Judicial Developments

For the benefit of ACUS members, our agency partners, and the wider administrative law community, ACUS's Office of the Chair will update this page to capture selected, recently published federal appellate decisions. Generally, cases selected for inclusion are of precedential value, cross-cutting applicability, and affect agency operations, regulatory and adjudicative procedure, or judicial review of agency action. The summaries presented on this page represent the assiduous efforts of past and current ACUS Legal Interns.

This resource is intended only for informational purposes and the Office of the Chair makes no representation concerning its accuracy or completeness. Please contact Conrad Dryland (cdryland@acus.gov) for more information, to provide feedback, or suggest additional cases for inclusion.

Last Updated: September 12, 2023



Blue Mountains Biodiversity Project v. Jeffries, 72 F.4th 991 (9th Cir.; July 3, 2023).

Keywords: The “Whole Record,” Deliberative Materials, Privilege Log

Summary: The 9th Circuit clarified a split between its district courts by holding that deliberative materials do not need to be placed on a privilege log unless there is a showing of bad faith or improper behavior because deliberative documents are generally not part of the administrative record without a showing of bad faith or impropriety by the agency. Deliberative documents are prepared to “aid the decision-maker in arriving at a decision.” In this case, the 9th Circuit did not define the precise circumstances when a court can order the production of a privilege log because plaintiff did not assert misconduct on behalf of the agency or assert that the documents at issue were incorrectly classified as deliberative documents.

Garcia v. Garland, 64 F.4th 62 (2nd Cir.; March 31, 2023)

Keywords: Change of Agency Position, Board of Immigration Appeals, Prior Agency Interpretation

Summary: The 2nd Circuit denied the petition for review of a Board of Immigration Appeals decision affirming an Immigration Judge’s decision to deny administrative closure. The court held: (1) it is not an abuse of agency discretion when the agency relies on “an interpretation of its regulations that is controlling at the time of its decision – even if the agency subsequently revises that interpretation – as long as it reflects a reasonable interpretation of the regulations;” (2) the regulations are ambiguous regarding “the availability of administrative closure” and the Matter of Castro-Tum was entitled to deference as a reasonable interpretation of such regulations; and (3) the BIA correctly decided the Matter of Castro-Tum “did not authorize administrative closure” for this proceeding.

Cannon v. Commissioner of Social Security Administration, 61 F.4th 341 (4th Cir.; Feb. 22, 2023)

Keywords: Disability Benefits, Review of Administrative Decisions, Establishing Disability Based on Subjective Complaints

Summary: Claimant brought action against Commissioner of Social Security challenging the decision to deny her application for disability insurance benefits. In her application, the appellant alleged, inter alia, major depressive disorder, anxiety disorder, and attention deficit disorder. The ALJ determined that the appellant did suffer from severe depression with suicidal ideations, anxiety features and ADHD, but nonetheless denied her claim in part because the appellant’s subjective statements related to the intensity, persistence, and limiting effect of her symptoms were inconsistent with the medically determinable and other evidence in the record.

On an issue of apparent first impression, the Court of Appeals held ALJs cannot rely upon absence of objective medical evidence to discredit a claimant's subjective complaints regarding symptoms of major depressive disorder; that symptoms of depression are “entirely subjective” determined on a case-by-case basis; and because of the unique and subjective nature of major depressive disorder, subject statements from claimants ‘should be treated as evidence substantiating the claimant’s impairment.’” Cannon, slip op. at 33–34 (quoting Arakas v. Comm’r, 983 F.3d 83, 96–98 (4th Cir. 2020)). Thus, the court held the ALJ erred by improperly increasing the appellant’s burden of proof by “requiring that her subjective statements by validated by objective medical support.” Id. at 34.

