Notice & Comment

Ninth Circuit Review-Reviewed: Census Panel Pioneers Pre-decisional, Pretextual Review, by William Yeatman

Welcome back to Ninth Circuit Review-Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Last month, I was off studying for the bar, which I ultimately didn’t take because I exercised an 11th hour diploma privilege. Let’s get straight to business. 

Census Case, Part 1: Final Agency Action?  

Department of Commerce v. New York gave us pretextual review. 

Now, with another major census case, CA9 has established pre-decisional pretextual review. 

I suspect, however, that this latest doctrinal development is doomed, as it’s difficult to overstate the unorthodoxy of the Ninth Circuit’s administrative law in National Urban League v. Ross

Unfortunately, the procedural background is both complex and essential for understanding the zaniness at hand. I’ve done my best to simplify the necessary information in the bullet points below:

  • Statutory Regime: Congress tasked the Secretary of Commerce with determining how to conduct the decennial census. While otherwise a capacious delegation, the organic law establishes many deadlines, including a requirement to complete apportionment counts by December 31, 2020.
  • Original Plan: In late 2018, the Commerce Department adopted a plan to conduct the 2020 Census. For more than a year, work proceeded apace. But then COVID-19 happened, and work ground to a halt. 
  • COVID Plan: With the onset of the coronavirus pandemic, the Commerce Department switched gears and adopted the “COVID Plan,” extending the total time for the census by 120 days beyond the statutory deadline (on December 31st). 
  • Replan: A few months into the COVID Plan, however, the Commerce Department decided that it could achieve its December deadline, after all. The agency said it could meet a compressed timeframe by employing updated software and offering financial incentives to census workers. This third iteration of the census process is called the “Replan.” 

In August, a coalition of advocacy organizations and local governments sued under the APA to enjoin the Replan. After issuing a temporary restraining order, the district court allowed discovery; based on the resultant “administrative record,” the court determined that the plaintiffs were likely to succeed on their claim that the Commerce Department had acted unreasonably in switching from the COVID Plan to the Replan. Accordingly, the district court issued a preliminary injunction, ordering the agency to abandon the Replan and instead continue with the COVID Plan. 

The government then sought a stay of the lower court’s injunction, which was denied this week by a three-judge pre-merits panel of the Ninth Circuit.

At this point, the average admin law nerd is likely asking themselves, “if these plans work towards a future deadline (on December 31st), then how can there now be a ‘final agency action,’ and why is this controversy in court?” Indeed, that’s what the government was asking throughout this proceeding. 

Let’s unpack this question and CA9’s answer.  

Of course, the APA’s cause of action is limited to “agency action” that is “final.”  Under black letter administrative law, “final” agency action reflects the “consummation” of the decision-making process, from which “legal consequences flow.” Regarding finality, the Ninth Circuit panel agreed with the district court that the Replan was the consummation of the agency’s decision-making because it was “announced publicly.” And the panel further agreed with the district court that legal consequences would flow from “likely inaccuracies in the reported totals of hard-to-count populations.” 

Hoo-boy! A lot could be said about the court’s approach to “final agency action,” but I’ll be brief. In a word, the court is wrong. The statutory deadline is the dead giveaway. How can planning to meet a future duty somehow be the final step of the agency’s decision-making process? It just doesn’t make any sense.  

Notably, the Fourth Circuit dismissed a similar census challenge because it failed to identify a “final agency action.”

Consensus Case, Part II: Constitutional Cause of Action?

Above, I explain why I doubt that the National Urban League plaintiffs have a viable cause of action under the APA. Yet plaintiffs also asserted a cause of action under the Constitution’s Enumeration Clause. Although this latter claim went unaddressed by CA9, the propriety of the plaintiffs’ constitutional cause of action presents a much closer question, for which there is no definitive answer. 

As mentioned above, the Fourth Circuit dismissed an APA complaint in a similar controversy. The CA4 panel, however, remanded the Enumeration Clause claims back to the district court for further consideration. (FYI, the Fourth Circuit case can be followed here). On the Supreme Court, there is some interest in getting at these matters. Stay tuned. 

Consensus Case, Part III: The Big Picture & What’s Next

Stepping back, it’s worth pausing to appreciate the cosmic strangeness of the Ninth Circuit panel’s order in National Urban League v. Ross

Allow me to explain. I used to work on environmental policy. A hallmark of environmental statutes is their inclusion of thousands of date-certain duties by which the EPA must perform various actions. When the agency misses one of these deadlines—a frequent occurrence—courts cut them no slack. Ever. After all, there is no statutory text as unambiguous as a deadline.   

Based on this experience, it was shocking—to me, at least—how the district court and motions panel resolved this controversy. On APA grounds, these courts ordered an agency to miss a statutory deadline! 

Two days ago, the SG applied to the Supreme Court for a stay. Justice Kagan, who handles such applications from CA9, has requested a response by October 10th. Stay tuned. 

Formal Rulemakings: Not Dead

In law school, we learn that formal rulemakings are dead. (Or at least I did). As told in the classrooms, formal rulemakings proved unworkable in practice, which led the Supreme Court to create a presumption against their use and, ultimately, to their abandonment. 

Yet the standard story isn’t quite right. Formal rulemakings still occur with some regularity. 

Recently, for example, I learned that the Department of Agriculture conducts formal rulemakings to set prices. In fact, the participation of Agriculture ALJs in formal rulemakings may implicate the constitutionality of removal protections for these ALJs.

Last month, in Pacific Choice Seafood v. Ross, a Ninth Circuit panel addressed a formal rule that sets fishing quotas under the Magnussen Act.

Trump Appointees Weigh-in with Admin Law Dissents 

In August, there were two interesting dissents by newcomers to the court. 

In EPIC v. Carlson, Judge Kenneth Lee dissented to his colleagues’ failure to afford a “double dosage of deference.” His point seemed to be that *extra* deference is warranted when an agency’s action is upheld by a lower court, because both institutions (the agency and the district court) warrant the panel’s respect. 

In the famous Universal Camera case, the Supreme Court explained—without elaboration—that courts “must now assume more responsibility for the reasonableness and fairness” of agency adjudications. Judge Patrick Bumatay cited Universal Camera throughout his dissent to Delta Sandblasting v. NLRB; in particular, Bumatay’s opinion endorsed a more searching review whenever the agency’s findings or conclusions are different from those of the ALJ. 

A Modest Proposal for Reducing CA9’s Workload

When a district court issues a preliminary injunction against an agency action, the government typically will pursue two types of recourse before the appellate court. The first is a motion for an administrative stay, and the second is a motion for a stay pending appeal. 

What’s the difference? The purpose of an administrative stay is to provide relief until the court can rule on the motion for a stay pending appeal. Their relationship is akin to how TRO’s complement preliminary injunctions at the district court level. 

Usually, the government combines these two motions. Always, the two motions cover the same ground. And yet, for some reason I cannot fathom, the Ninth Circuit assigns two different pre-merits panels to address each motion for a stay. Mind you, at the merits stage, yet an altogether different panel would hear the case. 

For example, consider National Urban League v. Ross, the case discussed at length above. The district court issued its preliminary injunction on September 24th. The next day, the government filed combined motions for an administrative stay and a stay pending appeal. In a published order on September 30th, a split panel denied the government’s motion for an administrative stay. Then, a week later, a different panel denied the government’s motion for a stay pending appeal. In due time, a third panel will address the merits. 

Surely, this redundant review makes little sense in a court struggling with its workload. The court should make greater use of its discretion to keep cases with the same panel throughout the proceedings. 

William Yeatman is a research fellow at the Cato Institute. 

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