The D.C. Circuit issued 8 opinions last week, ranging from the newsworthy to the less so. On the newsworthy side, there were two developments.

First, the court terminated the district court’s criminal contempt inquiry related to the government’s transfer of detainees to Salvadoran custody after the district court entered a TRO in a case challenging the decision to invoke the Alien Enemies Act to detain and deport suspected members of Tren de Aragua. The vote was 2-1. This was the second time the D.C. Circuit intervened in the district court proceedings on writ of mandamus, and this decision brings the proceeding to a close.

Second, the court vacated and remanded preliminary injunctions entered by the district court barring the Bureau of Prisons from transferring 18 transgender women inmates to men’s facilities. The district court had held that “transgender women face an unconstitutional risk of harm in men’s prisons.” Plaintiffs did not defend that categorical reasoning on appeal, instead justifying the injunction on the “narrower ground that the individual plaintiffs before the court all have characteristics that make them particularly vulnerable to violence, abuse, and psychiatric harm in men’s prisons.” The D.C. Circuit held, 2-1, that there was insufficient factfinding to sustain the narrower ground, and sent the case back for further proceedings. Senior Judge Randolph dissented. He would have ended the case on two procedural grounds. First, he contended that the inmate plaintiffs failed to exhaust administrative remedies. Second, he reasoned that the district court’s practice of issuing rolling preliminary injunctions did not comply with the Prison Litigation Reform Act’s requirement that injunctions expire within 90 days if not converted to final injunctions.

On the less headline-making side, the court issued decisions in two diversity cases, which is comparatively rare for the circuit. (The cases involved a contract dispute and a slip-and-fall incident). There was also a sealed case (John Doe v. SEC); as of this writing, no public opinion has been released.

As for admin law cases, there were two (or three, depending on how you count).

One case involved a man’s challenge to his inclusion on the No Fly List. More than the merits, the case illustrates the thicket that Congress has created that makes meaningful review of such decisions difficult, to say the least.

The Threat Screening Center oversees the Terrorist Watchlist. The TSA maintains the No Fly List and includes people from the Terrorist Watchlist. Review of TSA decisions is exclusive to the circuit court. The plaintiff attempted to challenge his inclusion on the Watchlist, and thus the No Fly List, in a single case. The case was split into two, with one proceeding in district court (everything but TSA actions) and one in circuit court (TSA actions).

The D.C. Circuit resolved the case in two decisions. In the first decision, the court affirmed the district court’s decision that it lacked jurisdiction to consider whether the plaintiff was appropriately included on the Watchlist. Plaintiff’s harm was not redressable because a favorable decision regarding the Watchlist would automatically remove the plaintiff from the No Fly List—something the district court lacked authority to do. In the second case, the court held that TSA’s inclusion of plaintiff on the No Fly List was not arbitrary because “[n]othing in [the plaintiff’s] submission rendered it unreasonable for the TSA Administrator to credit the factual analysis of the [Threat Screening] Center.” Given that the Threat Screening Center’s factual analyses are functionally unreviewable (as the first decision confirmed), I’m hard pressed to see how this scheme provides a meaningful opportunity for review, but that is by congressional design.

That brings us to the true admin law case of the week, Secretary of Labor v. K.C. Transport, Inc., No. 22-1071. It’s an interesting one for two reasons. First, the court resolved a justiciability question regarding intra-executive-branch disputes. Second, it’s a case where the agency fared better after Loper Bright than before.

For background: The statutory question was whether a maintenance facility for trucks that provide hauling services to mining companies (and other clients) counted as a “mine” such that it was subject to Mine Act safety regulations. (As you might imagine, the statutory definition of “mine” is broad, reaching extraction sites; appurtenant roads; and places, “facilities,” and things “used in, or to be used in, or resulting from” mining activity.) The trucking company contested safety citations before the Federal Mine Safety and Health Review Commission, which dismissed them on the ground that the trucking facility was not a “mine” because facilities and trucks count only if located at an extraction site or appurtenant roads. The Secretary of Labor disagreed and petitioned for review (which the Mine Act contemplates). The Secretary took the position that the facility and trucks qualified as mines because they are “used in” mining activity.

Before Loper Bright, the D.C. Circuit held the statute was ambiguous but that it could not defer to the Secretary’s interpretation under Chevron because the Secretary “failed to grapple with several textual clues undermining her position.” The D.C. Circuit therefore vacated and remanded for the Secretary to reconsider and better explain the interpretation.

Despite receiving some relief, the trucking company filed a cert petition, and the Supreme Court GVR’d the petition in light of Loper Bright. On remand (the decision issued last week) the D.C. Circuit held (2-1) that the Mine Act’s “mine” definition includes the trucking facility—finding unambiguous an interpretation it was not willing to extend Chevron deference to (without more explanation, anyway). The takeaway is that Loper Bright makes it harder if not impossible to get a remand for the agency’s failure to do its homework (on statutory questions)—and it may not always cut in pro-agency-challenger ways.

Before getting to the merits, the court answered a justiciability question: is it a separation-of-powers problem for the court to resolve an intra-executive-branch dispute, with the Secretary of Labor on one side and the Commission on the other? Short answer: no (also by 2-1 vote). The court noted that this was not a jurisdictional issue and thus forfeited, but because the trucking company “raised this dilatory argument at our request” (in a supplemental briefing order), the court would reach it. The majority made three main points in rejecting the argument.

First, it was not truly an intra-branch dispute. Although the Commission was nominally a respondent to the Secretary of Labor’s petition for review, it had disclaimed participation from the beginning. As an adjudicatory body, the Commission was not responsible for enforcement and had no stake in whether the trucking company’s citations were upheld or not. And the only executive branch party that was participating (the Secretary) argued there was no justiciability problem.

Second, constitutional history and early congressional acts authorized courts to resolve disputes with executive officers on both sides. Moreover, while cautioning against courts routinely intervening in interagency disputes, the Supreme Court had acknowledged that “Congress possesses the authority to designate an agency official as a ‘party aggrieved’” that has standing to challenge the action of another Executive official,” citing Dir., Off. of Workers’ Comp. Programs v. Newport News Shipbuilding & Dry Dock Co., 514 U.S. 122, 127-30 (1995). The Mine Act did so for the Secretary of Labor.

Finally, the court held that even if there was a problem, it could be resolved by removing the Commission as a party (a course the court has taken in at least one similar past case). So the court struck the Commission as a respondent in an abundance of caution, and went on to uphold the Secretary of Labor’s statutory interpretation.