Ninth Circuit Review‐​Reviewed: Major Moves Afoot on APA § 704?

This article appeared in Yale Journal of Regulation on January 9, 2020.
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Welcome back to Ninth Circuit Review‐​Reviewed, your monthly recap of administrative law before arguably “the second most important court in the land.” Let’s get straight to last month’s cases.

The Supreme Court’s Evolving Doctrine on “Jurisdictional Rules” Has Huge Implications for the APA

Given that Article III courts have a duty to police their own (limited) jurisdiction, it is perhaps unsurprising that a landmark 1941 report to Congress explained that the “requirement of finality of administrative action as a prerequisite of judicial review [was] formulated by the courts in the absence of legislation.”

Congress, of course, codified this prevailing practice five years later by passing the Administrative Procedure Act, whose provisions for judicial review were limited to “final agency action.”

For my part, I’ve long taken it for granted that APA § 704’s requirement for “final agency action” is “jurisdictional”—that is, courts are statutorily prohibited from reviewing non‐​final agency action.

Due to my (mistaken) presupposition, my curiosity was piqued by the following statement from a Ninth Circuit order last month in San Francisco Herring Association v. Department of Interior: “In this circuit, the final agency action requirement has been treated as jurisdictional.”

This sentence seized my attention because its clear implication is that other circuits treat APA § 704 as non‐​jurisdictional, which would mean that those courts retain discretion to entertain judicial review of non‐​final agency action.

That was news to me. So I dug around, and I’m glad I did, because there is major reform afoot for a foundational principle of administrative law.

Over the last decade or so, the Supreme Court has “tried … to bring some discipline to the use of the term ‘jurisdiction.’” Though the Court’s line of cases is uneven, the overall trend is to liberalize access to the courts in the face of statutory limits.

The Court’s recent jurisprudence, in turn, has led some circuit courts to question whether the APA’s “final agency action” requirement is subject to judicial discretion in original actions brought before trial courts. And it was this development to which the Ninth Circuit panel was referring in the sentence that caught my attention.

I’d known about the Supreme Court’s doctrinal shift on jurisdictional bars to judicial review, but I’d never given any thought to how this change might affect the APA. Now, my mind is blown.

This fast‐​moving area of administrative law is a big deal, and it’s worth monitoring. For the whole story, I highly recommend Sundeep Iyer’s 2016 comment in the Yale Law Journal, titled “Jurisdictional Rules and Final Agency Action.”

Panel Pioneers Law on Congressional Review Act

In its original form, the legislative veto allowed lawmakers to check administrative action by unicameral, bicameral, or even committee vote. From 1932 to 1975, Congress included 292 of these provisions in various enabling acts.

Though employed infrequently, these provisions nonetheless operated as “a central means by which Congress secures the accountability of executive and independent agencies,” according to Supreme Court Justice Byron White. Regulatory agencies feared the legislative veto and, therefore, honored objections registered by lawmakers as rulemakings progressed.

Of course, the Supreme Court nixed the legislative veto in INS v. Chadha (1983). Thirteen years later, Congress revived the concept, albeit in a far lesser form, when President Clinton signed the Congressional Review Act (which was part of the Contract w/​America Advancement Act of 1996).

Broadly speaking, the Congressional Review Act does two things. The first is a statutory requirement for agencies to send their rules to Congress “[b]efore [they] can take effect.” The second is to amend the House and Senate rules to create a fast‐​track procedure for considering a joint resolution that would permanently nullify an agency regulation, including a prohibition on using the Senate filibuster.

Ordinarily under the Act, Congress has 60 days to check a new regulation; however, if an agency submits a rule to Congress during the final 60 days of a congressional session, or submits the rule when Congress is not in session, the 60‐​day clock does not start to run until the 15th day of the subsequent congressional session. Mind you, these deadlines apply only to days when the House and Senate are in session, which is only a fraction of “normal” working days.

