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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 14-CV-752

                 BOARD OF TRUSTEES OF THE UNIVERSITY OF THE
                     DISTRICT OF COLUMBIA, APPELLANT,

                                        v.

                THE JOINT REVIEW COMMITTEE ON EDUCATION IN
                     RADIOLOGIC TECHNOLOGY, APPELLEE.

                         Appeal from the Superior Court
                           of the District of Columbia
                                 (CAB-3793-12)

                      (Hon. Michael L. Rankin, Trial Judge)

(Argued February 26, 2015                                 Decided May 21, 2015)

        Daniel D. Mauler, with whom Yoora Pak and Smruti Radkar were on the
brief, for appellant.

       Michael A. Montgomery, of the bar of the State of Virginia, pro hac vice, by
special leave of court, with whom Edward J. Longosz, II, and Sarah Shyr were on
the brief, for appellee.

      Before GLICKMAN and FISHER, Associate Judges, and STEADMAN, Senior
Judge.

      STEADMAN, Senior Judge: After offering courses in radiology for almost

forty years, the University of the District of Columbia (“UDC”) lost its

accreditation in that field by action of the Joint Review Committee on Education in
                                          2

Radiologic Technology (“JRCERT”). The issue in this appeal by UDC is whether,

as the trial court held, exclusive jurisdiction over its dispute with JRCERT is

vested in the federal courts. We hold that it is and therefore affirm the trial court’s

dismissal of UDC’s third-party complaint against JRCERT for lack of jurisdiction.



                                          I.



       JRCERT is the only agency recognized by the U.S. Department of

Education and the Council for Higher Education Excellence to accredit programs

in radiography, radiation therapy, magnetic resonance, and medical dosimetry.

Only students who graduate from a program while it is certified by JRCERT are

considered graduates of a JRCERT accredited program. Students who fail to

graduate from a JRCERT accredited program cannot sit for the national board

certification examination.



      JRCERT continuously accredited UDC’s Medical Radiography Program

(“the Program”) from 1971 to April 23, 2010. On that date, JRCERT’s Board of

Directors voted to involuntarily withdraw the Program’s accreditation, effective

April 23, 2010. UDC did not seek re-accreditation.
                                          3

      Two years later, on May 2, 2012, Ahmednur Fella, a student at UDC who

had graduated from the Program on May 8, 2010, filed a lawsuit against UDC

alleging breach of contract, fraud, and negligent misrepresentation arising from the

revocation of accreditation.     UDC then filed a third-party complaint against

JRCERT under Rule 14 of the Superior Court Rules of Civil Procedure, alleging a

wide variety of state law claims.1 The trial court granted JRCERT’s motion to

dismiss the third-party complaint on the ground that 20 U.S.C. § 1099b (f) (2012),

a provision of the Higher Education Act of 1965 (“HEA”), as amended, conferred

exclusive jurisdiction over the dispute in the federal courts.2 We turn to that issue.




      1
          These included breach of contract, breach of implied contract, tortious
interference with economic relationships, negligence, breach of fiduciary duty,
promissory estoppel, intentional misrepresentation, negligent representation,
contribution from JRCERT, and equitable indemnification from JRCERT.
      2
           In doing so, the trial court relied on a prior Superior Court opinion in
another suit by a UDC student in the Program. Berhanu Worku v. Board of Trs. of
the Univ. of the District of Columbia (“Worku”), No. 2013 CA 002822 B, Order
(D.C. Super. Ct. Nov. 7, 2013). UDC objects to the trial court’s reliance on the
prior court’s opinion without considering its subsequent arguments, but we review
judgments, not opinions. District Intown Props., Ltd. v. District of Columbia
Dep’t of Consumer & Regulatory Affairs, 680 A.2d 1373, 1377 n.5 (D.C. 1996).
Plaintiff Fella and UDC settled their dispute and the underlying case was
dismissed, leaving only the dispute over the third-party complaint. The issue of
exclusive jurisdiction vel non, however, remains relevant to several other similar
cases still pending in Superior Court.
                                          4

                                         II.



