 (Complaint).
According to the Association, the FERS Act thus prohibits
OPM from dividing a retiree’s Annuity Supplement unless a
divorce decree expressly references and calls for division of the
Annuity Supplement itself. Second, the Association challenges
the 2016 Guidance as procedurally invalid because it was not
promulgated by notice and comment rulemaking. And third, it
claims that OPM’s application of its new apportionment policy
to payments already disbursed exceeds its statutory authority.
As relief, the Association asks the court to “[d]eclare invalid
OPM’s practice of apportioning the FERS Annuity Supplement
absent a court order expressly directing such apportionment”
and to “[p]ermanently enjoin [OPM] from continuing to do so.”
J.A. 16 (Complaint).
The district court granted in part and denied in part OPM’s
motion to dismiss the complaint. Addressing OPM’s assertion
that it lacked jurisdiction, the district court acknowledged that
the CSRA and FERS Act generally channel claims related to
federal employees’ retirement benefits exclusively through the
MSPB, subject to direct review in the Federal Circuit. But the
court applied an “exception” articulated by this court in a
footnote in NTEU v. Devine, 733 F.2d 114 (D.C. Cir. 1984),
that allows for pre-enforcement review of rules. Fed. L. Enf’t

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Officers Ass’n v. Rigas, No. 19-CV-735 (CKK), 2020 WL
4903843, at *4, *8 (D.D.C. Aug. 20, 2020) (citing Devine, 733
F.2d at 117 n.8). The court held that, because OPM’s 2016
Guidance is an interpretive rule rather than a statement of
policy, the Association could challenge it in district court under
Devine.
Having determined that OPM’s 2016 Guidance qualifies
as an interpretive rule, however, the court dismissed the
Association’s notice and comment rulemaking claim on the
ground that the APA does not require agencies to promulgate
interpretive rules by notice and comment. After OPM filed the
administrative record, the parties cross-moved for summary
judgment. The district court denied the Association’s motion
and granted OPM’s cross-motion on the Association’s two
remaining claims. It sustained OPM’s Guidance as “consistent
with the unambiguous statutory directive that annuity
supplements be ‘treated in the same way’ as basic annuity.”
Fed. L. Enf’t Officers Ass’n v. Ahuja, No. 19-CV-735 (CKK),
2021 WL 4438907, at *4 (D.D.C. Sept. 28, 2021). The
statutory requirement to treat the Supplement “in the same
way” as the Basic Annuity, the district court held,
unambiguously requires OPM to apply a divorce decree
provision dividing the Basic Annuity to the Supplement as
well. Id. at *4-6. The court was unpersuaded by the
Association’s argument that, because the statute requires any
division of the Basic Annuity to be “expressly provided for” in
the decree, the same-treatment requirement demands separate,
express provision for any division of the Supplement. Id. The
district court also rejected the Association’s claim that OPM
exceeded its authority in requiring “retroactive” recovery and
re-direction of payments that the statute required to be divided
but had been erroneously disbursed in full to the retiree. Id. at
*6-7. Rather, OPM’s remedial actions to recoup overpayments
from retirees’ future benefit amounts and to pay former spouses

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their due were reasonable and lawful “corrective measures to
correctly implement the statute.” Id. at *7.
DISCUSSION
On appeal, the Association argues that the district court
erred as a matter of law in ruling against it on the merits of its
claims. OPM counters that the district court lacked jurisdiction
over the Association’s claims, and thus should have dismissed
the entire case at the outset. We review de novo the district
court’s exercise of jurisdiction, and its rulings on the motions
to dismiss and for summary judgment. See True the Vote, Inc.
v. Internal Revenue Serv., 831 F.3d 551, 555 (D.C. Cir. 2016);
Genus Med. Techs. LLC v. U.S. Food & Drug Admin., 994 F.3d
631, 636 (D.C. Cir. 2021).
We conclude that the district court lacked jurisdiction
because the CSRA and FERS Act preclude district court review
of the Association’s claims. Under those Acts, judicial review
of claims challenging OPM’s method of apportioning
retirement benefits is available only in the Federal Circuit
following administrative exhaustion. We therefore vacate the
district court’s orders and remand with instructions to dismiss
for lack of jurisdiction.
A.
The CSRA’s hybrid administrative and judicial regime is
the exclusive process for challenges to OPM’s calculation of
FERS retirement benefits, thereby displacing district court
review. “Within constitutional bounds, Congress decides what
cases the federal courts have jurisdiction to consider.” Bowles
v. Russell, 551 U.S. 205, 212 (2007). “Litigants generally may
seek review of agency action in district court under any
applicable jurisdictional grant,” Arch Coal, Inc. v. Acosta, 888
F.3d 493, 498 (D.C. Cir. 2018), “but Congress may preclude

