Notice & Comment

D.C. Circuit Review – Reviewed: All Quiet on the Admin Law Front

As we transition from the late summer flurry of opinions to the relative lull of September, this week’s opinions have slowed to a trickle, with very little of note in the “core” admin law space.

The decision that will likely have the most impact on other cases involves the False Claims Act: United States v. Honeywell International, Inc., No. 21-5179. In Honeywell, the D.C. Circuit (with Judge Rao writing) endorsed a pro tanto rule for applying settlement credit to a joint tortfeasor’s damages (i.e., dollar-for-dollar reduction). It’s worth a read as a rare example of federal common law decision-making, but I won’t belabor it here because our focus is, as always, admin law.

The only true admin law case is Gulf Restoration Network v. Haaland, No. 20-5179, a NEPA challenge to two oil and gas lease sales in the Gulf of Mexico. The court’s opinion is a straightforward application of arbitrary-and-capricious review to Interior’s Environmental Impact Statement. Judge Katsas, writing for the court, held that the EIS reasonably addressed most of the objections, save one: it assumed that environmental protection regulations would be adequately enforced despite a GAO report (raised repeatedly by commenters) that indicated enforcement was ineffective. To decide on remedy, the court applied the familiar Allied-Signal test and elected to remand without vacatur, because the error was correctible and vacatur would be disruptive.

In the admin-adjacent category, the D.C. Circuit dismissed a Guantanamo detainee’s mandamus petition for lack of jurisdiction. In Re Abd Al-Rahim Hussein Muhammed Al-Nashiri, No. 21-1208, involves a petitioner who has been charged with offenses to be tried by military commission. Petitioner sought to enjoin the government from offering any statements obtained by torture (for any pre-trial purpose, not just trial), along with related relief. The government had maintained that it could use statements obtained by torture for pre-trial purposes. At the D.C. Circuit, it switched position and assured the court it would not do so, that it had withdrawn any ex parte filings relying on such statements, and that it would not oppose Commission review to ensure that no other such statements were in the record. The D.C. Circuit (Sentelle, J.) therefore dismissed the mandamus petition as moot (rejecting petitioner’s argument that this was mere “voluntary cessation” on the government’s part), as well as for lack of ripeness and standing. If three threshold barriers weren’t enough, the court added that petitioner could not state a mandamus claim because direct appeal following final judgment is an available remedy.

For completeness: the final decision this week was in a § 1983 case, in which a split D.C. Circuit partly reversed the district court’s grant of summary judgment to D.C. on wrongful arrest claims (Judge Millett writing, joined by Judge Rao). Judge Walker would have affirmed the district court’s decision across the board.

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