Notice & Comment

D.C. Circuit Review – Reviewed: Recused

The big(-ish) news this week is that Judge Pillard will participate in the en banc “Power Plant Rule” argument next Tuesday. (Chief Judge Garland still is recused.) We don’t know why she was recused before or why she is not recused now. But that is par for the course; often the reasons for recusals are not explained.*

This news, however, got me thinking about recusals more broadly—and how they relate to administrative law. This week in my “admin law” class, I’ve been teaching non-Article III adjudication. As part of that effort, I explained to my class how agency officials sometimes are involved in both the decision to initiate an enforcement proceeding and the decision to review whether the resulting enforcement decision should stand. That discussion reminded me of a thought I had a few months ago after a Supreme Court decision in a seemingly unrelated context: Does the Constitution perhaps require agency officials to recuse themselves in this situation?

First, let’s step back. Earlier this year in Williams v. Pennsylvania, the Court held that “under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.” In that case, a prosecutor in charge of an office—Ronald Castille—authorized other prosecutors to pursue capital punishment against Terrance Williams. Years later, that same prosecutor became a Justice on the Pennsylvania Supreme Court. And then the Pennsylvania Supreme Court ruled against Williams—with Justice Castille participating. It seems that “Williams requested that Castille recuse himself, but Castille denied the motion. In Castille’s view, his own limited involvement in Williams’s prosecution roughly thirty years earlier didn’t create any improper bias.” The U.S. Supreme Court concluded that the judge’s participation violated due process. As Richard Re recounts, in so holding, the Supreme Court may have taken “an important step toward constitutionalizing recusal law.”

So here is a question: If the Williams principle were read broadly, what would happen in administrative law? Consider, for instance, the Federal Trade Commission. As David Balto explains:

When the FTC has “reason to believe” an entity is engaged in an “unfair method of competition” or an “unfair or deceptive act or practice,” the Commissioners vote to file a complaint against that entity, which becomes known as the respondent. The complaint lists the unfair acts the respondent is accused of and informs the respondent of its opportunity to attend a hearing in front of an administrative law judge (ALJ).

While the matter is under investigation the FTC Commissioners work closely with the staff in developing the case and directing the investigation. Before a complaint is issued the respondent has the opportunity to meet with the Commissioners and argue why no enforcement action is necessary. In developing the case and issuing the complaint the Commissioners act as prosecutors. The Commissioners’ roles change once the complaint is issued. They become adjudicators and there is a wall of separation between them and the staff prosecuting the case (known as “complaint counsel”). There are strict rules preventing communications during the litigation. Some members of the Office of General Counsel may assist the Complaint Counsel in prosecuting the case while others may assist the Commission in its adjudicative function.

When a complaint is issued an administrative hearing is held where the respondent presents reasons why it should not be required to “cease and desist” from its current conduct. After the hearing, the ALJ makes an initial determination of whether the respondent engaged in unfair methods of competition. The ALJ’s initial decision becomes the decision of the Commission unless the initial decision is appealed. Either the respondent or the FTC complaint counsel can appeal the decision. If upon appeal by the FTC Staff, the FTC Commissioners disagree with the ALJ’s decision, the Commissioners may reverse the ALJ. The Commissioners are not required to give any deference …

A respondent may appeal the Commission’s decision to any United States Court of Appeals where the respondent’s conduct occurred or the respondent resides. … Unlike the Commissioners’ de novo standard of review for factual findings, appellate courts must give deference to the FTC.

Of course, it is hard to raise a due process challenge to administrative action. But does Williams change things, at least in this context? Honestly, I have no idea, but it strikes me as an interesting question. If recusal is constitutionally required whenever “a judge earlier had significant, personal involvement … in a critical decision regarding the defendant’s case,” then might it not also be required whenever an agency official “had significant, personal involvement” in authorizing administrative adjudication, which also presumably is a “critical decision regarding the defendant’s case”? Now this is just a blog post—not a law review article. I’ve not spent a lot of time thinking about the issue (indeed, I’ve spent about an hour!). Yet how Williams relates to “admin law” seems like a thought worth flagging. (A student note, perhaps?)

Anyway, enough musing about recusal – time for real law. This week, the D.C. Circuit issued one opinion: Agriculture Retailers Association v. Department of Labor. Here, Judge Srinivasan, joined by Judges Rogers and Millett, held that OSHA erred by not using notice-and-comment procedures. OSHA, of course, is tasked with ensuring safe working conditions. “To that end, OSHA in 1992 issued the so-called Process Safety Management Standard to protect the safety of those who work with or near highly hazardous chemicals.” Yet that standard has always exempted retail facilities, on the theory that they are less dangerous. However, “[r]ecently, after a catastrophic chemical explosion at a Texas fertilizer company that qualified as an exempt retail facility, OSHA narrowed the scope of the retail-facility exemption so that the safety standard’s requirements would now apply to formerly exempt facilities like the Texas plant.” In particular, following that deadly explosion, “President Obama issued an executive order that, among other things, directed the Secretary of Labor to ‘identify any changes that need to be made in the retail . . . exemption[] in the PSM Standard’ so as to ‘meet the goal of preventing major chemical accidents.’ OSHA responded in 2015 by issuing the Memorandum at issue in this case.” The question before the D.C. Circuit was whether that agency decision needed to go through notice-and-comment rulemaking.

The answer: Yes. As Judge Srinivasan explains:

The “basic function” of OSHA’s new definition is to address a “particular significant risk,” the risk associated with storing large quantities of highly hazardous chemicals for distribution to end users in bulk quantities, as had been the case at the West, Texas, fertilizer company. OSHA’s Memorandum aims not just to gather data about that risk or otherwise serve a general detection or enforcement function, but instead to correct the risk by subjecting facilities such as farm supply companies to the preventative measures in the PSM Standard. OSHA estimates that its revised definition would subject up to 4,800 facilities to “new,” and necessarily “more demanding,” substantive standards for the management of highly hazardous chemicals.

There is also this interesting analysis:

OSHA argues that the Memorandum cannot be a standard because it would constitute an interpretive rule under the APA. But nothing in the OSH Act or APA establishes that the standard/non-standard distinction under the OSH Act must directly track the legislative/interpretive rule distinction under the APA. The OSH Act and the APA prescribe different procedural requirements, and those requirements do not necessarily apply to the same subset of rules. … We thus need not decide whether the rule at issue here would constitute an interpretive rule for purposes of the APA. Because the Memorandum amounts to a standard within the meaning of the OSH Act, we have jurisdiction to review it and to vacate it for failure to comply with the procedural requirements established by that Act.

So there you go—another week of D.C. Circuit news. (Excuse me now as I go and reread the Seminole Rock symposium.)

* This doesn’t really bother me; what would more detailed discussions accomplish? And would it be cost-justified?

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