Notice & Comment

D.C. Circuit Review – Reviewed: Collateral Orders and the President’s Removal Power

During the week of June 2, the D.C. Circuit issued two administrative-law opinions and one interesting denial of a motion for an emergency stay.

In Secretary of Labor v. Industrial TurnAround Corporation, the court dismissed a petition from the Secretary of Labor for lack of jurisdiction. In August 2022, three miners were injured when a bin full of phosphate rock collapsed at a North Carolina mine. After the accident, the Mine Safety and Health Administration (MSHA) sent a notice of a proposed penalty to the Industrial TurnAround Corporation (ITAC), the independent contractor responsible for the bin’s structural safety. ITAC didn’t contest the penalty, so it became final 30 days later.

Shortly thereafter, ITAC filed a motion with the Federal Mine Safety and Health Review Commission, asking to reopen the penalty. ITAC explained that it had mistakenly failed to update its address of record, and therefore hadn’t received notice of the proposed penalty. The Commission granted ITAC’s motion and remanded the matter to an ALJ for further proceedings. The Secretary of Labor then petitioned the D.C. Circuit for review of that order, arguing that the Commission abused its discretion by reopening the penalty.

In an opinion by Judge Ginsburg, the court dismissed the petition. As the court explained, the Commission’s order wasn’t sufficiently important to warrant review under the collateral-order doctrine: the order merely delayed the payment of the ITAC’s penalty while the case proceeded. The court suggested that the Commission might ultimately lack statutory authority to reopen final penalties as it did here, but declined to address that question because the Secretary hadn’t raised it.

In Appalachian Voices v. FERC, the court denied several petitions challenging FERC’s decision to extend the deadline for Mountain Valley Pipeline (MVP) to build a natural-gas pipeline. FERC concluded that MVP had demonstrated good cause for the extension, and declined to revisit the agency’s prior analysis of market need and environmental impacts for the project. Eight environmental organizations sought review of FERC’s decision.

In an opinion by Judge Edwards, the court denied the petitions. The court held that MVP had good cause for the extension—namely, permitting and litigation delays. The court also held that FERC had adequately explained its decision against revisiting its prior findings on market need and environmental impacts. In particular, FERC had explained that the petitioners hadn’t identified any significant changes that undermined FERC’s prior findings. Judge Henderson concurred, arguing that courts had misinterpreted and misapplied the nation’s environmental laws in ways that too often allowed environmental groups to block valuable developments.

Finally, in Aviel v. Gor, the court denied an emergency stay in a case involving the President’s power to remove inferior officers. In February 2025, the President removed Sara Aviel from her position as the Chief Executive Officer of the Inter-American Foundation, a government corporation that funds development in the Caribbean and Latin America. Aviel sued the President and several other government officials, seeking injunctive relief. The district court granted a preliminary injunction that reinstated Aviel as CEO, and the government appealed and sought an emergency stay.

The court denied the stay. In a statement concurring in the order, Judge Katsas explained that the government was unlikely to succeed on the merits because the President likely lacked the power to remove Aviel. The governing statute authorized the Foundation’s Board of Directors to appoint the CEO, and was silent about removal. As a result, Judge Katsas said, the Board likely had the power of removal, not the President. Judge Rao disagreed: in her view, Article II authorized the President to remove inferior officers like Aviel, even if the Board also had removal authority. Judge Rao also argued that the district court had exceeded its equitable powers by enjoining the President and ordering Aviel’s reinstatement.