The D.C. Circuit issued another unusual en banc order last week in challenges to funding cuts at the U.S. Agency for Global Media. It also vacated and remanded in two cases involving immigration standards of review. And it denied petitions for review in an SEC whistleblower case and a FERC case.

“Special En Banc”

Before the current presidential administration, en banc review of special panel decisions was extremely rare. But in the en banc court’s latest Trump-era foray into the emergency docket, it issued an order and several statements regarding cuts at the U.S. Agency for Global Media. Co-blogger Thomas Griffith previously covered these cases here when they were before Judges Pillard, Katsas, and Rao.

In three of the cases, the court dissolved its en banc administrative stay. In two of the cases, it granted en banc reconsideration and vacated the special panel’s stay of the injunction. The key merits issue was whether radio networks’ challenges to grant cuts are contract claims over which only the Court of Federal Claims has jurisdiction. The en banc court “substantially” agreed with Judge Pillard’s panel dissent that the government has not shown a likelihood of success. The en banc court also observed that the equities did not favor the government because it rested its entitlement to the funds on the outcome of a case in the Court of Federal Claims.

Judge Katsas, joined by Judges Henderson, Rao, and Walker, dissented. He concluded that the district court “lacked jurisdiction to order continued funding for the affiliated networks” because the Court of Federal Claims has exclusive jurisdiction over contract claims against the federal government. He also noted that the en banc majority’s reasoning about the equities was “difficult to reconcile” with the Supreme Court’s decision on the application in Department of Education v. California.

The en banc court also released several statements respecting its May 22 partial denial of en banc reconsideration. Judge Pillard filed a statement underscoring her panel dissent but agreeing with the denial of en banc relief. Chief Judge Srinivasan issued a statement noting that an unstayed provision of the injunction requires the government to restore Voice of America programming. He further noted that the denial of en banc reconsideration did not “accept or treat with” the government’s argument that the district court lacked authority to order particular personnel actions. A majority of the court (Judges Millett, Pillard, Wilkins, Childs, Pan, and Garcia) joined his statement.

Based on orders issued early this week, it appears that this month’s special panel will be Judges Katsas, Rao, and Walker, all of whom were appointed by President Trump. It is likely that the en banc court (a majority of which was appointed by Democratic presidents) will continue its unusual practice of granting review of this month’s special panel orders.

Immigration: Beyond Any Reasonable Doubt

The first immigration case has to do with the U.S. Citizenship and Immigration Service’s compliance with its own precedent. In Castaneira v. Noem, Castaneira filed a Form I-130 petition to recognize his wife as an “immediate relative” for purposes of lawful permanent residence. USCIS issued a notice of intent to deny on the ground that Castaneira was convicted of a disqualifying sex offense. USCIS gave Castaneira an opportunity to prove “beyond any reasonable doubt” that he posed no risk to his wife. Castaneira then sued to challenge that standard and obtain a declaration that his conviction for attempt was not disqualifying. The district court dismissed, and the D.C. Circuit affirmed in part and vacated in part. (Congratulations to student counsel Cameron Beach and her colleagues at the UVA Appellate Litigation Clinic on their victory as court-appointed amicus.)

The D.C. Circuit first held that a conviction for attempt qualified as “conduct that by its nature is a sex offense against a minor.” It then vacated and remanded for the district court to address whether agency precedent had established a standard of review and whether USCIS violated that standard. Although the D.C. Circuit recognized that review of USCIS’s ultimate determination is statutorily precluded, it nonetheless permitted review of the agency’s compliance with its own precedent. It cited the presumption in favor of judicial review, the Supreme Court’s decision on collateral challenges to unreviewable actions in McNary v. Haitian Refugee Center, Inc., and the general rule that agencies must follow their own binding requirements. Because the district court had not addressed the meaning of the USCIS precedent, the D.C. Circuit vacated and remanded for further proceedings.

Immigration: Reason to Believe

The second immigration case involves another standard of review. In Pietersen v. U.S. Department of State, a Dutch citizen and her American fiancé sued to challenge the State Department’s denial of her K-1 visa. Consular officers cited “reason to believe” she had willfully misrepresented a material fact (alleged unauthorized work in the United States). The plaintiffs sued, and the district court dismissed under the consular nonreviewability doctrine and for failure to state a claim. The D.C. Circuit reversed and remanded.

The panel split over the existence of an APA claim. In an opinion by Judge Edwards, the majority held that the plaintiffs asserted an APA claim for prospective relief and that the consular nonreviewability doctrine did not bar that claim. Judge Pan dissented, agreeing with the defendants and the district court that the plaintiffs failed to raise an APA claim.

The majority then vacated and remanded. It found the appellate briefing inadequate to address the merits issue in the first instance. But it nevertheless expressed “real doubts” regarding the State Department’s application of a “reason to believe” standard. In particular, it noted that 8 U.S.C. § 1201(g) does not provide a “cross-cutting standard of proof” applicable to all grounds of inadmissibility under 8 U.S.C. § 1182. It further distinguished other provisions of Section 1182 that implicate a “reason to believe” standard because they involved different methods of determining inadmissibility.

Other Administrative Law Decisions

In Nelson v. SEC, the court denied a whistleblower’s petition for review of an order allocating an award to three other individuals. In an opinion by Judge Childs, the majority held that the whistleblower’s petition was untimely; assumed that he was entitled to equitable tolling; held that he forfeited one of his arguments before the agency; and held that the SEC’s allocation was not otherwise arbitrary and capricious. Judge Henderson concurred in the judgment. She disagreed as to timeliness, equitable tolling, and forfeiture, but she rejected the forfeited argument on the merits.

Finally, in Central Hudson Gas & Electric Corp. v. FERC, the court unanimously denied a petition for review of FERC’s refusal to change the rules that prohibit grid owners from funding certain upgrades.