# 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

.,

A PPELLANTS

v.

M ERRICK B. G ARLAND

, A TTORNEY G ENERAL OF THE U NITED
S TATES

, ET AL

.,

A PPELLEES

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: S RINIVASAN

, Chief Judge , K ATSAS

, Circuit Judge

, and G INSBURG

, Senior Circuit Judge

.

Opinion for the Court filed by Circuit Judge K ATSAS

.

K

ATSAS

, Circuit Judge : The plaintiffs here seek to challenge eleven alleged polic ies 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 distri ct court permissibly declined to add new plaintiffs with pa rallel but untimely challenges.

I

A

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) sets forth expedited procedures to

remove certain inadmissible alie ns 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 al ien does either, an asylum

officer must interview the alie n 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 agr ees with the asylum of ficer, 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 es tablish 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 requi rements for seeking asylum. Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019) (Transit Ru le). 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 withholdi ng 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 governi ng IIRIRA provisions, but Congress has transferred this authority to th e Secretary of Homeland Security. 6 U.S.C. § 251(2). The relevant st atutory references to the Attorney General now denote the Director of the United States Citizenship and Immigration Services (USCIS), an ag ency 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 no tice-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 en joined 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 inte rviews under IIRIRA and the Transit Rule, as allegedly reflected in eleven sub-regulatory policies. The plaintiffs allege the following:

1. Aliens receive no mean ingful guidance on how

interviews are conducted.

2. Interviewers are improperly trained.

3. Interviewers make decisions before the interview is complete.

4. Interviewers do not produ ce an adequate record.

5. Interviews are adversarial.

6. Interviews occur wit hout adequate notice.

7. Interviews occur without access to counsel.

8. Interviewers do not apply th e 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 l ong, 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 tempor ary 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 plaintif fs filed two amended complaints adding some 129 new plaintiffs to th e case. They also filed five motions to join 65 additional plaintiffs. For its part, the government filed a motion to dism iss 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 lack ed jurisdiction to review all but one of the alleged policies, either because the policy was

unwritten or because the chal lenge to it was untimely. Id. at 209–20. As to the ninth challenge d policy, the court held that only 18 of the plaintiffs had bot h timely challenged the policy and been themselves subjected to it. The court thus dismissed the challenges made by all other pl aintiffs, 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 pl aintiffs. 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 “M atters not subject to judicial review,” IIRIRA states that “[n]otwith standing 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 sect ion 1225(b)(1) of this title.”

Id. § 1252(a)(2)(A)(iv). Subsection (e), the referenced exception, permits judicial revi ew of any “regulation, or a written policy directive, written policy guideline, or written procedure issued” unde r section 1225(b). Id. § 1252(e)(3)(A)(ii).

The bar on review of “procedures and policies adopted” to implement section 1225(b)(1) plai nly extends to the alleged policies at issue here, which govern credible-fear interviews in expedited-removal proceedings und er section 1225(b)(1). The plaintiffs object that if the policies are unwritten, they cannot

including some claims raised by th e 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 appr opriate 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 wr iting, 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 invo ke district-court decisions holding that the then-A cting 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 th at 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, a nd 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, guidelin es, and procedur es. But the subsection permits review of “such a regulation,” and that phrase references “any regulation issued to implement” section8

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 pres umption of reviewability. “Although we presume that agen cy action is judicially reviewable, that presumption, li ke 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 fore closed judicial review: In a section titled “Matters not subj ect to judicial review,” it provided that “no court shall ha ve jurisdiction to review” several broad categories of ag ency 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 th e 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 discusse d 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 se ction 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 governme nt submitted an affidavit from the Deputy Chief of the As ylum Division of USCIS, who averred that a search of agen cy records revealed no written directives related to these challenged policies. The plaintiffs’ competing evidence showed only that the polic ies had been regularly applied. The district court carefully reviewed this evidence and concluded that the pl aintiffs failed “to bridge the gap between instances of ce rtain 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 ch allenged 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 h as long been provided to aliens to explain the interview process, was last updated in May 2019. To make their challenge timely, the pl aintiffs contend that the form became outdated on July 16, 2019, when the Transit Rule took effect. But, as the district court explaine d, the claim thus asserts that the government should have updated th e form, and it is barred because the plaintiffs identify no written dir ective 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 s till amounts to a challenge to “policies adopted” to implement section 1225(b)(1). 8 U.S.C. § 1252(a)(2)(A)(iv). Likewi se, while the plaintiffs characterize their APA challenge as procedural rather than substantive, the bar plainly cove rs both kinds of challenges.

Finally, the plaintiffs contend that they were entitled to jurisdictional discovery. But th ey 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) perm its legal challenges to “a regulation, or a written policy directive, written policy guideline, or written procedure” to implement e xpedited-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 c ourt 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 untrain ed 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 conducti ng interviews pursuant to the agreement. On September 9, 2019, CBP agents began11

conducting interviews at the South Texas Family Residential Center, where the original pl aintiffs 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 be came effective, or July 15, when CBP agents began conducti ng interviews pursuant to it, for the September 16 challenge was untimely either way. The plaintiffs argue th at 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 jurisdic tional 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 stre ssing 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 th e 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” ag ency “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 ju risdiction 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 paragra ph of this subsection.” Id. § 1252(e)(1)(A). This formul ation—restrictin g the courts rather than conferring rights a nd duties on the pa rties—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 satis fying the requirements that

follow later in the subsection. Paragraph (3) of the subsection follows by authorizing judicial review “limited to” certain challenges to statutes, regula tions, 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 rele vant “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) (timeline ss is jurisdictional if the13

“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 name d in the original and first amended complaints. The distri ct court concluded that the parallel challenges raised by al l other plaintiffs or proposed plaintiffs were jurisdictiona lly 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 pl aintiffs proposed to be added to the case

even later. Id. at 222–23. 7

6 The government argues that th e plaintiffs’ challenge to the July 2019 agreement is moot becau se that agreement has expired and been replaced by a later, materia lly 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 cha llenges 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 challenge s, the plaintiffs invoke the rule that if many plaintiffs seek the same relief and at least one

of them has Article III standi ng, 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 deter mination of statutory jurisdiction as well as Article III standing, it is nonetheless inapplicable for two reasons. Firs t, 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 indivi dualized 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 wi nnowed away the jurisdictionally

time-barred claims of more than 150 plaintiffs.

The plaintiffs further cont end 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 amende d complaint “adding several individual plaintiffs” more than 60 days after the challenged expedited-removal policies ha d been first implemented. See 18 F. Supp. 2d at 46–47. The district court dismissed the claims of these plaintiffs as untimel y 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 addre ssed “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 substant ially for the reasons stated in the [district] court’ s thorough opinion.” Id. at 1357 (citing 18 F. Supp. 2d at 46–47). The plain tiffs 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 pl aintiff 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 correctly16

concluded that joinder would ha ve been futile because the disputed claims were untimely and there wa s 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 th at their second amended and proposed later complaints relate back to thei r 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.