Notice & Comment

D.C. Circuit Review—Reviewed: And a Partridge in a Pear Tree

With Christmas season behind us, my children have found one way to keep the spirit alive through the long, cold winter nights that lie ahead: by continuing to demand The Twelve Days of Christmas as their bedtime song. You might think this would grow old, even for my toddler, but they keep the excitement up by changing the gifts on me every night. Perhaps because my brain is tired from struggling to fit “five mermaids riding on a mosasaur” into the rhythm of the carol, I am having some trouble fitting the D.C. Circuit’s two opinions* from last week into a theme. So you, too, get The Twelve Days of Christmas. It’s a stretch, but we could all use some mental limbering (and Christmas spirit) in these days of limited sun.

In Perioperative Services and Logistics, LLC v. U.S. Department of Veterans Affairs, the D.C. Circuit considered the use of ex parte declarations in Freedom of Information Act cases. The government bears the burden of demonstrating that a record is exempt from disclosure under FOIA, but it sometimes faces a dilemma: what if the evidence offered in support of exemption would itself reveal the information that the government seeks to withhold?

Perioperative Services and Logistics, LLC, sells medical devices to the VA. A third party accused Perioperative of selling counterfeit implants. When Perioperative filed a FOIA request to uncover the identity of the complainant (Perioperative suspected a competitor), the VA denied the request. Perioperative sued. In support of its motion for summary judgment, the VA filed an ex parte declaration to explain why the requested information was exempt. The district court reviewed the declaration in camera and granted summary judgment to the VA. 

Judge Tatel (joined by Judges Katsas and Pan**) boiled a dozen appellate issues down to two (I’ll have to try that with the dozen verses of my favorite bedtime song): did the district court properly consider the affidavit, and did the government carry its burden? The Court answered both questions “yes”—after it had also reviewed the declaration in camera. The case appears to have been a straightforward application of the Circuit’s FOIA precedents, but it highlights a difficult aspect of doing business with the government.

In AFL-CIO v. NLRB, the AFL-CIO challenged a rule promulgated by the National Labor Relations Board in 2019. While the APA generally requires an agency to provide notice and accept public comment before it promulgates a new rule, the Act makes an exception for procedural rules. The NLRB invoked the procedural rule exception when it promulgated its 2019 rule. The AFL-CIO argued, and then-District Judge Katanji Brown Jackson agreed, that the challenged portions of the rule were instead substantive.

A divided panel (Judge Pillard writing, joined by Chief Judge Srinivasan) agreed in part, holding that certain aspects of the rule are procedural, while others are substantive. Judge Rao dissented in part, concluding that all aspects of the rule were procedural. Both opinions weigh in on the perplexing but ubiquitous distinction between substance and procedure.

The opinions do not really disagree on the basic distinction, captured here in a paragraph from Judge Rao’s opinion:

But they disagree about how readily we should classify a rule as procedural. According to the majority, the procedural rule exception is narrow:

Even facially procedural rules fall on the substantive side of the line if the “trench[ ] on substantial private rights and interests.” In contrast, according to Judge Rao, “[i]f a rule is procedural on its face that will usually be the end of the matter unless the effects of the rule are sufficiently grave or create an extreme procedural hurdle.” According to Judge Rao, the majority quietly revives an old test that calls on “courts to somehow assess the magnitude of effects on regulated parties of a rule of agency procedure.” The exchange highlights that the difficulty of policing the substance-procedure line may become more or less difficult depending on whether one adopts a formal or functional definition.

The opinions are fairly long. There are also questions about whether the district court had jurisdiction over AFL-CIO’s challenge, and about whether the rule was arbitrary, capricious, or contrary to law. But the substance-procedure debate is the highlight. One might rejoice, “On the seventeenth day of January, the D.C. Circuit gave to me: two definitions of substance and procedure.” Doesn’t fit, you say? Tell that to my children.

* In addition to these two opinions, the Court issued an order denying en banc rehearing in a case we profiled last year, Guffey v. Mauskopf. Judge Henderson, who had dissented from the panel decision, also dissented from the en banc vote.

**This may be the first panel decision for Judge Pan, who was elevated in the fall. Another first: this is the first post on which I am benefitting from the assistance of my RA, Logan Moore. Thank you, Logan!

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