      The disputed provision relating to the issue of exclusive jurisdiction came

into being as part of the 1992 amendments to the Higher Education Act of 1965

and reads as follows (20 U.S.C. § 1099b (f)):


              Notwithstanding any other provision of law, any civil
              action brought by an institution of higher education
              seeking accreditation from, or accredited by, an
              accrediting agency or association recognized by the
              Secretary for the purpose of this subchapter and part C of
              subchapter I of chapter 34 of Title 42 and involving the
              denial, withdrawal, or termination of accreditation of the
              institution of higher education, shall be brought in the
              appropriate United States district court.


      We address the interpretation of this provision against the backdrop of the

principle that “state courts have inherent authority, and are thus presumptively

competent, to adjudicate claims arising under the laws of the United States.”

Tafflin v. Levitt, 493 U.S. 455, 458 (1990). “This deeply rooted presumption in

favor of concurrent state court jurisdiction is, of course, rebutted if Congress

affirmatively ousts the state courts of jurisdiction over a particular federal claim.”

Id. at 459.    Congress can oust a state court of concurrent jurisdiction either

explicitly or implicitly.   “[T]he presumption of concurrent jurisdiction can be

rebutted by an explicit statutory directive, by unmistakable implication from
                                         5

legislative history, or by a clear incompatibility between state-court jurisdiction

and federal interests.” Id. at 459-60 (quoting Gulf Offshore Co. v. Mobil Oil Corp.,

453 U.S. 473, 478 (1981)).3 Following the Supreme Court’s lead, we now proceed

to examine whether exclusive jurisdiction in the federal courts is found either by

“an explicit statutory directive” or by “unmistakable implication from legislative

history.” As will be shown, we believe both inquiries lead to the conclusion of

exclusivity.4



                                         A.



      We first examine the “explicit statutory directive.” On its face, it appears to

be an instruction in seemingly unequivocal terms. “Notwithstanding any other

provision of law,” a covered civil action “shall”—not “may”—be brought in the

appropriate United States District Court.     20 U.S.C. § 1099b (f).      Appellant,

however, points out that the statute does not employ the words “exclusively” or

“only” and draws our attention to federal cases that have interpreted somewhat

      3
          We proceed under the assumption, with which we see no reason to quarrel,
that for present purposes, the District of Columbia courts are to be treated as those
of a state.
      4
           We therefore need not consider the third possibility that may show
exclusive jurisdiction as a result of “a clear incompatibility between state-court
jurisdiction and federal interests.”
                                         6

comparable language as not to exclude state court jurisdiction. See, e.g., Tafflin,

supra, 493 U.S. at 461 (finding that the RICO statute did not confer exclusive

federal court jurisdiction: “Any person injured . . . may sue therefor in any

appropriate United States district court . . . .”); Yellow Freight Sys., Inc. v.

Donnelly, 494 U.S. 820, 823 (1990) (finding that Title VII of the Civil Rights Act

did not confer exclusive federal court jurisdiction: “[e]ach United States district

court . . . shall have jurisdiction of actions brought under this chapter.”). But the

statute before us does not simply say that a federal court has jurisdiction or that a

person injured may sue. On the contrary, it explicitly directs that a particular type

of action “shall” be brought in a specified federal court. Moreover, it emphasizes

that such is to be the case “notwithstanding any other provision of law.”



      Another canon of statutory interpretation is to read “individual words of a

statute . . . in the light of the statute taken as a whole.” District of Columbia v.

Beretta U.S.A. Corp., 940 A.2d 163, 171 (D.C. 2008) (internal quotation marks

omitted). “[W]here Congress includes particular language in one section of a

statute but omits it in another . . . , it is generally presumed that Congress acts

intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp.

v. United States, 508 U.S. 200, 208 (1993) (internal quotation marks omitted).
                                            7

      Congress, in two other provisions of the HEA, explicitly granted concurrent

jurisdiction to state and federal courts:


             In the performance of, and with respect to, the functions
             vested in the Secretary by this part, the Secretary--
             ...
             (5) may sue and be sued in any court of record of a State
             having general jurisdiction or in any district court of the
             United States, and such district courts shall have
             jurisdiction of civil actions arising under this part without
             regard to the amount in controversy, and any action
             instituted under this part without regard to the amount in
             controversy, and any action instituted under this section
             by or against the Secretary shall survive notwithstanding
             any change in the person occupying the office of the
             Secretary or any vacancy in such office . . . .


