United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed February 13, 2024
No. 20-5203
CLETUS WOODROW BOHON, ET AL.,
APPELLANTS
v.
FEDERAL ENERGY REGULATORY COMMISSION, ET AL.,
APPELLEES
On Remand from the Supreme Court of the United States
Mia Yugo argued the cause for appellants. With her on the
briefs was John R. Thomas Jr.
Robert H. Solomon, Solicitor, Federal Energy Regulatory
Commission, argued the cause for appellee. With him on the
brief were Matthew R. Christiansen, General Counsel, and
Scott Ray Ediger, Attorney.
Jeremy C. Marwell argued the cause for Mountain Valley
Pipeline, LLC, appellee. On the brief were Brian D. O’Neill
and Wade W. Massie. Michael R. Pincus entered an
appearance.
Before: PILLARD, WILKINS and WALKER, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: Mountain Valley Pipeline, LLC
wants to transport natural gas through the Appalachian
Mountains. It sought permission from the Federal Energy
Regulatory Commission to build a pipeline that begins in West
Virginia and ends some 300 miles later in southern Virginia.
Over the objection of several landowners in the pipeline’s path,
FERC awarded Mountain Valley a certificate to build and
operate the pipeline.
Opponents of the pipeline sought a rehearing from FERC.
And when that failed, they petitioned for review of FERC’s
certificate in this court. Among other things, they argued that
Mountain Valley could not constitutionally use the certificate
to take private property in the path of the pipeline through
eminent domain. We denied their petition in Appalachian
Voices v. FERC, No. 17-1271, 2019 WL 847199, at *1-2 (D.C.
Cir. Feb. 19, 2019).
The plaintiffs in today’s case — including Cletus and
Beverly Bohon — did not join that petition or request an
agency rehearing. Instead, after we decided Appalachian
Voices, they sued FERC and Mountain Valley in federal district
court. Like the Appalachian Voices petitioners, the Bohons
raised constitutional challenges to the certificate’s
authorization for Mountain Valley to use eminent domain and
seize their land.
The district court dismissed the Bohons’ suit for lack of
jurisdiction. When the Bohons appealed the district court’s
decision, we affirmed. See Bohon v. FERC, 37 F.4th 663, 664-
65 (D.C. Cir. 2022). We held that § 717r(b) of the Natural Gas
Act explicitly denied a district court jurisdiction to review a
certificate after a federal court of appeals had considered a
3
petition challenging that certificate. Id. at 665. In other words,
the Bohons’ suit came too late.
Last year, the Supreme Court granted the Bohons’ petition
for a writ of certiorari, vacated our judgment, and remanded for
further consideration given the intervening decision in Axon
Enterprise, Inc. v. FTC, 598 U.S. 175 (2023). See Bohon v.
FERC, 143 S. Ct. 1779 (Apr. 24, 2023) (mem.). We then
ordered supplemental briefing about Axon’s effects on our
earlier judgment.
After a careful review of Axon and the parties’ briefs, we
again conclude that the Natural Gas Act explicitly strips district
courts of jurisdiction to review a FERC certificate after a court
of appeals receives the record in a suit challenging that
certificate. We therefore reinstate our previous judgment
affirming the district court. See, e.g., Oguaju v. United States,
378 F.3d 1115, 1116-17 (D.C. Cir. 2004).1
* * *
We begin with the text of the Natural Gas
Act — specifically, 15 U.S.C. § 717r(b). It says that a party
challenging a FERC order must first seek a rehearing and may
1
Additionally, we sought briefing on the recently enacted Fiscal
Responsibility Act. See Fiscal Responsibility Act of 2023, Pub. L.
No. 118-5, § 324, 137 Stat. 10, 47-48. FERC and Mountain Valley
argued that the Act moots this case and strips all federal courts of
jurisdiction to review Mountain Valley’s certificate. See id. at
§ 324(c)(1), (e)(1), 137 Stat. at 47-48. But we need not consider that
law’s effects (or constitutionality) because we can decide
jurisdictional questions in any order, and we affirm the district
court’s conclusion that it lacked jurisdiction due to the Natural Gas
Act. See United States v. Johnson, 254 F.3d 279, 287 n.11 (D.C. Cir.
2001).
4
then petition a court of appeals for review. That “court shall
have jurisdiction . . . to affirm, modify, or set aside such order
in whole or in part.” 15 U.S.C. § 717r(b). Crucially for our
purposes, “upon the filing of the record with” the court of
appeals, that court’s jurisdiction over the challenged order
“shall be exclusive.” Id. (emphasis added). And subject only
to Supreme Court review, that court’s decisions are “final.” Id.
