As Judge Griffith noted, it’s peak opinion-issuing season at the D.C. Circuit. The court issued 15 opinions last week, about 10 of which fall into the “admin law” category. So the recaps will necessarily be brief!

Perhaps the most noteworthy decision came in Amazon Services LLC v. U.S. Dep’t of Agriculture, No. 22-1052, where the court vacated a $1 million civil fine the Department of Agriculture had imposed on Amazon for aiding and abetting the unlawful importation of plant and animal products. Citing the Supreme Court’s decision in  Twitter, Inc. v. Taamneh, 598 U.S. 471 (2023), the D.C. Circuit held that statutory terms prescribing civil liability for aiding and abetting draw from the common law understanding and attach liability “only to conscious and culpable participation in unlawful conduct.” Amazon’s provision of fulfillment services to third-party sellers did not meet that standard. The court further held that asserted statutory differences from the Twitter statute were unavailing, as was the Department’s invocation of Chevron deference after Loper Bright. Judge Srinivasan wrote for a unanimous panel, joined by Judge Walker and Judge Rogers.

There was also a trio of FERC decisions last week. Arbitrary and capricious review is never easy for agency challengers, but judging by the past few weeks, it’s particularly hard for FERC challengers, with the agency going 4-1 on arbitrary and capricious review in the past month or so. See June 25 recap, July 16 recap, and July 21 recap. Perhaps 20% success is about the going rate on arbitrary and capricious review across the board, but this week brings FERC two more (non-)arbitrary-and-capricious wins, bringing it to 6-1 on that score.  It has lost on other issues, though, and last week was no exception. On the win side:

• The court held that FERC “followed the plain language of the [relevant] Tariff[,] … reasonably explained how its decision complied with prior orders,” and reasonably performed a cost-causation analysis (though it didn’t “use those magic words”) in concluding that a merchant transmission facility was required to continue to pay for certain grid improvements even though it had relinquished its firm right to draw power from the grid. (A merchant transmission facility draws power from a grid to sell it to customers outside the grid’s region.)  N.Y. Power Auth. v. FERC, No. 20-1283 (Judge Rao writing, joined by Judge Walker and Judge Childs).
• In Entergy Arkansas, LLC v. FERC, No. 22-1335, the court (Judge Millett writing, joined by Judge Katsas and Judge Childs) held that FERC reasonably explained its approval of a grid operator’s rule changes designed to shore up reliability by calculating generator capacity seasonally (rather than annually), requiring generators to replace promised capacity if they go offline for a certain time, and requiring 120 days prior notice of planned outages. The court declined to reach arguments made only by intervenors because the intervenors did not point to “extraordinary circumstances” permitting review of issues not raised by a petitioner.

On the loss side, the court held that FERC “was obligated to—but did not—adhere to notice-and-comment procedures when resetting,” on rehearing, an index that governs the maximum annual rate increases that oil pipelines may charge. Liquid Energy Pipeline Ass’n v. FERC, No. 22-1045 (Judge Srinivasan writing, joined by Judge Millett and Judge Wilkins). The court declined to “prescribe an across-the-board answer to when an agency must provide notice-and-comment procedures in exercising its rehearing authority.” But it held that the pre-rehearing index became sufficiently final to require a new round of notice and comment once the effective date had passed. That’s all I’ll say about that case because I represented one of the intervenors in support of petitioners.

The rest of the decisions defy categorization or theme, so dear reader, steel yourself for a list:

• Medicare/Statutory Interpretation: In the past, agencies sometimes highlighted when statutes were complex, detailed, and technical as a reason for enhanced deference. That calculation may have changed post Loper Bright, and the start of the opinion in Bridgeport Hosp. v. Becerra, No. 22-5249, shows why:

As you might imagine, with that opening description, the D.C. Circuit rejected the agency rule at issue, which basically—in as general terms as I can muster—adjusted Medicare payments upward for hospitals in areas with the lowest wages and, because Congress requires wage adjustments to be budget neutral, reduced other hospitals’ wage adjustments downward to achieve budget neutrality. Along the way to vacating the rule, the court (Judge Walker writing, joined by Judge Rao and Judge Randolph) engaged in an extensive discussion of when changes go too far to fall within an agency’s general “adjustment” authority, and also put a marker down in support of vacatur as the default APA remedy.

• Mandamus: If you were hoping for a rare example of a successful mandamus petition, this was not your day. In In re Western Coal Traffic League, No. 23-1126, a coalition of coal shippers petitioned for a writ of mandamus to compel the Surface Transportation Board to conclude a proceeding that it opened in 2014 on the reasonableness of freight rail shipping rates—and, specifically, the principle of “revenue adequacy.” The coalition sought an order compelling the Board to either issue a notice of proposed rulemaking or enter an order explaining why it had discontinued the proceeding. The court, in an opinion by Judge Rogers (joined by Judge Wilkins and Judge Childs) held that the coalition fell short of establishing the requisite “violation[] of a clear duty to act” for mandamus, because the Board “convened the proceeding solely to gather public comment …, without any statutory duty or stated plans to undertake a rulemaking or specific regulatory action.”
• FDA: The court issued a public version of an opinion that was issued under seal a few weeks ago, in Ipsen Biopharmaceuticals, Inc. v. FDA, No. 23-5142. The case addressed whether the FDA properly classified a product as a drug rather than a biologic (which affects whether the FDA appropriately approved a generic competitor). The Court upheld the FDA’s decision to treat the product as a drug. In reaching that conclusion, it rejected the argument that the statutory definition of “biological product” under the Public Health Service Act implicitly incorporates the FDA’s regulatory definition of “drug product.”
• There were two sealed opinions (both in Sinclair Wyoming Refining Co. v. EPA); they’ll likely be released in public form in the next few weeks.

One could count two other cases in the “admin law” category, regarding tax issues (inventory gain not taxable when nonresident alien sells interest in a U.S. partnership) and FOIA (mostly search adequacy). But I will simply alert you that such decisions exist, given how many other decisions were issued last week.

One other case to mention: In Spence v. Dep’t of Veterans Affairs., No. 22-5273, the Court held that “the pleading leniency we afford pro se litigants” does not apply “when the litigant is a licensed attorney.”

A few more weeks of opinion rush to go…