Notice & Comment

D.C. Circuit Review – Reviewed: Rearguard Actions

I don’t know much — or, rather, really anything — about military strategy. And I suspect that is true for a great many judges. Nonetheless, the judiciary often invokes the language of war. Solicitor Generals are addressed as General So-and-So. Judges speak of “soldiering on” and “barrages.” But perhaps my favorite military expression used by judges is a variant of this: Courts should not fight “rearguard actions” against precedent.*

This week, the D.C. Circuit addressed numerous attempts — some successful, some not — to escape decisions that have already been made. And they are all worth reading.

Consider FedEx Home Delivery v. NLRB, perhaps the starkest example. Judge Millett, joined by Judges Kavanaugh and Henderson, sternly criticized the NLRB for ignoring D.C. Circuit precedent regarding the employee/independent contractor designation of certain FedEx drivers. Especially because Brand X does not apply in the employee/independent contractor context, I have no idea how the NLRB thought it would get away with this:

As FedEx correctly argues, the question before this court was already asked and answered in FedEx I. This case involves the exact same parties—the Board and FedEx Home Delivery—as FedEx I. The facts are acknowledged by the Board to be “virtually identical,” and the Board makes no effort to distinguish the two cases factually. The purely legal question to be decided also is exactly the same: whether the same materially indistinguishable facts that added up to independent-contractor status in FedEx I add up to independent-contractor status in FedEx round two. …. Having chosen not to seek Supreme Court review in FedEx I, the Board cannot effectively nullify this court’s decision in FedEx I by asking a second panel of this court to apply the same law to the same material facts but give a different answer.

(Here is a bit of trivia: Who argued FedEx I? None other than Ted Cruz.)

In Center for Regulatory Reasonableness v. EPA, Judge Kavanuagh, joined by Judges Wilkins and Williams, wrote this:

As a general matter, the Clean Water Act prohibits discharge of pollutants into the Nation’s waters except in accordance with a permit. The Environmental Protection Agency promulgates rules governing those permits. Some of the permitting rules apply to publicly owned water treatment facilities. In 2011, EPA issued policy letters that explained and arguably changed two EPA policies with respect to publicly owned water treatment facilities. A group representing the interests of municipalities then sued to challenge the new EPA policy letters in the Eighth Circuit. The group prevailed in the Eighth Circuit. See Iowa League of Cities v. EPA, 711 F.3d 844 (8th Cir. 2013).

Beginning in 2013, EPA made statements indicating that it would not acquiesce in or follow the Eighth Circuit’s decision outside of that circuit. We will refer to those EPA statements collectively as “EPA’s non-acquiescence statement.” In this Court, an industry group – the Center for Regulatory Reasonableness – then sued EPA. The Center raised multiple challenges to the non-acquiescence statement’s legality, including claims that the nonacquiescence statement was itself a rule promulgated without proper notice and comment and in excess of the agency’s statutory authority.

The key threshold question here is whether this Court has jurisdiction to hear this kind of challenge at this time. We do not. In general, district courts have jurisdiction to review final agency actions unless a statutory provision provides for direct review in a court of appeals. To be sure, the Clean Water Act authorizes direct court of appeals review of EPA-promulgated effluent or other limits on discharge of pollutants. 33 U.S.C. § 1369(b)(1)(E). We need not determine whether EPA’s non-acquiescence statement constitutes a “promulgation” because EPA’s nonacquiescence statement does not announce an effluent or other limit on discharge of pollutants. The non-acquiescence statement merely articulates how EPA will interpret the Eighth Circuit’s decision. Therefore, to the extent the Center wants to directly challenge EPA’s non-acquiescence statement, it must follow the usual path of suing in district court under the Administrative Procedure Act, assuming other reviewability criteria are satisfied. See 5 U.S.C. §§ 702-704; 28 U.S.C. § 1331.1

To the extent the Center seeks to directly challenge the 2011 policy letters, direct review of those letters in a court of appeals had to be sought within 120 days (as another petitioner did in the Eighth Circuit). See 33 U.S.C. § 1369(b)(1). The Center is well outside the 120-day window to directly challenge the 2011 policy letters in this Court. To the extent the Center believes EPA is violating the Eighth Circuit’s mandate, it may of course try to seek mandamus or other appropriate relief in the Eighth Circuit. See 28 U.S.C. § 1651(a).

In sum, this Court lacks jurisdiction to directly review EPA’s non-acquiescence statement. The petition for review is dismissed

That is the whole opinion; as I’ve mentioned before, Judge Kavanugh likes to keep it short.