Put differently, district courts are explicitly stripped of
their jurisdiction to review a FERC order once the record in a
petition challenging that order is filed in a court of appeals. Cf.
Bowles v. Russell, 551 U.S. 205, 212 (2007) (“Within
constitutional bounds, Congress decides what cases the federal
courts have jurisdiction to consider.”).
That is what happened here. The record in Appalachian
Voices was filed with our court in 2018. The petitioners there
challenged the constitutionality of the FERC certificate
injuring the Bohons. In 2020, the Bohons sued, invoking
constitutional arguments about the same certificate. But
according to 15 U.S.C. § 717r(b), district court jurisdiction to
hear challenges to the certificate ended once the record in
Appalachian Voices had been filed with our court, even though
the Bohons were not a party in that earlier case.
The district court was correct to conclude that it lacked
jurisdiction. Given the explicit text of the Natural Gas Act, the
district court had been divested of jurisdiction for almost two
years by the time the Bohons sued to challenge the certificate.
15 U.S.C. § 717r(b).
* * *
In Axon Enterprise, Inc. v. FTC, the Supreme Court
considered a set of three factors that it first articulated in
5
Thunder Basin Coal Co. v. Reich to determine when a statutory
scheme implicitly strips a district court of jurisdiction. See 598
U.S. 175, 185-86 (2023) (citing Thunder Basin Coal Co. v.
Reich, 510 U.S. 200, 207-13 (1994)). After applying the
factors, Axon held that there was no implicit jurisdiction
stripping of the parties’ claims. Id. at 195-96.
The Bohons point to superficial similarities between the
constitutional challenges to administrative proceedings in their
case and in Axon. For example, like the review schemes in
Axon, the Natural Gas Act provides for direct review by a court
of appeals of some final agency orders. See 15 U.S.C. § 78y(a)
(Securities Exchange Act); 15 U.S.C. § 45(c)-(d) (Federal
Trade Commission Act); 15 U.S.C. § 717r(b) (Natural Gas
Act). And like the Bohons, the parties in Axon raised structural
constitutional challenges in district court. See Axon, 598 U.S.
at 181-82.
But there is one unavoidable and critical difference: Bohon
involves explicit jurisdiction stripping and Axon did not.
That’s because the Axon plaintiffs sued before there was an
agency order to challenge. And at that point in the
administrative process, the relevant statutes were silent about
the district court’s jurisdiction. See id. In contrast, the Bohons
sued after there was an agency order to challenge — indeed,
after the agency order had already been challenged. The
relevant statute was anything but silent by then. It expressly
says our jurisdiction over the certificate injuring the Bohons is
“exclusive.”2 15 U.S.C. § 717r(b).
2
As we noted in our previous opinion, “the Bohons asked the district
court to declare . . . that all past certificates (including Mountain
Valley’s) are void. They also sought an injunction that would
prevent FERC from issuing any certificates in the future and would
prevent certificate holders like Mountain Valley from exercising
6
To illustrate how dissimilar this case is from Thunder
Basin and Axon, consider that its outcome would not change
even if Justice Gorsuch’s Axon concurrence controlled. He
called Thunder Basin’s multi-factor balancing approach “sheer
incoherence” and would have overruled it entirely. Axon, 598
U.S. at 205 (Gorsuch, J., concurring in judgment). But he also
said that under the statutes at issue in Axon, a district court lacks
jurisdiction after an administrative record reaches a court of
appeals. Id. at 211 (Gorsuch, J., concurring in judgment). That
principle would require us to again do what we did before
Axon — affirm the district court’s dismissal of this suit.
* * *
To sum up, Axon clarified how courts should apply
Thunder Basin’s three factors to assess if a statute implicitly
strips jurisdiction over a particular claim. But the outcome of
today’s case does not depend on statutory implications,
Thunder Basin’s multi-factor test, or Axon’s application of
those factors. Instead, this case is controlled by the text of the
Natural Gas Act, where Congress explicitly exercised its
constitutional power to define the jurisdiction of federal courts.
See Bowles, 551 U.S. at 212. Nothing in Axon requires us to
ignore that text or allows us to displace it.
their delegated eminent-domain authority.” Bohon, 37 F.4th at 664-
65. But the Bohons cannot challenge the constitutionality of all past
(and future) certificates without jurisdiction to challenge the one
actually or imminently injuring them — here, Mountain Valley’s
certificate. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560,
573-74 (1992). And as explained above, their challenge to that
certificate was beyond the jurisdiction of the district court.
7
We therefore incorporate by reference the reasoning of our
earlier Bohon opinion and reinstate our judgment affirming the
district court’s decision to dismiss this suit.
So ordered.