Brooks v. Kijakazi, 60 F.4th 735 (4th Cir.; Feb. 22, 2023) 

Keywords: Disability Benefits, Reconsideration on Remand, Constitutionality of Appointments of Administrative Law Judges

Summary: Claimant brought action seeking judicial review of Commissioner of Social Security's pre-Lucia denial of her application for disability insurance benefits. While the appellant’s administrative appeal was pending before the Appeals Council, the Supreme Court decided Lucia v. SEC, 138 S. Ct. 2044 (2018), recognizing that the ALJs of the Securities and Exchange Commission are “inferior Officers” of the United States within the meaning of the Appointments Clause. Nevertheless, the Appeals Council vacated the denial of the appellant’s disability benefits claim on the merits of the ALJ’s decision and remanded to the same ALJ who decided the appellant’s claim in the first instance.

The now-constitutionally-appointed ALJ again denied the appellant’s disability benefits claim. On appeal to the district court, the parties did not dispute that the initial denial of the appellant’s disability benefits claim was invalid due to the then-unconstitutional appointment of the ALJ who decided the appellant’s claim in both instances. Nevertheless, the district court affirmed the final decision of the Commissioner denying the appellant’s disability benefits claim. Reversing the district court, the Court of Appeals held that Lucia made clear “[t]o cure the constitutional error, another ALJ . . . must hold the new hearing to which [the claimant] is entitled.” And thus, Court of Appeals directed a remand to the Commissioner for a new and plenary hearing on appellant’s disability benefits claim, to be conducted before a different and properly appointed ALJ.

Jarkesy v. Securities and Exchange Commission, 34 F. 4th 446 (5th Cir. May 18, 2022), cert. granted 143 S. Ct. 2690 (June 30, 2023).

Keywords: Nondelegation, Adjudicator Removal Protections, 7th Amendment Rights

Summary: The 5th Circuit held: (1) the SEC's in-house adjudication of petitioners' case violated their Seventh Amendment right to a jury trial because the SEC's enforcement action was akin to traditional actions at law (here, imposition of civil penalties for fraud) to which the jury-trial right attached; (2) Congress unconstitutionally delegated legislative power to the SEC by failing to provide an intelligible principle by which the SEC would exercise the power to it to enforce securities law through administrative proceedings; and (3) statutory, two-layer removal restrictions enjoyed by SEC ALJs violate the Take Care Clause of Article II.


Consumer Financial Protection Bureau v. Law Offices of Crystal Moroney, P.C., 63 F.4th 174 (2d Cir. Mar. 23, 2023)

Keywords: Appropriations Clause, Nondelegation Doctrine, Agency Funding Mechanisms

Summary: The 2nd Circuit affirmed the district court’s enforcement of the civil investigative demand (CID) for documents served on the Law Offices of Crystal Moroney (Appellant). Appellant challenged the CID on four grounds; however, the court found against each claim. The court held: (1) the CID was not void ab inito due to Seila Law v. CFPB as the “CFPB Director was validly appointed;” (2) the CFPB’s funding structure does not violate the Appropriations Clause in Article I of the U.S. Constitution; (3) the CFPB’s funding structure does not violate the nondelegation doctrine; and (4) the “CID served [on Appellant was]…not an unduly burdensome administrative subpoena.”

Community Financial Services Association of America, Ltd. v. CFPB, 51 F.4th 616 (5th Cir. Oct. 19, 2022), cert. granted 143 S. Ct. 978 (Feb. 27, 2023)

Keywords: Appropriations Clause, Agency Funding Mechanisms

Summary: The 5th Circuit held that the CFPB's 2017 Payday Lending Rule is invalid because the CFPB's funding structure violates the Appropriations Clause of the Constitution and the separation of powers it enshrines.


Clarke v. CFTC, 74 F.4th 627 (5th Cir., Jul. 21, 2023).