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district court jurisdiction by establishing an alternative
statutory scheme for administrative and judicial review” as an
exclusive system of review, Am. Fed’n of Gov’t Emps., AFL-
CIO v. Trump (AFGE II), 929 F.3d 748, 754 (D.C. Cir. 2019).
“If a special statutory review scheme exists, . . . ‘it is ordinarily
supposed that Congress intended that procedure to be the
exclusive means of obtaining judicial review in those cases to
which it applies.’” Jarkesy v. SEC, 803 F.3d 9, 15 (D.C. Cir.
2015) (quoting City of Rochester v. Bond, 603 F.3d 927, 931
(D.C. Cir. 1979)).
To determine whether a statutory scheme of administrative
and judicial review is the exclusive means of review, we follow
the two-step analysis described in Thunder Basin Coal Co. v.
Reich, 510 U.S. 200 (1994). Under that analysis, a statutory
remedial scheme displaces district court review where: (1)
Congress’s intent to allocate initial review exclusively to an
administrative body is “fairly discernible in the statutory
scheme” based on the statute’s text, structure, and purpose, id.
at 207 (quoting Block v. Cmty. Nutrition Inst., 467 U.S. 340,
351 (1984)); and (2) the claims at issue are “of the type
Congress intended to be reviewed within th[at] statutory
structure,” id. at 212; accord Elgin v. Dep’t of Treasury, 567
U.S. 1, 10 (2012); AFGE II, 929 F.3d at 754; Jarkesy, 803 F.3d
at 15. Congress need not expressly deem a statutory regime to
be exclusive for it to satisfy step one. See Elgin, 567 U.S. at
10-12. Rather, Congress’s intent to displace district court
jurisdiction may be “implied”—for instance, by the
comprehensive nature of the statutory system of review and
Congress’s purpose in enacting it. Id. at 12; see id. at 9-14.
Here, both steps of the inquiry support the conclusion that
the CSRA bars district court review of the Association’s
challenge.

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1.
At step one, the Association does not seriously dispute that
Congress intended to route challenges to FERS retirement
benefits determinations exclusively through the CSRA’s
remedial regime. See Reply Br. 12. Nor could it. We have
already held that the CSRA provides the exclusive avenue for
review of claims challenging “how OPM calculates civil
service [retirement] benefits for particular classes of
beneficiaries.” Fornaro, 416 F.3d at 68; see id. at 66-69.
In Fornaro v. James, a group of eight plaintiffs who sought
to represent a class of retired, disabled federal law enforcement
officers and firefighters sued OPM for an upward adjustment
to their disability benefits under the Civil Service Retirement
System—the legacy system that preceded the FERS. See id. at
64. The plaintiffs argued that their action could proceed in
district court under the APA’s waiver of sovereign immunity.
Id. We held the APA’s waiver inapplicable and affirmed the
district court’s dismissal for lack of jurisdiction “because
Congress ha[d] prescribed a route other than suit under the
APA for vindicating claims for civil service benefits”—the
CSRA’s system of review. Id. As we explained, “[a] series of
opinions from the Supreme Court and this court make clear that
[the CSRA’s remedial regime is] exclusive, and may not be
supplemented by the recognition of additional rights to judicial
review having their sources outside the CSRA.” Id. at 66; see
id. at 66-69 (citing Fausto, 484 U.S. at 444-49; Lindahl v.
OPM, 470 U.S. 768, 798-99 (1985); Carducci v. Regan, 714
F.2d 171, 174-75 (D.C. Cir. 1983); Graham v. Ashcroft, 358
F.3d 931, 933-36 (D.C. Cir. 2004)); see also Elgin, 567 U.S. at
10-15, 23; AFGE II, 929 F.3d at 754-61; AFGE I, 716 F.3d at
636-40; Grosdidier, 560 F.3d at 496-98; Nyunt v. Chairman,
Broad. Bd. of Governors, 589 F.3d 445, 448-49 (D.C. Cir.
2009).

