Notice & Comment

D.C. Circuit Review – Reviewed: All Eyes on Chevron Edition

Well, the D.C. Circuit issued only one decision last week. And judging by the six pages of counsel listings, it was a big one. However, it wasn’t an admin law case, and it’s hard to focus on anything else when the Supreme Court just today granted review on this question: “Whether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

The Court granted review in Loper Bright Enterprises v. Raimondo, No. 22-451, a case arising from the D.C. Circuit (and thus fair game for this blog!) in which Justice Jackson is recused. I might have wanted a full nine Justices on hand to decide whether to overrule Chevron, but maybe that’s just me. The decision in Loper Bright was covered by D.C. Circuit Review here, and although we didn’t predict the cert petition, we did note the animated dispute regarding the scope of Chevron deference—i.e., whether and when statutory silence constitutes an implied delegation to the agency.

I am quite sure that this will not be the last (digital) ink spilled over Loper Bright, but for now I shall move on to last week’s D.C. Circuit decision, which affirmed the district court’s dismissal of the antitrust suit by 46 states, the District of Columbia, and Guam against Facebook (aka Meta) in State of New York v. Meta Platforms, Inc., No. 21-7078 (D.C. Cir. Apr. 27, 2023). (It’s quicker to say which 4 states didn’t sue Facebook; the ones that didn’t join are Alabama, Georgia, South Carolina and South Dakota).

Antitrust is not my area, but this decision is mostly (though not entirely) about laches and whether the states waited too long to sue. To which the Court (Judge Randolph writing) said “yes,” rejecting the states’ claim that as sovereigns they are exempt from the application of laches to suits for injunctive relief under § 16 of the Clayton Act. I will leave it to other commentators to parse the decision and its significance, while I highlight a tiny but useful part of its reasoning for those of us in the admin law trenches: It takes judicial notice of the contents of old web pages preserved on the Wayback Machine. Slip op. 29; see also Valve Corp. v. Ironburg Inventions Ltd., 8 F.4th 1364, 1374 (Fed. Cir. 2021). Whatever its significance for antitrust, this case is now top of my list of authorities for when agencies take down some sub-regulatory guidance or other and only all-knowing Internet Archive still contains the text …

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