The D.C. Circuit entered three administrative stays and decided three administrative law cases on the merits last week.

Emergency Orders

Alien Enemies Act

In J.G.G. v. Trump, this month’s special panel administratively stayed the district court’s interim order on contempt. As Thomas Griffith has discussed on this blog, the district court entered a temporary restraining order prohibiting the removal of certain individuals to El Salvador pursuant to the Alien Enemies Act. Although the Supreme Court later vacated the TRO on venue grounds, the government willfully removed the individuals while the TRO was in effect. The district court therefore entered an order finding probable cause for criminal contempt. It offered the defendants an opportunity to purge the contempt or file declarations to identify the contemnors. I’ll discuss three points related to the administrative stay.

First, there appears to have been some disagreement among the panel on the standard for an administrative stay. The majority of Judges Katsas and Rao provided no reasoning, but they entered the court’s standard order stating that the decision “should not be construed in any way as a ruling on the merits.” Judge Pillard noted her dissent on the ground that the D.C. Circuit lacked jurisdiction. In this respect, the administrative stay is another example of the uncertainty surrounding this important device, as explored by Professor Rachel Bayefsky in her 2022 article.

Second, Judge Pillard’s dissent provides a hint as to her forthcoming vote on the stay motion. The defendants alternatively argue that the district court’s interim contempt order is an appealable injunction; that the order is appealable under the collateral order doctrine; and that their appeal should be construed as a petition for a writ of mandamus. As to that third basis, Judge Pillard saw no “clear and indisputable right to relief.” She would thus appear to disagree with the government’s constitutional challenges to the potential appointment of a special prosecutor and the order’s effect on foreign relations.

Third, the stay motion could reshape assumptions about contempt in administrative law cases. As Professor Nicholas Parrillo has shown, federal courts sometimes hold federal officials in contempt but rarely impose sanctions. The government’s egregious conduct could make this case an exception—or perhaps the first case in a new trend.

DOGE Discovery

In In re U.S. DOGE Service, the special panel administratively stayed the district court’s order granting limited, expedited discovery in a FOIA case against DOGE. The district court ordered written discovery and depositions of Acting Administrator Amy Gleason and a Rule 30(b)(6) representative from DOGE. The petition for a writ of mandamus remains pending.

EPA Funds

In Climate United Fund v. Citibank, N.A., the special panel granted a partial administrative stay of the district court’s preliminary injunction. The district court prohibited Citibank from transferring EPA grant funds out of the plaintiffs’ accounts. The district court also required Citibank to disburse funds incurred before suspension in mid-February. A majority of Judges Pillard and Katsas stayed the injunction insofar as it required disbursement.

Judge Rao noted her partial dissent on procedural grounds. The district court entered the injunction with an opinion to follow, and Judge Rao would have administratively stayed the entire injunction “at least until the district court issues its opinion.” Judge Rao apparently had in mind Federal Rule of Civil Procedure 65(d)(1), which requires that an “order granting an injunction . . . state the reasons why it issued.” But the point is now academic because the district court has filed its opinion. The stay motion remains pending.

Merits Docket

Standing

In Entergy Arkansas, LLC v. FERC, the court dismissed the petitions for review for lack of standing. The petitioners forfeited the issue of standing by failing to address it in their opening brief, in violation of Local Rule 28(a)(7).

Rule 28(a)(7) appears to be unique among the courts of appeals. It requires petitioners in cases seeking direct review of agency action to “set forth the basis for the claim of standing” in their opening brief. It adds that, “[w]hen the appellant’s or petitioner’s standing is not apparent from the administrative record, the brief must include arguments and evidence establishing the claim of standing.” The logic is that a petition for review is analogous to a motion for summary judgment, where the plaintiff would have the burden of production.

For now , the D.C. Circuit excuses compliance when the petitioner reasonably believed that its opening brief established standing or assumed that standing was self-evident. But as the panel observed, the court has proposed an amendment to eliminate the “apparent from the record” exception. D.C. Circuit practitioners beware!

Mootness

In Moharam v. TSA, the court dismissed two petitions for review on narrow mootness grounds. TSA had issued a final order determining that Moharam was properly placed on the No Fly List. Moharam petitioned for review of that decision and of TSA’s withholding of information in the administrative record. While the cases were pending, the government notified Moharam that he had been removed from the No Fly List and would not be relisted in the future (absent new information). 

The D.C. Circuit explained that Moharam had not sought declaratory or injunctive relief or challenged the legality of his initial placement on the No Fly List. In a footnote, the D.C. Circuit rejected Moharam’s argument that APA-style set-aside relief is “the functional equivalent” of a declaratory judgment.

The D.C. Circuit also declined to apply the voluntary cessation exception to mootness. But it called the government’s representations that it would not place Moharam back on the No Fly List based on the existing record “critical.”

NEPA

In Sierra Club v. Department of Energy, the court denied the petitions for review on the merits. The petitioners—environmental organizations that had intervened before the agency—challenged the Department of Energy’s compliance with NEPA. The court upheld the Department’s decision not to quantify the effects of downstream emissions in foreign countries, finding substantial evidence to support the Department’s finding of uncertainty. (The opinion includes a discussion of the difference between assessing risks that have probabilities and “Knightian uncertainty” where no probabilities can be assigned.) The court further held that petitioners, who litigated an earlier case challenging FERC’s environmental analysis for the same project, were precluded from challenging the Department’s supplemental impact statement because it agreed with FERC’s analysis.