Unlike the original legislative veto, resolutions passed under the Congressional Review Act require the president’s signature. Obviously, a sitting president is unlikely to sign legislation that overturns his own regulation. As a result, the Congressional Review Act comes into play only in limited circumstances—basically, it only applies to late‐​term rules promulgated by an outgoing administration when the White House changes party.

Before President Trump took office, the Congressional Review Act had been successfully employed only once. As a result, the statute engendered very little jurisprudence.

But this is changing. Trump has signed 16 legislative vetoes of Obama‐​era regulations. Legal challenges to these measures are now wending their way through the federal judiciary. The upshot is that courts are making law in uncharted territory.

For example, consider the Ninth Circuit panel’s order in Center for Biological Diversity v. Department of Interior, which was filed on the penultimate day of the last decade.

At issue was a 2016 Interior Department regulation that prevented Alaska from allowing certain types of hunting on federal land within the state. In April 2017, Congress passed (and President Trump signed) a legislative veto of the regulation. An environmental group then challenged the action in federal court. Before the Ninth Circuit, the plaintiff‐​appellant appealed the trial court’s dismissal of the case.

In Center for Biological Diversity, the panel’s primary doctrinal contribution pertains to the Congressional Review Act’s controversial “Reenactment Provision,” which prohibits agencies from reissuing a “new rule that is substantially the same” as a rule that had been vetoed.

The plaintiff‐​appellant had challenged the Reenactment Provision on nondelegation grounds. To establish standing, the group’s alleged injury “is premised on the assumption that Interior would reissue the [2016 Interior regulation] if a court ruled that the Reenactment Provision were invalid.” But the panel deemed this alleged injury to be too “speculative” to pass constitutional muster.

So, what’s the takeaway?

The panel’s order indicates that there is only one party that would have standing to bring a constitutional challenge against the Reenactment Provision of the Congressional Review Act. And that party is the federal government.

Simply put, the Ninth Circuit won’t perform constitutional review of the Reenactment Provision until a subsequent administration with different politics (than the Trump administration) tries to promulgate a regulation that is either identical or “substantially the same” as a rule that has been vetoed by Congress.

Bybee Benchslaps Congress (he speaks the truth)

When I first encountered an opinion dubitante, I had to look it up because I didn’t know what the term meant.

I was similarly bewildered when I first came across an opinion “respecting the denial of rehearing.” (I wrote about that experience on this blog).

Yet I suffered no such confusion on initially reading Judge Jay Bybee’s excellent contribution to the court’s order in San Francisco v. Citizenship and Immigration Services, even though I’d never before seen an opinion of this type.

Indeed, there’s no mistaking the meaning of Judge Bybee’s opinion. He’s “concurring, perplexed and perturbed.” Seriously, that’s the court’s actual categorization of Bybee’s opinion!

Obviously, Judge Bybee had something to get off his chest.

At issue in San Francisco was a controversial immigration policy promulgated by the Trump administration. It doesn’t matter which one, because Bybee’s opinion addresses them all in toto.

After observing that the Ninth Circuit has been deluged with “emergency petitions arising out of the administration’s efforts to administer the immigration laws,” Judge Bybee made two points.

The first seemed to be a shot across the bow of trial courts in the Ninth Circuit. Because “no one should mistake our judgments for our policy preferences,” Judge Bybee admonished that judges “must tolerate what personally we may regard as a legislative mistake.”

For his second point, Judge Bybee set his sights on Congress, at whom he emptied both barrels. He wrote:

[S]o far as we can tell from our modest perch in the Ninth Circuit, Congress is no place to be found in these debates … [I]t is time for a feckless Congress to come to the table and grapple with these issues. Don’t leave the table and expect us to clean up.

Hear, hear!

I highly recommend Judge Bybee’s “perplexed and perturbed” concurring opinion.

William Yeatman

William Yeatman is a research fellow at the Cato Institute in Washington, D.C.