20 U.S.C. § 1066d, (5) (2012) (emphasis added).


             (a) General powers

             In the performance of, and with respect to, the functions,
             powers, and duties, vested in him by this part, the
             Secretary may--
             ...
             (2) sue and be sued in any court of record of a State
             having general jurisdiction or in any district court of the
             United States, and such district courts shall have
             jurisdiction of civil actions arising under this part without
             regard to the amount in controversy, and action instituted
             under this subsection by or against the Secretary shall
             survive notwithstanding any change in the person
             occupying the office of Secretary or any vacancy in that
             office; but no attachment, injunction, garnishment, or
             other similar process, mesne or final, shall be issued
             against the Secretary or property under the Secretary’s
                                          8

             control and nothing herein shall be construed to except
             litigation arising out of activities under this part from the
             application of sections 509, 517, 547, and 2679 of Title
             28 . . . .


20 U.S.C. § 1082 (a), (a)(2) (2012) (emphasis added).           Given that Congress

explicitly conferred concurrent jurisdiction in the two instances above, both

contained in the HEA, it is reasonable to conclude that, in the absence of such

language in § 1099b (f), Congress intended § 1099b (f) to confer exclusive

jurisdiction on the federal courts.



      Those cases closest to the one before us involve the interpretation of the

Resource Conservation and Recovery Act (“RCRA”), which states: “Any action

… shall be brought in the district court for the district in which the alleged

violation occurred or the alleged endangerment may occur.” 42 U.S.C. § 6972 (a)

(2012). The Sixth Circuit held that “the term ‘shall’ as it is used in the statute does

not affirmatively divest the state courts of their presumptive jurisdiction.” Davis v.

Sun Oil Co., 148 F.3d 606, 612 (6th Cir. 1998) (per curiam), cert. denied, 525 U.S.

1018 (1998). However, the Third and Eighth Circuits disagreed, finding that “shall

be brought is most naturally read as a mandate” and thus confers exclusive

jurisdiction on federal courts. Litgo N.J. Inc. v. Commissioner New Jersey Dep’t of

Envtl. Prot., 725 F.3d 369, 395 (3rd Cir. 2013) (internal quotation marks omitted);
                                          9

accord, Blue Legs v. United States Bureau of Indian Affairs, 867 F.2d 1094, 1098

(8th Cir. 1989). The HEA provision is even more emphatic, overriding “any other

provision of law.” We would follow the reasoning of the Third and Eighth Circuits

were we required to decide this appeal solely on the “explicit statutory directive

alone.” But we are not confined to that analysis, but may in addition examine the

legislative history of the statute, to which we now turn.5



                                          B.



      The jurisdictional provision that we are called upon to interpret was

contained in a lengthy 1992 enactment that included a number of amendments to

the Higher Education Act of 1965. The 1992 Amendments bill—titled “Higher

Education Amendments of 1992”—was first passed by the United States Senate on

February 21, 1992. 138 CONG. REC. D133-02 (daily ed. Feb. 21, 1992) (“Senate


      5
         UDC in its reply brief argued that “JRCERT offers no legislative history
of the HEA to establish that the jurisdictional grant to federal courts is exclusive,
nor does JRECERT [sic] argue that a clear incompatibility exists between state
court jurisdiction and federal interests . . . [.] Thus, JRCERT has waived any
argument under these two inquiries of Gulf Offshore Co.” We disagree. A party’s
conduct, whether by consent or waiver, cannot confer subject-matter jurisdiction
upon a court. See Chase v. Public Defender Serv., 956 A.2d 67, 75 (D.C. 2008)
(“Parties cannot waive subject matter jurisdiction by their conduct or confer it . . .
by consent, and the absence of such jurisdiction can be raised at any time.”).
Accordingly, these arguments are not waived.
                                         10

passed S. 1150, to reauthorize the Higher Education Act of 1965 . . . .”). This

version of the Higher Education Amendments of 1992 contained the relevant

jurisdictional provision that stated, “shall be brought in the appropriate United