Keywords: No Action Letters, Individualized Guidance, Final Agency Action, Hard Look Review, Arbitrary-and-Capricious, Prosecutorial Discretion

Summary:  The Fifth Circuit determined that a “no action letter” issued by the CFTC constituted final agency action under the APA.  Further, the rescission of a no-action letter was not a matter of prosecutorial discretion “committed to agency discretion by law,” as “the agency’s own regulations allow beneficiaries to rely on such letters.”  Ultimately, the Fifth Circuit issued a preliminary injunction in this case, as the CFTC’s rescission of the no-action letter against Victoria University’s PredictIt political betting platform was arbitrary and capricious, as the CFTC “gave no reasons for [the rescission]” and provided post-hoc rationalizations for its decision to do so.

United States v. Texas, 143 S.Ct. 1964 (June 23, 2023).

Keywords: Article III Standing, State Standing, Policy Guidance, Prosecutorial Discretion

Summary: The Supreme Court rejected challenges by Texas and Louisiana against enforcement priorities issued by the Department of Homeland Security under the Biden administration, reversing a judgment by the Fifth Circuit.  The Court held that Article III-based standing requirements bar states from challenging the Executive’s right to set enforcement priorities, as the States lack a judicially-cognizable injury.  The Court also distinguished the primary case discussing standing among the states in federal courts, noting that Massachusetts v. EPA governed “a challenge to the denial of a statutorily authorized petition for rulemaking, not a challenge to an exercise of the Executive’s enforcement discretion.”

United States v. Maloid, 71 F.4th 795 (10th Cir., June 23, 2023).

Topic: Judicial Review

Keywords: Auer Deference, Kisor Deference, Quasi-Judicial Agencies, U.S. Sentencing Commission

Summary: In Stinson v. United States, the Supreme Court held that courts are to give the United States Sentencing Commission’s (USSC) commentaries controlling weight unless they are plainly erroneous or violate a federal statute or the Constitution. After the Supreme Court’s decision in Kisor v. Wilkie, there has been a circuit split over whether Kisor abrogated Stinson because of the limits it imposes on the deference courts can give to agency interpretations of their own guidance. The 10th Circuit held that Kisor does not abrogate Stinson or change the deference that the courts are to give to the Sentencing Commission’s commentaries. Ultimately, the 10th Circuit reasoned that Kisor only applies when courts give deference to an executive agency’s decision and that it does not apply to the Sentencing Commission’s guidance as it is a quasi-judicial agency that does not make “broad-ranging policy choices,” does not have “enforcement or investigative authority,” and does not have the same scope of rulemaking authority as executive agencies. 

Calcutt v. FDIC, 143 S.Ct. 1317 (May 22, 2023).

Keywords: Standard for Agency Remand, Substantial Evidence Review; Adjudicatory Proceedings

Summary:  In a per curiam decision, the Supreme Court held that the Sixth Circuit was wrong to “conduct[] its own review of the record and conclude[] that substantial evidence” supported an adjudicatory decision reached by the FDIC.  The Court further concluded that the Sixth Circuit violated the Chenery principle (that federal courts can only judge agency action based on assertions made by the agency itself) by determining that the Sixth Circuit improperly conducted substantial evidence review for an adjudication itself, rather than remanding the case to the FDIC.  Accordingly, the Supreme Court reversed the Sixth Circuit and ordered that the court remand the case to the FDIC “for further consideration.”

Loper Bright Enterprises, Inc. et al. v. Raimondo, 45 F.4th 359 (D.C. Cir., Aug. 12, 2022) cert granted 143 S. Ct. 2429 (May 1, 2023)

Keywords: Chevron Deference

Summary: In a challenge to a National Marine Fisheries Service (NMFS) rule that would require industry-funded, at-sea monitoring of regulated fishing vessels, a divided panel of the D.C. Circuit, applying Chevron, affirmed the district court’s grant of summary judgment to NMFS after finding that: (1) the provisions of the Magnuson-Stevens Fishery Conservation and Management Act under which the challenged rule was promulgated were ambiguous; (2) the NMFS’s interpretation of the Act was reasonable; and (3) the final rule provided a well-reasoned explanation of the interpretation adopted by NFMS.

