Last week, the D.C. Circuit adopted an interesting remedy in a notice-and-comment case; dealt with an analogy between administrative proceedings and judicial disciplinary proceedings; and addressed the standards for scientific studies in an arbitrary-and-capricious case. It also issued an order staying an injunction against the removal of two members of the National Credit Union Administration. And it released four other opinions and orders in administrative law cases.

Notice and Comment, and Remedy

As required on this blog, we’ll begin with City of Billings v. TSA, in which the court held that TSA was required to follow notice and comment procedures. TSA’s rule, known as the National Amendment, regulated threats posed by aviation workers through screening. The agency permitted only airport operators to comment. The D.C. Circuit held that TSA was required to allow the general public to comment as well.

The court first reasoned that the National Amendment is a legislative rule because it imposes new, legally binding screening obligations subject to civil enforcement. The court rejected TSA’s argument that notice and comment would be pointless because the agency would not disclose much information for security reasons.

The D.C. Circuit then adopted an unusual remedy. Because of the “security risks that might come about in the absence of the rule,” the D.C. Circuit did not immediately vacate the rule. But it also did not adopt the contested remedy of remand without vacatur. Instead, it withheld the mandate until TSA adopted a new final rule or informed the court that no rule was needed.

Axon and Judicial Discipline

In Newman v. Moore, the D.C. Circuit rejected Judge Pauline Newman’s challenge to her ongoing (and renewable) suspension by the Federal Circuit Judicial Council. The court held that circuit precedent barred Judge Newman’s as-applied challenge to her suspension. Of note for administrative law enthusiasts, the court rejected Judge Newman’s reliance on Axon Enterprise, Inc. v. FTC for two reasons. One of them was that the agencies in Axon were “comparatively inexpert . . . in evaluating constitutional claims,” but the Judicial Council and the Judicial Conference consist of Article III judges.

At the end of its opinion, the panel (Judge Garcia, joined by Judges Millett and Pillard) expressed some reservations about the “seeming absence of a judicial forum to address Newman’s as-applied constitutional claims.” Of course, this case is just one example of the harm from limiting plaintiffs’ ability to bypass administrative proceedings, which I have written about elsewhere. It will be interesting to see whether the D.C. Circuit reconsiders its precedent en banc. 

Scientific Studies

In New Mexico Cattle Growers’ Association v. U.S. Fish and Wildlife Service, the D.C. Circuit concluded that the agency did not act arbitrarily and capriciously by relying on “studies the results of which were affected by the researchers’ data selection and study design.” The agency had rejected the plaintiff’s petition to delist an endangered subspecies, and the plaintiff objected to the agency’s preferred studies. The court explained that “the fact that study results are influenced by discretionary decisions regarding data inputs and study design does not shield researchers’ conclusions from scrutiny or invite agencies to baselessly rely on shoddy studies.” “Rather,” the court continued, “the peer review process and the discipline provided by competing research studies guard against cherry-picking or poor design by forcing scientists to identify, explain, and submit for public scrutiny the discretionary choices that are inevitable in research design.” In the court’s view, because the agency reasonably explained its choice among studies, it satisfied the requirements of the APA.

Removal of Independent Agency Members

In Harper v. Bessent, a special panel granted a stay pending appeal to the government. The district court had enjoined the removal of plaintiffs, two members of the National Credit Union Administration. In an unreasoned order, the panel stayed the injunction and ordered expedited merits briefing and argument.

This is one of several challenges to the removal of members of independent agencies. On the emergency docket, the Supreme Court has recently indicated a willingness to overrule Humphrey’s Executor (at least in part). And at least on its own emergency docket, the D.C. Circuit seems to be taking its cue from those recent orders.

Other Opinions and Orders

In Battle Creek Health System v. Kennedy, the D.C. Circuit held that a group of hospitals could not challenge adjustments to their Medicare reimbursements until they knew the final amount of those adjustments. The statute permits the Provider Reimbursement Review Board to exercise jurisdiction over their challenge after a “final determination of the Secretary [of Health and Human Services] as to the amount of the payment.” The court distinguished the retrospective adjustment here from certain prospective calculations that may be challenged earlier in the year.

In Hill v. DOI, the D.C. Circuit affirmed the dismissal of a complaint challenging the implementation of a water-rights compact. Among other things, the plaintiffs argued that the chairman of the Crow Tribe lacked authority, as a matter of tribal law, to agree to extend the implementation deadline. The panel held that it was “entirely reasonable” for the Secretary of the Interior to conclude the Tribal Chairman had that power. The plaintiffs also argued that the Secretary’s action constituted an unconstitutional taking. The panel held that the plaintiffs waived their claim for monetary damages and were not entitled to equitable or declaratory relief because an action for damages would have been an adequate remedy.

In Coalition for Humane Immigrant Rights v. Noem, a special panel granted an administrative stay of the district court’s preliminary injunction “insofar as it may have the effect of preluding the government from initiating expedited removal proceedings pursuant to 8 C.F.R. §§ 1.2 and 235.3(b)(1)(i).” The panel did not administratively stay the prohibition on placing former parolees present in the United States for longer than two years in expedited removal proceedings because the government defendants did not seek a stay of that prohibition.

Finally, in Global Health Council v. Trump, the en banc court denied an administrative stay pending rehearing en banc because the court’s mandate has not issued. The district court had preliminarily enjoined the State Department and USAID to obligate certain foreign aid. A divided panel vacated that part of the injunction because the plaintiffs (aid grantees and associations) lacked a cause of action. Co-blogger Seth Davis discussed the panel decision here.