The D.C. Circuit issued eight opinions last week, so perhaps the rush to finish up opinions over the summer has begun.

Two of the perhaps more newsworthy decisions were not in traditional admin law cases, but I’ll mention them nonetheless. In N.S. v. Dixon, No. 21-5275, the D.C. Circuit affirmed the district court’s holding that “U.S. Marshals [for the D.C. Superior Court] were not authorized to make civil immigration arrests because they had not undergone the training required by regulations governing civil immigration arrests.” (Plaintiff N.S. had been detained on an immigration detainer after being released from pre-trial confinement.) But the court nonetheless vacated the classwide injunction issued by the district court, holding the injunction was barred by statute—specifically, 8 U.S.C. § 1252(f)(1), which “generally prohibits lower courts from entering injunctions that order federal officials to take or to refrain from taking actions to enforce, implement, or otherwise carry out the specified statutory provisions” related to immigration. Garland v. Aleman Gonzalez, 596 U.S. 543, 550 (2022).

In Doc Society v. Rubio, No. 23-5232, the D.C. Circuit held documentary filmmaker associations lacked standing to challenge the State Department’s policy “that requires visa applicants to disclose information relating to their activities on social media platforms” because the associations could not establish that a favorable outcome would redress their alleged First Amendment injuries.

Of the remaining six opinions, one was a decision affirming the district court’s confirmation of an international arbitration award. That leaves five admin law opinions, with no discernible theme, so I’ll start with the only case where the agency lost. It will give you hope that arbitrary-and-capricious review is not toothless. In Solondz v. FAA, No. 24-1105, an airline pilot challenged the FAA’s determination that pilots taking a certain anti-anxiety medication are categorically barred from medical clearance (as opposed to being subject to case-by-case determinations following a six-month period to assess side effects, as is done for other anti-anxiety drugs). The D.C. Circuit held that that it was well within the FAA’s discretion to decide “which medications categorically pose unacceptable risks,” but it must reasonably explain that decision, and it had not done so.

Petitioners did not fare as well in the other four admin law cases. Two were basically statutory cases, i.e., the D.C. Circuit agreed that the agency had adopted the best reading of the relevant statute.

Jazz Pharmaceuticals v. Kennedy, No. 24-5262, addressed the question of when a drug is the “same drug” as another drug, such that it can’t be sold within the 7-year exclusivity period for orphan drugs. (Orphan drugs treat rare diseases. The Orphan Drug Act provides incentives to develop them based on Congress’s finding that “pharmaceutical companies needed financial incentives to make drug development for rare diseases economically feasible.”). The Court agreed with FDA’s longstanding interpretation of “same drug” as excluding a “clinically superior” drug. That is, even a drug that has the same active ingredient and is prescribed for the same condition can be sold during an orphan-drug exclusivity period if the new drug is clinically superior. As an example, this case involved an extended release variation that didn’t require patients to wake up in the middle of the night to take additional doses. The D.C. Circuit reached its statutory holding based on two principal factors: dictionary definitions of the word “same” and its finding that Congress amended the statute to change “such drug” to “same drug” to adopt the FDA’s longstanding administrative interpretation. There was no express administrative ratification language, but there was “statutory history” (not to be confused with legislative history, the Court emphasized) that indicated an intent to adopt the administrative definition. The decision is therefore a good exemplar for implicit administrative ratification.

In the other statutory case, Radio Communications Corp. v. FCC, No. 24-1004, the D.C. Circuit appears to have applied a straightforward plain-text reading of a statutory phrase to mean just what it says. Or, in the D.C. Circuit’s words, “the statute and the agency’s interpretation are effectively indistinguishable.” Specifically, low-power TV stations can apply to upgrade to Class A licenses if they “operate[] in a Designated Market Area [(DMA)] with not more than 95,000 television households.” Low Power Protection Act, § 2(c)(2)(B)(iii), Pub. L. No. 117-344, 136 Stat. 6193 (2023). As defined by statute, a DMA is a market area determined by Nielsen Media Research (among other options). The petitioner was a Connecticut low-power TV station that operates in the Nielsen-defined Hartford-New Haven DMA, with over a million TV households (thus making it ineligible for a Class A license based on its DMA). It sought a Class A license on the theory that its DMA should include only the community it was licensed to serve (“community of license”), which has fewer than 95,000 television households. The FCC issued a rule rejecting the community-of-license theory, based on the statute’s terms and DMA definition. The D.C. Circuit upheld the rule (rejecting some constitutional arguments, including about delegation to Nielsen, along the way).

That brings us to the final two administrative law cases. In District Hospital Partners v. NLRB, No. 24-1134, the D.C. Circuit approved the NLRB’s finding that a hospital-affiliated employer engaged in “bad faith surface bargaining”—i.e., going-through-the-motions, sham bargaining—applying settled NLRB precedent. The interesting wrinkle is that the Board had first held, in a split decision, that the employer had not engaged in bad faith bargaining. Then the Board learned that one of the members of the majority that approved the employer’s conduct owned shares in a “healthcare mutual fund that included … the Hospital’s parent company.” The Board concluded that the member should have been disqualified. It vacated the initial decision and reheard the case before a reconstituted panel, which included a new member who had done past work for a different affiliate of the parent union at issue. The reconstituted panel reversed course, holding the employer had engaged in bad faith surface bargaining. The employer petitioned for review. The D.C. Circuit denied the petition, rejecting the employer’s arguments about the substance of the Board’s decision and about the disqualification and reconstitution of the panel. On the latter front, the Court held that both decisions (disqualifying one member and allowing the replacement) were proper applications of well-established ethics rules.  

Last, but not least, a cautionary tale—flout administrative discovery at your peril. Skipping over a great deal of detail, the background in MSC Mediterranean Shipping Co. v. Federal Maritime Commission, No. 24-1007, is this: An ALJ with the Federal Maritime Commission entered a default judgment against MSC Mediterranean (the world’s largest container shipping company) as a sanction for failure to comply with discovery obligations. MSC Mediterranean had argued to the ALJ that the relevant documents were held in Switzerland and that it risked prosecution under Swiss law if it released them. There is a complicated procedural history involving back and forth with Swiss courts and agencies, but the ALJ’s decision was effectively based on “enough is enough” after giving MSC Mediterranean several attempts to sort out the Swiss issue and concluding that the risk of Swiss prosecution was not truly a barrier to producing the documents. The D.C. Circuit agreed, holding that MSC Mediterranean had not contested below that risk-of-prosecution was the appropriate standard to excuse noncompliance, that it had not shown such a risk, that special statutory procedures requiring coordination with the Secretary of State did not apply, and that the default sanction was not an abuse of discretion. (For those who practice in the area, the decision also includes an extensive discussion of whether the Commission properly exercised jurisdiction under the Shipping Act of 1984 over the underlying dispute that led to the default judgment. The D.C. Circuit held that it did, rejecting a narrow interpretation of the Commission’s jurisdiction that would have pushed more shipper-carrier disputes to contract-specified forums (e.g., arbitration).)

That’s it for last week!