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We grounded our holding in Fornaro in the terms,
structure, and purpose of the CSRA and Civil Service
Retirement System, as interpreted by those precedents. Like
the FERS, the Civil Service Retirement System channels
appeals of OPM’s retirement benefits determinations into the
CSRA’s two-tier system of review: After OPM finally
adjudicates a retirement benefits claim, the losing party may
appeal to the MSPB, subject to appeal directly to the Federal
Circuit. See Fornaro, 416 F.3d at 66 (citing 5 U.S.C.
§§ 7703(b)(1), 8347(b), (d)(1); 28 U.S.C. § 1295(a)(9)).
Congress designed this system to “replace the haphazard
arrangements for administrative and judicial review of
personnel action” that existed prior to the CSRA’s enactment.
Id. at 67 (quoting Fausto, 484 U.S. at 444). Pre-CSRA,
claimants often appealed adverse agency decisions to district
courts across the country through a wide variety of forms of
action, including suits for mandamus, injunction, and
declaratory judgment. Id. Congress enacted the detailed
CSRA review system to ensure greater uniformity of process
and consistency of interpretation. See id. at 67, 69; see also
Elgin, 567 U.S. at 13-14; Fausto, 484 U.S. at 444-45, 451. By
requiring initial resort to the MSPB, Congress fostered a
consistent executive branch approach. It also sought to
increase efficiency by directing review from the MSPB to the
court of appeals, eliminating what Congress viewed as an
“unnecessary layer” of review in district court. Fornaro, 416
F.3d at 67 (quoting Fausto, 484 U.S. at 449). And, by
centralizing review of final MSPB decisions in the Federal
Circuit, Congress expected increased uniformity of judicial
decisions as well. See id. at 69; see also Fausto, 484 U.S. at
449; Lindahl, 470 U.S. at 798.
Just as the CSRA’s reticulated remedial scheme and
purpose foreclosed district court review of the Fornaro
plaintiffs’ claims, the FERS Act bars district court review of

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challenges to OPM’s calculation of retirement benefits. The
statutory system of review for FERS retirement benefits
determinations is materially identical to the system for Civil
Service Retirement System benefits determinations considered
in Fornaro. Compare 5 U.S.C. § 8347(b), and id.
§ 8347(d)(1), with id. § 8461(c), and id. § 8461(e)(1). The
FERS Act channels appeals of OPM’s retirement benefits
determinations through the CSRA’s system of review: After
OPM adjudicates the claim, claimants may appeal adverse
decisions to the MSPB, id. § 8461(e)(1); see id. § 7701(a),
subject to direct judicial review in the Federal Circuit,
id. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). And the Association
offers no reason why the step one inquiry under Thunder Basin
should differ as between the FERS and the Civil Service
Retirement System. See Reply Br. 3-4, 12. We can thus fairly
discern—for the same reasons articulated in Fornaro, 416 F.3d
at 66-69—that Congress intended to channel disputes over
OPM calculation of FERS retirement benefits for particular
classes of beneficiaries exclusively through the CSRA’s
remedial regime.
2.
The Association’s claims are also “of the type” Congress
intended for CSRA review. Thunder Basin, 510 U.S. at 212.
Per Fornaro, “actions challenging how OPM calculates civil
service [retirement] benefits for particular classes of
beneficiaries” fall within the CSRA’s exclusive scope. 416
F.3d at 68. We presume, however, that Congress did not intend
to preclude district court review of a litigant’s claims “when (1)
a finding of preclusion might foreclose all meaningful judicial
review; (2) the claim[s] [are] wholly collateral to the statutory
review provisions; and (3) the claims are beyond the expertise
of the agency.” AFGE II, 929 F.3d at 755 (quoting Arch Coal,
888 F.3d at 500); see Elgin, 567 U.S. at 15; Free Enter. Fund

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v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 489 (2010).
Those considerations are not “three distinct inputs into a strict
mathematical formula.” Jarkesy, 803 F.3d at 17. Rather, they
act as “general guideposts useful for channeling the inquiry
into whether the particular claims at issue fall outside an
overarching congressional design.” Id. Because our analysis
of these considerations differs in some respects as between the
Association’s claims challenging the substance of OPM’s 2016
Guidance as opposed to the procedures by which OPM issued
that Guidance, we examine each set of claims in turn.
a.
Beginning with the Association’s substantive claims—i.e.,
that OPM’s apportionment policy is arbitrary, capricious, and
contrary to law and that OPM exceeded its statutory authority
in applying that policy “retroactively,” J.A. 14-16
(Complaint)—all three considerations plainly support
preclusion of district court review.
For starters, the Association does not dispute that the
CSRA provides individual claimants with an opportunity for
meaningful judicial review of those substantive claims: appeal
of final MSPB decisions directly to the Federal Circuit. See 5
U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9); Reply Br. 3-4,
12-13. Indeed, individual claimants have already used the
CSRA’s administrative process to challenge OPM’s 2016
Guidance as applied to their own Annuity Supplement
payments. The MSPB has issued four initial decisions on those
cases. See Young v. OPM, No. PH-831M-19-0459-I-1, 2020
WL 698466 (MSPB Initial Decision Feb. 7, 2020); Kuebbeler
v. OPM, No. AT-0843-19-0356-I-1, 2019 WL 4252309
(MSPB Initial Decision Sept. 4, 2019); Moulton v. OPM, No.
DE-0841-18-0053-I-1, 2018 WL 1919715 (MSPB Initial
Decision Apr. 16, 2018); Simon v. OPM, No. CH-0845-18-

