Notice & Comment

D.C. Circuit Review – Reviewed: Four Cases, Three Opinions, and Two Dissents

The D.C. Circuit cleared out some long-running cases this week, releasing two opinions from three cases argued in September and December 2020, plus a third opinion in a case from this term. The two older cases drew dissents from Judge Millett. If you’re keeping count, that’s four cases, three opinions, and two dissents, which encompassed two admin law cases and one civil procedure opinion resolving an open question in the Circuit. So let’s dive in!

The unanimous APA decision came in National Postal Policy Council v. Postal Regulatory Commission, No. 17-1276 (Nov. 12, 2021). Judge Rogers, joined by Judges Tatel and Randolph, first took up a statutory question raised by the petitioners seeking lower postage rates (whom the court termed “the Mailers”): whether the governing statute barred the Commission from authorizing rate increases greater than inflation. The statute directed the Commission to establish a ratemaking system serving nine objectives and meeting five requirements (including an inflation cap). Crucially, however, the Act permitted the Commission to either “revise” the system “from time to time,” 39 U.S.C. §3622(a), or, after a 10-year review, to “make such modification or adopt such alternative system. . . as necessary to achieve the objectives,” id. §3622(d)(3). The Mailers argued that the Commission’s alternative system violated the inflation cap. The court disagreed, based largely on Congress’s decision to let the Commission either modify/revise the system or adopt an “alternative.” To be distinct from mere revision, the court held that the “alternative” option must permit a new system that need not meet Congress’s initial requirements. The court also invoked the canon against surplusage, found legislative history reinforcing, and brushed aside a non-delegation-based constitutional avoidance argument, holding that the nine objectives provided an “intelligible principle.”

After rejecting the Mailers’ statutory challenge, the court turned to “diametrically opposed” arguments that the Commission’s rate limits were either arbitrarily too high (per the Mailers) or too low (per the Postal Service). I’ve ever researched this empirically, but I’ve often wondered if the common duel between parties as to whether the agency went too far or not far enough tends to bolster, rather than detract from, what appears to be the agency’s “Goldilocks” result. In any event, the court rejected both challenges, emphasizing two factors counseling particular deference: First, the court emphasized its limited review of an agency’s application of “multi-factor” tests (such as the Commission’s nine objectives). Second, the Commission’s decision depended on predictive economic judgments, a task “squarely within the ambit of the Commission’s expertise.” Whatever your interest in postal rates, the court’s straightforward analysis of fundamental administrative law principles makes for good reading (and a useful example for defending an agency’s decision-making).

The agency—or agencies, rather (EPA and the National Highway Traffic Safety Administration (NHTSA))—did not fare so well in the second administrative law case of the week, Truck Trailer Manufacturer’s Association v. EPA, No. 16-1430 (D.C. Cir. Nov. 12, 2021). This case was argued in September 2020 and then-Judge Garland was on the panel when it was submitted. Judge Katsas was randomly selected to replace Judge Garland, likely explaining the year plus between argument and decision. The case concerns a 2016 rule regarding fuel efficiency standards for heavy-duty trailers. As the opinion helpfully explains, trailers are the non-motorized parts of the “tractor-trailer” combination (aka “semitruck”), i.e., the part pulled by the motorized tractors. The rule, jointly adopted by EPA and NHTSA, required trailer technologies like side skirts that improved fuel efficiency. I say “required,” past tense, because the court vacated the challenged portions of the rule.

Why? I can do no better than the pithy explanation given by Judge Walker at the outset for vacating the EPA’s portion of the rule: The EPA “issued a rule for trailers pulled by tractors based on a statute enabling the EPA to regulate ‘motor vehicles.’ . . . Trailers, however, have no motor. They are therefore not ‘motor vehicles.’” In fact, the statute defined “motor vehicles” as “any self-propelled vehicle …,” and trailers are not self-propelled. This aspect of Judge Walker’s opinion was joined by both Judge Katsas and Judge Millett, with Judge Millett emphasizing that the panel agreed that EPA could have regulated the (motorized) tractors based on the trailers they pulled, seemingly leaving EPA plenty of pathways to achieve the same objective.

Judge Millett dissented, however, regarding the scope of the NHTSA’s statutory authority. The governing statute authorizes the NHTSA to set fuel efficiency standards for “commercial medium-duty or heavy-duty on-highway vehicles.” Unlike with the Clean Air Act, Congress did not define “vehicle.” Invoking the “most famous hypothetical in the common law world,” Frederick Schauer, A Critical Guide to Vehicles in the Park, 83 N.Y.U. L. Rev. 1109, 1109 (2008), Hart’s hypothetical about whether a statute prohibiting vehicles in a park applies to, say, a toy car, H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958), the panel majority ruled that context limited the term “vehicle” to things that use fuel (given the statute’s focus on fuel economy). Judge Millett’s dissent, on the other hand, reasoned that the absence of a statutory definition confirmed the express delegation to the agency to define the parameters of “vehicle,” and would have held that the NHTSA’s definition passed Chevron scrutiny because it was reasonable for a number of reasons. As Judge Millett noted, Hart’s hypothetical would hardly have puzzled law students for decades if the term “vehicle” were unambiguous. The contrasting opinions show how blurry the line can be between certainty derived from context and statutory ambiguity. (Having reached a different result for each agency, Judge Millett’s opinion also marches through a useful exegesis of administrative severability, a doctrinal framework urged by the parties, though Judge Millett found it an “ill fit” in this particular case.)

The last opinion of the week, Morrissey v. Mayorkas, No. 20-5024 (D.C. Cir. Nov. 9, 2021), resolved two cases about dismissals under Federal Rule of Procedure 4(m), when the United States has not properly been served. As a refresher, when suing a federal agency, you must serve the agency and the United States (by serving the Attorney General and the relevant U.S. Attorney’s office). Fed. R. Civ. P. 4(i). Per Rule 4(m), if you don’t do so within 90 days, the district court must dismiss the suit without prejudice or order service to be accomplished by a certain date. In both cases, former employees sought to sue their agencies for discrimination and properly served the agency but not the United States. The district court dismissed the cases after a reminder (in one case) and an extended deadline for correcting service (in the other). The statute of limitations had run, so the without-prejudice dismissals were effectively with prejudice. Plaintiffs argued that the district court abused its discretion by dismissing in those circumstances, and that a heightened standard of review should apply on appeal (as for dismissals with prejudice). These arguments relied on Fifth Circuit precedent; Judge Rao, joined by Judge Silberman, saw “no compelling reason . . .  to change the law of this Circuit by adopting a rule that has been on the books for 50 years in the Fifth Circuit without being adopted by any other” court of appeals. Applying abuse of discretion review, the panel majority found none.

Judge Millett, in dissent, would have adopted the Fifth Circuit’s rule, and found the majority’s ruling in conflict with not only the Fifth Circuit, but also with four other courts of appeals that require district courts to afford more weight to the case-ending consequence of nominally without-prejudice dismissals, as well as in tension with circuit law requiring “weighty reasons” before dismissal with prejudice for failure to effectuate service under other rules. More just conflicts, however, Judge Millett found fundamental principles at stake:

The result does seem harsh, especially given the (relative) complexity of serving a federal agency. For now, though, the Fifth Circuit continues to stand alone (though perhaps near four others) in applying with-prejudice rules to effectively-with-prejudice cases. And litigants in D.D.C. will do well to ensure that they timely serve the agency, the Attorney General, and the U.S. Attorney…

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