Last week was a quiet one at the D.C. Circuit. No new opinions at all, but the Court corrected an opinion it issued in July. Hyland Hunt provides a thorough summary of the decision, Advanced Energy United v. FERC, here. Among other things, the Court held that petitioners’ rehearing petition was untimely. In doing so, the Court had, seemingly inadvertently, cut FERC’s time for acting on the underlying rate filing short by one day. The amended opinion corrects the calculation.
Counting days is perilous business in the law, and it can be especially difficult in administrative law cases, when parties must reconcile FRAP 26 with specialized statutes for judicial review of agency actions, multifarious procedures for recording agency decisions, and difficult questions about when agency actions become final. See my previous post for an example. In the absence of opinions from last week to review, and as penance for missing my own posting deadline by a couple of days, a quick look at the enterprise of calculating deadlines in administrative law:
For one, parties would do well to scrutinize the statute authorizing judicial review of agency action before turning to Rule 26 to calculate a filing deadline. Rule 26 directs legal mathematicians to “[e]xclude the day of the event that triggers the period.” But in Slinger Drainage v. EPA, Slinger Drainage missed its opportunity to appeal a Clean Water Act penalty because it followed Rule 26’s guidance. The statute providing for review of civil penalties required it to file a notice of appeal “within the 30-day period beginning on the date the civil penalty order is issued.” (Judge Williams disagreed.)
The D.C. Circuit will be more forgiving, however, when that agency misses its own deadline. In Brotherhood of Locomotive Engineers and Trainmen v. Fed. Railroad Admin., for example, the Administration passively approved two railroads’ decision to allow engineers and conductors employed by their Mexican affiliate to operate trains in the United States. But it failed to provide prompt public notice of that approval. The union had sixty days to petition for review, but in the absence of notice, did not act until nearly six months had elapsed. The Court held the petition timely because it was filed within sixty days (plus one weekend day and one holiday) of the union actually learning about the approval.
Finally, it pays to know your District of Columbia courts of appeals. In Young v. SEC, a petitioner narrowly missed the 60-day deadline to secure review of an adverse SEC order. Proceeding pro se, he mistakenly filed in the District of Columbia Court of Appeals, rather than the U.S. Court of Appeals for the District of Columbia Circuit and did not discover (or correct) his error until the next day—one day after his window closed. Although sympathetic to his plight, the Court lacked authority to toll the deadline.
I could go on, but this is probably enough of a hair-raising reminder that, in a profession where words matter, numbers matter, too.