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0088-I-1, 2018 WL 1036536 (MSPB Initial Decision Feb. 22,
2018). And OPM recounted that, as of the date it filed its brief,
three petitions for review of initial decisions were pending
before the full Board. Gov’t Br. 26. Once the Board rules on
those petitions, judicial review is available in the Federal
Circuit. See 5 U.S.C. § 7703(b)(1); 28 U.S.C. § 1295(a)(9). A
ruling that the CSRA precludes district court review would not
“foreclose all meaningful judicial review” of the types of
substantive claims the Association advanced in district court.
Elgin, 567 U.S. at 15 (quoting Free Enter. Fund, 561 U.S. at
489). And the Association does not argue that meaningful
judicial review is nonetheless unavailable because the
Association’s representative character might prevent it from
advancing substantive claims through the CSRA’s remedial
regime. See Reply Br. 12-13; cf. AFGE I, 716 F.3d at 638-39.
We therefore decline to consider any such argument.
Second, the Association’s substantive claims are not
wholly collateral to the CSRA’s system of review. A challenge
is not “wholly collateral” to a statutory scheme if the plaintiff
“aim[s] to obtain the same relief [it] could seek” through the
statutory regime, especially where the claims are “inextricably
intertwined with the conduct of the” statutory scheme’s
proceedings. Jarkesy, 803 F.3d at 23; see Elgin, 567 U.S. at
22; AFGE II, 929 F.3d at 759-60. “This consideration is
‘related’ to whether ‘meaningful judicial review’ is available,
and the two considerations are sometimes analyzed together.”
AFGE II, 929 F.3d at 759 (quoting Jarkesy, 803 F.3d at 23).
Here, the gravamen of the Association’s claims is that OPM’s
policy memo and letter unlawfully direct apportionment of an
individual retiree’s Annuity Supplement to a former spouse
“absent a court order expressly directing such apportionment.”
J.A. 16 (Complaint). As relief, the Association seeks a
declaratory judgment to that effect and a permanent injunction
barring OPM from continuing to apportion the Annuity

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Supplement in that manner. Id. That challenge goes directly
to “how OPM calculates civil service benefits for [a] particular
class[] of beneficiaries,” Fornaro, 416 F.3d at 68, and seeks to
“obtain the same relief [individual claimants] could seek in the
agency proceeding,” AFGE II, 929 F.3d at 760 (quoting
Jarkesy, 803 F.3d at 23); see also Elgin, 567 U.S. at 22. It thus
falls squarely within the scope of the CSRA’s exclusive
remedial regime. See Fornaro, 416 F.3d at 68; see AFGE II,
929 F.3d at 759-60.
Finally, the Association’s substantive claims are not
“outside the MSPB’s expertise.” Elgin, 567 U.S. at 22. The
MSPB “routinely considers” statutory challenges to OPM’s
FERS authority and benefits determinations and “regularly
construes” the provisions of the FERS Act underlying the
Association’s substantive claims. Id. at 23; see, e.g.,
Kuebbeler, 2019 WL 4252309; Moulton, 2018 WL 1919715.
There is no dispute that the MSPB’s expertise can therefore be
“brought to bear” on the Association’s substantive claims.
Elgin, 567 U.S. at 23 (quoting Thunder Basin, 510 U.S. at 214-
15).
The Association advances two principal
counterarguments. First, it contends that its claims do not fall
within the CSRA’s scope because it brings a systemic
challenge to OPM policy, not a challenge to an individual
benefits determination. See Reply Br. 6, 12-13. But in
Fornaro we considered the argument that “[t]he CSRA
regime’s exclusivity for individual benefits determinations
does not preclude . . . a collateral, systemwide challenge to
OPM policy.” 416 F.3d at 67. As we explained in rejecting
that argument, “[a]llowing an alternative route to relief in the
district court because plaintiffs frame their suit as a systemwide
challenge to OPM policy would substitute an entirely different
remedial regime for the one Congress intended to be

