Notice & Comment

D.C. Circuit Review – Reviewed: And We’re Off!

The administrative law headline for the past week is that the Supreme Court has again invoked the Major Questions Doctrine to hold agency action unlawful—this time, President Biden’s student loan forgiveness program. In a separate opinion, Justice Barrett offers a thoughtful explication of that doctrine. In her view, it merely “emphasize[s] the importance of context when a court interprets a delegation to an administrative agency,” and thus provides “a tool for discerning—not departing from—the text’s most natural interpretation.” See more Notice & Comment commentary here.

Meanwhile, the D.C. Circuit continues to answer important questions of its own. A lot last week! Nine opinions—seven of which relate to administrative law. The busy summer opinion season is officially here.

In Severino v. Biden, the Court upheld Roger Severino’s removal from the Council that supervises the Administrative Conference of the United States (ACUS). Mr. Severino’s three-year term on the Council began shortly before President Trump left office, but President Biden removed him a few days later. Readers may recall that the panel ordered supplemental briefing on the question whether, if the governing statute restricts the President’s removal authority, the President has supervening constitutional authority to remove members of the Council. The opinion by Judge Millett (joined by Judges Wilkins and Walker) does not answer this question directly. Instead, it holds that because the Council exercises executive power, the constitutional default is that the President may remove its members at will. Nothing in the statute at issue here—not even the provision setting a three-year term for Council members—overrides this default.

In reaching this conclusion, the Court distinguished statutory schemes like the one at issue in Humphrey’s Executor, in which Congress signals its intent to limit removal by setting terms for officers vested with quasi-legislative or quasi-judicial powers. Judge Walker wrote separately to express his view that the Humphrey’s Executor exception should be construed very narrowly in the wake of the Supreme Court’s decision in Seila Law.

There’s also a standing discussion in the opinion: Even though his position was unpaid, Mr. Severino was undoubtedly injured by his removal. But could the Court redress that injury? Yes, the Court said: regardless of whether it could order the President to re-appoint Mr. Severino (a question it left open), it could provide relief by ordering other members of the Council and ACUS to treat Mr. Severino as though he had not been removed—for example, by including him in meetings and providing him access to facilities.

A final note about this case: Christopher Mills, counsel for Mr. Severino, clerked for then-Chief Judge Sentelle the same term I clerked for fellow D.C. Circuit Review—Reviewed author, Judge Griffith. He was a great colleague and is now a great advocate.

June was a good month in court for Secretary of the Interior Debra Haaland. After persuading the Supreme Court to reverse a judgment against her two weeks ago in Haaland v. Brakeen, she has done the same in the D.C. Circuit. In West Flagler Assoc. v. Haaland, the Court reversed the district court’s grant of summary judgment to brick-and-mortar casinos who challenged Secretary Haaland’s passive approval of Florida’s gaming compact with the Seminole Tribe. The casinos primarily argued that the compact violated the Indian Gaming Regulatory Act (IGRA) by authorizing gaming off Indian lands. Judge Wilkins (joined by Judges Henderson and Childs) rejected this argument. Although IGRA gives legal effect to compacts between Tribes and States only insofar as they authorize gaming on Indian lands, it does not prohibit Tribes and States from addressing matters beyond the Act’s scope in their compacts.

On the other hand, June was a bad month for Norfolk Southern. Last week. the Supreme Court held that a former employee could hale it into Pennsylvania court on force of Norfolk Southern’s registration to do business in that State.  In Norfolk Southern Railway Co. v. Surface Transportation Bd., Norfolk Southern petitioned for review of an order by the Surface Transportation Board (successor to the Interstate Commerce Commission) concerning the Belt Line. The Belt Line is a joint venture between Norfolk Southern and competitor CSX that provides switching services in the Hampton Roads area. Norfolk Southern (or its predecessor) acquired control of the Belt Line by acquiring and then merging with Norfolk and Western Railway Company. The Board held that the ICC’s approval of the merger (and related transactions) did not authorize Norfolk Southern to acquire control of the Belt Line, which means that Norfolk Southern cannot invoke the immunity from antitrust suits that the Board’s approval usually affords.  Judge Henderson (joined by Judges Wilkins and Walker) denied Norfolk Southern’s petition for review. The procedural history is a bit complex, giving rise to some interesting jurisdictional questions. But both the jurisdictional and merits analyses are particular to the Interstate Commerce Act, so I will move on to the next decision.

