The twilight of an Administration brings out some haste to institutionalize policy through regulations and also complex litigating postures driven by policy and institutional concerns, reflected last week in several procedural motions and decisions. Curiously, a final rule was promulgated to respond to a remand over a decade old, raising a fundamental question of timeliness. Less curiously, an agency cleared for takeoff a substantial and likely volatile policy debate by proposing possible use of cell phones in flight.
Administration’s Litigation Twilight: Longstanding judicial doctrine tells the courts to avoid decisions that are not necessary, and the transition from one Administration to another that has unmistakably different priorities provides an opportunity for the courts to allow intervening events to possibly remove issues. Although not dressed in the formal doctrine, several recent actions suggest underlying avoidance.
The United States Supreme Court (SCOTUS) slowed the briefing process in Gloucester County School Board v. G.G. which raised the issue of whether the Department of Education (ED) may interpret the Title IX of the Civil Rights Act (CRA) term “sex” to include gender self-identification. SCOTUS issued orders last week extending the time for the School Board’s brief until January 3, 2017, and G.G.’s response to February 23, 2017. SCOTUS has not requested the views of the United States and, in effect, an incoming Department of Justice (DOJ) Solicitor General may enter an appearance at any point as amicus. ED’s rescission of the “Dear Colleague” “guidance” letter could cause SCOTUS to vacate the decision of the Court of Appeals and remand the case for further consideration and an incoming Solicitor General might make just such a request – and a new Solicitor General would be the author of a letter to the Clerk advising SCOTUS of that rescission.
The United States Court of Appeals for the District of Columbia Circuit opened the door to participation by the United States in the petition for rehearing en banc in PHH Inc. v. CFPB, the panel decision that held the structure of the Consumer Finance Protection Bureau (CFPB) Director’s for cause removal requirement unconstitutional, the CFPB’s interpretation of the Real Estate Settlement Procedures Act (RESPA) erroneous, and the RESPA statute of limitations applicable. The D.C. Circuit previously ordered a response to petition for rehearing and does not normally grant such a petition without a response. The D.C. Circuit asked also for the views of the United States through DOJ – and has granted DOJ’s unopposed request for additional time to respond until December 22, 2016. Even so, the D.C. Circuit may not decide the petition for rehearing and rehearing en banc until after the inauguration of the new Administration, and its mandate is withheld until that petition is decided. The current posture raises a number of questions for a new Administration because the CFPB’s Director would remain subject to removal “for cause” until the mandate issues.
On the other hand, the United States Court of Appeals for the Fifth Circuit expedited the Department of Labor (DOL), represented by DOJ, appeal from the preliminary injunction of DOL’s overtime exemption final rule under the Fair Labor Standards Act (FLSA) in State of Nevada v. DOL. DOJ proposed that its last word (a reply brief) could come from the incoming Administration. Assuming for the sake of argument that the incoming Administration does not abandon the appeal and request a voluntary remand, any oral argument most certainly will be conducted under the aegis of the new Administration.
► Agencies, and particularly DOJ, face a difficult balancing of litigation priorities in light of imminent changes in policy by a new Administration, yet still bound to the current Administration. Bear in mind that most litigation is handled by DOJ career attorneys who must reflect the policy choices of their superiors, and, at the same time, defend institutional prerogatives that transcend any Administration, current or near future, on behalf of the institution of the Presidency. Private litigants, naturally, will seek a most advantageous briefing schedule at the time. This agency and, more profoundly, DOJ balancing is difficult to reduce to the briefing books provided to a transition’s landing teams because it is both evanescent as to the particular issue and reflects core governmental concepts affecting all litigation. That burden is outweighed by the burden that falls on the transition team and incoming Administration to sort out the political realities and institutional interests in a far shorter time than the departing Administration and the career attorneys have had to establish the positions.
Which leads to a word about the difference between an agency and DOJ in litigation – agencies may have a substantially greater understanding of the underlying programmatic statute and their regulations, but DOJ, particularly in specific sections, has far more experience and understanding of the canons of statutory construction, regulatory procedural requirements, and doctrine. Agencies often seek, and should seek, advice and judgment from DOJ, and even representation by DOJ, even when they have independent litigating authority, particularly when the stakes exceed the narrow programmatic requirements of the agency.
Delay, Haste, Explanation: The Environmental Protection Agency (EPA) published a National Pollutant Discharge Elimination System (NPDES) Municipal Separate Storm Sewer System General Permit Remand final rule governing Clean Water Act (CWA) regulated small municipal separate storm sewer system can acquire coverage under a nationwide permit to respond to a vacatur and remand from the regulatory ancient decision of the United States Court of Appeals for the Ninth Circuit in Environmental Defense Center v. EPA. Among other things, the Ninth Circuit panel found that EPA’s regulations for these general permits under the NPDES did not provide adequate public notice and opportunity to request a hearing. The policy, but not economically, significant final rule follows January 2016 proposed options and becomes effective January 9, 2017.
► The issue here is simple: what took so long? The court vacated and remanded in 2003, and EPA took almost 13 years to propose, and then finalize, a revised rule. As EPA points out, it issued guidance in the interim and storm water management itself had changed, but agencies need to explain the length of such a delay. This is the type of delay that has lead courts to manage a remand without vacatur to the agency when vacatur has not been ordered, but a court has substantially less influence over the agency’s proceedings once it has vacated a rule.
Air, Cell, Wi-Fi: The Department of Transportation (DOT) announced a proposal to require airlines and ticket agents to disclose in advance to consumers if the carrier operating the flight they propose to purchase will allow passengers to make cellphone calls using the aircraft’s Wi-Fi connection. Currently, the Federal Communications Commission (FCC) prohibits the use of mobile devices on certain radio frequencies onboard aircraft, including for voice calls, but those rules no not cover the increasingly available Wi-Fi connections and other means that a passenger may make voice calls. DOT previously issued an advance notice of proposed rulemaking (ANPRM) and received almost universal opposition (96%) to cell phone calls in the confined, 65+ dB(A)-noise level of an aircraft cabin. The Office of Management and Budget (OMB) completed executive and interagency review of the policy significant proposed rule on December 1, 2016, after an extended review. DOT does not appear to have directly released the actual proposed rule denominated Use of Mobile Wireless Devices for Voice Calls on Aircraft, and it has not yet been filed for public display or published in the Federal Register, but the linked text already appears on the DOT’s rulemaking docket on Regulations.gov.
In short:
[DOT] proposes to require sellers of air transportation to provide adequate advance notice to passengers if the carrier operating the flight allows passengers to make voice calls using mobile wireless devices. Under this proposed rule, carriers would be free to set their own voice call policies, to the extent otherwise permitted by law, so long as carriers provide adequate advance notice when voice calls will be allowed. The requirement for airlines to provide advance notice when voice calls are allowed would not apply to small airlines (i.e., U.S. and foreign air carriers that provide air transportation only with aircraft having a designed seating capacity of less than 60 seats) or ticket agents that qualify as a small business. No advance notice is required if the carrier prohibits voice calls. [DOT] also seeks comment on whether to prohibit airlines from allowing voice calls via passenger mobile wireless devices on domestic and/or international flights.
DOT will accept public comments for 60 days after publication in the Federal Register.
► DOT is setting up one of the great unavoidable hot-button issues for the incoming Administration and it would not have mattered who won the Presidential election. While the proposal would reduce the issue to a notice / competition question, it is likely a “speak now or forever hold your peace” scenario.
The post Monday Morning Regulatory Review – 12/12/16: Administration’s Litigation Twilight; Delay, Haste, Explanation & Air, Cell, Wi-Fi appeared first on Federal Regulations Advisor.