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exclusive.” Id. at 68. “Such an approach would reintroduce
‘the haphazard arrangements for administrative and judicial
review of personnel action’” that the CSRA was designed to
address. Id. (quoting Fausto, 484 U.S. at 444). It would also
“impermissibly create a right of access to the courts more
immediate and direct than the [CSRA] provides, thus fracturing
the unifying authority . . . of the MSPB, and undermining the
consistency of interpretation by the Federal Circuit envisioned
by the Act.” Id. at 69 (internal citations and quotation marks
omitted); see also Elgin, 567 U.S. at 11-15 (rejecting on similar
grounds petitioners’ request to “carve out an exception to
CSRA exclusivity for facial or as-applied constitutional
challenges to federal statutes”); AFGE I, 716 F.3d at 639. In
keeping with that precedent, we decline to sanction the
Association’s attempted end run around the CSRA here.
Second, the Association argues that CSRA exclusivity
applies only to claims brought under the FERS, i.e., Chapter 84
of Title 5 of the U.S. Code, as opposed to claims brought under
the APA. See Reply Br. 12-13. That argument, too, is
foreclosed. We have repeatedly admonished in prior CSRA
decisions that litigants “may not circumvent the [CSRA’s]
requirements and limitations by resorting to the catchall APA.”
Grosdidier, 560 F.3d at 497; see also AFGE I, 716 F.3d at 639
(noting this rule “applies to a ‘systemwide challenge’ to an
agency policy interpreting a statute just as it does to the
implementation of such a policy in a particular case” (quoting
Nyunt, 589 F.3d at 449)); Fornaro, 416 F.3d at 67-69. The
Association cannot bypass the CSRA’s remedial regime by
relying on the APA.
In light of the foregoing, we conclude that the
Association’s challenge to OPM’s apportionment policy as
arbitrary, capricious, and contrary to law and its claim that
OPM exceeded its statutory authority in applying that policy to

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recoup and redirect payments made in error are both “of the
type Congress intended to be reviewed within” the CSRA’s
system of review. Thunder Basin, 510 U.S. at 212.
b.
The Association’s notice and comment rulemaking claim
presents a closer call. On balance, however, the three
considerations at step two of the Thunder Basin inquiry also
defeat the district court’s authority to hear that claim.
To begin with, meaningful judicial review is available
through the CSRA’s scheme. The Supreme Court and this
court have consistently held that an opportunity for meaningful
judicial review remains available within a special statutory
scheme so long as the claims at issue “can eventually reach ‘an
Article III court fully competent to adjudicate’ them.” Jarkesy,
803 F.3d at 19 (quoting Elgin, 567 U.S. at 17); accord AFGE
II, 929 F.3d at 758. In Elgin, for instance, the Supreme Court
held that the CSRA provides an avenue for meaningful judicial
review of challenges to the constitutionality of federal statutes
because, although the MSPB may not have the authority to pass
on a statute’s validity, the Federal Circuit has full authority to
do so. 567 U.S. at 16-21. The petitioners in Elgin sued in
district court to challenge their discharge from federal
employment for failure to register for the military draft. Id. at
6-8. They challenged on Equal Protection and Bill of Attainder
Clause grounds the statutes that required already-hired male
federal employees to register. Id. The Court concluded that,
even assuming “the MSPB lacks authority to declare a federal
statute unconstitutional,” meaningful judicial review remained
available because “the Federal Circuit has authority to consider
and decide petitioners’ constitutional claims,” and, “[t]o the
extent [they] require factual development, the CSRA equips the

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MSPB with tools to create the necessary record.” Id. at 16, 21;
see id. at 17-21.
Similarly, in AFGE II, we held that the CSRA’s system of
review for federal employees’ labor-relations claims assured an
opportunity for meaningful judicial review of constitutional
and statutory challenges to executive orders. 929 F.3d at 755-
59. The CSRA provides for administrative review by the
Federal Labor Relations Authority (FLRA), subject to judicial
review in the courts of appeals. See id. at 752, 758. Drawing
on Elgin, we explained that, “even if the FLRA could not
address the [plaintiff’s] claims, circuit courts could do so on
appeal from the FLRA.” AFGE II, 929 F.3d at 758.
So too here. The CSRA authorizes the Federal Circuit to
review notice and comment claims like the Association’s: It
requires that court, in reviewing final MSPB decisions, to
“review the record and hold unlawful and set aside any agency
action, findings, or conclusions” that are “obtained without
procedures required by law, rule, or regulation having been
followed.” 5 U.S.C. § 7703(c)(2). And the Association
identifies no reason why the opportunity provided by the
CSRA for direct review in a federal court of appeals that was
held sufficient in Elgin and AFGE II would fall short of
ensuring “meaningful judicial review” of the notice and
comment claims at issue here. See Reply Br. 9; Elgin, 567 U.S.
at 16-21; AFGE II, 929 F.3d at 758-59.
Second, the Association’s notice and comment claim, as
pleaded, is not wholly collateral to the CSRA’s system of
review. Recall that where a challenge is merely the “vehicle”
by which a plaintiff “aim[s] to obtain the same relief [it] could
seek” through the statutory regime, the challenge is not “wholly
collateral” to that scheme. Jarkesy, 803 F.3d at 23; see Elgin,
567 U.S. at 22. Importantly, the Supreme Court has made clear