States district court.” S. REP. NO. 102-204, at 361 (1991). About a month later, on

March 26, 1992, the United States House of Representatives passed a different

version of the Higher Education Amendments of 1992, which varied in a number

of respects from the Senate version. Among other things, it contained no provision

equivalent to the Senate’s jurisdictional provision. 138 CONG. REC. D344-01

(daily ed. Mar. 26, 1992) (“House passed H.R. 3553, to amend and extend the

Higher Education Act of 1965.”); see H.R. REP. NO. 102-447 (1992) (no reference

to relevant jurisdictional provision).



      Given that the U.S. Senate and the U.S. House of Representatives passed

non-identical bills, a conference committee was convened to resolve the various

differences.    The House Conference Report, produced by the conference

committee, set forth this resolution of the jurisdictional discrepancy: “The Senate

bill, but not the House bill, requires all civil action by institutions of higher

education against accreditation agencies be brought in federal court. The House

recedes.” H.R. REP. NO. 102-630, at 524-25 (1992) (Conf. Rep.). Both chambers

passed identical versions of the bill, as negotiated by the conference committee,
                                          11

which contained the Senate bill’s jurisdictional language. 138 CONG. REC. D863-

03 (daily ed. July 8, 1992) (“the House agreed to the conference report on S. 1150,

to reauthorize the Higher Education Act of 1965-clearing the measure for the

President.”); 138 CONG. REC. D818-02 (daily ed. June 30, 1992) (“Senate agreed to

the conference report on S. 1150, to reauthorize the Higher Education Act of

1965.”).



      The understanding of the conference committee set forth in the House

Report is unequivocal. The provision requires “all civil actions” of the described

type to be brought “in federal court.” While certain types of legislative history

may be of lesser weight, statements in committee reports, reconciling differences

in versions passed by the two chambers and producing a bill that is later adopted

by both chambers, can persuasively convey the intent of Congress. Chandler v.

Roudebush, 425 U.S. 840, 857-58 (1976) (“Since the . . . provisions of the Senate

bill were eventually adopted by the conference committee and passed by Congress,

the legislative history of that bill is the most helpful on the issue presented here.”);

Simpson v. United States, 435 U.S. 6, 17 (1978) (Rehnquist, J., dissenting) (“The

report of a joint conference committee of both Houses of Congress, for example, or

the report of a Senate or a House committee, is accorded a good deal more weight
                                          12

than the remarks even of the sponsor of a particular portion of a bill on the floor of

the chamber.”).



      The statement in the House Committee Report demonstrates that Congress,

in opting for the relevant jurisdictional provision as introduced in the Senate,

unmistakably intended to confer exclusive federal jurisdiction over an institution of

higher education’s civil action against an accreditation agency. It thus powerfully

confirms our interpretation of the statutory language itself.



      It is not surprising that, to our knowledge, every federal circuit court of

appeals panel that has addressed, even in passing, whether the HEA confers

exclusive jurisdiction on the federal courts has stated that the HEA does in fact

confer exclusive jurisdiction on the federal courts. See, e.g., Thomas M. Cooley

Law Sch. v. American Bar Ass’n, 459 F.3d 705, 712 (6th Cir. 2006) (“Federal

courts have exclusive jurisdiction over any action brought by a school challenging

an accreditation decision made by an organization approved by the Secretary (such

as the ABA).”); Foundation for Interior Design Educ. Research v. Savannah Coll.

of Art & Design, 244 F.3d 521, 528 (6th Cir. 2001) (“In 1992, Congress provided

that federal courts have exclusive jurisdiction over suits brought by schools

challenging accreditation decisions made by certain organizations approved by the
                                         13

Secretary of Education.”); Chicago Sch. of Automatic Transmissions, Inc. v.

Accreditation Alliance of Career Sch. & Colls., 44 F.3d 447, 449 (7th Cir. 1994)

(“Congress provided for exclusive federal jurisdiction of any suit by a school or

college protesting the denial or withdrawal of accreditation by an accrediting

agency or association approved by the Secretary of Education.”) (internal quotation

marks omitted).    To be sure, in these cases the question of concurrent state

jurisdiction was not squarely presented.        But these cases do demonstrate the

conclusion that would be readily drawn from a reading of the statutory provision,

which we have examined at greater length here.



