Notice & Comment

D.C. Circuit Review – Reviewed: An “Admin Law”-ish Week

The D.C. Circuit issued an opinion this week about legislative prayer. This prompts a question: Should I blog about it? I think the opinion is well written. I also think the subject is important. Yet the opinion hardly seems related to administrative law — and this blog is hosted by the Yale Journal on Regulation and the ABA Section of Administrative Law and Regulatory Practice. So perhaps I should just skip Barker v. Conroy. After all, my group of loyal readers (which is at least one person, including myself) comes to Notice & Comment to learn about the weekly workings of the administrative state.

On reflection, however, skipping Barker v. Conroy, would be a mistake. For you see, buried in the Court’s discussion of the Establishment Clause, “a former Christian minister turned atheist,” Town of Greece v. Galloway, and the like is a discussion that sure looks a lot like administrative law.

Consider this (lengthy) bit of analysis (per Judge Tatel, joined by Judges Edwards and Ginsburg):

Doesn’t that look a lot like Auer deference? As a refresher, under Auer, a court will defer to an agency’s reasonable interpretation of its own ambiguous regulations, even if the court would have reached a different conclusion absent the agency’s interpretation, and even if the new interpretation is announced in an informal way (such as an amicus brief) many years after the regulation was promulgated. Auer is controversial for at least three reasons. First, this form of deference — “Seminole Rock on steroids” — is not too well-grounded in what Congress enacted in 1946. Second, it also sometimes may produce ongoing bad consequences, thus lessening the force of stare decisis. For instance, reinterpreting a rule to create a new policy does not require the same notice-and-comment process necessary to actually promulgate a new rule. Because public participation in the regulatory process should create better policy, this is concerning. And third, Auer deference raises rule-of-law concerns because it allows an agency to apply a new meaning retroactively (which is why a robust fair notice doctrine is essential). No doubt, these are the sorts of issues that the Supreme Court is thinking about right now ….

That said, I don’t think those concerns apply in the congressional context. After all, (1) as a legal matter, Congress plainly has power to make and revise its own rules; (2) the nexus between Congress and the public should already be pretty tight; and (3) there is a difference between imposing liability or other negative consequences based on acts that appeared lawful at the time and merely prospectively not allowing someone “deliver a secular invocation” to Congress — which is surely a privilege and not a right. Even so, it is interesting to see Auer-like deference appear in a very different context.

This unexpected discussion in Barker v. Conroy got me thinking about whether “admin law”-ish ideas may appear in some of the Court’s other cases.

Well, the answer is “yes, duh,” for UPS Ground Freight, Inc. v. NLRB. This short opinion — per Judge Srinivasan, joined by Chief Judge Garland and Judge Randolph — is all about administrative law. The Court upheld the NLRB’s order because: “the Acting Regional Director reasonably found (and the Board ratified) that [the relevant] factors favored a single-facility bargaining unit, rather than a unit encompassing all of UPS Ground’s facilities”; “the Board reasonably determined that Cappetta was an ’employee’ under the Act and not a statutory ‘supervisor’ who would be excluded from the Act’s protections”; “[t]he Acting Regional Director … was required by regulation to schedule the pre-election hearing on the eighth day after the Union petition”; and “the Acting Regional Director did not abuse his discretion by declining to decide, before the election, whether two employees in disputed job classifications (safety instructors and dispatchers) were part of the bargaining unit. It is common practice to permit such employees to vote under challenge.” This is just a regular “admin law” opinion; there is nothing ish about it.

But what about In re Al-Nashir? Is there anything “admin law”-ish in an opinion about recusal obligations in the military justice context? Yes. In this case, Judge Tatel, joined by Judges Rogers and Griffith, issued a writ of mandamus to “vacate all orders issued by Judge Spath [the military judge who presided over Al-Nashiri’s case for four years] on or after November 19, 2015, and [to] further vacate all decisions issued by the CMCR reviewing such orders.” Judge Spath applied to become an immigration judge while presiding over the case. According to the panel, this application “cast an intolerable cloud of partiality over his subsequent judicial conduct.”* So where’s the admin law? Here:

That’s “admin law”-ish, right? Notably, moreover, the ALJ-hiring process is in flux. This is something that the Administrative Conference is working on right now (full disclosure, I’m chairing the committee process). Here is the state of play, as set out in the draft consultants’ report (prepared by Professors Jack Beermann and Jenn Mascott):

Finally, we come to United States v. Scantlebury. Judge Edwards, joined by Judges Pillard and Katsas, rejected the appeal of criminal defendants who wanted their indictments dismissed with prejudice rather than without prejudice. How can administrative law possibly be relevant to an alleged cocaine conspiracy coupled with an extradition fight, followed by voluntary dismissal? Well, the Court’s analysis is all about standing. The appellants “lack[ed] standing to appeal because they were not aggrieved by the dismissal without prejudice; the statute of limitations has run on the charges against Appellants, so the question regarding whether they face a threat of subsequent prosecution is moot; and they have asserted no viable grounds for redress of their alleged reputational injuries.”

In my book, any case that cites Lujan v. Defenders of Wildlife is at least an “admin law”-ish case.

* For what it is worth, it wouldn’t shock me if United States files a cert petition.

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