Lots of important arguments last week, including in the cases related to the removals of board members from the NLRB and the Merit Systems Protection Board and the CFPB. On the opinion side, the week was less headline-worthy, but still relevant for those interested in the interaction between administrative and judicial remedies.

The opinion in United States v. Facebook, No. 23-5280, addressed a stipulated order agreed by the parties and entered by the district court in 2020 to resolve a “long-running consumer-privacy dispute between Facebook and the Federal Trade Commission.” In lieu of specifying injunctive relief within the court order, Facebook agreed to reopening the FTC docket for entry of a new administrative order, which was attached to the stipulated order and later duly entered by the FTC (over some dissents). Three years later, due to findings of continued violations, the FTC proposed to modify the administrative order to impose new constraints, leveraging its statutory authority to modify any of its orders. Facebook sued to enjoin the administrative modification, arguing that the stipulated order precluded the FTC from imposing any additional restrictions.

The district court dismissed the suit for lack of jurisdiction, reasoning that the attached administrative order was not entered as part of the court judgment and that the administrative requirements were made binding only when the FTC separately entered an administrative order, leaving the FTC free to change them. The D.C. Circuit reversed, holding that the terms of the administrative order were effectively incorporated into the court order itself, making the administrative order subject to judicial enforcement but not administrative modification. Although the result turned on the specific text of the stipulated order—which was less than clear—the opinion may have some broader lessons for structuring any settlements or consent decrees that incorporate an administrative enforcement element.

One other opinion was issued last week, relating to the interplay between state water quality certification and FERC’s issuance of licenses for certain hydroelectric projects. In general terms, FERC will not issue or renew a license until the state either issues a water quality certification or a year has passed without a state decision. To give more time for potential licensees to work with states to resolve water quality issues, states can permit licensees to withdraw and re-submit their applications, thereby re-starting the one-year clock. Because existing hydroelectric plants can continue to operate pending license renewal, however, this creates a perverse incentive at renewal time. Specifically, applicants (with willing state partners) could perpetually withdraw and re-submit applications, postponing FERC’s licensing decision indefinitely and thereby avoiding any determination about their compliance with updated water quality standards. To address this issue, the D.C. Circuit held in a 2019 case called Hoopa Valley Tribe that if a state and applicant agree on a withdraw-and-resubmit scheme solely to delay certification, thereby usurping FERC’s licensing decision, the state’s certification authority is waived. In the case decided last week, Village of Morrisville v. FERC, No. 21-1042, an applicant that unilaterally withdrew and resubmitted its application twice (trying to avoid stringent conditions imposed by the state) sought to similarly treat the state certification authority as waived. The court rejected that plea, holding that the Hoopa Valley Tribe doctrine exists to cure “dalliance” or “delay” by state agencies and was inapplicable when there was no coordinated certification-delay scheme.