In Defenders of Wildlife v Zinke, Judge Rogers, joined by Judges Brown and Pillard, reviewed the Fish and Wildlife Service’s decision that grey wolves in Wyoming are no longer endangered. Environmental groups wished to escape that decision, but to no avail. The court upheld the agency’s reliance on Wyoming’s “non-binding” assurance to maintain more wolves than the minimum, and further ruled that the agency didn’t need “to address every ‘far-fetched “what-if” scenario’ that opponents of delisting can imagine.”

United States v. Bronstein is an important case too. Judge Brown, joined by Judges Srinivasan and Williams, held that “harangue” and “oration” — neither of which are allowed at the Supreme Court building — are not “unconstitutionally vague.” The context of the terms makes clear (enough) that they prohibit “disruptive …speeches” – like the ones appellants made when several of them stood up sequentially at an oral argument and made political comments. I find Judge Brown’s introduction interesting: “As we recently said, ‘[f]or more than sixty-five years, a federal statute has restricted the public’s conduct of expressive activity within the building and grounds of the Supreme Court.’ Hodge v. Talkin, 799 F.3d 1145, 1149 (D.C. Cir. 2015). The statute at issue in Hodge — a fraternal twin of the one at issue here — was challenged under the Constitution’s void-for-vagueness doctrine. We rejected that claim. Now, we consider whether portions of its statutory sibling are unconstitutionally vague.” That is a precedent-heavy way to frame this case.

In Manitoba v. Zinke, Judge Brown, joined by Judges Wilkins and Edwards, rejected the district court’s conclusion that the State of “North Dakota did not ‘present either changes in law or facts sufficient to warrant modifying the injunction.'” This is a complicated case; for purposes here, it is enough to observe that the injunction was not as inflexible as the district court believed.

Johnson v. Interstate Management Co. — written by Judge Kavanaugh and joined in full by Judge Henderson and in part by Judge Millett — addresses the claims of a cook who says he was fired for filing complaints. The restaurant, however, says it had other reasons to fire him: “In 2011, after concluding that Johnson had prepared a serving of breaded chicken with a piece of plastic melted under the breading, Interstate finally decided that enough was enough.” In the most important part of this case, the Court held that Johnson could not sue as an individual under the OSHA anti-retaliation provision since it does not provide an implied right to litigate. Judge Kavanaugh’s discussion of the evolution of implied causes of action is especially worth reading. The Court did not buy Johnson’s attempt to escape that modern precedent. The Court also held that a discrimination claim failed because his employer had nondiscriminatory reasons for firing him — i.e., “his history of unsanitary kitchen practices,” which included “cleaning floor mats inside cooking pots.” (Millet’s brief concurrence explains that she disagrees with some of the majority’s interpretation of the record.)

Finally, we have John Doe Company v. CFPB. The majority — Judges Millett and Wilkins — denied an emergency injunction pending appeal; Judge Kavanaugh dissented. Because PHH Corp. v. CFPB was vacated, the majority’s view is not really a rearguard action, but it is plain that the majority does not afford the panel opinion in PHH Corp. the same respect that the author of that panel opinion does:

First, the PHH decision on which the Company relies has been vacated. And even within that decision, panel members differed on the appropriateness or necessity of issuing the separation-of-powers ruling given predicate statutory issues in the case. PHH, 839 F.3d at 56 (Henderson, J., concurring in part and dissenting in part) (declining to reach the constitutional question because an adequate remedy could be provided on the statutory ground); see also id. at 55 (Randolph, J., concurring) (also finding constitutional error in the ALJ who heard the proceeding). Without suggesting anything one way or the other about how the en banc court might ultimately resolve the PHH case and with all due respect to its panel members, the district court did not abuse its discretion in determining that simply pointing to the vacated majority opinion in PHH did not establish the likelihood of an identical constitutional ruling by the en banc court in PHH or the court in this case.

Judge Kavanaugh — the author of the panel opinion in PHH Corp. — disagreed with this analysis:

In my view, the Company has shown a likelihood of success on the merits of its constitutional claim, for reasons fully explained in this Court’s opinion in PHH Corp. v. CFPB, 839 F.3d 1 (D.C. Cir. 2016). The “CFPB’s structure violates Article II of the Constitution because the CFPB operates as an independent agency headed by a single Director.” Id. at 12. The CFPB’s structure as a single-Director independent agency with vast rulemaking and enforcement authority is unprecedented in American history. To be sure, the PHH case will soon be reheard by this Court en banc. But in my view, the CFPB’s structure is unconstitutional. And given the Supreme Court’s Article II precedents, I believe that the CFPB’s structure is likely to be ruled unconstitutional, whether by this Court sitting en banc or by the Supreme Court. The Company has shown a likelihood of success on the merits.

What did I tell you? All of these opinions are worth reading.

* “That idiom refers to trying very hard to prevent a thing from happening even though it is probably too late.”

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