Notice & Comment

D.C. Circuit Review – Reviewed: Fisheries and the ESA; six summer opinions

Many of the judges on the D.C. Circuit were busy last week with law clerk hiring.  The “hiring plan” allowed rising 3Ls to submit their applications at noon last Monday and allowed judges to contact them at noon on Tuesday.  For those interested, our own Aaron Nielson has evaluated the costs and benefits of the plan on this blog and in conversation with Judge Diane Wood

The D.C. Circuit nevertheless found time to issue six opinion last week.  Each was unanimous.

The most significant case was likely Maine Lobstermen’s Association v. National Marine Fisheries Service.  The case has a complicated procedural history, but factually it arises out of the National Marine Fisheries Service’s efforts to protect the North Atlantic Right Whale.  The primary agency action at issue was a biological opinion issued by the Service concluding that fishing operations threaten the survival of the Right Whale.*  The panel’s (Katsas, Rao, Ginsburg) key holding, after quite a few procedural and jurisdictional rulings, was that the Service cannot give the “benefit of the doubt” to a species, or rely on the “precautionary principle” to draw inferences in its favor when producing such an opinion.  Instead, the statute requires the agency to use “the best scientific and commercial data available” to determine whether certain actions are “not likely” to jeopardize the survival of a species.  Op. 3 (emphasis added); see also id. at 20-23.  The panel concluded that the agency’s biological opinion was arbitrary and capricious for essentially that reason.  Id. 23-30.  As noted, the procedural history is complicated, and I expect some iteration of the case will return to the court in the future.

The remaining cases were more straightforward.  Two decisions concerned timeliness.  First, in Robinson v. DHS Office of Inspector General, the panel (Henderson, Millet, Childs) concluded that (1) the statutory deadline to seek judicial review of certain final decisions of the Merit Systems Protection Board’s (MSPB) was not jurisdictional but that (2) appellant had not presented facts to warrant equitable tolling.  The panel went out of its way to resolve that first question, issuing an Irons footnote overruling a prior decision holding that the deadline was jurisdictional.  But the panel went on to reject appellant’s claim on the nonjurisdictional, threshold issue that equitable tolling was unwarranted.  The panel thus could have skipped the jurisdictional issue entirely, see Khadr v. United States (CADC 2023) (slip op., 9-10), but the panel must have determined that the value of clarifying the law here outweighed the (sometimes overstated) preference for judicial minimalism. 

Second, Perez v. Kipp DC Supporting Corporation (Pillard, Katsas, Randolph) concerned the res judicata effect of a dismissal without prejudice.  Plaintiff-appellant’s 2018 complaint had been dismissed without prejudice because the statute of limitations had run; her 2021 complaint raising the same claims was dismissed on the ground of res judicata.  The panel held that a dismissal without prejudice “does not operate as an adjudication upon the merits and thus does not have a res judicata effect.”  Op. 3.  Fair warning to defendants!  The panel also rejected the district court’s conclusion that the District of Columbia’s legislation extending the statute of limitations for appellant’s claims violated the separation of powers by altering a final judgment, and for the same basic reason:  the District of Columbia did not “revive finally adjudicated claims” by amending the limitations period because the complaint had been dismissed without prejudice.  Op. 6.

Peabody Midwest Mining, LLC v. Secretary of Labor is a classic administrative law decision.  The panel (Pillard, Katsas, Rao) denied a petition for review of an order of the Federal Mine Safety and Health Review Commission imposing civil penalties on a mine operator and one of its agents.  The mine operators continued to operate an “energized drill” despite high concentrations of methane gas, apparently highly explosive in certain concentrations, in violation of federal regulations promulgated under the Federal Mine Safety and Health Act.  See 30 U.S.C. § 801(g).  The panel rejected a series of challenges to the ALJ’s interpretation of the regulations and factual findings. 

And then there were a couple decisions from the D.C. Circuit’s labor law docket.  Bastani v. American Federation of Government Employees, AFL-CIO arose out of a dispute under the Labor-Management Reporting and Disclosure Act between certain officers of a local chapter of the American Federation of Government Employees, AFL-CIO, and the national organization, which imposed a trusteeship on the local union.  The panel (Rao, Childs, Rogers) affirmed the district court’s grant of summary judgment against the officers on their claims that the national organization violated their statutory rights of free speech.  Longmont United Hospital v. NLRB involved a straightforward election dispute under the NLRA, and the panel (Henderson, Katsas, Pan) denied the petition for review of the NLRB’s order and granted the cross-application for enforcement.

* Unfortunately there is no discussion of highly probative material on the Right Whale in Moby Dick.  The panel may have determined that Melville’s information is unverified or outdated, but it would not have been the first time that the great novel had been cited.  See  Muscarello v. United States, 524 U.S. 125, 129 (1998); Japan Whaling Association v. American Cetacean Society, 478 U.S. 221, 250 (1986) (Marshall, J., dissenting)).

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