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this inquiry does not turn on whether a specific claim “lends
itself to a ‘substantive’ rather than a ‘procedural’ label.”
Heckler v. Ringer, 466 U.S. 602, 615 (1984). Instead, we
examine whether the action “at bottom” seeks a substantive
determination that falls within the statutory regime’s exclusive
scope. Id. at 614.
Heckler v. Ringer is instructive. There, four individual
Medicare claimants challenged on both substantive and
procedural grounds the lawfulness of a policy instituted by the
Secretary of Health and Human Services regarding Medicare
Part A reimbursements. 466 U.S. at 604-09. As relevant here,
the plaintiffs challenged the Secretary’s “failure to comply with
the rulemaking requirements of the APA” in issuing the
challenged instructions and rule—including the requirement to
publish a notice of proposed rulemaking. Id. at 614; see id. at
610 & n.7; J.A. 20-22, Heckler, 466 U.S. 602 (No. 82-1772).
The Court held that section 405(g) of the Medicare Act
precluded district court review of the plaintiffs’ claims,
including their procedural challenges. Heckler, 466 U.S. at
613-17, 620-21, 627. Although some of the plaintiffs’ claims
were facially procedural, the Court reasoned,“[t]he relief that
[the plaintiffs sought] to redress their supposed ‘procedural’
objections [was] the invalidation of the Secretary’s current
policy and a ‘substantive’ declaration from her that the
expenses of [a specific type of] surgery are reimbursable under
the Medicare Act.” Id. at 614. As a result, “it ma[de] no sense
to construe the claims of [the plaintiffs] as anything more than,
at bottom, a claim that they should be paid for their . . .
surgery”—i.e., precisely the type of claim that Congress
intended to channel through the remedial regime established
under the Medicare Act. Id.; see also Elgin, 567 U.S. at 22
(referencing Heckler on this point); Shalala v. Ill. Council on
Long Term Care, Inc., 529 U.S. 1, 12 (2000) (same).

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Like the plaintiffs in Heckler, the Association casts its
objection as procedural but seeks a substantive declaration and
injunction requiring the agency to change its payment
practices. The Association is not seeking notice and an
opportunity to comment, but asking the court to “[d]eclare
invalid OPM’s practice of apportioning the FERS Annuity
Supplement absent a court order expressly directing such
apportionment” and to “permanently enjoin [OPM] from
continuing to do so.” J.A. 16 (Complaint). That requested
relief goes directly to the substance of OPM’s calculation of
individual retirees’ benefits pursuant to divorce decrees, and is
“precisely the kind[] of relief that the CSRA empowers the
MSPB and the Federal Circuit to provide.” Elgin, 567 U.S. at
22. Thus, once we peel back the “‘procedural’ label,” per
Heckler, the Association’s claim is, “at bottom,” a claim that
individual retirees are entitled to a different division of their
Annuity Supplements. 466 U.S. at 614. That challenge is not
wholly collateral to the CSRA’s remedial regime; it falls within
it.
McNary v. Haitian Refugee Center, Inc., 498 U.S. 479
(1991)—a post-Heckler case cited by the Association—does
not support a contrary conclusion. McNary involved a
procedural due process challenge to the Immigration and
Naturalization Service’s administration of the special
agricultural workers (SAW) amnesty program established
under the Immigration Reform and Control Act of 1986
(IRCA). Id. at 481-88. Under the SAW amnesty program,
non-U.S. citizen farmworkers residing unlawfully in the United
States who had performed at least 90 days of qualifying
agricultural work during the 12-month period before May 1,
1986, and who met certain other criteria, could apply for SAW
status. Id. at 483. That status authorized temporary residence
and provided a pathway to lawful permanent residence. Id.
The plaintiffs, two organizations and a group of unsuccessful

