Notice & Comment

D.C. Circuit Review – Reviewed: Last Week of July, in Brief

The D.C. Circuit issued ten opinions in the last week of July, so this will be a necessarily brief recap. (Eleven, if you count a concurring statement by Judge Silberman, stating his view that the availability of a remedy under the Federal Tort Claims Act is a special factor precluding a Bivens remedy in a new context).

Three of the opinions were in criminal cases, so I’ll leave them out, though one—which has been in the news, regarding a man convicted of involvement in the Benghazi attack—is worth a read for anyone interested in prosecutorial misconduct in closing arguments, the scope of the district court’s sentencing discretion, and the use of acquitted conduct in sentencing. I will also skip over a government contracts/admin law hybrid reviewing (and partly vacating) a decision by the FAA’s Office of Dispute Resolution for Acquisition related to a government contractor’s dispute about a construction contract.

That leaves seven admin law cases.

One of them is on an issue that has generated litigation across the country, stemming from the FDA’s en masse denial of authorization to sell flavored e-cigarettes or the associated liquid cartridges. Manufacturers have achieved mixed results, securing stays pending review in some circuits, but the Fifth Circuit recently ruled against them on the merits (over a dissent), and last week, the D.C. Circuit did, too, in Prohibition Juice Co. v. FDA, No. 21-1201 (D.C. Cir. July 26, 2022) (Pillard, J.). Without deciding whether to accord the FDA’s statutory interpretation any deference, the Court rejected a claim that the FDA lacked statutory authority to require manufacturers to show that “flavored e-liquids carry sufficiently greater benefits than non-flavored e-liquids.” Slip op. 18, 19-21. As for the FDA’s failure to review individual marketing plans—the aspect of the FDA’s action most criticized in other courts—the D.C. Circuit stated the manufacturers “raise serious arguments that the FDA erred,” and “its explanation for the non-review fell short,” but (like the Fifth Circuit), held the error was harmless. Slip op. 30. Judge Katsas concurred, noting that the opinion did not foreclose a finding of prejudicial error in other manufacturers’ cases.

A case that will matter to labor lawyers is the latest issuance in the long-running Browning-Ferris ping pong match between the D.C. Circuit and the (oft-changing) NLRB regarding the joint employer test. In this opinion, Sanitary Truck Drivers and Helpers Local 350 v. NLRB, No. 21-1093 (D.C. Cir. July 29, 2022) (Wilkins, J.), the Court vacated the Board’s 2020 order that had held it would be manifestly unjust to apply the Board’s 2015 joint employer test retroactively. The Court reasoned that the NLRB’s pre-2015 precedents were not so clearly different from the 2015 test as to make it unjust to apply the 2015 test retroactively. I am omitting plenty of detail about the various standards and decisions between 2015 and 2020, which I leave to the labor experts, but for general admin practitioners, the case is a useful exemplar of fairly rigorous scrutiny of agency reasoning.

In Brennan v. Dickson, No. 21-1087 (D.C. Cir. July 29, 2022) (Pillard, J.), the D.C. Circuit rejected a facial challenge to an FAA rule requiring drones to broadcast certain location and other data in flight (“Remote ID”). The case rejected a facial Fourth Amendment claim “that the Remote ID Rule requires drone operators to submit to warrantless intrusion on their constitutionally cognizable privacy interests,” slip op. 24, while leaving open the possibility of as-applied challenges. The court also rejected a number of procedural claims related to ex parte communications between the FAA and an advisory group, logical outgrowth, failure to respond to significant comments, and a statutory requirement that FAA consult with certain other organizations.

As for the remaining three cases, one addresses standing and two are paradigmatic examples of arbitrary and capricious review.

The standing case is Waterkeeper Alliance, Inc. v. Regan, No. 20-5174 (D.C. Cir. July 26, 2022). Chief Judge Srinivasan wrote for the Court, holding that plaintiff environmental organizations lacked standing to bring their claims against EPA’s approval of Oklahoma’s permitting program for coal ash disposal. Neither EPA nor Oklahoma had challenged standing; the district court had granted summary judgment to EPA on the merits. The opinion focuses primarily on redressability and the requirement that an injury be imminent.

In the last two cases, petitioners challenged agency action solely on arbitrary-and-capricious grounds. Neither was successful, for the oft-reiterated reason that “[w]hile the [agency’s] reasoning was underwhelming in certain respects, it gets across the arbitrary and capricious line,” to quote Advocates for Highway and Auto Safety v. Fed. Motor Carrier Safety Admin., No. 20-1370, at 30 (D.C. Cir. July 26, 2022) (Millett, J.). I would love to see an empirical study of how often the D.C. Circuit says something like “you’re not crazy, plaintiff; this isn’t the best we’ve ever seen, certainly could have done better, but tie goes to the runner,” versus “the agency’s reasoning is crystal clear and beyond reproach.” The highway safety case addressed hours-of-service rules for truckers—which collectively have a very long regulatory and litigation history (recounted in the opinion)—so perhaps the catalogue of faults (but still good enough!) is meant to encourage the agency to do better next time. The other case in this category is Citadel Securities LLC v. SEC, No. 20-1424 (D.C. Cir. July 29, 2022) (Walker, J.). The case (which is more complimentary of the agency’s reasoning) upholds the reasonableness of the SEC’s approval of a new type of order created by a stock exchange.

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