                                         III.



      Even if the jurisdictional provision in general is exclusive, UDC argues that

it does not apply to the particular action here, which is not an original action but a

third-party claim filed as part of a larger action by an institution that no longer is

seeking accreditation. It relies on three separate arguments to support this position.



      First, UDC notes that at the time of the third-party claim, it was neither

accredited nor seeking accreditation from JRCERT. It relies on what it terms a

literal reading of § 1099b (f), which states, in part, “any civil action brought by an
                                         14

institution of higher education seeking accreditation from, or accredited by, an

accrediting agency or association . . . and involving the denial, withdrawal, or

termination of accreditation of the institution of higher education, shall be brought

in the appropriate United States district court” (emphasis added). But “acccredited

by” can fairly be read as including both currently and formerly accredited

institutions of higher education, and such a reading is far more consistent with the

apparent purpose of the provision. The text of § 1099b (f) references “involving

the . . . withdrawal . . . of accreditation” which indicates that the statute

contemplated formerly accredited institutions of higher education as falling within

its purview. The intent to encompass all disputes about accreditation within the

federal courts, including the withdrawal of accreditation, would seem oddly served

by excluding from its provisions a group highly likely to be adversely affected by

adverse action of the accrediting institution. Any lingering ambiguity is resolved

by reviewing the legislative history of the 1992 Amendments to the HEA discussed

above, which stated that Congress intended to “require[] all civil action by

institutions of higher education against accreditation agencies be brought in federal

court.” H.R. CONF. REP. NO. 102-630, at 524-25 (emphasis added).6


      6
         UDC argues that this interpretation of the statute will render superfluous
the statute’s language that the civil action “involv[es] the denial, withdrawal, or
termination of accreditation . . . .” 20 U.S.C. § 1099b (f). We find this argument
unpersuasive. UDC is still free to bring claims in state court that do not stem from
                                                                       (continued…)
                                          15

      Second, UDC argues that a third-party claim is not a “civil action brought”

by it. The HEA does not define “any civil action” so we must turn to other sources

for the answer to this question. Black’s Law Dictionary defines, in part, “action”

as follows:


              4. A civil or criminal judicial proceeding.

              An action has been defined to be an ordinary proceeding
              in a court of justice, by which one party prosecutes
              another party for the enforcement or protection of a right,
              the redress or prevention of a wrong, or the punishment
              of a public offense. But in some sense this definition is
              equally applicable to special proceedings.           More
              accurately, it is defined to be any judicial proceeding,
              which, if conducted to a determination, will result in a
              judgment or decree. The action is said to terminate at
              judgment.


BLACK’S LAW DICTIONARY (10th ed. 2014) (quoting 1 MORRIS M. ESTEE, ESTEE’S

PLEADINGS, PRACTICE, AND FORMS § 3, at 1 (Carter P. Pomeroy ed., 3rd ed. 1885)).


 (…continued)
the denial, withdrawal, or termination of its accreditation which could arise in any
number of circumstances where an institution of higher education has a
relationship with an accreditation agency outside of its accreditation authority. For
example, if an accreditation agency made a defamatory statement about an
institution of higher education, wholly unrelated to the institution’s accreditation,
the institution could likely pursue a cause of action in state court. While these civil
actions may occur less frequently than civil actions relating to an institution’s
accreditation, our interpretation of § 1099b (f) would not render this language
superfluous.
                                         16

UDC’s third-party claim, if successful, would entitle UDC to both damages and

equitable relief which would constitute “redress or prevention of a wrong.” The

third-party claim, moreover, can stand as an action in its own right, as

demonstrated by this very case where the prime action has been settled and

dismissed and only UDC’s third-party claim remains.7 Indeed, the claim against

the third party is commenced by serving a complaint and summons against the

third party in the same manner as if it were an original proceeding. Super. Ct. Civ.