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SAW applicants, alleged that the Immigration and
Naturalization Service (INS) had violated the procedural due
process rights of the SAW applicants as well as the
requirements of IRCA by, among other things, conducting
interviews in an arbitrary manner, failing to apprise SAW
applicants of or give them an opportunity to challenge evidence
on which their SAW status denials were predicated, and failing
to provide competent interpreters. See id. at 487-88.
The question before the Court was a narrow one: whether
a provision of IRCA, which barred judicial review of individual
SAW status determinations except in the context of deportation
proceedings, foreclosed district court review of the plaintiffs’
procedural due process claims. Id. at 491 (citing 8 U.S.C.
§ 1160(e)). The Court held that it did not. See id. at 492-95.
As the Court explained, the text of the judicial review bar
“referr[ed] only to review ‘of a determination respecting an
application’ for SAW status.” Id. at 494 (emphases omitted)
(quoting 8 U.S.C. § 1160(e)(1)). Because the plaintiffs’ claims
challenged only the “procedures used by INS” and would not
“have [had] the practical effect of also deciding their claims for
benefits on the merits,” the statutory bar to judicial review did
not apply. Id. at 494-95.
Critically, in reaching that conclusion, the McNary Court
distinguished Heckler based on the essentially substantive
relief the Heckler plaintiffs requested. See id. at 495-96. The
Court explained that, “[u]nlike the situation in Heckler, the
individual [plaintiffs] in this action do not seek a substantive
declaration that they are entitled to SAW status. . . . Rather, if
allowed to prevail in this action, [the individual plaintiffs]
would only be entitled to have their case files reopened and
their applications reconsidered in light of the newly prescribed
. . . procedures.” Id. at 495.

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Here, the relief requested by the Association places this
case on the Heckler side of the line. Unlike the McNary
plaintiffs, the Association is not seeking the procedural
opportunities that notice and comment would provide. To the
contrary, as discussed above, the Association requests a change
to OPM’s substantive method for calculating individual
retirees’ Annuity Supplement payments. See J.A. 16
(Complaint) (requesting that the court “[p]ermanently enjoin”
OPM from “apportioning the FERS Annuity Supplement
absent a court order expressly directing such apportionment”).
The Association’s procedural claim, as pleaded, is thus more
akin to the claims at issue in Heckler—which included that the
challenged Medicare policy was invalid for want of notice and
comment—than those deemed wholly collateral in McNary.
See Heckler, 466 U.S. at 612-14; McNary, 498 U.S. at 495.
Finally, even assuming without deciding that the
Association’s notice and comment claim raises questions that
are “outside the MSPB’s expertise,” Elgin, 567 U.S. at 22, that
consideration does not outweigh the other two factors that
counsel in favor of precluding district court review.
We therefore conclude that the Association’s notice and
comment claim, as pleaded, is “of the type” Congress intended
to channel through the CSRA’s exclusive remedial regime.
Thunder Basin, 510 U.S. at 212. We do not foreclose the
possibility of procedural challenges to OPM rulemaking
related to FERS retirement benefits that would fall outside the
scope of the CSRA’s system of review. See, e.g., McNary, 498
U.S. at 491-97. But here, given the substantive relief requested
by the Association and its failure to identify any reason the
claimants it represents would be unable to attain meaningful
judicial review within the CSRA review framework, we deem
district court review of this third claim also foreclosed. See
Elgin, 567 U.S. at 16-23; Heckler, 466 U.S. at 614-15.

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B.
Without grappling with our more recent CSRA precedent,
the Association relies on our decision in NTEU v. Devine, 733
F.2d 114 (D.C. Cir. 1984), to argue that pre-enforcement,
systemic challenges to rules fall outside the CSRA’s review
framework. Devine involved a challenge to OPM policies
governing federal personnel reduction-in-force procedures,
performance management systems, and pay administration. Id.
at 115-16. The district court held that OPM’s regulations were
null and void due to a congressional resolution restricting
OPM’s authority to effectuate new personnel regulations. Id.
at 116. We affirmed the district court’s ruling. Id. at 117, 120-
21. As relevant here, in a footnote we rejected OPM’s
argument that the action could not be brought under the APA
“because provisions in the [CSRA] established the exclusive
means to review the decisions at issue.” See id. at 117 n.8. As
we explained:
It is one thing to say that when a statute provides a
detailed scheme of administrative protection for defined
employment rights, less significant employment rights
of the same sort are implicitly excluded and cannot form
the basis for relief directly through the courts. It is quite
different to suggest, as appellant does, that a detailed
scheme of administrative adjudication impliedly
precludes pre[-]enforcement judicial review of rules.
Id. (citation omitted). The Association contends that those two
sentences established an exception to CSRA preclusion of
district court review for APA claims seeking
“pre[-]enforcement judicial review of rules,” id., that applies to
the Association’s claims.
We are unpersuaded by the Association’s reliance on
Devine. As an initial matter, OPM questions the continued

