Notice & Comment

D.C. Circuit Review – Reviewed: Delay Rules

The D.C. Circuit decided one administrative law appeal last week.* In American Forest Resource Council v. Williams, AFRC challenged two rules postponing the effective date of a U.S. Fish and Wildlife Service rule that would have reduced the amount of land designated as critical habitat for an endangered species of spotted owl. The Service published the habitat rule during the final days of the Trump Administration. The so-called “delay rules” were intended to give the incoming Biden Administration time to review and perhaps withdraw it.

The decision is the latest in a line of cases about the substantive and procedural doctrines that contribute to “sweeping policy changes from one administration to the next.” Previously, this blog has covered decisions about when an agency action becomes final and thus not subject to withdrawal without an independent rulemaking. Here, the Service seemed to accept that its delay rules were subject to Section 553, but it invoked Section 553(a)(b)(B) to dispense with notice and comment, citing litigation risk and substantive problems with the habitat rule. AFRC argued that the Service’s reasons did not constitute “good cause” to dispense with notice and comment.  While AFRC’s challenge was pending in the district court, however, the delay rules expired. The Service issued a final rule withdrawing the Trump Administration habitat rule and replacing it with a new one that dedesignates significantly less land. The district court dismissed AFRC’s challenge as moot.

The D.C. Circuit affirmed. Judge Ginsburg (joined by Chief Judge Srinivasan and Judge Walker), reasoned that invalidating the expired delay rules would not provide plaintiffs with any effectual relief. The panel also declined to apply the “capable of repetition yet evading review” doctrine. It presumed that “agency actions of less than two years’ duration cannot be fully litigated prior to cessation or expiration,” but it concluded that AFRC had not carried its burden to show that Service delay rules typically expire within two years. This would seem to leave the door open for others aggrieved by delay rules to provide evidence that delay rules, in fact, typically expire within two years. But those more empirically minded litigants would also have to persuade the panel that they are likely to be subject to a delay rule in the future.

* The D.C. Circuit issued three other decisions last week:

  • In Borochov v. Islamic Public of Iran, it held that the FSIA’s terrorism exception for extrajudicial killings—which grants jurisdiction over actions “in which money damages are sought against a foreign state for personal injury or death that was caused by an act of . . . extrajudicial killing . . . or the provision of material support or resources for such an act”—does not extend to claims arising from a terrorist attack in which only the assailant dies. Plaintiffs in this case sued Iran and Syria for injuries they suffered when a member of Hamas rammed his car into a crowd at a bus stop in Jerusalem.
  • In John Doe 1 v. Apple, affirmed the dismissal for failure to state a claim of a suit under the Trafficking Victims Protection Reauthorization Act of 2008. The plaintiffs were former cobalt miners injured in mining accidents in the Democratic Republic of Congo. They had sued Apple and four other technology companies for acquiring cobalt mined under conditions that constitute forced labor. The court concluded that “[p]urchasing an unspecified amount of cobalt through the global supply chain is not ‘participation in a venture’ within the meaning of the TVPRA.”
  • And in United States v. Calloway, it affirmed an above-guidelines sentence for a man who pleaded guilty to several firearms offenses.

Many thanks to my research assistant, Hope Adamson, for her assistance with this, her first post.

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