On May 1, 2023, the Supreme Court granted the commercial fishermen’s petition for certiorari in part, limiting its review to consideration of “[w]hether the Court should overrule Chevron or at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.”

Louisiana v. Biden, No. 22-30087 (5th Cir. Apr. 5, 2023)

Keywords: Standing, Executive Orders, E.O. 13990, Guidance Documents

Summary: A panel of the Fifth Circuit held that a coalition of plaintiff states lacked standing to challenge E.O. 13990 or the resultant “Interim Estimates” on the social cost of greenhouse gases established by an interagency working group. The Court found that because the Interim Estimates do not establish any binding legal obligations, any proposed injury-in-fact from future regulation based on the Estimates is speculative at best. Moreover, the Court noted that the Interim Estimates are not binding on either agencies or the states in formulating future regulations.

Elldakli v. Garland, No. 22-20344, 2023 WL 2769996 (5th Cir. Apr. 4, 2023)

Keywords: Final Agency Action, Administrative Exhaustion, Administrative Procedure Act (APA), Immigration and Nationality Act (INA)

Summary: In a matter of first impression, a panel of the Fifth Circuit held that an immigration status-adjustment decision by United States Citizenship & Immigration Services (USCIS) does not constitute final agency action for purposes of the APA. Because the plaintiff could seek de novo review of the status-adjustment decision from the agency at the commencement of final removal proceedings, he failed to exhaust his administrative remedies pursuant under the INA. However, the Court noted that a status-adjustment decision could constitute final agency action in situations where such decisions may result in immediate removability, as in the case of individuals granted Temporary Protected Status.

Feds for Medical Freedom v. Biden, 63 F.4th 366 (5th Cir. Mar. 23, 2023) (en banc)

Keywords: Administrative Procedure Act (APA), Civil Service Reform Act (CSRA), Executive Orders, E.O. 14042, E.O. 14043, Administrative Exhaustion

Summary: An en banc panel of the Fifth Circuit held that the court had subject matter jurisdiction to review plaintiffs’ challenge to Executive Orders 14042 and 14043, which established a vaccine mandate for all federal employees and contractors. In coming to this conclusion, the Court found that: (1) the Civil Service Reform Act (CSRA) did not require the plaintiffs to first seek review by the Office of Special Counsel (OSC) and Merit Systems Protections Board (MSPB); and (2) Chapter 75 of the CSRA does not implicitly strip courts of jurisdiction to review pre-enforcement challenges to the mandate.

The Fifth Circuit found that the CSRA did not require that the plaintiffs channel their complaint through OSC and MSPB because the CSRA only precludes judicial review of challenges to “covered personnel actions” listed in 5 U.S.C. § 2302(a)(2)(A). The Court rejected the argument that the vaccine mandate was a “working condition” for purposes § 2302(a)(2)(A)(xii), finding that term to include only “everyday employment decisions” and not to “irreversible medical decisions.” The Court also noted that the plaintiffs were not challenging any specific “disciplinary or corrective action” pursuant to § 2302(a)(2)(A)(iii). The Court found that Chapter 75 of the CSRA does not implicitly strip courts of jurisdiction to review pre-enforcement challenges to the vaccine mandate (pursuant to Elgin v. Dep’t of Treasury, 567 U.S. 1 (2012)) on grounds of the CSRA’s “text, structure, and purpose,” as well as cases such as NFFE v. Weinberger, 818 F.2d 935 (D.C. Cir. 1987). Although the Court did not reach the factors listed in Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994), it concluded that even if it did reach them, the Thunder Basin factors confirmed the availability of judicial review.

