Notice & Comment

Ninth Circuit Review-Reviewed: Inaugural Edition, by William Yeatman

In a recent post, Prof. Aaron Nielson noted that Notice & Comment once considered starting a “D.C. Circuit Review–Reviewed-style column for the Ninth Circuit.” This sounded like a great idea to me, so I reached out to the editors and volunteered for the part. Henceforth, on the 9th of every month, I’ll report on the court as perceived by an administrative law nerd.

Who’s the Real “Junior Varsity SCOTUS”?

In a thoughtful post from 2015, Prof. Nielson described “conventional wisdom” as being “probably right” in believing that the D.C. Circuit is the “second most important court” in the land.

First and foremost, he argued that because “presidents look to the administrative state to push policy priorities,” the D.C. Circuit’s “outsized role” in “an era of administrative law as a blood sport … is reason enough for the D.C. Circuit’s reputation.” Second, Prof. Nielson observed that “even beyond administrative law, the D.C. Circuit’s cases are interesting — often unusually so.” Third, he noted “the D.C. Circuit overflows with talent.” His final justification was that “the D.C. Circuit is bold.”

With the utmost possible respect for Prof. Nielson and the D.C. Circuit, I submit that these secondary superlatives are more apt out west in reference to the U.S. Court of Appeals for the Ninth Circuit.

If administrative law serves as the primary yardstick, then the Ninth Circuit makes a compelling case for being the court of penultimate consequence. The D.C. Circuit, of course, gets its administrative law credentials from being the exclusive venue of judicial review for agency action as set forth in many enabling statutes. For the Ninth Circuit, however, its administrative law résumé reflects various idiosyncratic features of the court’s jurisdiction, including:

  • The obvious effect of the court’s size. It’s only one of thirteen U.S Courts of Appeals (8%), and its jurisdiction includes 20% of the population. By virtue of sheer immensity, the Ninth Circuit is a powerhouse in whatever field of law is being considered.
  • The court reviews the lion’s share of decisions by the Board of Immigration Appeals, due to both the prevalence of Hispanic communities within the court’s jurisdiction and the international border in the southwest.
  • The Ninth Circuit’s jurisdiction includes the Bay area, which serves as headquarters to many public interest groups that focus on litigation. As a result, the federal district court in San Francisco exercises original jurisdiction over a high volume of challenges to agency action and inaction pursuant to either APA § 706 or some other enabling act (especially 42 U.S.C. 7604). This further increases the Ninth Circuit’s administrative law workload.

While I’m aware of no definitive evidence on the matter, I have some empirical support for the proposition that the Ninth Circuit is the true people’s champion of administrative law. A couple months ago, I wrote a twopart series for this blog exploring a dataset of all U.S. Courts of Appeals opinions that relied on Seminole Rock deference to an agency’s interpretation of its own regulation. For the purposes of this post, let us assume that we can approximate the *strength* of a given court’s administrative law docket by simply counting the number of times that the court employs the Seminole Rock doctrine. From 1998 to 2013, the D.C. Circuit employed the Seminole Rock framework 61 times; during that span, the Ninth Circuit employed the doctrine 72 times. To be sure, the Ninth Circuit doesn’t exclusively establish law for many regulatory regimes, as does the D.C. Circuit; nevertheless, as a function of actual practice, the Ninth Circuit is an administrative law workhorse.

After administrative law credentials, Prof. Nielson next defended the D.C. Circuit’s reputation as the first-runner-up court by observing that “the D.C. Circuit’s cases are interesting.” Perhaps way back in 2015, when Prof. Nielson lent this perspective, it was possible for the D.C. Circuit to be considered the most interesting federal appeals court. Yet during the Trump presidency, surely the Ninth Circuit is now most eye-catching? For Pete’s sake, the President is warring with the court on Twitter! As things currently stand, the D.C. Circuit is positively dull in comparison.

The third reason set forth by Prof. Nielson was that the “D.C. Circuit overflows with talent.” Surely the same can be said of the Ninth Circuit, by dint of its size if by nothing else. The Ninth Circuit boasts 29 judgeships—16% of the total on U.S. Courts of Appeals. (Sixteen of these judges were appointed by Democratic presidents; assuming Trump fills the current vacancies, the other 13 will have been appointed by Republican presidents.)

Prof. Nielson’s final claim in support of conventional wisdom is that “the D.C. Circuit is bold.” But, again, what’s bolder than drawing presidential ire on social media?

In sum, the Ninth Circuit is eminently justified in staking a claim as the true “Junior Varsity SCOTUS,” and a major reason this is possible is on account of the court’s prolific practice of administrative law. Having established that the D.C. Circuit’s reputation as the “second most important court” is not unchallenged, let’s get to November’s noteworthy cases.

All the Holes in Heckler

In Regents v. Department of Homeland Security, a Ninth Circuit panel upheld a lower court’s nationwide injunction to stop the Trump administration from repealing his predecessor’s Deferred Action for Childhood Arrivals (DACA) policy, which allows undocumented immigrants who arrived in the United States before their 16th birthday to obtain work permits and certain other federal benefits.

Of course, the Ninth Circuit is one of many Article III courts currently engaging in some sort of review of the Homeland Security Department’s rescission of DACA. These various cases have implicated numerous fascinating issues for administrative law nerds, many of which have been discussed at this blog, including whether shutting DACA down requires APA § 553 rulemaking procedures and the propriety of nationwide injunctions issued by U.S. district courts.

