Notice & Comment

D.C. Circuit Review – Reviewed: disability law, a successful A&C challenge, and the reopening doctrine

The D.C. Circuit was busy again this week, issuing eight unanimous opinions.  The court is presumably eager to wrap up its opinions from last Term before the next one begins in September.  Nothing groundbreaking, but a few interesting issues:

Cox v. Kijakazi (Srinivasan, Millett, Childs):  This case concerns appellant’s application for Supplemental Security Income based on disability.  The interesting question here concerns the retroactive application of Social Security Administration regulations, known as “Listings,” that identify certain impairments that necessarily count as qualifying disabilities.  The claimant fit under the 2014 Listings (the year she filed her application) but not the 2017 Listings (which were applicable when the ALJ denied her claim for benefits).  The panel held that the application of the 2017 Listings were not impermissibly “retroactive” because it did not impair “vested rights;” did not “impose a new obligation or duty;” and did not “deny fair notice, disrupt reasonable reliance, or impair settled expectations.”  Op. 14-17.  The key point for the panel seems to have been that SSI is a “benefit,” and that the Listings are not even necessary to obtain that benefit because “the Listings are just a shortcut to proving disability.”  Op. 20-21.  Though appellant lost on the question of retroactivity, the panel did conclude that the Social Security Administration impermissibly discounted the evidence from appellant’s treating physician, and ordered a remand to the agency on that basis.  See Op. 21.

Sissel v. Wormuth (Srinivasan, Millett, Walker):  This case also concerned the denial of benefits—this time the Secretary of the Army’s determination of a former soldier’s “disability determination.”  Of particular note for future APA challenges to military benefits determinations, the panel rejectedthe Secretary’s argument review should be “unusually deferential” under the APA.  Op. 10.  The panel reasoned that the language in the relevant statute is not unusually deferential and that determinations about “disability ratings” would not “destabilize military command.”  Op. 12. The panel went on to hold that the disability rating was contrary to law, but that part of the decision seems fact-specific.

Cboe Futures Exchange, LLC v. SEC (Srinivasan, Wilkins, Rao):  Cboe is the rare case in which the agency’s action is deemed arbitrary and capricious.  The court held that the SEC failed to explain why SPIKES—an index that measures the volatility of the S&P 500 stock market index—should be regulated as a future rather than a security future (apparently it matters for the derivative’s tax treatment).  Of note in this case is the remedy chosen.  The court declined to “remand without vacatur.”  It also declined to just vacate.  Taking a middle path, the court vacated the SEC’s order but stayed its mandate for three months to prevent disruption in the financial markets.  That sort of remedy can be a sensible way to balance the need to remediate unlawful agency action without disrupting the industry, particularly when—as here—vacatur in the court occurs years after the order.  Cf. In re Core Communications, Inc., 531 F.3d 849, 862 (D.C. Cir. 2008) (Griffith, J., concurring).

Public Employees for Environmental Responsibility v. EPA (Henderson, Pan, Edwards):  The case is about an EPA rule defining “corrosive” waste under the Resource Conservation and Recovery Act (RCRA).  But the key analysis for future cases concerns the application of the “reopening doctrine” when Congress has time-barred certain challenges to rules.  Petitioner challenged the EPA’s rule four decades after the claim was time-barred by the relevant statute, so the claims were timely only if the EPA “reopened” the matter—which, under the court’s precedent, restarts the time to challenge the rule.  The key analysis (at 23-25) indicates that reopening is a high bar, and that the EPA here did not intend to reopen the proceedings but rather declined to reconsider its longstanding decision.

National Religious Broadcasters Noncommercial Music License Committee v. Copyright Royalty Board and Librarian of Congress (Millett, Wilkins, Pan):  This per curiam is the fifth in its series:  every five years the Copyright Royalty Board establishes the royalty rates for streaming songs over the internet.  The court here affirmed the order in its entirety.  This opinion will be a very important precedent in five years!

Al Bahlul v. United States (Katsas, Pan, Sentelle):  This case is the sixth in the series of Bahlul’s CADC challenges to his life sentence for his participation in the 9/11 attacks that was imposed by a military commission.  Here the court applied the law-of-the-case doctrine to reject his renewed Appointments Clause challenge to the convening authority of the commission that imposed the sentence. 

Green Development, LLC v. FERC (Henderson, Pillard, Katsas):  In a FERC opinion that I won’t pretend to understand, the Court denied petitions for review filed of a transmission service agreement by Green Development.  The surprise here is that Judge Henderson, the senior judge on the panel, kept this opinion for herself.

Ramos v. Garland (Srinivasan, Wilkins, Pan):  The court held [UNDER SEAL]. 

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