In re Clean Water Act Rulemaking, No. 21-16958 (9th Cir. Feb. 21, 2023)

Keywords: Review of Administrative Decision, Voluntary Remand, Vacatur, Clean Water Act

Summary: States, Native American tribes, and environmental groups brought actions under Administrative Procedure Act challenging Environmental Protection Agency’s revised Clean Water Act certification rule. States and industry groups intervened. After actions were consolidated, the district court granted EPA’s request for voluntary remand and granted plaintiffs’ request for vacatur as well. Intervenors appealed. The issue on appeal was “whether a court granting a voluntary remand may also vacate the regulation without first holding it unlawful, as the district court did here.” In re Clean Water Act Rulemaking, slip op. at 14. Reversing the district court, the Court of Appeals held that courts lack the authority to do so because: (1) neither the appellants nor the court found any precedent or historical examples supporting the power of courts to vacate executive action not first held unlawful; and (2) because the APA forecloses “any authority of courts to vacate agency actions not first held unlawful.” Id., slip op. at 27.

PF Sunset Plaza, LLC v. U.S. Dept. of Housing & Urban Development, No. 21-1212 (D.C. Cir. Feb. 17, 2023).

Keywords: Finality & Reviewability, HUD, Section 8

Summary: The D.C. Circuit held the 15-day deadline to request an administrative hearing after receiving a complaint from Housing & Urban Development (HUD) must be met to initiate an appeal of a civil monetary penalty under 42 U.S.C § 1437 (“Section 8”). The court found neither Sunset Plaza nor Holdings requested a hearing within the 15-day period. “The statute says what it means and means what it says;” thus, after the 15-day period, the penalty is final and cannot be appealed.

Britkovyy v. Mayorkas, No. 21-3160, 2023 WL 2059090 (7th Cir. Feb. 17, 2023)

Keywords: Agency-Specific Judicial Review Statutes, Denial of Discretionary Relief, Immigration

Summary: The 7th Circuit held that the plain text of 8 U.S.C. § 1252(a)(2)(B)(i) (“Denials of discretionary relief”) strips federal courts of jurisdiction to review the denial of a noncitizen’s adjustment-of-status application (8 U.S.C. § 1255) by United States Citizenship and Immigration Services (USCIS). § 1252(a)(2)(B)(i) operates as an immigration-specific jurisdictional limitation that trumps the APA's general grant of judicial review and thereby deprives courts of jurisdiction in such cases.

Williams v. Garland, No. 20-1854 (4th Cir. 2023) [February 10, 2023]

Keywords: Finality, Immigration, Jurisdiction, Scope of Review, Standards of Review

Summary: The 4th Circuit held: (1) that § 1252(a)(2)(C) of the Immigration and Nationality Act does not “bar judicial review of collateral facts far removed from the underlying ‘final order of removal’”; (2) in passing the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Congress did not clearly and convincing rebut the presumption favoring judicial review of administrative action; (3) thus, where a factual challenge to Board of Immigration Appeals (BIA) denial of motions to reopen and for reconsideration is “unrelated to the merits” of a final removal order, federal courts have jurisdiction to resolve it; (4) because no reasoned principle distinguishes BIA denials to reopen or reconsider from other discretionary agency decisions, federal courts “review legal questions de novo” and factual decisions for “substantial evidence”; and (5) a BIA decision to deny equitable tolling presents a mixed question that federal courts review de novo after reviewing subsidiary, factual findings for substantial evidence.

Axon Enterprise, Inc. v. Federal Trade Commission, 986 F. 3d 1173 (9th Cir. 2021) [January 28, 2021], cert. granted 142 S. Ct. 2704 (2022), argued Nov. 7, 2022.

Keywords: Administrative Exhaustion

Summary: The 9th Circuit affirmed the district court's dismissal of appellant Axon's constitutional challenge to FTC's administrative enforcement process, holding that the district court did not have jurisdiction to hear Axon's challenges to the FTC's structure. The panel further held that Congress and the FTC Act impliedly barred jurisdiction in the district court and required parties to move forward first in the agency enforcement proceeding. Because the FTC statutory scheme ultimately allowed Axon to present its constitutional challenges to a federal court of appeals after the administrative proceeding, Axon did not suffer any cognizable injury. 


