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. § 1291.3 

3

 “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 clearstatement 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.