Hard news last week was hard to acquire and the negative is worth noting, but for two points. First, major nationwide decisions on regulatory process are unlikely in the near future for want of cases on the United States Supreme Court (SCOTUS)’s argument calendar. Second, a recent district court decision illustrates the problem of concrete and partiImage may be NSFW.
Clik here to view.
cularized injury at a later stage of litigation, but with a possible saving order.
SCOTUS Bereft: SCOTUS returns to the bench this morning to commence its October 2016 Term with a smaller than normal docket of cases for argument and an empty seat – a point made repeatedly in the media. A subset of that issue is evident as well: although several cases in which SCOTUS has ordered argument raise issues at the periphery of regulatory practice, particularly on the substance of specific statutes and regulations, no case on the argument calendar raises direct regulatory process issues. A full outline of the issues presented in cases in which SCOTUS has granted review may – of course – be found at SCOTUSblog.
A lack of regulatory issues may or may not be unprecedented – but it is certainly unusual. How long this regulatory desert will last is uncertain and SCOTUS is expected to issue more orders, and perhaps more grants, this morning.
Trucking Data Concrete Injury: In a case riding the shoulder of regulatory process, the United States District Court for the District of Columbia provides an example of concrete pleading issues to challenge government action and a path for correcting a lack of concrete allegation in Owner Operator Independent Drivers Association v. Department of Transportation (DOT). To deflate the complex data process, States provide commercial truck driver motor vehicle violation citations to DOT’s Federal Motor Carrier Safety Administration (FMCSA) in a database that is then accessible to potential employers. Drivers may challenge the data submitted, but the States are the final arbiters of the information in the system and the system currently contains no data element to permit states to show that a violation was dismissed.
Plaintiffs raised a number of claims under the Administrative Procedure Act (APA), and other statutes, and, after some procedural maneuvering, filed a consolidated first amended complaint (FAC). The FAC, in contrast with the original complaints, did not include, according to the court, any allegation of economic injury or professional harm, but included only a generalized claim that plaintiff was “adversely affected or aggrieved” by the defendants’ conduct. Although the case had matured to cross-motions for summary judgment, the issue before the court revolved on whether plaintiffs had alleged sufficiently concrete and particularized injury to establish standing under Spokeo, Inc. v. Robins. The district court found that plaintiffs failed to show that DOT’s alleged maintenance of incomplete data that may be disseminated to potential employers and alleged failure to ensure the accuracy of information harmed them in any way, e.g. plaintiffs did not allege in the superseding FAC that either employment or employment opportunities were adversely affected in any way by the maintenance or dissemination of the information.
► This OOIDA case (there are many) is very similar to Spokeo but with a government defendant and APA claims, but the standing issue is equally clear. Plaintiffs appear to have misplaced or abandoned the alleged employment loss and that change in litigation posture was nearly fatal here — nearly fatal because the district court rested its order on another critical distinction: failure to sufficient allege standing requires dismissal of the complaint for lack of jurisdiction, not summary judgment on the merits of the complaint. Even though allegations of injury may be credited at the motion to dismiss stage, and must be established at the summary judgment (or judgment on the record) stage, failure to establish standing requires dismissal, not judgment. plaintiffs may be able to resurrect their case if they can properly alleged injury – and proceed to the next standing inquiry of redressability. The structure and analysis in this decision are important because it should inform similar cases that directly address regulatory process failings rather than failings of administration of statutes and regulations.
The post Monday Morning Regulatory Review – 10/3/16: SCOTUS Bereft & Trucking Data Concrete Injury appeared first on Federal Regulations Advisor.