Waterman v. IRS, No. 21-5258, 2023 U.S. App. LEXIS 3985 (D.C. Feb. 21, 2023).

Keywords: FOIA, Exemption 5

Summary: The D.C. Circuit affirmed FOIA Exemption 5’s applicability where the documents showed the drafter’s exercise of judgment. However, the court reversed the District Court’s grant of summary judgment to the IRS concerning two memoranda, holding these documents fell outside the scope of FOIA Exemption 5. With regard to the first memorandum, the court found that there was no showing that the facts included were to support the misconduct referral of a tax controversy attorney to the Office of Professional Responsibility. With regard to the second memorandum, the court found that its inclusion of the agency author’s evaluation of conduct did not prevent disclosure of the entire document as that portion was “reasonably segregable.” Accordingly, the evaluative part of the second memorandum fell within Exemption 5, but the rest of the memorandum was a “chronological collection of…statements” beyond the Exemption’s scope.

Citizens for Responsibility & Ethics in Washington v. U.S. Dept. of Justice, 58 F.4th 1255 (D.C. Cir., Jan. 31, 2023).

Keywords: FOIA, Exemption 4

Summary: The D.C. Circuit held the Bureau of Prisons did not meet its burden to withhold information concerning its pentobarbital contractors and contract terms—including drug quantities and expiration dates—under FOIA Exemption 4. The Bureau of Prisons did not demonstrate how the contractors’ names “are commercial in and of themselves” where it has a commercial function or nature. Instead, Bureau of Prisons only looked to the repercussions of disclosure. The D.C. Circuit finds Exemption 4 requires more than the commercial or financial consequences if the information is disclosed to satisfy the “commercial or financial” component.


Severino v. Biden, 71 F.4th 1038 (D.C. Cir., June 27, 2023)

Keywords: Removal, Officers of the United States, Redressability, Governmental Function, Plain Meaning

Summary: In this suit by a former non-governmental member of the Council of the Administrative Conference, the D.C. Circuit considered whether the Administrative Conference Act's three-year term limit for ACUS Council members grants them implied for-cause removal protections. Affirming the district court's dismissal of the suit for failure to state a claim, the D.C. Circuit held that the President had the authority to terminate the plaintiff without cause because removal at will is the presumption under the Constitution, and because nothing in the text of the Council’s organic statute or the Council’s function within the Executive Branch indicates that Congress intended to constrain the President’s presumptive removal authority.


Biden v. Nebraska, 143 S. Ct. 2355 (June 30, 2023)

Keywords: Major Questions Doctrine, Loan-Forgiveness, Waiving and Modifying Statutory Provisions

Summary: The Supreme Court held that the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act) does not give the Secretary of Education (Secretary) the authority to authorize student loan forgiveness. The Court held that the Secretary’s authorization of student loan forgiveness violated the Major Questions Doctrine, as announced in West Virginia v. EPA, because the Department of Education previously did not claim “powers of this magnitude” under the HEROES Act, the Secretary’s actions were of extensive “economic and political significance,” and the government’s reading of the HEROES Act would give the Department of Education unlimited power to rewrite the Act. Thus, the Court determined that the Department of Education would need clear Congressional authorization to authorize student loan forgiveness. Moreover, the Court determined that the inclusion of the provision in the HEROES Act that allows the Department of Education to “waive or modify” parts of the Act does not authorize the “kind of exhaustive rewriting of the statute that has taken place” in this case.

