Consistent with recent weeks, no opinions this week. A few judgments, but nothing of note. But the Court was not on vacation! It heard argument in 11 cases, with a few likely to lead to decisions of note for administrative law types.
The “big” admin case heard this past week, in terms of general media interest, was Don’t Waste Michigan v. Nuclear Regulatory Commission, a petition for review by environmental groups raising NEPA challenges to the NRC’s approval of a nuclear waste facility in Texas, near the New Mexico border.
But I’d like to focus on a smaller case (though important in the world of H-1B visas) that presents some of my favorite near-metaphysical admin law issues: what counts as an adjudication versus a rulemaking masquerading as an adjudication, and if you’re a “bystander” to a putative agency adjudication, when do you have standing to challenge it? The D.C. Circuit has a well-developed set of precedents on these issues, but the argument illustrated how the rules can sometimes be easier to state than to apply, particularly when the administrative record is less than clear. (One wrinkle here is that it appears that the party to the agency proceeding had withdrawn its petition before the putative adjudication decision was issued; the plaintiff argues that the withdrawal meant there was no case to adjudicate, supporting its contention that the agency issuance was in fact a (procedurally invalid) rule.) Will keep an eye out for the decision with interest!
One other comment for the week: As an appellate practitioner, I find different circuits’ approaches to oral argument interesting, including which ones hew closely to time limits, and which don’t. My impression has been that the D.C. Circuit falls into the not-stringent-adherence camp, so I thought I’d do a mini-empirical analysis on this week’s arguments. The one-week sample supports that the D.C. Circuit is a hot bench that conducts long-ish arguments. In all but 2 of 11 cases, the arguments went significantly longer than the allotted minutes per side would indicate, sometimes by a large margin (e.g., total argument over an hour where the parties were allotted 10 minutes per side).