EPA’s record was mixed. In California v. EPA, the Court considered EPA’s Aircraft Rule, which aligns domestic greenhouse gas emissions rules for aircraft with international emissions standards. Several States and environmental groups challenged the Rule as insufficiently stringent: the standards follow, rather than force changes to, emissions-reducing technology. A notable feature of this decision is that it relies on Massachusetts v. EPA to hold that at least one petitioner had standing to press the challenge—not merely the general rule of standing that Massachusetts announced, but its specific holding that the specific facts in that case gave rise to standing: in both cases, Massachusetts argued that EPA’s failure adequately to regulate greenhouse gas emissions will lead to a loss of its coastal territory through global warming and rising sea levels. Jurisdiction confirmed, Judge Rao (joined by Judges Childs and Rogers) rejected the challenge on the merits.

In Board of County Commissioners of Weld County v. EPA, Judge Katsas (joined by Chief Judge Srinivasan and Judge Rogers), reviewed EPA’s order re-designating two counties—Weld County, CO, and El Paso County, TX—as areas that had not attained EPA’s 2015 ozone pollution standards. EPA had previously designated the counties as attainment areas but revisited its designations after the D.C. Circuit remanded them. This time, the Court held that EPA did not act arbitrarily and capriciously in redesignating Weld County as a non-attainment area.  But it found EPA’s redesignation of El Paso County to be impermissibly retroactive because EPA did not reset the deadline for attainment. That is, it keyed the deadline to the date of its prior attainment designation. That deadline had passed by the time EPA re-designated El Paso County as a non-attainment area. Query whether this is a bizarre side-effect of D.C. Circuit’s occasional practice—followed in its prior remand—of remanding without vacating the order it remanded.

An interesting counterpoint to the retroactivity analysis in Weld County is Judge Katsas’s opinion in ITServe Alliance, Inc. v. DHS. There, the Court upheld USCIS’s interpretation of its regulation to require employers making use of the H-1B visa program to file amended paperwork whenever they change a foreign worker’s place of employment. USCIS made this interpretation in the context of an adjudication but later issued a guidance document announcing that it would enforce that interpretation only prospectively: that is, employers who changed their employees’ place of employment before USCIS clarified its regulation would not be penalized for failing to file updated paperwork at the time, provided they promptly correct the omission. Cuing off of the prospective effect of the interpretation, the appellant trade association sued for a judgment declaring that the interpretation was a procedurally improper rulemaking. The district court disagreed and granted summary judgment to the agency. The Court affirmed. Judge Katsas (joined by Judges Pan and Tatel) provides a useful primer on the distinction between rulemaking and adjudication. He concludes that USCIS permissibly interpreted its regulation in the context of a genuine adjudication, and that the regulation, so interpreted, is within USCIS’s statutory authority.

Finally, in FlyersRights Education Fund v. FAA, the Court affirmed the district court’s holding that FAA could withhold documents about its recertification of the Boeing 737 MAX. FAA invoked FOIA Exemption 4, which protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” Judge Tatel (joined by Chief Judge Srinivasan and Judge Millett) rejected four arguments against FAA’s invocation of Exemption 4. I’ll focus on one: FAA withheld or redacted documents containing its own comments. Because FOIA protects the proprietary information only of persons outside the government, FlyersRights argued that FAA’s comments did not qualify for the exemption. The Court rejected this argument because Circuit precedent allows agencies to withhold their own work product when that work product incorporates a private party’s proprietary information, such that the work product’s disclosure would also disclose the proprietary information.

The last two opinions for the week do not directly implicate administrative law, but because one concerns the separation of powers, a brief word about it: In Massie v. Pelosi, a group of Representatives sued Speaker Pelosi, and others, for fining each of them $500 for entering the Hall of the House without a mask. The district court dismissed the suit under the Speech or Debate Clause, and the Court (Judge Rao, joined by Judges Childs and Tatel), affirmed. The Court reasoned that the adoption and execution of the House Resolution under which the Representatives were fined were legislative acts for which the Speech or Debate Clause confers immunity.

Happy Independence Day!

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