Notice & Comment

D.C. Circuit Review – Reviewed: When Exactly Is a Final Rule Final, Part II, or When Is It Too Late To Join a Case Asking When Is It Too Late To Withdraw a Rule?

Humane Society of the United States v. U.S. Department of Agriculture returned this week. D.C. Circuit Reviewer Hyland Hunt wrote an in-depth post on this interesting case earlier this year. As Hyland explained, the case grew out of the longstanding practice by incoming presidential administrations of halting (and, upon review, withdrawing) the outgoing administration’s rules that have not yet published in the Federal Register. This summer, a divided panel held that a Department of Agriculture rule that was withdrawn under this procedure had become final before its withdrawal, and that its withdrawal without notice and comment was therefore improper.

Since the incoming Trump Administration withdrew the rule in 2017, there has been yet another turnover in presidential administrations. Although the Biden Administration defended the withdrawal, it ultimately decided not to petition for rehearing en banc when the Court ruled against it. The Tennessee Walking Horse National Celebration Association, a group adversely affected by the withdrawn rule, moved to intervene for the purpose of seeking rehearing en banc. This week, a once-more-divided panel denied the intervention motion.   

The dispute comes down to the timeliness of the Association’s motion. Everyone agreed that the Association had an interest in the transaction at issue in the litigation (the rule withdrawal), and everyone agreed that the U.S. government had ceased adequately to represent that interest. The question was whether the Association should have moved to intervene at the start of the litigation, or only after the government took the litigation in a direction with which it disagreed. According to Judge Tatel (joined by Judge Millett), the Association was “aware from the beginning of this case that its interests may differ” from those of the government, which is “bound to represent the interests of the American people.” According to Judge Rao, the Supreme Court’s decision last term in Cameron v. EMW Women’s Surgical Center, P.S.C., requires the Court to grant intervention when a proposed intervenor whose interests are not adequately represented moves promptly after an existing party ceases adequately to represent its interests.

Judge Tatel distinguished Cameron on the ground that party disagreed with the proposed intervenor on the merits of the claim, not only the proper remedy. In this case, according to Judge Tatel, the Association parted ways with the Government on the question of remedy. (It is not clear to me that this is true: the Association sought rehearing on the merits; the Government did not.) To extend Cameron to disagreements over remedy would expand intervention and increase the burdens of litigation. For her part, Judge Rao raised concerns that the “catch-22” created by the ruling will increase litigation burdens: “Prospective intervenors may find it necessary to seek intervention at the outset of an appeal, or perhaps even earlier, to guard against the possibility that the party representing their interests will abandon further review[, b]ut at the earlier stage of litigation some parties may be denied intervention because the ‘existing parties adequately represent [their] interest[s].’” It will be interesting to see if the ruling does in fact increase the incidence of up-front intervention motions by groups whose litigation position is (for the time being) aligned with the government’s.

The D.C. Circuit issued only one other opinion this week. The decision comes in Green v. DOJ, an appeal from the district court’s denial of a preliminary injunction barring the enforcement of certain provisions of the Digital Millennium Copyright Act. The Act outlaws using or proliferating technological devices designed to circumvent measures that protect copyrighted material from unauthorized access. Two individuals who wish to publish computer code that may be used to circumvent protective measures sought to enjoin DOJ from enforcing these provisions on First Amendment grounds. The district court dismissed their facial challenges and declined to issue a preliminary injunction on the basis of their as-applied challenges, and both plaintiffs appealed.

The Court (Judge Tatel, joined by Judges Walker and Rodgers) concluded that it lacked jurisdiction to review the order dismissing the facial challenges in an interlocutory posture. It also affirmed denial as to one of the plaintiffs on the ground that he lacked standing because the government represented that it did not understand the Act to prohibit his proposed conduct. As for the remaining plaintiff, the Court affirmed the district court’s denial on the ground that he was unlikely to succeed on the merits. Under the Supreme Court’s decision last term in City of Austin v. Reagan National Advertising of Austin, LLC, the Act’s speech restrictions were not content-based because they “target not the expressive content of computer code, but rather the act of circumvention and the provision of circumvention-enabling tools.” The Court concluded that the plaintiff was unlikely to establish that the law was unconstitutional under intermediate scrutiny.

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