Consumers' Rsch. v. FCC, 64 F.4th 441 (5th Cir. Mar. 24, 2023)

Keywords: Private Delegations, Nondelegation, Federal Communications Commission (FCC), Telecommunications Act of 1996

Summary: A panel of the Fifth Circuit found: (1) that Congress’s delegation of the administration of the Universal Service Fund (USF) to the FCC in Section 254 of the Telecommunications Act of 1996 did not violate the nondelegation doctrine; and (2) the FCC’s redelegation of USF’s administration to the Universal Service Administrative Company (USAC) did not violate the private nondelegation doctrine.

On the public nondelegation challenge, the court found that Congress supplied the FCC with an adequate intelligible principle based on the relevant statute’s inclusion of “enumerated principles” that constrain and guide the FCC’s exercise of the delegated authority. The court further found that the FCC did not violate the private nondelegation doctrine by redelegating its authority over USF to USAC because: (1) the statute expressly subordinates USAC to the FCC; (2) unlike the entity at issue in Nat’l Horsemen’s Benevolent & Protective Ass’n v. Black, 53 F.4th 869 (5th Cir. 2022), USAC does not enjoy “sweeping rulemaking power” (instead making nonbinding proposals to the FCC); (3) telecommunications carriers can challenge USAC proposals directly with the FCC; and (4) the FCC “dictates how USAC calculates the USF contribution factor and subsequently reviews the calculation method.”

Apple Inc. v. Vidal, No. 2022-1249, 63 F.4th 1 (Fed. Cir., Mar. 13, 2023).

Keywords: Standing, Notice-and-Comment Rulemaking, Rules of Agency Practice and Procedure, Intellectual Property

Summary: Plaintiffs brought suit against the Director of the U.S. Patent and Trademark Office (USPTO) to challenge instructions issued by the Director to guide the Patent Trial and Appeal Board’s (PTAB) exercise of discretion in deciding whether to institute inter partes reviews (IPR) requested under 35 U.S.C. §§311-319. Plaintiffs challenged the Director’s instructions on three grounds: (1) the Director acted contrary to the IPR provisions of the patent statute; (2) the instructions are arbitrary and capricious; and (3) the instructions were issued without compliance with the notice-and-comment rulemaking requirements of 5 U.S.C. § 553. The district court dismissed the APA action on the ground that the Director’s instructions were made unreviewable by the IPR provisions of the patent statute

On appeal, the D.C. Circuit affirmed the district court's unreviewability dismissal of plaintiffs’ challenge to the instructions on the ground that their issuance was contrary to statute or arbitrary and capricious, but reversed the district court’s unreviewability dismissal of plaintiff’s claim that the instructions had to be, but were not, promulgated through notice-and-comment rulemaking under 5 U.S.C. §553, affirming that Apple Inc., at least, had standing to present such an argument. The D.C. Circuit remanded the dispute for further proceedings on the notice-and-comment issue.

Oklahoma v. United States, 62 F.4th 221 (6th Cir., Mar. 3, 2023)

Keywords: Standing, Nondelegation, Horseracing Integrity and Safety Authority

Summary: The 6th Circuit rejected Oklahoma’s nondelegation challenge to the Horseracing Integrity and Safety Authority—a private nonprofit corporation—on the basis that the amended Horseracing Safety and Integrity Act made the Horseracing Integrity and Safety Authority (HISA) “an inferior body” to the FTC; HISA “wields materially different power from the FTC, yields to FTC supervision, and lacks the final say over the content and enforcement of the law.” Oklahoma also challenged §3060(b) and §3052(f) of the Horseracing Safety and Integrity Act, asserting these provisions “violate[d] the anti-commandeering guarantee of the Tenth Amendment.” The court held Oklahoma lacked standing to challenge §3060(b) because there is no penalty or enforcement mechanism within the statute nor does Oklahoma explain “actual or threatened enforcement actions.” For §3052(f), the court found that the provision “does not count as a cognizable form of commandeering.”