R. 14. It is difficult to see why a distinction should be made between an original

action and a third-party claim for purposes of exclusive jurisdiction if Congress

intended, as it appears it did, to bring all complaints involving accreditation

brought by an institution against the accrediting agency into federal courts.8



      7
         Although the Notice of Appeal was not filed until over six months after
the trial court dismissed UDC’s third-party complaint, the dismissal was not
appealable as a final order until plaintiff Fella’s underlying complaint was resolved
on May 29, 2014. See Super. Ct. Civ. R. 54 (b).
      8
         UDC also makes much of the fact that its complaint involves purely state-
court causes of action. We fail to see the significance of this fact where the statute
covers all actions “involving” the withdrawal of accreditation, which UDC’s
causes of action most certainly do. In seeking a rationale for distinguishing
between direct complaints and third-party complaints, UDC suggests that the latter
should be excluded on grounds of “judicial efficiency” in having all aspects of
pending litigation tried in a single action. We fail to see why that consideration
should override a clear congressional intent that litigation “involving” accreditation
should be confined to federal courts. Moreover, if true judicial efficiency were
sought, third-party complaints should be mandatory, not optional. See 6 CHARLES
                                                                        (continued…)
                                         17

      Finally, UDC argues that since third parties have no right to remove a case

to federal court on diversity grounds, it would be equally inappropriate to dismiss a

third-party complaint due to a federal jurisdiction argument. In fact, courts appear

to be split regarding whether a third-party defendant can remove a case or part of a

case to federal court,9 but in any event, we are not persuaded that any assumed

inability to remove the case to federal court can confer subject-matter jurisdiction

upon our court system.      UDC bases its argument on the so-called well-pled

complaint rule, whereby the federal court only looks to the complaint to ascertain

whether the federal court can properly exercise either federal-question or diversity

jurisdiction over the complaint. If the plaintiff chose not to plead a cause of action

that would allow the federal court to exercise jurisdiction over the complaint, the

federal court must grant the motion to remand to state court. See 14C CHARLES

ALAN WRIGHT, ARTHUR R. MILLER, EDWARD H. COOPER & JOAN E. STEINMAN,

FEDERAL PRACTICE AND PROCEDURE §§ 3730-39 (4th ed. 2009). The policy behind


(…continued)
ALAN WRIGHT, ARTHUR R. MILLER, MARY KAY KANE, FEDERAL PRACTICE                   AND
PROCEDURE § 1446 & n.1 (3rd ed. 2010).
      9
         Lewis v. Windsor Door Co., a Div. of Ceco Corp., 926 F.2d 729, 733 (8th
Cir. 1991) (discussing federal circuit court of appeals split regarding when a third-
party defendant can remove a case to federal court); Monmouth-Ocean Collection
Serv., Inc. v. Klor, 46 F. Supp. 2d 385, 389 (D.N.J. 1999) (discussing cases that
permit and do not permit removal by a third-party defendant).
                                        18

this doctrine is that the plaintiff is the “master of the complaint” and, absent an

applicable exception, can choose to litigate in state court. See Caterpillar Inc. v.

Williams, 482 U.S. 386, 398-99 (1987). We fail to see how this principle is

applicable when nothing stands in the way of UDC filing its complaint directly in

federal court. Other courts have simply dismissed the third-party complaint for

lack of subject-matter jurisdiction given that the third-party complaint should have

been originally filed in federal court. See, e.g., Monmouth-Ocean Collection Serv.,

Inc., supra note 9, 46 F. Supp. 2d at 393 (“Rather than allow third-party removal in

that situation, the proper procedure . . . would be for the third-party defendant to

move to dismiss in state court.”); see Lewis, supra note 9, 926 F.2d at 730 n.2

(state court lacked jurisdiction). To hold otherwise would allow this court to hear

claims that Congress exclusively conferred on federal courts, and thus defeat the

purpose of exclusive jurisdiction.



                                     * * * * *
                                         19

      In sum, we conclude that the trial court properly ruled that the HEA applied

here where UDC, an institution of higher education, initiated a third-party

complaint, a type of civil action, against JRCERT, an accreditation agency. Its

dismissal of the third-party complaint is therefore



                                              Affirmed.