For the purpose of this post, however, I’m going to discuss a third core doctrine of administrative law, one that was central to the majority panel’s reasoning in Regents. Here, I’m talking about the Heckler v. Chaney presumption of non-reviewability for agency exercises of prosecutorial discretion. The Heckler doctrine’s statutory basis is APA § 5 U.S.C. § 701(a)(2), which forecloses judicial review for “agency action that is committed to agency discretion by law.” I assume readers are familiar with Heckler; suffice to say for this blog, the decision’s crucial holding is that “[a]n agency’s decision not to take enforcement action . . . is presumed to be immune from judicial review.”

As the Regents court noted, “deferred action is not expressly grounded in statute [but] arises instead from the Executive’s inherent authority to allocate resources and prioritize cases.” Indeed, the Homeland Security Department entitled the DACA policy, “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children.” (Formatting added).

Because DACA is rooted in prosecutorial discretion, the government in Regents argued that it enjoyed the Heckler presumption against judicial review. In rejecting this argument, a majority on the panel—Judge John Owens demurred from this reasoning in a concurrence—carved out an exception to Heckler:

The rule that emerges is this: an agency’s nonenforcement decision is outside the scope of the [Heckler] presumption—and is therefore presumptively reviewable—if it is based solely on a belief that the agency lacked the lawful authority to do otherwise. That is, where the agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply.

The court calls this its “Montana Air rule,” after a circuit precedent that first recognized a footnote in Heckler, which left open whether “a refusal by the agency to institute proceedings based solely on the belief that it lacks jurisdiction” might be reviewable notwithstanding this general rule. See 470 U.S. at 833 n.4.

In rescinding DACA, the Trump administration reasoned that the original policy was illegal to begin with. The Ninth Circuit disagreed on the illegality of the underlying DACA policy, and therefore the court found applicable its Montana Air exception to the Heckler presumption of non-reviewability.

The Ninth Circuit’s idiosyncratic logic piqued my curiosity about how other courts have addressed government claims that the APA does not provide a cause of action to challenge DACA. As it turns out, lower courts have drilled many different holes through Heckler in finding APA jurisdiction to hear challenges to the original DACA policy, near-identical policies, and rescissions of these policies.

In asserting jurisdiction over a challenge to an Obama-era policy (DAPA) that is identical to DACA in terms of legal underpinnings (and very similar in magnitude), the Fifth Circuit took a practical approach. Although rooted in prosecutorial discretion, DACA triggers public rights and responsibilities—such as the right to work legally and the corresponding duty to pay taxes—for an estimated 3.6 million potential beneficiaries. Due to these significant real-world impacts, the Fifth Circuit determined that this DACA-like policy is an “affirmative action …. with meaningful standards against which to judge it.”

By contrast, federal district courts in New York and Maryland took the Overton Park highway through Heckler. Famously, in Overton Park, the Supreme Court found that agency action is presumptively reviewable if there is “law to apply.” The district courts in New York and Maryland found that the APA’s procedural requirements set forth “law to apply” in judging the Department of Homeland Security’s repeal of DACA, thereby providing a basis for judicial review.[1] In a similar vein, a U.S. District Court in Texas located “law to apply” in the Department of Homeland Security’s enabling acts.

Given the remedial imperative, it is unsurprising lower courts have found avenues around Heckler to review DACA and its repeal. What is perhaps more eye-opening, at least to me, is the legal creativity shown by various courts in the course of plotting different routes.

Breakthrough Paperwork Reduction Act Case:

Agencies need information from regulated entities in order to regulate. The Paperwork Reduction Act (PRA) protects regulated entities from excessive red-tape by requiring that OMB sign off on any agency “information collection requests.” Oftentimes, however, agencies avoid these requirements by imposing so-called “bootleg” information requests on the public. It has long been assumed that the only remedy for a private party subject to an agency’s bootleg request is to raise the PRA’s “public protection” defense, which almost no one does, because it is extremely risky—if you refuse to comply with the request, raise the defense, and lose, then you will suffer the consequences of being in non-compliance with the law.

In Hyatt v Office of Management and Budget, the Ninth Circuit became the first court to recognize an alternative route to obtain pre-enforcement review of bootleg requests and thereby avoid the risky litigation strategy described above. The court held that OMB has a duty to respond to petitions from regulated entities objecting to a bootleg request, and that OMB’s response is a final agency action subject to judicial review under the APA. According to one counsel involved in the case, the Ninth’s decision in Hyatt “has the potential to transform the PRA from a backwater of administrative law to an important and mainstream remedy, given that the PRA applies to all agencies and covers nearly all that they do.”

The Best Appellate Twitter Insights into the Ninth (lightly edited for clarity):

@shonhopwood The Ninth Circuit is rolling out a bunch of new standardized forms to simplify filings

@tedfrank Seventh [Circuit] doesn’t announce judges until morning of argument. [The Seventh Circuit] is] small enough that everyone sits with one another 5-7 times a year, learns to cooperat[e] together. In contrast, Ninth Circuit judges sit with each of their colleagues once every 5-7 years, and feel competitive with one another. (Ted was live tweeting notes from a speech by Judge Frank Easterbrook)

@donkilmer In the Ninth Circuit the en banc coordinator is usually the stepping stone to Chief Judge. Both terms are 6 years, giving one person 12 years to influence the Court.

[1] I’d be remiss if I failed to explain why I think the New York and Maryland district courts got it wrong. If APA § 701(a)(2) withholds judicial review where there is no “law to apply,” but, at the same time, the court finds “law to apply” in the APA, then I fail to see any limit whatsoever on judicial review, which would render §701(a)(2) nonsensical, like a snake eating its own tail.


William Yeatman is a public policy professional in Washington D.C. and a February 2019 J.D. Candidate at the Georgetown University Law Center.

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