Mexican Gulf Fishing Co. v. United States Dep't of Com., 60 F.4th 956 (5th Cir. Feb. 23, 2023)

Keywords: Chevron Deference, Administrative Procedure Act, Arbitrary and Capricious Review, Fourth Amendment, Magnuson-Stevens Fishery Conservation and Management Act

Summary: A panel of the Fifth Circuit held unlawful and set aside a final rule on “Electronic Reporting for Federally Permitted Charter Vessels and Headboats in Gulf of Mexico Fisheries,” 85 Fed. Reg. 44,005, published by the National Marine Fisheries Service (NMFS) in July 2020. The rule required, among other things, that charter-boat owners install NMFS-approved Vessel Monitoring System (VMS) hardware and software that automatically transmits GPS positional data at fixed intervals. Applying Chevron, the Fifth Circuit found at step one that the Final Rule bore no reasonable relationship to the statutory provision under which the rule was promulgated. The Fifth Circuit further found that, even if the statute was ambiguous and it were to therefore proceed to step two of Chevron, the Court would still be required to find the agency’s interpretation of the statute impermissible because of the “serious constitutional problems” it presents. Specifically, the Court found it likely that the GPS-tracking requirement violated the Fourth Amendment’s prohibition of unreasonable searches and seizures.

In addition to the Court’s holding on the Chevron issue, the Fifth Circuit found in the alternative that the Final Rule would have to be set aside as arbitrary and capricious under the APA. Specifically, the Court found that the agency failed to address the Fourth Amendment concerns raised by commenters on the proposed rule and failed to justify the costs the rule would impose on the charter-boat fishing industry.

Washington Alliance of Technology Workers v. U.S. Dept. of Homeland Security, 50 F.4th 164 (D.C. Cir. Oct. 4, 2022), rehearing en banc den’d. Washington Alliance of Technology Workers v. U.S. Dept. of Homeland Security, 58 F.4th 506  (D.C. Cir., Feb. 1, 2023)

Keywords: Chevron Deference, F-1 Visa Authorization, Immigration, Congressional Acquiescence

Summary: The D.C. Circuit held the DHS Secretary possessed the authority to promulgate the 2016 Optional Practical Training (OPT) program (8 C.F.R. § 214.2) where students on student visas can receive up to one year of on-the-job practical training after graduation as well as seek a STEM-related extension for up to 24 months. Under the Immigration and Nationality Act (INA), the Secretary can set the time and place conditions for nonimmigrant visa-holders. The 2016 OPT Rule “regulates the ‘time’ and ‘conditions’ of admission for F-1 visa-holders” and “is reasonably related to the distinct composition and purpose of…[the F-1] visa class.” The court found this interpretation as the “most straightforward.” However, even if the statute is ambiguous, the DHS’ interpretation is entitled to Chevron deference because it is reasonable—“OPT is ‘neither arbitrary nor capricious in substance, nor manifestly contrary to the statute,’ and ‘thus warrant[s] the Court’s approbation.’”

Nat'l Horsemen's Benevolent & Protective Ass’n v. Black, 53 F.4th 869 (5th Cir., Nov. 18, 2022)

Keywords: Private Delegations, Nondelegation

Summary: Invoking the private non-delegation doctrine, the 5th Circuit invalidated the Horseracing Integrity and Safety Act (HISA), holding the law facially unconstitutional because it delegates legislative power to a private entity, the Horseracing Integrity and Safety Authority, whose operations are not sufficiently subordinate to a supervisory governmental authority.

Humane Society of the United States v. United States Department of Agriculture, 41 F.4th 564 (D.C. Cir., July 22, 2022)

Keywords: Withdrawal & Finality of Notice-and-Comment Rules

Summary: The D.C. Circuit held that an agency must provide notice and an opportunity for comment when withdrawing a rule once it has been filed for public inspection as a final rule with the Office of the Federal Register. The majority opinion rejected the government's contention that only publication of a final rule in the Federal Register triggers the APA's requirement that agencies undertake notice and comment to repeal it.