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vitality of Devine in light of Thunder Basin and Elgin. Gov’t
Br. 29-30 (citing Thunder Basin, 510 U.S. at 202; Elgin, 567
U.S. at 12, 15). In Thunder Basin, the Supreme Court clarified
that Congress’s intent that an alternative statutory system
preclude district court review need only be “fairly discernible”
from the statute. 510 U.S. at 207 (quoting Block, 467 U.S. at
351). Applying that standard, it held that the comprehensive
statutory regime for reviewing agency enforcement actions set
forth in the Federal Mine Safety and Health Amendments Act
precluded district court review of a pre-enforcement challenge,
even though the Act was “facially silent with respect to pre-
enforcement claims.” Id. at 208; see id. at 207-16. In Elgin,
the Court followed Thunder Basin to conclude that the CSRA’s
text, structure, and purpose likewise “support[ed] implied
preclusion of district court jurisdiction [over challenges to
adverse personnel actions covered by the CSRA], at least as a
general matter,” and rejected the petitioners’ request to “carve
out an exception to CSRA exclusivity for facial or as-applied
constitutional challenges to federal statutes.” Elgin, 567 U.S.
at 12; see id. at 9-14. Those decisions call into question
Devine’s assumption that “a detailed scheme of administrative
adjudication,” like the CSRA’s, cannot “impliedly preclude[]
pre[-]enforcement judicial review of rules.” 733 F.2d at 117
n.8; see also Rydie v. Biden, No. 21-2359, 2022 WL 1153249,
at *6 (4th Cir. Apr. 19, 2022) (unpublished opinion); Payne v.
Biden, 602 F. Supp. 3d 147, 159 (D.D.C. 2022). But, in any
event, the Court need not and does not resolve whether footnote
eight of Devine remains good law, because Devine is
distinguishable from this case.
Devine involved a wholly pre-enforcement rulemaking
challenge; the Association’s action does not. In Devine, the
plaintiff challenged OPM’s new regulations before they came
into effect. 733 F.2d at 116. By contrast, the Association filed
suit nearly three years after OPM issued its 2016 Guidance. In

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fact, the Association’s own complaint alleges that OPM began
implementing the 2016 Guidance long before the Association
filed its suit in March 2019. It states that “[i]n or around July
2016, OPM began apportioning Annuity Supplements to
former spouses whenever a divorce court ordered division of
the FERS Basic Annuity benefit even where that order did not
expressly divide the Annuity Supplement,” and that “[a]lso, in
or around July 2016,” OPM “began deducting” any past
overpayments “in monthly installments from affected retirees’
annuity payments.” J.A. 13 (Complaint). Additionally, the
complaint requests that the court “[d]eclare invalid OPM’s
practice of apportioning the FERS Annuity Supplement absent
a court order expressly directing such apportionment” and
“[p]ermanently enjoin [OPM] from continuing to do so.” Id. at
16 (emphasis added). The complaint thus, by its own terms,
challenges the ongoing enforcement of OPM’s 2016 Guidance.
The Association does not dispute this point. See Reply Br.
7. Instead, it argues that “there are at least two categories of
individuals affected by the OPM rule for whom this challenge
is fully ‘pre-enforcement’ to the same extent as the rulemaking
challenge[] found permissible in Devine.” Id. (citing Devine,
733 F.2d at 115). According to the Association, those two
categories are: “divorced active employees whose
Supplements will be apportioned to former spouses upon their
retirement even though their divorce decrees do not expressly
order this division,” and “retirees who ceased receiving a
Supplement before 2016 but whose Basic Annuities were
apportioned to former spouses,” as to whom OPM “has not yet
attempted to retroactively apportion the[ir] Supplements.” Id.
at 7-8. Put simply, the Association argues that it brings a pre-
enforcement challenge because there are future and current
retirees as to whom OPM has not yet applied its 2016
Guidance. See id.

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That argument misses the mark. For starters, the
Association’s understanding of the term “pre-enforcement” is
overbroad. By the Association’s logic, every challenge to an
agency rule would qualify as a “pre-enforcement” challenge to
the extent that there are subject entities or individuals as to
whom the rule has yet to be applied. In any event, given
Devine’s uncertain vitality, we decline to extend any exception
it established for wholly pre-enforcement rulemaking
challenges—i.e., challenges to rules that have not yet been
applied to anyone—to an action that, on its face, alleges that
enforcement of the challenged rule is already ongoing. See J.A.
16 (Complaint). Thus, assuming without deciding that Devine
remains good law, it cannot salvage the Association’s claims.
* * *
For the foregoing reasons, we hold that the CSRA’s
system of review—which channels disputes about FERS
retirement benefits through an administrative process, subject
to direct review in the Federal Circuit—precludes district court
review of the Association’s claims. We therefore vacate the
orders of the district court and remand with instructions to
dismiss for lack of jurisdiction.
So ordered.

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