Notice & Comment

D.C. Circuit Review – Immigration, the Safe Drinking Water Act, sovereign immunity, and military commissions

The D.C. Circuit issued four opinions last week.

1.  I.M. v. United States Customs and Border Protection should be of interest to immigration lawyers in particular.  The court (Rao, Walker, Ginsburg) held that an alien who has been removed from the United States cannot challenge that removal order in a habeas proceeding, because such proceedings are available only when a petitioner is in government “custody.”  Appellant was removed from the country after being denied asylum in expedited removal proceedings. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 provides that expedited removal orders cannot be challenged except in habeas corpus proceedings.  Appellant argued that he could bring a habeas petition even after he was removed.

Interpreting the federal habeas statute, see 28 U.S.C. § 2241, the panel reasoned that the petition is available only if the petitioner is “in custody at the time his petition is filed.”  Op. 7.  (In a section Judge Rao declined to join, the majority explained that habeas corpus has “for hundreds of years” been a mechanism to challenge detention.  See Op. 8-14).  The only remaining question for the panel was whether the appellant was “in custody,” and it said that he was not because he had been removed.  The court declined to adopt an “extreme circumstances” exception to the custody requirement.  Op. 15-16.  On this last question, footnote 10 cites three other circuits—the Ninth, Fifth, and Third—that have accepted some form of an extreme-circumstances exception, though only the Ninth “granted relief” in a “published opinion.”  Op. 16 n.10.   

Also of note, we previously flagged that this case raised the question whether an “Officer of the United States,” rather than an employee, must issue a removal order.  But the panel’s resolution of the jurisdictional issue obviated the need to resolve that question.  See Op. 4 n.2

2.  Natural Resources Defense Council v. Regan concerns the EPA’s ability to change its mind about regulating contaminants in drinking water.  Under the Safe Drinking Water Act, the EPA has broad discretion to investigate whether contaminants that may need to be regulated, but once it has determined that the contaminants meet certain statutory criteria, the agency “shall” select maximum levels for the contaminant within twenty-four months.  In 2011, the EPA determined that “perchlorate” met those statutory criteria, but then waited eight years to do anything about it.  Then, in 2019, the agency decided to withdraw its determination that perchlorate should be regulated. 

The question was whether that withdrawal was permitted by the statute, and that question required the panel to interpret the text of the Safe Drinking Water Act.  The majority (Pan [concurring in judgment], Sentelle, Tatel) concluded that the text of the Act precluded the agency from changing its mind after determining that a contaminant should be regulated; at that point, the only question for the agency is what the maximum contaminant levels should be.  Judge Pan argued that the agency had authority to withdraw its initial determination, but that its reasons for doing so were arbitrary and capricious.  Compared to Judge Pan’s resolution, the majority’s opinion will limit agency discretion going forward.  The bottom line is that, once the agency makes a determination to regulate a contaminant under the Act, it must proceed to set maximum levels for the contaminant.

3.  Greenbaum v. Islamic Republic of Iran is a straightforward sovereign immunity decision in which the court (Millet, Childs, Ginsburg) upheld the United States’ claim of sovereign immunity over oil cargo seized from the Islamic Republic of Iran.  The United States seized $100 million worth of Iranian oil, and appellants—who had previously obtained money judgments against Iran—sought writs of attachment.  The court first concluded that the United States could assert sovereign immunity in the attachment proceedings because it held a property interest in the oil.  Op. 4-5.  And it held that the Terrorism Risk Insurance Act of 2002 (TRIA) did not clearly abrogate that immunity when it stated that “notwithstanding any other provision of law” certain assets of a “terrorist party” “shall be subject to execution or attachment.” 

4.  Khadr v. United States is another Guantanamo Bay case arising under the Military Commissions Act. But the decision seems unlikely to have much impact outside that context.  The majority (Henderson, Wilkins [dissent], Randolph) avoids a series of complicated challenges to appellant’s conviction, holding simply that appellant waived his right to appellate review.  Judge Wilkins in dissent argued that the Court of Military Commission Review never entered a “final order” that the D.C. Circuit could review, but instead dismissed the CMCR appellant’s appeal because it was not appropriately referred from the convening authority.  Judge Wilkins would have dismissed the appeal for lack of jurisdiction. He would have allowed the operative effect of the waiver to be decided in the first instance by the CMCR.

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